<PAGE>
As filed with the Securities and Exchange Commission on May 16, 2000
Registration No. 333-95377
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
--------------
Amendment No. 4 to
FORM S-1
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------
NOOSH, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 7379 77-0495080
(State or other
jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or
organization) Classification Code Number) Identification Number)
</TABLE>
--------------
3401 Hillview Avenue, Palo Alto, California, 94304
(650) 320-6000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
--------------
Ofer Ben-Shachar
President, Chief Executive Officer and Chairman
3401 Hillview Avenue, Palo Alto, California 94304
(650) 320-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------
Copies To:
<TABLE>
<S> <C>
Laura A. Berezin, Esq. Steven B. Stokdyk, Esq.
Cooley Godward LLP Sullivan & Cromwell
Five Palo Alto Square 1888 Century Park East Blvd., 21st Floor
3000 El Camino Real Los Angeles, California 90067
Palo Alto, CA 94306-2155 (310) 712-6600
(650) 843-5000
</TABLE>
--------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment that specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the commission, acting pursuant to said section
8(a), may determine.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. These +
+securities may not be sold until the registration statement filed with the +
+Securities and Exchange Commission is effective. This preliminary prospectus +
+is not an offer to sell nor does it seek an offer to buy these securities in +
+any jurisdiction where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion. Dated May 16, 2000.
4,000,000 Shares
[LOGO OF NOOSH, INC.]
NOOSH, Inc.
Common Stock
----------
This is an initial public offering of common stock of NOOSH, Inc. All of the
4,000,000 shares of common stock are being sold by NOOSH.
Prior to this offering, there has been no public market for our common stock.
We estimate the initial public offering price will be between $11.00 and $13.00
per share. We have applied to have our common stock listed for quotation on the
Nasdaq National Market under the symbol "NOSH".
See "Risk Factors" beginning on page 8 to read about factors you should
consider before buying shares of our common stock.
----------
Neither the Securities and Exchange Commission nor any other regulatory body
has approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
----------
<TABLE>
<CAPTION>
Per Share Total
--------- -----
<S> <C> <C>
Initial public offering price.................................. $ $
Underwriting discount.......................................... $ $
Proceeds, before expenses, to NOOSH............................ $ $
</TABLE>
To the extent that the underwriters sell more than 4,000,000 shares of common
stock, the underwriters have the option to purchase up to an additional 600,000
shares from NOOSH at the initial public offering price less the underwriting
discount.
----------
The underwriters expect to deliver the shares in New York, New York on
, 2000.
Goldman, Sachs & Co. Robertson Stephens
Banc of America Securities LLC
PaineWebber Incorporated
E*OFFERING
----------
Prospectus dated , 2000
<PAGE>
[Description of Inside Front Cover Graphic: Graphic depicts the print job
work-flow and communication process before and after Noosh.com.
The graphic on the left-hand side of the page depicts the process before
Noosh.com and contains circles, squares and triangles, arranged in a circular
pattern, representing the parties involved in the print production process. In
the center of the circle is a square representing a print broker, a circle
representing the printing sales representative and a triangle representing the
print buyer. Connecting the three parties in the center of the circle with the
parties forming the outside of the circle are numerous lines representing the
multiple interactions among the multiple parties prior to deploying our
Noosh.com service.
The graphic on the right-hand side of the page depicts the process after
Noosh.com and also contains circles, squares and triangles, arranged in a
circular pattern, representing the parties involved in the print production
process. In the center of the circle is the Noosh logo. Lines connect the
Noosh logo with each of the parties forming the outside of the circle
representing the fact that Noosh acts as a central location enabling
collaboration among all the parties involved in the print production process.]
Top caption:
Noosh leverages the power of the Internet
to improve the process of managing the design,
procurement and production of print projects.
Caption below Caption below
left-hand graphic: right-hand graphic:
Traditional Process of Process of Managing Print Using Noosh.com
Managing Print
<PAGE>
[Description of gatefold graphics: Graphic depicts Web site page views of our
Noosh.com service. In the center is a depiction of the first page of our Web
site. Underneath, in a semi-circle, are five additional graphics depicting other
Web site page views correlating to features available on Noosh.com. Features
highlighted are "Open Job", "Request/Accept Estimates", Collaborate", "Order
Management/Event Tracking", "Ship Completed Jobs" and "Management
Reporting."
Open Jobs: The Jobs page contains current job status, due date, and key
contact information.
Request/Accept
Estimates: Print jobs can be created and submitted by buyers and quoted
online by print vendors.
Collaborate: Users can build job teams consisting of participants from
multiple organizations.
Order
Management/Event
Tracking: The noosh.com service provides online ordering, confirmation
and order status reports.
Ship Completed
Jobs: Print buyers can choose to ship projects to one or multiple
locations, and noosh.com tracks the status of shipments.
Management
Reporting: Noosh.com provides access to real-time job-management
reports.
<PAGE>
PROSPECTUS SUMMARY
You should read the following summary together with the more detailed
information regarding NOOSH, Inc., and our financial statements and the related
notes appearing elsewhere in this prospectus. Unless otherwise indicated, this
summary and all the information in this prospectus assumes the automatic
conversion of all outstanding shares of our preferred stock into shares of
common stock upon the closing of this offering and no exercise of the
underwriters' over-allotment option.
Our Business
We are a provider of business-to-business e-commerce solutions for the
printing industry. We have developed and operate noosh.com, an Internet-based
service for managing the design, procurement and production of print orders.
Our service can be used to manage print products as diverse as business cards
and stationery, promotional brochures and direct mail, customized packaging and
labels, and books and magazines. Our service leverages the benefits of the
Internet to enable print buyers, print vendors and other providers of related
services to communicate and collaborate efficiently through the complex, multi-
step process of a print job.
Our service is primarily targeted at large corporations which budget at
least $10 million annually for their print buying requirements and their print
vendors. Print vendors who use our service generally pay us a transaction fee
based on the size and volume of the print order, and print buyers who use our
service generally pay us a monthly fee. As of May 11, 2000 over 40 print buyers
have signed agreements with us to use our service. Of these, Bank of America
Corp., the General Electric Company and Wells Fargo & Company have encouraged
their printers to use our noosh.com service. In addition, to promote the
acceptance of our service by large national corporations, we have entered into
agreements with national vendors in the print industry under which they have
agreed to market our service to their customers. To date, we have entered into
four such print vendor agreements with Consolidated Graphics, Inc., Moore North
America, Inc., R.R. Donnelley & Sons Company and Wallace Computer Services,
Inc. under which they have agreed to market our services to their customers. As
of May 11, 2000, we have also entered into agreements to use our service with
over 198 smaller printers, pre-press vendors and print brokers. None of our
company agreements obligate the print buyers, print vendors, pre-press vendors
and print brokers to use our service and as of March 31, 2000 we had not
generated significant revenue from these agreements. From January 1, 2000
through March 31, 2000, over 487 print orders have been issued by print buyers
and accepted by print vendors through our noosh.com service.
We were incorporated in August 1998 and have a limited operating history. For
the three-month period ended March 31, 2000, we had revenue of $68,000. From
inception through December 31, 1999, we were a development stage company and
did not have any revenue. We also have a history of significant losses. We
incurred a net loss of $17.6 million for the year ended December 31, 1999 and a
net loss of $20.7 million for the three-month period ended March 31, 2000. As
of March 31, 2000, we had an accumulated deficit of $38.6 million. We
anticipate that we will continue to incur operating losses and negative
operating cash flow in the foreseeable future. In addition, we operate in a
competitive industry in which new competitors can enter with little difficulty.
Accordingly, we expect competition in the market for print management services
to intensify in the future. See "Risk Factors" beginning on page 6 to read
about these and other factors you should consider before buying our shares.
3
<PAGE>
Corporate Information
We were incorporated in California in August 1998 and reincorporated in
Delaware in March 2000. Our corporate offices are located at 3401 Hillview
Avenue, Palo Alto, California 94304. Our telephone number at that location is
(650) 320-6000. Information contained on our Web site does not constitute part
of this prospectus. We have filed for federal trademark registration for
NOOSHSM, the NOOSHSM logo and LiveJobsSM. Other trademarks and tradenames
appearing in this prospectus are the property of their holders.
4
<PAGE>
The Offering
<TABLE>
<C> <S>
Common stock offered by NOOSH.............. 4,000,000 shares
Common stock to be outstanding after this
offering.................................. 37,602,173 shares
Use of proceeds............................ For working capital and general
corporate purposes. See "Use of
Proceeds".
Proposed Nasdaq National Market symbol..... "NOSH"
</TABLE>
The number of shares of common stock to be outstanding after this offering is
stated as of April 4, 2000 and includes:
. 21,981,137 shares of common stock and Class B common stock to be issued upon
automatic conversion of preferred stock upon completion of this offering,
based on an assumed initial public offering price of $12.00 per share;
. 4,000,000 shares of common stock to be issued upon completion of this
offering; and
. 35,000 shares of common stock issuable upon exercise of a portion of an
outstanding warrant at an exercise price of $7.45 per share prior to this
offering.
The number of shares of common stock to be outstanding after this offering
excludes:
. 14,950,000 shares of common stock authorized for issuance under our employee
stock option plans, non-employee directors' stock option plan and our
employee stock purchase plan, of which 4,392,538 shares, at a weighted
average exercise price of $2.06, were subject to outstanding options as of
April 4, 2000;
. warrants for 1,573,308 shares of common stock and Class B common stock that
are exercisable as of April 4, 2000 at a weighted average exercise price of
$11.31; and
. warrants for an additional 2,785,250 shares of common stock that may become
exercisable in the future based on the holders meeting stated volume targets
for business conducted over our service.
Upon completion of this offering, our executive officers, directors,
principal stockholders and their affiliates will beneficially own, in the
aggregate, approximately 64.3% of our outstanding common stock. In addition,
following this offering, our existing stockholders will own approximately 89.4%
of our stock. As a result, these stockholders may be able to control all
matters requiring stockholder approval, including the election of directors and
approval of significant corporate transactions, which could delay or prevent a
change of control of NOOSH.
5
<PAGE>
SUMMARY FINANCIAL DATA
The following summary financial data are derived from our financial
statements included elsewhere in this prospectus. The pro forma balance sheet
data reflects the receipt of net proceeds of $10.0 million upon the issuance
and sale of 769,231 shares of Series E preferred stock to GE Capital Equity
Investments, Inc., an affiliate of the General Electric Company, in April 2000.
The pro forma as adjusted balance sheet data reflects the receipt of net
proceeds from the sale of 4,000,000 shares of common stock offered by us at an
assumed initial public offering price of $12.00 per share after deducting an
assumed underwriting discount and estimated offering expenses payable by us.
The pro forma as adjusted balance sheet data also assumes the exercise of a
portion of an outstanding warrant for a total of 35,000 shares of common stock
at an exercise price of $7.45 per share prior to this offering. We have assumed
that this portion of the warrant will be exercised prior to this offering
because the exercise price is less than the assumed initial public offering
price and this portion of the warrant expires on the closing of the offering.
<TABLE>
<CAPTION>
Period from Period from
August 3, August 3,
1998 (date 1998 (date Period from
of of August 3,
inception) inception) Three Months Ended 1998 (date of
to Year Ended to March 31 inception) to
December 31, December 31, December 31, ---------------------- March 31,
1998 1999 1999 1999 2000 2000
------------ ------------ ------------ --------- ----------- -------------
(in thousands, except share and per share data)
<S> <C> <C> <C> <C> <C> <C>
Revenue................. -- -- -- -- 68 68
Cost of Revenue......... -- -- -- -- 141 141
--------- ----------- --------- --------- ----------- ---------
Gross Profit............ -- -- -- -- (73) (73)
Statements of Operations
Data:
Operating expenses:
Research and
development (exclusive
of non-cash
compensation expense
of $771, $17
(unaudited) and $718
(unaudited) in the
year ended December
31, 1999, and the
three month periods
ended March 31, 1999
and 2000, respectively
reported below)....... $ 111 $ 3,053 $ 3,164 273 2,039 5,203
Sales and marketing
(exclusive of non-cash
compensation expense
of $984, $18
(unaudited) and $2,266
(unaudited) in the
year ended December
31, 1999, and the
three month periods
ended March 31, 1999
and 2000, respectively
and value of warrants
granted of $1,468 and
$3,914 (unaudited) in
the year ended
December 31, 1999 and
the three month
periods ended March
31, 2000, respectively
reported below)....... 96 9,412 9,508 300 9,979 19,487
Value of warrants
granted in connection
with marketing
agreements............ -- 1,468 1,468 -- 3,914 5,382
General and
administrative
(exclusive of non-cash
compensation expense
of $813, $1 unaudited
and $1,289 unaudited
in the year ended
December 31, 1999, and
the three month
periods ended March
31, 2000 respectively
reported below)....... 107 1,795 1,902 128 1,197 3,099
Amortization of
deferred stock
compensation.......... -- 2,568 2,568 36 4,273 6,841
--------- ----------- --------- --------- ----------- ---------
Total operating
expenses.............. 314 18,296 18,610 737 21,402 40,012
--------- ----------- --------- --------- ----------- ---------
Loss from operations... (314) (18,296) (18,610) (737) (21,475) (40,085)
Interest income, net.... -- 648 648 4 801 1,449
--------- ----------- --------- --------- ----------- ---------
Net loss................ $ (314) $ (17,648) $ (17,962) (733) (20,674) (38,636)
--------- ----------- --------- --------- ----------- ---------
Net loss per share--
basic and diluted...... $ (0.12) $ (4.13) $ (4.77) $ (0.22) $ (3.91) $ (7.76)
========= =========== ========= ========= =========== =========
Shares used in per share
calculation--basic and
diluted................ 2,521,485 4,275,090 3,763,399 3,405,069 5,292,410 4,978,794
========= =========== ========= ========= =========== =========
Pro forma net loss per
share--basic and
diluted................ $ (1.15) $ (0.79)
=========== ===========
Shares used in pro forma
net loss per
share--basic and
diluted................ 15,356,918 26,025,280
=========== ===========
</TABLE>
6
<PAGE>
<TABLE>
<CAPTION>
As of March 31, 2000
------------------------------
Pro Forma
Actual Pro Forma As Adjusted
------- ---------- -----------
(in thousands)
<S> <C> <C> <C>
Balance Sheet Data:
Cash and cash equivalents........................ $48,917 $58,917 $102,618
Working capital.................................. 49,076 59,076 102,777
Total assets..................................... 56,327 66,327 110,028
Long-term debt................................... 79 79 79
Total stockholders' equity....................... 54,213 64,213 107,914
</TABLE>
7
<PAGE>
RISK FACTORS
You should carefully consider the following risk factors and all other
information contained in this prospectus before purchasing our common stock.
Investing in our common stock involves a high degree of risk. The risks and
uncertainties described below are those we currently believe are material to
our business, our industry and this offering. If any of the following risks
actually occurs, our business, operating results and financial condition could
be seriously harmed. In addition, the trading price of our common stock could
decline due to the occurrence of any of these risks, and you may lose all or
part of your investment. See "Note Regarding Forward-Looking Statements".
Risks Related to Our Business
We only incorporated in August 1998 and generated no revenue through December
31, 1999. Because our limited operating history makes it difficult to evaluate
our business, our future financial performance may disappoint investors and
result in a decline in our common stock price.
We were incorporated in August 1998 and have a limited operating history,
which makes an evaluation of our current business and prospects difficult.
Through December 31, 1999, we did not generate any revenue and, we have had
only limited revenue for the three-month period ended March 31, 2000. In
addition, the revenue and income potential of our business is unproven. Due to
our limited operating history, it will be difficult to predict accurately our
future revenue or results of operations. This may result in one or more
quarters where our financial performance falls below expectations of investors.
As a result, the price of our common stock may decline.
The market for Internet-based print management services is at an early stage of
development and, if our noosh.com service does not achieve widespread
commercial acceptance, we will be unable to generate revenue.
Because the market for Internet-based print management services is at an
early stage of development, our noosh.com service may fail to achieve market
acceptance. The acceptance of our Internet-based service may be hindered by:
. the reluctance of prospective customers to change their existing print
purchasing habits and alter the nature of their direct print vendor
relationships;
. our failure to effectively communicate the value of our service to
prospective customers;
. the inability of national printers with whom we have a relationship to
effectively co-market our service to their customers; and
. the emergence of new technologies or industry standards that could cause our
service to be less competitive.
If our potential customers do not recognize the value of, or choose not to
adopt, our service, we will be unable to generate revenue.
Because print buyers and print vendors currently coordinate print orders
through a medium other than the Internet, they may not accept our Internet-
based print management service and our business could suffer.
Most print buyers and print vendors currently coordinate the procurement and
management of customized print orders through either a combination of
telephone, facsimile and paper or through proprietary software solutions.
Growth in the demand for our noosh.com service depends on the adoption of e-
commerce and Internet services by print buyers and print vendors, which
requires their
8
<PAGE>
acceptance of a new way of managing the design, procurement and production of
print orders. However, we may not be able to persuade print buyers or print
vendors to abandon their traditional print management processes because of
comfort with these processes and because of the existing direct relationships
between print buyers and their vendors. Our business could suffer if Internet-
based print management services are not accepted or not perceived to be
effective by print buyers and print vendors.
We expect to incur significant future operating losses and may never achieve
profitability.
From inception through December 31, 1999, we were a development stage company
and did not have any revenue. In addition, we incurred a net loss of $17.6
million for the year ended December 31, 1999 and a net loss of $20.7 million
for the three-month period ended March 31, 2000. We anticipate that we will
continue to incur operating losses and net losses for the foreseeable future.
The extent of our future losses are dependent, in part, on the amount of growth
in our revenue relative to our operating expenses. However, we currently expect
to increase our operating expenses significantly as we incur expenses related
to the development, operation and marketing of our service. In turn, our
ability to generate revenue depends on our ability to convert our current users
to paying customers and obtain new customers. If we fail to generate
significant revenue, or if our operating expenses increase without a
corresponding increase in revenue, our losses will continue to increase in
future periods.
Through the remainder of fiscal 2000, we intend to commit significant
resources to sales and marketing and research and development activities. In
particular, we intend to increase our sales and marketing expenses to hire
additional sales and marketing personnel, to develop relationships with print
buyers, print vendors and providers of related services and to build brand
recognition. Similarly, we intend to increase our research and development
activities to hire additional personnel and enhance the features and
functionality or our noosh.com service for the print market, as well as for
other print-related markets such as creative design process management and file
and data storage.
We expect to use the proceeds of this offering primarily to fund the
development of our noosh.com service, including development of new versions of
our service, enhanced functionality and improvements of our LiveJobs
technology. In addition, we expect to use a portion of the proceeds to increase
our sales and marketing activities. Any remaining proceeds will be used for
general and administrative purposes. In that regard, we are currently looking
for additional space in anticipation of the expiration of our current lease.
Converting our users to revenue-generating customers and attracting new
customers is a complex and time-consuming process which may take longer than we
expect. If we are unable to maintain or attract customers which agree to pay
reasonable amounts for our service, we will be unable to generate sufficient
revenue.
Our user agreements do not obligate our users to use our service. We cannot
assure you that we will be able to convert our existing users to revenue-
generating customers or what price these customers will be willing to pay for
our service. In addition, the enterprise-wide implementation of our service by
large print buyers or vendors can be complex and time consuming because it may
require us to perform a workflow analysis to determine how our noosh.com
service can best be used within the enterprise, input contact lists and past
documents as templates, train individuals within the print buyer's or print
vendor's organization in the use of our noosh.com service and, with the help of
our customer service representatives, begin the process of creating print jobs.
Depending on the size of the customer, and the number of individuals that need
to be trained, this process may take several weeks to complete. Therefore, to
sell our service successfully, we must educate our potential customers on the
uses and benefits of our service, which can require significant time and
resources
9
<PAGE>
on our part. Consequently, we can not assure you that we will be able to
attract new customers. If we are unable to convert our existing users to
revenue-generating customers or attract new customers, our ability to expand
our business will be hindered.
Intense competition in our industry could substantially impair our business and
our operating results.
We expect competition in the market for Internet-based print management
services to intensify significantly in the future because new competitors can
enter the market with little difficulty and can launch new Internet-based
services for a relatively low cost. Competitors may offer Internet-based print
management services superior to our current or proposed offerings and achieve
greater market acceptance. In addition, because we have only recently
implemented a pricing structure for our service, we cannot be certain that
current users and future customers will be willing to pay the prices we have
set. If we do not achieve market acceptance before our competitors offer more
attractive services, we will lose customers and our market share will decline.
We currently compete with several companies that offer business-to-business
Internet-based services or enterprise software applications for the printing
industry. Currently, our three principal competitors include Collabria, Inc.,
printCafe, Inc. and Impresse Corporation. We potentially will compete with a
number of other companies, including print vendors offering traditional methods
of buying and managing print orders, such as R.R. Donnelley, and companies that
provide proprietary management software. These companies may develop
alternative print procurement and management services. In addition, existing
print vendors, including some of our users, may develop competing Internet-
based services for the management of print orders. These vendors have well-
established relationships with our current print buyers and potential
customers, a large base of installed customers, extensive knowledge of our
industry and significantly greater financial and marketing resources than we
do. In addition, existing print vendors may not charge additional fees for
their Internet-based service. To the extent existing print vendors elect to
offer their services over the Internet, their relationships with their
customers, industry knowledge and pricing flexibility may provide them with a
competitive advantage because print buyers may be unwilling to adopt or pay for
a new Internet-based system or may be more comfortable adopting the Internet-
based services offered by their current print vendors.
We believe that the principal competitive factors affecting our market
include adoption by a significant number of print buyers and print vendors,
core technology, product quality and performance, breadth and depth of product
features, industry-specific expertise, customer service and support and value
of solution. We may not be able to maintain our competitive position against
current and potential competitors, especially those with significantly greater
financial, marketing, service, support, technical and other resources.
Because our quarterly operating results are difficult to predict and likely to
fluctuate in future periods, we may fail to meet the expectations of investors,
which may cause the market price of our common stock to decrease.
Operating results are difficult to predict and are likely to vary
significantly from quarter to quarter in the future. We compete in the general
printing market, which is characterized by individual orders from customers for
specific printing projects rather than long-term contracts. Continued
engagement for successive print orders depends on the customers' satisfaction
with our service. Therefore, the number, size and profitability of print orders
may fluctuate from quarter to quarter. As a result, our quarterly operating
results are difficult to predict and may fall below the expectations of current
or potential investors in some future quarters, which could lead to a
significant decline in the market price of our stock.
10
<PAGE>
Because we have granted some of our print vendors and print buyers performance-
based warrants, we expect to incur substantial non-cash charges which will
reduce our operating results.
We expect to incur substantial non-cash charges associated with the grant of
performance-based warrants for an aggregate of 4,393,559 shares of common stock
to four print vendors and three print buyers. These warrants are exercisable in
increments ranging from 5,000 shares of common stock to 900,000 shares of
common stock when the holders meet stated volume targets for business conducted
through our noosh.com service. These volume targets range from $5 million in
print orders to $1.5 billion in print orders. For the quarter ended
December 31, 1999, we recorded a charge of $1.5 million in connection with
portions of warrants issued to two print vendors, and for the quarter ended
March 31, 2000, we recorded a charge of $3.9 million in connection with a
portion of the warrant issued to a third print vendor. In addition, based on an
assumed initial public offering price of $12.00 per share, we expect to record
a charge of $5.7 million for the quarter ending June 30, 2000 in connection
with a portion of a warrant issued to a print buyer. The remaining portions of
these warrants and the remaining warrants are exercisable when the holders meet
stated volume targets for business conducted on or through our noosh.com
service. The magnitude of each additional charge will be measured and the
charge will be taken when it becomes probable that applicable volume targets
will be achieved. Although, the magnitude of these potential charges cannot be
currently calculated, we expect that the charges will be relatively large and
will reduce our operating results or increase our losses on an aggregate and
per share basis in the year these charges are expensed. In addition, to the
extent holders exercise their warrants, the total number of shares we have
outstanding would increase correspondingly. As a result, investors would suffer
additional dilution of their ownership interest and in the book value of their
investment.
Because we may issue additional performance-based warrants in the future to
encourage print buyers and print vendors to conduct business through our
noosh.com service, investors may suffer additional dilution when these warrants
are exercised, and we may incur additional non-cash charges which would harm
our operating results.
In order to attract additional users and to provide an incentive for our
current users to increase their use of our noosh.com service, we may issue
additional performance-based warrants. These warrants may become exercisable
when the holders meet pre-determined targets for business conducted through our
service. To the extent we issue these warrants at an exercise price that does
not correspond to the market value of our common stock on the date the warrants
are exercised, we may incur substantial non-cash charges which would reduce our
operating results or increase our losses, on an aggregate and per share basis,
in the year we record the charge. In addition, to the extent these warrants are
exercised, investors would suffer additional dilution in their ownership
interest and in the book value of their investment.
If we are unable to expand our sales, marketing and customer support
infrastructure successfully, our ability to increase sales of our service will
be compromised.
Our ability to expand our business will depend in part on recruiting and
training additional direct sales, marketing and customer support personnel,
including additional personnel in new geographic markets as we expand.
Competition for qualified sales, marketing and customer support personnel is
intense. We may not be able to expand our direct sales force successfully,
which would limit our ability to expand our customer base. We may be unable to
hire highly trained customer support personnel, which would make it difficult
for us to meet customer demands. Any difficulties we may have in expanding our
sales, marketing or customer support organizations will have a negative impact
on our ability to attract new customers and retain existing users.
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<PAGE>
Our key management and technical personnel are critical to our business and if
they do not remain with us in the future, our remaining management may become
distracted, our reputation may be harmed and our operating expenses could
increase.
Our future success will depend to a significant extent on the continued
services of Ofer Ben-Shachar, our President and Chief Executive Officer, David
Hannebrink, our Vice President of Marketing and Business Development, Lawrence
Slotnick, our Vice President of Engineering, and Robert Shaw, our Senior Vice
President of Sales. The loss of the services of any of these individuals could
cause us to incur increased operating expenses and divert other senior
management time in searching for their replacements. The loss of their services
could also harm our reputation as our users could become concerned about our
future operations. We do not have long-term employment agreements with any of
these personnel.
If we are unable to continually attract and retain qualified personnel, we may
not be able to support the growth of our business.
In order for our business to be successful, we must be able to continually
attract and retain qualified personnel. In particular, we may hire additional
experienced sales and marketing personnel, software developers, qualified
engineers and other employees. Competition for these individuals is intense,
especially in the Internet industry. We cannot be certain that we will be
successful in attracting and retaining such personnel. If we fail to recruit
and retain additional key personnel, we may be unable to expand our business
and sell the noosh.com service.
Because many of the members of our management team have been employed with us
for less than one year, we cannot be certain that they will be able to manage
our business successfully.
We are dependent on the successful integration of our management team in
order for our business to be successful. Because of our limited operating
history, many of our existing management personnel have been employed by us for
less than a year. Therefore, we cannot be certain that we will be able to
allocate responsibilities satisfactorily and that the new members of our
management team will succeed in their roles. Our inability to integrate members
of our current management team or any additional qualified personnel would make
it difficult for us to manage our business successfully and pursue our growth
strategy.
If we are unable to update the features and functionality for our service in
response to rapid changes in technologies, customer demands and competitive
offerings, our service may become obsolete and we will be unable to compete.
The market for e-commerce solutions for the printing industry is subject to
rapidly changing technologies and customer demands. In particular, in recent
years, the market for printed business materials has experienced significant
changes due to advances in computer and communication technologies. These
changes have led to the implementation of new industry standards. For example,
certain products that were once commercially printed are now generated on
computers through desktop publishing software. In addition, some information is
now disseminated in a digital or electronic format rather than in a paper
format. To meet these challenges, we must correctly interpret the trends in the
market for printed business materials and in customers needs, enhance the
features and functionality of our current service in response to these trends
and develop and introduce new services in a timely and cost-effective manner.
We cannot be certain that the features and functionality that we currently
offer, or the features and functionality that we may offer in the future, will
be sufficient to encourage and facilitate the use of our noosh.com service. For
example, the trend to digital and electronic dissemination could reduce the
demand for printing of some communications. If we or our customers are focused
on these types of communications, we would need to focus on
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<PAGE>
other types of printing jobs. If we are unable to accurately determine the
needs of print buyers and print vendors or the direction of trends in the
market for printed business materials, we will be unable to design or implement
the appropriate features and functionality for our noosh.com service which
would result in decreased demand for our noosh.com service and a corresponding
decrease in our revenue.
We may incur substantial expenses pursuing new or complementary business
objectives, which may harm our operating results.
Part of our strategy is to pursue new or complementary business opportunities
within and outside the printing industry and to expand internationally. We may
not be able to expand our service offerings and related operations in a cost-
effective or timely manner. Expansion of our business into other print-related
markets such as creative design process management and file and data storage
will require significant additional expenditures and strain our personnel and
resources. For example, we may need to incur significant marketing expenses to
develop relationships with new suppliers and customers. In addition, we cannot
be certain that we will be able to use our Live Jobs technology to expand our
service offerings outside the printing industry in a timely and cost-effective
manner. Even if we are successful in applying our technology to non-print
related markets, our new service offerings may not achieve market acceptance,
which could damage our reputation.
Because we have recently granted stock options to our employees at exercise
prices significantly below the assumed initial public offering price, we will
recognize a significant deferred stock compensation expense which could harm
our operating results.
Since inception in August 1998 through April 2000, we have granted options to
employees at exercise prices which, based on the assumed initial public
offering price of $12.00, we determined are below the deemed fair market value
of our common stock for financial reporting purposes. As a result, we have
recorded deferred stock-based compensation of $32.0 million for the period
since inception through March 31, 2000. Of this $32.0 million, we recognized
deferred stock compensation expense of $2.6 million for the year ended December
31, 1999 and $4.3 million for the three-month period ended March 31, 2000. The
remainder will be amortized as stock-based compensation over the vesting period
of the options, or through 2004.
Third parties may increase the fees they charge us for their technology or
refuse to license technology to us, which may increase our costs or harm our
service.
We rely on third parties to provide us with software for which we pay fees.
For example, we license software from Oracle Corporation and WebLogic, Inc. to
support our noosh.com service. These parties may increase their fees
significantly or refuse to license their software to us. While other vendors
may provide similar technology, this software provides the infrastructure on
which our service operates and is therefore important to our business. We
cannot be certain that we would be able to obtain the required substitute
technology on favorable terms or on a timely basis. If we cannot obtain the
required technology at a reasonable cost or this technology is inadequate, we
may incur additional expenses or experience delays or disruptions in our
service.
Our inability to protect our intellectual property rights from third-party
challenges may significantly impair our competitive position.
If we fail to protect our proprietary rights adequately, our competitors
could offer similar services, potentially harming our competitive position. We
rely on a combination of copyright, trademark and trade secret laws and
restrictions on disclosure to protect our intellectual property rights. We have
filed for trademark protection for NOOSH, the NOOSH logo and LiveJobs. We also
have four U.S. patent applications pending in connection with the internally
developed software applications that
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<PAGE>
comprise our LiveJobs technology. However, we do not have any issued patents to
date, and we can not be sure any patents will issue. We cannot be certain that
the steps we have taken to protect our intellectual property rights will be
adequate or that third parties will not infringe or misappropriate our
proprietary rights. We also cannot be sure that competitors will not
independently develop technologies that are substantially equivalent or
superior to the proprietary technologies employed in our Internet-based
service.
Our service may infringe on the intellectual property rights of third parties,
which may result in lawsuits and prevent us from selling our service.
In recent years, there has been significant litigation in the United States
concerning patents and other intellectual property rights involving companies
in the Internet industry. The software code relating to our noosh.com service
or our methods of providing our noosh.com service may infringe on the
proprietary rights of others and other parties may assert infringement claims
against us. In February 2000, we received a letter from an individual, Henry B.
Freedman, advising us that his patent may cover the software code comprising
our noosh.com service and requesting that we consider licensing the patent. We
are currently evaluating the patent. If this matter, or any similar future
matters or claims, cannot be resolved through a license or similar arrangement,
we could become a party to litigation. Intellectual property claims and any
resulting lawsuits, if successful, could subject us to significant liability
for damages and result in invalidation of our proprietary rights. In addition,
these claims, regardless of whether they result in litigation and regardless of
the outcome of the litigation, would be time-consuming and expensive to resolve
and divert management time and attention. Any intellectual property dispute may
cause us to do one or more of the following:
. stop selling or using our service;
. attempt to obtain from the owner of the infringed intellectual property
right a license to sell or use the relevant technology, which license may
not be available on reasonable terms or at all; or
. redesign the service.
If we are forced to take any of these actions, our business may be harmed.
Although we carry general liability insurance, our insurance may not cover
claims of this type or may not be adequate to indemnify us for all liability
that may be imposed.
Risks Related to the Internet Industry
We depend on the increasing use of the Internet and on the growth of electronic
commerce. If businesses do not accept Internet-based print management services,
our business will fail.
For us to succeed, the Internet must continue to be adopted as a significant
business-to-business tool for managing vital business functions such as
managing and producing printed business materials. To date, many businesses
have been deterred from using the Internet for a number of reasons, including:
. unavailability of cost-effective, high-speed Internet access;
. inconsistent quality of service;
. potentially inadequate development of the global Internet infrastructure;
and
. the difficulty of integrating existing business software applications with
online systems.
Although the Internet has been widely adopted for business transactions, it
may not achieve broad market acceptance for managing the design, procurement
and production of print orders. Companies that have already invested
substantial resources in traditional methods of managing and producing printed
business materials may be reluctant to adopt new Internet-based services.
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<PAGE>
Any damage to or failure of our service could disrupt our business and
undermine our reputation.
Our operations depend in part on our ability to protect our systems against
physical damage from fire, earthquakes, power loss, telecommunications
failures, computer viruses, hacker attacks, physical break-ins and similar
events. Any software or hardware damage or failure that causes interruption or
an increase in response time of our online service could reduce customer
satisfaction and decrease usage of our service. Although current utilization of
our system processing capacity is limited, our capacity needs and limitations
have been relatively untested to date. In addition, our plans for increasing
system processing capacity whenever utilization exceeds 25% could result in a
significant expense which would divert resources from sales and marketing or
research and development and which may reduce our ability to compete or may
cause our losses to increase or profitability to decrease.
We have entered into a colocation agreement with AboveNet, Inc. to provide
data center colocation, Internet connectivity, conditioned power and support
and maintenance of our hardware and software at AboveNet's San Jose, California
facility. We have also entered into an agreement with InterNAP Network Services
Corporation for Internet connectivity services at InterNAP's Fremont,
California facility. Since our data warehousing and network facilities are
located in California, an earthquake, other natural disaster, or
telecommunications failure could affect our operations unexpectedly and prevent
us from offering our service. We cannot be certain, and neither InterNAP nor
AboveNet guarantee, that our service will be uninterrupted, error-free or
secure. For example, on three prior occasions, our users have experienced
disruptions in service. On one of these occasions, the service interruption
lasted for six hours and was the result of system-wide network failure at our
vendor's facility. On the other occasions, the interruptions lasted from one to
two hours and were the result of either power failure at our vendor's facility
or maintenance problems within Noosh. Any future interruptions, errors or
breaches of security could harm our business and our reputation.
Security risks and concerns may deter the use of the Internet for conducting e-
commerce, which may inhibit the use of our service and limit our growth.
Secure transmission of confidential information over public networks is
critical for conducting e-commerce. Advances in computer capabilities, new
discoveries in the field of cryptography or other events or developments could
result in compromises or breaches of our security systems. If any
well-publicized compromises of security were to occur, they could have the
effect of substantially reducing the use of the Internet for commerce and
communications, which could reduce usage of our service and harm our business.
Anyone who circumvents our security measures could misappropriate proprietary
information or cause interruptions in our service or operations. In the past,
computer viruses or software programs that disable or impair computers, have
been distributed and have rapidly spread over the Internet. Computer viruses
could be introduced into our systems or those of our users, which could disrupt
our network or make it inaccessible to users. We may be required to expend
significant capital and other resources to protect against the threat of
security breaches or to alleviate problems caused by breaches. To the extent
that our activities may involve the storage and transmission of proprietary
information, security breaches could expose us to a risk of loss or litigation
and possible liability. Our security measures may be inadequate to prevent
security breaches, and our business would be harmed if we do not prevent them.
Because the volume of data traffic over the Internet, in general, and our Web
site, in particular, has increased significantly over a short period of time,
users may experience performance problems with our service which may hinder the
adoption of our Internet-based print management service.
Our success in attracting and retaining customers and convincing them to
increase their reliance on our Internet-based print management service depends
on our ability to offer customers reliable
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<PAGE>
and continuous service. This requires us to ensure continuous and error-free
operation of our systems. To the extent that the volume of data traffic on our
web site and other systems increases, we must upgrade and enhance our technical
infrastructure to accommodate the increased demands placed on our systems. Our
ability to increase the speed and reliability of our service, however, is
limited by and depends upon both the infrastructure supporting the Internet and
the internal networks of our existing users and future customers. As a result,
the success of our service is dependent upon improvements in networking
infrastructure. If these improvements are not available or are not implemented
in a timely fashion by our current users and future customers, we will have
difficulty in retaining current users or attracting new customers, and our
business would be harmed.
Increasing governmental regulation of electronic commerce could limit our
growth.
The adoption of new laws or the adaptation of existing laws to the Internet
may decrease the growth in the use of the Internet, which could in turn
decrease the demand for our service, increase our cost of doing business or
otherwise harm our business. Federal, state, local and foreign governments are
considering legislative and regulatory proposals relating to Internet user
privacy, security, taxation, pricing, quality of products and services and
intellectual property ownership. How existing laws will be applied to the
Internet in areas such as property ownership, copyright, trademark, trade
secret and defamation is uncertain. In addition, the recent growth of Internet
commerce has been attributed by some to the lack of sales and value-added taxes
on interstate sales of goods and services over the Internet. Numerous state and
local authorities have expressed a desire to impose such taxes on sales to
consumers and businesses in their jurisdictions. The Internet Tax Freedom Act
of 1998 prevents imposition of such taxes through October 2001. If the federal
moratorium on state and local taxes on Internet sales is not renewed, or if it
is terminated before its expiration, sales of goods and services over the
Internet could be subject to multiple overlapping tax schemes, which could
substantially hinder the growth of Internet-based commerce, including sales of
our service.
Risks Related to this Offering
In the future, we may need to raise additional capital to fund our operations.
Any difficulty in obtaining additional financial resources could force us to
curtail our operations or prevent us from pursuing our growth strategy.
We believe that our existing cash and cash equivalents will be sufficient to
meet our anticipated cash needs for working capital and capital expenditures
for at least the next twelve months. However, even with the proceeds of this
offering, we may need to raise additional capital in the future in order to
fund our planned expansion of operations, to pursue additional customer sales
and to pursue our growth strategy. Our future capital requirements will depend
on many factors that are difficult to predict, including our rate of revenue
growth, our operating losses, the cost of obtaining new customers, the cost of
upgrading and maintaining our infrastructure and other systems and the size,
timing and structure of any acquisition that we complete. As a result, we
cannot predict with certainty the timing or amount of our future capital needs.
We have no commitments for additional financing, and we may experience
difficulty in obtaining additional funding on favorable terms or at all. If
adequate funds are not available or not available on acceptable terms, we may
be unable to fund our expansion, promote our brand identity, take advantage of
unanticipated acquisition opportunities, develop or enhance services or respond
to competitive pressures. Any such inability could force us to curtail our
operations and would have a negative effect on our business.
Any future funding may dilute the ownership of our stockholders or impose
limitations on our operations. If we raise additional funding through the
issuance of equity, the percentage of our company owned by our then current
stockholders will be correspondingly reduced.
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<PAGE>
Our stock price may be volatile, and you may not be able to resell your shares
at or above the initial public offering price.
Prior to this offering, there has been no public market for our common stock.
The initial public offering price of our common stock will be determined
through negotiations between us and the representatives of the underwriters.
However, we cannot predict whether the market price of our common stock
following this offering will be below, at, or above the initial public offering
price. We also cannot be certain whether an active trading market in the common
stock will develop following this offering and how liquid that market will be.
As a result, if you decide to purchase our shares, you may not be able to
resell your shares at or above the initial public offering price. In addition,
in the past, we have issued performance-based warrants to print buyers and
print vendors in order to encourage their use of our service. Because these
warrants become exercisable based on usage by the holder, they encourage the
holder to use the noosh.com service. If the market price for our common stock
is volatile, our ability to issue warrants to print buyers and vendors may be
compromised and our ability to grow our business may be impaired.
The market price for our shares of common stock may be volatile. A number of
factors can contribute to volatility in our stock price, including:
. actual or anticipated variations in our quarterly operating results;
. changes in market valuations of other Internet or online business-to-
business e-commerce companies such as Ariba, Inc. or Commerce One, Inc.;
. the gain or loss of significant relationships with national printers such as
Consolidated Graphics, Inc., Moore North America, Inc., R.R. Donnelley &
Sons Company and Wallace Computer Services or major print buyers;
. announcements of technological innovations or significant contracts by us or
our primary competitors, Collabria, Inc., printCafe, Inc. and Impresse
Corporation;
. acquisitions, strategic partnerships, joint ventures or capital commitments;
. additions or departures of key personnel such as Ofer Ben-Shachar, David
Hannebrink, Lawrence Slotnick and Robert Shaw; and
. general conditions in the Internet commerce and printing industries.
In addition, the stock market in general has experienced extreme price and
volume fluctuations that have been unrelated to the operating performance of
particular companies. This is particularly characteristic of many companies in
the technology and emerging growth sectors. A prolonged decline in our stock
price could make it difficult to attract or retain employees. For example,
recent declines in the stock prices of many technology companies have resulted
in a substantial increase in employee attrition. Some companies have been
forced to grant additional stock options or reprice existing options to retain
employees. In addition, a prolonged decrease in our stock price could make it
more difficult to raise additional capital by accessing the public markets. Our
failure to raise additional capital through the public markets would have an
adverse affect on our liquidity and on the growth of our business unless we can
locate other sources of funding.
In the past, securities class action litigation has often been brought
against a company following periods of volatility in the market price of its
securities. We may in the future be the target of similar litigation.
Securities litigation could result in substantial costs and divert management's
attention. In addition, any litigation could harm our operating results or our
ability to attract and retain new employees.
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<PAGE>
Our existing stockholders will be able to exercise significant control over all
matters requiring stockholder approval.
On completion of this offering, our executive officers, directors and greater
than 5% stockholders, consisting of Accel Partners, Advanced Technology
Ventures, Meritech Capital and R.R. Donnelley and their affiliates, will
beneficially own, in the aggregate, approximately 64.3% of our outstanding
common stock. As a result, these stockholders, acting together, would be able
to exercise significant control over all matters requiring stockholder
approval, including the election of directors and approval of significant
corporate transactions, which may have the effect of delaying or preventing a
third party from acquiring control over us.
Provisions of our charter documents and Delaware law contain provisions that
may discourage a takeover, which could limit the price investors might be
willing to pay in the future for our common stock.
Provisions of our certificate of incorporation and our bylaws may have the
effect of delaying or preventing an acquisition, a merger in which we are not
the surviving company or changes in our management. These provisions:
. establish a classified board of directors so that not all members of the
board may be elected at one time;
. authorize the issuance of "blank check" preferred stock that could be
issued by our board of directors to increase the number of outstanding
shares and thwart a takeover attempt;
. limit who may call a special meeting of the stockholders;
. prohibit stockholder action by written consent, thereby requiring all
stockholder actions to be taken at a meeting of our stockholders; and
. establish advance notice requirements for nominations for election to
the board of directors or for proposing matters that can be acted upon
by stockholders at stockholder meetings.
In addition, because we reincorporated in Delaware, we are governed by the
provisions of Section 203 of the Delaware General Corporation Law. These
provisions may prohibit large stockholders, in particular those owning 15% or
more of the outstanding voting stock, from consummating a merger or combination
including us. These provisions could limit the price that investors might be
willing to pay in the future for our common stock.
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<PAGE>
Future sales of our common stock may depress our stock price.
Sales of our common stock into the market could cause the market price of
our common stock to drop significantly, even if our business is doing well.
After this offering, we will have outstanding 37,602,173 shares of common stock
assuming no exercise of the underwriters' over-allotment option. All the
4,000,000 shares sold in this offering will be freely tradable at the date of
this prospectus. The remaining 33,602,173 shares of our common stock that will
be outstanding after this offering will be eligible for sale as follows:
<TABLE>
<CAPTION>
Number of Shares Date eligible for sale
---------------- ----------------------
<S> <C>
20,106,997 180 days after the date of this prospectus, if sales
meet the restrictions under federal securities laws
13,495,176 Beginning in November 2000, if sales meet the
restrictions under federal securities laws
</TABLE>
The table above gives effect to lockup agreements with the underwriters or
agreements with us under which our directors, officers, employees and other
stockholders have agreed not to sell, transfer or otherwise dispose of their
shares of common stock for 180 days after the date of this prospectus. Although
there is no agreement or understanding for the underwriters to waive the lock-
up agreements, Goldman, Sachs & Co. may, in its sole discretion and at any time
without prior notice, release all or any portion of the common stock subject to
lock-up agreements.
Additionally, of the 4,392,538 shares that may be issued upon the exercise of
outstanding options as of April 4, 2000, approximately 2,416,264 shares will be
vested and eligible for sale 180 days after the date of this prospectus. As of
April 4, 2000, warrants for 1,573,308 shares of common stock and Class B common
stock were exercisable and warrants for an additional 2,785,250 shares of
common stock and Class B common stock may become exercisable in the future
based on the holders meeting stated volume targets for business conducted over
our service. If exercised, the earliest that these shares will be eligible for
sale under Rule 144 is December 2000. For a further description of the
eligibility of shares for sale into the public market following this offering,
see "Shares Eligible for Future Sale".
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<PAGE>
NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements under "Prospectus Summary", "Risk Factors",
"Management's Discussion and Analysis of Financial Condition and Results of
Operations", "Business" and elsewhere in this prospectus constitute forward-
looking statements. These statements involve known and unknown risks,
uncertainties and other factors that may cause our or our industry's actual
results, levels of activity, performance or achievements to be materially
different than any expressed or implied by these statements. In some cases, you
can identify statements by terminology such as "may", "will", "should",
"expects", "plans", "anticipates", "believes", "estimates", "predicts",
"potential", "continue" or the negative of these terms or other comparable
terminology.
Although we believe that the expectations reflected in the statements are
reasonable, we cannot guarantee future results, levels of activity, performance
or achievements. We are under no duty to update any of the statements after the
date of this prospectus to conform these statements to actual results or events
except to the extent required under law.
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<PAGE>
USE OF PROCEEDS AND PLAN OF OPERATION
We estimate that the net proceeds to us from the sale of the shares being
offered will be $43.4 million, at an assumed initial public offering price of
$12.00 per share, after deducting an assumed underwriting discount and
estimated offering expenses payable by us. If the underwriters exercise their
over-allotment option in full, then we estimate that the net proceeds to us
from the sale of the shares being offered will be $50.1 million.
We intend to use all of the proceeds for working capital and general
corporate purposes. However, we have not made a specific allocation of the
proceeds. The primary purposes of this offering are to fund our operations,
increase our visibility in the marketplace, create a public market for our
common stock and facilitate future access to public equity markets. We may also
use a portion of the net proceeds to acquire complementary technologies or
businesses. However, we currently have no commitments or agreements and are not
involved in any negotiations involving any of these transactions.
Through the remainder of fiscal 2000, we intend to commit significant
resources to sales and marketing and research and development activities. In
particular, we intend to increase our sales and marketing expenses to hire
additional sales and marketing personnel, to develop relationships with print
buyers, print vendors and providers of related services and to build brand
recognition. Similarly, we intend to increase our research and development
activities to hire additional personnel and enhance the features and
functionality or our noosh.com service for the print market as well as for
other print-related markets such as creative design process management and file
and data storage.
In addition to the proceeds from this offering, we may require additional
funds to support our growth. We may seek to obtain additional funds after this
offering through equity or debt financings. We cannot be certain that
additional financing will be available to us on favorable terms, if at all. If
adequate funds are not available to us on acceptable terms, our business will
be harmed. If we are unable to obtain additional funds, we estimate that our
current cash resources, interest income and the proceeds of this offering will
be sufficient to fund our operations for the next 18 months, depending on the
amount of sales and market and research and development activities actually
conducted. However, this estimate is based on assumptions regarding the growth
of our business and our expenses. If these assumptions prove to be wrong and if
we do not generate significant revenue from our business, we may need to raise
additional funds prior to that time.
Pending use of the net proceeds of this offering, we intend to invest the net
proceeds in interest-bearing, investment grade securities.
DIVIDEND POLICY
We have never declared or paid cash dividends on our capital stock. We do not
anticipate paying any cash dividends in the foreseeable future. We currently
intend to retain any future earnings to finance the expansion of our business.
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CAPITALIZATION
The following table sets forth our capitalization as of March 31, 2000 on an
actual, pro forma and pro forma as adjusted basis. The pro forma column
reflects the receipt of net proceeds of $10.0 million upon the issuance and
sale of 769,231 shares of Series E preferred stock to GE Capital Equity
Investments in April 2000 and the automatic conversion of all shares of
outstanding preferred stock, into 21,981,137 shares of common stock and Class B
common stock upon the closing of this offering, based on an assumed initial
public offering price of $12.00 per share. The pro forma as adjusted column
reflects our pro forma capitalization plus:
. our sale of 4,000,000 shares of common stock at an assumed initial public
offering price of $12.00 per share, after deducting an assumed underwriting
discount and estimated offering expenses payable by us; and
. 35,000 shares of common stock issuable upon exercise of a portion of an
outstanding warrant at an exercise price of $7.45 per share prior to this
offering. We have assumed that this portion of the warrant will be exercised
prior to the closing of this offering because the exercise price is less
than the assumed initial public offering price and this portion of the
warrant expires on the closing of the offering.
None of the columns reflect:
. 14,950,000 shares of common stock authorized for issuance under our employee
stock option plans, non-employee directors' stock option plan and our
employee stock purchase plan of which 4,392,538 shares were subject to
outstanding options as of April 4, 2000;
. warrants for 1,573,308 shares of common stock and Class B common stock that
were exercisable as of April 4, 2000 at a weighted average exercise price of
$11.31; and
. warrants for an additional 2,785,250 shares of common stock and Class B
common stock outstanding as of April 4, 2000 that may become exercisable in
the future based on the holders meeting stated volume targets for business
conducted over our service.
You should read the table below along with our balance sheet as of March 31,
2000 and the related notes.
<TABLE>
<CAPTION>
As of March 31, 2000
--------------------------------
Pro Forma
Actual Pro Forma As Adjusted
-------- --------- -----------
(in thousands, except share
data)
<S> <C> <C> <C>
Cash and cash equivalents...................... $ 48,917 $58,917 $102,618
======== ======== ========
Long-term debt................................. $ 79 $ 79 $ 79
-------- -------- --------
Stockholders' equity:
Preferred stock, par value $0.001; 16,035,000
shares authorized, actual; 15,200,000 shares
authorized pro forma; 5,000,000 shares
authorized, pro forma as adjusted; 14,614,631
shares issued and outstanding, actual; no
shares issued and outstanding, pro forma and
pro forma, as adjusted ...................... 14 -- --
Common stock, par value $0.001; 45,000,000
shares authorized, actual and pro forma;
75,000,000 shares authorized, pro forma as
adjusted; 11,586,036 shares outstanding,
actual; 33,562,215 shares outstanding pro
forma; 37,597,215 shares outstanding pro
forma as adjusted ........................... 11 32 36
Additional paid-in capital.................... 121,036 131,029 174,726
Deferred stock compensation................... (25,171) (25,171) (25,171)
Notes receivable from common stockholders..... (3,041) (3,041) (3,041)
Deficit accumulated during the development
stage........................................ (38,636) (38,636) (38,636)
-------- -------- --------
Total stockholders' equity ................... 54,213 64,213 107,914
-------- -------- --------
Total capitalization......................... $ 54,292 $ 64,292 $107,993
======== ======== ========
</TABLE>
22
<PAGE>
DILUTION
Our pro forma net tangible book value as of March 31, 2000 was $64.2
million, or $1.87 per share. Pro forma net tangible book value per share
represents the amount of our total tangible assets, reduced by the amount of
our total liabilities, divided by the total number of shares of common stock
outstanding after giving effect to the sale and issuance of 769,231 shares of
Series E preferred stock in April 2000 and the automatic conversion of all
shares of outstanding preferred stock into 21,981,137 shares of common stock
and Class B common stock upon the closing of this offering based on an assumed
initial public offering price of $12.00 per share. Dilution in net tangible
book value per share represents the difference between the amount paid per
share by purchasers of shares of common stock in this offering and the net
tangible book value per share of common stock immediately after the completion
of this offering. After giving effect to the sale of the 4,000,000 shares of
common stock offered by us at an assumed initial public offering price of
$12.00 per share, after deducting an assumed underwriting discount and
estimated offering expenses payable by us and after giving effect to the
issuance of 35,000 shares of common stock upon the exercise of a portion of a
warrant at an exercise price of $7.45 per share prior to this offering, our
pro forma net tangible book value at March 31, 2000 would have been $107.9
million or $2.81 per share of common stock. We have assumed that this portion
of the warrant will be exercised prior to this offering because the exercise
price is less than the assumed initial public offering price and this portion
of the warrant expires on the closing of the offering. This represents an
immediate increase in pro forma net tangible book value of $0.94 per share to
existing stockholders and an immediate dilution of $9.19 per share to new
investors purchasing shares at the assumed initial offering price. The
following table illustrates this dilution on a per share basis:
<TABLE>
<S> <C> <C>
Assumed initial public offering price per share............... $12.00
Pro forma net tangible book value per share at March 31,
2000....................................................... $1.87
Increase per share attributable to new investors............ 0.94
-----
Net tangible book value per share after the offering.......... 2.81
------
Dilution per share to new investors........................... $ 9.19
======
</TABLE>
The following table summarizes, as of March 31, 2000, after giving effect to
the Series E preferred stock issued and the issuance of 35,000 shares of
common stock upon the exercise of a portion of a warrant, the differences
between the existing stockholders and new investors in this offering with
respect to the number of shares of common stock and preferred stock purchased
from us, the total consideration paid to us and the average price per share
paid:
<TABLE>
<CAPTION>
Shares Purchased Total Consideration Average
------------------ -------------------- Price
Number Percent Amount Percent per Share
---------- ------- ------------ ------- ---------
<S> <C> <C> <C> <C> <C>
Existing stockholders......... 33,597,215 89% $ 92,801,000 66% $ 2.76
New investors................. 4,000,000 11 48,000,000 34 12.00
---------- --- ------------ ---
Totals...................... 37,597,215 100% 140,801,000 100%
========== === ============ ===
</TABLE>
The preceding tables assume no issuance of shares of common stock or Class B
common stock under warrants or our stock plans after March 31, 2000. As of
April 4, 2000, there were outstanding:
. 4,392,538 shares subject to outstanding options at a weighted average
exercise price of $2.06 per share;
. warrants for 1,573,308 shares of common stock and Class B common stock that
are exercisable at a weighted average exercise price of $11.31; and
23
<PAGE>
. warrants for an additional 2,785,250 shares of common stock and Class B
common stock that may become exercisable in the future based on the holders
meeting stated volume targets for business conducted over our service.
If all of these options were exercised, then the total dilution per share to
new investors would be $8.34.
24
<PAGE>
SELECTED FINANCIAL DATA
The following selected financial data should be read together with our
financial statements and related notes, and "Management's Discussion and
Analysis of Financial Condition and Results of Operations" included elsewhere
in this prospectus. The statements of operations data and the balance sheet
data presented below have been derived from financial statements that have been
audited by PricewaterhouseCoopers, independent accountants, included elsewhere
in this prospectus.
<TABLE>
<CAPTION>
Period from Period from
August 3, August 3,
1998 (date 1998 (date
of of Period from
inception) inception) Three Months Ended August 3, 1998
to Year Ended to March 31, (date of
December 31, December 31, December 31, ---------------------- inception) to
1998 1999 1999 1999 2000 March 31, 2000
------------ ------------ ------------ --------- ----------- --------------
(in thousands, except share and (unaudited)
per share data)
<S> <C> <C> <C> <C> <C> <C>
Revenue................. $ -- $ -- $ -- $ -- $ 68 $ 68
Cost of Revenue......... -- -- -- -- 141 141
--------- ----------- --------- --------- ----------- ---------
Gross Profit............ -- -- -- -- (73) (73)
Statements of Operations
Data:
Operating expenses:
Research and development
(exclusive of non-cash
compensation expense of
$771, $17 (unaudited)
and $718 (unaudited) in
the year ended
December 31, 1999 and
the three month periods
ended March 31, 1999
and 2000 respectively
reported below)........ 111 3,053 3,164 273 2,039 5,203
Sales and marketing
(exclusive non-cash
compensation expenses
of $984, $18
(unaudited) and $2,266
(unaudited) in the year
ended December 31, 1999
and the three month
periods ended March 31,
1999 and 2000
respectively and value
of warrants granted of
$1,468 and $3,914
unaudited in the year
ended December 31, 1999
and the three month
period ended March 31,
2000, respectively,
reported below)........ 96 9,412 9,508 300 9,979 19,487
Value of warrants
granted in connection
with marketing
agreements............. -- 1,468 1,468 -- 3,914 5,382
General and
administrative
(exclusive of non-cash
compensation expense of
$813, $1 (unaudited),
$1,289 (unaudited) in
the year ended December
31, 1999 and the
three month periods
ended March 31, 1999
and 2000, respectively
reported below)........ 107 1,795 1,902 128 1,197 3,099
Amortization of deferred
stock compensation..... -- 2,568 2,568 36 4,273 6,841
--------- ----------- --------- --------- ----------- ---------
Total operating
expenses............ 314 18,296 18,610 737 21,402 40,012
--------- ----------- --------- --------- ----------- ---------
Loss from Operations.... (314) (18,296) ( 18,610) (737) (21,475) (40,085)
Interest income, net.... -- 648 648 4 801 1,449
--------- ----------- --------- --------- ----------- ---------
Net loss................ $ (314) $ (17,648) $ (17,962) $ (733) $ 20,674 $ (38,636)
========= =========== ========= ========= =========== =========
Net loss per share,
basic and diluted...... $ (0.12) $ (4.13) $ (4.77) $ (0.22) $ (3.91) $ (7.76)
========= =========== ========= ========= =========== =========
Shares used in per share
calculation--basic and
diluted................ 2,521,485 4,275,090 3,763,399 3,405,069 5,292,410 4,978,794
========= =========== ========= ========= =========== =========
Pro forma net loss per
share--basic and
diluted................ $ (1.15) $ (0.79)
=========== ===========
Shares used in pro forma
net loss per share--
basic and diluted...... 15,356,918 26,025,280
=========== ===========
</TABLE>
25
<PAGE>
<TABLE>
<CAPTION>
As of
December 31, As of
-------------- March 31,
1998 1999 2000
------ ------- ---------
(in thousands)
<S> <C> <C> <C>
Balance Sheet Data:
Cash and cash equivalents.............................. $1,117 $48,349 $48,917
Working capital........................................ 902 47,238 49,076
Total assets........................................... 1,239 53,029 56,327
Long-term debt......................................... -- 79 79
Total liabilities...................................... 241 2,137 2,114
Total stockholders' equity............................. 998 50,892 54,213
</TABLE>
26
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following is a discussion of our operations and should be read together
with our financial statements and related notes included elsewhere in this
prospectus. This discussion contains forward-looking statements that involve
risks and uncertainties. Our actual results may differ materially from those
anticipated in these forward-looking statements as a result of factors
including, but not limited to, those set forth under "Risk Factors" and
elsewhere in this prospectus.
We were incorporated in August 1998, and we initiated testing of our service
with users, whom we refer to as beta users, in July 1999. On October 1, 1999,
we made our service commercially available to users other than our beta users.
From inception through December 31, 1999, we were a development stage company,
and we did not generate any revenue, and our operating activities were related
primarily to the design and development of our noosh.com service, building our
corporate infrastructure, establishing relationships with print buyers and
vendors and raising capital. During this period, we expanded our organization
by hiring personnel in key areas, particularly sales and marketing and research
and development. From inception through December 31, 1999, we accumulated net
losses of $18.0 million. Our net losses for the three-month period ended March
31, 2000 were $20.7 million.
We first recognized revenue in connection with the use of our noosh.com
service during the three-month period ended March 31, 2000. During this period,
approximately 487 print orders were issued by print buyers and accepted by
print vendors through our service. We recognized revenues of approximately
$68,000 during this quarter. The aggregate amount paid or payable by print
buyers to print vendors for these print orders was approximately $3.1 million,
with an average order size in excess of $6,300. Generally, we charge print
vendors a transaction fee based on the size of the print order and the
aggregate volume of orders processed by the particular user. We enter into
agreements with print vendors that typically have a term of one to two years.
These agreements do not require the print vendors to use our service. Some
large print vendors will receive discounts based on aggregate volume and other
services they provide. In addition, print buyers generally pay us a monthly fee
for using our service. However, our pricing strategy has only recently been
implemented and, as a result, the fees that we charge and the volume discounts
that we offer to print buyers and print vendors vary widely and may change in
the future. To date, we have charged print vendors transaction fees which
usually range from approximately 1% to 3% of the aggregate dollar volume of the
print order, and we have charged print buyers monthly fees which usually range
from several hundred to several thousand dollars per month. We determine the
amount of our fees based on the size and bargaining leverage of the user, the
aggregate monthly dollar volume of usage and the volume of print orders that we
expect to be processed through our noosh.com service in the future.
As we seek to expand our business, we intend to continue to commit
significant resources to sales and marketing and research and development
activities. We expect that we will incur losses and generate negative cash flow
from operations for the foreseeable future. Our ability to achieve
profitability depends upon our ability to increase our sales substantially. In
view of the rapidly changing nature of our business and our limited operating
history, we believe that period-to-period comparisons of our operating results,
including our operating expenses, may not be predictive of our future
performance.
In December 1999, we entered into agreements with two print vendors,
Consolidated Graphics and Wallace Computer Services, under which they will be
able to process print orders placed by their customers using our service. In
connection with these agreements, we issued a warrant to Wallace Computer
Services to purchase 270,000 shares of common stock and a warrant to
Consolidated Graphics to purchase 225,000 shares of common stock. A total of
140,000 shares subject to the Wallace warrant were immediately exercisable. Of
these 140,000 shares, the right to purchase 35,000 shares will terminate upon
the closing of this offering. An additional 35,000 shares subject to the
27
<PAGE>
Wallace warrant are exercisable on December 31, 2000, or earlier, if certain
targets for business conducted over our service are met, at an exercise price
of $7.45 per share. The value of these portions of the warrant, $1,468,000, was
charged to operations for the year ended December 31, 1999 because there were
no performance targets associated with their exercise. A total of 75,000 shares
subject to the Consolidated Graphics warrant were immediately exercisable at an
exercise price of $11.00 per share. The value of this portion of the warrant,
$373,000, was also charged to operations for the year ended December 31, 1999
because there were no performance targets associated with its exercise. The
remaining portions of these two warrants become exercisable only when these
print vendors meet stated volume targets for business conducted over our
service at exercise prices ranging from $7.45 per share to the fair market
value of our common stock on the date the volume targets are met. The remaining
shares under the warrants will be valued and a charge will be taken in a
similar manner when it becomes probable that the volume targets will be met.
In January 2000, we entered into an agreement with a print buyer, Bank of
America Technology and Operations, Inc., under which Bank of America will be
able to process its print orders using our service. In connection with that
agreement, we issued Bank of America a warrant to purchase 50,000 shares of
common stock. All of the shares are exercisable at an exercise price of $11.00
per share, but only if Bank of America meets a stated volume target for
business conducted over our service. A charge on these shares will be taken
using the Black-Scholes option pricing model, assuming a term of three years
and expected volatility of 60%. This charge will be taken when it becomes
probable that the volume target will be met.
In January 2000, we entered into an agreement with R.R. Donnelley to co-
market and make our noosh.com service available to R.R. Donnelley's customers.
In connection with the agreement, R.R. Donnelley purchased 1,272,727 shares of
series D preferred stock for a total of $14.0 million. In addition, we issued
two warrants to R.R. Donnelley to purchase an aggregate of 2,780,158 shares of
common stock at an exercise price of $11.00 per share. A total of 946,308
shares of common stock are issuable immediately upon the exercise of portions
of the warrants. The remaining portions of the warrants are exercisable when
R.R. Donnelley or, in the case of one of the warrants, a specific business unit
of R.R. Donnelley, meets volume targets for business conducted over our service
at an exercise price of $11.00 per share. Using the Black-Scholes option
pricing model and assuming a term of two years and expected volatility of 60%,
the fair value of the shares that are immediately exercisable under the
warrants approximated $3.9 million. Accordingly, we recorded a charge of $3.9
million for the quarter ending March 31, 2000 in connection with these
warrants. The remaining shares under the warrants will be valued and a charge
will be taken in a similar manner when it becomes probable that the volume
targets will be met. We have also granted R.R. Donnelley the right to require
us to register the sales of the shares of common stock issuable to them upon
conversion of the warrants.
In February 2000, we entered into agreements with a print vendor,
ColorGraphics, Inc., and a print buyer, J.Crew Group Inc., under which they
will be able to process their print orders using our service. In connection
with these agreements, we issued a warrant to ColorGraphics to purchase 100,000
shares of common stock and a warrant to J.Crew to purchase 10,000 shares of
common stock. The ColorGraphics warrant is exercisable on the date following
the first anniversary of the date of grant and only to the extent ColorGraphics
meets volume stated targets for business conducted over our service. The
exercise price of the ColorGraphics warrant ranges from the initial public
offering price to the fair market value of our common stock as of the end of
the calendar quarter during which the volume target is met. The J. Crew warrant
is exercisable on the date following the first anniversary of the date of grant
and only to the extent J. Crew meets a target for business conducted over our
service. The exercise price for the J. Crew warrant is equivalent to the
initial public offering price per share.
In April 2000, we entered into an agreement with a print buyer, General
Electric Capital Services, Inc., an affiliate of the General Electric Company,
under which GE, and any affiliate of GE,
28
<PAGE>
will be able to process their print orders using our service. In connection
with this agreement, GE Capital Equity Investments, Inc., another affiliate of
the General Electric Company, purchased 769,231 shares of Series E preferred
stock for a total of $10.0 million. The shares of Series E preferred stock held
by GE Capital Equity Investments will convert into Class B common stock upon
the closing of this offering. In addition, we issued GE Capital Equity
Investments a warrant to purchase up to 958,400 shares of capital stock. A
portion of the warrant, for a total of 432,000 shares of capital stock, is
immediately exercisable. The remaining portion of the warrant becomes
exercisable in increments when GE, together with its affiliates, meets stated
volume targets for business conducted over our service and recommends our
service to a stated percentage of identified print vendors and customers of GE
Capital's Card Services. Initially, the exercise price of the warrant is $13.00
per share. Upon the automatic conversion of our Series E preferred stock upon
the closing of this offering, the exercise price of the warrant will be
adjusted to the lesser of $13.00 per share or the conversion price of the
Series E preferred stock in effect immediately prior to such conversion.
Initially, the warrant is exercisable for Class B common stock. At the option
of GE Capital Equity Investments, on the date 90 days after this offering, a
portion of the warrant may be exercisable for common stock. In addition, on the
earlier of April 4, 2001 or the date 180 days after this offering, the
remainder of the warrant will become exercisable for common stock. Using a
Black-Scholes option pricing model and assuming a term of four years, an
initial public offering price of $12.00 per share and expected volatility of
60%, the fair value of the shares that are immediately exercisable under the
warrant approximated $5.7 million. Accordingly, we will record a charge of
$5.7 million for the quarter ending June 30, 2000 in connection with this
portion of the warrant. The remaining shares under the warrant will be valued
and a charge will be taken in a similar manner when its becomes probable that
the targets applicable to the shares will be met. GE Capital Equity Investments
also has the right to require us to register the sales of the common stock
issuable upon conversion of the warrant.
We expect to incur substantial non-cash charges associated with the grant of
these performance-based warrants. These warrants are exercisable in increments
ranging from 5,000 shares of our common stock to 900,000 shares of our common
stock when the holders meet stated volume targets for business conducted
through our service. These volume targets range from $5 million in print orders
to $1.5 billion in print orders. However, our user agreements with Consolidated
Graphics, Wallace Computer Services, Bank of America, R. R. Donnelley,
ColorGraphics, J. Crew and General Electric Capital Services do not obligate
these users to use our noosh.com service. Further, because we have only limited
revenue to date, we can not determine whether these users will be able to meet
the volume targets stated in their warrant agreements.
We may grant performance-based warrants in the future to provide an incentive
for our users to increase their use of our noosh.com service. These warrants
would become exercisable when the holders meet pre-determined targets for
business conducted through our service. To the extent we issue these warrants
at an exercise price that does not correspond to the market value of our common
stock on the date the warrants are exercised, we may incur substantial non-cash
charges which would reduce our operating results or increase our losses, on an
aggregate and per share basis, in the year we record the charge. In addition,
to the extent these warrants are exercised, investors would suffer additional
dilution in their ownership interest and in the book value of their investment.
Options granted to our employees from our inception through March 31, 2000
have been granted at exercise prices which, based on the assumed initial public
offering price of $12.00 per share, we determined are below the deemed fair
market value for financial reporting purposes. Since inception through March
31, 2000, we had recorded aggregate deferred stock compensation for these
options of $32.0 million. The deferred stock compensation is being amortized
over the vesting periods of the stock options. We recognized no deferred stock
compensation expense during the period ended December 31, 1998, $2.6 million
for the year ending December 31, 1999 and $4.3
29
<PAGE>
million for the three month period ended March 31, 2000. Future amortization
based on options granted through March 31, 2000 is anticipated to be
approximately:
<TABLE>
<CAPTION>
Nine Months Ending December 31, Amount(s)
------------------------------- -----------
<S> <C>
2000......................................................... $12,934,000
<CAPTION>
Year Ended December 31,
-----------------------
<S> <C>
2001......................................................... 7,696,000
2002......................................................... 3,553,000
2003......................................................... 980,000
2004......................................................... 8,000
</TABLE>
Results of Operations
Three-Month Period Ended March 31, 1999 and March 31, 2000
Revenue
From inception through the period ended December 31, 1999 we were a
development stage company, and we did not have any revenue. For the three-month
period ended March 31, 2000, we recognized revenue of approximately $68,000.
This revenue was derived from transaction fees for the use of our noosh.com
service. We typically charge print vendors a transaction fee based on the size
of the print order and the aggregate volume of orders processed by the print
vendor. We also typically charge print buyers monthly service fees. Revenue
from transaction fees is recognized upon completion of the associated print
project. Revenue from monthly service fees is recognized ratably over the
month.
Cost of Revenues
Cost of revenues consists primarily of all direct and indirect labor expenses
related to the customer support organization. Cost of revenues increased from
$0 for the three-month period ended March 31, 1999 to $141,000 for the three-
month period ended March 31, 2000. This increase primarily resulted from the
addition of customer support personnel and the development of our customer
support call center.
Operating Expenses
We categorize our operating expenses into research and development, sales and
marketing, general and administrative, value of warrants granted in connection
with marketing agreements and amortization of deferred stock compensation.
Research and Development. Research and development expenses consist of
personnel and other expenses associated with developing and enhancing software
in support of our noosh.com service. Research and development expenses
increased from $273,000 for the three-month period ended March 31, 1999 to
$2,039 million for the three-month period ended March 31, 2000. The increase
was primarily due to additional personnel and associated costs related to the
design, development and maintenance of our noosh.com service, and content and
design expenses. We believe that our success is dependent in large part on
continued enhancement of our noosh.com service. Accordingly, we expect research
and development expenses to increase in future periods.
Sales and Marketing. Sales and marketing expenses consist primarily of
participation in trade shows, advertisements, training, operations personnel
and related costs for our sales, marketing, training and operations staff.
Sales and marketing expenses increased from $300,000 for the three-month period
ended March 31, 1999 to $10.0 million for the three-month period ended March
31, 2000. This increase primarily resulted from expenses related to increases
in sales and marketing personnel and participation in industry trade shows. We
intend to increase our sales and marketing expenses in future periods to
develop relationships with print buyers, print vendors and providers of related
services and to build brand recognition.
30
<PAGE>
General and Administrative. General and administrative expenses consist
primarily of salaries to employees and fees for professional services. General
and administrative expenses increased from $128,000 for the three-month period
ended March 31, 2000 to $1.2 million for the three-month period ended March 31,
2000. The increase was primarily due to the addition of finance and
administrative personnel as well as expenses related to increased professional
service fees. We expect general and administrative expenses to increase in
future periods to the extent we continue to expand operations and bear the
increased expenses associated with being a public company.
Value of Warrants Granted in Connection with Marketing Agreements. For the
three-month period ended March 31, 2000, we recognized costs totaling $3.9
million related to the valuation of the portions of warrants exercisable
without performance obligations to R.R. Donnelley.
Amortization of Deferred Stock Compensation. For the three-month period
ended March 31, 2000, we recorded aggregate deferred stock compensation of
$14.1 million in connection with some of the stock options we have granted. We
expensed $4.3 million of deferred stock compensation in the three-month period
ended March 31, 2000. The deferred compensation amounts are being amortized
over the vesting period of the stock options, generally four years. We
recognized deferred stock compensation expense of $36,000 during the three-
month period ended March 31, 1999.
Interest Income, Net
Interest income, net has been derived primarily from earnings on cash
investments. Interest income, net increased to $801,000 for the three-month
period ended March 31, 2000 from $4,000 for the three-month period ended March
31, 1999. The increase was primarily due to higher average cash balances during
the three-month period ended March 31, 2000. We expect our interest income to
increase in the short term as a result of our investing the proceeds from our
sale of Series E preferred stock and this offering.
Period Ended December 31, 1998 and Year Ended December 31, 1999
Revenue
From inception through the period ended December 31, 1999, we were a
development stage company and had no revenue.
Operating Expenses
Research and Development. Research and development expenses increased from
$111,000 for the period ended December 31, 1998 to $3.1 million for the year
ended December 31, 1999. These expenses in 1998 were comprised primarily of
salaries for an initial development team. In 1999, these expenses consisted
principally of staffing and associated costs related to the design and
development and maintenance of our noosh.com service, and content and design
expenses.
Sales and Marketing. Sales and marketing expenses increased from $96,000 for
the period ended December 31, 1998 to $9.4 million for the year ended December
31, 1999. These increases primarily resulted from expenses related to increases
in sales and marketing personnel and an increase in expenses associated with
the development and implementation of our branding, promotion and marketing
campaigns, for a full fiscal year.
General and Administrative. General and administrative expenses increased
from $107,000 for the period ended December 31, 1998 to $1.8 million for the
year ended December 31, 1999 primarily as a result of operations for the full
fiscal year and the addition of finance and administrative personnel as well as
expenses related to increased professional service fees.
Value of Warrants Granted in Connection with Marketing Agreements. For the
year ended December 31, 1999, we recognized costs totaling $1,468,000 related
to the valuation of the portions of warrants exercisable without performance
obligations to two print vendors.
31
<PAGE>
Amortization of Deferred Stock Compensation. We recorded aggregate deferred
stock compensation of $17.9 million in connection with some of the stock
options we granted through December 31, 1999. We expensed $2.6 million of this
deferred stock compensation in the year ended December 31, 1999, related to
these stock options. The deferred compensation amounts are being amortized over
the vesting period of the stock options, generally four years.
Interest Income, Net
We had no interest income, net for the period ended December 31, 1998 and
$648,000 for the year ended December 31, 1999, which resulted from higher
average cash balances for a full fiscal year.
Income Taxes
We incurred operating losses and accordingly did not record a provision for
income taxes for any of the periods presented. On December 31, 1999, for
federal and state income tax purposes, we had net operating loss carryforwards
of $13.1 million and $150,000. These net operating losses will expire in the
years 2005 through 2019 if not utilized. Future changes in our share ownership,
as defined in the Tax Reform Act of 1986 and similar state provisions, may
restrict the utilization of carryforwards.
Liquidity and Capital Resources
Since our inception in August 1998 through March 31, 2000, we have funded our
operations primarily through the sale of $79.6 million of equity securities. As
of March 31, 2000, our principal sources of liquidity were cash and cash
equivalents of $48.9 million. In addition, in April 2000, we raised an
additional $10.0 million from the sale of our equity securities.
Net cash used in operating activities was $123,000 for the period ended
December 31, 1998, $12.0 million for the year ended December 31, 1999 and $13.0
million for the three-month period ended March 31, 2000. Net cash used in
operating activities for the period ended December 31, 1998 primarily resulted
from operating losses of $314,000 incurred during the period. Net cash used in
operating activities for the year ended December 31, 1999 primarily resulted
from operating losses of $17.6 million, partially offset by $4.0 million of
amortization of deferred stock compensation and the value of warrants granted
in connection with marketing agreements. Net cash used in operating activities
for the three-month period ended March 31, 2000 primarily resulted from
operating losses of $20.7 million, partially offset by $8.2 million of
amortization of deferred stock compensation and the value of warrants granted
in connection with marketing agreements.
Net cash used in investing activities was $72,000 for the period ended
December 31, 1998, $3.7 million for the year ended December 31, 1999, and $1.7
million for the three-month period ended March 31, 2000. The cash used in
investing activities in these periods was related principally to purchases of
computer equipment and, to a lesser extent, software and office furniture to
support expansion of our operations.
Net cash provided by financing activities was $1.3 million for the period
ended December 31, 1998, $62.9 million for the year ended December 31, 1999 and
$15.6 million for the three-month period ended March 31, 2000. Cash provided by
financing activities was primarily from proceeds of the sale of our preferred
stock.
As of March 31, 2000, we had operating lease obligations of $2.3 million for
2000, $1.5 million for 2001 and $1.0 million for 2002.
In future periods, we anticipate significant increases in operating expenses
primarily as a result of planned investment to support increased sales and
marketing activities and ongoing research and development activities. We
believe that our current balances of cash and cash equivalents, without the
proceeds of this offering, will be sufficient to meet our anticipated cash
needs for working capital, operating expenses and capital expenditures for at
least the next twelve months. We expect to use the
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proceeds of this offering primarily to fund the development of our noosh.com
service, including development of new versions of our service, enhanced
functionality, and improvements of our LiveJobs technology. In addition, we may
use a portion of the proceeds to increase our sales and marketing activities.
Any remaining proceeds may be used for general and administrative purposes,
including facilities expansion. In that regard, we are currently looking for
additional facilities when the lease on our corporate headquarters expires in
December 2000. We believe our current cash resources, interest income and the
proceeds of this offering will be sufficient to fund our activities for 18
months, even if we do not generate revenue from operations. After that, we may
need additional capital if we are unable to generate sufficient revenue to
support our business. This estimate is based on assumptions regarding the
expected growth of our business, our anticipated hiring and facilities needs
and our expectations as to further product development expenses. If these
assumptions prove to be wrong, we may need to raise additional funds prior to
that time to fund additional expansion, develop new or enhanced services,
respond to competitive pressures or make acquisitions. Moreover, if we generate
significant revenue from our operations, the proceeds of this offering may not
be fully utilized within 18 months. Although we have no current plans to do so,
we may seek to raise additional funds after this offering through equity or
debt financings if we need additional capital after we have utilized the
proceeds of this offering. We cannot be certain that additional financing will
be available to us on favorable terms, if at all. If adequate funds are not
available on acceptable terms, our business will be harmed. If additional funds
were raised through the issuance of equity securities, the percentage ownership
of Noosh by our stockholders would be reduced. Furthermore, such equity
securities might have rights, preferences or privileges senior to our common
stock. See "Risk Factors--In the future, we may need to raise additional
capital to fund our operations. Any difficulty in obtaining additional
financial resources could force us to curtail our operations or prevent us from
pursuing our growth strategy."
Year 2000 Readiness Disclosure
Many currently installed computer systems and software products are coded to
accept or recognize only two digit entries in the date code field. These
systems and software products will need to accept four digit entries to
distinguish dates before and after January 1, 2000. This could result in system
failures or miscalculations causing disruption of operations for any company
using computer programs or hardware. As a result, many companies' computer
systems may need to be upgraded or replaced in order to avoid year 2000 issues.
The majority of software and hardware we use to manage our business has been
purchased or developed by us within the last 24 months. While this does not
completely protect us against year 2000 exposure, we believe our exposure is
limited because the technology we use to manage our business is not based upon
hardware and software systems that were already developed or installed.
To date, we have not experienced any material interruptions in our operations
related to the year 2000 issue. We have not incurred material costs with
respect to our year 2000 remediation efforts and do not expect that future
costs will be material. However, if we, or third-party providers of hardware,
software and communications services fail to remedy any future year 2000
issues, the result could be lost revenues, increased operating expenses, the
loss of users and other business interruptions, any of which could harm our
business. The failure to adequately address year 2000 compliance issues in the
delivery of products and services to our users could result in claims against
us of misrepresentation or breach of contract and related litigation, any of
which could be costly and time consuming to defend.
We have not developed and do not plan to develop any specific contingency
plans for year 2000 issues. Our worst case scenario for year 2000 problems
would be our inability to operate our noosh.com service.
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Quantitative and Qualitative Disclosures About Market Risk
The primary objective of our investment activities is to preserve principal
while at the same time maximizing the income we receive from our investments
without significantly increasing risk of loss. Most of our cash equivalents and
short-term investments are at fixed interest rates. Therefore, the value of
these investments is subject to market risk. This means that a change in
prevailing interest rates causes the market value of the investment to
fluctuate. For example, if we hold a security that was issued with a fixed
interest rate at the then-prevailing rate and the prevailing interest rate
later rises, the market value of our investment will decline. To minimize this
risk in the future, we intend to maintain our portfolio of cash equivalents and
short-term investments in a variety of securities, including commercial paper,
money market funds, government and non-government debt securities. In general,
money market funds are not subject to market risk because the interest paid on
such funds fluctuates with the prevailing interest rate. The average duration
of all of our investments as of December 31, 1999 and March 31, 2000 was less
than one year. Due to the short term nature of these investments, we believe we
have no material exposure to interest rate arising from our investments.
Therefore, no tabular disclosure is required. As of March 31, 2000, we did not
have any hedging instruments.
We operate solely in the United States and all expenses to date have been
made in United States dollars. Accordingly, we have not had any exposure to
foreign currency rate fluctuations or weak economic conditions in foreign
markets. However, in future periods, we expect to sell in foreign markets,
including Europe and Asia. As our sales are made in U.S. dollars, a
strengthening of the U.S. dollar could cause our service to be less attractive
in foreign markets.
Recent Accounting Pronouncements
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133
"Accounting for Derivative Instruments and Hedging Activities". SFAS No. 133
establishes accounting and reporting standards, requiring that every derivative
instrument be recorded in the balance sheet as either an asset or liability
measured at its fair value. SFAS No. 133 is effective for fiscal years
beginning after June 30, 2000. Because we do not currently hold any derivative
instruments and do not engage in hedging activities, we do not believe that the
adoption of SFAS No. 133 will have a material impact on our financial position
or results of operations.
In March 1998, the American Institute of Certified Public Accountants issued
Statement of Position ("SOP') No. 98-1, "Software for Internal Use" which
provides guidance on accounting for the cost of computer software developed or
obtained for internal use. SOP No. 98-1 is effective for financial statements
for fiscal years beginning after December 15, 1998. The adoption of this SOP
did not have any significant effect on our financial statements.
In December, 1999, SAB 101 was issued which summarizes the Security and
Exchange Commission's views in applying generally accepted accounting
principles to revenue recognition in financial statements. SAB 101 is effective
in the second quarter of 2000. We do not expect SAB 101 to have a material
effect on our financial position, results of operation or cash flow.
In March 2000, the Financial Accounting Standards Board issued Interpretation
No. 44, "Accounting for Certain Transaction Involving Stock Compensation - an
interpretation of APB Opinion No. 25" ("FIN 44"). This interpretation clarifies
the definition of employee for purposes of applying Accounting Practice Board
Opinion No. 25, "Accounting for Stock Issued to Employees" ("APB 25"), the
criteria for determining whether a plan qualifies as a noncompensatory plan,
the accounting consequence of various modifications to the terms of a
previously fixed stock option or award, and the accounting for an exchange of
stock compensation awards in a business combination. This interpretation is
effective July 1, 2000, but certain conclusions in this interpretation cover
specific events that occur after either December 15, 1998, or January 12, 2000.
We do not expect the adoption of FIN 44 to have a material effect on our
financial statements.
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BUSINESS
Overview
We are a provider of business-to-business e-commerce solutions for the
printing industry. We have developed and operate noosh.com, an Internet-based
service for managing the design, procurement and production of print orders.
Our service is designed to address the complex, multi-step process of
completing a print order. It leverages the benefits of the Internet to enable
print buyers, print vendors and other providers of related services to
communicate and collaborate efficiently throughout the life cycle of a print
order. Our service is primarily targeted at large corporations which budget at
least $10 million annually for their print buying requirements and their print
vendors. Print vendors who use our service generally will pay us a transaction
fee based on the size and volume of the print order, and print buyers who use
our service generally will pay us a monthly fee. As of May 11, 2000, over 243
print buyers and print vendors have signed agreements with us for the use of
our service. Of these, Bank of America and Wells Fargo have encouraged their
print vendors to adopt our noosh.com service, and GE has agreed to encourage
its print vendors, the print vendors of its affiliates and the major retail
customers of G.E. Capital's Card Services to adopt noosh.com. In addition, to
promote the acceptance of our service by large corporations, we have entered
into co-marketing agreements with national vendors in the print industry. To
date, these vendors include Consolidated Graphics, R.R. Donnelley, Moore and
Wallace Computer Services.
Industry Background
Growth of Business-to-Business Commerce on the Internet
The Internet has emerged as one of the fastest growing communications mediums
in history and is fundamentally reshaping the way businesses interact with
other businesses. The Internet enables businesses to integrate complex business
processes, exchange information easily with multiple partners and provide
buyers and sellers with a consistent means of executing transactions. As a
result, companies of all sizes are adopting Internet strategies to conduct
business. According to Forrester Research, business-to-business e-commerce is
expected to grow from $43 billion in 1998 to $1.3 trillion in 2003.
The widespread adoption of business-to-business e-commerce is driving the
demand for industry-specific solutions that offer business environments that
can accommodate increasingly large numbers of users. These e-commerce solutions
provide businesses with opportunities to reduce the costs of accessing
information and to expand their ability to conduct transactions with multiple
parties. Business-to- business e-commerce solutions are being targeted at and
are most likely to be accepted by industries characterized by a large number of
buyers, sellers and intermediaries, a high degree of fragmentation, significant
dependence on information exchange, high transaction volumes and broad user
adoption of the Internet.
The U.S. Printing Industry
The U.S. printing industry is very large, with numerous print buyers, print
vendors and other providers of related services, interacting with one another
in the process of managing the design, procurement and production of printed
business materials. Total sales in the U.S. printing industry were $149 billion
in 1998, according to Printing Industries of America, an industry trade
association. Total worldwide sales in the printing industry were $365 billion
in 1998 according to TrendWatch, an independent market research firm. The
printing industry includes the following product categories:
. Basic business printing, which includes simple, standardized products such
as business cards, stationery and business forms;
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. Promotional printing, which consists of customized products such as
brochures, direct mail and catalogs;
. Bill-of-material printing, which consists of customized packaging, labels
and other shipping materials;
. Publications, which includes newspapers, magazines and books; and
. Specialty printing, such as T-shirts, calendars and souvenirs.
The traditional process of designing, procuring and producing a print order
can require extensive collaboration by multiple parties and can be highly
inefficient. CAP Ventures, Inc., an independent print research firm, estimates
that for every $1 paid by a print buyer to a print vendor, there are $5 to $8
of additional costs associated predominantly with late fees, reworks, obsolete
materials and shipping. These expenses result from the traditional labor-
intensive process of managing a print order, as well as delays from and
miscommunications among the many people from multiple organizations who must
collaborate through the various steps required to complete a print order. Key
processes that require the coordination of multiple parties include job design
and specification, submitting requests for estimates, vendor selection, job
revision, production, warehousing, shipment and payment.
The U.S. printing industry is highly fragmented, with an estimated 51,000
printing businesses, 60,000 related creative concerns such as advertising
agencies, graphic design firms, publishers and corporate design groups, 12,000
print brokers and thousands of print-buying organizations. Contributing to this
fragmentation is the capital-intensive nature of print production, which causes
print vendors to specialize in specific print products based on the type of
equipment they own. Therefore, print vendors generally offer a limited
selection of customizable products.
This high degree of industry fragmentation and specialization generally leads
print buyers, particularly large enterprises with a broad range of printing
needs, to establish relationships with multiple print vendors. According to CAP
Ventures, a large print buying company spends between 6% and 15% of its annual
revenues to design, develop, procure, produce, distribute and store printed and
electronic documents and business communications programs. Each individual
print order typically involves the collaboration of multiple parties across
such varied organizations as the print buyer, print vendor, advertising agency,
independent designer, prepress specialist, bindery specialist, direct mailer
and print broker. Further, most large print buyers lack standardized
procurement, print management and tracking tools, hindering the development of
their spending and operating controls. According to CAP Ventures, over 80% of
print buyers manage the print process inefficiently, resulting in up to a 40%
waste of investment in annual print spending.
Limitations of Existing Print Management Processes
The typical process of producing a customized print product involves multiple
interactions among many people within numerous organizations, or a "many-to-
many" workflow process. For example, a large print buyer may engage advertising
and creative agencies to design, specify and buy print on its behalf.
Alternatively, print buyers may coordinate these processes in-house or rely on
a print broker to act as a sales middleman or project manager. Once a print
order is completed, direct mail and fulfillment companies often coordinate the
receipt, packaging and mailing of print products from several printers
simultaneously. As a result of this complicated production chain, we believe
that a print order which costs several thousand to several hundred thousand
dollars may require the collaboration of 10 to 30 people across three to seven
organizations.
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Lacking a centralized system for coordinating these many-to-many workflow
processes, the production of customized print products traditionally has been
characterized by significant inefficiencies, including:
Print Buyer
. Numerous communications across multiple mediums, including telephone,
facsimile, email, voicemail and paper;
. Cumbersome, error-prone procurement cycle;
. Labor-intensive print vendor selection process;
. Inconsistent pricing from numerous print vendors;
. Difficulty managing, coordinating and accounting for numerous print orders
across multiple organizations and from numerous print vendors;
. Unreliable storage and delivery of content files; and
. Obsolete inventory, accounting for a significant percentage of annual print
spending.
Print Vendor
. High customer acquisition and retention costs;
. Costly sales order administration and customer service;
. Difficulty managing, coordinating and accounting for numerous print orders
across multiple organizations;
. Manual reconciliation of internal job specifications, changes, file and
production instructions;
. Rework resulting from poorly documented specifications and other errors; and
. Inefficient equipment utilization.
In addition, agencies and brokers who serve as intermediaries between print
buyers, print vendors and other providers of related services face many of
these same inefficiencies.
The most common method today for coordinating the procurement and management
of customized print orders remains a combination of telephone, facsimile and
paper. Using these "one-to-one" communication tools, print buyers and vendors
manually conduct the multiple steps required to manage the print order,
including project design, proofing, rework and delivery. More recently, some
print buyers and vendors have adopted software solutions designed to automate
different elements of the design, procurement and production processes. While
these proprietary software solutions improve on some of the inefficiencies of
traditional paper and phone-based methods, they too are largely inadequate
because they are based on one-to-one processes, while corporate print orders
generally require many-to-many communications. More specifically, one-to-one
methods are inadequate because:
. the production of a customized print product requires extensive interaction
and collaboration across many organizations and among numerous parties;
. the creative process of producing a customized print product is dynamic and
highly iterative, requiring all parties to have input throughout the
process; and
. full automation of any single print buyer/print vendor solution can require
a substantial investment in proprietary software and system integration that
often cannot be leveraged across multiple print buyer/print vendor
relationships.
Collectively, these shortcomings make one-to-one solutions difficult to scale
and thus limit their widespread adoption by the printing industry. We believe
that print buyers, print vendors and the numerous providers of related services
involved in the production of a print order desire a standardized,
collaborative environment where they can easily manage the entire print order
life
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cycle. We believe that these needs can be addressed with a comprehensive,
Internet-based communication and collaboration service for the management of
the design, procurement and production of print.
The Noosh.com Service
We have developed and operate noosh.com, an Internet-based service for
managing the design, procurement and production of print orders. Our noosh.com
service is designed specifically to address the complex needs of the printing
industry and offers a set of features that are not generally available from
off-the-shelf software solutions. Key elements of our service include:
. providing a central location where all current information about a print
order is readily accessible through an Internet browser;
. enabling collaboration among all parties involved at each step of the print
order life cycle in an Internet environment in which additional parties can
be added rapidly and cost-effectively; and
. enabling parties to build project specific working groups consisting of
participants from multiple organizations.
We believe that the principal benefits to print buyers, print brokers and
advertising agencies using our noosh.com service are:
Increased Productivity. We provide online, real-time access to information
regarding the status of a print order. This capability reduces the time it
takes print buyers to determine the progress of their print job and to identify
the status of proposed changes. This capability can also substantially reduces
the manual communication methods involved in the traditional process of
producing a print order, enabling more efficient job management. As a result,
our service can be particularly helpful to users who manage multiple jobs from
several print vendors simultaneously.
Reduced Print Purchasing Costs. Our service can reduce print purchasing costs
by allowing print buyers to analyze purchasing trends and conduct a broader
request for quotes process. As a result, print buyers can reduce procurement
costs and benefit from better vendor management.
Shortened Job Lead Times. Noosh.com enables print buyers to design, procure
and produce print orders more efficiently by providing a centralized location
where the multiple parties involved in the print supply chain can collaborate
with each other in real time regarding the print order. This collaboration
capability can reduce miscommunications among the parties, which in turn
results in fewer errors and shorter job lead times.
Better Tracking and Communication. Our service maintains a detailed history
of changes to job specifications and tracks print budgets and usage. Our
service also allows users to send messages and assign tasks to one another
within a standard communication environment.
We believe that our service also offers significant benefits to print
vendors, related suppliers, print brokers and advertising agencies, including:
Enhanced Customer Relationships. By allowing print vendors to manage print
orders through our collaboration and messaging capabilities, noosh.com can
simplify the daily routine of the vendor's customer service personnel, thereby
allowing for improved responsiveness and higher quality customer service
relative to traditional methods of managing print.
Reduced Print Production Costs. Our service centralizes information regarding
a print project. This helps users to reduce paperwork and improve accuracy by
identifying job problems early in the print job life cycle that, if left
unattended, could result in costly reworks, document distributions and higher
administrative costs.
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Higher Sales Productivity. Because our service streamlines the procurement
process, print vendors are able to reduce their selling and marketing costs
while extending their reach. Print vendors, therefore, have the opportunity to
access new customers and markets through our service. In addition, because
noosh.com simplifies the process for managing print orders, printers can
allocate sales and marketing resources to developing new client relationships.
Minimal Initial Investment. Because noosh.com is an entirely Internet-based
service and, other than a browser, does not require the purchase of any
software, print buyers and print vendors are able to establish an Internet
presence easily and quickly with little or no initial investment.
Our Strategy
To grow our business and customer base and increase usage of our service, we
intend to:
Capitalize on Market Position. We believe that we are one of the first
companies to offer a completely Internet-based service for managing the design,
procurement and production of print orders. As of May 11, 2000 over 243 print
buyers and print vendors have signed agreements with us to use our service. To
increase the number of print buyers, print vendors and other related parties
using our service, we intend to build on the existing print relationships of
our current users with other companies in the print supply chain. Our direct
sales force, comprised of 70 professionals as of March 31, 2000, targets
primarily large print buyers and print vendors.
Build Brand Recognition. We intend to develop the most well-known and trusted
brand as the leading Internet-based service for managing the design,
procurement and production of print orders. We intend to pursue an aggressive
brand development strategy through targeted advertising and promotions, press
coverage and participation in trade association and industry events.
Additionally, we will also rely on our co-marketing relationships with national
print vendors in order to build our brand recognition.
Develop Relationships with National Printers. We intend to develop
relationships to increase our customer base, broaden our service offerings and
enhance our technology platform. Specifically, we are seeking co-marketing
relationships with national printers. We have already entered into these types
of agreements with Consolidated Graphics, R.R. Donnelley, Moore and Wallace
Computer Services under which they have agreed to co-market our service to
their customers. By aggressively pursuing these types of relationships, we
believe we can help strengthen our value proposition for both print buyers and
vendors and generate increased usage of our noosh.com service.
Maintain Technology Leadership. We intend to maintain our technology
leadership by continuously improving the functionality of our services to meet
the evolving needs of our current users and our future customers. For example,
we intend to develop business relationships with enterprise resource planning
and business-to-business e-commerce software vendors by using our technology to
integrate our noosh.com service with the enterprise resource planning or
management software systems of these vendors. This capability would enable our
current users and our future customers to use both our noosh.com service and
the products and services of these vendors to conduct e-commerce. Additionally,
we plan on developing links with the information systems of print vendors and
graphic file transfer and management services to improve production workflow,
reduce data entry at the print vendors' sites and provide complementary
services for print vendors.
Foster Our Commitment to Customer Service. We focus on serving the interests
of our users because we believe a loyal base of users will afford us a
significant competitive advantage. Throughout each phase of the design and
implementation of our service, we maintain an active
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dialogue with our users. At every stage of our design process, we seek user
feedback to develop new versions of and add enhancements to our system to
better serve the needs of our users. We also intend to enhance our customer
service capabilities by expanding our customer support and account management
teams and improving our online training tools.
Pursue Additional Revenue Opportunities. We intend to pursue additional
revenue opportunities by expanding our business and using our LiveJobs
technology in other print-related markets, such as creative design process
management and file and data storage. We also plan to expand internationally
into other markets that we believe would benefit from our service. Further, we
see applications for our technology in other non print-related markets.
Additionally, we intend to pursue selective acquisitions of, or investments in,
complementary products, services and businesses.
Products and Services
We provide a comprehensive, business-to-business, Internet-based service for
managing the design, procurement and production of print orders. Our service
uses our patent-pending LiveJobs technology to enable print buyers, print
vendors and other providers of related services involved in the print
production and management process to communicate and collaborate with each
other regarding any print order. Each user with a noosh.com password can access
the noosh.com web site with a standard Internet browser. Using their password-
protected account, each user can have access to the print jobs they are working
on, to lists of their customer and business contacts and to reports of
historical performance.
Print buyers can easily create job specifications, submit the specifications
to print vendors for bids, award the print order to the chosen print vendor,
post the resulting print order online and collaborate with necessary parties
throughout the design, procurement and production stages of the print order.
Print vendors have access to the print buyer's specifications after they have
been asked to quote on a print order through noosh.com. Print vendors may
submit quotes and subsequently manage print orders through our collaboration
and messaging capabilities. As the print order progresses, print buyers and
print vendors may notify each other of status changes, pose specification
questions, revise schedules, and collaborate on other aspects of the print
order in real time so that problems are resolved expeditiously.
Our service can be accessed through standard web browsers by corporations,
their print vendors and other participants in the print supply chain, such as
graphic design, advertising and marketing agencies. Other than the browser,
there is no special software required to use noosh.com.
With our service, we create a standardized environment which addresses the
printing industry's communications and procurement needs by:
. providing a central location where all current information about a print
order, including specifications, job status, estimates, change orders and
shipping instructions, is located;
. enabling collaboration among print buyers, print vendors and other providers
of related services involved in the print production and management process;
. enabling parties to build a team on a project and print order basis
consisting of participants from multiple organizations;
. assigning roles and privileges to individual team members, designating their
status and ability to view or make changes to a print order; and
. providing secure and selective access on print orders.
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Our service enables print buyers, print vendors and other providers of
related services to communicate and collaborate efficiently throughout the life
cycle of a print order. The key features of our service are:
Estimating, Quoting and Specifications Management. Print jobs can be created
and submitted by buyers, and quoted online by print vendors. The buyer decides
which and how many print vendors can bid on a job. Job specifications and order
revisions are managed consistently, enabling buyers and print vendors to share
common order description formats.
Order Management. Noosh.com provides online ordering, confirmation and order
status from design through delivery. This enables collaborative management and
tracking of orders by print buyers, print vendors, graphic designers and direct
mail and fulfillment companies. Online records of complete order history and
revisions give everyone involved in the order a comprehensive, relevant, up-to-
the-minute status.
Management Reporting. Noosh.com provides print buyers with access to a range
of detailed performance reports, including purchasing, client history and print
vendor activity. Noosh.com also provides print vendors with a variety of
detailed reports, including account history and sales performance.
Content Delivery and File Management. Noosh.com allows for text and graphic
file transfers, real-time proofing and job file archiving, which are key
features needed to develop an integrated and full-service online environment
for creating and producing complex print orders.
Integration with Other Systems. Our technology allows us to integrate our
noosh.com service with our users' information systems, including their
operating resource procurement, enterprise resource planning or print
management systems.
Industry Reference. Noosh.com provides profiles of print vendors registered
with our service for review by print buyers and advertising agencies. Our
service also contains reference information about the printing industry for all
visitors, regardless of whether they have an account with us.
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Users
We primarily target major corporations which budget at least $10 million
annually for their print buying requirements, together with their printers. In
addition, we also target print brokers which serve these large print buyers,
printers and advertising agencies.
Since we initiated testing of our noosh.com service in July 1999 through May
11, 2000, over 243 print buyers and print vendors have signed agreements with
us to use our service. The following is a list of print buyers, printers and
other providers of related services who have entered into agreements to use our
service and to pay us for training, technical support, implementation services
or user or transaction fees in connection with their use of our service:
<TABLE>
<S> <C>
Print Buyers
Advantica Infusive Marketing Group
Aetna Services, Inc. J.Crew Group Inc.
American Leprosy Mission La Bov & Beyond, Inc.
Ameritech Lake Design
Bank of America Corp. Levi Strauss & Co.
Blue Shield Blue Cross -- South Media Post Communications
Carolina Merrill Lynch Asset Management
Champion International Miller Freeman, Inc.
Compact Air Products, Inc. MINDEF
Cornell Dubilier Modus Media International, Inc.
Cran Barry, Inc. Multiple Zones International
Creative Producers Group Orbit
Dean Johnson Design Para-Chem Southern Inc.
Digital Art Exchange Publicis Technology
Dunlop Slazenger Corporation Stimuli Lab, LLC
E*TRADE Group, Inc. The Timberland Company
Faith Inkubators Tom Peters Company
General Electric Capital Services, Inc., Tribe Design
an affiliate of the General Electric Upward Unlimited, Inc.
Company Wells Fargo & Company
Husk-Jennings Advertising West Publishing Corporation
I Was Framed, Inc. Wizards of the Coast
</TABLE>
Printers with Co-Marketing Agreements
ColorGraphics, Inc.
Consolidated Graphics, Inc. and
their 63 affiliated companies
Moore North America, Inc.
R.R. Donnelley & Sons Company
Wallace Computer Services, Inc.
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<TABLE>
<S> <C>
Printers, Pre-Press Vendors and Print
Brokers
ABC Synnyvale F.C.L. Graphics Inc.
Ace Printing Favorite Printing
Action Printing FBK Group
AD&P, Inc. Federal Envelope Co.
Advanced Color Graphics First Impressions Lithographic Co.
Adventures in Advertising Fong Brothers Printing
Allied Printing Services, Inc. FoxIntegrity Graphics Inc.
Alphagraphics Franklin Press
American Lithographers, Inc. Frontier Printing, Inc.
American Printing Co. Gamma One, Inc.
Anchor Direct General Printing
Applied Printing Technologies, L.P. Gopher State Litho, Inc.
Artisan Press Inc. Grande & Associates, Inc.
Assembly Services and Packaging Heart Printing & Graphics, Inc.
Atlantic Envelope Co. Heinrich Envelope Corp.
Automated Graphic Systems House of Printing
Babor Forms, Inc. IC Group
Baucom Press IGI/Earthcolor
Bayshore Press, Inc. Image Systems, Inc.
Bibbero Systems, Inc. Imperial Company, Inc.
Bofors Inc. Impressions, Inc.
Bomant Graphics Infinity Direct
Business Card Express Florida Infographics
Capital Printing Co., Inc Iridio Digital Printing
Capstone Consulting Group, Inc. Japs-Olson
Carqueville Graphics, Inc. Johnson & Quin, Inc.
Castle-Pierce Printing Co. Just Solutions
Challenge Printing, Inc. Kelvyn Press, Inc.
Colorado Printing Co. LAgraphico.com
ColorMagic, Inc. LA Label Company
Color-Trek Inc. Liberty Graphic Systems, Inc.
Colson Printing Co. Litho Press Inc.
Commercial Printing Co. Litho Technical Services
Corporate Express, Doc & Print Mgmt Louis Printing Services
Creative Mailings, Inc. M&M Printing, Inc.
Creative Retail Packaging Mackay Envelope Corp.
Crowson-Stone Printing Co. Marketing IV, Inc.
CRT Color Printing, Inc. Maximum Graphics Corporation
Custom Tabs, Inc. McCallum Envelope & Printing Co.
Cyberprinter/CP Direct Media Graphix, Inc.
Daily Printing, Inc. Mercury Signs & Display, Inc.
Dan Dolan Printing, Inc. Meredith-Webb Printing Co.
Dean Litho Metro Printing, Inc.
Deluxe Color Printers Metrographics
DG Printing, Inc. Metropolitan Printing Service, Inc.
Digidel, Inc. MidAtlantic Printers, Ltd.
Direct Mail Express Miller Promotional Graphics (MPG)
Diversified Graphics Incorporated Momentum Communications
Eastern Rainbow Inc. Montague Spragens
E.C.G., Inc. Moran Printing Company
Ed Garvey and Company Nahan Printing, Inc.
Elements National Indexing Systems, Inc.
ESCO National Mail Graphics Corporation
Etheridge Printing Company NCR Corporation
F&T Graphics Inc. New Leaf Press
</TABLE>
43
<PAGE>
<TABLE>
<S> <C>
Newport Printing Systems Shapco Printing, Inc.
No Other Impressions, Inc. Source, Inc.
Northstar Computer Forms, Inc. Spencer & Worth, Ltd.
Nova Graphics, Ltd. Stormm Graphicworks, Inc.
Outlook Envelope Sweet Waverly Printing Co.
Pacific Communication Concepts, Inc. Syracuse Colour Graphics
Packaging Results, Inc. Systems Packaging
Paramount Miller Graphics Tension Envelope Corporation
Patterson Printing Company The Bureau of Engraving Inc.
Penn Lithographics The Horah Group
Perfect Image The Irving Press, Inc.
PGI Web, Inc. The John Roberts Company
Pikes Peak Litho The Journeyman Press Inc.
Precision Direct, Inc. The Printery, Inc.
Pride in Graphics TN Printing
Princeton Press Transo Envelope Co.
Print Craft, Inc. Tri Graphics
Printergy, Inc. Tulip Graphics, Inc.
Printers Unlimited, Inc. Unicorn Graphics
Printing, Inc. Universal Printing
Printing Control Victor Envelope Corp.
Printing Express, Inc. Volume Press
Prodigy Press, Inc. Waller Press
Rainbow Graphics, Inc. Waters Lithograph Inc.
Response Envelope Western Graphics
Rhodes Productions Western Press
Richardson & Edwards, Inc. Wetzel Brothers
Rite Envelope & Graphics Wicklander Printing Corporation
Royal Envelope Corp. Williams Printing Company
RW Nielsen Associates Winchester Printers, Inc.
Santa Cruz Web Integration and Design Wintry Press
Schiele Group Wright Color Graphics
Sexton Printing Service Envelope XYAN.com
</TABLE>
Sales, Marketing and Customer Service
We sell our service in the United States primarily through our direct sales
organization. As of March 31, 2000, our direct sales force consisted of 70
sales professionals located in nineteen offices throughout the United States.
We believe that we have hired top sales professionals from leading printing,
graphic arts and enterprise software companies. Our sales force targets
executive level decision makers in large print-buying organizations across a
broad range of industries. We believe that these executives are also
influential in promoting the adoption of our service among print vendors. We
intend to expand our sales force into additional major markets across the
country in order to broaden our customer base.
Our marketing programs are designed to increase brand awareness, educate our
target market about our services and generate new sales opportunities. As of
March 31, 2000, our marketing team consisted of 30 marketing professionals. We
have engaged in marketing activities that include trade shows, seminars, press
relations, direct mailings, Web site marketing, trade association relations and
industry analyst relations. We also have co-marketing agreements with national
print vendors. To help increase our customer base, we also have entered into
agreements to conduct co-marketing activities with corporate procurement system
providers, including Commerce One, Inc. and, through a memorandum of
understanding, Ariba Technologies, Inc.
Our customer service organization assists users in planning, learning and
implementing our noosh.com service. As of March 31, 2000, we employed twelve
professionals in our customer service
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<PAGE>
organization. We have a technical support team available to users by telephone,
over the Internet or by electronic mail in order to resolve their customer
support requests. In addition, we offer training to users of our noosh.com
service through live classes.
We plan to expand the size of our sales and marketing and customer supports
organizations and to establish additional sales offices. Our ability to do so
will depend on recruiting and training additional direct sales, marketing and
customer support personnel. If we are unable to hire highly trained sales,
marketing and customer support personnel, we would be unable to either increase
our customer base or meet customer demands.
Commercial Relationships With National Printers and Print Buyers
We are actively seeking to develop commercial relationships with national
printers in which they would co-market our service to their customers and with
national print buyers in which they would co-market and endorse our service to
their printers and business partners. These relationships are intended to help
us rapidly gain adoption of our service and, in some cases, involve capital
investment and incentives to meet targeted dollar volume of usage through our
noosh.com service. For example, we have entered into agreements with the
General Electric Company, R.R. Donnelley, Consolidated Graphics, Moore and
Wallace Computer Services.
In January 2000, we entered into a co-development and co-marketing agreement
with R.R. Donnelley, a leading North American commercial printer and
information services company, to develop a co-branded Web site utilizing the
noosh.com service for R.R. Donnelley's customers, particularly in the catalog,
magazine and book publishing markets. In the fiscal year ended December 31,
1998, R.R. Donnelley reported that revenues from these markets accounted for
over one-half of its consolidated net sales of $5.0 billion. Under the
agreements, we and R.R. Donnelley committed to actively promote and market the
noosh.com service to R.R. Donnelley's customers. In connection with the
agreements, R.R. Donnelley purchased approximately $14.0 million of our
Series D preferred stock. We issued R.R. Donnelley warrants to purchase our
common stock. A portion of each warrant is exercisable only when R.R. Donnelley
meets stated volume targets for business conducted over our service. R.R.
Donnelley also agreed to pay to us a transaction fee based on the aggregate
volume of print orders processed by them. R.R. Donnelley is not committed to
any volume targets.
In April 2000, we entered into a print buyer agreement with General Electric
Capital Services, Inc., an affiliate of the General Electric Company, under
which GE and its affiliates will be able to process their print orders using
our noosh.com service. Under this agreement, GE committed to use reasonable
commercial efforts to introduce and provide an endorsement of our noosh.com
service to its print vendors and to major retail customers of GE Capital's Card
Services and to recommend that these vendors and customers use noosh.com for
their print jobs. GE also agreed to use reasonable commercial efforts to assist
us in identifying and facilitating the deployment of our LiveJobs collaboration
technology as a procurement solution in markets other than print and to serve
as a beta customer for at least one such new offering. The parties also agreed
to participate in mutually agreeable co-marketing activities and events
designed to promote the parties' alliance. In connection with the agreement,
General Electric Capital Corporation, an affiliate of GE, assigned to us rights
relating to its technology designed to measure the quality of products and
services rendered to GE by its vendors. In connection with the agreement, GE
Capital Equity Investments, another affiliate of GE, purchased $10.0 million of
our Series E preferred stock. In addition, we granted GE Capital Equity
Investments a warrant to purchase an aggregate of 958,400 shares of our capital
stock. Although GE is not committed to any volume targets under the print buyer
agreement, portions of the warrant are exercisable only when GE, together with
its affiliates, meets stated volume targets for business conducted over our
service and recommends our service to a stated percentage of identified print
vendors and customers of GE Capital's Card Services.
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We rely on these types of relationships to help generate increased usage of
noosh.com and strengthen our value proposition to our users. As a result, we
expect to continue to devote
engineering and marketing resources to develop these relationships. However, we
cannot be certain that we will be able to enter into additional commercial
relationships with national printers or print buyers.
NOOSH Technology and System Architecture
Our noosh.com service is an Internet-based application that allows us to add
new users and support existing users and effectively control access to print
projects, worldwide, from a single location. It resides on our servers
colocated at AboveNet's San Jose, California facility. Our users access
noosh.com using standard Internet browsers, which eliminates the need to
install our software at the customer site and facilitates rapid integration of
any enhancements to our service.
Our principal technical assets are our internally developed software
applications that comprise noosh.com. Noosh.com is built on a multi-layer
system architecture, centered around our LiveJobs technology. By designing
these software layers to function independently of each other and by taking
advantage of multi-computer configurations at our AboveNet data center, we seek
to provide continuous access to noosh.com, even in the event that some element
of our system fails. Our service is designed to run on a variety of hardware
platforms and will allow us to add capacity as transaction volumes increase.
Communications Layer. The communications layer connects our service with our
customers' desktop computers. The ability to integrate these diverse systems
has enabled us to create a collaborative online environment supporting a wide
range of users. The NOOSH firewall filters the incoming data stream and
provides a first line of site security. Our communications architecture is
based on standard industry technologies and protocols.
Interface and Presentation Layer. The interface and presentation layer
provides the "look and feel" of noosh.com. Based upon user requests and access
rights, this layer retrieves information from the lower layers of the system
and transforms it into presentable content, which is delivered to the desktop
by the communications layer.
LiveJobs Technology. Our LiveJobs technology delivers the business logic
necessary to allow the user to access, manage and communicate information about
each print order. Each print order is modeled in our application as a sequence
of user-determined workflow steps. In order to facilitate communication between
users, we have developed event notification and messaging capabilities that
assist our users in completing each workflow step. This notification subsystem
also enables communication with customers' third-party print management tools.
Enterprise Services Layer. The enterprise services layer facilitates
information exchange with our data repository. Our databases are implemented
using industry-leading database software from Oracle and run on standard server
hardware.
We control access to our service through login, authentication and
authorization mechanisms and user role definitions, allowing the automated
enforcement of access privileges. Our LiveJobs technology helps assure that
users only see the information to which they are permitted access based on
their role in a job or project and their group manager's authorization.
Intellectual Property
We rely on a combination of copyright, trademark and trade secret laws and
restrictions on disclosure to protect our intellectual property rights. We also
enter into confidentiality agreements
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with our employees and consultants and other third parties and control access
to software, documentation and other proprietary information. Currently we have
four U.S. patents pending relating to our noosh.com service. We do not have any
issued patents. We have also filed for federal trademark registration for
"NOOSH" and the "NOOSH" logo in the United States, Canada, Japan and Europe and
for "LiveJobs" in the United States. However, we cannot be certain that the
steps we have taken to protect our intellectual property rights will be
adequate or that third parties will not infringe or misappropriate our
proprietary rights. We also cannot be sure that competitors will not
independently develop technologies that are substantially equivalent or
superior to the proprietary technologies employed in our Internet-based
services. If we fail to protect our proprietary rights adequately, our
competitors could offer similar services, potentially harming our competitive
position and decreasing our revenues in the United States and other
jurisdictions.
In addition, in recent years, there has been significant litigation in the
United States involving patents and other intellectual property rights,
including among companies in the Internet industry. The software code relating
to our noosh.com service or our methods of providing our noosh.com service may
infringe on the proprietary rights of others and they may assert infringement
claims against us. In February 2000, we received a letter from an individual,
Henry B. Freedman, advising us that his patent may cover the software code
comprising our noosh.com service and requesting that we consider licensing the
patent. We are currently evaluating the patent. However, based upon our
preliminary review we do not believe that we require a license under the patent
to operate our current service. If this matter or any other matters or claims
that may be asserted against us in the future cannot be resolved through a
license or similar arrangement, we could become a party to litigation. Any
claim of infringement of proprietary rights of others, even if ultimately
decided in our favor, could result in substantial costs and diversion of
resources. In addition, we cannot be sure that licenses to third-party
technology will be available to us at a reasonable cost, or at all. If we were
unable to obtain a license on reasonable terms, we could be forced to redesign
our service or to cease selling or using it.
Competition
We primarily encounter competition with respect to different aspects of our
service from print vendors offering traditional methods of designing and
managing print orders, such as R.R. Donnelley companies that offer business-to-
business Internet-based procurement services focused on the print industry such
as Collabria, Inc., printCafe, Inc. and Impresse Corporation, or traditional
enterprise software companies that offer proprietary management software and
may develop alternative print procurement and management services. In addition,
some large commercial print vendors have developed proprietary e-commerce
services and other print vendors may develop or acquire competing services.
Because barriers to entry in the market for Internet-based print management
services are relatively insubstantial, we expect additional competition from
other established and emerging companies as the market continues to develop and
expand.
We believe that the principal competitive factors affecting our market
include adoption by a significant number of print buyers and print vendors,
product quality and performance, industry-specific expertise, customer service
and support, core technology, breadth and depth of product features and value
of solution. Although we believe that our solution currently competes favorably
with respect to these factors, our market is relatively new and is evolving
rapidly. We may not be able to maintain our competitive position against
current and potential competitors, especially those with significantly greater
financial, marketing, service, support, technical and other resources.
Some of our current and potential competitors may develop Internet-based
solutions that achieve greater market acceptance than our service. Many of our
existing and potential competitors have greater name recognition, larger
customer bases and significantly greater financial, technical and marketing
resources than we do. Such competitors can undertake more extensive marketing
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<PAGE>
campaigns for their brands, products and services, adopt more aggressive
pricing policies and make more attractive offers to customers, potential
employees, distribution partners, and commercial print suppliers. In addition,
current and potential competitors have established or may establish cooperative
relationships among themselves or with third parties to increase the ability of
their products to address customer needs. For example, other Internet-based
print management services may establish relationships with business-to-business
procurement system providers. Accordingly, it is possible that new competitors
or alliances among competitors may emerge and rapidly achieve customer
acceptance.
Employees
As of March 31, 2000, we had 214 full-time employees. Of these employees, we
have 130 in sales and marketing, 48 in research and development, five in
customer support and 31 in general and administrative services and operations.
None of our employees is represented by a labor union, and we consider our
labor relations to be good.
Facilities
We are headquartered in Palo Alto, California, where we lease approximately
23,000 square feet pursuant to a term lease that expires on December 31, 2000
and 9,000 square feet pursuant to a term lease that expires on December 31,
2001. These facilities are used for executive office space, including sales and
marketing, finance and administration, research and design and customer
support. We also lease an aggregate of approximately 38,000 square feet in
Broomfield, Connecticut; Santa Monica and Irvine, California; Atlanta, Georgia;
Chicago, Illinois; Cincinnati, Ohio; Dallas, Texas; Indianapolis, Indiana;
Jacksonville, Florida; McLean, Virginia; Milwaukee, Wisconsin; Needham,
Massachusetts; New York, New York; Parsippany, New Jersey; Plymouth, Minnesota;
Portland, Oregon; and St. Louis, Missouri. These facilities are used for our
sales activities. The term lease for our facility in Needham, Massachusetts
expires on October 21, 2002, the term lease for our facility in New York, New
York expires on November 15, 2000, the term lease for our facility in McLean,
Virginia expires on November 15, 2004, the term lease for our facility in
Parsippany, New Jersey expires on July 30, 2003, the term lease for our
facility in Chicago, Illinois expires on May 1, 2003 and the term lease for our
facility in Irvine, California expires on May 22, 2005. The other facilities
are leased on a month-to-month basis. We believe that we will need to obtain
additional space for our headquarters and additional sales offices in the near
future and that this additional space can be obtained on commercially
reasonable terms.
Legal Proceedings
From time to time, we may be involved in various lawsuits and legal
proceedings which arise in the ordinary course of business. Currently, we are
not a party to any material litigation or arbitration proceedings.
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MANAGEMENT
Executive Officers, Directors and Certain Key Employees
The following table sets forth information regarding our executive officers,
directors and certain key employees as of April 4, 2000:
<TABLE>
<CAPTION>
Name Age Position(s)
---- --- ----------
<S> <C> <C>
Ofer Ben-Shachar........ 39 President, Chief Executive Officer and Chairman of the Board
Kevin Akeroyd........... 31 Vice President of Sales
David Hannebrink........ 50 Vice President of Marketing and Business Development
Raymond Martinelli...... 41 Vice President of Human Resources
Timothy Moore........... 43 Vice President of Strategic Alliances, General Counsel and Secretary
Hagi Schwartz........... 38 Vice President of Finance and Chief Financial Officer
Robert Shaw............. 37 Senior Vice President of Sales
Lawrence Slotnick....... 48 Vice President of Engineering
Mathew Spolin........... 28 Chief Technology Officer
Steven Baloff........... 44 Director
Edward Barr............. 63 Director
Kathy Levinson.......... 44 Director
Arthur Patterson........ 56 Director
</TABLE>
Ofer Ben-Shachar founded NOOSH and has served as our President, Chief
Executive Officer and Chairman of the Board since August 1998. From December
1994 until February 1998, Mr. Ben-Shachar was the founder, Chairman and Chief
Technical Officer of NetDynamics, Inc., an Internet-based technology company
that was acquired by Sun Microsystems Inc. in summer 1998. Prior to
NetDynamics, Mr. Ben-Shachar founded Software Xcellence, a software consulting
company, and served as president until December 1994. From June 1987 to October
1990, Mr. Ben-Shachar served as a senior software engineer for Teknekron
Software Systems, now Tibco Software Inc. Mr. Ben-Shachar holds a B.S. degree,
cum laude, in Math and Computer Science from Hebrew University in Jerusalem and
an M.S. in Computer Science from Washington State University.
Kevin Akeroyd has served as our Vice President of Sales since August 1999.
From July 1990 to August 1999, Mr. Akeroyd worked at R.R. Donnelley & Sons
Company, a provider of printing and integrated services, in a variety of
positions, including National Sales Vice President for their PreMedia division.
Mr. Akeroyd holds a B.A. degree in Business Administration from the University
of Washington.
David Hannebrink has served as our Vice President of Marketing and Business
Development since January 1999. From May 1997 to December 1998, he was a
consultant providing general management and marketing services to small and
mid-sized companies. In November 1982 he founded Covalent Systems Corporation,
a supplier of enterprise software and data collection systems for the printing
and electronic publishing industries. Mr. Hannebrink was with Covalent, and
with Logic Associates, Inc. after it acquired Covalent, until April 1997. He
served in several senior executive positions at Covalent, including service as
President and Chief Executive Officer of Covalent from March 1991 to April
1995. Most recently, he served as Vice President Sales and Marketing of Logic.
Mr. Hannebrink holds a B.S. degree in Mechanical Engineering from Cornell
University, an S.M. degree in Mechanical Engineering from the Massachusetts
Institute of Technology and an M.B.A. degree from the Leavey School of Business
at Santa Clara University.
Raymond Martinelli has served as our Vice President of Human Resources since
September 1999. From July 1995 to September 1999, Mr. Martinelli was Vice
President of Human Resources for Computer Curriculum Corporation, a provider of
educational software and services for K-12 schools. From August 1988 to July
1995, Mr. Martinelli was Divisional Human Resources Manager at Apple
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Computer, Inc. Mr. Martinelli holds a B.A. degree in Organizational
Communications from California State University, Sacramento and an M.A. degree
in Organizational Development from Golden Gate University.
Timothy Moore has served as our Vice President of Strategic Alliances and
General Counsel since January 2000. Mr. Moore has also served as our Secretary
since inception. From October 1997 to January 2000, Mr. Moore was a partner in
the law firm of Cooley Godward LLP, where his practice focused on the
representation of emerging technology companies. Prior to joining Cooley
Godward, Mr. Moore served for two years as Vice President, Strategic
Investments and General Counsel of Verity, Inc. From 1986 to 1996, Mr. Moore
practiced law at Gray Cary Ware & Freidenrich, where he was elected partner in
1991 and was a member of the compensation committee. Mr. Moore holds a J.D.
degree from Stanford Law School and a B.A. degree in Economics, with
distinction, from Stanford University.
Hagi Schwartz has served as our Vice President of Finance and Chief Financial
Officer since October 1999. From January 1996 to October 1999, Mr. Schwartz
served as Chief Financial Officer and Vice President of Finance of Check Point
Software Technologies Ltd., a worldwide leader in securing the Internet. From
April 1991 to December 1995, Mr. Schwartz served as the acting Chief Financial
Officer and Controller of Mercury Interactive Corporation, a software testing
company. Mr. Schwartz holds a B.A. degree in Accounting and Economics from Bar
Ilan University, Israel.
Robert Shaw has served as our Senior Vice President of Sales since January
2000. From July 1985 to January 2000, Mr. Shaw worked at R.R. Donnelley & Sons
Company, a provider of printing and integrated services, in a variety of
capacities including Senior Vice President of Sales and Marketing for the
Merchandise Media Business and Senior Vice President of Business-to-Business.
Mr. Shaw holds a B.A. degree in Business Administration and a B.S. degree in
Economics from Geneva College in Western Pennsylvania.
Lawrence Slotnick has served as our Vice President of Engineering since April
1999. From April 1997 to April 1999, he served as Vice President of Internet
and Enterprise Products at Apple Computer, Inc. where he was responsible for
charting Apple's strategic course for networking, collaboration and
communications products. From August 1995 to April 1997 he served as Vice
President of Engineering for the Global Business Systems division of Octel
Communications Corp. From March 1991 to June 1995, Mr. Slotnick served as Vice
President of Product Development in Apple's Claris subsidiary. Mr. Slotnick
holds B.S. and M.S. degrees in Computer Science from the University of
California, Berkeley.
Mathew Spolin has served as our Chief Technology Officer since January 1999.
Prior to joining us, Mr. Spolin was professional services and product manager
at Pangea Systems, Inc., a Java Fund startup specializing in development and
maintenance of large enterprise systems for pharmaceutical research. From March
1993 to April 1997, he was the senior bioinformatics architect for Human Genome
Sciences, Inc., a genomics and pharmaceutical company. Mr. Spolin holds a B.S.
in Computer Information Systems from The American University in Washington D.C.
Steven Baloff has served as a member of our board of directors since April
1999. Since February 1996, Mr. Baloff has worked for Advanced Technology
Ventures, a venture capital firm, and currently serves as a General Partner.
Prior to joining Advanced Technology Ventures, Mr. Baloff was Chief Executive
Officer and founder of Worldview, a co-creator of Travelocity. Mr. Baloff has
also held a variety of executive positions with Covalent Systems. Mr. Baloff
serves on the boards of directors of several privately held companies. Mr.
Baloff holds an A.B. degree in Economics from Harvard University and an M.B.A.
degree from Stanford University.
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Edward E. Barr has served as a member of our board of directors since March
2000. Since 1998, Mr. Barr served as Chairman of Sun Chemical Group, B.V., the
holding company of Sun Chemical Corporation, a manufacturer of printing inks
and organic pigments. From 1987 to 1998, Mr. Barr served as President and Chief
Executive Officer of Sun Chemical. Mr. Barr also is Chairman of the Board of
Kodak Polychrome Graphics, Sun Chemical's joint-venture with Kodak Company and
a provider of printing supplies to the graphics art market. Mr. Barr also
serves on the boards of directors of Sun Chemical's parent company, Dainippon
Ink & Chemicals of Tokyo, Japan, United Water Resources, Inc., a provider of
water and waste water services and First Union Corporation, a financial
services company. Mr. Barr is a trustee of Northwestern Mutual Life Insurance
Company. Mr. Barr holds a B.S. degree in Business from New York University's
Stern School of Business and an M.S. degree in Economics from the University of
Michigan.
Kathy Levinson has served as a member of our board of directors since
November 1999. Since January 1999, Ms. Levinson has served as President and
Chief Operating Officer of E*TRADE Group, Inc., a global provider of electronic
personal financial services. Since January 1996, Ms. Levinson served as
President and Chief Operating Officer of E*TRADE Securities, Inc., a wholly
owned subsidiary of E*TRADE Group, Inc. From 1980 to 1994, Ms. Levinson worked
at Charles Schwab & Co., Inc., a securities brokerage firm, in a variety of
senior executive positions. Ms. Levinson holds a B.A. degree in Economics from
Stanford University.
Arthur Patterson has served as a member of our board of directors since April
1999. He is currently General Partner at Accel Partners, a venture capital firm
which he co-founded. He is currently on the board of directors of Actuate
Corp., an Internet reporting company, Weblink Wireless Inc., a wireless
messaging company, and Portal Software Inc., an Internet billing company, as
well as several privately held Internet services companies. Mr. Patterson holds
A.B. and M.B.A. degrees from Harvard University.
Board Composition
We currently have five directors. Prior to this offering, the holders of our
Series A preferred stock, Series B preferred stock and common stock, each
voting as a separate class, are entitled to elect one member of our board of
directors. Currently, Mr. Baloff is serving as the Series A director, Mr.
Patterson is serving as the Series B director and Mr. Ben-Shachar is serving as
the common stock director. This right to elect directors will expire upon the
closing of this offering. All remaining members of our board of directors are
elected by the holders of our common stock and preferred stock, voting together
as a single class. Upon the closing of this offering, the terms of office of
the board of directors will be divided into three classes. As a result, a
portion of our board of directors will be elected each year by the common
stockholders. The division of the three classes, the initial directors and
their respective election dates are as follows:
. the class I directors will be Ofer Ben-Shachar and Arthur Patterson, and
their terms will expire at the annual meeting of stockholders to be held in
2001;
. the class II directors will be Steven Baloff and Edward Barr, and their
terms will expire at the annual meeting of stockholders to be held in 2002;
and
. the class III director will be Kathy Levinson, and her term will expire at
the annual meeting of stockholders to be held in 2003.
At each annual meeting of stockholders after the initial classification, the
successors to directors whose terms will then expire will be elected to serve
from the time of election and qualification until the third annual meeting
following election. In addition, our amended and restated certificate of
incorporation provides that the authorized number of directors may be changed
only by resolution of the board of directors. Any additional directorships
resulting from an increase in the number of
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directors will be distributed among the three classes so that, as nearly as
possible, each class will consist of one-third of the directors. This
classification of the board of directors may have the effect of delaying or
preventing changes in control or management of NOOSH.
Board Committees
. Audit Committee. Our audit committee reviews our internal accounting
procedures and consults with, and reviews the services provided by, our
independent auditors. Current members of our audit committee are Steven
Baloff, Edward Barr and Kathy Levinson.
. Compensation Committee. Our compensation committee reviews and recommends to
the board of directors the compensation and benefits of all our officers and
reviews general policy relating to compensation and benefits of our
employees. The compensation committee also administers the issuance of stock
options and other awards under our stock plans. Current members of the
compensation committee are Steven Baloff and Arthur Patterson.
Compensation Committee Interlocks and Insider Participation
Neither member of the compensation committee has at any time been an officer
or employee of NOOSH. No interlocking relationship exists between our board of
directors or compensation committee and the board of directors or compensation
committee of any other company, nor has any interlocking relationship existed
in the past.
Director Compensation
We do not provide cash compensation to members of our board of directors for
their services as members of the board or for attendance at committee meetings.
Members of the board of directors are reimbursed for some expenses in
connection with attendance at board and committee meetings. Under our 1998
equity incentive plan and our 2000 equity incentive plan, non-employee
directors are eligible to receive stock option grants at the discretion of our
board of directors or other administrator of the plan. In May 1999, Arthur
Patterson, one of our non-employee directors, received an option to purchase
300,000 shares of common stock at an exercise price of $0.1375 per share. In
November 1999, Kathy Levinson, one of our non-employee directors, received an
option to purchase 100,000 shares of common stock at an exercise price of $1.50
per share. In January 2000, Steven Baloff, one of our non-employee directors,
received an option to purchase 25,000 shares of common stock at $2.50 per
share. In March 2000, Edward Barr, one of our non-employee directors, received
an option to purchase 25,000 shares of common stock at an exercise price of
$9.50 per share. These options vest over a three year period in equal monthly
increments.
In January 2000, we adopted our 2000 non-employee directors' stock option
plan to provide for the automatic grant of options to purchase shares of our
common stock to our directors who are not employees of NOOSH or any of our
affiliates. Any non-employee director elected after the effective date of this
offering will automatically receive an option to purchase 25,000 shares of
common stock when elected to the board of directors. Starting at the annual
stockholder meeting in 2001, all non-employee directors will receive an annual
option to purchase 10,000 shares of common stock. See "--Stock Plans--2000 Non-
Employee Directors' Stock Option Plan" for a more detailed explanation of the
terms of these stock options.
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Executive Compensation
The following table sets forth information concerning the compensation
received for services rendered to us by our Chief Executive Officer and our
four other most highly compensated executive officers in 1999 who earned, or
would have earned on an annualized basis, more than $100,000 during the fiscal
year ended December 31, 1999.
Summary Annual Compensation Table
<TABLE>
<CAPTION>
Long-Term
Compensation
Awards
Annual (Option
Compensation Awards)
---------------- ------------
Number of
Securities
Underlying
Name and Principal Position Salary Bonus Options
--------------------------- -------- ------- ------------
<S> <C> <C> <C>
Ofer Ben-Shachar................................. $163,333 -- --
President, Chief Executive Officer
and Chairman of the Board
Kevin Akeroyd(1)................................. 56,248 $25,004 100,000
Vice President of Sales
David Hannebrink(2).............................. 143,750 60,000 416,000
Vice President of Marketing
and Business Development
Hagi Schwartz(3)................................. 32,290 65,000 300,000
Vice President of Finance
and Chief Financial Officer
Lawrence Slotnick(4)............................. 107,116 15,000 450,000
Vice President of Engineering
</TABLE>
- --------
(1) Mr. Akeroyd joined NOOSH in August 1999. On an annualized basis, Mr.
Akeroyd's base salary would have been $150,000. Mr. Akeroyd is guaranteed
a minimum monthly commission of $6,250 until January 1, 2001. Until
January 1, 2001, Mr. Akeroyd is also eligible to receive an additional
monthly commission of $6,250 for achieving sales commission goals.
(2) Mr. Hannebrink joined NOOSH in January 1999. On an annualized basis, Mr.
Hannebrink's base salary would have been $150,000. Mr. Hannebrink is also
eligible to receive a bonus of $30,000 for each fiscal year upon
achievement of quarterly performance milestones.
(3) Mr. Schwartz joined NOOSH in October 1999. On an annualized basis, Mr.
Schwartz's base salary would have been $154,992.
(4) Mr. Slotnick joined NOOSH in April 1999. On an annualized basis, Mr.
Slotnick's base salary would have been $160,008. Mr. Slotnick is also
eligible to receive a bonus of $30,000 for each fiscal year upon
achievement of quarterly performance milestones.
53
<PAGE>
Option Grants
The following table sets forth information regarding stock options granted,
if any, to our Chief Executive Officer and our four other most highly
compensated executive officers during the fiscal year ended December 31, 1999.
Percentage of total options as set forth below was calculated based on an
aggregate of 5,294,990 shares of common stock granted under the 1998 equity
incentive plan in fiscal 1999. The potential realizable value as set forth
below was calculated based on the ten-year term of the option and assumed rates
of stock appreciation of 5% and 10%, compounded annually from the date the
options were granted to their expiration date based on the exercise price and
an assumed initial public offering price of $12.00 per share. In addition, the
0% column calculates the value of the option on the date of grant based on the
exercise price of the option and the deemed fair market value for financial
reporting purposes that we used in calculating deferred stock compensation.
Option Grants During Fiscal 1999
<TABLE>
<CAPTION>
Percentage
of Total Potential Realizable Value At
Number of Options Assumed Annual Rates of Stock
Securities Granted Exercise Price Appreciation for Option
Underlying during Price Term
Options Fiscal Per Expiration ---------------------------------
Name Granted 1999 Share Date 0% 5% 10%
- ---- ---------- ---------- -------- ---------- ---------- ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C>
Ofer Ben-Shachar........ -- -- -- -- -- -- --
Kevin Akeroyd........... 100,000 1.9% $ 0.50 8/18/09 $ 400,000 $1,811,594 $ 2,779,537
David Hannebrink........ 416,000 7.9% 0.0325 1/24/09 108,160 7,730,710 11,757,355
Hagi Schwartz........... 300,000 5.7% 1.00 10/7/09 1,680,000 5,284,782 8,188,612
Lawrence Slotnick....... 400,000 8.5% 0.1375 6/7/09 441,000 7,391,375 11,263,149
50,000 1.00 10/7/09 280,000 880,797 1,364,769
</TABLE>
The options listed in the table above are subject to vesting. The option
shares vest over a four-year period, with 25% of the option shares vesting
after one year and 2.08% vesting monthly thereafter. See "Stock Plans" for a
description of the material terms of these options.
54
<PAGE>
Aggregated Option Exercises in Last Fiscal Year and Fiscal Year-End Option
Values
The following table provides summary information concerning the shares of
common stock represented by outstanding stock options held by our Chief
Executive Officer and our four other most highly compensated executive officers
as of December 31, 1999. Options granted to purchase shares of our common stock
under our 1998 equity incentive plan are immediately exercisable by certain
optionees at the discretion of the board, but are subject to a right of
repurchase pursuant to the vesting schedule of each specific grant. The
repurchase option generally lapses over a four year period, with 25% lapsing
after the first year and 2.08% lapsing monthly thereafter. In the event that an
employee ceases to provide service to us or our affiliates, we have the right
to repurchase any of that employee's unvested shares of common stock at the
original option price. Amounts shown in the value realized column were
calculated based on the difference between the option exercise price and the
fair market value of the common stock on the date of exercise, without taking
into account any taxes that may be payable in connection with the transaction,
multiplied by the number of shares of common stock underlying the option.
Exercise prices ranged from $0.0325 to $1.00. We have calculated the value of
unexercised in-the-money options based on the assumed initial public offering
price of $12.00 per share of common stock without taking into account any taxes
that may be payable in connection with the transaction, multiplied by the
number of shares underlying the option, less the aggregate exercise price
payable for these shares.
<TABLE>
<CAPTION>
Number of
Securities
Underlying
Unexercised
Options at Value of Unexercised
December 31, In-the-Money Options at
Shares 1999 December 31, 1999
Acquired on Value --------------- -------------------------
Name Exercise Realized Vested Unvested Exercisable Unexercisable
---- ----------- -------- ------ -------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Ofer Ben-Shachar........ -- -- -- -- -- --
Kevin Akeroyd........... -- -- -- 100,000 $1,150,000 --
David Hannebrink........ 416,000(1) $0.00 -- -- -- --
Hagi Schwartz........... 300,000(2) 0.00 -- -- -- --
Lawrence Slotnick....... -- -- -- 450,000 5,025,000 --
</TABLE>
- --------
(1) As of December 31, 1999, 416,000 shares held by Mr. Hannebrink were
unvested and subject to repurchase by us.
(2) As of December 31, 1999, 300,000 shares held by Mr. Schwartz were unvested
and subject to repurchase by us.
Employment Arrangements
At the time of commencement of employment, our employees generally sign offer
letters specifying the basic terms and conditions of employment. In October
1999, we entered into an employment offer letter with Hagi Schwartz, our Vice
President of Finance and Chief Financial Officer. Under his employment offer
letter, we granted Mr. Schwartz an option to purchase 300,000 shares of common
stock at an exercise price of $1.00 per share. This option will vest 25% on the
first anniversary of his date of hire with the remainder vesting monthly over
the following three years. In the event Mr. Schwartz voluntarily terminates his
employment or is involuntarily terminated without cause, he is entitled to six
months continued salary and benefits and our repurchase right with respect to
his option shares continues to lapse over the six-month period.
In January 2000, we entered into an employment offer letter with Timothy
Moore, our Vice President of Strategic Alliances, General Counsel and
Secretary. Under his employment offer letter, we granted Mr. Moore an option to
purchase 285,000 shares of common stock at an exercise price of $2.25 per
share. This option will vest 25% on the first anniversary of his date of hire
with the
55
<PAGE>
remainder vesting monthly over the following three years. In the event Mr.
Moore is terminated without cause, he is entitled to six months continued
salary, benefits and vesting of stock options. In addition, in the event Mr.
Moore is terminated without cause before the first anniversary of his date of
hire, he is entitled to vesting for each month of employment.
In January 2000, we entered into an employment offer letter with Robert Shaw,
our Senior Vice President of Sales. Under his employment offer letter, we
granted Mr. Shaw an option to purchase 270,000 shares of common stock at an
exercise price of $2.50 per share. This option will vest 25% on the first
anniversary of his date of hire with the remainder vesting monthly over the
following three years. In the event Mr. Shaw is terminated without cause he is
entitled to twelve months continued salary and benefits. In addition, in the
event Mr. Shaw is terminated without cause before the first anniversary of his
date of hire, 25% of his option shares would become immediately vested.
We have also entered into employment offer letters with Mathew Spolin, our
Chief Technology Officer, Lawrence Slotnick, our Vice President of Engineering,
Kevin Akeroyd, our Vice President of Sales, and David Hannebrink our Vice
President of Marketing and Business Development. These offer letters specify
the basic terms of their employment, including their monthly salary, bonus
arrangement, stock option grant and benefits package.
Stock Plans
2000 Equity Incentive Plan
Our board of directors adopted our 2000 plan in January 2000, and our
stockholders approved the 2000 plan in March 2000. The 2000 plan will be
effective on the effective date of this offering. At that time, no further
option grants will be made under our 1998 plan described in more detail below.
Share Reserve. A total of 6,000,000 shares of our common stock have been
reserved for issuance under the 2000 plan. On the date of each annual
stockholders' meeting, beginning with the annual stockholders' meeting in 2001,
the share reserve will increase by the least of the following:
. 4.5% of our total outstanding common stock;
. 2,000,000 shares of our common stock; or
. a lesser amount as determined by our board of directors.
When a stock award expires or is terminated before it is exercised, the shares
not acquired pursuant to the stock awards shall again become available for
issuance under the 2000 plan.
Eligibility. The 2000 plan permits the grant of options to employees,
directors and consultants. Options may be either incentive stock options, or
ISOs, within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended, or nonstatutory stock options, or NSOs. In addition, the 2000 plan
permits the grant of stock bonuses and rights to purchase restricted stock.
The 2000 plan is administered by our board of directors. Our board of
directors may delegate its authority to administer the 2000 plan to a committee
of two or more board members appointed by the board of directors. The
administrator has the authority to select the eligible persons to whom award
grants are to be made, to designate the number of shares to be covered by each
award, to determine whether an option is to be an ISO or NSO, to establish
vesting schedules, to specify the exercise price of options and the type of
consideration to be paid upon exercise and to specify other terms of awards.
56
<PAGE>
In general, the term of the stock options granted under the 2000 plan may not
exceed ten years. An optionholder may not transfer a stock option other than by
will or the law of descent or distribution. The exercise price for an ISO
cannot be less than 100% of the fair market value of our common stock on the
date of grant. The exercise price for NSOs cannot be less than 85% of the fair
market value of our common stock on the date of grant. In the event the
optionholder is a 10% stockholder, then the exercise price per share of an ISO
cannot be less than 110% of the fair market value of our common stock on the
date of grant.
Unless the terms of an optionholder's stock option agreement provide for
earlier termination, in the event an optionholder's service relationship with
us ceases due to death, the optionholder's beneficiary may exercise any vested
options up to 18 months after the date the service relationship ends. In the
event an optionholder's service relationship with us ceases due to disability,
the optionholder may exercise any vested option up to twelve months after the
date the service relationship ends. If an optionholder's relationship with us
ceases for any reason other than disability or death, the optionholder may,
unless the terms of the stock option agreement provide for earlier termination,
exercise any vested options up to three months from the date the service
relationship ends.
ISOs may be granted only to our employees. The aggregate fair market value,
determined at the time of grant, of shares of our common stock with respect to
which ISOs are exercisable for the first time by an optionholder during any
calendar year under all of our stock plans may not exceed $100,000. No ISO may
be granted to any person who at the time of the grant owns or is deemed to own
stock possessing more than 10% of the total combined voting power of us or any
of our affiliates unless the term of the ISO award does not exceed five years
from the date of grant.
Effect on Options of a Change in Control. In the event of a change in control
in the beneficial ownership of NOOSH, all outstanding stock awards under the
2000 plan either will be assumed, continued or substituted for by any surviving
entity. If the surviving entity determines not to assume, continue or
substitute for these awards, the vesting provisions of such stock awards will
be accelerated and all outstanding awards will be immediately exercisable.
Awards not exercised prior to the effective date of the change of control shall
terminate and cease to be outstanding. In certain change in control
circumstances the vesting provisions of the outstanding stock awards will be
accelerated automatically. Furthermore, if a holder of a stock award is
terminated due to a constructive termination or involuntarily terminated
without cause within one month before or 13 months after a change in control,
the vesting of that holder's stock awards will be accelerated.
Other Provisions. The terms of any stock bonuses or restricted stock purchase
awards granted under the 2000 plan will be determined by the administrator. The
administrator may award stock bonuses in consideration of past services without
a purchase payment. The purchase price of restricted stock under any restricted
stock purchase agreement will not be less than 85% of the fair market value of
our common stock on the date of grant. Shares sold or awarded under the 2000
plan may be subject to repurchase by us.
Our board of directors may amend or modify the 2000 plan at any time.
However, no amendment or modification shall adversely affect the rights and
obligations with respect to options or unvested awards unless the participant
consents to such an amendment or modification. In addition, the approval of our
stockholders is required for our board of directors to:
. increase the maximum number of shares issuable under the 2000 equity
incentive plan (except for permissible adjustments in the event of certain
changes in the company's capitalization);
. materially modify the eligibility requirements for participation; or
. materially increase the benefits accruing to participants.
57
<PAGE>
1998 Equity Incentive Plan
Our board of directors adopted and our stockholders approved our 1998 equity
incentive plan in November 1998. The 1998 plan was amended in April 1999 and in
December 1999, and our stockholders approved both amendments. An aggregate of
8,000,000 shares of common stock currently are authorized for issuance under
the 1998 plan. Upon the effective date of this offering, no further option
grants will be made under the 1998 plan. The options granted under the 1998
plan have substantially the same terms as will be in effect for grants made
under the 2000 plan. With respect to change in control provisions, all
outstanding options under the 1998 plan either will be assumed or substituted
by any surviving entity. If the surviving entity determines not to assume or
substitute such awards, the vesting schedule of all outstanding awards shall
accelerate and all outstanding awards will be immediately exercisable. Awards
not exercised prior to the effective date of the change in control shall
terminate and cease to be outstanding on the effective date of a change in
control.
As of April 4, 2000, options to purchase a total of 3,490,050 shares of
common stock had been exercised, none of which had been repurchased and
2,808,522 of which were subject to repurchase; options to purchase a total of
4,392,538 shares of common stock with a weighted average price of $2.06 per
share were outstanding; and 117,412 shares remained available for future
issuance under the 1998 plan. As of April 4, 2000, the board had not granted
any stock bonuses or stock appreciation rights under the 1998 plan.
2000 Employee Stock Purchase Plan
Our board of directors adopted the 2000 employee stock purchase plan in
January 2000, and our stockholders approved the 2000 stock purchase plan in
March 2000.
Share Reserve. A total of 600,000 shares of common stock have been authorized
for issuance under the 2000 purchase plan. On the date of each annual
stockholders' meeting, beginning with the annual stockholders' meeting in 2001,
the share reserve will increase by the least of the following:
. 1.5% of our total outstanding common stock;
. 600,000 shares of our common stock; or
. a lesser amount as determined by the board of directors.
The 2000 purchase plan is intended to qualify as an employee stock purchase
plan within the meaning of Section 423 of the Internal Revenue Code of 1986, as
amended. Under the 2000 purchase plan, eligible employees will be able to
purchase common stock at a discount price in periodic offerings. The 2000
purchase plan will commence on the effective date of this offering.
Eligibility. All employees are eligible to participate in the 2000 purchase
plan so long as they are employed by us, or a subsidiary designated by the
board of directors, for at least 20 hours per week and are customarily employed
by us, or a subsidiary designated by the board of directors, for at least five
months per calendar year. Any employee who is a 5% stockholder is not eligible
to participate in the 2000 purchase plan.
Under the 2000 purchase plan, employees who participate in an offering
generally may have up to 15% of their earnings for the period of that offering
withheld. The amount withheld is used on each purchase date of the offering
period to purchase shares of common stock. The price paid for common stock on
the purchase dates will equal the lower of 85% of the fair market value of the
common stock on the first day of the offering period or 85% of the fair market
value of the common stock on the purchase date. Employees may end their
participation in the offering at any time during the offering period, and
participation ends automatically on termination of employment.
58
<PAGE>
Effect of a Change in Control. Upon a change in control of the beneficial
ownership of us, our board of directors has discretion to provide that each
right to purchase common stock will be assumed or an equivalent right
substituted by the successor entity or the board of directors may provide for
all sums collected by payroll deductions to be applied to purchase stock
immediately prior to the effective date of the change in control transaction.
Other Provisions. Our board of directors has the authority to amend or
terminate the 2000 purchase plan; provided, however, that no amendment or
termination of the 2000 purchase plan may adversely affect any outstanding
rights to purchase common stock. Amendments generally will be submitted for
stockholder approval only to the extent required by law.
2000 Non-Employee Directors' Stock Option Plan
Our board of directors adopted the 2000 non-employee directors' stock option
plan in January 2000, and our stockholders approved the 2000 non-employee
directors' stock option plan in March 2000. The directors' plan will be
effective on the effective date of this offering.
Share Reserve. A total of 350,000 shares of our common stock have been
reserved for issuance under the 2000 directors' plan. When a stock option
expires or is terminated before it is exercised, the shares not acquired
pursuant to the stock option shall again become available for issuance under
the 2000 directors' plan.
Eligibility and Option Terms. The directors' plan permits the grant of NSOs
to non-employee directors. The 2000 directors' plan is administered by our
board of directors. However, the grant of stock options is automatic.
On the effective date of this offering, each non-employee director will
automatically be granted an option to purchase 25,000 shares of common stock,
unless that director has previously been granted an option. Any individual who
becomes a non-employee director after this offering will automatically receive
this initial grant upon being elected to the board of directors. On each annual
stockholders' meeting, beginning with the annual stockholders' meeting in 2001,
any person who is then a non-employee director will automatically be granted an
option to purchase 10,000 shares of common stock.
In general, the stock options granted under the directors' plan may not
exceed ten years. An optionholder may not transfer a stock option other than by
will or the law of descent or distribution. The exercise price for nonstatutory
stock options will be 100% of the fair market value of the common stock on the
date of grant.
Unless the terms of an optionholder's stock option agreement provide for
earlier termination, in the event an optionholder's service relationship with
us ceases due to death, the optionholder's beneficiary may exercise any vested
options up to 18 months after the date such service relationship ends. In the
event an optionholder's service relationship with us ceases due to disability,
the optionholder may exercise any vested option up to twelve months after the
cessation of service. If an optionholder's relationship with us ceases for any
reason other than disability or death, the optionholder may, unless the terms
of the stock option agreement provide for earlier termination, exercise any
vested options up to three months from the date the service relationship ends.
Effect on Options of a Change in Control. In the event of certain changes in
control in the beneficial ownership of us, the vesting provisions of all
outstanding stock options under the directors' plan will be accelerated and the
stock options will be terminated upon the change of control if not previously
exercised.
59
<PAGE>
Other Provisions. Our board of directors may amend or modify the directors'
plan at any time. However, no such amendment or modification shall adversely
affect the rights and obligations with respect to options unless the
participant consents to such an amendment or modification.
401(k) Plan
We sponsor a 401(k) plan, a defined contribution plan intended to qualify
under Section 401(a) of the Internal Revenue Code of 1986, as amended. All
employees are eligible to participate. Participants may make pre-tax
contributions to the 401(k) plan of up to 25% of their eligible earnings,
subject to a statutorily prescribed annual limit ($10,500 in 2000). Under the
401(k) plan, each employee is fully vested in his or her deferred salary
contributions. Employee contributions are held and invested by the 401(k)
plan's trustee.
Each participant's contributions, and the corresponding investment earnings,
are generally not taxable to the participants until withdrawn. Individual
participants may direct the trustee to invest their accounts in authorized
investment alternatives.
Limitation of Liability of Directors and Indemnification Matters
Our amended and restated certificate of incorporation limits the liability of
directors to the maximum extent permitted by Delaware law. Delaware law
provides that directors of a corporation will not be personally liable for
monetary damages for breach of their fiduciary duties as directors, except
liability for:
. any breach of their duty of loyalty to the corporation or its stockholders;
. acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law;
. unlawful payments of dividends or unlawful stock repurchases or redemptions;
or
. any transaction from which a director derives an improper personal benefit.
This limitation of liability does not apply to liabilities arising under the
federal securities laws and does not affect the availability of equitable
remedies such as injunctive relief or rescission.
Our amended and restated certificate of incorporation and bylaws provide that
we will indemnify our directors and officers, and may indemnify our other
employees and agents, to the fullest extent permitted by law. We believe that
indemnification under our bylaws covers at least negligence and gross
negligence on the part of indemnified parties. Our bylaws also permit us to
secure insurance on behalf of any officer, director, employee or other agent
for any liability arising out of his or her actions in that capacity and
certain other capacities, including serving as a director of another
corporation at the request of our board, regardless of whether the bylaws would
permit indemnification.
We intend to enter into agreements to indemnify our directors and executive
officers in addition to indemnification provided for in our certificate of
incorporation and our bylaws. These agreements, among other things, provide for
indemnification of our directors and executive officers for expenses specified
in the agreements, including attorneys' fees, judgments, fines and settlement
amounts incurred by any of these persons in any action or proceeding arising
out of these persons' services as a director or officer for us, any of our
subsidiaries or any other entity to which the person provides services at our
request. We believe that these provisions and agreements are necessary to
attract and retain qualified persons as directors and officers.
At present, we are not aware of any pending or threatened litigation or
proceeding involving a director, officer, employee or agent in which
indemnification would be required or permitted.
60
<PAGE>
Change of Control Arrangements
In August 1998 and September 1998, we entered into founder stock purchase
agreements with Ofer Ben-Shachar, our President, Chief Executive Officer and
Chairman of the Board. Under the terms of the agreements, as amended in April
1999, approximately 33% of his shares were immediately vested with
approximately 1.85% of his shares vesting monthly thereafter. Upon involuntary
termination prior to a change of control of us, approximately 11% of his shares
would become immediately vested. Upon involuntary termination following a
change of control of us, 100% of his remaining unvested shares would become
immediately vested.
In October 1999, we entered into an employment offer letter with Hagi
Schwartz, our Vice President of Finance and Chief Financial Officer, and in
January 2000, we entered into an employment offer letter with Timothy Moore,
our Vice President of Strategic Alliances, General Counsel and Secretary. Under
the terms of their employment offer letters, Mr. Schwartz and Mr. Moore are
entitled to full acceleration of the unvested portion of their option shares in
the event of a change of control.
According to the terms of the stock option grants to four of our directors,
Steven Baloff, Edward Barr, Kathy Levinson and Arthur Patterson, vesting of
their option shares will immediately accelerate upon a change of control
transaction.
For more information about the change of control provisions under our stock
plans, See "--Stock Plans."
61
<PAGE>
RELATED PARTY TRANSACTIONS
The following executive officers, directors or holders of more than five
percent of any class of our voting securities purchased securities in the
amounts as of the dates shown below. For more detail on shares held by these
purchasers see "Principal Stockholders." All preferred share amounts are listed
on an as-converted to common stock basis.
<TABLE>
<CAPTION>
Shares of Preferred Stock
--------------------------------------- Warrants for
Common Stock Series A Series B Series C Series D Common Stock
----------------- --------- --------- --------- --------- ------------
<S> <C> <C> <C> <C> <C> <C>
Ofer Ben-Shachar................ 8,000,000 2,999,998 160,000 100,671 45,455 --
Kevin Akeroyd................... 100,000 -- -- -- -- --
David Hannebrink................ 436,706 -- -- -- -- --
Raymond Martinelli.............. 75,000 -- -- -- -- --
Timothy Moore................... 285,000 -- -- -- -- --
Hagi Schwartz................... 310,000 -- 14,546 -- -- --
Robert Shaw..................... 270,000 -- -- -- -- --
Lawrence Slotnick............... 400,000 -- -- -- -- --
Mathew Spolin................... 216,720 -- -- -- -- --
Steven Baloff................... 25,000 -- -- -- -- --
Edward Barr..................... 25,000 -- -- -- -- --
Kathy Levinson.................. 100,000 -- -- -- -- --
Accel Internet Fund II L.P.(1).. -- -- 605,090 139,597 -- --
Accel Investors '98 L.P.(1)..... -- -- 401,456 92,617 -- --
Accel Keiretsu VI L.P.(1)....... -- -- 75,636 17,450 -- --
Accel VI L.P.(1)................ -- -- 4,736,000 1,092,618 -- --
Advanced Technology Ventures V,
L.P.(2)........................ -- -- 2,106,582 560,913 -- --
ATV Entrepreneurs V, L.P.(2).... -- -- 75,236 20,033 -- --
MeriTech Capital Affiliates L.P.
............................... -- -- -- 32,215 -- --
MeriTech Capital Partners L.P.
............................... -- -- -- 1,981,208 -- --
R. R. Donnelley & Sons Company.. -- -- -- -- 1,272,727 2,780,158
Price Per Share................. $0.00125 to $9.50 $ 0.65 $ 2.75 $ 7.45 $ 11.00 $ 11.00
Date(s) of Purchase............. 8/98 to 3/00 11/98 4/99 11/99 1/00 1/00
</TABLE>
- --------
(1) Arthur Patterson, one of our directors, is a general partner of Accel
Partners.
(2) Steven Baloff, one of our directors, is a general partner of Advanced
Technology Ventures.
We have entered into the following agreements with our executive officers,
directors and holders of more than five percent of our voting securities.
Co-Marketing Agreement. In January 2000, we entered into a co-development and
co-marketing agreement with R.R. Donnelley, a beneficial holder of 6.5% of our
common stock. Under the agreement, we and R.R. Donnelley are committed to
actively promote and market the noosh.com service to R.R. Donnelley's
customers, particularly in the catalog, magazine and book publishing markets.
R.R. Donnelley also agreed to pay us a transaction fee based on the aggregate
volume of print orders processed by them. R.R. Donnelley is not committed to
any volume targets.
Amended and Restated Investor Rights Agreement. We, the preferred
stockholders described above and R.R. Donnelley have entered into an agreement,
under which they and other stockholders will have registration rights with
respect to their shares of common stock which we refer to as registrable
shares, following this offering. These registration rights include two demand
registration rights, an unlimited number of registration rights requiring us to
register sales of their shares when we undertake a public offering, or
piggyback registration rights, and an unlimited number of Form S-3 registration
rights. In order to exercise their demand registration rights,
62
<PAGE>
stockholders holding at least 30% of the registrable shares must submit a
written request that we file a registration statement for a public offering of
the registrable shares having an anticipated aggregated offering price of at
least $15,000,000. In order to exercise their piggyback registration rights,
each holder of registrable shares must submit written notice to us within 15
days of receiving notice from us that we intend to file a registration
statement for the public offering of our common stock. In order to exercise
their Form S-3 registration rights, stockholders holding at least 20% of the
registrable shares must submit a written request that we effect a registration
on Form S-3. See "Description of Capital Stock--Registration Rights" for a
further description of the terms of this agreement.
E*TRADE Agreement. In December 1999, we entered into our standard form of
print buyer agreement with E*TRADE Group, Inc. Kathy Levinson, one of our
directors, serves as president and chief operating officer of E*TRADE. Under
the agreement, if E*TRADE uses our service, it has agreed to pay us a monthly
service fee based upon applicable dollar volumes.
Indebtedness of Management. From April 1999 to March 2000, we made loans to
the following officers and directors:
<TABLE>
<CAPTION>
Name Amount Due Date
---- -------- ----------------
<S> <C> <C>
David Hannebrink................................... $ 13,520 April 15, 2001
Hagi Schwartz...................................... 300,000 October 8, 2004
David Hannebrink................................... 100,000 November 1, 2000
Kevin Akeroyd...................................... 49,900 January 3, 2005
Raymond Martinelli................................. 59,925 January 3, 2005
Timothy Moore...................................... 641,250 January 3, 2005
Steven Baloff...................................... 61,475 January 15, 2005
David Hannebrink................................... 100,000 January 15, 2002
Robert Shaw........................................ 674,730 January 15, 2005
Hagi Schwartz...................................... 64,990 February 4, 2005
Edward Barr........................................ 237,475 March 15, 2005
</TABLE>
Each loan was made under a promissory note secured by a pledge of early
exercised common shares. The notes bear interest at between 6% and 6.8% per
year.
Stock Options. Stock option grants to our executive officers and directors
are described in this prospectus under the captions "Management--Director
Compensation" and "--Executive Compensation."
Management Rights. In November 1999, we entered into a management rights
letter agreement with MeriTech Capital, a holder of 6.0% of our common stock.
Under the terms of the letter agreement, MeriTech is entitled to consult with
and advise us on significant business issues and to attend all board meetings
in a non-voting observer capacity.
Executive Employment Arrangements. In October 1999, we entered into an
employment offer letter with Hagi Schwartz, our Vice President of Finance and
Chief Financial Officer. In January 2000, we entered into employment offer
letters with Robert Shaw, our Senior Vice President of Sales, and Timothy
Moore, our Vice President of Strategic Alliances and General Counsel.
See "Management--Employment Arrangements."
Indemnification Agreements. We intend to enter into indemnification
agreements with our directors and executive officers for the indemnification of
these persons to the full extent permitted by law. We also intend to execute
these agreements with our future directors and officers.
63
<PAGE>
PRINCIPAL STOCKHOLDERS
The following table sets forth certain information with respect to the
beneficial ownership of our outstanding common stock as of April 4, 2000, and
as adjusted to reflect the sale of our common stock in this offering, by:
. our Chief Executive Officer and each of our four other most highly
compensated executive officers;
. each director;
. each stockholder who is known by us to own beneficially 5% or more of any
class of our voting securities; and
. all directors and executive officers as a group.
Percentage of ownership in the following table is calculated based on
33,602,173 shares of common stock outstanding as of April 4, 2000 and
37,602,173 shares of common stock outstanding after completion of this
offering.
Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission. In computing the number of shares
beneficially owned by a person and the percentage ownership of that person,
shares of common stock subject to options held by that person that are
currently exercisable or exercisable within 60 days of April 4, 2000 are deemed
outstanding. Those shares, however, are not deemed outstanding for the purposes
of computing the percentage ownership of each other person. Except as indicated
in the footnotes to the table, the persons named in the table have sole voting
and investment power with respect to all shares of common stock shown as
beneficially owned by them, subject to community property laws where
applicable. Unless otherwise indicated, the address of each of the individuals
named above is: 3401 Hillview Avenue, Palo Alto, CA 94304.
<TABLE>
<CAPTION>
Beneficial Ownership
--------------------------------------------------------------
Number of
Options or Shares
Warrants NOOSH may
Exercisable Repurchase
Within Within Percent
60 Days of 60 Days of -----------------
Name and Address of Number of April 4, April 4, Before After
Beneficial Owner Shares(1) 2000 2000(2) Total Offering Offering
- ------------------- ---------- ----------- ---------- ---------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Ofer Ben-Shachar(3)..... 6,120,977 -- 1,185,147 7,306,124 21.7% 19.4%
Kevin Akeroyd........... -- -- 100,000 100,000 * *
David Hannebrink........ 142,039 -- 277,334 436,706 1.3 1.2
Hagi Schwartz........... 14,546 -- 310,000 324,546 * *
Lawrence Slotnick....... -- -- 341,667 450,000 1.3 1.2
Steven Baloff(4)........ 3,078,094 -- 15,973 3,095,456 9.2 8.2
Edward Barr............. -- -- 23,612 25,000 * *
Arthur Patterson(5)..... 7,160,464 108,333 -- 7,268,797 21.6 19.3
Kathy Levinson(6)....... 95,543 -- 83,334 178,877 * *
Accel Partners(5)....... 7,160,464 -- -- 7,160,464 21.3 19.0
Advanced Technology
Ventures(4)............ 3,070,456 -- -- 3,070,456 9.1 8.2
MeriTech Capital(7)..... 2,013,423 -- -- 2,013,423 6.0 5.4
R.R. Donnelley & Sons
Company................ 1,272,727 961,308 -- 2,234,035 6.5 5.8
All directors and
executive officers as a
group (13 persons)(8).. 16,817,595 108,333 3,098,002 20,032,226 59.4% 53.1
</TABLE>
64
<PAGE>
- --------
* Less than 1% of the outstanding shares of common stock.
(1) Excludes shares of common stock subject to a right of repurchase within 60
days of April 4, 2000.
(2) The unvested portion of the shares of common stock is subject to a right of
repurchase, at the original option price, in the event the holder ceases to
provide services to Noosh and its affiliates or upon a change of control of
NOOSH. The option exercise prices range from $0.0325 to $9.50.
(3) Does not include 3,983,500 shares held by the Ben-Shachar Family Generation
Skipping Trust. Mr. Ben-Shachar has no voting or investment power with
respect to the shares and, therefore, does not have beneficial ownership of
the shares.
(4) Includes 2,975,187 shares held by Advanced Technology Ventures V, L.P., and
95,269 shares held by ATV Entrepreneurs V, L.P. Advanced Technology
Ventures is located at 485 Ramona Street, Suite 200, Palo Alto, CA 94301.
Mr. Baloff is a general partner of Advanced Technology Ventures and
disclaims beneficial ownership of these shares except to the extent of his
proportionate partnership interest in these shares.
(5) Includes 744,687 shares held by Accel Internet Fund II L.P., 494,073 shares
held by Accel Investors '98 L.P., 93,086 shares held by Accel Keiretsu VI
L.P. and 5,828,618 shares held by Accel VI L.P. Accel Partners are located
at 428 University Avenue, Palo Alto, CA 94303. Mr. Patterson is a general
partner of Accel Partners and disclaims beneficial ownership of these
shares except to the extent of his proportionate partnership interest in
these shares.
(6) Includes 78,877 shares held by Internet Experience, L.P. Internet
Experience is located at 4500 Bohannan Drive, Menlo Park, CA 94025. Ms.
Levinson is a general partner and a limited partner of Internet Experience
and disclaims beneficial ownership of these shares except to the extent of
her proportionate partnership interest in these shares.
(7) Includes, 32,215 shares held by MeriTech Capital Affiliates L.P. and
1,981,208 shares held by MeriTech Capital Partners L.P. MeriTech Capital is
located at 428 University Avenue, Palo Alto, CA 94303.
(8) Total number of shares includes 10,309,797 shares of common stock held by
entities affiliated with directors and executive officers. See footnotes 4
through 6 above.
65
<PAGE>
DESCRIPTION OF CAPITAL STOCK
Upon completion of this offering, our authorized capital stock will consist
of 75,000,000 shares of common stock, $0.001 par value, 2,600,000 shares of
Class B common stock, $0.001 par value, and 5,000,000 shares of undesignated
preferred stock, $0.001 par value. The following description of our capital
stock does not purport to be complete and is subject to, and qualified in its
entirety by, our amended and restated certificate of incorporation and bylaws,
which we have included as exhibits to the registration statement of which this
prospectus forms a part.
Common Stock and Class B Common Stock
As of April 4, 2000, there were 33,602,173 shares of capital stock
outstanding, held of record by 106 stockholders. These amounts assume the
conversion of all outstanding shares of preferred stock into common stock and
Class B common stock, based on an assumed initial public offering price of
$12.00, which is to occur upon the closing of this offering. In addition, as of
April 4, 2000, there were 4,392,538 shares of common stock subject to
outstanding options. Upon completion of this offering, there will be 37,602,173
shares of common stock and Class B common stock outstanding, assuming no
additional exercise of outstanding stock options.
Each share of common stock entitles its holder to one vote on all matters to
be voted upon by stockholders. Subject to preferences that may apply to any
outstanding preferred stock, holders of common stock may receive ratably any
dividends that the board of directors may declare out of funds legally
available for that purpose. In the event of our liquidation, dissolution or
winding up, the holders of common stock are entitled to share ratably in all
assets remaining after payment of liabilities and any liquidation preference of
preferred stock that may be outstanding. The common stock has no preemptive
rights, conversion rights or other subscription rights or redemption or sinking
fund provisions. All outstanding shares of common stock are fully paid and non-
assessable, and the shares of common stock that we will issue upon completion
of this offering will be fully paid and non-assessable.
The rights of holders of Class B common stock will be identical to the rights
of holders of common stock except that the holders of Class B common stock do
not have voting rights. Commencing on the date 90 days after this offering,
twenty-five percent of the outstanding Class B common stock may be converted
into common stock on a one-to-one basis at the option of the holder. In
addition, commencing on the earlier of April 4, 2001, 180 days after this
offering or upon our written consent, the remaining shares of Class B common
stock may be converted into shares of common stock on a one-to-one basis. There
are currently no shares of Class B common stock outstanding.
Preferred Stock
Upon the completion of the offering, each outstanding share of Series A and
Series B preferred stock will automatically convert into two shares of common
stock, each outstanding share of Series C and Series D preferred stock will
automatically convert into one share of common stock and each outstanding share
of Series E preferred stock will convert into the number of shares of Class B
common stock that is equal to $13.00 divided by the lesser of the conversion
price of the Series E preferred stock in effect immediately prior to the
automatic conversion or 85% of the initial public offering price per share.
Assuming an initial public offering price of $12.00 per share, upon completion
of this offering, each share of Series E preferred stock will convert into 1.27
shares of Class B common stock.
According to our amended and restated certificate of incorporation, our board
of directors will have the authority, without further action by the
stockholders, to issue up to 5,000,000 shares of preferred stock in one or more
series. Our board shall designate the rights, preferences, privileges
66
<PAGE>
and restrictions of the preferred stock, including dividend rights, conversion
rights, voting rights, terms of redemption, liquidation preference, sinking
fund terms and number of shares constituting any series or the designation of
any series. The issuance of preferred stock could have the effect of
restricting dividends on the common stock, diluting the voting power of the
common stock, impairing the liquidation rights of the common stock or delaying
or preventing a change in control without further action by the stockholders.
We have no present plans to issue any shares of preferred stock after the
completion of this offering.
Warrants
As of April 4, 2000, we had outstanding the following warrants:
. A warrant to purchase 270,000 shares of common stock, of which a total of
140,000 shares is immediately exercisable. Of these 140,000 shares, the
right to purchase 35,000 shares will terminate upon the closing of this
offering. An additional 35,000 shares are exercisable on December 31, 2000
or earlier if stated volume targets for business conducted over our service
are met. The remaining portion of the warrant becomes exercisable in
increments only upon the holder meeting stated volume targets. The exercise
price for the warrant ranges from $7.45 per share to the fair market value
of our common stock on the date the volume targets are met. This warrant
expires in December 2002.
. A warrant to purchase 225,000 shares of common stock, of which a total of
75,000 shares is immediately exercisable. The remaining portion of the
warrant becomes exercisable in increments upon the holder meeting stated
volume targets. The exercise price for the warrant ranges from $11.00 per
share to the fair market value of our common stock at the end of the
calendar quarter that the stated volume target is met. This warrant expires
in December 2002.
. Two warrants to purchase a total of 2,780,158 shares of common stock at an
exercise price of $11.00 per share. A portion of the warrants, for a total
of 961,308 shares of common stock, is immediately exercisable. The remaining
portions of the warrants become exercisable in increments upon the holder
meeting stated volume targets. These warrants expire in January 2003.
. A warrant to purchase 50,000 shares of common stock at an exercise price of
$11.00. The entire warrant becomes exercisable upon the holder meeting
stated volume requirements. This warrant expires in January 2003.
. A warrant to purchase 100,000 shares of common stock. The warrant becomes
exercisable in increments one year from the date of grant and only to the
extent the holder meets stated volume targets. The exercise price for the
warrant ranges from the initial public offering price per share to the fair
market value of our common stock as of the end of the calendar quarter
during which the stated volume targets are met. This warrant expires in
February 2003.
. A warrant to purchase 10,000 shares of common stock. The entire warrant
becomes exercisable one year from the date of grant and only if the holder
meets a target for the conduct of business over our service. The exercise
price will be the initial public offering price per share. This warrant
expires in February 2003.
. A warrant to purchase 958,400 shares of capital stock at an initial exercise
price of $13.00 per share. A portion of the warrant, for a total of 432,000
shares of capital stock, is immediately exercisable. The remaining portion
of the warrant becomes exercisable in increments upon the holder meeting
stated targets. Initially, the warrant is exercisable for Class B common
stock. At the option of the holder, on the date 90 days after this offering,
a portion of the warrant will become exercisable for common stock. In
addition, on the earlier of April 4, 2001 or the date 180 days after this
offering, the remainder of the warrant will become exercisable for common
stock. This warrant expires in April 2004.
67
<PAGE>
Each of the warrants contains provisions for the adjustment of the exercise
prices and the aggregate number of shares that may be issued upon exercise of
the warrants in the event of a stock split, stock dividend, reorganization,
reclassification or consolidation. In addition, the warrant that is initially
exercisable for Class B common stock provides that the exercise price will
adjust upon the closing of this offering to a price equal to the lesser of
$13.00 or the conversion price of the Series E preferred stock in effect
immediately prior to its automatic conversion into Class B common stock upon
completion of this offering. In addition, each warrant allows for cashless
exercise.
Registration Rights
The holders of 21,989,137 shares of the common stock currently outstanding or
issued or issuable upon conversion of the preferred stock and Class B common
stock, R.R. Donnelley, with respect to 2,780,158 shares of common stock
issuable upon conversion of the warrants issued to it, and GE Capital Equity
Investments, with respect to 958,400 shares of common stock issuable upon
conversion of the Class B common stock issuable upon conversion of the warrant
issued to it, are entitled to require us to register the sales of their shares
under the Securities Act, under the terms of an agreement between us and the
holders of these securities. Subject to limitations specified in the agreement,
these registration rights include the following:
. two demand registration rights that holders may exercise no sooner than 180
days after our initial public offering, which require us to register the
sale of a holder's shares, subject to the discretion of our board of
directors to delay the registration;
. an unlimited number of registration rights that require us to register sales
of a holder's shares when we undertake a public offering, subject to the
discretion of the managing underwriter of the offering to decrease the
amount that holders may register; and
. an unlimited number of rights to require us to register sales of shares on
Form S-3, a short form of registration statement permitted to be used by
some companies, which holders may exercise if they request registration of
the sale of more than $750,000 of common stock following the time we first
qualify for the use of this form of registration with the Securities and
Exchange Commission.
In addition, the holders of 8,000,000 shares of the common stock that will be
outstanding after this offering are entitled to the same piggyback and Form S-3
registration rights listed above.
We will bear all registration expenses if these registration rights are
exercised, other than underwriting discounts and commissions. These
registration rights terminate as to a holder's shares when that holder may sell
those shares under Rule 144(k) of the Securities Act, which for most parties
means two years after the acquisition of the shares from us.
Anti-Takeover Provisions
Delaware Law
We are subject to Section 203 of the Delaware General Corporation Law, which
regulates acquisitions of some Delaware corporations. In general, Section 203
prohibits a publicly held Delaware corporation from engaging in a business
combination with an interested stockholder for a period of three years
following the date the person becomes an interested stockholder, unless:
. our board of directors approved the business combination or the transaction
in which the person became an interested stockholder prior to the date the
person attained this status;
. upon consummation of the transaction that resulted in the person becoming an
interested stockholder, the person owned at least 85% of the voting stock of
the corporation outstanding at
68
<PAGE>
the time the transaction commenced, excluding shares owned by persons who
are directors and also officers; or
. on or subsequent to the date the person became an interested stockholder,
our board of directors approved the business combination and the
stockholders other than the interested stockholder authorized the
transaction at an annual or special meeting of stockholders.
Section 203 defines a "business combination" to include:
. any merger or consolidation involving the corporation and the interested
stockholder;
. any sale, transfer, pledge or other disposition involving the interested
stockholder of 10% or more of the assets of the corporation;
. in general, any transaction that results in the issuance or transfer by the
corporation of any stock of the corporation to the interested stockholder;
or
. the receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided by or
through the corporation.
In general, Section 203 defines an "interested stockholder" as any person
who, together with the person's affiliates and associates, owns, or within
three years prior to the determination of interested stockholder status did
own, 15% or more of a corporation's voting stock.
Certificate of Incorporation and Bylaw Provisions
Our amended and restated certificate of incorporation and bylaws, to be
effective upon the closing of this offering, divide our board into three
classes as nearly equal in size as possible, with each class serving a three-
year term. The terms are staggered, so that one-third of the board is to be
elected each year. The classification of our board could have the effect of
making it more difficult than otherwise for a third party to acquire control
of us, because it would typically take more than a year for our stockholders
to elect a majority of our board. In addition, our amended and restated
certificate of incorporation and bylaws will provide that any action required
or permitted to be taken by our stockholders at an annual or special meeting
may be taken only if it is properly brought before the meeting, and may not be
taken by written consent in lieu of a meeting. The bylaws will also provide
that special meetings of the stockholders may be called only by our board of
directors, our Chairman of the Board or our Chief Executive Officer. Under our
bylaws, stockholders wishing to propose business to be brought before a
meeting of stockholders will be required to comply with various advance notice
requirements. Finally, our amended and restated certificate of incorporation
and bylaws will not permit stockholders to take any action without a meeting.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock
Transfer & Trust Company. The transfer agent's address is 40 Wall Street, 46th
Floor, New York, New York, 10005.
69
<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Prior to this offering, there has been no market for our common stock. Future
sales of substantial amounts of our common stock in the public market could
adversely affect prevailing market prices. Sales of substantial amounts of our
common stock in the public market after any restrictions on sale lapse could
adversely affect the prevailing market price of the common stock and impair our
ability to raise equity capital in the future.
Upon completion of the offering, we will have 37,602,173 outstanding shares
of common stock, outstanding options to purchase 4,392,538 shares of common
stock and outstanding warrants to purchase 4,358,558 shares of common stock and
Class B common stock, assuming no additional option or warrant grants or
exercises after April 4, 2000. We expect that the 4,000,000 shares sold in this
offering, plus any shares issued upon exercise of the underwriters' over-
allotment option, will be freely tradable without restriction under the
Securities Act, unless purchased by our "affiliates" as that term is defined in
Rule 144 under the Securities Act. In general, affiliates include officers,
directors and 10% or greater stockholders.
The remaining 33,602,173 shares outstanding and 8,606,133 shares subject to
outstanding options and warrants are "restricted securities" within the meaning
of Rule 144. Restricted securities may be sold in the public market only if the
sale is registered or if it qualifies for an exemption from registration, such
as under Rule 144, 144(k) or 701 promulgated under the Securities Act, which
are summarized below. Sales of restricted securities in the public market, or
the availability of such shares for sale, could adversely affect the market
price of the common stock.
As a result of contractual restrictions described below and the provisions of
Rules 144, 144(k) and 701, the restricted shares will be available for sale in
the public market as follows:
. Beginning 180 days after the effective date, 20,106,997 shares will be
eligible for sale pursuant to Rule 144, Rule 144(k) and Rule 701.
. Beginning in November 2000, the remaining 13,495,176 shares will be eligible
for sale under Rule 144, Rule 144(k) or Rule 701 once they have been held
for the required period of time.
Additionally, of the 4,392,538 shares that may be issued upon the exercise of
outstanding options as of April 4, 2000, approximately 2,416,264 shares will be
vested and eligible for sale beginning 180 days after the effective date. As of
April 4, 2000, warrants for 1,573,308 shares of common stock and Class B common
stock were exercisable and warrants for an additional 2,785,250 shares of
common stock and Class B common stock may become exercisable in the future
based on the holders meeting stated volume targets for business conducted over
our service. If exercised, the earliest that these shares will be eligible for
sale under Rule 144 is December 2000.
Lock-Up Agreements
Our directors, officers, employees and other stockholders, who together hold
all of our securities, have entered into lock-up agreements in connection with
this offering or are locked up under agreements with us. These lock-up
agreements generally provide that these holders will not offer, sell, contract
to sell, grant any option to purchase or otherwise dispose of our common stock
or any securities exercisable for or convertible into our common stock owned by
them for a period of 180 days after the date of this prospectus without the
prior written consent of Goldman, Sachs & Co. Notwithstanding possible earlier
eligibility for sale under the provisions of Rules 144, 144(k) and 701, shares
subject to lock-up agreements may not be sold until these agreements expire or
are waived by Goldman, Sachs & Co.
70
<PAGE>
Rule 144
In general, under Rule 144 as currently in effect, after the expiration of
the lock-up agreements, a person who has beneficially owned restricted
securities for at least one year would be entitled to sell within any three-
month period a number of shares that does not exceed the greater of:
. one percent of the number of shares of common stock then outstanding, which
will equal approximately 373,910 shares immediately after this offering; and
. the average weekly trading volume of our common stock during the four
calendar weeks preceding the sale.
Sales under Rule 144 are also subject to requirements with respect to manner
of sale, notice and the availability of current public information about us.
Rule 144(k)
Under Rule 144(k), a person who is not deemed to have been our affiliate at
any time during the three months preceding a sale, and who has beneficially
owned the shares proposed to be sold for at least two years, may sell these
shares without complying with the manner of sale, public information, volume
limitation or notice requirements of Rule 144.
Rule 701
Rule 701, as currently in effect, permits our employees, officers, directors
or consultants who purchased shares pursuant to a written compensatory plan or
contract to resell such shares in reliance upon Rule 144, but without
compliance with certain restrictions. Rule 701 provides that affiliates may
sell their Rule 701 shares under Rule 144 90 days after effectiveness without
complying with the holding period requirement and that non-affiliates may sell
such shares in reliance on Rule 144 90 days after effectiveness without
complying with the holding period, public information, volume limitation or
notice requirements of Rule 144.
Registration Rights
On the date 180 days after the completion of this offering, the holders of
29,989,137 shares of our common stock will have rights to require us to
register their shares under the Securities Act. Upon the effectiveness of a
registration statement covering these shares, the shares would become freely
tradable.
Stock Options
We intend to file a registration statement under the Securities Act after the
effective date of this offering to register shares to be issued pursuant to our
employee benefit plans. As a result, any options or rights exercised under the
1998 equity incentive plan, the 2000 equity incentive plan, the 2000 employee
stock purchase plan and the 2000 non-employee directors' stock option plan will
also be freely tradable in the public market. However, shares held by
affiliates will still be subject to the volume limitation, manner of sale,
notice and public information requirements of Rule 144, unless otherwise
resalable under Rule 701. As of April 4, 2000 options to purchase 4,392,538
shares of common stock were outstanding, of which options to purchase 1,111,379
shares were vested and exercisable. In addition, as of that date, we had
reserved 217,412 shares for possible future issuance under our 1998 equity
incentive plan, and an aggregate of 6,950,000 shares for possible future
issuance under our 2000 equity incentive plan, 2000 employee stock purchase
plan and 2000 non-employee directors' stock option plan.
71
<PAGE>
UNDERWRITING
NOOSH and the underwriters named below have entered into an underwriting
agreement with respect to the shares being offered. Subject to certain
conditions, each underwriter has severally agreed to purchase the number of
shares indicated in the following table. Goldman, Sachs & Co., FleetBoston
Robertson Stephens Inc., Banc of America Securities LLC, PaineWebber
Incorporated and E*OFFERING Corp. are the representatives of the underwriters.
<TABLE>
<CAPTION>
Number of
Underwriters Shares
------------ ---------
<S> <C>
Goldman, Sachs & Co. ..............................................
FleetBoston Robertson Stephens Inc. ...............................
Banc of America Securities LLC.....................................
PaineWebber Incorporated...........................................
E*OFFERING Corp. ..................................................
-----
Total............................................................
=====
</TABLE>
If the underwriters sell more shares than the total number set forth in the
table above, the underwriters have an option to buy up to an additional 600,000
shares from NOOSH to cover such sales. They may exercise that option for 30
days. If any shares are purchased pursuant to this option, the underwriters
will severally purchase shares in the same proportion as set forth in the table
above.
The following table shows the per share and total underwriting discounts and
commissions to be paid to the underwriters by NOOSH which are expected to be a
negotiated percentage of the initial public offering price. Such amounts are
shown assuming both no exercise and full exercise of the underwriters' option
to purchase 600,000 additional shares.
Paid by NOOSH
<TABLE>
<CAPTION>
No Full
Exercise Exercise
-------- --------
<S> <C> <C>
Per Share.................................................. $ $
Total...................................................... $ $
</TABLE>
Shares sold by the underwriters to the public will initially be offered at
the initial public offering price set forth on the cover of this prospectus.
Any shares sold by the underwriters to securities dealers may be sold at a
discount of up to $ per share from the initial public offering price. Any
such securities dealers may resell any shares purchased from the underwriters
to certain other brokers or dealers at a discount of up to $ per share from
the initial public offering price. If all the shares are not sold at the
initial public offering price, the representatives may change the offering
price and the other selling terms.
NOOSH and its directors, officers, employees and other stockholders have
agreed with the underwriters, except under limited circumstances, not to offer,
sell, contract to sell, grant any option to purchase or otherwise dispose of
our common stock or any securities exercisable for or convertible into our
common stock owned by them for a period of 180 days after the date of this
prospectus without the prior written consent of Goldman, Sachs & Co. See
"Shares Eligible for Future Sale" for a discussion of transfer restrictions.
72
<PAGE>
Prior to this offering, there has been no public market for the common stock.
The initial public offering price for the common stock has been negotiated
among NOOSH and the representatives of the underwriters. Among the primary
factors considered in determining the initial public offering price of the
shares, in addition to prevailing market conditions, were NOOSH's historical
performance, estimates of NOOSH's business potential and earnings prospects, an
assessment of Noosh's management and the consideration of the above factors in
relation to market valuation of companies in related businesses.
NOOSH has applied to have its common stock listed for quotation on the Nasdaq
National Market under the symbol "NOSH."
In connection with the offering, the underwriters may purchase and sell
shares of common stock in the open market. These transactions may include short
sales, stabilizing transactions and purchases to cover positions created by
short sales. Short sales involve the sale by the underwriters of a greater
number of shares than they are required to purchase in the offering.
Stabilizing transactions consist of certain bids or purchases made for the
purpose of preventing or retarding a decline in the market price of the common
stock while the offering is in progress.
The underwriters may also impose a penalty bid. This occurs when a particular
underwriter repays to the underwriters a portion of the underwriting discount
received by it because the representatives have repurchased shares sold by or
for the account of such underwriter in stabilizing or short-sale covering
transactions.
These activities by the underwriters may stabilize, maintain or otherwise
affect the market price of the common stock. As a result, the price of the
common stock may be higher than the price that otherwise might exist in the
open market. If these activities are commenced, they may be discontinued by the
underwriters at any time. These transactions may be effected on The Nasdaq
National Market, in the over-the-counter market or otherwise.
The underwriters do not expect sales to discretionary accounts to exceed five
percent of the total number of shares offered.
The underwriters have reserved for sale, at the initial public offering
price, up to 600,000 shares or 15%, of the common stock offered hereby for
print vendors, print buyers, professional service providers, consultants and
other business partners designated by NOOSH who have expressed an interest in
purchasing such shares of common stock in the offering. The number of shares
available for sale to the general public will be reduced to the extent such
persons purchase such reserved shares. Any reserved shares not so purchased
will be offered by the underwriters to the general public on the same basis as
other shares offered hereby. These shares are not subject to lock-up agreements
with the underwriters.
A prospectus in electronic format may be made available on the web sites
maintained by one or more underwriters or securities dealers. The
representatives of the underwriters may agree to allocate a number of shares to
underwriters for sale to their online brokerage account holders. Internet
distribution will be allocated by the representatives to underwriters that may
make Internet distributions on the same basis as other allocations. In
addition, shares may be sold by the underwriters to securities dealers who
resell shares to online brokerage account holders.
NOOSH estimates that the total expenses of the offering, excluding
underwriting discounts and commissions, will be approximately $1,200,000. These
expenses include approximately $22,000 for the SEC and NASD filing fees,
$95,000 for the Nasdaq National Market application fee, $20,000 for blue sky
expenses, $250,000 for printing, $750,000 for legal and accounting fees and
expenses, and $15,000 for transfer agent fees.
NOOSH has agreed to indemnify the underwriters against certain liabilities,
including liabilities under the Securities Act of 1933.
73
<PAGE>
VALIDITY OF COMMON STOCK
The validity of the common stock offered hereby will be passed upon for NOOSH
by Cooley Godward LLP, Palo Alto, California and for the underwriters by
Sullivan & Cromwell, Los Angeles, California. As of the date of this
prospectus, Cooley Godward LLP, together with certain investment funds
affiliated with the firm, own an aggregate of 120,834 shares of our common
stock.
EXPERTS
The financial statements as of December 31, 1998 and 1999 included in this
prospectus have been audited by PricewaterhouseCoopers LLP, independent
accountants, as stated in their report appearing herein, and have been so
included in reliance upon the report of such firm given upon their authority as
experts in accounting and auditing.
ADDITIONAL INFORMATION
We have filed with the Securities and Exchange Commission a registration
statement on Form S-1 under the Securities Act with respect to the common stock
offered in this offering. This prospectus does not contain all of the
information set forth in the registration statement and the exhibits and
schedule thereto. For further information with respect to us and the common
stock offered in this offering, we refer you to the registration statement and
to the attached exhibits and schedules. Statements made in this prospectus
concerning the contents of any document referred to in this prospectus are not
necessarily complete. With respect to each such document filed as an exhibit to
the registration statement, we refer you to the exhibit for a more complete
description of the matter involved.
The reports and other information we file with the SEC can be inspected and
copied at the public reference facilities that the SEC maintains at Room 1024,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the SEC's regional
offices located at 7 World Trade Center, 13th Floor, New York, New York 10048,
and Suite 140, Citicorp Center, 50 West Madison Street, Chicago, Illinois
60661. Copies of these materials can be obtained at prescribed rates from the
Public Reference Section of the SEC at the principal offices of the SEC, 450
Fifth Street, N.W., Washington, D.C. 20549. You may obtain information
regarding the operation of the public reference room by calling 1(800) SEC-
0330. The SEC also maintains a web site (http://www.sec.gov) that makes
available the reports and other information we have filed with the SEC.
74
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
INDEX TO FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Report of Independent Accountants........................................ F-2
Balance Sheets as of December 31, 1998 and 1999 and March 31, 2000
(unaudited)............................................................. F-3
Statements of Operations for the period from inception to December 31,
1998, Year ended December 31, 1999, and the period from inception to
December 31, 1999, the three month period ended March 31, 1999
(unaudited) and 2000 (unaudited), and the period from inception to March
31, 2000 (unaudited).................................................... F-4
Statements of Stockholders' Equity for the period from inception to March
31, 2000 (unaudited).................................................... F-5
Statements of Cash Flows for the period from inception to December 31,
1998, Year ended December 31, 1999, and the period from inception to
December 31, 1999, the three month period ended March 31, 1999
(unaudited) and 2000 (unaudited), and the period from inception to March
31, 2000 (unaudited).................................................... F-7
Notes to Financial Statements............................................ F-8
</TABLE>
F-1
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and stockholders of
NOOSH, Inc.
In our opinion, the accompanying balance sheets and the related statements of
operations, changes in stockholders' equity and cash flow present fairly, in
all material respects, the financial position of NOOSH, Inc. (a company in the
development stage) at December 31, 1998 and 1999 and the results of its
operations and cash flows for the period from August 3, 1998 (date of
inception) to December 31, 1998 and the year ended December 31, 1999, in
conformity with generally accepted accounting principles in the United States.
These financial statements are the responsibility of the Company's management;
our responsibility is to express an opinion on these financial statements based
on our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards in the United States which require that
we plan and perform the audit to obtain reasonable assurance about whether the
financial statements are free of material misstatement. An audit includes
examining, on a test basis, evidence supporting the amounts and disclosures in
the financial statements, assessing the accounting principles used and
significant estimates made by management, and evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for the opinion expressed above.
PricewaterhouseCoopers LLP
San Jose, California
January 21, 2000
F-2
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
BALANCE SHEETS
(in thousands, except share data)
<TABLE>
<CAPTION>
Pro Forma at
December 31, December 31, March 31, March 31,
1998 1999 2000 2000
------------ ------------ ----------- ------------
(Unaudited) (Unaudited)
<S> <C> <C> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents.. $1,117 $ 48,349 $ 48,917 $ 58,917
Prepaid expenses and other
current assets............ 26 947 2,194
------ -------- --------
Total current assets..... 1,143 49,296 51,111
Property and equipment,
net........................ 69 3,339 4,640
Other assets................ 27 394 576
------ -------- --------
Total assets............. $1,239 $ 53,029 $ 56,327
====== ======== ========
LIABILITIES AND
STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable........... $ 109 $ 634 $ 463
Accrued liabilities........ 132 1,424 1,572
------ -------- --------
Total current
liabilities............. 241 2,058 2,035
Long-term debt.............. -- 79 79
------ -------- --------
Total liabilities........ 241 2,137 2,114
------ -------- --------
Commitments (Note 4)
Stockholders' equity:
Convertible Preferred
Stock: $0.001 par value;
Series A, Authorized:
2,023,077 shares
Issued and outstanding:
2,023,077 shares at
December 31, 1998,
December 31, 1999 and
March 31, 2000
(unaudited)............... 2 2 2 --
Series B, Authorized:
4,363,637 shares
Issued and outstanding:
4,363,637 shares at
December 31, 1999 and
March 31, 2000
(unaudited)............... -- 4 4 --
Series C, Authorized:
6,809,135 shares
Issued and outstanding:
6,809,135 shares at
December 31, 1999 and
March 31, 2000
(unaudited)............... -- 7 7 --
Series D, Authorized:
2,000,000 shares
Issued and outstanding:
1,418,182 shares at March
31, 2000 (unaudited)...... -- -- 1 --
Common Stock: $0.001 par
value; Authorized:
45,000,000 shares actual;
Issued and outstanding:
8,040,000, 9,414,673 and
11,581,078 at
December 31,1998,
December 31, 1999 and
March 31, 2000
(unaudited) shares actual
and 33,562,215 shares pro
forma..................... 8 9 11 32
Additional paid-in
capital................... 1,431 84,525 121,036 131,029
Deferred stock
compensation.............. (129) (15,379) (25,171) (25,171)
Notes receivable from
common stockholders....... -- (314) (3,041) (3,041)
Deficit accumulated during
the development stage..... (314) (17,962) (38,636) (38,636)
------ -------- -------- --------
Total Stockholders'
equity.................. 998 50,892 54,213 $ 64,213
------ -------- -------- ========
Total liabilities and
Stockholders' equity.. $1,239 $ 53,029 $ 56,327
====== ======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-3
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
STATEMENTS OF OPERATIONS
(in thousands, except share and per share data)
<TABLE>
<CAPTION>
Period from Period from
August 3, August 3,
1998 (date 1998 (date Period from
of of August 3,
inception) inception) Three Months Ended 1998 (date of
to Year Ended to March 31, inception) to
December 31, December 31, December 31, ------------------------ March 31,
1998 1999 1999 1999 2000 2000
------------ ------------ ------------ ----------- ----------- -------------
(Unaudited) (Unaudited) (Unaudited)
<S> <C> <C> <C> <C> <C> <C>
Revenue................. $ -- $ -- $ -- $ -- $ 68 $ 68
Cost of revenue......... -- -- -- -- 141 141
---------- ---------- ---------- ---------- ---------- ---------
Gross profit............ -- -- -- -- (73) (73)
Operating expenses:
Research and
development
(exclusive of non-
cash compensation
expense of $771, $17
(unaudited) and $718
(unaudited) in the
year ended
December 31, 1999,
and the three months
periods ended
March 31, 1999 and
2000, respectively,
reported below)....... 111 3,053 3,164 273 2,039 5,203
Sales and marketing
(exclusive of non-
cash compensation
expenses of $984, $18
(unaudited) and
$2,266 (unaudited) in
the year ended
December 31, 1999,
and the three months
periods ended
March 31, 1999 and
2000, respectively
and value of warrants
granted of $1,468 and
$3,914 (unaudited) in
the year ended
December 31, 1999,
and the three months
period ended
March 31, 2000,
respectively reported
below)................ 96 9,412 9,508 300 9,979 19,487
Value of warrants
granted in connection
with marketing
agreements............ -- 1,468 1,468 -- 3,914 5,382
General and
administrative
(exclusive of non-
cash compensation
expense of $813, $1
(unaudited) and
$1,289 (unaudited) in
the year ended
December 31, 1999,
and the three months
periods ended
March 31, 1999 and
2000, respectively,
reported below) ...... 107 1,795 1,902 128 1,197 3,099
Amortization of
deferred stock
compensation.......... -- 2,568 2,568 36 4,273 6,841
---------- ---------- ---------- ---------- ---------- ---------
Total operating
expenses............ 314 18,296 18,610 737 21,402 40,012
---------- ---------- ---------- ---------- ---------- ---------
Loss from operations.... (314) (18,296) (18,610) (737) (21,475) (40,085)
Interest income, net.... -- 648 648 4 801 1,449
---------- ---------- ---------- ---------- ---------- ---------
Net loss................ $ (314) $ (17,648) $ (17,962) $ (733) $ (20,674) (38,636)
========== ========== ========== ========== ========== =========
Net loss per share--
basic and diluted...... $ (0.12) $ (4.13) $ (4.77) $ (0.22) $ (3.91) $(7.76)
========== ========== ========== ========== ========== =========
Shares used in per share
calculation--basic and
diluted................ 2,521,485 4,275,090 3,763,399 3,405,069 5,292,410 4,978,794
========== ========== ========== ========== ========== =========
Pro forma net loss per
share--basic and
diluted................ $ (1.15) $ (0.79)
========== ==========
Shares used in pro forma
net loss per share--
basic and diluted...... 15,356,918 26,025,280
========== ==========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-4
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
STATEMENTS OF STOCKHOLDERS' EQUITY
(in thousands, except share data)
<TABLE>
<CAPTION>
Deficit
Convertible Notes Accumulated
Preferred Shares Common Stock Additional Receivable Deferred During the Total
----------------- ---------------- Paid-In from Common Stock Development Stockholders'
Shares Amount Shares Amount Capital Shareholders Compensation Stage Equity
---------- ------ --------- ------ ---------- ------------ ------------ ----------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Issuance of common
stock to founders in
August 1998 at
$0.00125 per share,
net................. -- $ -- 8,040,000 $ 8 $ 1 $ -- $ -- $ -- $ 9
Issuance of Series A
Convertible
Preferred Stock at
$0.65 per share in
November 1998, net
of issuance costs... 2,023,077 2 -- -- 1,301 -- -- -- 1,303
Deferred stock
compensation........ -- -- -- -- 129 -- (129) -- --
Net loss............. -- -- -- -- -- -- -- (314) (314)
---------- ---- --------- --- ------ ----- ------- ------- --------
Balances at December
31, 1998............ 2,023,077 2 8,040,000 8 1,431 -- (129) (314) 998
Issuance of common
stock............... -- -- 1,200,220 1 497 (314) -- -- 184
Issuance of common
stock in connection
with services
rendered............ -- -- 174,453 -- 700 -- -- -- 700
Issuance of Series B
Convertible
Preferred Stock at
$2.75 per share in
April 1999, net of
issuance costs...... 4,363,637 4 -- -- 11,955 -- -- -- 11,959
Issuance of Series C
Convertible
Preferred Stock at
$7.45 per share in
November 1999, net
of issuance costs... 6,809,135 7 -- -- 50,656 -- -- -- 50,663
Value of warrants
granted in
connection with
marketing
agreements.......... -- -- -- -- 1,468 -- -- -- 1,468
Deferred stock
compensation........ -- -- -- -- 17,818 -- (17,818) -- --
Amortization of
deferred stock
compensation........ -- -- -- -- -- -- 2,568 -- 2,568
Net loss............. -- -- -- -- -- -- -- (17,648) (17,648)
---------- ---- --------- --- ------ ----- ------- ------- --------
Balances at December
31, 1999............ 13,195,849 13 9,414,673 9 84,525 (314) (15,379) (17,962) 50,892
</TABLE>
F-5
<PAGE>
<TABLE>
<CAPTION>
Deficit
Convertible Notes Accumulated
Preferred Shares Common Stock Additional Receivable Deferred During the Total
----------------- ----------------- Paid-In from Common Stock Development Stockholders'
Shares Amount Shares Amount Capital Shareholders Compensation Stage Equity
---------- ------ ---------- ------ ---------- ------------ ------------ ----------- -------------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Issuance of common
stock............... -- -- 2,146,519 2 2,740 (2,727) -- -- 15
Issuance of common
stock in connection
with services
rendered............ -- -- 19,886 -- 219 -- -- -- 219
Value of warrants
granted in
connection with
marketing
agreements.......... -- -- -- -- 3,914 -- -- -- 3,914
Issuance of Series D
Convertible
Preferred Stock at
$11.00 per share in
January 2000, net of
issuance costs...... 1,418,182 1 -- -- 15,573 -- -- -- 15,574
Deferred stock
compensation........ -- -- -- -- 14,065 -- (14,065) -- --
Amortization of
deferred stock
compensation........ -- -- -- -- -- -- 4,273 -- 4,273
Net loss............ -- -- -- -- -- -- -- (20,674) (20,674)
---------- --- ---------- --- -------- ------- -------- -------- -------
Balances at March
31, 2000
(unaudited)......... 14,614,031 $14 11,581,078 $11 $121,036 $(3,041) $(25,171) $(38,636) $54,213
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-6
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
STATEMENTS OF CASH FLOWS
(in thousands)
<TABLE>
<CAPTION>
Period from August Period from Period from
3, 1998 August 3, 1998 Three Months August 3, 1998
(date of inception) Year Ended (date of inception) Ended March 31, (date of inception)
to December 31, December 31, to December 31, ----------------------- to March 31,
1998 1999 1999 1999 2000 2000
------------------- ------------ ------------------- ----------- ----------- -------------------
(Unaudited) (Unaudited) (Unaudited)
<S> <C> <C> <C> <C> <C> <C>
Cash flows from
operating activities:
Net loss.............. $ (314) $(17,648) $(17,962) $ (733) $(20,674) $(38,636)
Adjustments to
reconcile net loss to
net cash used in
operating activities:
Depreciation and
amortization......... 3 455 458 12 404 862
Value of warrants
granted in connection
with marketing
agreements........... -- 1,468 1,468 -- 3,914 5,382
Amortization of
deferred stock
compensation......... -- 2,568 2,568 36 4,273 6,841
Issuance of common
stock in connection
with services
rendered............. -- 667 667 -- 219 886
Changes in assets and
liabilities: --
Prepaid expenses and
other current
assets.............. (26) (921) (947) (17) (1,247) (2,194)
Accounts payable..... 109 525 634 60 (171) 463
Accrued liabilities.. 132 1,292 1,424 (64) 148 1,572
Other long-term
assets.............. (27) (367) (394) (23) (182) (576)
------ -------- -------- ------ -------- --------
Net cash used in
operating
activities......... (123) (11,961) (12,084) (729) (13,316) (25,400)
------ -------- -------- ------ -------- --------
Cash flows from
investing activities:
Purchase of property
and equipment........ (72) (3,725) (3,797) (133) (1,705) (5,502)
------ -------- -------- ------ -------- --------
Cash flows from
financing activities:
Proceeds from issuance
of Convertible
Preferred Stock net.. 1,303 62,622 63,925 -- 15,574 79,499
Proceeds from issuance
of Common Stock,
net.................. 9 184 193 -- 15 208
Proceeds from issuance
of Common Stock in
connection with
services rendered.... -- 33 33 -- -- 33
Proceeds from long-
term debt............ -- 79 79 -- -- 79
------ -------- -------- ------ -------- --------
Net cash provided by
financing
activities......... 1,312 62,918 64,230 -- 15,589 79,819
------ -------- -------- ------ -------- --------
Net increase
(decreased) in cash
and cash equivalents.. 1,117 47,232 48,349 (862) 568 48,917
Cash and cash
equivalents at
beginning of period... -- 1,117 -- 1,117 48,349 --
------ -------- -------- ------ -------- --------
Cash and cash
equivalents at end of
period................ $1,117 $ 48,349 $ 48,349 $ 255 $ 48,917 $ 48,917
====== ======== ======== ====== ======== ========
Noncash activities:
Deferred stock
compensation......... $ 129 $ 17,818 $ 17,947 $ 218 $ 14,065 $ 32,012
====== ======== ======== ====== ======== ========
Issuance of Common
Stock for notes
receivable from
shareholder.......... $ -- $ 314 $ 314 $ -- $ 2,727 $ 3,041
====== ======== ======== ====== ======== ========
Value of warrants
granted in connection
with marketing
agreements............ $ -- $ 1,468 $ 1,468 $ -- $ 3,914 $ 5,382
====== ======== ======== ====== ======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-7
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
NOTE 1--THE COMPANY AND SIGNIFICANT ACCOUNTING POLICIES:
NOOSH, Inc. (the "Company") was incorporated in the state of California and
commenced operations on August 3, 1998. NOOSH is a provider of business-to-
business e-commerce solutions for the printing industry. The Company has
developed and operates noosh.com, an Internet-based communication and
collaboration service for managing the design, procurement and production of
print orders. The service leverages the benefits of the Internet to enable
print buyers, print vendors and other providers of related services to
communicate and collaborate efficiently through the complex, multi-step process
of completing a print order. The Company is in the development stage and since
inception has devoted substantially all of its efforts to developing its
service and raising capital.
Unaudited interim financial information
The accompanying financial statements for the three month periods ended March
31, 1999 and 2000, together with the related notes, are unaudited but include
all adjustments, consisting only of normal recurring adjustments which, in the
opinion of management, are necessary for a fair presentation, in all material
respects, of the operating results and cash flows for the period presented.
Use of estimates
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Cash and cash equivalents
The Company considers all highly liquid investments purchased with original
maturities of three months or less to be cash equivalents and are stated at
amounts that approximate fair value, based on quoted market prices. Cash
equivalents consist primarily of deposits in money market funds.
Concentration of credit risk
The Company's cash and cash equivalents are maintained at a major U.S.
financial institution. Deposits in this institution may exceed the amount of
insurance provided on such deposits.
Fair value of financial instruments
The carrying amounts of the Company's financial instruments, including cash
and cash equivalents, accounts payable and accrued liabilities approximate fair
value due to their short maturities.
F-8
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS--(Continued)
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
Property and equipment
Property and equipment are stated at cost and are depreciated on a straight-
line basis over their estimated useful lives of three to five years. Leasehold
improvements are amortized over the lesser of the useful life of the asset or
the period of the lease. Maintenance and repairs are charged to operations as
incurred.
Revenue recognition
Revenue consist of transaction fees from print vendors and is recognized upon
completion of the associated print project.
Research and development
Research and development costs are charged to operations as incurred.
Statement of Financial Accounting Standards ("SFAS") No. 86, "Accounting for
the Costs of Computer Software to be Sold, Leased or Otherwise Marketed,"
requires that certain software development costs be capitalized after
technological feasibility has been established. The Company defines
technological feasibility as the establishment of a working model. Costs
incurred subsequent to such point have been insignificant and have been
expensed.
Income taxes
The Company accounts for income taxes under the liability method whereby
deferred tax asset or liability account balances are calculated at the balance
sheet date using current tax laws and rates in effect for the year in which the
differences are expected to affect taxable income. Valuation allowances are
established when necessary to reduce deferred tax assets to the amounts
expected to be realized.
Advertising
The Company expenses advertising costs as they are incurred. Advertising
expense for the period from August 3, 1998 to December 31, 1998 and the year
ended December 31, 1999 was $0 and $272,000.
Accounting for stock compensation
The Company's stock-based compensation plan are accounted for in accordance
with Accounting Principles Board Opinion No. 25 ("APB No. 25"), "Accounting for
Stock Issued to Employees" and complies with the disclosure provisions of
Statement of Financial Accounting Standards 123 ("SFAS No. 123"), "Accounting
for Stock-Based Compensation." Under APB No. 25, compensation expense is based
on the difference, if any, on the date of the grant, between the estimated fair
value of the Company's stock and the exercise price of options to purchase that
stock.
Comprehensive income
The Company adopted Statement of Financial Accounting Standards No. 130,
"Reporting Comprehensive Income" ("SFAS No. 130"). SFAS No. 130 requires that
all items recognized under
F-9
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS--(Continued)
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
accounting standards as components of comprehensive income be reported in an
annual financial statement that is displayed with the same prominence as other
annual financial statements. The Company has no comprehensive income component
other than net loss.
Net loss per share
Basic net loss per share is computed by dividing net loss available to common
stockholders by the weighted average number of vested common shares outstanding
for the period. Diluted net loss per share is computed giving effect to all
dilutive potential common stock, including options, non vested common stock,
preferred stock and common stock warrants. Options, non vested common stock,
preferred stock and common stock warrants were not included in the computation
of diluted net loss per share in the periods reported because the effect would
be antidilutive.
Antidilutive securities not included in net loss per share calculation for
the periods:
<TABLE>
<CAPTION>
Period from Period from Period from
August 3, August 3, August 3,
1998 1998 (date 1998
(date of of (date of
inception) inception) Three Months Ended inception)
to Year Ended to March 31, to
December 31, December 31, December 31, ----------------------- March 31,
1998 1999 2000 1999 2000 2000
------------ ------------ ------------ ----------- ----------- -----------
(unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C> <C> <C>
Non vested common
stock.................. 4,814,804 4,109,338 4,109,338 4,592,576 6,502,326 6,502,326
Common stock options.... 496,720 4,521,490 4,521,490 1,446,720 5,734,365 5,734,365
Convertible Preferred
Stock.................. 2,023,077 13,195,849 13,195,849 2,023,077 14,614,031 14,614,031
Common stock warrants... -- 215,000 215,000 -- 1,176,309 1,176,309
--------- ---------- ---------- --------- ---------- ----------
7,334,601 22,041,677 22,041,677 8,062,373 28,027,031 28,027,031
========= ========== ========== ========= ========== ==========
</TABLE>
Pro forma net loss per share (unaudited)
Pro forma net loss per share for the year ended December 31, 1999 and the
three months ended March 31, 2000 is computed using the weighted average number
of common stock outstanding, including the pro forma effects of the automatic
conversion of the Company's Series A, Series B, Series C and Series D
convertible preferred stock into shares of the Company's common stock upon the
closing of the Company's initial public offering (see Note 8--Subsequent
Events) as if such conversion occurred on January 1, 1999, or at the date of
original issuance, if later. Pro forma common equivalent shares, composed of
unvested restricted common stock and incremental common shares issuable upon
the exercise of stock options, are not included in pro forma diluted net loss
per share because they would be anti-dilutive.
Pro forma balance sheet (unaudited)
Upon the closing of the Company's initial public offering, it is contemplated
that the outstanding shares of Series A, Series B, Series C and Series D
convertible preferred stock will convert into 21,000,745 shares of common stock
(see Note 8--Subsequent Events). The pro forma column
F-10
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS--(Continued)
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
reflects the receipt of net proceeds of $10.0 million upon the issuance and
sale of 769,231 shares of Series E preferred stock in April 2000 and the effect
of the conversion of Series A, Series B, Series C, Series D and Series E into
common stock.
Recent accounting pronouncement
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities," which establishes accounting and reporting
standards for derivative instruments and hedging activities and will be adopted
in the year 2000. It requires that an entity recognize all derivatives as
either assets or liabilities in the balance sheet and measure those instruments
at fair value. The Company does not expect the adoption of SFAS 133 to have a
material impact on its financial statements.
In March 1998, the American Institute of Certified Public Accountants issued
Statement of Position ("SOP") No. 98-1, "Software for Internal Use," which
provides guidance on accounting for the cost of computer software developed or
obtained for internal use. SOP No. 98-1 is effective for financial statements
for fiscal years beginning after December 15, 1998. The adoption of this SOP
did not have any significant effect on the Company's financial statements.
In December, 1999, SAB 101 was issued which summarizes the SEC's views in
applying generally accepted accounting principles to revenue recognition in
financial statements. SAB 101 is effective in the second quarter of 2000. The
Company does not expect SAB 101 to have a material effect on its financial
position, results of operation or cash flow.
In March 2000, the Financial Accounting Standards Board issued Interpretation
No. 44, "Accounting for Certain Transactions Involving Stock Compensation--an
interpretation of APB Opinion No. 25" ("FIN 44"). This Interpretation clarifies
the definition of employee for purposes of applying Accounting Practice Board
Opinion No. 25, "Accounting for Stock Issued to Employees" ("APB 25"), the
criteria for determining whether a plan qualifies as a noncompensatory plan,
the accounting consequence of various modifications to the terms of a
previously fixed stock option or award, and the accounting for an exchange of
stock compensation awards in a business combination. This Interpretation is
effective July 1, 2000, but certain conclusions in this Interpretation cover
specific events that occur after either December 15, 1998, or January 12, 2000.
The Company expects the adoption of FIN 44 will not have a material effect on
its financial statements.
NOTE 2--PROPERTY AND EQUIPMENT:
Property and equipment comprise (in thousands):
<TABLE>
<CAPTION>
December
31,
------------ March 31,
1998 1999 2000
---- ------ -----------
(Unaudited)
<S> <C> <C> <C>
Computer equipment................................... $31 $3,024 $4,457
Communication equipment.............................. 11 63 63
Leasehold improvements............................... -- 69 69
Furniture and fixtures............................... 30 641 913
--- ------ ------
72 3,797 5,502
Less: Accumulated depreciation and amortization...... (3) (458) (862)
--- ------ ------
$69 $3,339 $4,640
=== ====== ======
</TABLE>
F-11
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS--(Continued)
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
NOTE 3--INCOME TAXES:
Deferred tax assets and liabilities consist of the following (in thousands):
<TABLE>
<CAPTION>
December 31,
-------------
1998 1999
----- ------
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforwards............................... $ 24 $5,231
Accrued employee benefits...................................... 14 52
Start-up costs................................................. 95 --
Other.......................................................... 5 (35)
----- ------
Total deferred tax assets.................................... 138 5,248
Valuation allowance.............................................. (138) (5,248)
----- ------
$ -- $ --
===== ======
</TABLE>
At December 31, 1998 and 1999, the Company had approximately $150,000 and
$13,132,000 of California and federal net operating loss carryforwards which
expire between 2005 to 2019, if not utilized beforehand. Under the Tax Reform
Act of 1986, the amounts of and benefits from net operating loss carryforwards
may be impaired or limited in certain circumstances. Events which cause
limitations in the amount of net operating losses that the Company may utilize
in any one year include, but are not limited to, a cumulative ownership change
of more than 50%, as defined, in any three year period.
Due to uncertainty of realizing the benefits of the deferred tax assets, the
Company has provided a valuation allowance against the net deferred tax assets.
The difference between the Company's effective income tax rate and the
federal statutory rate is as follows (in thousands):
<TABLE>
<CAPTION>
Period from Period from
August 13, August 13,
1998 (date of 1998 (date of
inception) to Year Ended inception) to
December 31, December 31, December 31,
1998 1999 2000
------------- ------------ -------------
<S> <C> <C> <C>
Statutory tax benefit................ $(110) $(6,177) $(6,287)
Permanent differences--non-deductible
expenses............................ -- 1,674 1,674
State taxes, net of federal tax
benefit............................. (18) (995) (1,013)
Change in valuation allowance........ 138 5,110 5,248
Other................................ (10) 388 378
----- ------- -------
Net tax provision.................... $ -- $ -- $ --
===== ======= =======
</TABLE>
NOTE 4--COMMITMENTS:
Operating lease
The Company leases its facilities under non-cancelable operating lease
agreements expiring through October 2002. Under the terms of the lease, the
Company is responsible for paying common
F-12
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS--(Continued)
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
area expenses, as incurred by the lessor. Future minimum lease payments under
the non-cancelable lease as of December 31, 1999 were as follows (in
thousands):
<TABLE>
<CAPTION>
Year Ending
December 31,
------------
<S> <C>
2000............................................................ $1,679
2001............................................................ 606
2002............................................................ 102
------
Total......................................................... $2,387
======
</TABLE>
Rent expense under the operating lease totaled $19,000, $616,000 and $610,000
for the period ending December 31, 1998, the year ended December 31, 1999 and
the three months period ended March 31, 2000.
NOTE 5--STOCKHOLDERS' EQUITY:
Convertible Preferred Stock
The convertible preferred stock at December 31, 1999 comprises:
<TABLE>
<CAPTION>
Number of
Number of Shares Liquidation
Shares Issued and Value
Authorized Outstanding Per Share
---------- ----------- -----------
<S> <C> <C> <C>
Series A..................................... 2,023,077 2,023,077 $ 0.65
Series B..................................... 4,363,637 4,363,637 $ 2.75
Series C..................................... 6,809,135 6,809,135 $ 7.45
Series D..................................... 2,000,000 1,418,182 $11.00
---------- ----------
15,195,849 14,614,031
========== ==========
</TABLE>
The rights, preferences and privileges with respect to the Preferred Stock
are as follows:
Dividends
Holders of Series A, Series B, Series C and Series D Preferred Stock, in
preference to the holders of Common Stock of the Corporation, shall be entitled
to receive, when and as declared by the Board of Directors, but only out of
funds that are legally available therefor, cash dividends at the rate of eight
percent (8%) of the "Original Issue Price" per annum on each outstanding share
of Series A, Series B, Series C and Series D Preferred Stock (as adjusted for
any stock dividends, combinations, splits, recapitalizations and the like with
respect to such shares). Such dividends shall be payable only when, as and if
declared by the Board of Directors and shall be non-cumulative. No dividends
have been declared as of March 31, 2000.
Liquidation preference
Upon any liquidation, dissolution, or winding up of the Corporation,
including a merger, acquisition or sale of assets where the beneficial owners
of the Company's Common Stock and convertible preferred stock own less than 50%
of the resulting voting power of the surviving entity,
F-13
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS--(Continued)
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
whether voluntary or involuntary, before any distribution or payment shall be
made to the holders of any Common Stock, the holders of Series A, Series B,
Series C and Series D Preferred Stock shall be entitled to receive an amount
per share equal to the Original Issue Price of $0.65, $2.75, $7.45 and $11.00
plus all declared and unpaid dividends. In the event funds are insufficient to
make a complete distribution to holders of Preferred Stock as described above,
the remaining assets will be distributed to the holders of Common Stock ratably
among such holders of Common Stock.
Voting rights
The holders of Preferred Stock have one vote for each share of Common Stock
into which such Preferred Stock may be converted.
Conversion
Each share of Preferred Stock is convertible at any time into shares of
Common Stock at the option of the holder, subject to adjustment for dilution.
Such conversion is automatic upon the earlier of the date specified by vote,
written consent or agreement of a majority of the holders of such series then
outstanding or immediately upon the closing date of a public offering of the
Company's Common Stock for which the aggregate net proceeds exceed $10,000,000.
The conversion ratio as of December 31, 1998 and 1999 and March 31, 2000 is 2:1
for Series A and B Preferred Stock after giving retroactive effect to the stock
split effected in 1999. The conversion ratios as of December 31, 1999, and
March 31, 2000 is 1:1 for Series C and Series D Preferred Stock. The conversion
ratio of Series A, B, C and D Preferred Stock may be adjusted under
circumstances described in the Company's Restated Articles of Incorporation.
Common Stock
The Company is authorized to issue 45,000,000 shares of Common Stock as of
March 31, 2000. A portion of the outstanding shares of common stock are subject
to repurchase by the Company over a four year period. As of December 31, 1998
and 1999 and March 31, 2000, there were 4,814,804, 4,109,338 and 6,502,326
shares of nonvested stock issued pursuant to a stock purchase agreement with
the Company's founder and stock issued under early exercises of options all of
which were subject to repurchase by the Company. The repurchase rights with
respect to the Company's agreement with the founder lapse over 36 months and
the repurchase rights with respect to the early exercises of options lapse over
the original vesting period of the options.
Incentive stock plan
In November 1998, the Company adopted the 1998 Stock Option Plan (the "Plan")
under which the Company may grant stock options for Common Stock to employees,
consultants and outside investors. The Board of Directors has the authority to
determine to whom options will be granted, the number of shares, the term and
exercise price (which cannot be less than fair market value at date of grant
for incentive stock options). If an employee owns stock representing more than
10% of the outstanding shares, the price of each share shall be at least 110%
of fair market value, as determined by the Board of Directors. Options granted
generally vest over four years. The Company has reserved 8,000,000 shares of
Common Stock for issuance under the Plan.
F-14
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS--(Continued)
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
A summary of activity under the Plan is as follows:
<TABLE>
<CAPTION>
Number of Weighted
Number of Shares Average
Shares Issued and Exercise Aggregate
Authorized Outstanding Price Price
---------- ----------- -------- -----------
<S> <C> <C> <C> <C>
Shares reserved................. 1,980,000 -- -- $ --
Options granted................. (496,720) 496,720 $0.0325 16,143
---------- ---------- -----------
Balances, December 31, 1998..... 1,483,280 496,720 $0.0325 16,143
Shares reserved................. 6,020,000 -- --
Options granted................. (5,294,990) 5,294,990 $0.6278 3,324,195
Options exercised............... (1,200,220) $0.4149 (497,971)
Options cancelled............... 70,000 (70,000) $0.0325 (2,275)
---------- ---------- -----------
Balances, December 31, 1999..... 2,278,290 4,521,490 $0.6281 $ 2,840,092
Options granted................. (2,062,125) 2,062,125 $ 4.38 9,032,108
Options exercised............... (2,146,519) $ 1.28 (2,741,608)
Options cancelled............... 39,600 (39,600) $ 1.81 (71,662)
---------- ---------- -----------
255,765 4,397,496 $ 2.06 $ 9,058,930
========== ========== ===========
</TABLE>
For financial reporting purposes, the Company has determined that the
estimated value of common stock, based on the expected price per share of the
common stock in the company's initial public offering, was in excess of the
exercise price, which was considered to be the fair market value as of the date
of grant for 496,720 options issued in 1998 and 5,294,990 options issued in the
year ended December 31, 1999 and 2,062,125 options issued in the quarter ended
March 31, 2000. In connection with the grants of such options, the Company has
recorded deferred compensation of $129,000 in the period from August 3, 1998 to
December 31, 1998 and $17,818,000 during the year ended December 31, 1999 and
$14,065,000 during the quarter ended March 31, 2000. Deferred stock
compensation will be amortized over the vesting period which is generally 48
months from the date of grant; $2,568,000 was expensed in the year ended
December 31, 1999. Future amortization based on options granted through March
31, 2000 is expected to be $12,934,000, $7,696,000, $3,553,000, $980,000 and
$8,000 in the nine month period ending December 31, 2000, and the years ended
December 31, 2001, 2002, 2003 and 2004.
The following table summarizes information about stock options outstanding at
December 31, 1999:
<TABLE>
<CAPTION>
Options Outstanding Options
------------------------------------------- Currently
Exercisable
Weighted Average Weighted -----------
Number Remaining Average Number
Range of Exercise Price Outstanding Contractual Life Exercise Price Outstanding
- ----------------------- ----------- ---------------- -------------- -----------
<S> <C> <C> <C> <C>
$ 0.0325................ 837,500 9.13 $0.0325 51,041
$ 0.1375................ 1,477,980 9.44 $0.1375 66,666
$ 0.5000................ 258,000 9.63 $0.5000 --
$ 0.8000................ 447,750 9.71 $0.8000 --
$ 1.0000................ 625,850 9.77 $1.0000 --
$1.250 - $1.750......... 555,960 9.87 $1.4728 2,500
$2.000 - $2.250......... 318,450 9.98 $2.1288 6,250
--------- -------
4,521,490 126,457
========= =======
</TABLE>
F-15
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS--(Continued)
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
Fair value disclosures
The Company has adopted the disclosure-only provisions of Statement of
Financial Accounting Standards No. 123, "Accounting for Stock-based
Compensation." Had compensation cost for the plan been determined based on the
fair value at grant date for all awards consistent with the provisions of SFAS
No. 123, the impact on the Company's financial statements would be as follows:
<TABLE>
<CAPTION>
Period from
August 13, Period from
1998 (date August 13,
of 1998 (date
inception) of
to Year Ended inception)
December 31, December 31, to December
1998 1999 31, 1999
------------ ------------ ------------
<S> <C> <C> <C>
Net loss:
As reported......................... $(314,000) $(17,648,000) $(17,962,000)
Pro forma........................... $(314,000) $(17,489,000) $(17,803,000)
Basic and diluted net loss per share:
As reported......................... $ (0.12) $ (4.13) $ (4.77)
Pro forma........................... $ (0.12) $ (4.09) $ (4.73)
</TABLE>
The fair value of each option grant is estimated on the date of grant using
the minimum value method with the following weighted average assumptions:
<TABLE>
<CAPTION>
1998 1999
------- -------
<S> <C> <C>
Risk-free interest rate....................................... 4.38% 5.35%
Expected life................................................. 4 years 4 years
Expected dividends............................................ $ -- $ --
</TABLE>
The weighted average per share fair value of common stock options granted
during 1998 and 1999 was $0.02 and $3.55.
Options granted to consultants are valued using the Black-Scholes method and
this value is charged against income over the vesting period of the options.
Warrants
In connection with long-term marketing agreements entered into in December
1999, the Company issued two warrants to purchase up to an aggregate of 495,000
shares of common stock. A total of 140,000 shares subject to one of the
warrants was immediately exercisable at an exercise price of $7.45 of which a
portion of the warrant to purchase 35,000 shares will expire upon the closing
of this Initial Public Offering. and a total of 75,000 shares subject to the
other warrant was immediately exercisable at an exercise price of $11.00. An
additional 35,000 shares subject to the first warrant will become exercisable
on December 31, 2000 or earlier if certain volume targets are met. The
remaining portions of the warrants will be exercisable when the holders meet
stated volume targets for business conducted over the noosh.com service at
exercise prices ranging from $7.45 per share to the fair market value of the
common stock at the date the volume targets are met.
The Company valued the portions of the warrants which have no performance
requirements associated with their exercise on the date of issuance using the
Black-Scholes method with the
F-16
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS--(Continued)
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
following assumptions: dividend yield at 0%; expected warrant term of 3 years;
risk free interest rate of 6.29% and expected volatility of 60%. The fair value
of those portions was $1,468,000. The remaining warrants will be valued and
charged to expense when it is probable that the performance targets will be
met.
In connection with a print buyer agreement entered into in January 2000, the
Company has issued warrants to purchase up to an aggregate of 2,780,159 shares
of common stock at an exercise price of $11.00 per share, of which warrants to
purchase 961,309 shares were immediately exercisable and the remaining warrants
will be exercisable in the future based on the holder meeting stated volume
targets for business conducted over the noosh.com service. The fair value of
portion of the warrants which was immediately exercisable was $3,914,000 using
the Black-Scholes method and accordingly was charged to expense during the
three months period ended March 31, 2000.
In connection with a print buyer user agreement entered into in January 2000,
the Company has issued a warrant to purchase up to 50,000 shares of common
stock at an exercise price of $11.00 per share, all shares of which will be
exercisable in the future based on the holder meeting a stated volume target
for business conducted over the noosh.com service.
In connection with a print buyer agreement entered into in February 2000, the
Company has issued a warrant to purchase up to 10,000 shares of common stock at
an exercise price equivalent to the initial public offering price per share.
All shares subject to this warrant will be exercisable when the print buyer
meets a stated target for business conducted over the noosh.com service.
In connection with a print vendor agreement entered into in February 2000,
the Company has issued a warrant to purchase up to 100,000 shares of common
stock which will be exercisable in the future based on the holder meeting
stated volume targets for business conducted over the noosh.com service at
exercise prices ranging from the initial public offering price to the fair
market value of the common stock at the date the volume targets are met.
Employee Stock Purchase Plan
In January 2000, the Company's Board of Directors adopted the 2000 Employee
Stock Purchase Plan under which eligible employees will be able to purchase
common stock at a discount price in periodic offerings. The purchase plan will
commence on the effective date of the offering.
A total of 600,000 shares of common stock have been authorized for issuance
under the 2000 purchase plan.
Non-Employee Directors' Stock Option Plan
In January 2000, the Company's Board of Directors adopted the 2000 Non-
Employee Directors' Stock Option Plan under which non-employee directors will
automatically be granted options to purchase shares of common stock on the
effective date of the offering and on each annual stockholders' meeting,
beginning with the annual stockholders meeting in 2001.
A total of 350,000 shares of common stock have been authorized for issuance
under the 2000 Non-Employee Directors' Stock Option Plan.
F-17
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS--(Continued)
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
2000 Equity Incentive Plan
In January 2000, the Company's Board of Directors adopted the 2000 Equity
Incentive Plan under which 6,000,000 shares of common stock have been reserved
for issuance of options to employees, directors and consultants.
The 2000 Equity Incentive Plan will be effective on the effective date of the
offering at which time no further option grants will be made under the 1998
Equity Incentive Plan.
NOTE 6--UNAUDITED PRO FORMA LOSS PER SHARE AND PRO FORMA SHAREHOLDERS' EQUITY:
Pro forma basic net loss per share has been computed as described in Note 1
and also gives effect to common equivalent stock from preferred shares that
will convert upon the closing of the Company's initial public offering (using
the as-if-converted-method).
A reconciliation of the numerator and denominator used in the calculation of
pro forma basic and diluted net loss per share follow:
<TABLE>
<CAPTION>
Three Months
Year Ended Ended
December 31, March 31,
1999 2000
------------ ------------
<S> <C> <C>
Pro forma net loss per share, basic and diluted:
Net loss......................................... $(17,648,000) $(20,674,000)
Shares used in computing net loss per share,
basic and diluted............................... 4,275,090 5,292,410
Adjustment to reflect the effect of the assumed
conversion of convertible preferred stock....... 11,081,828 20,732,870
------------ ------------
Shares used in computing pro forma net loss per
share, basic and diluted........................ 15,356,918 26,025,280
Pro forma net loss per share, basic and diluted.. $ (1.15) $ (0.79)
</TABLE>
If the offering contemplated by this Prospectus is consummated as
contemplated, all of the convertible preferred stock outstanding as of the
closing date will be converted into an aggregate of approximately 19,582,563
shares of common stock based on the shares of convertible preferred stock
outstanding at March 31, 2000. Unaudited pro forma shareholders' equity at
March 31, 2000 as adjusted for the conversion of preferred stock, is disclosed
on the balance sheet.
NOTE 7--401(k) SAVINGS PLAN:
The Company established a 401(k) Savings Plan (the "Plan") that covers
substantially all employees. Under the Plan, employees are permitted to
contribute a portion of gross compensation not to exceed standard limitations
provided by the Internal Revenue Service. The Company maintains the right to
match employee contributions, but for the period from August 3, 1998 (date of
inception) March 31, 2000.
F-18
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS--(Continued)
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
NOTE 8--SUBSEQUENT EVENTS:
Initial public offering
In January 2000, the Company's Board of Directors authorized the Company to
file a registration statement with the Securities and Exchange Commission for
the purpose of an initial public offering of the Company's common stock. Upon
the completion of this offering, if the per share price in the offering is at
least $11.00 and the gross proceeds are at least $20,000,000, the Company's
preferred stock will automatically be converted into common stock.
Patent Licensing
The Company received a letter from an individual advising that his patent may
cover certain aspects of the Company's service and requesting the Company to
consider licensing the patent. The Company is currently evaluating the patent.
However, based on the Company's preliminary review, management does not believe
that the Company requires a license under the patent to operate its service.
Amended and Restated Certificate of Incorporation
In April 2000, the Company amended and restated its Certificate of
Incorporation to increase the authorized number of shares of capital stock to
94,400,000 shares, of which 75,000,000 shares were designated common stock,
16,800,000 shares were designated preferred stock and 2,600,000 shares were
designated Class B common stock. Of the 16,800,000 shares that were designated
preferred stock, 800,000 shares were designated Series E preferred stock and
800,000 shares were designated Series E-1 preferred stock.
Series E Preferred Financing
In April 2000, the Company completed the closing of the Series E preferred
stock financing. The Company raised $10.0 million and issued 769,231 shares of
Series E preferred stock. The Series E preferred stock has substantially the
same preferences as the Series A, B, C and D preferred stock except that the
Series E preferred stock has a liquidation value of $13.00 per share plus all
declared and unpaid dividends, is non-voting and is convertible into Class B
common stock which is also non-voting. The conversion ratio for the Series E
preferred stock into Class B common stock is one to one, except in the event of
an initial public offering of the Company's equity securities or a sale of the
Company, each share of Series E preferred stock will convert into such number
of shares of Class B common stock that is equal to the result of of $13.00
divided by the lesser of the conversion price of the Series E preferred stock
then in effect or 85% of the initial public offering price per share. In
addition, the Class B common stock converts into common stock on a one-to-one
basis at the option of the holder on the earlier of April 4, 2001, the date 180
days after an initial public offering or the Company's prior written consent,
and the Class B common stock converts into common stock on a one-to-one basis
automatically upon any transfer of the Class B common stock to a third-party
that occurs on the earlier of April 4, 2001 or 180 days after an initial public
offering.
In connection with a print buyer user agreement entered into in April 2000,
the Company has issued a warrant to purchase up to 958,400 shares of Class B
common stock. A portion of the
F-19
<PAGE>
NOOSH, INC.
(A COMPANY IN THE DEVELOPMENT STAGE)
NOTES TO FINANCIAL STATEMENTS--(Continued)
(Information as of March 31, 2000 and/or for the periods ended
March 31, 1999 and 2000 is unaudited)
warrant, for a total of 432,000 shares, is immediately exercisable. The
remaining portion of the warrant becomes exercisable in increments upon the
holder meeting stated targets. Initially, the exercise price of the warrant is
$13.00 per share. Upon the automatic conversion of the Company's Series E
preferred stock to Class B common stock immediately prior to an initial public
offering, the exercise price of the warrant is adjusted to the lesser of $13.00
per share or the conversion price of the Series E preferred stock in effect
immediately prior to such conversion.
F-20
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
No dealer, salesperson or other person is authorized to give any information
or to represent anything not contained in this prospectus. You must not rely on
any unauthorized information or representations. This prospectus is an offer to
sell only the shares offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. The information contained in this
prospectus is current only as of its date.
--------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Prospectus Summary....................................................... 3
Risk Factors............................................................. 8
Note Regarding Forward-Looking Statements................................ 20
Use of Proceeds.......................................................... 21
Dividend Policy.......................................................... 21
Capitalization........................................................... 22
Dilution................................................................. 23
Selected Financial Data.................................................. 25
Management's Discussion and Analysis of Financial Condition and Results
of Operations .......................................................... 27
Business................................................................. 35
Management............................................................... 49
Related Party Transactions............................................... 62
Principal Stockholders................................................... 64
Description of Capital Stock ............................................ 66
Shares Eligible for Future Sale.......................................... 70
Underwriting............................................................. 72
Validity of Common Stock................................................. 74
Experts.................................................................. 74
Additional Information................................................... 74
Index to Financial Statements............................................ F-1
</TABLE>
--------------
Through and including , 2000 (the 25th day after the date of this
prospectus), all dealers effecting transactions in these securities, whether or
not participating in this offering, may be required to deliver a prospectus.
This is in addition to a dealer's obligation to deliver a prospectus when
acting as an underwriter and with respect to an unsold allotment or
subscription.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
4,000,000 Shares
NOOSH, Inc.
Common Stock
--------------
[NOOSH, INC. LOGO APPEARS HERE]
--------------
Goldman, Sachs & Co.
Robertson Stephens
Banc of America Securities LLC
PaineWebber Incorporated
E*OFFERING
Representatives of the Underwriters
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The following table sets forth all expenses, other than the underwriting
discounts and commissions, payable by us in connection with the sale of the
common stock being registered. All the amounts shown are estimates except for
the registration fee, the NASD filing fee and the Nasdaq National Market
application fee.
<TABLE>
<S> <C>
Registration fee................................................. $ 15,788
NASD filing fee.................................................. 6,480
Nasdaq National Market application fee........................... 95,000
Blue sky qualification fee and expenses.......................... 20,000
Printing and engraving expenses.................................. 250,000
Legal fees and expenses.......................................... 500,000
Accounting fees and expenses..................................... 250,000
Transfer agent and registrar fees................................ 15,000
Miscellaneous.................................................... 47,738
----------
Total............................................................ $1,200,000
==========
</TABLE>
Item 14. Indemnification of Officers and Directors.
As permitted by Delaware law, our amended and restated certificate of
incorporation provides that no director of ours will be personally liable to
us or our stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability for:
. any breach of duty of loyalty to us or to our stockholders;
. acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law;
. unlawful payment of dividends or unlawful stock repurchases or redemptions;
or
. any transaction from which the director derived an improper personal
benefit.
Our amended and restated certificate of incorporation further provides that
we must indemnify our directors and officers and may indemnify our other
employees and agents to the fullest extent permitted by Delaware law. We
believe that indemnification under our amended and restated certificate of
incorporation covers negligence and gross negligence on the part of
indemnified parties.
We intend to enter into indemnification agreements with each of our
directors and executive officers. These agreements, among other things,
require us to indemnify each director and executive officer for some expenses
including attorneys' fees, judgments, fines and settlement amounts incurred by
any of these persons in any action or proceeding, including any action by or
in the right of NOOSH, arising out of these persons' services as our director
or executive officer, any subsidiary of ours or any other company or
enterprise to which the person provides services at our request.
The underwriting agreement will provide for indemnification by the
underwriters of NOOSH, our directors, our officers who sign the registration
statement, and our controlling persons for some liabilities, including
liabilities arising under the securities act.
II-1
<PAGE>
Item 15. Recent Sales of Unregistered Securities.
Since inception, we have sold and issued the following unregistered
securities:
(1) From August 15, 1998 to April 4, 2000, we granted stock options to
purchase 7,992,188 shares of the our common stock to employees, consultants
and directors pursuant to our 1998 equity incentive plan. Of these stock
options, 109,600 shares have been cancelled without being exercised,
3,490,050 shares have been exercised, 0 have been repurchased and 4,392,538
shares remain outstanding.
(2) On August 15, 1998, we issued an aggregate of 40,000 shares of common
stock to Cooley Godward LLP at $0.00125 per share for an aggregate purchase
price of $50.
(3) In August 1998 through September 1999, we issued an aggregate of
8,000,000 shares of common stock to Ofer Ben-Shachar at $0.00125 per share
for an aggregate purchase price of $10,000.
(4) In November 1998, we issued an aggregate of 2,000,000 shares of
Series A preferred stock to Asset Management Partners, Baloff Investors,
LLC, GC&H Investments and eight individual investors at $0.65 per share for
an aggregate purchase price of $1,300,000. Shares of Series A preferred
stock are convertible into shares of common stock at the rate of two shares
of common stock for each share of Series A preferred stock owned.
(5) In December 1998, we issued an aggregate of 23,077 shares of Series A
preferred stock to one individual investor at $0.65 per share for an
aggregate purchase of $15,000. Shares of Series A preferred stock are
convertible into shares of common stock at the rate of two shares of common
stock for each share of Series A preferred stock owned.
(6) In January 1999 through March 1999, we issued an aggregate of 76,986
shares of common stock to four consultants at $0.325 per share for an
aggregate purchase price of $2,502.
(7) On April 26, 1999, we issued an aggregate of 4,363,637 shares of
Series B preferred stock to The Levinson Family Trust, The McDonald Family
Trust, The Pidwell Family Living Trust, Accel VI L.P., Accel Internet Fund
II L.P., Accel Investors '98 L.P., Accel Keiretsu VI L.P., Advanced
Technology Ventures V, L.P., ATV Entrepreneurs V, L.P., Angel Investors LP,
Asset Management Partners, Beams Technology Investments Ltd., ELK Partners,
GC&H Investments and eight individual investors at $2.75 per share for an
aggregate purchase price of $12,000,002. Shares of Series B preferred stock
are convertible into shares of common stock at the rate of two shares of
common stock for each share of Series B preferred stock owned.
(8) On September 15, 1999, we issued an aggregate of 13,216 shares of
common stock to six consultants at $0.80 per share for an aggregate
purchase price of $10,573.
(9) On October 8, 1999, we issued an aggregate of 11,609 shares of common
stock to eight consultants at $1.00 per share for an aggregate purchase
price of $11,609.
(10) On October 15, 1999, we issued an aggregate of 19,000 shares of
common stock to one employee as consideration with an aggregate fair market
value of $19,000 under a technology transfer agreement.
(11) On November 1, 1999, we issued an aggregate of 5,727 shares of
common stock to two consultants at $1.25 per share for an aggregate
purchase price of $7,159.
(12) In November 1999, we issued an aggregate of 6,809,135 shares of
Series C preferred stock to The McDonald Family Trust, The Pidwell Family
Living Trust, Accel VI L.P., Accel Internet Fund II L.P., Accel Investors
'98 L.P., Accel Keiretsu VI L.P., Advanced Technology Ventures V, L.P., ATV
Entrepreneurs V, L.P., Asset Management Partners, Beams Technology
Investments Ltd., ELK Partners, GC&H Investments, Internet Experience,
L.P., MeriTech Capital Affiliates L.P.,
II-2
<PAGE>
MeriTech Capital Partners L.P., RSV Ventures, L.P., Spinnaker Clipper Fund,
L.P., Spinnaker Crossover Fund, L.P., Spinnaker Crossover Institutional
Fund, L.P., TCV III (GP) TCV III, L.P., TCV III (Q), L.P., TCV III
Strategic Partners, L.P., Comdisco, Inc. and fifteen individual investors
at $7.45 per share for an aggregate purchase price of $50,728,056. Shares
of Series C preferred stock are convertible into shares of common stock at
the rate of one share of common stock for each share of Series C preferred
stock owned.
(13) On November 15, 1999, we issued an aggregate of 33,865 shares of
common stock to four consultants at $1.50 per share for an aggregate
purchase price of $50,798.
(14) On November 30, 1999, we issued an aggregate of 847 shares of common
stock to three consultants at $1.75 per share for an aggregate purchase
price of $1,482.
(15) On December 30, 1999, we issued two warrants to two print vendors to
purchase an aggregate of 495,000 shares of common stock. A portion of the
first warrant, for a total of 140,000 shares, became immediately
exercisable upon issuance at an exercise price of $7.45. A portion of the
second warrant, for a total of 75,000 shares, became immediately
exercisable upon issuance at an exercise price of $11.00. The remaining
portions of the warrants are exercisable when the print vendors meet stated
volume targets for business conducted over our service at exercise prices
ranging from $7.45 per share to the fair market value of our common stock
on the date the volume targets are met.
(16) On December 31, 1999, we issued an aggregate of 13,203 shares of
common stock to seven consultants for an aggregate purchase price of
$29,707.
(17) On January 14, 2000, we issued one warrant to Bank of America
Technology and Operations, Inc. to purchase an aggregate of 50,000 shares
of common stock at an exercise price of $11.00 per share.
(18) On January 25, 2000 we issued an aggregate of 1,418,182 shares of
Series D preferred stock to R.R. Donnelley & Sons Company and two
individual investors at $11.00 per share for a total of $15,600,002. Shares
of Series D preferred stock are convertible into shares of common stock at
the rate of one share of common stock for each share of Series D preferred
stock owned. In addition, we issued two warrants to R.R. Donnelley & Sons
Company to purchase an aggregate of 2,780,159 shares of common stock at an
exercise price of $11.00 per share. A total of 961,309 shares of common
stock are immediately exercisable under the warrants. The remaining shares
under the warrants are exercisable when the holder meets stated volume
targets for business conducted over our service.
(19) On February 4, 2000, we issued one warrant to ColorGraphics, a print
vendor, to purchase an aggregate of 100,000 shares of common stock. The
warrant is first exercisable on the one year anniversary of the date of
grant and only to the extent ColorGraphics meets stated volume targets for
business conducted over our service. The exercise price for the warrant
ranges from the initial public offering price to the fair market value of
our common stock as of the end of the calendar quarter during which the
stated volume targets are met.
(20) On February 4, 2000, we issued an aggregate of 17,350 shares of
common stock to two consultants for an aggregate purchase price of
$138,775.
(21) On February 14, 2000, we issued one warrant to J. Crew Group, Inc.,
a print buyer, to purchase an aggregate of 10,000 shares of common stock.
The warrant is first exercisable on the one year anniversary of the date of
grant and only to the extent J. Crew meets a target for business conducted
over our service. The exercise price for the warrant is equal to the
initial public offering price.
(22) On March 10, 2000, we issued an aggregate of 2,536 shares of common
stock to two consultants for an aggregate purchase price of $24,092.
II-3
<PAGE>
(23) On April 4, 2000, we issued an aggregate of 769,231 shares of Series
E preferred stock to GE Capital Equity Investments, Inc. at $13.00 per
share for a total of $10,000,003. Initially, shares of Series E preferred
stock are convertible into shares of Class B common stock at the rate of
one share of Class B common stock for each share of Series E preferred
stock. In the event of an initial public offering or a sale of NOOSH, each
share of Series E preferred stock will be convertible into that number of
shares of Class B common stock equal to $13.00 divided by the lesser of the
conversion price then in effect for the Series E preferred stock or 85% of
the initial public offering price per share. Assuming an initial public
offering price of $12.00, each share of Series E preferred stock will be
convertible into approximately 1.27 shares of Class B common stock. In
addition, we issued a warrant to GE Capital Equity Investments to purchase
up to 958,400 shares of capital stock. A portion of the warrant, for a
total of 432,000 shares of share of Series E preferred stock will be
convertible into approximately 1.27 shares of Class B common stock. In
addition, we issued a warrant to GE Capital Equity Investments to purchase
up to 958,400 shares of capital stock. A portion of the warrant, for a
total of 432,000 shares of capital stock, is immediately exercisable. The
remaining portion of the warrant becomes exercisable in increments upon the
holder meeting stated targets. Initially, the exercise price of the warrant
is $13.00 per share. Upon the automatic conversion of our Series E
preferred stock upon the closing of an initial public offering, the
exercise price of the warrant is adjusted to the lesser of $13.00 per share
or the conversion price of the Series E preferred stock in effect
immediately prior to such conversion. Initially, the warrant is exercisable
for Class B common stock. At the option of GE Capital Equity Investments,
on the date 90 days after this offering, a portion of the warrant will
become exercisable for common stock. In addition, on the earlier of April
4, 2001 or the date 180 days after this offering, the remainder of the
warrant will become exercisable for common stock.
With respect to the grant of stock options described in paragraph (1), an
exemption from registration was unnecessary in that none of the transactions
involved a "sale" of securities as this term is used in Section 2(3) of the
Securities Act. The sale and issuance of securities and the exercise of
options described in paragraphs (1), (6), (8), (9), (11), (13), (14), (16),
(20) and (22) above were deemed to be exempt from registration under the
Securities Act by virtue of Rule 701 promulgated thereunder in that they were
offered and sold either pursuant to a written compensatory benefit plan or
pursuant to a written contract relating to compensation, as provided in Rule
701. The sale and issuance of securities described in paragraphs (2), (3),
(4), (5), (7), (10), (12), (15), (17), (18), (19), (21) and (23) above were
deemed to be exempt from registration under the Securities Act by virtue of
Rule 4(2) or Regulation D promulgated thereunder.
Appropriate legends are affixed to the stock certificates issued in the
aforementioned transactions. Similar legends were imposed in connection with
any subsequent sales of any of these securities. All recipients either
received adequate information about NOOSH or had access, through employment or
other relationships, to such information.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
1.1** Form of Underwriting Agreement.
3.1** Restated Certificate of Incorporation of Registrant, as currently in
effect.
3.2** Form of Amended and Restated Certificate of Incorporation of
Registrant to be filed upon the closing of the offering made pursuant
to this Registration Statement.
3.3** Bylaws of the Registrant as currently in effect.
4.1** Specimen Common Stock Certificate.
4.2** Amended and Restated Investor Rights Agreement dated April 4, 2000
between Registrant and holders of the Registrant's Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Series E Preferred Stock.
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
5.1** Opinion of Cooley Godward LLP.
10.1** Form of Indemnity Agreement.
10.2** 1998 Equity Incentive Plan and related documents.
10.3** 2000 Equity Incentive Plan and related documents.
10.4** 2000 Employee Stock Purchase Plan.
10.5** 2000 Non-Employee Directors Stock Option Plan and related documents.
10.6** Lease Agreement, dated April 1, 1999, between Registrant and Syntex
(U.S.A.) Inc.
10.7** Sublease Agreement, dated November 1, 1999, between the Registrant
and Xerox Corporation.
10.8** Promissory Note, dated April 15, 1999, between Registrant and David
Hannebrink.
10.8.1** Amendment No. 1 to Promissory Note, dated April 15, 1999, between
Registrant and David Hannebrink.
10.9** Promissory Note, dated October 8, 1999, between Registrant and Hagi
Schwartz.
10.10** Promissory Note, dated November 1, 1999, between Registrant and David
Hannebrink.
10.11** Promissory Note, dated January 3, 2000, between Registrant and Kevin
Akeroyd.
10.12** Promissory Note, dated January 3, 2000, between Registrant and Ray
Martinelli.
10.13** Promissory Note, dated January 3, 2000, between Registrant and
Timothy Moore.
10.14** Promissory Note, dated January 15, 2000, between Registrant and
Steven Baloff.
10.15** Promissory Note, dated January 15, 2000, between Registrant and David
Hannebrink.
10.16** Promissory Note, dated January 15, 2000 between Registrant and Robert
Shaw.
10.17** Promissory Note, dated February 4, 2000 between Registrant and Hagi
Schwartz.
10.18** Internet Services and Colocation Agreement, dated as of July 20,
1999, between the Registrant and Abovenet.
10.19**+ Co-Development and Marketing Agreement, dated as of January 25, 2000,
between the Registrant and R.R. Donnelley & Sons Company.
10.20**+ Warrant for the Purchase of 225,000 shares of Common Stock issued to
Consolidated Graphics, Inc. dated December 30, 1999.
10.21**+ Warrant for the Purchase of 270,000 shares of Common Stock issued to
Wallace Computer Services, Inc. dated December 30, 1999.
10.22**+ Warrant for the Purchase of 50,000 shares of Common Stock issued to
Bank of America Technology and Operations, Inc. dated January 14,
2000.
10.23** Warrant for the Purchase of 2,430,158 shares of Common Stock issued
to R.R. Donnelley & Sons Company dated January 25, 2000.
10.24** Warrant for the Purchase of 350,000 shares of Common Stock issued to
R.R. Donnelley & Sons Company dated January 25, 2000.
10.25** Warrant for the Purchase of 958,400 shares of Class B Common Stock
issued to GE Capital Equity Investments, Inc. dated April 4, 2000.
10.26** Promissory Note, dated March 15, 2000 between Registrant and Edward
E. Barr.
10.27** Office Lease dated March 31, 2000 by and between Registrant and PAC
Court Associates, L.P., a California limited partnership.
10.28** Lease dated October 1999 by and between the Realty Associates Fund
IV, L.P. and Registrant of the Hillsite Building, 75 Second Ave.,
Needham, Massachusetts, 02912.
10.29 Office Space Lease, dated February 2000, by and between Registrant
and LaSalle National Bank.
10.30 Deed of Lease, by and between Registrant and MDM Development Company,
L.L.C.
10.31 Offer Letter, dated October 14, 1998, between Registrant and Mathew
Spolin
10.32 Offer Letter, dated April 10, 1999, between Registrant and Lawrence
Slotnick
10.33 Offer Letter, dated July 27, 1999, between Registrant and Kevin
Akeroyd
10.34 Offer Letter, dated January 6, 1999, between Registrant and David
Hannebrink.
10.35 Offer Letter, dated October 7, 1999, between Registrant and Hagi
Schwartz.
10.36 Offer Letter, dated January 3, 2000, between Registrant and Timothy
Moore.
10.37 Offer Letter, dated January 4, 2000, between Registrant and Robert
Shaw.
23.1 Consent of Independent Accountants.
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
23.2** Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1** Power of Attorney.
27.1** Financial Data Schedule.
</TABLE>
- --------
** Previously filed.
+ Confidential treatment has been requested for a portion of this exhibit.
(b) Financial Statement Schedules.
Schedules are omitted because they are not applicable, or because the
information is included in the Financial Statements or the Notes thereto.
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) That for purposes of determining any liability under the Securities
Act, the information omitted from the form of this prospectus filed as part
of this Registration Statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) That for purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of the securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referenced in Item 15
of this Registration Statement or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission this
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against these liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer, or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by a director, officer, or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether the indemnification by it is against
public policy as expressed in the Securities Act of 1933, and will be
governed by the final adjudication of this issue.
(4) To provide to the Underwriters at the closing specified in the
Underwriting Agreement certificates in the denomination and registered in
the names required by the Underwriters to permit prompt delivery to each
purchaser.
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has caused this Amendment No. 4 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the County of Santa
Clara, State of California, on the 16th day of May, 2000.
NOOSH, Inc.
*
By: _________________________________
Ofer Ben-Shachar
President, Chief Executive
Officer and Chairman
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 4 to Registration Statement has been signed below by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
* President, Chief Executive May 16, 2000
______________________________________ Officer and Chairman of
Ofer Ben-Shachar the Board of Directors
(principal executive
officer)
/s/ Hagi Schwartz Vice President and Chief May 16, 2000
______________________________________ Financial Officer
Hagi Schwartz (principal financial and
accounting officer)
* Director May 16, 2000
______________________________________
Steven Baloff
* Director May 16, 2000
______________________________________
Edward Barr
* Director May 16, 2000
______________________________________
Arthur Patterson
* Director May 16, 2000
______________________________________
Kathy Levinson
</TABLE>
/s/ Hagi Schwartz
*By: ____________________________
Name: Hagi Schwartz
Attorney-in-Fact
II-7
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
1.1** Form of Underwriting Agreement.
3.1** Restated Certificate of Incorporation of Registrant, as currently in
effect.
3.2** Form of Amended and Restated Certificate of Incorporation of
Registrant to be filed upon the closing of the offering made pursuant
to this Registration Statement.
3.3** Bylaws of the Registrant as currently in effect.
4.1** Specimen Common Stock Certificate.
4.2** Amended and Restated Investor Rights Agreement dated April 4, 2000
between Registrant and holders of the Registrant's Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D
Preferred Stock and Series E Preferred Stock.
5.1** Opinion of Cooley Godward LLP.
10.1** Form of Indemnity Agreement.
10.2** 1998 Equity Incentive Plan and related documents.
10.3** 2000 Equity Incentive Plan and related documents.
10.4** 2000 Employee Stock Purchase Plan.
10.5** 2000 Non-Employee Directors Stock Option Plan and related documents.
10.6** Lease Agreement, dated April 1, 1999, between Registrant and Syntex
(U.S.A.) Inc.
10.7** Sublease Agreement, dated November 1, 1999, between the Registrant
and Xerox Corporation.
10.8** Promissory Note, dated April 15, 1999, between Registrant and David
Hannebrink.
10.8.1** Amendment No. 1 to Promissory Note, dated April 15, 1999, between
Registrant and David Hannebrink.
10.9** Promissory Note, dated October 8, 1999, between Registrant and Hagi
Schwartz.
10.10** Promissory Note, dated November 1, 1999, between Registrant and David
Hannebrink.
10.11** Promissory Note, dated January 3, 2000, between Registrant and Kevin
Akeroyd.
10.12** Promissory Note, dated January 3, 2000, between Registrant and Ray
Martinelli.
10.13** Promissory Note, dated January 3, 2000, between Registrant and
Timothy Moore.
10.14** Promissory Note, dated January 15, 2000, between Registrant and
Steven Baloff.
10.15** Promissory Note, dated January 15, 2000, between Registrant and David
Hannebrink.
10.16** Promissory Note, dated January 15, 2000 between Registrant and Robert
Shaw.
10.17** Promissory Note, dated February 4, 2000 between Registrant and Hagi
Schwartz.
10.18** Internet Services and Colocation Agreement, dated as of July 20,
1999, between the Registrant and Abovenet.
10.19**+ Co-Development and Marketing Agreement, dated as of January 25, 2000,
between the Registrant and R.R. Donnelley & Sons Company.
10.20**+ Warrant for the Purchase of 225,000 shares of Common Stock issued to
Consolidated Graphics, Inc. dated December 30, 1999.
10.21**+ Warrant for the Purchase of 270,000 shares of Common Stock issued to
Wallace Computer Services, Inc. dated December 30, 1999.
10.22**+ Warrant for the Purchase of 50,000 shares of Common Stock issued to
Bank of America Technology and Operations, Inc. dated January 14,
2000.
10.23** Warrant for the Purchase of 2,430,158 shares of Common Stock issued
to R.R. Donnelley & Sons Company dated January 25, 2000.
10.24** Warrant for the Purchase of 350,000 shares of Common Stock issued to
R.R. Donnelley & Sons Company dated January 25, 2000.
10.25** Warrant for the Purchase of 958,400 shares of Class B Common Stock
issued to GE Capital Equity Investments, Inc. dated April 4, 2000.
10.26** Promissory Note, dated March 15, 2000 between Registrant and Edward
E. Barr.
10.27** Office Lease dated March 31, 2000 by and between Registrant and PAC
Court Associates, L.P., a California limited partnership.
10.28** Lease dated October 1999 by and between the Realty Associates Fund
IV, L.P. and Registrant of the Hillsite Building, 75 Second Ave.,
Needham, Massachusetts, 02912.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
10.29 Office Space Lease, dated February 2000, by and between Registrant and
LaSalle National Bank.
10.30 Deed of Lease, by and between Registrant and MDM Development Company,
L.L.C.
10.31 Offer Letter, dated October 14, 1998, between Registrant and Mathew
Spolin
10.32 Offer Letter, dated April 10, 1999, between Registrant and Lawrence
Slotnick
10.33 Offer Letter, dated July 27, 1999, between Registrant and Kevin
Akeroyd
10.34 Offer Letter, dated January 6, 1999, between Registrant and David
Hannebrink.
10.35 Offer Letter, dated October 7, 1999, between Registrant and Hagi
Schwartz.
10.36 Offer Letter, dated January 3, 2000, between Registrant and Timothy
Moore.
10.37 Offer Letter, dated January 4, 2000, between Registrant and Robert
Shaw.
23.1 Consent of Independent Accountants.
23.2** Consent of Cooley Godward LLP (included in Exhibit 5.1).
24.1** Power of Attorney.
27.1** Financial Data Schedule.
</TABLE>
- --------
** Previously filed.
+ Confidential treatment has been requested for a portion of this exhibit.
<PAGE>
OFFICE SPACE LEASE
WITH
NOOSH, INC.
AT
303 WEST MADISON
CHICAGO, ILLINOIS 60606
<PAGE>
303 WEST MADISON
CHICAGO, ILLINOIS 60606
SUMMARY OF BASIC LEASE PROVISIONS AND EXHIBITS
----------------------------------------------
The undersigned hereby agree to the following terms of this Summary of
Basic Lease Provisions and Exhibits (the "Summary"). This Summary is hereby
incorporated into and made a part of the attached Office Space Lease (this
Summary and the Office Space Lease to be known collectively as the "Lease").
Each reference in the Office Space Lease to any term of this Summary shall have
the meaning as set forth in this Summary for such term. Any capitalized terms
used in this Summary and not otherwise defined herein shall have the meaning as
set forth in the Office Space Lease.
1.1 Basic Lease Provisions
1.1.1 Landlord and Address:
--------------------
LaSalle National Bank, not personally, but solely as Trustee
under Trust Agreement dated May 1, 1989, and known as Trust No.
114400
c/o Lincoln Property Company
303 West Madison Street
Office of the Building
Suite 625
Chicago, Illinois 60606
1.1.2 Landlord's Management Agent and Address:
---------------------------------------
Lincoln Property Company Commercial, Inc.
303 West Madison Street
Office of the Building
Suite 625
Chicago, Illinois 60606
Phone (312) 855-1254
Fax (312) 855-1483
or such other Management Agent as Landlord may designate from
time to time.
1.1.3 Tenant and Current Address:
--------------------------
Noosh, Inc.
3401 Hillview Avenue, Building B
Palo Alto, California 94304
i
<PAGE>
1.1.4 Intentionally Deleted
---------------------
1.1.5 Premises: Landlord and Tenant agree that the Premises contain
--------
4,298 rentable square feet of space located on the twenty-sixth
(26th) floor of the Building and known as Suite No. 2650, as
shown on the floor plan attached to the Office Space Lease as
Exhibit 1. Tenant acknowledges that the "rentable area of the
---------
Premises" under this Lease includes the usable area, without
deduction for columns or projections, multiplied by a load or
conversion factor, to reflect a share of certain areas, which
may include lobbies, corridors, mechanical, utility, janitorial,
boiler and service rooms and closets, restrooms, and other
public, common and service areas.
1.1.6 Lease Term: Three (3) years.
----------
1.1.7 Commencement Date: The earlier of (i) the date Tenant
-----------------
commences business in the Premises or (ii) the date the Premises
are Ready for Occupancy as defined in and determined pursuant to
the Work Letter attached to this Office Space Lease as Exhibit
2. The anticipated Commencement Date is May 1, 2000. The actual
Commencement Date shall be confirmed pursuant to Exhibit 5
attached to this Office Space Lease.
1.1.8 Expiration Date: The third (3rd) anniversary of the
---------------
Commencement Date.
1.1.9 Base Rent:
---------
Lease Year Annual Base Rent Monthly Base Rent
---------- ---------------- -----------------
1 $70,917.00 $5,909.75
2 $73,045.00 $6,087.08
3 $75,236.00 $6,269.67
1.1.10 Tenant's Share: 1.48%. Tenant's Share is the ratio of the
--------------
rentable square feet of the Premises (as set forth in Section
1.1.5 above) to the rentable square feet of the Building.
Landlord and Tenant agree that the Building shall be deemed to
contain 290,807 rentable square feet.
1.1.11 Permitted Uses: General office purposes, AND FOR NO OTHER
--------------
PURPOSES.
1.1.12 Security Deposit: $100,000.00
ii
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1.1.13 Leasing Broker and Address:
--------------------------
Stauback Midwest, LLC
321 N. Clark Street, Suite 900
Chicago, Illinois 60610
1.1.14 Date of Lease: February __, 2000
-------------
1.2 Exhibits and Rider.
------------------
The following exhibits attached to the Office Space Lease and any rider
attached to the Office Space Lease are incorporated in the Office Space Lease by
this reference and are to be construed as a part of the Office Space Lease. In
the event of any conflict between the terms of any rider and the other
provisions of the Office Space Lease or this Summary, the terms of the rider
shall control.
Exhibit 1. Floor Plan of Premises
Exhibit 2. Work Letter
Exhibit 3. Rules and Regulations
Exhibit 4. Form of Letter of Credit
Exhibit 5 Confirmation of Lease Term Dates
The foregoing Terms of this Summary are hereby agreed to by Landlord and
Tenant and the Office Space Lease is hereby incorporated by this reference.
LANDLORD: TENANT:
LASALLE NATIONAL BANK, not personally, but NOOSH, INC.
solely as Trustee under Trust Agreement
dated May 1, 1989, and known as Trust No.
114400
By:__________________(SEAL) By:_________________(SEAL)
Name:__________________ Name:_________________
Title:_________________ Title:________________
iii
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TABLE OF CONTENTS
Page
1. LEASE OF PREMISES............................................... 1
2. LEASE TERM...................................................... 2
3. BASE RENT....................................................... 2
4. ADDITIONAL RENT................................................. 3
5. SECURITY DEPOSIT................................................ 10
6. USE OF PREMISES................................................. 12
7. RULES AND REGULATIONS........................................... 16
8. SERVICES PROVIDED............................................... 17
9. ADDITIONS OR ALTERATIONS........................................ 21
10. CONDITION OF PREMISES........................................... 22
11. SURRENDER....................................................... 24
12. DAMAGE OR DESTRUCTION........................................... 25
13. EMINENT DOMAIN.................................................. 26
14. WAIVER AND INDEMNIFICATION...................................... 28
15. INSURANCE....................................................... 29
16. LANDLORD'S RIGHT OF ACCESS...................................... 31
17. RIGHTS RESERVED TO LANDLORD..................................... 33
18. ABANDONMENT..................................................... 34
19. TRANSFER OF LANDLORD'S INTEREST; LIABILITY OF LANDLORD.......... 34
20. TRANSFER OF TENANT'S INTEREST................................... 34
21. TENANT'S DEFAULT; LANDLORD'S RIGHTS AND REMEDIES................ 39
22. COUNTERCLAIMS................................................... 44
23. HOLDING OVER.................................................... 44
24. SUBORDINATION AND ATTORNMENT.................................... 45
25. ESTOPPEL CERTIFICATE............................................ 46
26. INTENTIONALLY OMITTED........................................... 46
27. NOTICES AND DEMANDS............................................. 46
28. CONSTRUCTION OF LEASE........................................... 47
iv
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29. REAL ESTATE BROKERS............................................. 48
30. MISCELLANEOUS................................................... 48
31. LANDLORD EXCULPATION............................................ 53
v
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303 WEST MADISON
CHICAGO, ILLINOIS 60606
OFFICE SPACE LEASE
This Office Space Lease, which includes the preceding Summary of Basic
Lease Provisions and Exhibits (the "Summary") and exhibits attached hereto and
incorporated herein by this reference (the Office Space Lease and Summary to be
known sometimes collectively hereafter as the "Lease"), dated as of the date set
forth in Section 1.1.14 of the Summary, is made by and between Landlord and
Tenant.
1. LEASE OF PREMISES
-----------------
1.1 Premises and Building. Landlord hereby leases to Tenant, and Tenant
---------------------
hereby leases from Landlord the premises set forth in Section 1.1.5 of the
Summary ("Premises") which Premises are located in the building whose address is
303 West Madison, Chicago, Illinois (which building, together with the parking
garage therein and all equipment, fixtures, and machinery which may now or
hereafter exist therein or thereon are collectively referred to herein as the
"Building"), for the Lease Term and upon the terms, covenants and conditions set
forth in this Lease. This Lease shall be in full force and effect from the date
it is signed by Landlord and Tenant.
With respect to any or all exterior balconies, patios, terraces or
similar areas which may be appurtenant to the Premises, such areas shall not be
used by Tenant, its employees, invitees, guests, agents or contractors for any
purpose whatsoever and Tenant shall indemnify, defend, protect and hold harmless
Landlord, its beneficiaries and their respective employees, officers, directors,
agents, contractors, successors and assigns from and against all claims,
damages, losses, liabilities and causes of action whatsoever arising out of
Tenant's breach of the foregoing prohibition.
1.2 Property. The term "Property" as used in this Lease, shall mean (a)
--------
the Building, (b) the land upon which the Building is located and all other
improvements now or hereafter located upon said land, and all appurtenances
thereto, and (c) at Landlord's discretion, any additional real property, areas,
buildings or other improvements added thereto. Landlord reserves the right to
make alterations or additions to or to change the elements of the Property;
provided that exercise of any such rights shall not unreasonably interfere with
Tenant's use of the Premises. Tenant acknowledges that Landlord has made no
representation or warranty regarding the condition of the Property except as
specifically set forth in this Lease.
1
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2. LEASE TERM
----------
The term of this Lease ("Lease Term") shall commence on the date set forth
in Section 1.1.7 of the Summary (the "Commencement Date"), (subject, however, to
the terms of Section 5 of the Work Letter attached hereto as Exhibit 2), and
expire on the date set forth in Section 1.1.8 of the Summary (the "Expiration
Date") unless sooner terminated as provided in this Lease. If Landlord shall be
unable to deliver possession of the Premises to Tenant on or before the
anticipated Commencement Date set forth in Section 1.1.7 of the Summary for any
reason whatsoever (including holding over by an existing tenant or occupant of
the Premises), Landlord shall not be subject to any liability for the failure to
do so nor shall such failure affect the validity of this Lease or the
obligations of Tenant hereunder. Following the Commencement Date, Landlord
shall deliver to Tenant the Confirmation of Lease Term Dates attached hereto as
Exhibit 5, which Confirmation of Lease Term Dates Tenant shall execute and
- ---------
return to Landlord within five (5) days after receipt thereof.
In the event the Commencement Date shall not have occurred on or before
June 1, 2000, Tenant shall have the right to terminate this Lease by giving
written notice of termination ("Termination Notice") to Landlord on or before
June 10, 2000. In the event Tenant exercises the termination right in the
preceding sentence, this Lease shall terminate unless the Commencement Date
shall have occurred on or before July 1, 2000 in which event the Termination
Notice shall be deemed null and void. In the event this Lease shall terminate,
Landlord shall return the Security Deposit or the Letter of Credit (as
hereinafter defined) delivered by Tenant to Landlord and Monthly Base Rent for
the first full calendar month of the Lease Term paid pursuant to Paragraph 3
below, whereupon neither party shall have any further rights, obligations or
liabilities under this Lease, except for any obligations or liabilities that
expressly survive termination.
3. BASE RENT
---------
Tenant shall pay to Landlord in the manner and at the place set forth in
Section 4.3 of this Lease, the monthly Base Rent ("Monthly Base Rent") specified
in Section 1.1.9 of the Summary monthly, in advance, on the first day of each
calendar month during the Lease Term, except that Monthly Base Rent for the
first full calendar month of the Lease Term shall be paid concurrently with the
execution of this Lease by Tenant. If the Lease Term commences on a day other
than the first day of a calendar month or terminates on a day other than the
last day of a calendar month, then Monthly Base Rent for such month will be
prorated on a per diem basis based on the number of days in such month and the
excess of the installment of Monthly Base Rent paid concurrently with the
execution of this Lease by Tenant over such prorated amount for the first
calendar month of the Lease Term shall be applied against Monthly Base Rent for
the first full calendar month of the Lease Term.
2
<PAGE>
4. ADDITIONAL RENT
---------------
4.1 Definitions. For purposes of this Lease, the following terms shall
-----------
have the meanings ascribed to them in this Section 4.1:
(a) "Direct Expenses" shall mean, collectively, "Operating Expenses"
and "Taxes", as hereinafter defined.
(b) "Expense Year" shall mean each calendar year or part thereof
during the Lease Term.
(c) "Lease Year" shall mean (i) with respect to the first Lease Year,
the period starting on the Commencement Date and ending on the last day of
the twelfth full calendar month thereafter (so that if the Commencement
Date falls on the first day of a calendar month, the first Lease Year will
have exactly 12 calendar months and otherwise the first Lease Year will
have 12 full calendar months plus one (1) partial calendar month) and (ii)
with respect to all subsequent Lease Years, a period of 12 calendar months
commencing on the day following the last day of the prior Lease Year,
except that if this Lease is terminated or expires on any day other than
the last day of such twelve calendar month period, the last Lease Year
shall end on the day upon which this Lease is terminated or expires.
(d) "Operating Expenses" shall mean and include all amounts, expenses
and costs of whatever nature that Landlord incurs because of or in
connection with the ownership, operation, repair, management, replacement
or maintenance of the Property or any portion thereof. Operating Expenses
shall be determined on an accrual basis in accordance with sound management
accounting principles consistently applied and shall include, but shall not
be limited to, the following:
(i) Wages, salaries, fees, related taxes, insurance
costs, benefits (including amounts payable under medical, pension and
welfare plans and any amounts payable under collective bargaining
agreements) and reimbursement of expenses of and relating to all
personnel engaged in operating, repairing, managing, replacing and
maintaining the Property; provided that the wages, salaries, fees,
related taxes, insurance costs, benefits and reimbursement of expenses
for any part time personnel shall be equitably prorated based on the
amount of time said personnel devote to the Property.
(ii) All supplies and materials used in operating,
repairing, and maintaining the Property, and all sales, use or
occupation taxes incurred in connection therewith.
3
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(iii) Legal and accounting fees and expenses relating to
management and operation of the Property excluding court costs and
legal fees incurred with regard to enforcing the obligations of
tenants under other leases.
(iv) Cost of all utilities for the Property, including,
without limitation, water, power, fuel, heating, lighting, air
conditioning and ventilating, and all taxes imposed upon utility
charges.
(v) Fees and other charges payable under or in
respect of all maintenance, repair, janitorial, parking, security,
scavenger, landscaping and other service agreements for or pertaining
to the Property.
(vi) Costs of all insurance relating to the Property,
its occupancy or operations.
(vii) Cost of repairs and maintenance of the Property,
excluding only such costs which are paid by the proceeds of insurance,
by Tenant or by other third parties (other than the payment by Tenant
or other tenants of Operating Expense pass-throughs pursuant to this
Lease or other tenants' leases).
(viii) Amortization of the cost of capital investment
items (or the rentals attributable to leasing such items) that are for
the purpose of reducing Operating Expenses or that may be required by
governmental authority or requirement, from time to time, plus
interest on the unamortized balance thereof at the then current market
rate. All such costs shall be amortized over the reasonable life of
the capital investment items, with the reasonable life and
amortization schedule being determined in accordance with sound
management accounting principles.
(ix) Cost of public safety protection.
(x) Management, related overhead and administrative
fees and reimbursed expenses of Landlord's Management Agent; provided
that in no event shall the fee paid for management of the Building
exceed the prevailing management fee rate for comparable buildings in
the vicinity of the Building.
(xi) Fees and charges under any declaration of
covenants, easements or restrictions affecting the Property.
The following shall not be included within Operating Expenses:
4
<PAGE>
(i) Leasing commissions, attorneys' fees, costs,
disbursements, and other expenses incurred in connection with
negotiations or disputes with tenants, or in connection with leasing,
renovating, or improving space for tenants or other occupants or
prospective tenants or other occupants of the Building.
(ii) The cost of any service sold to any tenant
(including Tenant) or other occupant for which Landlord is entitled to
be reimbursed as an additional charge or rental over and above the
basic rent and escalations payable under the lease with that tenant.
(iii) Any depreciation on the Building or the Property.
(iv) Expenses in connection with services or other
benefits of a type that are not generally provided to all office
tenants (including Tenant) but which are provided to another tenant or
occupant of the Building or Property.
(v) Costs incurred due to Landlord's violation of any
terms or conditions of this Lease or any other lease relating to the
Building or Property.
(vi) Overhead profit increments paid to Landlord's
subsidiaries or affiliates for management or other services on or to
the Building or for supplies or other materials to the extent that the
cost of the services, supplies, or materials exceeds the cost that
would have been paid had the services, supplies, or materials been
provided by unaffiliated parties on a competitive basis.
(vii) All interest, loan fees, and other carrying costs
related to any mortgage or deed of trust and all rental and other
amounts payable under any ground or underlying lease.
(viii) Any compensation paid to clerks, attendants, or
other persons in commercial concessions operated by Landlord.
(ix) Advertising and promotional expenditures.
(x) Costs of repairs and other work occasioned by
fire, windstorm, or other casualty of an insurable nature in excess of
the insurance deductible.
(xi) Any costs, fines, or penalties incurred due to
violations by Landlord (as opposed to violations by any tenant and/or
the Tenant) of
5
<PAGE>
any governmental rule or authority, this Lease or any other lease in
the Property, or due to Landlord's negligence or willful misconduct.
(xxii) Costs for sculptures, paintings, or other objects
of art (nor insurance thereon or extraordinary security in connection
therewith).
(xxiii) Wages, salaries, or other compensation paid to any
executive employees above the grade of building manager.
(xiv) The cost of correcting any building code or other
violations which existed prior to the Commencement Date.
(xv) The cost of containing, removing or otherwise
remediating any contamination of the Property (including the
underlying land and ground water) where such contamination was not
caused by Tenant.
(xvi) The cost of capital investment items except as
provided in subdivision (viii) of the items included in Operating
Expenses.
If at any time the Building is less than 95% occupied or Landlord is
not supplying services to at least 95% of the rentable areas of the
Building during an entire calendar year, then Landlord may adjust actual
Operating Expenses to Landlord's estimate of that amount which would have
been paid or incurred by Landlord as Operating Expenses had the Building
been 95% occupied or serviced, and the Operating Expenses as so adjusted
shall be deemed to be the actual Operating Expenses for such calendar year.
If Landlord does not furnish during any Expense Year any particular work or
service (the cost of which, if performed by Landlord, would constitute an
Operating Expense) to a tenant which has been authorized by Landlord to
perform such work or service in lieu of the performance thereof by
Landlord, then Operating Expenses shall be deemed to be increased by an
amount equal to the additional expense which would reasonably have been
incurred during such Expense Year by Landlord if it had, at its cost,
furnished such work or service to such tenant.
(e) "Taxes" shall mean and include all federal, state and local
government taxes, assessments and charges of any kind or nature, now or
hereafter imposed, whether general, special, ordinary or extraordinary, and
any increases resulting from the reassessments caused by any change in
ownership of the Property, incurred by Landlord or assessed against the
Property, in a calendar year with respect to the value, ownership, use,
occupation, management, operation, maintenance, vehicle parking, repair or
leasing of the Property. If any special assessment payable in installments
is levied against all or any part of the Property, then, at Landlord's
discretion, Taxes for the calendar year in which such assessment is levied
and for
6
<PAGE>
each calendar year thereafter shall include only the amount of any
installments of such assessment plus interest thereon paid or payable
during such calendar year (without regard to any right to pay, or payment
of, such assessment in a single payment). Taxes shall include, without
limitation, real estate and transit district taxes and assessments, sewer
charges, sales and use taxes (unless included in Operating Expenses), ad
valorem taxes, personal property taxes, and all taxes, assessments and
charges in lieu of, substituted for or in addition to any or all of the
foregoing taxes, assessments and charges. Taxes shall also include the
amount of all fees, costs and expenses (including, without limitation,
attorneys' fees and court costs) paid or incurred by Landlord during such
calendar year in seeking or obtaining any refund or reduction of Taxes or
for contesting or protesting any imposition of Taxes, whether or not
successful and whether or not attributable to Taxes assessed, paid or
incurred in such calendar year. Notwithstanding any provision of this
Section 4.1(e) to the contrary, Taxes shall not include any federal, state
or local government income, franchise, capital stock, transfer, inheritance
or estate taxes, except to the extent such taxes are in lieu of or a
substitute for any of the taxes, assessments and charges previously
described in this Section 4.1(e).
4.2 Allocation of Direct Expenses. Direct Expenses are determined
-----------------------------
annually for the Property as a whole. The portion of Direct Expenses allocated
to the tenants of the Building shall consist of: (a) all Direct Expenses
attributable solely to the Building and the land parcel(s) upon which the
Building is located to the extent the same are separately identifiable and
capable of separate assessment, as reasonably determined by Landlord; and (b) an
equitable portion of the Direct Expenses attributable to the Property as a whole
and not attributable solely to, and/or not separately identifiable for, the
Building.
4.3 Payment of Rent. Tenant shall pay to Landlord's Management Agent, as
---------------
custodian on behalf of Landlord, at the address specified in Section 1.1.2 of
the Summary, or to such other person or entity or at such other place as
Landlord may from time to time direct in writing, all amounts due Landlord from
Tenant under this Lease, including, without limitation, Monthly Base Rent and
the Estimated Direct Expenses and payments of Direct Expenses pursuant to
Sections 4.5 and 4.6 below (such Estimated Direct Expenses and Direct Expense
payments and all other amounts payable by Tenant, other than the Monthly Base
Rent, shall hereinafter be referred to collectively as "Additional Rent"; the
Monthly Base Rent and Additional Rent are hereinafter referred to collectively
as the "Rent"). Except as specifically provided in this Lease, Rent shall be
paid without abatement, deduction or setoff of any kind, it being the intention
of the parties that, to the full extent permitted by law, Tenant's covenant to
pay Rent shall be independent of all other covenants contained in this Lease.
All of Tenant's theretofore accrued obligations hereunder to pay Rent shall
survive the termination of this Lease.
4.4 Calculation and Payment of Tenant's Share of the Direct Expenses.
----------------------------------------------------------------
Tenant shall pay to Landlord, in the manner set forth in Sections 4.5 and 4.6
below, and as
7
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Additional Rent, an amount equal to Tenant's Share of the Direct Expenses for
each Expense Year any portion of which falls within the Lease Term.
4.5 Statement of Actual Direct Expenses and Payment by Tenant. Landlord
---------------------------------------------------------
shall endeavor to give to Tenant on or before the first day of April following
the end of each Expense Year, a statement (the "Statement") which shall state
the Direct Expenses incurred or accrued for such preceding Expense Year, and
which shall indicate the amount of Tenant's Share thereof and payment of
Tenant's Estimated Direct Expenses. Upon receipt of the Statement for each
Expense Year ending during the Lease Term, if the amount of Tenant's Share of
Direct Expenses exceeds Tenant's payment of Tenant's Estimated Direct Expenses
for such Expense Year, then Tenant shall pay, with its next installment of
Monthly Base Rent due, the full amount of such excess (the "Excess") for such
Expense Year. If Tenant's payment of Tenant's Estimated Direct Expenses exceeds
the amount of Tenant's share of Direct Expenses for such Expense Year as shown
on the Statement, then the amount of such excess shall be credited against
Tenant's Estimated Direct Expenses next due under this Lease, or if the Lease
Term has expired and no further amounts are due from Tenant under this Lease,
Landlord shall refund to Tenant the amount of any unapplied excess not later
than 30 days following delivery of the Statement. The failure of Landlord to
timely furnish the Statement for any Expense Year shall not be deemed a default
by Landlord nor shall it prejudice Landlord from enforcing its rights under this
Section 4.
Even though the Lease Term has expired and Tenant has vacated the Premises,
when the final determination is made of Tenant's Share of the Direct Expenses
for the Expense Year in which this Lease terminates, if an Excess is present,
Tenant shall immediately pay to Landlord an amount as calculated pursuant to the
provisions of Section 4.4 of this Lease. The provisions of this Section 4.5
shall survive the expiration or earlier termination of the Lease Term.
4.6 Statement of Estimated Expenses. In addition, Landlord shall endeavor
-------------------------------
to give Tenant a yearly expense estimate statement (the "Estimate Statement")
which shall set forth Landlord's reasonable estimate ("the Estimate") of what
Tenant's Share of the total amount of the Direct Expenses allocated to tenants
of the Building pursuant to the terms of Section 4.2 above for the then-current
Expense Year shall be (the "Estimated Direct Expenses"). Such Estimate may be
revised by Landlord whenever it obtains information relevant to making such
Estimate more accurate. The failure of Landlord to timely furnish the Estimate
Statement for any Expense Year shall not be deemed a default by Landlord nor
shall it preclude Landlord from enforcing its rights to collect any Estimated
Direct Expenses under this Section 4. Tenant shall pay to Landlord, at the time
and place and in the manner that payments of Monthly Base Rent are due
hereunder, one-twelfth of the Estimate of Tenant's Share of Direct Expenses. In
addition, if pursuant to the Estimate Statement an estimated Excess is
calculated for the then current Expense Year, Tenant shall pay, with its next
installment of the Monthly Base Rent due, the amount of such estimated Excess
for the then-current Expense Year. Until a new Estimate Statement is
8
<PAGE>
furnished, Tenant shall pay monthly, with the Monthly Base Rent installments, an
amount equal to 1/12th of the total Estimated Direct Expenses set forth in the
previous Estimate Statement delivered by Landlord to Tenant.
4.7 Tenant's Right to Inspect Books and Records. On reasonable advance
-------------------------------------------
notice, Landlord shall make available to Tenant's licensed, certified public
accountant, at Tenant's cost, during the 45 days following the receipt by Tenant
of the Statement of Direct Expenses with respect to the Expense Year applicable
to such Statement, Landlord's books and records where the same are maintained
with respect to the Direct Expenses for such Expense Year. Landlord shall have
no obligation to allow its books and records to be reviewed by any person other
than Tenant's licensed, certified public accountant. If Tenant wishes to
contest any item of Direct Expenses within a particular Statement, Tenant shall
do so in a written notice received by Landlord within 30 days following Tenant's
receipt of such Statement, which notice shall specify in detail the item or
items being contested and the specific grounds therefor. However, the giving of
notice shall not relieve Tenant from the obligation to pay any amounts
(including amounts contested by Tenant) in such Statement in accordance with
Sections 4.5 or 4.6 above. If Tenant timely gives said notice to Landlord, any
dispute with respect to any item or items in such Statement, including any
calculations therein, shall be submitted to Landlord's firm of certified public
accountants ("CPA"), whose decision (the "CPA Decision") shall be submitted to
and binding on the parties. If the CPA Decision reveals that Landlord has over-
charged Tenant, then within 30 days after the results of the CPA Decision are
made available to Landlord, Landlord shall credit against future Additional Rent
the amount of such over-charge. If the CPA Decision reveals that the Tenant was
undercharged, then within 30 days after the results of such CPA Decision are
made available to Tenant, Tenant shall reimburse to Landlord the amount of such
undercharge. Tenant shall pay on demand all fees of the CPA with respect to any
such dispute, unless the amount of the Tenant's Share of Direct Expenses, as
provided in such Statement, exceeds the amount of Tenant's Share of Direct
Expenses as finally determined by the CPA by more than 10%. In addition, if the
CPA Decision indicates that the Statement exceeded the actual Direct Expenses
which should have been charged to Tenant by more than 10%, the reasonable cost
of Tenant's audit shall be paid by Landlord. Notwithstanding anything else in
this Section 4.7 to the contrary, if Tenant fails to give such notice within
said 45 day period or fails to pay all amounts (including amounts contested by
Tenant) in such Statement, in accordance with Section 4.5 or this Section 4.7,
whether or not contested, Tenant shall have no further right to contest any item
or items in such Statement and Tenant shall be deemed to have accepted such
Statement.
4.8 Taxes and Other Charges for Which Tenant Is Directly Responsible.
----------------------------------------------------------------
Subject to Section 30.9 of this Lease, Tenant shall reimburse Landlord upon
demand for any and all taxes or assessments required to be paid by Landlord
(except to the extent included in Taxes by Landlord), excluding state, local and
federal personal or corporate income taxes measured by the net income of
Landlord from all sources and estate and inheritance taxes, whether or not now
customary or within the contemplation of the parties hereto, when:
9
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(a) Said taxes are measured by or reasonably attributable to
the cost or value of Tenant's equipment, furniture, fixtures and other
personal property located in the Premises, or by the cost or value of any
leasehold improvements made in or to the Premises by or for Tenant, to the
extent the cost or value of such leasehold improvements exceeds the cost or
value of a building standard build-out as determined by Landlord regardless
of whether title to such improvements shall be vested in Tenant or
Landlord;
(b) Said taxes are assessed upon or with respect to the
possession, leasing, operation, management, maintenance, alteration,
repair, use or occupancy by Tenant of the Premises or any portion of the
Building or Property;
(c) Said taxes are assessed upon this transaction or any
document to which Tenant is a party creating or transferring an interest or
an estate in the Premises; or
(d) Said assessments are levied or assessed upon the Property or
any part thereof or upon Landlord and/or by any governmental authority or
entity, and relate to the construction, operation, management, use,
alteration or repair of mass transit improvements (collectively, "Mass
Transit Assessments").
5. SECURITY DEPOSIT
----------------
Concurrently with the execution and delivery of this Lease, Tenant shall
provide Landlord with a security deposit in the amount set forth in Section
1.1.12 of the Summary as security for the full and punctual performance by
Tenant of all of the terms and provisions of this Lease. At Tenant's option,
the security deposit may be either cash or a letter of credit ("Letter of
Credit"). For purposes of this Section 5, if Tenant shall have elected to
deposit cash, all references herein to proceeds of the Letter of Credit shall be
deemed to refer to the cash security deposit. In the event Tenant defaults in
the performance of any of the terms of this Lease (including, without
limitation, the payment of Monthly Base Rent and/or Additional Rent) and such
default is not cured before the expiration of any applicable notice and cure
period, Landlord may draw upon the Letter of Credit, and apply all or any part
of the proceeds of the Letter of Credit to the extent required for the payment
of any Monthly Base Rent or Additional Rent or for any sum for which Tenant is
liable to Landlord under any of the terms of this Lease, including any payments,
damages or deficiency which Landlord is then entitled to collect from Tenant
under this Lease, whether accruing before or after summary proceedings or other
re-entry by Landlord. In the case of every such use or application of the
proceeds of the Letter of Credit, Tenant shall, on demand, either pay to the
Landlord the sum so used or applied (or deliver a second letter of credit
identical in form and substance to the original letter of credit and issued by
an Acceptable Bank (as hereinafter defined) in such amount to Landlord) which
sum shall be added to the security held hereunder so that the same shall be
10
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replenished to its former amount. In the event of an assignment by Landlord of
its interest in this Lease, Landlord shall transfer the Letter of Credit or the
cash security deposit, as the case may be, to the assignee and Landlord shall so
notify Tenant in writing of any such transfer. Upon such transfer of the Letter
of Credit or the cash security deposit, as the case may be, Landlord shall ipso
facto be released by Tenant from all liability for the return of such Letter of
Credit or cash security deposit and in such case, Tenant agrees to look solely
to the new Landlord for the return of such Letter of Credit or cash security
deposit. The provisions of the preceding sentence shall apply to every transfer
or assignment made of the Letter of Credit or the cash security deposit to a new
Landlord. Tenant shall not assign or encumber or attempt to assign or encumber
the Letter of Credit or the cash security deposited herein as security and
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance or attempted assignment or encumbrance. In the event the
Letter of Credit is to expire by its terms prior to the expiration date of this
Lease (including, without limitation, a notice from the bank that issued the
Letter of Credit that it is not automatically renewing the expiration date for
an additional one (1) year period) and Landlord shall not have received at least
thirty (30) days prior to the expiration date of the Letter of Credit a
substitute Letter of Credit issued by an Acceptable Bank (as hereinafter
defined) which is substantially identical to the original Letter of Credit
except for a later expiration date at least sixty (60) days beyond the then
current expiration date, Landlord may draw upon the entire proceeds of the
Letter of Credit. In the event the Landlord draws upon the Letter of Credit as
aforesaid, the proceeds of such drawing shall be held by the Landlord in
accordance with the terms of this Section 5, as if such proceeds constituted the
Letter of Credit.
If Tenant elects to deposit a Letter of Credit as the security deposit,
such Letter of Credit shall be a clean, irrevocable standby Letter of Credit in
the form of Exhibit 4 attached hereto, shall be issued by a federally chartered
---------
commercial bank which is reasonably acceptable to Landlord ("Acceptable Bank"),
having an office in Chicago, Illinois, and shall have an expiration date which
is at least one (1) year after the date of issuance of the Letter of Credit.
Provided Tenant is not in default under this Lease, the Security Deposit or
Letter of Credit, as the case may be, shall be reduced by Thirty-Three Thousand
Three Hundred Thirty-Three and 33/100 ($33,333.33) Dollars on each anniversary
of the Commencement Date. If Tenant has deposited a Letter of Credit with
Landlord, then provided that Tenant is not in default under this Lease on the
anniversary of the Commencement Date, Landlord shall return to Tenant the Letter
of Credit then being held by Landlord upon receipt of a replacement Letter of
Credit issued by an Acceptable Bank and identical to the Letter of Credit then
being held by Landlord except that such replacement Letter of Credit shall be in
the reduced amount provided for herein. If Landlord is holding a cash Security
Deposit, then provided Tenant is not in default under this Lease on the
anniversary of the Commencement Date, Landlord shall refund to Tenant the
amount, if any, by which the Security Deposit then being held by Landlord
exceeds the reduced amount provided for herein.
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Neither the application of the proceeds of the Letter of Credit or of any
cash security deposit, as the case may be, set forth above nor the payment by
Tenant to restore such security deposit shall operate to cure such default or to
estop Landlord from pursuing any remedy to which Landlord would otherwise be
entitled.
Within thirty (30) days following the expiration of the Lease Term or
earlier termination of this Lease, and provided there exists no default by
Tenant hereunder and no amounts are owing to Landlord by Tenant, the Security
Deposit or any balance thereof or the Letter of Credit, as the case may be,
shall be returned to Tenant (or, at Landlord's option, to Tenant's assignee).
6. USE OF PREMISES
---------------
6.1 Permitted Uses. Tenant shall use and occupy the Premises solely for
--------------
the Permitted Uses set forth in Section 1.1.11 of the Summary and for no other
use or purpose.
6.2 Prohibited Uses. Tenant shall not suffer or permit the Premises or
---------------
any part thereof to be used in any manner, or anything to be done therein, or
suffer or permit anything to be brought into or kept in the Premises which would
in any way (i) violate any law or requirement of public authorities, (ii) cause
structural injury to the Building or any part thereof, (iii) interfere with the
normal operation of the heating, air conditioning, ventilating, plumbing or
other mechanical or electrical systems of the Building or the elevators
installed therein, (iv) constitute a public or private nuisance or waste, (v)
alter the appearance of the exterior of the Building or any portion of the
interior thereof other than the Premises, (vi) impair or disturb the use for
normal office or retail purposes of any other area of the Building or Property
by, or occasion physical discomfort to, any of the other tenants or occupants of
the Building or Property or permit any vapors, fumes or odors to escape to, or
permeate into any other portion of the Building or Property or into the
ventilation system, (vii) permit excessive sound or offensive noise to be heard
outside of the Premises, or (viii) violate any of Tenant's other obligations
under this Lease. Tenant shall not discharge or permit to be discharged any
materials into waste lines, vents or flues of the Building which might
reasonably be anticipated to cause damage thereto. The water and wash closets
and other plumbing fixtures in or serving the Premises shall not be used for any
purpose other than those for which they shall have been designed or constructed
and no sanitary napkins, paper towels, sweepings, rubbish or rags shall be
deposited therein. Tenant is expressly prohibited from using cooking stoves,
ovens (other than consumer-rated microwave ovens), space heaters and vending
machines.
6.3 Removal of Equipment. Tenant, at any time may remove its movable
--------------------
trade fixtures and equipment from the Premises. Tenant shall repair any damage
to the Premises caused by such removal, failing which Landlord may remove the
same and repair the Premises and Tenant shall pay the cost thereof to Landlord
on demand.
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6.4 Reimbursement of Landlord. Within ten days of written demand
-------------------------
therefor, Tenant shall reimburse and compensate Landlord as Additional Rent for
all reasonable expenditures made by, or damages or fines sustained or incurred
by, Landlord due to non-performance or non-compliance with or breach or failure
to observe any term, covenant or condition of this Lease upon Tenant's part to
be kept, observed, performed or complied with.
6.5 Compliance with Laws. Prior to the commencement of the Lease Term, if
--------------------
Tenant is then in possession, and at all times after commencement of the Lease
Term, Tenant, at Tenant's sole cost and expense, shall promptly comply with all
present and future laws, orders and regulations of all state, federal, municipal
and local governments, departments, commissions and boards and any direction of
any public officer pursuant to law, and all orders, rules and regulations of the
American Insurance Association (formerly the National Board of Fire
Underwriters), or any similar body which shall impose any obligation or duty
upon Landlord or Tenant with respect to the Premises, whether or not arising out
of Tenant's use or manner of use thereof (including Tenant's Permitted Uses),
or, with respect to the Building and/or Property if arising out of Tenant's use
or manner of use of the Premises, the Building and/or Property (including the
use permitted under this Lease); provided, however, that nothing herein shall
require Tenant to make structural repairs or alterations unless the same are
required due to Tenant's alterations (or alterations made on behalf of Tenant
and any alterations made at or prior to the Commencement Date other than the
Tenant Improvements, whether done by Landlord's contractor or by Tenant's
contractor) or Tenant has, by its specific manner of use of the Premises or
method of operation therein, violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto or has otherwise given rise to
requirements under any such laws, ordinances, orders, rules, regulations or
requirements. If during the last six (6) months of the Lease Term Tenant would
have to spend in excess of Twenty-Five Thousand and No/100 ($25,000.00) Dollars
in capital improvements to comply with its obligations hereunder, Tenant shall
be responsible for a portion of the cost of such capital improvements ("Capital
Improvement Cost") equal to the Capital Improvement Cost multiplied times a
fraction, the numerator of which is the number of months remaining in the Lease
Term and the denominator of which is the useful life (in months) of the
applicable capital improvement(s) under the Internal Revenue Code; provided that
nothing herein shall be deemed to limit Tenant's obligation to make and pay the
entire cost of any such capital improvement(s) which result from Tenant's manner
of use of the Premises or method of operation therein or any alterations made by
Tenant or made on behalf of Tenant other than the Tenant Improvements. Provided
Tenant does not occupy the Premises prior to the Commencement Date, nothing
herein shall obligate Tenant to comply with any laws requiring removal,
abatement or remediation of hazardous or toxic materials and/or asbestos located
in the Premises prior to the Commencement Date. Tenant may, after securing
Landlord to Landlord's satisfaction against all damages, interest, penalties and
expenses, including, but not limited to, reasonable attorneys' fees, by cash
deposit or by surety bond in an amount and in a company satisfactory to
Landlord,
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contest and appeal any such laws, ordinances, orders, rules, regulations or
requirements provided same is done with all reasonable promptness and provided
such appeal shall not subject Landlord to prosecution for a criminal offense or
constitute a default under any lease or mortgage under which Landlord may be
obligated, or cause the Premises or any part thereof to be condemned or vacated,
and provided further that Tenant's right to contest and appeal laws relating to
such non-compliance shall have no adverse effect on the Building or Property
including, without limitation, on the ability to obtain (a) a building permit
for the Property, (b) a certificate of occupancy for the Property or any
portions thereof, or (c) a building completion sign-off for any work performed
in or on the Property.
6.6 Tenant's Covenants. Tenant shall comply with all applicable federal,
------------------
state and municipal laws, ordinances and regulations, and Building and Property
rules. Nothing herein shall obligate Tenant to comply with any laws requiring
removal, abatement or remediation of hazardous or toxic materials and/or
asbestos located in the Premises prior to the Commencement Date. Tenant shall
not directly or indirectly make any use of the Premises which may be prohibited
by any of the foregoing or which may be dangerous to persons or property or
which may increase the cost of insurance or require additional insurance
coverage. Tenant agrees, at its sole expense, to comply with and conform to all
of the rules, regulations and requirements of any fire insurance rating
organization or similar organization and with all governmental authorities
having jurisdiction thereof, present or future, relating in any way to the
condition, use and occupancy of the Premises throughout the Lease Term,
including, without limitation, any applicable Illinois Inspection and Rating
Bureau, Fire Insurance Rating Organization and by the fire department having
jurisdiction over the Property; provided, however, that nothing herein shall
require Tenant to make structural repairs or alterations unless the same are
required due to Tenant's alterations (or alterations made on behalf of Tenant
and any alterations made at or prior to the Commencement Date other than the
Tenant Improvements, whether done by Landlord's contractor or by Tenant's
contractor) or Tenant has, by its specific manner of use of the Premises or
method of operation therein, violated any such laws, ordinances, orders, rules,
regulations or requirements with respect thereto or has otherwise given rise to
requirements under any such laws, ordinances, orders, rules, regulations or
requirements. If during the last six (6) months of the Lease Term Tenant would
have to spend in excess of Twenty-Five Thousand and No/100 ($25,000.00) Dollars
in capital improvements to comply with its obligations hereunder, Tenant shall
be responsible for a portion of the cost of such capital improvements ("Capital
Improvement Cost") equal to the Capital Improvement Cost multiplied times a
fraction, the numerator of which is the number of months remaining in the Lease
Term and the denominator of which is the useful life (in months) of the
applicable capital improvement(s) under the Internal Revenue Code; provided that
nothing herein shall be deemed to limit Tenant's obligation to make and pay the
entire cost of any such capital improvement(s) which result from Tenant's manner
of use of the Premises or method of operation therein or any alterations made by
Tenant or made on behalf of Tenant other than the Tenant Improvements. Tenant
shall comply with and participate in any emergency and fire evacuation and
safety programs adopted by Landlord. Tenant shall not permit inflammables such
as gasoline, kerosene, naphtha,
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benzene, or explosives or other intrinsically dangerous articles, goods or
merchandise to be brought into the Building. Tenant shall not use or allow
another person or entity to use any part of the Premises for storage, use,
treatment, manufacture or sale of any hazardous or toxic substance, material or
waste which is or becomes regulated by any local governmental authority, the
State of Illinois or the United States Government, except that nothing herein
shall prohibit Tenant from storing and using ordinary and customary office
supplies, provided such storage and use is in accordance with all applicable
laws, rules and regulations. Tenant shall comply with the directions of any
public officer authorized by law with respect to the Premises or the Building or
the use or occupancy thereof.
6.7 Additional Restrictions. Tenant shall not use, suffer or permit the
-----------------------
Premises or any part thereof to be used for the manufacture, sale, serving or
distribution by gift or otherwise of any spirituous, fermented or intoxicating
liquors or any drugs; provided, so long as Tenant is in full compliance with
Section 15.1, Tenant may serve liquor without charge on special limited
occasions related to Tenant's business conducted at the Premises, so long as
Tenant has procured so called "host liability" insurance as part of the
liability insurance required under Section 15.1. Tenant shall not bring into or
store firearms of any kind in the Building. Tenant shall not use the Premises
for the manufacture, distribution or sale of any merchandise or other materials.
Tenant shall not install any equipment utilizing ammonia or other process
necessitating venting. Tenant shall not permit any odors, acids, vapors, or
other gases or materials to be discharged from the Premises into the common
areas, waste lines, vents, flues or other tenant spaces in the Building or
Property. Tenant shall not use, suffer or permit the use of the Premises or any
part thereof for housing accommodations, for lodging or sleeping purposes or for
any illegal purpose.
6.8 Common Areas. Tenant shall not, whether temporarily, accidentally or
------------
otherwise, allow anything to remain in, place or store anything in, or obstruct
in any way, any portion of the Building or Property other than the Premises,
including any sidewalk, plaza area, driveway, passageway, entrance, exit,
stairway, lobby, corridor, hall, elevator, shipping platform, truck concourse or
vault area in or about the Building or Property. All passageways, entrances,
exits, elevators, stairways, corridors, halls and roofs of the Building and
Property are not for the use of the general public, and Landlord shall in all
cases retain the right to control and prevent access thereto by all persons
whose presence, in the judgment of Landlord, may be prejudicial to the safety,
character, reputation or other interests of the Building and/or Property, its
tenants or Landlord; provided, however, that nothing herein contained shall be
construed to prevent ingress and egress to the Premises by persons with whom
Tenant deals within the normal course of Tenant's business. Tenant shall not
enter nor permit its employees, agents, guests or invitees to enter into areas
of the Building or Property designated for the exclusive use of Landlord, its
employees, other tenants guests or invitees. Tenant shall not use, nor permit
the use by its employees, agents, guests or invitees, of any common area in the
Building or Property other than for access to and from the Premises.
15
<PAGE>
6.9 Signs and Advertising. Tenant shall not, without the prior written
---------------------
consent of Landlord which consent may be withheld by Landlord in Landlord's sole
and absolute discretion, install any shades, draperies, blinds or other window
covering, awning, sign, lettering, picture, notice, advertisement or object
unacceptable to Landlord on or against glass partitions, doors or windows that
would be visible outside the Premises or any sign, lettering, picture, notice or
advertisement within the Premises that would be visible outside the Premises.
Landlord shall have the right to prohibit any advertisement of or by Tenant in
any public media, by direct solicitation or otherwise which advertisement, in
Landlord's reasonable opinion, tends to impair the reputation of the Building or
Property or its desirability as a first-class office building project. Upon
written notice from Landlord, Tenant shall immediately refrain from and
discontinue any such advertisement.
6.10 Orderly Condition. Tenant shall at all times keep the Premises neat
-----------------
and orderly. Tenant and Tenant's employees, agents, contractors and licensees
shall not at any time place, leave or discard any rubbish, paper, articles, or
objects of any kind whatsoever outside the doors of the Premises or in the
corridors, passageways or common areas of the Building or Property.
6.11 Quiet Enjoyment. So long as Tenant is not in default of any of its
---------------
covenants and obligations under this Lease all of which covenants and
obligations are independent of Landlord's covenants and obligations hereunder,
Tenant shall during the Lease Term, peaceably and quietly have, hold and enjoy
the Premises free from hindrance by Landlord or anyone claiming by, through or
under Landlord, subject to the terms and conditions of this Lease.
7. RULES AND REGULATIONS
---------------------
Tenant agrees to observe the reservations and rights reserved to Landlord
in this Lease. Tenant shall comply, and shall cause its employees, agents,
contractors and licensees to comply, and Tenant shall use its best efforts to
cause Tenant's clients, customers and invitees to comply, with the rules and
regulations attached hereto as Exhibit 3 and incorporated herein by this
---------
reference, and such revised or additional rules and regulations reasonably
adopted by Landlord during the Lease Term and applied generally to all office
tenants of the Building (the "Rules and Regulations"). Tenant has reviewed the
Rules and Regulations and understands that Landlord shall have the right, but
not the obligation, to enforce the Rules and Regulations in order to preserve
the value and integrity of the Property. Any violation by Tenant or any of its
employees, agents, clients, customers, guests or invitees of any of the Rules
and Regulations so adopted by Landlord shall be a default by Tenant under this
Lease and may be restrained by court injunction; but whether or not so
restrained, Tenant acknowledges and agrees that it shall be and remain liable
for all damages, loss, costs and expense resulting from any violation by Tenant
or such other persons of any of the Rules and Regulations. Nothing in this Lease
contained shall be construed to impose upon Landlord any duty or obligation to
enforce the Rules and Regulations or the terms, covenants and conditions of any
other lease against
16
<PAGE>
any other tenant or any other persons; Landlord shall not be liable to Tenant
for violation of the same by any other tenant, its employees, agents, guests,
invitees, licensees, customers, clients, family members, or by any other person;
and no such violation or failure of Landlord to enforce same shall constitute,
or be treated as contributing to, an eviction, actual or constructive, or affect
Tenant's covenants and obligations hereunder, or allow Tenant to reduce, abate
or offset the payment of any Rent or other sum due under this Lease. Landlord
shall not enforce any such Rule or Regulation against Tenant in a discriminatory
manner. Notwithstanding anything to the contrary contained in this Section, if
any rule or regulation is in conflict with any provision of this Lease, the
provisions of this Lease shall prevail. In addition, no such rule or regulation,
or any subsequent amendment thereto adopted by Landlord, shall in any way
materially adversely alter, reduce or affect any of Tenant's rights or
materially adversely enlarge any of Tenant's obligations under this Lease.
8. SERVICES PROVIDED
-----------------
8.1 Standard Services. Landlord shall furnish:
-----------------
(a) Cooled or heated air as and when necessary for normal comfort as
reasonably determined by Landlord under normal business operations and in
the absence of the use of equipment or quantity of inhabitants which
materially affects the temperature which would otherwise be maintained in
the Premises, Monday through Friday from 8:00 am. to 6:00 p.m. and
Saturdays from 8:00 am. to 1:00 p.m., Holidays (as defined below) excepted.
If the use of heat generating equipment in the Premises materially affects
the temperatures otherwise maintained by the air conditioning system for
normal business operations, and thereby requires, in the reasonable
judgment of Landlord, the modification of the air conditioning or
ventilation systems of the Building or the air conditioning or ventilating
equipment in the Premises or the installation of supplementary air
conditioning units in the Premises, Landlord reserves the right to perform
such modification or installation, and the cost thereof shall be paid by
Tenant to Landlord at the time of completion of such modification or
installation. Any increased expense in maintaining or operating the system
resulting, in Landlord's reasonable opinion, from such modification shall
be paid by Tenant. In addition, Tenant shall reimburse Landlord for all
direct and indirect costs of installation and maintenance of any
supplementary air conditioning equipment or units installed in accordance
with this Section 8.1(a). Tenant agrees to keep and cause to be kept closed
all windows in the Premises and at all times to cooperate fully with
Landlord in the operation of said system and to abide by all reasonable
regulations and requirements which Landlord may prescribe to permit the
proper functioning and protection of the heating, ventilation and air
conditioning systems. For purposes of this Lease, "Holidays" means those
federal or state holidays which Landlord, in its sole discretion,
designates to Tenant as "Holidays" for purposes of this Lease, such
designation being subject to change from time to time; provided, Landlord
shall not designate any day as a Holiday
17
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unless a substantial number of first-class Chicago office buildings
recognize such day as a holiday. Tenant hereby acknowledges that the
windows of the Premises are sealed, and that the temperature conditions in
the Premises may cause the Premises to become uninhabitable during the
times when Landlord is not required pursuant to this paragraph to furnish
heat, ventilation or air conditioning, unless after hours heating,
ventilating and/or cooling is provided to the Premises pursuant to Section
8.4. Such condition of the Premises shall not constitute nor be deemed to
be a breach or a violation of this Lease or of any provision hereof, nor
shall it be deemed an eviction nor shall Tenant claim or be entitled to
claim any abatement or reduction of Rent nor make any claim for any damages
or compensation by reason of such condition of the Premises.
(b) Washroom facilities, not within the Premises, for use by Tenant
in common with other tenants on the floor on multi-tenant floors.
(c) Janitor service in and about the Premises, Saturdays, Sundays and
Holidays excepted. Landlord or Landlord's janitorial contractor may operate
cleaning equipment using electrical outlets in the Premises without
reimbursement to Tenant for the cost of electrical current thereby
consumed.
(d) Automatic passenger elevator service in common with Landlord and
other tenants, at all times, day and night, including Holidays. Landlord
shall provide limited non-exclusive freight elevator service at such times
as Landlord shall determine and upon payment of such uniform charges as
Landlord may establish from time to time.
(e) Window washing of the inside and outside of all peripheral
Building windows at such times as Landlord may determine, but at least two
times per year.
8.2 Interruption of Use. Interruptions of any service to be provided by
-------------------
Landlord under this Section 8 or of any utility or other services to the
Building or the Premises, in whole or in part caused by repairs, maintenance,
replacements, breakdowns, improvements, changes of service, alterations,
accidents, acts of God or an enemy, strikes, lockouts, labor controversies,
insurrections, riots, picketing (whether legal or illegal), laws, orders or
regulations of any federal, state, county or municipal authorities, any
accidents or casualties whatsoever, inability of Landlord to obtain electricity,
fuel, water or supplies, or by the act or default of Tenant or any person other
than Landlord, or by any cause or causes beyond the reasonable control of
Landlord, shall not be deemed an eviction or disturbance of Tenant's use and
possession of the Premises or any part thereof, or render Landlord liable for
damages (unless due to Landlord's negligence or willful misconduct) by abatement
or reduction of Rent or otherwise or relieve Tenant from performance of Tenant's
obligations under this Lease. In addition, Tenant agrees that compliance with
any mandatory or voluntary energy conservation measures or other legal
requirements instituted by any appropriate governmental authority shall not be
considered a violation of
18
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any terms of this Lease and shall not entitle Tenant to terminate this Lease or
require abatement or reduction of Rent hereunder. Landlord agrees to use
reasonable efforts to cause the restoration of services in the event of any
interruption described in this paragraph. Notwithstanding the foregoing, if an
interruption or cessation of utilities which renders the Premises untenantable
results from Landlord's breach of this Lease or the negligence or willful
misconduct of Landlord, or its employees, agents and contractors and the
Premises are not used by Tenant for the conduct of Tenant's business as a result
thereof for a period of five (5) consecutive business days, Base Rent and
applicable Operating Expenses shall be abated for the period which commences
five (5) business days after the date Tenant gives to Landlord notice of such
interruption until such utilities are restored or Tenant resumes using the
Premises, whichever is earlier. In the event of any dispute between the parties
as to whether Tenant is entitled to an abatement of Base Rent and Operating
Expenses, such dispute shall be resolved by the arbitration under the then
prevailing commercial rules of the American Arbitration Association, which
arbitration shall be conducted in Chicago, Illinois. Pending the final
determination of the arbitrator(s), Tenant shall continue paying the
installments of Base Rent and Operating Expenses as provided in this Lease. If
the arbitrator(s) determine that Tenant was entitled to an abatement of Base
Rent and/or Operating Expenses, Landlord shall promptly refund to Tenant the
amount which the arbitrator(s) determined is owing to Tenant.
8.3 Tenant's Equipment/Overstandard Use/Electricity.
-----------------------------------------------
(a) The Premises is separately metered for electricity and Tenant
shall make arrangements with the utility company for provision of
electrical service to the Premises. Tenant shall pay, when due, directly to
the utility company all bills for electrical consumption in the Premises.
Landlord shall not be liable for any interruption in electrical service or
for the character or quality of electrical service provided to the
Premises, unless due to its negligence or willful misconduct.
Tenant shall not install or operate in the Premises any equipment or
other machinery, other than a telephone system, facsimile machines,
electric typewriters, word processing machines, adding machines, radios,
televisions, tape recorders, Dictaphones, bookkeeping machines, clocks,
standard size office copiers, mini-computers, computer servers customary
for general office use, and other standard office machines requiring
similarly low utility consumption, without (i) obtaining the prior written
consent of Landlord, which consent shall not be unreasonably withheld or
delayed but may be conditioned upon the payment by Tenant of Additional
Rent for additional consumption of utilities, additional wiring or other
expenses resulting therefrom, (ii) securing all necessary permits from
governmental authorities and utility companies and furnishing copies
thereof to Landlord, and (iii) complying with any other requirements
reasonably imposed by Landlord. Tenant shall not install any equipment or
machinery which may necessitate any changes, replacements or additions to
or material changes in the use of the water, heating, plumbing, air
conditioning or electrical systems of the
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Building without obtaining the prior written consent of Landlord. Further,
Tenant shall not place a load upon the floor of the Premises which exceeds
the floor load per square foot which such floor was designed to carry.
(b) If at any time during the Lease Term, Tenant's connected
electrical load from its use of equipment and fixtures (including
incandescent lighting and power), as reasonably estimated by Landlord,
exceeds the reasonable capacity available at the Premises (taking into
account the electrical usage of Landlord and other tenants and occupants of
the Building), then following notice to Tenant and a reasonable period in
which Tenant may correct such situation, Landlord shall have the right to
install additional transformers, distribution panels, wiring and other
applicable equipment at the expense of Tenant. Landlord agrees to install
such equipment at any time, at Tenant's expense, upon a written request
from Tenant that such equipment be installed. None of the equipment so
installed shall be deemed to be Tenant's property. In all events, the
Premises shall be separately metered for all electrical usage at the
Premises, including lighting, and Tenant shall pay all charges therefor
prior to the date the same become delinquent.
(c) If business machines and equipment belonging to Tenant cause
noise or vibration that may be transmitted to any part of the Building to
such degree as to be objectionable to Landlord or to any tenant of the
Building, Tenant shall install and maintain, at Tenant's expense, devices
that eliminate the noise and vibration.
8.4 Additional Services. Landlord shall in no event be obligated to
-------------------
furnish any services or utilities, other than those specified in Section 8.1
above; provided, so long as Tenant is not in default of any of its obligations
under this Lease, Landlord shall furnish after hours heating, ventilation and
air conditioning to the Premises upon such advance notice to Landlord by Tenant
as Landlord shall require of tenants generally. If Landlord furnishes services
or utilities requested by Tenant in addition to those specified in Section 8.1
(including heating, ventilating and air conditioning at times other than those
specified in paragraph (a) of Section 8.1), Tenant shall pay to Landlord
Landlord's then prevailing rates for such services and utilities within 30 days
after receipt of Landlord's invoices therefor. If Tenant shall fail to make any
such payment, Landlord may, upon five days' advance notice to Tenant, and in
addition to Landlord's other remedies under this Lease, discontinue any or all
of the additional services and utilities, including the furnishing of after-
hours heating, ventilating and air conditioning and such discontinuance shall
not be deemed to constitute an eviction or disturbance of Tenant's use and
possession of the Premises nor shall same relieve Tenant from paying Rent or
performing any of its obligations under this Lease.
8.5 Building Directory. Landlord shall list Tenant on the Building
------------------
directory. Any additional names requested by Tenant to be displayed in the
Building directory must be approved by Landlord and, if approved, will be
provided at the sole expense of Tenant.
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9. ADDITIONS OR ALTERATIONS
------------------------
9.1 Landlord's Consent to Alterations. Tenant shall not, without
---------------------------------
Landlord's prior written consent, permit any alteration, improvement, addition
or installation in or to the Premises (all of which is collectively referred to
as "Work"), including installation of telephone, computer or internal sound or
paging systems or other similar systems, or the performance of any decorating,
painting and other similar work in the Premises. The construction of the initial
Tenant Improvements (as defined in Exhibit 2) to the Premises shall be governed
---------
by the terms of the Work Letter attached to this Lease as Exhibit 2, and not the
---------
terms of this Section 9. Notwithstanding the foregoing, Tenant may, without
---------
obtaining Landlord's prior consent but with prior notice to Landlord, decorate
the interior of the Premises at Tenant's sole discretion; provided such
decorations do not involve structural changes or improvements to the Premises or
the Building, do not involve or affect any of the Building Systems, do not
exceed $10,000.00 in cost in any one instance, cannot be seen from the exterior
of the Building or from any common areas of the Building and are otherwise
performed in compliance with the provisions of this Article 9.
9.2 Manner of Construction. In the event Landlord consents to any Work,
----------------------
such Work shall be performed by contractors, subcontractors, and mechanics that
Landlord has consented to in advance, which consent shall not be unreasonably
withheld; conditioned or delayed, provided, Landlord reserves the right to cause
any portion of such Work which affects the Building's structure or any Building
system (such as the heating, ventilating and air conditioning systems, the
plumbing system, life safety and the electrical system) to be performed by
contractors, subcontractors and mechanics of Landlord's choosing, in which event
Tenant shall pay the reasonable cost of preparation of the plans and permits and
fees of said contractors, subcontractors and mechanics. Furthermore, Landlord
reserves the right to require Tenant to retain only union contractors. Before
commencement of any Work or delivery of any materials into the Premises or the
Building, Tenant shall furnish to Landlord, for its prior written approval,
architectural plans and specifications certified by a licensed architect or
engineer reasonably acceptable to Landlord, and such other documentation as
Landlord shall reasonably request. Tenant agrees to contract directly with such
approved contractors, subcontractors and mechanics. Tenant agrees to indemnify,
defend, protect and hold Landlord, its agents, partners, officers, servants and
employees forever harmless from and against all claims and liabilities of every
kind, nature and description which may arise out of or in any way be connected
with any such Work. Tenant shall pay the reasonable costs incurred by Landlord
in reviewing plans and materials submitted to Landlord for approval. In
addition, promptly after being billed therefor by Landlord, Tenant shall pay to
Landlord a supervisory fee equal to 5% of the cost of all Work. Landlord's
review of the plans and materials submitted to Landlord as set forth in this
Section 9.2, shall be for its sole purpose and shall not imply Landlord's review
of the same, or obligate Landlord to review the same, for quality, design, Code
compliance or other like matters. Accordingly, notwithstanding that any plans
and materials submitted to Landlord are reviewed by Landlord or its space
planner, architect, engineers and consultants, and notwithstanding any advice or
assistance which may be rendered to
21
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Tenant by Landlord or Landlord's space planner, architect, engineers, and
consultants, Landlord shall have no liability whatsoever in connection therewith
and shall not be responsible for any omissions or errors contained therein, and
Tenant's waiver and indemnity set forth in Section 14 of this Lease shall
specifically apply thereto. Tenant shall pay the cost of all such Work and the
cost of repairing, decorating and altering the Premises and the Building
occasioned by any such Work. In the event the cost of the Work exceeds Twenty-
Five Thousand and No/100 ($25,000.00) Dollars, Landlord shall have the right, as
a condition to approval, to require Tenant to provide reasonable security to
insure the payment of all costs of the Work. All alterations, improvements,
additions and installations to or on the Premises (including the initial Tenant
Improvements constructed pursuant to the Work Letter), if any, shall become part
of the Premises at the time of installation.
9.3 Insurance; As-Built Plans. Prior to the commencement of any Work or
-------------------------
the delivery of any materials to the Building, Tenant shall submit to Landlord
for Landlord's approval, the names and addresses of all contractors (other than
those chosen by Landlord), contracts, necessary permits and licenses,
certificates of insurance (including, without limitation, builder's all-risk,
worker's compensation, commercial general liability and architect's professional
errors and omissions insurance) naming Landlord and Landlord's agents as
additional insureds and instruments of indemnification against any and all
claims, costs, expenses, damages and liabilities which may arise in connection
with the Work, all in such form and amount as shall be satisfactory to Landlord.
In addition, Landlord may, in its discretion, require Tenant to obtain a lien
and completion bond or other alternate form of security satisfactory to Landlord
in an amount sufficient to ensure the lien free completion of such Alterations
and naming Landlord as a co-obligee. All Work shall be done only at such time
and in such manner as Landlord may from time to time reasonably designate. Upon
completion of any Work, Tenant shall furnish Landlord with two sets of as-built
plans of the Work and with contractors' and subcontractors' affidavits, full and
final waivers of lien, and receipted paid bills covering all labor, services and
materials expended and used in connection with such Work. All Work shall comply
with all insurance requirements, all laws, ordinances, rules and regulations of
all governmental authorities, and all collective bargaining agreements
applicable to the Building, and shall be done in a good and workmanlike manner
and with the use of new high-quality grades of materials.
10. CONDITION OF PREMISES
---------------------
10.1 Representations of Landlord. No agreements or representations,
---------------------------
except such as are expressly contained herein and in the Work Letter attached
hereto, if any, have been made to Tenant respecting the condition of the
Premises or Property. Except as provided in the Work Letter, if any, Landlord
shall not be obligated to provide or pay for any improvement work for the
Premises. Subject to Landlord's obligation to complete the Tenant Improvements
in accordance with the provisions of Exhibit 2 hereto, Tenant conclusively
---------
waives all claims relating to the condition of the Premises and accepts the
22
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Premises as being free from defects and in good, clean and sanitary order,
condition and repair, and agrees to keep the Premises in such condition.
10.2 Tenant's Repair Obligations. Except as provided in Section 10.3,
---------------------------
Tenant shall, during the Lease Term, at its own expense, keep the Premises,
including all improvements, fixtures and equipment therein, clean and safe and
in as good repair and condition as when all of the work described in the Work
Letter, if any, was completed (or as to subsequent work, as when such Work was
completed), ordinary wear and tear excepted. Tenant shall be responsible for all
damage or injury to the Premises or any other part of the Building or Property
and the systems and equipment thereof, whether requiring structural or
nonstructural repairs, caused by or resulting from carelessness, omission,
neglect or improper conduct of Tenant, Tenant's agents, employees, invitees or
licensees, or which arise out of any work, labor, service or equipment done for
or supplied to Tenant (except for the Tenant Improvements and except for any
work, labor, service or equipment performed or provided by Landlord) or arising
out of the installation, use or operation of the property or equipment of
Tenant. Tenant shall also be responsible for all damage to the Property, the
Building and the Premises caused by the moving of Tenant's fixtures, furniture
and equipment. Tenant shall promptly make, at Tenant's expense, all repairs in
and to the Premises for which Tenant is responsible, under the supervision of
Landlord and using only such contractors and subcontractors as Landlord has
approved, which approval shall not be unreasonably withheld. Any other repairs
in or to the Property or the Building or the facilities and systems thereof for
which Tenant is responsible shall be performed by contractors retained by
Landlord at Tenant's expense. In connection with all such repairs to the
Premises or other parts of the Building or Property, Tenant shall reimburse
Landlord within ten days of receipt of a bill therefor for Landlord's costs
incurred in connection with such work, together with a fee for supervising such
work (whether or not performed by Landlord) equal to 5% of the cost of such
work. Notwithstanding anything to the contrary in this Lease, Lessee's
obligation to repair or maintain shall not include the making of any structural
repairs or improvements unless, and to the extent, required due to the
negligence or willful acts of Tenant or its employees, agents or invitees.
Notwithstanding anything to the contrary in this Lease, Tenant's obligation to
repair or maintain shall not include the making of any capital repairs or
improvements unless, and to the extent, required due to Tenant's negligence or
willful misconduct.
10.3 Landlord's Repair Obligations. Except as provided in Sections 12 and
-----------------------------
13, Landlord shall, subject to Section 14 and the second and third sentences of
Section 10.2, be obligated only to maintain and make necessary repairs to the
structural elements of the Building, the roof of the Building, the elevators
within the Building, the public corridors, public washrooms and lobby of the
Building, the exterior windows of the Building, and, subject to the provisions
of Section 8, the electrical, plumbing, heating, ventilation and air
conditioning systems of the Building. Tenant agrees to give prompt notice of any
defective condition in the Premises for which Landlord may be responsible
hereunder. Inconvenience, annoyance or injury to business arising from Landlord
or others making repairs, alterations, additions or improvements in or to any
portion of the Property, the
23
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Building or the Premises or in and to the fixtures, appurtenances or equipment
thereof, shall not be deemed an eviction or disturbance of Tenant's use and
possession of the Premises or any part thereof, or render Landlord liable for
damages by abatement or reduction of Rent or otherwise or relieve Tenant from
performance of Tenant's obligations under this Lease. Landlord will use
reasonable efforts to schedule work in the Premises so as to minimize any
adverse effect thereof on Tenant's business. If Tenant requests that such work
be done after normal business hours, and if Landlord consents thereto (such
consent not to be unreasonably withheld), Landlord will cause such work to be
done after normal business hours and Tenant will pay the increased cost thereof
within ten days of Tenant's receipt of a bill therefor. Tenant hereby waives and
releases its right to make repairs at Landlord's expense under any law, statute,
or ordinance now or hereafter in effect.
11. SURRENDER
---------
11.1 Surrender of Premises. At the termination of this Lease, by lapse of
---------------------
time or otherwise, Tenant shall surrender possession of the Premises to Landlord
and deliver all keys to the Premises and all locks therein to Landlord and make
known to the Landlord the combination of all combination locks in the Premises,
and shall, subject to Sections 12 and 13, return the Premises and all equipment
and fixtures of the Landlord therein to Landlord in as good condition as when
Tenant originally took possession (or as to subsequent Work, as when such Work
was completed), ordinary wear and tear excepted, failing which Landlord may
restore the Premises and such equipment and fixtures to such condition and the
Tenant shall pay the cost thereof to Landlord on demand.
11.2 Removal of Property. Upon termination of this Lease or of Tenant's
-------------------
right to possession of the Premises, by lapse of time or otherwise, all
installations, additions, partitions, hardware, light fixtures, floor coverings,
non-trade fixtures and improvements, temporary or permanent, except movable
furniture and movable equipment belonging to Tenant, in or upon the Premises,
whether placed there by Tenant or Landlord, shall be Landlord's property and
shall remain upon the Premises, all without compensation, allowance or credit to
Tenant; provided, however, that if prior to any such termination Landlord so
directs by notice, Tenant, at Tenant's sole expense, shall, prior to such
termination or promptly thereafter, remove such of the installations, additions,
partitions, hardware, cabling and data lines, light fixtures, floor coverings,
non-trade fixtures and improvements placed in the Premises by or on behalf of
Tenant as are designated in such notice and repair any damage to the Premises
caused by such removal, failing which Landlord may remove the same and repair
the Premises, and Tenant shall pay the cost thereof to Landlord on demand.
Notwithstanding anything to the contrary in this Lease, Tenant shall not be
required to remove any alterations, additions, improvements or utility
installations for which Tenant has obtained Landlord's consent, unless Landlord
has indicated at the time of granting such consent that removal will be required
at the end of the Lease term.
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<PAGE>
11.3 Survival. All obligations of Tenant under this Section 11 shall
--------
survive the termination of this Lease, by lapse of time or otherwise.
12. DAMAGE OR DESTRUCTION
---------------------
12.1 Repair of Damage to Premises by Landlord. Tenant shall promptly
----------------------------------------
notify Landlord of any damage to the Premises resulting from fire or any other
casualty. If the Premises or any common areas of the Building or Property
serving or providing access to the Premises shall be damaged by fire or other
casualty, Landlord shall promptly and diligently, subject to reasonable delays
for insurance adjustment or other matters beyond Landlord's reasonable control,
and subject to all other terms of this Section 12, restore the Premises and such
common areas. Such restoration shall be to substantially the same condition of
the Premises and such common areas prior to the casualty, except for
modifications required by zoning and building codes and other laws or by the
holder of any mortgage on the Building and/or the Property, or the lessor of any
ground or underlying lease with respect to the Building and/or the Property, or
any other modifications to such common areas deemed desirable by Landlord,
provided access to the Premises and any common restrooms serving the Premises
shall not be materially impaired. Notwithstanding any other provision of this
Lease, upon the occurrence of any damage to the Premises, Tenant shall assign to
Landlord (or to any party designated by Landlord) all insurance proceeds payable
to Tenant under Tenant's casualty insurance required under Section 15 of this
Lease, to the extent applicable to Landlord's restoration and Landlord shall
repair any injury or damage to the improvements at or in the Premises, whether
or not installed by Tenant or previously existing, including the Tenant
Improvements (as modified by any subsequent Work) installed in the Premises and
shall return such improvements to their original condition subject to 12.2
below. Landlord shall not be liable for any inconvenience or annoyance to Tenant
or its visitors, or injury to Tenant's business resulting in any way from such
damage or the repair thereof; provided however, that if such fire or other
casualty shall have damaged the Premises or common areas necessary to Tenant's
occupancy, and if such damage is not the result of the negligence or willful
misconduct of Tenant or Tenant's employees, contractors, licensees, or invitees,
Landlord shall allow Tenant a proportionate abatement of the Monthly Base Rent
and Tenant's Share of Direct Expenses to the extent the Premises are unfit for
occupancy for the purposes permitted under this Lease, and not occupied by
Tenant as a result thereof.
12.2 Landlord's Option to Repair. Notwithstanding the terms of Section
---------------------------
12.1 of this Lease, Landlord may elect not to rebuild and/or restore the
Premises, the Building and/or the common areas and instead terminate this Lease
by notifying Tenant in writing of such termination within 90 days after the date
of damage, but Landlord may so elect only if the Building and/or the common
areas shall be damaged by fire or other casualty or cause, whether or not the
Premises are affected, and one or more of the following conditions is present:
(i) repairs cannot reasonably be completed within 120 days of the date of damage
(when such repairs are made without the payment of overtime or other premiums);
(ii) the holder of any mortgage on the Property and/or Building or the lessor of
25
<PAGE>
any ground or underlying lease with respect to the Property and/or Building
shall require that the insurance proceeds or any portion thereof be used to
retire the mortgage debt, or shall terminate the ground or underlying lease, as
the case may be; or (iii) the damage is not fully covered, except for deductible
amounts, by Landlord's insurance policies.
12.3 Waiver of Statutory Provisions. The provisions of this Lease,
------------------------------
including this Section 12, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part
of the Premises, the Building or the Property and any statute or regulation of
the State of Illinois, with respect to any rights or obligations concerning
damage or destruction in the absence of an express agreement between the
parties, and any other statute or regulation, now or hereafter in effect, shall
have no application to this Lease or any damage or destruction to all or any
part of the Premises, the Building or the Property.
12.4 Damage Near End of Term. In the event that the Premises, the
-----------------------
Building and/or any common areas of the Building or Property servicing or
providing access to the Premises or Building is destroyed or damaged to any
substantial extent during the last 6 months of the Lease Term, then
notwithstanding any other provision contained in this Section 12, both Landlord
and Tenant shall have the option to terminate this Lease by giving written
notice to Tenant of the exercise of such option within 30 days after such damage
or destruction, in which event this Lease shall cease and terminate as of the
date of such notice, Tenant shall pay the Monthly Base Rent and Tenant's Share
of Direct Expenses properly apportioned up to such date of damage, and both
parties hereto shall thereafter be freed and discharged of all further
obligations hereunder, except as provided for in provisions of this Lease which
by their terms survive the expiration or earlier termination of the Lease Term.
12.5 Tenant's Right to Terminate. Notwithstanding anything to the
---------------------------
contrary contained herein, if Tenant's use of the Premises is substantially
impaired due to any fire or other casualty for a period of more than one hundred
fifty (150) consecutive days after the date of such fire or other casualty,
Tenant shall have the right to terminate this Lease by giving written notice of
termination to Landlord at any time thereafter until Tenant's use of the
Premises is substantially restored; provided that any such termination shall not
be effective if the damage to the Premises shall have been substantially
repaired within thirty (30) days following Landlord's receipt of the
aforementioned written termination notice.
13. EMINENT DOMAIN
--------------
13.1 Permanent Taking of Premises/Termination. In the event that the
----------------------------------------
whole or a substantial part of the Premises shall be condemned or taken in any
manner for any public or quasi-public use (or sold under threat of such taking),
and as a result thereof, the remainder of the Premises cannot be used for the
same purpose as prior to such taking, the Lease Term shall terminate as of the
date possession is taken; provided, however, if Landlord elects to make
comparable space in the Building available to Tenant according
26
<PAGE>
to the terms and provisions of Section 26 of this Lease, Tenant shall accept
such space and this Lease shall not terminate but shall then apply to such
space.
13.2 Partial Taking of Premises. If less than a substantial part of the
--------------------------
Premises shall be so condemned or taken (or sold under threat thereof) and after
such taking the Premises can be used for the same purposes as prior thereto as
reasonably determined by Tenant, the Lease Term shall cease only as to the part
so taken as of the date possession shall be taken by such authority, and Tenant
shall pay full Rent up to that date (with appropriate refund by Landlord of such
Rent attributable to the part so taken as may have been paid in advance for any
period subsequent to the date possession is taken) and thereafter Monthly Base
Rent and Tenant's Share shall be equitably adjusted to reflect the reduction in
the Premises by reason of such taking. Landlord shall, at its expense, make all
necessary repairs or alterations to the Building so as to constitute the
remaining Premises a complete architectural unit, provided that Landlord shall
not be obligated to undertake any such repairs or alterations if the cost
thereof exceeds the award resulting from such taking. If Landlord fails to fund
such excess cost in order to complete such repairs or alterations, Tenant shall
have the right to terminate this Lease by giving Landlord notice thereof;
provided, if Landlord notifies Tenant within ten days after receiving Tenant's
notice that Landlord shall fund such excess cost and promptly complete such
repairs or alterations, then this Lease shall continue as if Tenant had not
given Landlord such notice of termination.
13.3 Taking Building. If part of the Building or common areas of the
---------------
Building or Property servicing or providing access to the Building shall be so
condemned or taken (or sold under threat thereof), or if any adjacent property
or street shall be condemned or improved by a public or quasi-public authority
in such a manner as to alter the use of any part of the Premises or the Building
and, in the opinion of Landlord, the Building or any part thereof should be
altered, demolished or restored in such a way as to materially alter the
Premises or access to the Premises or Building, Landlord may terminate this
Lease by notifying Tenant of such termination within 60 days following such
taking of possession or improvement by such public or quasi-public authority,
and this Lease shall expire on the date specified in the notice of termination,
which shall be not less than 60 days after the giving of such notice, as fully
and completely as if such date were the date hereinbefore set forth as the
expiration of the Lease Term, and the Monthly Base Rent and Tenant's Share of
Direct Expenses shall be apportioned as of such date.
13.4 Condemnation Award. Landlord shall be entitled to receive the entire
------------------
award, including the damages for the property taken and damages to the
remainder, with respect to any condemnation proceedings affecting the Building
and/or Property. Tenant agrees not to make any claim against Landlord or the
condemning authority for any portion of such award or compensation, whether
attributable to the value of any unexpired portion of the Lease Term, the loss
of profits' goodwill, leasehold improvements or otherwise, Tenant irrevocably
assigning any and all such claims to Landlord. Nothing herein contained shall be
deemed or construed to prevent Tenant from prosecuting a separate claim against
the
27
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condemning authority for the value of any fixtures or improvements installed in
or made to the premises by Tenant, at its cost, or for its costs of moving or
loss of business by reason of such condemnation; provided that any such claim
does not reduce the amount of Landlord's award.
14. WAIVER AND INDEMNIFICATION
--------------------------
14.1 Release and Waiver. To the extent not expressly prohibited by law,
------------------
Tenant releases Landlord, its beneficiaries, all Mortgagees (as defined in
Section 24), and their respective agents, partners, shareholders, members,
directors, managers, officers, servants and employees (collectively, "Landlord
and its Affiliates"), from and waives all claims for damages to person or
property sustained by Tenant or by any occupant of the Premises or the Building,
or by any other person, resulting directly or indirectly from fire or other
casualty, any other cause or any existing or future condition, defect, manner or
thing in the Premises, the Building, the Property or any part thereof, or from
any equipment or appurtenances therein, or from any accident in or about the
Building or Property, or from any act or neglect of any tenant or other occupant
of the Building or Property or of any other person. This section shall apply
especially, but not exclusively, to damage caused by water, earth movement,
snow, frost, steam, excessive heat or cold, sewage, gas, odors or noise, or the
bursting or leaking of pipes or plumbing fixtures, falling plaster, broken
glass, sprinkling or air conditioning devices or equipment, or flooding of
basements, and shall apply without distinction as to the person whose act or
neglect was responsible for the damage and whether the damage was due to any of
the acts specifically enumerated above, or from any other thing or circumstance,
whether of a like nature or of a wholly different nature. All personal property
belonging to Tenant or any occupant of the Premises that is in the Premises or
the Building or on the Property shall be there at the risk of Tenant or other
person only and Landlord and its Affiliates shall not be liable for damage
thereto or theft or misappropriation thereof.
14.2 Indemnification. To the extent not expressly prohibited by law,
---------------
Tenant agrees to protect, hold harmless and indemnify Landlord and its
Affiliates from and against any and all claims, losses, expenses and
liabilities, including without limitation reasonable attorneys' fees, for
injuries to all persons and damage to or misappropriation or loss of property
occurring in the Premises due to theft or other crimes occurring in the Premises
and for injuries to all persons and damage to or loss of property arising from
Tenant's use or occupancy of the Premises or the conduct of its business or from
activity, work, or thing done, permitted or suffered by Tenant in or about the
Premises, or from any breach or default on the part of Tenant in the performance
of any covenant or agreement on the part of Tenant to be performed pursuant to
the terms of this Lease or due to any other act or omission of Tenant, its
agents, employees, contractors, licensees, clients, customers or invitees. In
the event any action or proceeding is brought against Landlord and its
Affiliates (or any or all of them) by reason of any such indemnified claims,
losses, expenses and liabilities, then, upon notice from Landlord, Tenant
covenants to defend such action or proceeding by counsel reasonably satisfactory
to such indemnitee.
28
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14.3 Tenant's Liability for Damage. If any damage to the Premises, the
-----------------------------
Building or the Property, or any equipment or appurtenance therein, whether
belonging to Landlord or to other tenants of the Building or Property, results
from any act or neglect of Tenant, its agents, employees, guests or invitees,
Tenant shall be liable therefor and Landlord may, at Landlord's option, repair
such damage, and Tenant shall, upon demand by Landlord, reimburse Landlord for
the total cost of such repairs in excess of amounts, if any, paid to Landlord
under insurance covering such repairs. If Landlord elects not to repair such
damage, Tenant shall promptly repair such damages at its own cost and in
accordance with the provisions of Section 9 as if such repair constituted Work
under Section 9. If Tenant occupies space in which there is exterior glass, then
Tenant shall be responsible for the damage, breakage or repair of such glass
caused by Tenant or Tenant's employees, agents, contractors, licensees, clients,
customers or invitees, except to the extent that such loss or damage is
recoverable under Landlord's insurance, if any.
14.4 Landlord's Liability. Notwithstanding any provision of this Lease to
--------------------
the contrary other than Section 15, Tenant shall not be deemed to exempt
Landlord from liability for damage or injury to persons or damage to property to
the extent such damage (i) is actually caused by or results from the negligence
or willful misconduct of Landlord, its agents, servants or employees in the
operation or maintenance of the Building or a breach by Landlord of its
obligations hereunder, and (ii) is not otherwise covered by insurance maintained
by Tenant under this Lease (or would have been so covered had Tenant maintained
insurance as required under this Lease).
14.5 Survival. The provisions of this Section 14 shall survive the
--------
expiration or sooner termination of this Lease.
15. INSURANCE
---------
15.1 Tenant's Insurance. Tenant shall maintain the following coverages in
------------------
the following amounts.
15.1.1 Commercial General Liability Insurance covering the insured
against claims of bodily injury, personal injury and property damage arising out
of Tenant's operations, assumed liabilities or use of the Premises, including a
Broad Form Commercial Liability endorsement covering the insuring provisions of
this Lease and the performance by Tenant of the indemnity agreements set forth
in Section 14 of this Lease, written on the basis of occurrence, for limits of
liability not less than:
29
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Bodily Injury and
Property Damage Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
Personal Injury Liability $3,000,000 each occurrence
$3,000,000 annual aggregate
0% Insured's Participation
Worker's Compensation and ($500,000 (or such higher amount
Employer's Liability as may be required from time to time
Insurance by any Employee Benefit Acts or other
Statutes applicable in the state in
which the Premises are located, and in
any event sufficient to protect
Tenant from liability
15.1.2 Physical Damage Insurance covering all office furniture, trade
fixtures, office equipment, merchandise and all other items of Tenant's property
on the Premises. Such insurance shall be written on an "all-risk" of physical
loss or damage basis, for the full replacement cost value new without deduction
for depreciation of the covered items and in amount that meet any co-insurance
clauses of the policies of insurance and shall include a vandalism and malicious
mischief endorsement and sprinkler leakage coverage.
15.1.3 Business interruption, loss of income and extra expense
insurance in amounts sufficient to pay for Tenant's expenses and lost income
attributable to perils commonly insured against by prudent tenants or
attributable to prevention of access to the Premises as a result of such perils.
15.1.4 Form of Policies. The minimum limits of policies of insurance
----------------
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. Such insurance shall (i) name Landlord, Landlord's
beneficiaries, Landlord's Management Agent, the Mortgagees, any ground or
underlying lessors of the Building, and any other party Landlord so specifies,
as additional insureds, (ii) specifically cover the liability assumed by Tenant
under this Lease, including, but not limited to, Tenant's obligations under
Section 14 of this Lease, (iii) be issued by an insurance company having a
rating of not less than A-X in Best's Insurance Guide or which is otherwise
acceptable to Landlord and licensed to do business in the State of Illinois (iv)
be primary insurance as to all claims thereunder and provide that any insurance
carried by Landlord is excess and is non-contributing with any insurance
requirement of Tenant; (v) provide that said insurance shall not be canceled or
coverage changed unless 30 days' prior written notice shall have been given to
Landlord, Landlord's Management Agent, and any Mortgagee or ground or underlying
lessor of the Building; and (vi) contain a cross-liability endorsement or
severability of interest clause acceptable to Landlord. Tenant shall deliver
said policy
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or policies or certificates thereof to Landlord on or before the
Commencement Date and at least 30 days before the expiration dates thereof. In
the event Tenant shall fail to procure such insurance, or to deliver such
policies or certificates, Landlord may, at its option, procure such policies for
the account of Tenant, and the cost thereof shall be paid to Landlord as
Additional Rent within five days after delivery to Tenant of bills therefor.
15.2 Subrogation. Landlord and Tenant agree to have their respective
-----------
insurance companies issuing property damage insurance waive any rights of
subrogation that such companies may have against Landlord or Tenant, as the case
may be provided, however, the foregoing waiver shall not be operative in any
case where the effect thereof is to invalidate any insurance coverage of the
waiving party and provided further that Landlord and Tenant each agree to give
written notice of the terms of this mutual waiver to each insurance company
which has issued, or in the future may issue, property damage insurance to it,
and to have said insurance policies properly endorsed, if necessary, to prevent
the invalidation of said insurance coverage by reason of said waiver. Landlord
and Tenant hereby waive any right that either may have against the other on
account of any loss or damage to their respective property to the extent such
loss or damage is insurable under policies of insurance for fire and all-risk
coverage, theft, general liability, or other similar insurance.
15.3 Additional Insurance Obligations. Tenant shall carry and maintain
--------------------------------
during the entire Lease Term, at Tenant's sole cost and expense, the insurance
required to be carried by Tenant pursuant to this Section 15. In addition to
Tenant's obligation in Section 6, Tenant shall, at Tenant's expense, comply as
to the Premises with all insurance company requirements pertaining to the use of
the Premises. If Tenant's conduct or use of the Premises causes any increase in
the premiums for insurance policies maintained by Landlord, then Tenant shall
reimburse Landlord for any such increase.
16. LANDLORD'S RIGHT OF ACCESS
--------------------------
16.1 Landlord's Entry. Landlord and its representatives shall have the
----------------
right to enter the Premises at all reasonable times to inspect the same, to
perform janitorial and cleaning services, to make repairs, alterations,
additions or improvements, to maintain the Premises or the Building,
specifically including, but without limiting the generality of the foregoing, to
make repairs, additions or alterations within the Premises to mechanical,
electrical and other facilities serving other premises in the Building, to make
repairs, additions or alterations to the Building and/or Property which may
change, eliminate or remove common areas, parking areas, if any, or the method
of ingress to or egress from the Building and such areas, to convert common
areas into leaseable areas, or otherwise alter, repair or reconstruct the common
areas or change the use thereof, and to perform any acts related to the safety,
protection, preservation, reletting, sale or improvement of the Premises, the
Building and/or the Property and to post such reasonable notices as Landlord may
desire to protect its rights. Landlord and its representatives shall have the
right to enter the Premises at all reasonable times to exhibit the Premises to
prospective
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purchasers, mortgagees or lessors of the Building and/or Property, and, during
the 180 days prior to the expiration of the Lease Term, to exhibit the Premises
to prospective tenants. In the event the Premises are vacant, Landlord may place
upon the doors or in the windows of the Premises any usual or ordinary "To Let,"
"To Lease," or "For Rent" signs. Tenant shall permit Landlord to erect, use,
maintain and repair pipes, cables, conduit, plumbing, columns, shafts, vents and
wires, in, to and through the Premises, to the extent Landlord may now or
hereafter deem necessary or appropriate for the proper operation, maintenance
and repair of the Property and any portion of the Premises. Landlord and its
representatives, for any of the foregoing purposes, may enter on and about the
Premises and the Building with such material as Landlord may deem necessary, may
erect scaffolding and all other necessary structures on or about the Premises,
the Building and the Property and may close or temporarily suspend operations of
entrances, doors, corridors, elevators, driveways, parking areas, loading docks
or other facilities. Tenant waives any claim for damages, including the loss of
business resulting therefrom, and agrees to pay Landlord for overtime and other
expenses incurred if such work is done other than during ordinary business hours
at Tenant's request. Notwithstanding anything in this Lease to the contrary,
except with respect to an emergency, Landlord shall endeavor to provide Tenant
with at least 24 hours' prior actual notice (which need not be in writing)
before entering the Premises. In the event of an emergency, the determination of
which shall require Landlord to be reasonable, Landlord shall, based on the
circumstances, endeavor to provide Tenant with notice (which need not be in
writing) of any contemplated entry upon the Premises. In the event of any entry
by Landlord onto the Premises, Landlord shall minimize, to the extent feasible,
interference with the conduct of Tenant's business.
16.2 Additional Landlord's Rights. Landlord shall also have the right to
----------------------------
take all material into the Premises that may be required for the purposes set
forth in the foregoing Section 16.1 without the same constituting a constructive
eviction of Tenant, in whole or in part and Rent shall not abate (except as
provided in Section 12) while said repairs, alterations, improvements or
additions are being made, by reason of loss or interruption of business of
Tenant, or otherwise. Landlord shall, to the extent feasible, minimize
disruption to Tenant's use of the Premises in connection with any such entry.
If Tenant shall not be personally present to open and permit entry into the
Premises, at any time, when for any reason entry therein shall be necessary or
desirable, Landlord or Landlord's agents may enter the Premises by a master key,
or may forcibly enter the same, without rendering Landlord or such agents liable
therefor (if during such entry Landlord or Landlord's agents shall accord
reasonable care to Tenant's property), and without in any manner affecting the
obligations and covenants of Tenant under this Lease. Landlord shall also have
the right at any time, without the same constituting a constructive eviction and
without incurring any liability to Tenant therefor, to change the arrangement or
location of entrances or passageways, doors and doorways, corridors, elevators,
stairs, toilets or other public parts of the Building or Property, and to close
entrances, doors, corridors, elevators, plaza or other facilities so long as the
Premises are reasonably accessible and usable. Landlord shall not be liable to
Tenant for any expense, injury, loss or damage resulting
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from work done in or upon, or the use of, any adjacent or nearby building, land,
street, alley or underground vault or passageway.
16.3 Scheduling. Landlord will use reasonable efforts to schedule the
----------
work referred to in Sections 16.1 and 16.2 to be done in the Premises so as to
minimize any adverse effect thereof on Tenant's business, and if Tenant
reasonably requests and Landlord consents thereto (which consent shall not be
unreasonably withheld, conditioned or delayed), Landlord will cause such work to
be done after normal business hours and Tenant shall pay the increased cost
thereof within ten days after Tenant's receipt of a bill therefor.
17. RIGHTS RESERVED TO LANDLORD
---------------------------
Landlord shall have the following rights exercisable without notice and
without liability to Tenant for damage or injury to property, person or business
(all claims for damage being hereby waived and released by Tenant) and without
effecting an eviction or disturbance of Tenants use or possession or giving rise
to any claim for set-offs or abatement of Rent:
(a) To change the name or street address of the Building or Property,
or the suite number of the Premises;
(b) To install and maintain signs on the exterior and interior of the
Building and/or Property (provided Tenant's view is not obstructed);
(c) To designate all sources furnishing sign painting and lettering,
towels, coffee cart service, vending machines, or toilet supplies used or
consumed in the common areas or facilities of the Building and/or Property;
(d) To have pass keys to the Premises;
(e) To grant to anyone the exclusive right to conduct any business or
render any service in the Building or Property, provided such exclusive
right shall not operate to exclude Tenant from the use expressly permitted
by this Lease;
(f) To have access to all mail chutes or boxes according to the rules
of the United States Postal Service;
(g) To require all persons entering or leaving the Building during
such hours as Landlord may from time to time reasonably determine to
identify themselves to a watchman by registration or otherwise, and to
establish their right to enter or leave and to exclude or expel any
peddler, solicitor or beggar at any time from the Premises, the Building
and/or the Property; and
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(h) To close the Building between the hours of 6:00 p.m. and 7:00 am.
the following day on weekdays, 1:00 p.m. on Saturdays, and all day on
Sundays and Holidays, or at such other reasonable times as Landlord may
determine, subject, however, to Tenant's right to admittance to the
Premises at all times (including Holidays, but excluding emergencies) under
such regulations as shall be prescribed from time to time by Landlord in
its reasonable discretion.
18. ABANDONMENT
-----------
Tenant shall not abandon the Premises at any time during the Lease Term.
Any reentry by Landlord following abandonment by Tenant shall not, unless
Landlord so elects in a written notice to Tenant, constitute or be deemed to
constitute acceptance by Landlord of a surrender of this Lease, but rather, upon
such abandonment, Tenant's right to possession of the Premises shall cease but
Tenant shall remain liable for all of its obligations under this Lease. Without
limitation of the foregoing, upon any such abandonment, Landlord shall have the
remedies provided for in Section 21. If Tenant shall abandon or surrender the
Premises or be dispossessed by process of law or otherwise during the Lease Term
or at the termination of the Lease Term, any personal property left on the
Premises shall be deemed to be abandoned at the option of Landlord, and title
thereto shall pass to Landlord under this Lease, which shall constitute a bill
of sale. For purposes of this Lease, and at the option of Landlord, the
Premises shall be deemed vacated or abandoned if Tenant, or an agent or employee
of Tenant, shall not have conducted Tenant's ordinary business upon the Premises
during any period of 60 consecutive days.
19. TRANSFER OF LANDLORD'S INTEREST; LIABILITY OF LANDLORD
------------------------------------------------------
Landlord hereby reserves the right to sell, assign or transfer this Lease.
In such event this Lease shall remain in full force and effect, subject to the
performance by Tenant of all the terms, covenants and conditions on its part to
be performed, and provided either Landlord continues as, or such assignee or
transferee becomes, the Landlord hereunder. In the event that such assignee or
transferee agrees to perform all the terms, covenants and conditions of Landlord
pursuant to this Lease which are to be performed by Landlord from and after the
effective date of such sale, assignment or transfer of this Lease (as the case
may be), then, upon any such sale, assignment or transfer, other than merely as
security, Tenant agrees to look solely to the responsibility of assignee or
transferee with respect to all matters in connection with this Lease and the
transferor Landlord shall be released from any further obligations hereunder
that arise subsequent to the date of such sale, assignment or transfer.
20. TRANSFER OF TENANT'S INTEREST
-----------------------------
20.1 Transfers. Tenant shall not sell, assign, encumber, mortgage or
---------
transfer this Lease or any interest therein, sublet or permit the occupancy or
use by others of the
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Premises or any part thereof, or allow any transfer hereof or any lien upon
Tenant's interest by operation of law or otherwise (collectively, a "Transfer"),
without the prior written consent of Landlord, which, except as otherwise
provided in this Section 20.1, Landlord may withhold in the exercise of its
absolute discretion, provided that if Landlord, upon receiving Tenant's Notice
(defined below) of a proposed subletting or assignment, does not elect to
Recapture (as defined below), Landlord shall not unreasonably withhold,
condition or delay its consent to such subletting or assignment. Any Transfer
which is not in compliance with the provisions of this Section 20 shall, at the
option of Landlord, be void and of no force or effect. Tenant shall, by written
notice, in the form specified in the following sentence ("Tenant's Notice"),
advise Landlord of Tenant's intention on a stated date (which shall not be less
than 60 days after the date of Tenant's Notice) to sublet any part or all of the
Premises for the balance or any part of the Lease Term or to assign its interest
in this Lease, and, in such event, Landlord shall have the right, to be
exercised by giving written notice to Tenant within 30 days after receipt of
Tenant's Notice, to recapture ("Recapture") the space described in Tenant's
Notice and such notice of Recapture shall, if given, cancel and terminate this
Lease with respect to the space therein described as of the date stated in
Tenant's Notice. Tenant's Notice shall state the name and address of the
proposed subtenant or assignee; the nature of proposed subtenant or assignee's
business; and a description of that portion of the Premises to be occupied,
including the number of square feet of net rentable area within that portion and
a true and complete copy of the proposed sublease or assignment and all related
documentation, and current credit reports and financial statements of the
proposed subtenant or assignee, shall be delivered to Landlord with Tenant's
Notice. If Tenant's Notice shall cover all of the space hereby demised, and
Landlord shall elect to give the aforesaid notice of Recapture with respect
thereto, then the Lease Term shall expire and end on the date stated in Tenant's
Notice as fully and completely as if that date had been herein definitely fixed
for the expiration of the Lease Term. If, however, this Lease is terminated
pursuant to the foregoing with respect to less than the entire Premises, the
Monthly Base Rent and Tenant's Share then in effect shall be adjusted on the
basis of the number of rentable square feet retained by Tenant in proportion to
the original rentable square feet of the Premises, and this Lease as so amended
shall continue thereafter in full force and effect. In such event, Landlord
shall pay the cost of erecting demising walls and public corridors and making
other required modifications to physically separate the portion of the Premises
remaining subject to this Lease from the rest of the Premises. Without limiting
Landlord's right to reasonably withhold its consent to a proposed subletting or
assignment, the withholding of such consent will be deemed reasonable if:
(a) in the reasonable judgment of Landlord, the subtenant or assignee
(i) is of a character or engaged in a business or proposes to use the
Premises in a manner which is not in keeping with the standards of Landlord
for the Building, or (ii) has an unfavorable reputation or credit standing;
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(b) either the area of the Premises to be sublet or the remaining
area of the Premises is not regular in shape with appropriate means of
ingress and egress suitable for normal renting purposes;
(c) a direct result of such subletting would be that more than six
tenants would be occupying the floor(s) of the Building on which the
Premises is located;
(d) the transferee is either a government agency or instrumentality
thereof;
(e) the proposed Transfer would cause Landlord to be in violation of
another lease or agreement to which the Landlord is a party or would give
an occupant of the Property a right to cancel its lease;
(f) the terms of the proposed Transfer will allow the transferee to
exercise a right of renewal, right of expansion, right of first offer, or
other similar right held by Tenant (or will allow the transferee to occupy
space leased by Tenant pursuant to such right);
(g) Tenant is in default under this Lease;
(h) such proposed assignment or subletting is to an existing tenant
of the Property (or any affiliate of an existing tenant) or to any person
or party with whom Landlord is in the process of negotiating a lease of
space in the Property;
(i) the transferee intends to use the portion of the Premises which
is subject to the Transfer for purposes not permitted under this Lease;
(j) such proposed assignment of subletting would result in a
violation of any applicable law, ordinance or government regulation;
(k) such proposed assignee or subtenant is a high traffic tenant or
is engaged in any type of sales where the public is invited to enter and
use the Premises;
(l) the proposed assignee or subtenant is a trade or labor union
office;
(m) the proposed assignee or subtenant will be using any portion of
the Premises as an educational or training facility or is in the primary
business of providing education or training; or
(n) the proposed assignee or subtenant is an employment office.
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Each time Tenant requests Landlord's consent for any assignment of this Lease or
any sublease of all or any portion of the Premises, Tenant shall pay to Landlord
the actual reasonable costs, charges and expenses (including reasonable
attorneys' fees) incurred by Landlord in connection with such request and
Landlord's review of the proposed assignment or sublease as provided in Section
21.6 of this Lease, whether or not such consent is given; such payment shall be
made by Tenant to Landlord within ten days after demand by Landlord.
Notwithstanding anything herein to the contrary, Tenant shall have the
right, without obtaining Landlord's consent, to assign this Lease or sublease
the Premises to a Related Entity (as hereinafter defined), subject to compliance
with the terms hereof. Within fifteen (15) days following the assignment of this
Lease to a Related Entity, and as a condition to the effectiveness thereof,
Tenant shall deliver to Landlord a fully executed Assignment and Assumption
Agreement pursuant to which the Tenant assigns to the Related Entity all of the
transferring Tenant's right, title and interest in this Lease and the Related
Entity assumes all of the Tenant's obligations and liabilities under this Lease.
The form and substance of the Assignment and Assumption Agreement shall be
reasonably acceptable to Landlord. No assignment of this Lease to a Related
Entity shall serve to release the assigning Tenant from any of its obligations
or liabilities under this Lease. Within fifteen (15) days following the sublease
of the Premises to a Related Entity and as a condition to the effectiveness
thereof, Tenant shall deliver to Landlord a fully executed sublease agreement
which shall be reasonably acceptable to Landlord in form and substance. No
sublease shall serve to release Tenant from any of its obligations or
liabilities under this Lease. The term "Related Entity" shall mean a
corporation, partnership, limited liability company or other entity that
controls, is controlled by or is under common control with Tenant. The term
"control" shall mean with respect to (a) a corporation, the ownership of more
than fifty (50%) percent of the issued and outstanding voting stock together
with the right to manage the affairs of the corporation and (b) with respect to
a partnership, limited liability company or other entity, the ownership of more
than fifty (50%) percent of the legal and equitable interests, together with the
right to manage the affairs of the partnership, limited liability company or
other entity.
20.2 Excess Rent; Effect of Transfer. If Tenant shall sublet or assign
-------------------------------
the Premises or any part thereof or assign any interest in this Lease at a
rental rate (or additional consideration) in excess of the then current Monthly
Base Rent and amount of Direct Expense payments per rentable square foot, fifty
(50%) percent of all such excess proceeds ("Excess Proceeds") shall be and
become the property of Landlord and shall be paid to Landlord as it is received
by Tenant after first offsetting Tenant's reasonable out-of-pocket costs and
expenses of such assignment or subletting. Tenant shall furnish Landlord with a
statement executed by Tenant's chief financial officer, setting forth in detail
the computation of all such proceeds and Landlord or its representatives shall
have access to the books, records and papers of Tenant in relation thereto and
shall have the right to make copies thereof. Any non-monetary consideration
shall be paid to Landlord in such form as is satisfactory to Landlord. If
Tenant shall assign or sublet the Premises or any
37
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part thereof, (i) Tenant shall be responsible for all actions and neglect of the
assignee or subtenant and its officers, partners, employees, contractors,
agents, licensees, clients, customers and invitees as if such actions and
neglect had been committed or omitted by Tenant, (ii) with respect to all
obligations and responsibilities of Tenant under this Lease, all references to
Tenant shall be deemed to include any assignee or subtenant, and all references
to Tenant's officers, partners, employees, contractors, agents, licensees,
clients, customers or invitees shall be deemed to include, respectively, each
assignee's or subtenant's officers, partners, employees, contractors, agents,
licensees, clients, customers and invitees, and (iii) each waiver made by Tenant
under this Lease shall be deemed to have also been made by each such assignee or
subtenant. Nothing in this Section 20.2 shall be construed to relieve Tenant
from the obligation to obtain Landlord's prior written consent to any proposed
sublease or assignment.
20.3 Continuing Liability. The consent by Landlord to any Transfer shall
--------------------
not be construed as a waiver or release of Tenant from liability for the
performance of all covenants and obligations to be performed by Tenant under
this Lease, and Tenant shall remain liable therefor, nor shall the collection or
acceptance of Rent from any assignee, subtenant, transferee or occupant
constitute a waiver or release of Tenant from any of its obligations or
liabilities under this Lease. Any consent given by Landlord to a Transfer
pursuant to this Section 20 shall not be construed as relieving Tenant from the
obligation of obtaining Landlord's prior written consent to any subsequent
Transfer.
20.4 Additional Transfers.
--------------------
(a) If Tenant is a partnership or limited liability company, a
withdrawal or change, whether voluntary, involuntary or by operation of law
or in one or more transactions, of partners or members owning directly or
indirectly a controlling interest in Tenant, or the dissolution of the
partnership or limited liability company, without immediate reconstitution
thereof, or the change or conversion of Tenant to a limited liability
company or limited liability partnership, shall be deemed an assignment of
this Lease and subject to the provisions of this Section 20. If Tenant is
a corporation, any dissolution, merger, consolidation or other
reorganization of Tenant, or the sale, transfer or redemption of a direct
or indirect controlling interest in the capital stock of Tenant, in one or
more transactions, shall be deemed a voluntary assignment of this Lease and
subject to the provisions of this Section 20. However, the preceding
sentence shall not apply to corporations the stock of which is traded
through a national or regional exchange or over-the-counter. Neither this
Lease nor any interest therein nor any estate created thereby shall pass by
operation of law or otherwise to any trustee, custodian or receiver in
bankruptcy of Tenant or any assignee for the assignment of the benefit of
creditors of Tenant.
(b) The provisions of this Section 20.4 shall not apply to
transactions with a corporation into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are
transferred provided that in any of such
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events (i) the successor to Tenant has a net worth computed in accordance
with generally accepted accounting principles at least equal to the greater
of (1) the net worth of Tenant immediately prior to such merger,
consolidation or transfer, or (2) the net worth of Tenant herein named on
the date of this lease, and proof satisfactory to Landlord of such net
worth shall have been delivered to Landlord at least fifteen (15) days
prior to the effective date of such transaction, (ii) such merger,
consolidation or transfer is for a good business purpose and not
principally for the purpose of transferring the leasehold created hereby,
and (iii) the liabilities of Tenant under this Lease are assumed by the
successor to Tenant, whether by operation of law or by the effective
provisions contained in the instruments of merger, consolidation, transfer
or assignment.
21. TENANT'S DEFAULT; LANDLORD'S RIGHTS AND REMEDIES
------------------------------------------------
21.1 Events of Default. The occurrence of any one or more of the
-----------------
following matters constitutes a default ("Default") by Tenant under this Lease:
(a) Failure by Tenant to pay within five business days following
written notice of delinquency, any Rent or any other amounts due and
payable by Tenant under this Lease or under any other agreement between
Landlord and Tenant;
(b) Failure by Tenant to observe or perform any of the covenants in
this Lease in respect to assignment, subletting or other Transfers;
(c) Abandonment of the Premises as prohibited in Section 18;
(d) Failure by Tenant to cure immediately after notice thereof from
Landlord any hazardous condition that Tenant has created in violation of
law or of this Lease;
(e) Failure by Tenant to observe or perform any other covenant,
agreement, condition or provision of this Lease, if such failure shall
continue for ten days after written notice thereof to Tenant by Landlord
provided, said ten day period shall be extended, if Tenant commences to
cure said failure within said ten day period, said failure is not capable
of being cured within said ten day period, and Tenant diligently and
continuously prosecutes the cure thereof to completion;
(f) The levy upon or the attachment by legal process of the leasehold
interest of Tenant, or the filing or creation of a lien in respect of such
leasehold interest;
(g) Tenant becomes insolvent or bankrupt or admits in writing its
inability to pay its debts as they mature, makes an assignment for the
benefit of creditors,
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or applies for or consents to the appointment of a trustee or receiver for
itself or for all or a part of its property;
(h) Proceedings for the appointment of a trustee, custodian or
receiver of Tenant or for all or a part of Tenant's property are filed
against Tenant or such guarantor and are not dismissed within sixty (60)
days;
(i) Proceedings in bankruptcy, or other proceedings for relief under
any law for the relief of debtors, are instituted by or against Tenant,
and, if instituted against Tenant, are allowed against or are consented to
by Tenant or are not dismissed within sixty (60) days thereof;
(j) The rejection of this Lease under Section 235 of Title 11 of the
United States Code;
(k) Tenant shall repeatedly default in the timely payment of Rent or
any other charges required to be paid, or shall repeatedly default in
keeping, observing or performing any other covenant, agreement, condition
or provision of this Lease, whether or not Tenant shall timely cure any
such payment or other default. For the purposes of this subsection, the
occurrence of similar defaults three times during any 12 month period shall
constitute a repeated default;
(l) Tenant dissolves or winds up its business;
(m) any representation or warranty made by Tenant is incorrect or
misleading in any material respect;
Any notice periods provided for under this Section 21.1 shall run
concurrently with any statutory notice periods and any notice given hereunder
may be given simultaneously with or incorporated into any such statutory notice.
21.2 Remedies Upon Default. Upon the occurrence of a Default by Tenant,
---------------------
Landlord shall have, in addition to any other remedies available to Landlord at
law or in equity, the option to pursue any one or more of the following
remedies, each and all of which shall be cumulative and nonexclusive, without
any notice or demand whatsoever.
(a) Landlord may terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails to do
so, Landlord may, without prejudice to any other remedy which it may have
for possession or arrearages in rent, enter upon and take possession of the
Premises and expel or remove Tenant and any other person who may be
occupying the Premises or any part thereof, without being liable for
prosecution or any claim or damages therefor, and Landlord may recover from
Tenant the following:
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(i) The worth at the time of award of any unpaid rent
which has been earned at the time of such termination; plus
(ii) The worth at the time of award of the amount by which
the unpaid rent for the balance of the Lease Term after the
termination exceeds the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus
(iii) Any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to perform
its obligations under this Lease, specifically including but not
limited to, brokerage commissions and advertising expenses incurred,
expenses of remodeling the Premises or any portion thereof for a new
tenant, whether for the same or a different use, and any special
concessions made to obtain a new tenant; and
(iv) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time
to time by applicable law.
The term "rent" as used in this Section 21.2 shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to the
terms of this Lease, whether to Landlord or to others. As used in Section
21.2.(a)(i) above, the "worth at the time of award" shall be computed by
allowing interest at the Interest Rate set forth in Section 30.5 of this
Lease. As used in Section 21.2(a)(ii) above, the "worth at the time of
award" shall be computed by discounting such amount at the discount rate of
the Federal Reserve Bank of Chicago at the time of award plus 1%.
(b) Landlord may terminate the right of Tenant to possession of the
Premises without terminating this Lease by giving notice to Tenant that
Tenant's right of possession shall end on the date stated in such notice,
whereupon the right of Tenant to possession of the Premises or any part
thereof shall cease on the date stated in such notice but Tenant's
obligations under this Lease shall continue in full force and effect.
(c) Landlord may enforce the provisions of this Lease and may enforce
and protect the rights of Landlord hereunder by a suit or suits in equity
or at law for the specific performance of any covenant or agreement
contained herein, or for the enforcement of any other appropriate legal or
equitable remedy, including injunctive relief and recovery of all moneys
due or to become due from Tenant under any of the provisions of this Lease.
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(d) If Landlord exercises either of the remedies provided for in
Sections 21.2(a) or 21.2(b), Tenant shall surrender possession and vacate
the Premises immediately and deliver possession thereof to Landlord, and
Landlord may then, or at any time thereafter, re-enter and take complete
and peaceful possession of the Premises, full and complete license so to do
being granted to Landlord, and Landlord may remove all occupants and
property therefrom, using such force as may be necessary, without being
deemed in any manner guilty of trespass, eviction or forcible entry and
detainer and without relinquishing Landlord's right to Rent or any other
right given to Landlord hereunder or by operation of law.
(e) If Landlord terminates the right of Tenant to possession of the
Premises without terminating this Lease, such termination of possession
shall not release Tenant, in whole or in part, from Tenant's obligation to
pay the Rent due hereunder for the full stated Lease Term. At Landlord's
option, the amounts described in clauses (i) through (v) of Section 21.2(a)
shall at once mature and be immediately due and payable by Tenant to
Landlord, together with any other amounts then due hereunder, and Landlord
shall have the right to immediate recovery of all such amounts.
Alternatively, at Landlord's option, Landlord shall have the right, from
time to time, to recover from Tenant, and Tenant shall remain liable for,
all Monthly Base Rent and Tenant's Share of Direct Expenses and any other
sums then due under this Lease and thereafter accruing as they become due
under this Lease during the period from the date of such notice of
termination of possession to the end of the Lease Term. Landlord may file
suit from time to time to recover any such sums and no suit or recovery by
Landlord of any such sums or portion thereof shall be a defense to any
subsequent suit brought for any other sums due under this Lease.
(f) In the event Landlord terminates the right of Tenant to
possession of the Premises without terminating this Lease as aforesaid,
Landlord shall use reasonable efforts to relet the Premises or any part
thereof for the account of Tenant for such rent, for such time (which may
be for a term extending beyond the Lease Term) and upon such terms as
Landlord in Landlord's sole discretion shall determine; provided, if other
vacant space then exists in the Building, Landlord may endeavor to lease
such other space to prospective tenants rather than the Premises. Landlord
shall not be required to accept any tenant offered by Tenant or to observe
any instructions given by Tenant relative to such reletting. Also, in any
such event, Landlord may make repairs, alterations and reasonably necessary
additions in or to the Premises and redecorate the same to the extent
reasonably deemed by Landlord necessary or desirable, and, in connection
therewith, change the locks to the Premises, and Tenant shall upon demand
pay the cost thereof together with Landlord's expenses of reletting.
Landlord may collect the rents from any such reletting and apply the same
first to the payment of the expenses of re-entry, redecoration, repair and
alterations and the expense of reletting (including without limitation
brokers' commissions and attorneys' fees) and second to the
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payment of Rent herein provided to be paid by Tenant. Any excess or residue
shall operate only as an offsetting credit against the amount of Rent as
the same theretofore became or thereafter becomes due and payable
hereunder, but the use of such offsetting credit to reduce the amount of
Rent due Landlord, if any, shall not be deemed to give Tenant any right,
title or interest in or to such excess or residue and any such excess or
residue shall belong solely to Landlord. No such re-entry or repossession,
repairs, alterations and additions, or reletting shall be construed as an
eviction or ouster of Tenant, an election on Landlord's part to terminate
this Lease or an acceptance of a surrender of this Lease, unless a written
notice of such intention be given to Tenant, or shall operate to release
Tenant in whole or in part from any of Tenant's obligations hereunder.
Landlord may, at any time and from time to time, sue and recover judgment
for any deficiencies remaining after the application of the proceeds of any
such reletting.
21.3 Efforts to Relet. For the purposes of this Section 21, Tenant's
----------------
right to possession shall not be deemed to have been terminated by efforts of
Landlord to relet the Premises, by its acts of maintenance or preservation with
respect to the Premises, or by appointment of a receiver to protect Landlord's
interests hereunder. The foregoing enumeration is not exhaustive, but merely
illustrative of acts which may be performed by Landlord without terminating
Tenant's right to possession.
21.4 Sublessees of Tenant. Whether or not Landlord elects to terminate
--------------------
this Lease on account of any Default by Tenant, as set forth in this Section 21,
Landlord shall have the right to terminate any and all subleases, licenses,
concessions or other consensual arrangements for possession entered into by
Tenant and affecting the Premises or may, in Landlord's sole discretion, succeed
to Tenant's interest in such subleases, licenses, concessions or arrangements.
In the event of Landlord's election to succeed to Tenant's interest in any such
subleases, licenses, concessions or arrangements, Tenant shall, as of the date
of notice by Landlord of such election, have no further right to or interest in
the rent or other consideration receivable thereunder, provided that the net
proceeds therefrom are applied to Tenant's obligations hereunder.
21.5 Removal of Property. All property removed from the Premises by
-------------------
Landlord pursuant to any provisions of this Lease or of law shall be handled,
removed or stored by Landlord at the cost, expense and risk of Tenant, and
Landlord shall in no event be responsible for the value, preservation or
safekeeping thereof. Tenant shall pay Landlord upon demand for all expenses
incurred by Landlord in such removal and storage.
21.6 Tenant's Payment of Landlord's Costs. Tenant shall pay all costs,
------------------------------------
charges and expenses, including court costs and reasonable attorneys' fees
incurred by Landlord in enforcing Tenant's obligations under this Lease, in the
exercise by Landlord of any of its remedies in the event of a Default, in any
litigation, negotiation or transactions in which Tenant causes Landlord, without
Landlord's fault, to become involved or concerned, or in consideration of any
request for approval of or consent to any action by Tenant which is
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prohibited by this Lease or which may be done only with Landlord's approval or
consent (including, without limitation, any proposed Transfer pursuant to
Article 20), whether or not such approval or consent is given.
21.7 Remedies Cumulative. All of Landlord's rights and remedies under
-------------------
this Lease shall be cumulative with and in addition to any and all rights and
remedies which Landlord may have at law or in equity. Any specific remedy
provided for in any provision of this Lease shall not preclude the concurrent or
consecutive exercise of a remedy provided for in any other provision hereof.
21.8 Additional Restrictions. With respect to provisions of 735 ILCS 5/9-
-----------------------
213.1 (or any successor provision thereto) which requires that a landlord take
reasonable measures to mitigate the damages recoverable against a defaulting
tenant, Tenant agrees that Landlord shall have no obligation to relet the Leased
Premises (i) before Landlord leases other vacant space in the Building, or (ii)
to any potential tenant who Landlord could reasonably reject as a transferee,
pursuant to Section 20.1 above.
22. COUNTERCLAIMS
-------------
Tenant hereby waives any right to plead any counterclaim, offset or
affirmative defense in any action or proceedings brought by Landlord against
Tenant pursuant to the unlawful detainer laws of the State of Illinois or
otherwise, for the recovery of possession based upon the non-payment of Rent or
any other Default. This shall not, however, be construed as a waiver of
Tenant's right to assert any claim in a separate action brought by Tenant
against Landlord. Tenant agrees to pay all Rent without offset or reduction of
any kind whatsoever. Tenant waives trial by jury in any action brought by
Landlord under or in respect of this Lease. So long as Tenant is in default
under this Lease or any event or omission has occurred which, but for the giving
of notice or the passage of time, or both, would result in a default by Tenant
under the terms of this Lease, Landlord shall not be in default under the terms
of this Lease it fails to perform its obligations hereunder.
23. HOLDING OVER
------------
If Tenant retains possession of the Premises or any part thereof after the
expiration or termination of the Lease Term or Tenant's right to possession of
the Premises, Tenant shall pay rent during such holding over at 150% of the rate
in effect immediately preceding such holding over computed on a monthly basis
for each month or partial month that Tenant remains in possession. Tenant shall
also pay, indemnify and defend Landlord from and against all claims and damages,
consequential as well as direct, sustained by reason of Tenant's holding over.
The provisions of this Section do not waive Landlord's right of re-entry or
right to regain possession by actions at law or in equity or any other rights
hereunder, and any receipt of payment by Landlord shall not be deemed a consent
by Landlord to Tenant's remaining in possession or be construed as creating or
renewing any lease or right of tenancy between Landlord and Tenant.
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24. SUBORDINATION AND ATTORNMENT
----------------------------
Landlord and Tenant agree that this Lease be and hereby is made subject and
subordinate at all times to all ground and underlying leases and to all
mortgages in any amounts, and all advances thereon which may now or hereafter
affect the Building and to all renewals, modifications, consolidations,
participations, replacements and extensions thereof. The term "mortgage" as
used herein shall be deemed to include a mortgage, bond, trust indenture, deed
of trust, deed to secure debt or other similar security instrument. The
aforesaid provisions shall be self-operative and no further instrument of
subordination shall be required to effectuate any such subordination. In the
event Landlord or the existing or future lessor under any such ground or
underlying lease or the existing or future holder of any such mortgage (each
existing or future holder of any such mortgage, shall sometimes be referred to
in this Lease individually, as the "Mortgagee" and collectively as the
"Mortgagee") desires confirmation of such subordination, Tenant shall execute
promptly and without charge therefor any certificate that may be requested.
Such certificate shall also contain, at the election of the Mortgagee or lessor,
an agreement whereby Tenant will attorn to said Mortgagee or lessor as Landlord
in the event of a foreclosure of such mortgage or termination of such ground or
underlying lease, or attorn to any party taking title through such mortgage or
lease in such event. Notwithstanding the provisions hereof, should any lessor
or Mortgagee require that this Lease be prior rather than subordinate to its
mortgage or lease, or require that Tenant attorn to such Mortgagee or lessor as
Landlord in the event of a foreclosure of such mortgage or termination of such
ground or underlying lease, or to any party taking title through such mortgage
or lease in such event, then this Lease shall become prior and superior to such
mortgage or lease, as the case may be, or Tenant shall so attorn, upon written
notice to that effect to Tenant from such lessor or Mortgagee. The aforesaid
superiority of this Lease to any mortgage or lease, and the attornment by Tenant
to such lessor or Mortgagee, shall be self-operative upon the giving of such
notice and no further documentation other than such written notice shall be
required to effectuate such superiority or attornment. In the event Landlord or
such lessor or Mortgagee desires confirmation of such superiority or attornment,
Tenant shall, promptly upon request therefor by Landlord or such lessor or
Mortgagee, and without charge therefor, execute a document acknowledging such
priority or attornment obligation to the lessor or Mortgagee (or any party
acquiring title through such mortgage) as Landlord in the event of foreclosure
of such mortgage or deed in lieu thereof or termination of lease. Tenant hereby
constitutes and appoints Landlord as Tenant's attorney-in-fact to execute any
such certificates or documents for and on behalf of Tenant if Tenant shall fail
to do so within ten days after demand. The foregoing appointment of Landlord as
Tenant's attorney-in-fact is coupled with an interest and is irrevocable.
If any mortgage is foreclosed, or Landlord's interest under this Lease is
conveyed or transferred in lieu of foreclosure, or if any ground lease is
terminated (i) no person or entity which as the result of any of the foregoing
has succeeded to the interest of Landlord under this Lease (a "Successor") shall
be bound to recognize any prepayment by more
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than 30 days of Base Rent or Additional Rent; and (ii) no Successor shall have
any liability for any security deposit paid to Landlord by Tenant hereunder,
unless such security deposit has actually been received by such Successor.
Further, Tenant agrees that in the event of any act or omission by Landlord
hereunder which could give Tenant the right to terminate this Lease or to claim
a partial or total eviction, Tenant shall not exercise any such right until it
has notified in writing the Successor (provided Tenant has theretofore received
written notice of such Successor) and such Successor shall have failed to
commence the curing of such act or omission within 30 days after such notice and
to diligently pursue the cure thereof until completed.
25. ESTOPPEL CERTIFICATE
--------------------
Tenant agrees that from time to time, upon not less than seven (7) business
days' prior written request by Landlord or any Mortgagee or ground or underlying
lessor of the Building, Tenant will, and Tenant will cause any subtenant,
licensee, concessionaire or other occupant of the Premises to, promptly
complete, execute and deliver to Landlord, such Mortgagee or lessor or any party
or parties designated by Landlord, as applicable, a statement in writing
certifying: (i) that this Lease is unmodified and in full force and effect (or
if there have been modifications that the same are in full force and effect as
modified and identifying the modifications); (ii) the dates to which the Rent
and other charges have been paid; (iii) that the Premises have been
unconditionally accepted by the Tenant (or if not, stating with particularity
the reasons why the Premises have not been unconditionally accepted); (iv) the
amount of any Security Deposit held hereunder; (v) that, so far as the party
making the certificate knows, Landlord is not in default under any provisions of
this Lease, if such is the case, and if not, identifying all defaults with
particularity; and (vi) any other matter reasonably requested by Landlord. Any
purchaser, Mortgagee or ground or underlying lessor of the Building shall be
entitled to rely on said statement. Failure to give such a statement within
seven days after said written request shall be conclusive evidence, upon which
Landlord and any such purchaser, Mortgagee or lessor shall be entitled to rely,
that this Lease is in full force and effect and Landlord is not in default and
Tenant shall be estopped from asserting against Landlord or any such purchaser,
Mortgagee or lessor any defaults of Landlord existing at that time but Tenant
shall not thereby be relieved of the affirmative obligation to give such
statement.
26. INTENTIONALLY OMITTED
---------------------
27. NOTICES AND DEMANDS
-------------------
27.1 Notices. All notices, demands, approvals, consents, requests for
-------
approval or consent or other communications in this Lease provided to be given,
made or sent by either party hereto to the other ("Notice") shall be in writing
and shall be deemed to have been fully given, made or sent when made by personal
service, when received if sent by facsimile transmission, one business day after
deposit with a national overnight courier
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service or two business days after deposit in the United States mail certified
or registered and postage prepaid and properly addressed as follows:
To Landlord: Landlord's Management Agent at the address set forth in
Section 1.1.2 of the Summary.
To Tenant: (i) To the address set forth in Section 1.1.3 of the Summary.
The address to which any Notice should be given, made or sent to either party
may be changed by written notice given by such party as above provided.
27.2 Notice by Landlord's Management Agent or Attorneys. Any notice,
--------------------------------------------------
demand, request or consent to be made by or required of Landlord, may be made
and given by Landlord's Management Agent or its attorneys with the same force
and effect as if made and given by Landlord.
28. CONSTRUCTION OF LEASE
---------------------
28.1 Construction of Lease. The language in all parts of this Lease shall
---------------------
in all cases be construed as a whole according to its fair meaning and neither
strictly for nor against either Landlord or Tenant. Section and subsection
headings in this Lease are for convenience only and are not to be construed as
part of this Lease or in any way defining, limiting, amplifying, construing, or
describing the provisions hereof. Time is of the essence of this Lease and every
term, covenant and condition hereof. The words "Landlord" and "Tenant," as
herein used, shall include the plural as well as the singular. The neuter gender
includes the masculine and feminine. In the event there is more than one person
or entity which executes this Lease as Tenant, the obligations to be performed
and liability of all such persons and entities shall be joint and several.
Landlord and Tenant agree that in the event any term, covenant or condition
herein contained (other than with respect to the payment of Rent) is held to be
invalid or void by any court of competent jurisdiction, the invalidity of any
such term, covenant or condition shall in no way affect any other term, covenant
or condition herein contained.
28.2 Entire Agreement; Modification. This Lease contains and embodies the
------------------------------
entire agreement of the parties hereto, and no representation, inducement or
agreement, oral or otherwise, not contained in this Lease shall be of any force
or effect. This Lease may not be modified in whole or in part in any manner
other than by an instrument in writing duly signed by both parties hereto.
28.3 Approvals. Whenever in this Lease any consent or approval with
---------
respect to any matter is required to be obtained from either Landlord or Tenant
and such provision requires that such consent or approval should not be
unreasonably withheld, delayed, and/or conditioned, it is the intent of Landlord
and Tenant that, in the giving or withholding of any such consent or approval,
the determination by the party from whom such consent
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or approval is required shall be governed by standards of "commercial
reasonableness" with due regard to any other factors, standards, or limitation
otherwise expressed herein with respect to the subject matter or the giving or
withholding of any such consent or approval. In the event of any dispute as to
whether a consent or approval was unreasonably withheld, delayed and/or
conditioned, the sole remedy of the party requesting the consent or approval
shall be to commence an action for a declaratory judgment; it being understood
and agreed that any claim for monetary damages for unreasonably withholding
and/or conditioning any consent or approval is hereby unconditionally and
irrevocably waived.
29. REAL ESTATE BROKERS
-------------------
Tenant represents and warrants unto Landlord that Tenant has directly dealt
with and only with Landlord's Management Agent and the Leasing Broker, if any,
identified in Section 1.1.13 of the Summary as broker in connection with this
Lease, and agrees to indemnify and hold harmless Landlord from and against any
and all claims or demands, damages, liabilities and expenses of any type or
nature whatsoever arising by reason of the incorrectness or breach of the
aforesaid representation or warranty. Landlord shall pay Landlord's Management
Agent and the Leasing Broker for commissions arising out of the execution and
delivery of this Lease pursuant to separate agreement.
30. MISCELLANEOUS
-------------
30.1 Binding Effect. Subject to the provisions of Sections 19 and 20
--------------
hereof, all terms, covenants and conditions of this Lease shall be binding upon
and inure to the benefit of and shall apply to the respective heirs, executors,
administrators, successors, assigns and legal representatives of Landlord and
Tenant.
30.2 Execution and Delivery. The execution of this Lease by Tenant and
----------------------
delivery of the same to Landlord or Landlord's Management Agent does not
constitute a reservation of or option to lease the Premises or an agreement by
Landlord to enter into a lease, and this Lease shall become effective only if
and when Landlord executes and delivers a counterpart hereof to Tenant;
provided, however, the execution and delivery by Tenant of this Lease to
Landlord or Landlord's Management Agent shall constitute an irrevocable offer by
Tenant to lease the Premises on the terms and conditions herein contained, which
offer may not be withdrawn or revoked for 10 days after such execution and
delivery. If Tenant is a corporation, it shall deliver to Landlord following a
request therefor, certified resolutions of Tenant's directors authorizing
execution and delivery of this Lease and the performance by Tenant of its
obligations hereunder and such other evidence of authority for execution and
performance as Landlord shall reasonably require. If Tenant is a partnership or
limited liability company, it shall deliver to Landlord concurrently with the
delivery to Landlord of an executed Lease, a certified copy of its partnership
agreement or operating agreement, as the case may be, and such other evidence of
authority for
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execution and performance as Landlord shall reasonably require. Tenant shall not
record this Lease or any memorandum or other evidence hereof.
30.3 Default Under Other Lease. If the term of any lease (other than this
-------------------------
Lease) made by Tenant for any demised premises in the Building shall be
terminated or terminable after the making of this Lease, because of any default
by Tenant under such other lease, such fact shall empower Landlord, at
Landlord's sole option, to declare this Lease to be in default by Tenant by
written notice to Tenant.
30.4 Applicable Law. This Lease shall be governed by and construed in
--------------
accordance with the laws of the State of Illinois.
30.5 Late Charges. At the option of Landlord, Landlord may impose a late
------------
payment fee equal to 5% of the amount due if any payment of Rent is paid more
than five days after its due date. In addition, any amount due hereunder shall,
if not paid when due, bear interest after the due date thereof, at the annual
rate (the "Interest Rate") equal to the greater of (a) 4% above the prime rate
as announced by LaSalle National Bank, from time to time, or if the use of the
prime rate is discontinued by LaSalle National Bank, such other rate as may
thereafter be announced from time to time by LaSalle National Bank, or any other
major bank selected by Landlord as a measure of the cost to its borrowers of
short-term commercial loans, until said past due amount shall be paid by Tenant
to Landlord or, (b) 18%, but in no event with respect to (a) and (b) greater
than the maximum rate permitted by law. All amounts due under this Section 30.5
shall be deemed Additional Rent under this Lease.
30.6 Nonwaiver of Defaults. No waiver of any provision of this Lease
---------------------
shall be implied by any failure of Landlord to enforce any remedy on account of
the violation of such provision, even if such violation be continued or repeated
subsequently, and no express waiver shall affect any provision other than the
one specified in such waiver and in that event only for the time and in the
manner specifically stated. No receipt of monies by Landlord from Tenant after
the termination of this Lease will in any way alter the length of the Lease Term
or Tenant's right of possession hereunder or, after the giving of any notice,
shall reinstate, continue or extend the Lease Term or affect any notice given
Tenant prior to the receipt of such monies, it being agreed that after the
service of notice or the commencement of a suit or after final judgment for
possession of the Premises, Landlord may receive and collect any Rent due, and
the payment of Rent shall not waive or affect said notice, suit or judgment, nor
shall any such payment be deemed to be other than on account of the amount due,
nor shall the acceptance of Rent be deemed a waiver of any breach by Tenant of
any term, covenant or condition of this Lease. No endorsement or statement on
any check or any letter accompanying any check or payment of Rent shall be
deemed an accord and satisfaction. Landlord may accept any such check or payment
without prejudice to Landlord's right to recover the balance due of any
installment or payment of Rent or pursue any other remedies available to
Landlord with respect to any
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existing Defaults. None of the terms, covenants or conditions of this Lease can
be waived by either Landlord or Tenant except by appropriate written instrument.
30.7 Force Majeure. Either Tenant or Landlord shall not be deemed in
-------------
default with respect to the failure to perform any of the terms, covenants and
conditions of this Lease on its part to be performed, if such failure is due in
whole or in part to any strike, lockout, labor dispute (whether legal or
illegal), civil disorder, inability to procure materials, failure of power,
restrictive governmental laws and regulations, riots, insurrections, war, fuel
shortages, accidents, casualties, Acts of God, acts caused directly or
indirectly by the other party (or its agents, employees, contractors, guests or
invitees), acts of other tenants or occupants of the Property or any other cause
beyond the reasonable control of the party obligated to perform. Notwithstanding
anything herein to the contrary, Tenant shall not be entitled to any extension
of time due to the unavailability of funds for any reason. In such event, the
time for performance shall be extended by an amount of time equal to the period
of the delay so caused.
30.8 Landlord's Right to Perform Tenant's Duties. If Tenant fails timely
-------------------------------------------
to perform any of its duties under this Lease, Landlord shall have the right
(but not the obligation), after the expiration of any grace period specifically
provided by this Lease (unless expressly provided to the contrary elsewhere in
this Lease), to perform such duty on behalf and at the expense of Tenant without
further notice to Tenant, and all sums expended or expenses incurred by Landlord
in performing such duty shall be deemed to be Rent under this Lease and shall be
due and payable to Landlord upon demand by Landlord.
30.9 Lease Tax. If any governmental entity or authority has imposed or
---------
hereafter imposes a tax or assessment upon or against any of the rentals or
other charges payable by Tenant to Landlord hereunder (whether such tax takes
the form of a lease tax, sales tax or other tax), Tenant shall be responsible
for the timely payment thereof. Unless Landlord and Tenant otherwise agree in
writing with respect to the payment thereof, Tenant shall pay the applicable tax
to Landlord together with each payment by Tenant to Landlord of Rent due under
this Lease.
30.10 Liens. Without limitation of the provisions of Sections 9.1 and 9.2
-----
of this Lease, Tenant agrees not to suffer or permit any lien of any mechanic or
materialman to be placed or filed against the Premises, the Building or the
Property. In case any such lien shall be filed, Tenant shall satisfy and release
such lien of record within five days after receipt of notice thereof from
Landlord or, if earlier, within five days after Tenant has actual knowledge or
notice of such lien filing. If Tenant shall fail to have such lien immediately
satisfied and released of record, Landlord may, on behalf of Tenant, without
being responsible for making any investigation as to the validity of such lien
and without limiting or affecting any other remedies Landlord may have, pay the
same and Tenant shall pay Landlord on demand the amount so paid by Landlord.
Notwithstanding the foregoing, Tenant shall have the right to contest any such
lien claim diligently and in good faith, and during such contest shall not be
obligated to pay such lien claim, provided that Tenant is
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not in breach of any of its obligations under this Lease and Tenant, at its sole
cost and expense, provides to Landlord, through Landlord's title insurer, a
title insurance endorsement in form and substance acceptable to Landlord
affirmatively insuring against any loss relating to such claim for the benefit
of Landlord and each of the Mortgagees and ground or underlying lessors of the
Building or, at its option, Tenant shall provide Landlord with a bond from a
company satisfactory to Landlord in form, substance and amount satisfactory to
Landlord, insuring against loss arising from the existence or attempted
enforcement of such lien. Notwithstanding any such contest or title insurance,
Tenant shall pay any such claim in full within five days following the entry of
an unstayed judgment or order of sale.
30.11 Modification of Lease. Should any current or prospective Mortgagee
---------------------
or ground lessor for the Building require a modification or modifications of
this Lease, which modification or modifications will not cause an increased cost
or expense to Tenant or in any other way materially and adversely change the
rights and obligations of Tenant hereunder, then and in such event, Tenant
agrees that this Lease may be so modified and agrees to execute whatever
documents are required therefor and deliver the same to Landlord within ten days
following the request therefor. Should Landlord or any such current or
prospective Mortgagee or ground lessor require execution of a short form of
Lease for recording, containing, among other customary provisions, the names of
the parties, a description of the Premises and the Lease Term, Tenant agrees to
execute such short form of Lease and to deliver the same to Landlord within ten
days following the request therefor.
30.12 Relationship of Parties. Nothing contained in this Lease shall be
-----------------------
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant, it being expressly understood and
agreed that neither the method of computation of Rent nor any act of the parties
hereto shall be deemed to create any relationship between Landlord and Tenant
other than the relationship of landlord and tenant.
30.13 Application of Payments. Landlord shall have the right to apply
-----------------------
payments received from Tenant pursuant to this Lease, regardless of Tenant's
designation of such payments, to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord, in its sole discretion, may elect.
30.14 Right to Lease. Landlord reserves the absolute right to effect such
--------------
other tenancies in the Building and Property as Landlord in the exercise of its
sole business judgment shall determine to best promote the interests of the
Building and Property. Tenant does not rely on the fact, nor does Landlord
represent, that any specific tenant or type or number of tenants shall, during
the Lease Term, occupy any space in the Building or Property.
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30.15 Waiver of Jury Trial; Attorneys' Fees. If either party commences
-------------------------------------
litigation against the other for the specific performance of this Lease, for
damages for the breach hereof or otherwise for enforcement of any remedy
hereunder, the parties hereto agree to and hereby do waive any right to a trial
by jury and, in the event of any such commencement of litigation, the prevailing
party shall be entitled to recover from the other party such costs and
reasonable attorneys' fees as may have been incurred, including any and all
costs incurred in enforcing, perfecting and executing such judgment.
30.16 Independent Covenants. This Lease shall be construed as though the
---------------------
covenants herein between Landlord and Tenant are independent and not dependent
and Tenant hereby expressly waives the benefit of any statute to the contrary
and agrees that if Landlord fails to perform its obligations set forth herein,
Tenant shall not be entitled to make any repairs or perform any acts hereunder
at Landlord's expense or to any setoff of the Rent or other amounts owing
hereunder against Landlord; provided, however, that the foregoing shall in no
way impair the right of Tenant to commence a separate action against Landlord
for any violation by Landlord of the provisions hereof so long as notice is
first given to Landlord and any Mortgagee or ground lessor, of whose address
Tenant has theretofore been notified, and a reasonable opportunity is granted to
Landlord and such Mortgagee or ground lessor to correct such violations.
30.17 Transportation Management. Tenant shall fully comply with all
-------------------------
present or future programs intended to manage parking, transportation or traffic
in and around the Building and Property, to the extent that any such failure to
comply by Tenant could result in Landlord or the Building being in violation of
any law, rule, order, regulation or ordinance of any kind, or in any penalty,
fine or assessment being levied against the Building, Landlord or any other
tenant. In connection therewith, Tenant shall take responsible action for the
transportation planning and management of all employees located at the Premises
by working directly with Landlord, any governmental transportation management
organization or any other transportation-related committees or entities. Such
programs may include, without limitation: (a) restrictions on the number of
peak-hour vehicle trips generated by Tenant; (b) increased vehicle occupancy,
(c) implementation of an in-house ridesharing program and an employee
transportation coordinator, (d) working with employees and any Building or area-
wide ridesharing program manager, (e) instituting employer-sponsored incentives
(financial or in-kind) to encourage employees to rideshare; and (f) utilizing
flexible work shifts for employees.
30.18 No Air Rights. No rights to any view or to light or air over any
-------------
property, whether belonging to Landlord or any other person, are granted to
Tenant under this Lease.
30.19 Partial Invalidity. If any term, provision or condition contained
------------------
in this Lease shall, to any extent, be invalid or unenforceable, the remainder
of this Lease (or the application of such term, provision or condition to
persons or circumstances other than those in respect of which it is invalid or
unenforceable) shall not be affected thereby, and
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<PAGE>
each and every other term, provision and condition of this Lease shall be valid
and enforceable to the fullest extent permitted by law; provided, however, that
if any provision of this Lease relating to payment of Base Rent or Additional
Rent is invalid or unenforceable, Landlord shall have the right to terminate
this Lease.
30.20 Authorized Signatory. If Tenant is a corporation or partnership,
--------------------
Tenant represents and warrants that the person executing this Lease is a duly
authorized signatory for and on behalf of the Tenant.
30.21 Financial Information. Tenant represents and warrants that all
---------------------
financial information heretofore and hereafter delivered to Landlord is true and
correct and that no material misstatements or omissions exist therein.
31. LANDLORD EXCULPATION
--------------------
It is expressly understood and agreed that notwithstanding anything in this
Lease to the contrary, and notwithstanding any applicable law to the contrary,
the liability of Landlord hereunder and any recourse by Tenant against Landlord
shall be limited solely and exclusively to the interest of Landlord in and to
the Property. Neither Landlord, nor any of its beneficiaries or their respective
constituent partners, shall have any personal liability hereunder, and Tenant
hereby expressly waives and releases such personal liability on behalf of itself
and all persons claiming by, through or under Tenant.
In addition to the foregoing, and not by way of limitation of the
generality of the exculpation set forth in the preceding paragraph, this Lease
is executed by LaSalle National Bank, not personally, but solely as aforesaid in
the exercise of the power and authority conferred upon and vested in it as
Trustee, and under the express direction of the beneficiaries of the said Trust.
It is expressly understood and agreed that nothing herein shall be
construed as creating any liability whatsoever against said Trustee personally,
and in particular, without limiting the generality of the foregoing, there shall
be no personal liability to pay any indebtedness accruing hereunder or to
perform any covenant, either express or implied, herein contained, or to keep,
preserve or sequester any property of said Trust, and that all personal
liability of said Trustee of every sort, if any, is hereby expressly waived by
said Tenant, and by every person now or hereafter claiming any right or security
hereunder; and that so far as the said Trustee is concerned the owner of any,
indebtedness or liability accruing hereunder, shall look solely to the assets of
said Trust and the proceeds thereof for the payment thereof.
It is further understood and agreed that the said Trustee merely holds
naked title to the Property herein described and has no control over, and under
this Lease assumes no responsibility for:
53
<PAGE>
(a) Management or control of the Property;
(b) Upkeep, inspection, maintenance or repair of the Property;
(c) Collection of rents or the rental of space in the Property; or
(d) The conduct of any business which is carried on upon the
Property.
It is further understood that the foregoing exoneration clause shall apply
to any institutional land trustee which shall at any time be the Landlord
hereunder. Moreover, in the event this Lease is assigned to a Landlord which is
not an institutional land trustee, then said Landlord shall not be personally
liable to Tenant or any party claiming by, through or under Tenant for any
liabilities or obligations arising under or in respect of this Lease or the
Building, but rather Tenant and all such other parties shall look solely to the
Building for the enforcement thereof.
END OF TERMS OF LEASE
54
<PAGE>
EXHIBIT 1
---------
PLAN OF PREMISES
----------------
1
<PAGE>
[Landlord Performs Work]
Tenant Allowance
EXHIBIT 2
---------
WORK LETTER
-----------
This Work Letter shall set forth the terms and conditions relating to the
construction of the tenant improvements ("Tenant Improvements") in the Premises.
This Work Letter is essentially organized chronologically and addresses the
issues of the construction of the Premises, in sequence, as such issues will
arise during the actual construction of the Premises. All references in this
Work Letter to Sections of "this Lease" or "the Lease" shall mean the relevant
portion of the Office Space Lease to which this Work Letter is attached as
Exhibit 2 and of which this Work Letter forms a part, and all references in this
Work Letter to Sections of "this Work Letter" shall mean the relevant portion of
Sections 1 through 6 of this Work Letter.
SECTION 1
---------
LANDLORD'S INITIAL CONSTRUCTION IN THE PREMISES
-----------------------------------------------
Tenant has inspected the Premises prior to execution of this Lease and
agrees to accept the Premises, including the base, shell and core thereof, in AS
IS condition, subject only to the provisions of this Work Letter. The Tenant
Improvements to be initially installed in the Premises shall be designed and
constructed pursuant to this Work Letter. Any costs of initial design and
construction of any improvement to the Premises shall be a "Tenant Improvement
Allowance Item", as that term is defined in Section 2.2 of this Work Letter.
SECTION 2
---------
TENANT IMPROVEMENTS
-------------------
2.1 Tenant Improvement Allowance. Tenant shall be entitled to a one-time
----------------------------
tenant improvement allowance (the "Tenant Improvement Allowance") in the amount
of Fifteen and No/100 ($15.00) Dollars per square foot of the Premises (i.e.
Sixty-Four Thousand Four Hundred Seventy and No/100 ($64,470.00) Dollars ) for
the costs relating to the initial design and construction of the Tenant
Improvements. In addition to the Tenant Improvement Allowance, Landlord will
reimburse Tenant up to Three Hundred Forty-Five and No/100 ($345.00) Dollars
towards the cost of preparing a space plan for the Premises and up to One
Hundred Seventy-Two and No/100 ($172.00) Dollars towards the cost of one (1)
revision to such space plan, which sums shall be paid to Tenant within ten (10)
days of written request accompanied by a copy of the bill or invoice of the firm
that prepared the space plan.
2.2 Disbursement of the Tenant Improvement Allowance. Except as otherwise
------------------------------------------------
set forth in this Work Letter, the Tenant Improvement Allowance shall be
disbursed by Landlord (each of which disbursements shall be made pursuant to
Landlord's disbursement process) for costs related to the construction of the
Tenant Improvements and for the following items and costs (collectively, the
"Tenant Improvement Allowance Items"): (i) payment of the fees of the
"Architect" and the "Engineers," as those terms are defined in Section 3.1 of
this Work Letter, and payment of the fees incurred by, and the cost of documents
and materials supplied by, Landlord and Landlord's
EXHIBIT 2 - Page 1
<PAGE>
consultants in connection with the preparation and review of the "Construction
Drawings," as that term is defined in Section 3.1 of this Work Letter; (ii) the
cost of any changes in the base, shell and core of the Premises required by the
Construction Drawings; (iii) the cost of any changes to the Construction
Drawings or Tenant Improvements required by applicable building codes or other
laws or regulations, including without limitation, The Americans With
Disabilities Act (collectively, the "Code"); (iv) the "Landlord Supervision
Fee", as that term is defined in Section 4.3.2 of this Work Letter; and (v) a
portion of the costs, if any, of the tenant demising walls and public corridor
walls and materials on the floor of the Building on which the Premises is
located as designated by Landlord. Notwithstanding anything in this Exhibit to
the contrary, any costs that are due to the following shall not be included in
the cost of Tenant Work and shall be the sole responsibility of Landlord: (i)
any costs incurred due to the remediation of Hazardous Materials, where such
were not caused by Tenant, and (ii) any costs incurred to correct any non-
compliance with codes, laws, or statutes where such non-compliance existed prior
to the commencement of the Tenant Improvements.
2.3 Standard Tenant Improvement Package. Landlord has established
-----------------------------------
specifications (the "Specifications") for the Building standard components to be
used in the construction of the Tenant Improvements in the Premises
(collectively, the "Standard Improvement Package"), which Specifications shall
be supplied to Tenant by Landlord. The quality of Tenant Improvements shall be
equal to or of greater quality than the quality of the Specifications, provided
that Landlord may, at Landlord's option, require the Tenant Improvements to
comply with certain Specifications. Landlord may make reasonable changes to the
Specifications for the Standard Improvement Package from time to time.
SECTION 3
---------
CONSTRUCTION DRAWINGS
---------------------
3.1 Selection of Architect/Construction Drawings/Waiver. Landlord shall
---------------------------------------------------
retain an architect/space planner (the "Architect") to prepare the "Construction
Drawings," as that term is defined in this Section 3.1. Landlord shall retain
engineering consultants (the "Engineers") to prepare all plans and engineering
working drawings relating to the structural, mechanical, electrical, plumbing,
HVAC, lifesafety, and sprinkler work of the Tenant Improvements. The plans and
drawings to be prepared by Architect and the Engineers hereunder shall be known
collectively as the "Construction Drawings." All Construction Drawings shall
comply with the drawing format and specifications as determined by Landlord, and
shall be subject to Landlord's approval. Tenant and Architect shall verify, in
the field, the dimensions and conditions as shown on the relevant portions of
the base building plans, and Tenant and Architect shall be solely responsible
for the same, and Landlord shall have no responsibility in connection therewith.
Landlord's review of the Construction Drawings as set forth in this Section 3,
and Landlord's supervision of the construction of the Tenant Improvements shall
be for its sole purpose and shall not imply Landlord's review of the same, or
obligate Landlord to review the same, for quality, design, Code compliance or
other like matters. Accordingly, notwithstanding that any Construction Drawings
are reviewed or the construction of Tenant Improvements is supervised by
Landlord or its space planner, architect, engineers and consultants, and
notwithstanding any advice or assistance which may be rendered to Tenant by
Landlord or Landlord's space planner, architect, engineers, and consultants,
Landlord shall have no liability whatsoever in connection therewith and shall
not be responsible for any omissions or errors contained in the Construction
Drawings or for any defects in the construction of the Tenant Improvements;
provided, Landlord will correct latent defects in physical construction (but not
design)
EXHIBIT 2 - Page 2
<PAGE>
of the Tenant Improvements which defects are discovered by Tenant and reported
to Landlord within one year of the Commencement Date.
3.2 Final Space Plans. On or before the date set forth in Schedule A,
----------------- ----------
attached hereto, Tenant and the Architect shall prepare the final space plan for
Tenant Improvements in the Premises (collectively, the "Final Space Plan"),
which Final Space Plan shall include a layout and designation of all offices,
rooms and other partitioning, their intended use, and equipment to be contained
therein and shall deliver the Final Space Plan to Landlord for Landlord's
approval.
3.3 Final Construction Drawings. Tenant shall cooperate with the
---------------------------
Architect and the Engineers so that on or before the date set forth in Schedule
--------
A, the Architect and the Engineers shall complete the architectural and
- -
engineering drawings for the Premises, and the final architectural working
drawings in a form which is complete to allow subcontractors to bid on the work
and to obtain all applicable permits (collectively, the "Final Construction
Drawings") and shall submit the same to Landlord for Landlord's approval.
3.4 Permits. The Final Construction Drawings shall be approved by
-------
Landlord (the "Approved Construction Drawings") prior to the commencement of the
construction of the Tenant Improvements. "Contractor," as that term is defined
in Section 4.1, below, shall promptly submit the Approved Construction Drawings
to the appropriate municipal authorities for all applicable building permits
necessary to allow Contractor to commence and fully complete the construction of
the Tenant Improvements (the "Permits"), and, in connection therewith, Tenant
shall cooperate with Landlord. No changes, modifications or alterations in the
Approved Construction Drawings may be made without the prior written consent of
Landlord, provided that Landlord may withhold its consent, in its sole
discretion, to any change in the Approved Construction Drawings if such change
would directly or indirectly delay the completion of the Premises or increase
the cost of the Tenant Improvements.
3.5 Time Deadlines. Tenant shall use its best, good faith, efforts and
--------------
all due diligence to cooperate with the Architect, the Engineers, and Landlord
to complete all phases of the Construction Drawings and the permitting process
and to receive the permits, and with Contractor for approval of the "Cost
Proposal," as that term is defined in Section 4.2 of this Work Letter, as soon
as possible after the execution of the Lease, and, in that regard, shall meet
with Landlord on a scheduled basis to be determined by Landlord, to discuss
Tenant's progress in connection with the same. The applicable dates for approval
of items, plans and drawings as described in this Section 3, Section 4 below,
and in this Work Letter are set forth and further elaborated upon in Schedule A
(the "Time Deadlines"), attached hereto. Tenant agrees to comply with the Time
Deadlines.
SECTION 4
---------
CONSTRUCTION OF THE TENANT IMPROVEMENTS
---------------------------------------
4.1 Contractor. A contractor designated by Landlord ("Contractor") shall
----------
construct the Tenant Improvements; provided that Landlord shall bid the Tenant
Improvements to at least three (3) reputable contractors. Landlord shall select
the contractor with the most competitive bid taking into account both price and
scheduling. The Tenant Improvements shall be performed pursuant to a "fixed
price" or a "cost plus fee, subject to a guaranteed maximum price" construction
contract.
EXHIBIT 2 - Page 3
<PAGE>
4.2 Cost Proposal. After the Approved Construction Drawings are signed by
-------------
Landlord and Tenant, Landlord shall provide Tenant with a cost proposal in
accordance with the Approved Construction Drawings, which cost proposal shall
include, as nearly as possible, the cost of all Tenant Improvement Allowance
Items to be incurred solely by Tenant in connection with the construction of the
Tenant Improvements (i.e. any additional work which Landlord may agree to
perform), (the "Cost Proposal"). Tenant shall approve and deliver the Cost
Proposal to Landlord within five business days of the receipt of the same, and
upon receipt of the same by Landlord, Landlord shall be released by Tenant to
purchase the items set forth in the Cost Proposal and to commence the
construction relating to such items. The date by which Tenant must approve and
deliver the Cost Proposal to Landlord shall be known hereafter as the "Cost
Proposal Delivery Date".
4.3 Construction of Tenant Improvements by Contractor.
-------------------------------------------------
4.3.1 Payment for Tenant Improvements. Landlord shall pay all costs
-------------------------------
and expenses (collectively, the "TI Costs") associated with the completion of
the Tenant Improvements hereunder, including without limitation the costs and
expenses comprising the Tenant Improvement Allowances Items, up to a maximum
aggregate amount equal to the Tenant Improvement Allowance. Tenant shall pay to
Landlord the TI Costs in excess of the Tenant Improvement Allowance within five
(5) days of written request by Landlord. Tenant shall not be entitled to any
credit, abatement or allowance from Landlord for any portion of the Tenant
Improvement Allowance not used by Tenant.
4.3.2 Landlord's Retention of Contractor. Landlord shall
----------------------------------
independently retain Contractor to construct the Tenant Improvements in
accordance with the Approved Construction Drawings and the Cost Proposal. Added
to the TI Costs shall be a construction supervision and management fee (the
"Landlord Supervision Fee") to Landlord in an amount equal to the product of
"3"% of all other TI Costs.
4.3.3 Contractor's Warranties and Guaranties. Landlord hereby
--------------------------------------
assigns to Tenant all warranties and guaranties by Contractor relating to the
Tenant Improvements to the extent that Tenant is in any way responsible for the
repair or maintenance thereof under the Lease (if such is the case). Tenant
hereby waives all claims against Landlord relating to, or arising out of the
construction of, the Tenant Improvements.
SECTION 5
---------
COMPLETION OF THE TENANT IMPROVEMENTS;
--------------------------------------
COMMENCEMENT DATE
-----------------
5.1 Ready for Occupancy. The Premises shall be deemed "Ready for
-------------------
Occupancy" upon the Substantial Completion of the Premises. For purposes of the
Lease, "Substantial Completion" of the Premises shall occur upon the date that
the Contractor or the Architect certifies to Landlord and Tenant that the
completion of construction of the Tenant Improvements in the Premises pursuant
to the Approved Construction Drawings has occurred, with the exception of any
items described in Section 5.2.6, punch list items and any tenant fixtures,
work-stations, built-in furniture, or equipment to be installed by or on behalf
of Tenant.
EXHIBIT 2 - Page 4
<PAGE>
5.2 Delay of the Substantial Completion of the Premises. If there shall
---------------------------------------------------
be a delay or delays in the Substantial Completion of the Premises or in the
occurrence of any of the other conditions precedent to the Commencement Date, as
set forth in Section 1.1.7 of the Summary attached to the Lease, as a direct,
indirect, partial, or total result of the following (collectively, "Tenant
Delays"):
5.2.1 Tenant's failure to comply with the Time Deadlines;
5.2.2 Tenant's failure to timely approve any matter requiring
Tenant's approval;
5.2.3 A breach by Tenant of the terms of this Work Letter or the
Lease;
5.2.4 Changes by Tenant in any of the Construction Drawings after
disapproval of the same by Landlord or if Tenant's architect is used, because
the same do not comply with Code or other applicable laws;
5.2.5 Tenant's request for changes in the Approved Construction
Drawings;
5.2.6 Tenant's requirement for materials, components, finishes or
improvements which are not available in a commercially reasonable time given the
anticipated Commencement Date, as set forth in the Lease, or which are different
from, or not included in, the Standard Improvement Package;
5.2.7 The performance of any other work in the Premises by any
other person, firm or corporation employed by or on behalf of Tenant or any
failure to complete or delay in completion of such work; or
5.2.8 Any other acts or omissions of Tenant, or its agents or
employees;
then, notwithstanding anything to the contrary set forth in the Lease or this
Work Letter and regardless of the actual date of the Substantial Completion of
the Premises, the Substantial Completion of the Premises shall be deemed to have
occurred on the date the Substantial Completion of the Premises would have
occurred if no Tenant Delay or Delays, as set forth above, had occurred.
SECTION 6
---------
MISCELLANEOUS
-------------
6.1 Tenant's Entry Into the Premises Prior to the Commencement Date.
---------------------------------------------------------------
Provided that Tenant and its agents do not interfere with Contractor's work in
the Building and the Premises, Tenant shall have a revocable license to access
the Premises prior to the Commencement Date for the purpose of Tenant installing
overstandard equipment or fixtures (including Tenant's data and telephone
equipment) in the Premises. Prior to Tenant's entry into the Premises as
permitted by the terms of this Section 6.1, Tenant shall submit (a) a schedule
to Landlord and Contractor, for their approval, which schedule shall detail the
timing and purpose of Tenant's entry; (b) copies of all plans and specifications
pertaining to the work for which such access is being requested; (c) copies of
all
EXHIBIT 2 - Page 5
<PAGE>
licenses and permits required in connection with the performance of the work
for which such access is being requested; (d) certificates of insurance (in
amounts and with insured parties satisfactory to Landlord) and instruments of
indemnification against all claims, costs, expenses, damages and liabilities
which may arise in connection with such work; and (e) assurances of the
availability of funds sufficient to pay for all such work. All of the foregoing
shall be subject to Landlord's approval, which shall not be unreasonably
withheld. Any such entry into and occupation of the Premises prior to the
Commencement Date by Tenant its agents, contractors, workmen, mechanics,
suppliers and invitees shall be deemed to be under all of the terms, covenants,
conditions and provisions of the Lease, excluding one, the covenant to pay
Monthly Base Rent. Tenant shall hold Landlord and its beneficiaries harmless
from and indemnify, protect and defend Landlord and its beneficiaries against
any loss or damage to the Building or Premises and against injury to any persons
caused by Tenant's actions pursuant to this Section 6.1.
6.2 Freight Elevators. Landlord shall, consistent with its obligations to
-----------------
other tenants of the Building, make the freight elevator of the Building, if
applicable, reasonably available to Tenant in connection with initial
decorating, furnishing and moving into the Premises; provided, however, Tenant
shall pay Landlord's standard charges therefor.
6.3 Tenant's Representative. Tenant has designated ________________ as
-----------------------
its sole representative with respect to the matters set forth in this Work
Letter, who, until further notice to Landlord, shall have full authority and
responsibility to act on behalf of the Tenant as required in this Work Letter.
6.4 Landlord's Representative. Landlord has designated Grace Seputis (the
-------------------------
Property Manager) as its sole representative with respect to the matters set
forth in this Work Letter, who, until further notice to Tenant, shall have full
authority and responsibility to act on behalf of the Landlord as required in
this Work Letter.
6.5 Tenant's Agents. All contractors, subcontractors, laborers,
---------------
materialmen, and suppliers retained directly by Tenant shall conduct their
activities in and around the Premises, Building and Property in a harmonious
relationship with all other contractors, subcontractors, laborers, materialmen
and suppliers at the Premises, Building and Property.
6.6 Time of the Essence in This Work Letter. Unless otherwise indicated,
---------------------------------------
all references herein to a "number of days" shall mean and refer to calendar
days. In all instances where Tenant is required to approve or deliver an item,
if no written notice of approval is given or the item is not delivered within
the stated time period, at Landlord's sole option, at the end of such period the
item shall automatically be deemed approved or delivered by Tenant and the next
succeeding, time period shall commence.
6.7 Tenant's Lease Default. Notwithstanding any provision to the contrary
----------------------
contained in the Lease, if a Default by Tenant as described in Section 21.1 of
the Lease, or a default by Tenant under this Work Letter, has occurred, then (i)
in addition to all other rights and remedies granted to Landlord pursuant to
this Lease, Landlord shall have the right to withhold payment of all or any
portion of the Tenant Improvement Allowance and/or Landlord may cause Contractor
to cease the construction of the Premises (in which case Tenant shall be
responsible for any delay in the completion of the Tenant Improvements caused by
such work stoppage as set forth in Section 5 of this Work Letter), and (ii) all
other obligations of Landlord under the terms of this Work Letter shall be
forgiven until such time as such default is cured pursuant to the terms of the
Lease.
EXHIBIT 2 - Page 6
<PAGE>
EXHIBIT 2 - Page 7
<PAGE>
SCHEDULE A
----------
TIME DEADLINES
--------------
Dates Actions to be Performed
----- -----------------------
A. February 8, 2000 Final Space Plan to be completed
----------------
by Tenant and delivered to
Landlord.
B. February 22, 2000 Tenant to deliver Final
-----------------
Construction Drawings to Landlord.
C. Five business days after the receipt Tenant to approve Cost Proposal
of the Cost Proposal by Tenant. and deliver Cost Proposal to
Landlord.
SCHEDULE A - Page -1-
<PAGE>
EXHIBIT 3
---------
RULES AND REGULATIONS
---------------------
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside or
inside of the Building by Tenant without the written consent of Landlord first
had and obtained and Landlord shall have the right to remove any such sign,
placard, picture, advertisement, name or notice without notice to and at the
expense of Tenant.
All approved Tenant signs or lettering on or adjacent to doors shall
be printed, painted, affixed or inscribed at the expense of Tenant by a person
approved of by Landlord.
Tenant shall not place anything or allow anything to be placed near
the glass of any window, door, partition or wall which may appear unsightly from
outside the Premises or not be in keeping with the window treatment of the
Building.
2. Tenant shall not obtain for use upon the Premises ice, drinking water,
towel and other similar services or accept barbering or bootblack services on
the Premises, except from persons authorized by Landlord and at the reasonable
hours and under reasonable regulations fixed by Landlord.
3. The bulletin board or directory of the Building will be provided for
the display of the name and location of tenants only and Landlord reserves the
right to exclude any other names therefrom.
4. The sidewalks, adjacent streets, arcades, landscaping areas, hallways,
passages, exits, entrances, elevators, stairways and other common areas shall
not be obstructed by Tenants or used by Tenant for any purpose including the
display or sale of merchandise, other than for ingress to and egress from the
Premises. The hallways, passages, exits, entrances, elevators, stairways,
balconies and roof are not for the use of the general public and Landlord shall
in all cases retain the right to control and prevent access thereto by all
persons whose presence in the judgment of Landlord shall be prejudicial to the
safety, character, reputation and interests of the Property and its tenants,
provided that nothing herein contained shall be construed to prevent such access
to persons with whom Tenant normally deals in the ordinary course of Tenant's
business unless such persons are engaged in illegal activities. Neither Tenant
nor any employees or invitees of Tenant shall go upon the roof of the Building.
5. Tenant shall not alter any lock nor install any new or additional
locks or any bolts on any door of the Premises.
EXHIBIT 3 - PAGE 1
<PAGE>
6. The toilet rooms, urinals, wash bowls and the other apparatus shall
not be used for any purpose other than that for which they were constructed and
no foreign substance of any kind whatsoever shall be thrown therein and the
expense of any breakage, stoppage or damage resulting from the violation of this
rule shall be borne the tenant who, or whose employees or invitees shall have
caused it.
7. Tenant shall not overload the floor of the Premises or in any way
deface the Premises or any part thereof.
8. No furniture, freight or equipment of any kind shall be brought into
the Building without the consent of Landlord and all moving of the same into or
out of the Building shall be done at such time and in such manner as Landlord
shall designate. Landlord shall have the right to prescribe the weight, size
and position of all safes and other heavy equipment brought into the Building
and also the times and manner of moving the same in and out of the Building.
Safes or other heavy objects shall, if considered necessary by Landlord, stand
on wood strips of such thickness as is necessary to properly distribute the
weight. Landlord will not be responsible for loss of or damage to any such safe
or property from any cause and all damage done to the Building or Property by
moving or maintaining any such safe or other property shall be repaired at the
expense of Tenant.
9. Tenant shall not employ any person or persons other than the janitor
of Landlord for the purpose of cleaning the Premises unless otherwise agreed to
by Landlord. Except with the written consent of Landlord, no person or persons
other than those approved by Landlord shall be permitted to enter the Building
for the purpose of cleaning the same. Tenant shall not cause any unnecessary
labor by reason of Tenant's carelessness or indifference in the preservation of
good order and cleanliness. Landlord shall in nowise be responsible to any
Tenant for any loss of property on the Premises, however occurring, or for any
damage done to the effects of any Tenant by the janitor or any other employee or
any other person. Janitor service shall include ordinary dusting and cleaning by
the janitor assigned to such work and shall not include cleaning of carpets or
rugs, except normal vacuuming, or moving of furniture or other special services.
10. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to Landlord or other
occupants of the Building or Property by reason of noise, odors and/or
vibrations, or interfere in any way with other lessees or those having business
therein, nor shall any animals (except seeing-eye dogs and other animals
assisting physically challenged individuals), birds, bicycles or other vehicles,
be brought in or kept in or about the Premises, Building or Property.
11. No cooking shall be done or permitted by any Tenant on the Premises,
nor shall the Premises be used for the storage of merchandise, for washing
clothes, for lodging, or for any improper, objectionable or immoral purposes.
Notwithstanding the
EXHIBIT 3 - Page 2
<PAGE>
foregoing, a tenant may prepare coffee and similar beverages and warm typical
luncheon items for the consumption of such tenant's employees and invitees.
12. Tenant shall not use or keep in or about the Premises, the Building or
Property any kerosene, gasoline or inflammable or combustible fluid or material,
toxic or hazardous substance, or use any method of heating or air conditioning
other than that supplied by Landlord. The foregoing notwithstanding, Tenant may
handle, store, use or dispose of products containing small quantities of
Hazardous Materials, which products are of a type customarily found in offices
and houses (such as aerosol cans containing insecticides, toner for copiers,
paints, paint remover, and the like) on the Premises provided that Tenant shall
handle, store, use and dispose of any such Hazardous Materials in a safe and
lawful manner and shall not allow such Hazardous Materials to contaminate the
Premises, the Building, the Property or the environment.
13. Landlord will direct electricians as to where and how telephone and
equipment wires are to be introduced. No boring or cutting for wires will be
allowed without the consent of Landlord. The location of telephones, call boxes
and other office equipment affixed to the Premises shall be subject to the
approval of Landlord.
14. Tenant, upon the termination of its tenancy, shall deliver to Landlord
the keys of offices, rooms and toilet rooms which shall have been furnished
Tenant or which Tenant shall have had made, and in the event of loss of any keys
so furnished, shall pay Landlord therefor.
15. Tenant shall not lay linoleum, tile, carpet or other similar floor
covering so that the same shall be affixed to the floor of the Premises in any
manner except as approved by Landlord. The expense of repairing any damage
resulting from a violation of this rule shall be borne by Tenant.
16. No furniture, packages, supplies, equipment or merchandise will be
received in the Building or carried up or down in the elevators, except between
such hours and in such elevators as shall be designated by Landlord.
17. On Saturdays, Sundays and Holidays (as defined in the Lease), and on
other days between the hours of 6:00 p.m. and 8:00 am. the following day, access
to the Building, or to the hallways, elevators or stairways in the Building, or
to the Premises may be refused unless the person seeking access is known to the
person or employee of the Building in charge and has a pass or is properly
identified. The Landlord shall in no case be liable for damages for any error
with regard to the admission to or exclusion from the Building or Property of
any person. In case of invasion, mob, riot, demonstrations, public excitement,
or other commotion, Landlord reserves the right to prevent access to the
Building or Property during the continuance of the same by closing the doors or
otherwise, for the safety of the tenants and protection of the Building and
Property and the property therein.
EXHIBIT 3 - Page 3
<PAGE>
18. All corridor doors shall remain closed at all times. Tenant shall see
that the doors of the Premises are closed and securely locked before leaving the
Building and must observe strict care and caution that all water faucets or
water apparatus are entirely shut off before Tenant or Tenant's employees leave
the Building, and that all electricity shall likewise be carefully shut off, so
as to prevent waste or damage, and for any default or carelessness Tenant shall
be responsible for all injuries sustained by Landlord or other tenants or
occupants of the Property.
19. Landlord reserves the right to exclude or expel from the Building or
Property any person who, in the judgment of Landlord, is intoxicated or under
the influence of liquor or drugs, or who shall in any manner do any act in
violation of any of the rules and regulations of the Property.
20. The requirements of Tenant will be attended to only upon application
at the Office of the Building. Employees of Landlord shall not perform any work
or do anything outside of their regular duties unless under special instructions
from Landlord, and no employee will admit any person (Tenant or otherwise) to
any office without specific instructions from Landlord.
21. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of
Landlord.
22. Landlord shall have the right, exercisable without notice and without
liability to Tenant, to change the name and the street address of the Building
and/or Property.
23. Tenant shall not disturb, solicit, or canvass any occupant of the
Property and shall cooperate to prevent same.
24. Without the written consent of Landlord, Tenant shall not use the name
of the Building or Property in connection with or in promoting or advertising
the business of Tenant except that the name of the Building may be used as part
of the Tenant's business address.
25. Tenant shall refrain from dumping, disposal, reduction, incineration
or other burning of any trash, papers, refuse or garbage of any kind in or about
the Premises, the Building or Property, and shall store all such trash in
suitable containers as determined from time to time by Landlord located so as
not to be visible or otherwise a nuisance to customers or invitees of the
Property, and so as not to create or permit any health or fire hazard. Tenant
shall pay, as Additional Rent, any charges for its trash removal not charged to
Tenant under Sections 4 or 6 of this Lease.
26. Tenant shall not waste electricity, water or air conditioning. All
controls shall be adjusted only by authorized Building personnel.
EXHIBIT 3 - - Page 4
<PAGE>
27. Tenant shall not utilize any equipment or apparatus in such manner as
to create any magnetic fields or waves which adversely affect or interfere with
the operation of any systems or equipment in the Building.
28. Landlord reserves the right to make such other and further reasonable
rules and regulations as in its judgment may be for the safety, care and
cleanliness of the Premises and for the preservation of good order therein.
Tenant agrees to abide by all such rules and regulations hereinabove stated and
any additional reasonable rules and regulations which are adopted.
EXHIBIT 3 - Page 5
<PAGE>
EXHIBIT 4
---------
[INSERT NAME OF BANK]
---------------------
[Insert Date]
USVIB Holding LLC
c/o VIB Management, Inc.
712 Fifth Avenue, 19th Floor
New York, New York 10019
Dear Sirs:
We hereby issue in your favor our Irrevocable Letter of Credit No.
__________ of account of Noosh, Inc. for the sum of U.S. $100,000.00 (One
Hundred Thousand and No/100 Dollars) which is available against your sight
draft(s) drawn on us accompanied by a statement reading as follows:
Tenant is in default under Lease, dated __________ __, 2000,
between LaSalle National Bank, as Landlord, and Noosh, Inc.,
as Tenant (as heretofore or hereinafter amended, the
"Lease"), and Landlord is entitled to draw upon this Letter
of Credit.
It is a condition of this Letter of Credit that it will be automatically
extended for periods of one (1) year from the present or any future expiration
date. In the event we do not extend this Letter of Credit, we shall notify you
in writing, by certified mail, return receipt requested, at least sixty (60)
days' prior to the then present expiration date.
In the event that we notify you that we elect not to extend this
Letter of Credit, you may draw hereunder by means of your draft without
presentation of the foregoing statement or any additional documentation.
This Letter of Credit is transferable to any person or party to whom
you assign your interest, as Landlord, under the Lease.
Partial drawings are authorized under this Letter of Credit.
We hereby agree that drafts drawn in accordance with the terms stipulated
herein will be duly honored upon presentation and delivery of documents as
specified if presented to [Insert Name of Bank] at our office at
___________________________________, Chicago, Illinois on or before
_________________, or any automatically extended expiration date.
EXHIBIT 4 - PAGE 1
<PAGE>
In no event will this letter of credit be extended beyond [insert date
that is thirty (30) days following the Expiration Date of the Lease].
Except so far as is otherwise stated, this Irrevocable Letter of
Credit is subject to the Uniform Custom and Practice for Documentary Credits
(1993 Revision) International Chamber of Commerce Publication Number 500.
Very truly yours,
____________________________
Authorized Signature
EXHIBIT 4 - Page 2
<PAGE>
EXHIBIT 4 - Page 3
<PAGE>
EXHIBIT 5
---------
CONFIRMATION OF LEASE TERM DATES
--------------------------------
To: Noosh, Inc.
3401 Hillview Avenue
Building B
Palo Alto, California 94304
Re: Lease dated February ____, 2000 ("Lease") between LaSalle
National Bank, not personally, but solely as Trustee under Trust
Agreement dated May 1, 1989, and known as Trust No. 114400
("Landlord") and Noosh, Inc. ("Tenant") concerning Suite 2650 on
the twenty-sixth (26th) floor of the building located at 303
West Madison, Chicago, Illinois.
Gentlemen:
In accordance with the above referenced Lease, we wish to advise you and/or
confirm as follows:
1. That the Premises are Ready for Occupancy, and that the Lease Term
shall commence as of _______________, 2000 for a term of three (3) years ending
on _______________, 2003.
2. That in accordance with the Lease, Rent commenced to accrue on
_______________, 2000.
3. If the Commencement Date is other than the first day of the month, the
first billing will contain a pro rata adjustment. Each billing thereafter, with
the exception of the final billing, shall be for the full amount to the monthly
installment as provided for in the Lease.
4. Rent is due and payable in advance on the first day of each and every
month during the Lease Term. Your rent checks should be made payable to USVIB
HOLDING LLC.
5. Landlord and Tenant agree that the exact number of rentable square
feet within the Premises is 4,298 square feet.
EXHIBIT 5 - PAGE 1
<PAGE>
6. Tenant's Share, as adjusted based upon the exact number of rentable
square feet within the Premises, is 1.48%.
LANDLORD: TENANT:
LINCOLN PROPERTY COMPANY NOOSH, INC.
COMMERCIAL, INC.,
Management Agent for Landlord
By:______________________________ By______________________________
Name__________________________ Name:_________________________
Title:________________________ Title:________________________
Date:___________________, 2000 Date:___________________, 2000
EXHIBIT 5 - Page 2
<PAGE>
EXHIBIT 10.30
THE CORPORATE OFFICE CENTRE
AT TYSONS II
1750 Tysons Boulevard
McLean, Virginia 22102
DEED OF LEASE
BY AND BETWEEN
MDM DEVELOPMENT COMPANY, L.L.C.
and
NOOSH, INC.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
1. Definition, Terms and Conditions................................................. 1
a. Special Definitions, Terms and Conditions.................................. 1
b. General Definitions, Terms, and Conditions................................. 2
2. Term............................................................................. 6
a. Term and Commencement Date................................................. 6
b. Delay in Possession........................................................ 6
c. Delays Caused by Tenant.................................................... 7
d. Tender of Possession....................................................... 7
e. Early Possession........................................................... 7
3. Rent and Additional Charges; Computation of Operating Expense Increases.......... 7
a. Payment of Rent and Additional Charges..................................... 7
b. Computation of8Operating Expenses.......................................... 8
c. Interest................................................................... 9
d. Accord and Satisfaction.................................................... 9
e. Late Payment Charge........................................................ 9
4. Services and Utilities........................................................... 10
a. Types...................................................................... 10
b. Access..................................................................... 11
c. Interruption in Services................................................... 11
5. Maintenance and Repairs.......................................................... 11
6. Use of Leased Premises........................................................... 12
a. General Offices............................................................ 12
b. Covenants.................................................................. 12
c. Compliance................................................................. 12
d. Rules and Regulations...................................................... 13
7. Insurance........................................................................ 13
a. Tenant..................................................................... 13
b. Landlord................................................................... 14
c. Waiver of Subrogation...................................................... 15
8. Damage by Fire or Other Casualty................................................. 15
9. Condemnation..................................................................... 16
10. Assignment and Subletting........................................................ 16
a. Landlord's Consent Required................................................ 16
b. Leveraged Buy-Out.......................................................... 17
c. Standard for Approval...................................................... 17
d. Additional Terms and Conditions............................................ 17
e. Additional Terms and Conditions Applicable to Subletting................... 18
f. Transfer Premium from Assignment or Subletting............................. 19
g. Landlord's Option to Recapture Space....................................... 19
h. Landlord's Expenses........................................................ 20
11. Default Provisions............................................................... 20
a. Events of Default.......................................................... 20
b. Remedies................................................................... 21
c. Damages.................................................................... 21
d. Basic Rent and Additional Charges.......................................... 22
12. Bankruptcy Termination Provision................................................. 22
13. Landlord May Perform Tenant's Obligations........................................ 22
14. Security Deposit................................................................. 22
15. Subordination; Attornment........................................................ 25
a. Subordination.............................................................. 25
b. Modifications.............................................................. 25
c. Attornment................................................................. 25
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
d. Nondisturbance............................................................. 25
16. Quiet Enjoyment.................................................................. 26
17. Landlord's Right of Access....................................................... 26
18. Limitation on Landlord's Liability............................................... 26
a. Limitation................................................................. 26
b. Force Majeure.............................................................. 27
19. Hazardous Material............................................................... 27
a. Definition and Consent..................................................... 27
b. Duty to Inform Landlord.................................................... 28
c. Inspection; Compliance..................................................... 28
20. Certificates..................................................................... 28
21. Surrender of Leased Premises..................................................... 29
22. Alterations and Additions........................................................ 29
23. Holding Over..................................................................... 30
24. Signs............................................................................ 31
25. Options.......................................................................... 31
a. Definition................................................................. 31
b. Options Personal........................................................... 31
c. Multiple Options........................................................... 31
d. Effect of Default on Options............................................... 31
e. Limitations on Options..................................................... 31
f. Notice of Exercise of Option............................................... 32
26. Leasing Commission............................................................... 32
27. General Provisions............................................................... 32
a. Binding Effect............................................................. 32
b. Laws....................................................................... 32
c. Attorneys' Fees............................................................ 32
d. Waiver..................................................................... 32
e. Security Interest.......................................................... 33
f. Notices.................................................................... 33
g. Entirety................................................................... 33
h. Waiver of Jury............................................................. 33
i. Waiver of Venue............................................................ 33
j. Confidentiality............................................................ 34
k. Tenant Entity.............................................................. 34
l. Time of Essence............................................................ 34
m. Words and Phrases.......................................................... 34
n. Limit on Landlord's Liability.............................................. 34
o. Administrative Costs....................................................... 34
p. Counterparts............................................................... 35
q. Exhibits and Addendum...................................................... 35
</TABLE>
Addendum
Exhibit A
Exhibit A-1
Exhibit B
Exhibit B-1
Exhibit C
Exhibit D
Exhibit E
<PAGE>
THE CORPORATE OFFICE CENTRE AT TYSONS II
DEED OF LEASE
This DEED OF LEASE (hereinafter, this "Lease") dated as of the ______
day of ____________, 1999, is by and between MDM DEVELOPMENT COMPANY, L.L.C., a
Virginia limited liability company (hereinafter, "Landlord"), and NOOSH, INC., a
_______________ corporation (hereinafter, "Tenant").
WITNESS, subject to the terms of this Lease, Landlord hereby leases to
Tenant, and Tenant hereby leases from Landlord, the Leased Premises (as defined
below), for the Term (as defined below).
1. Definitions, Terms, and Conditions.
--------------------------------------
(a) Special Definitions, Terms, and Conditions. Throughout this
------------------------------------------
Lease, the following words and phrases shall have the meanings indicated and
obligate the parties as stated:
(1) Advance Deposit. $7,677.08 [an amount equal to one (1)
---------------
month's Basic Rent]. Such Advance Deposit shall be paid by
Tenant to Landlord upon Tenant's execution hereof and held by
Landlord as temporary security for the performance of Tenant's
obligations hereunder. Such Advance Deposit shall be applied
to Basic Rent for the first full month of the Term for which
Basic Rent is actually payable.
(2) Rent.
----
(A) Basic Rent Per Annum. During the Initial Term (as defined
--------------------
below in Section 1(a)(3)), Tenant shall pay Basic Rent per annum in equal
monthly installments in accordance with the following schedule:
<TABLE>
<CAPTION>
Initial Term (in full calendar months) Basic Rent per annum per Rentable Square Foot
- ------------------------------------- ---------------------------------------------
<S> <C>
Lease Commencement Date -
End of First 12 Full Calendar Months $35.00
13-24 $36.05
25-36 $37.13
37-48 $38.24
49-60 $39.39
</TABLE>
(B) Parking Rent. $72.00 per month, per permit for each of the
------------
nine (9) parking permits (the "Initial Permits") (3.86 permits per 1,000 square
feet of the Leased Premises) during the first Lease Year. At the beginning of
each Lease Year thereafter during the Term, the Parking Rent shall be an amount
equal to the Parking Rent applicable during the immediately preceding Lease Year
increased by 3%. Tenant shall be obligated to lease and pay for all of the
Initial Permits for the entire Term of the Lease. In the event Tenant requests
additional spaces in addition to the Initial Permits, such parking spaces shall
be made available to Tenant, to the extent available, and on terms then being
made available to the general public for off street parking in the parking
garage.
(3) Initial Term. The period commencing on the Lease Commencement
------------
Date and ending on the last day of the calendar month which completes sixty (60)
full calendar months thereafter, unless sooner terminated in accordance with the
provisions hereof.
1
<PAGE>
(4) Lease Commencement Date. November 15, 1999, subject to
-----------------------
adjustment in accordance with Section 2 below.
(5) Leased Premises. The space located on the first (1st) floor
---------------
of the Building designated as Suite 110 and as outlined on the floor plan
attached hereto as Exhibit A (exclusive of any Building mechanical, electrical,
---------
telephone or similar rooms, janitor closets, elevator, pipe and other vertical
shafts, ducts and stairwells); the agreed upon rentable square footage of the
Leased Premises, including core space, is 2,250 square feet.
(6) Proportionate Share. The percentage that the rentable square
-------------------
footage of the Leased Premises bears to the total rentable square footage of all
office space in the Building, except as provided in Section 1(b)(9) hereof.
(7) Operating Expense Increases. Tenant agrees to pay its
---------------------------
Proportionate Share of Operating Expenses (as defined below) in excess of actual
Operating Expenses for the calendar year 2000 (the "Base Year"), as more fully
provided in Section 3.
(8) Security Deposit. $100,000.00 , held subject to Section 14
----------------
below.
(9) Tenant's Notice Address. To the Leased Premises; except
-----------------------
before the Lease Commencement Date to:
Noosh, Inc.
3401 Hillview Avenue, Building B
Palo Alto, California 94304
Attention: Mr. Todd R. Ford
(10) Leasing Broker(s). Diamond Property Company and The Bank
-----------------
Companies/ONCOR International.
(b) General Definitions, Terms, and Conditions. As used in this
------------------------------------------
Lease, the following words and phrases shall have the meanings indicated and
obligate the parties as stated:
(1) Additional Charges. All amounts payable by Tenant to Landlord
------------------
under this Lease other than the Basic Rent. All Additional Charges shall be
deemed to be additional rent and all remedies applicable to non-payment of Basic
Rent shall be applicable thereto. Herein, Basic Rent and Additional Charges may
be referred to in combination as "Rent."
(2) Building. The office building to be built at 1750 Tysons
--------
Boulevard, McLean, Virginia 22102 in accordance with the plans and
specifications listed on Exhibit A-1 attached hereto (the "Base Building
-----------
Plans"), including the underlying lot, the Common Areas (as defined below),
along with portions of the adjacent parking structure allocated to the Building
by Landlord, except that Landlord reserves and Tenant shall have no right in and
to (i) the ownership and use of the exterior faces of all perimeter walls of the
Building, (ii) the ownership and use of the roof of the Building, or (iii) the
ownership and use of the air space above the Building.
(3) Common Areas. All areas and facilities of the Building for
------------
the common use and/or benefit of tenants of the Building as allocated by
Landlord, including the exterior of the Building and areas and facilities shared
with buildings adjacent to the Building, and including, without limitation, the
public lobbies, elevators, corridors, stairways, toilet rooms, parking areas,
motor court plaza, loading and unloading areas, roadways and sidewalks. Except
as provided herein, throughout the Term, Tenant, its agents, employees and
business invitees shall have the non-exclusive right, in common with others, to
use the Common Areas of the Building. Landlord shall have the right at any time,
without Tenant's consent, to change the arrangement or location of entrances,
2
<PAGE>
passageways, doors, doorways, corridors, stairs, toilet rooms or other Common
Areas of the Building, or to change the name, number or designation by which the
Building is known; provided, however, Landlord shall use commercially reasonable
efforts to construct such changes with minimum interference to Tenant's use of
the Leased Premises. Landlord may also designate other land and improvements
outside the boundaries of the Building to be a part of the Common Areas,
provided that such other land and improvements have a reasonable and functional
relationship to the Building. Landlord reserves unto itself the full and
complete ownership of all tangible personal property installed by Landlord in
the Building.
(4) Event of Default. Any of the events set forth in Section 11
----------------
hereof, or any default at law, the same sometimes herein being referred to as a
"default" by Tenant.
(5) Base Building Construction. Landlord shall construct the Base
--------------------------
Building as more particularly set forth in Exhibit B attached hereto and in the
---------
Base Building Plans.
(6) Landlord's Notice Address.
-------------------------
MDM Development Company, L.L.C.
c/o Lerner Corporation
11501 Huff Court
North Bethesda, Maryland 20895-1094
Attention: Legal Department
All rental payments shall be forwarded to:
MDM Development Company, L.L.C.
c/o Lerner Corporation
11501 Huff Court
North Bethesda, Maryland 20895-1094
Attention: Accounts Receivable
1750 Tysons Boulevard
(7) Lease Year. The period commencing on the Lease Commencement Date
----------
and ending on the last day of the calendar year in which said Lease Commencement
Date occurs shall constitute the first "Lease Year" as such term is used herein.
Each successive full calendar year during the Term thereafter shall constitute a
"Lease Year" and any portion of the Term remaining after the last full calendar
year shall constitute the last "Lease Year" for the purposes of this Lease.
(8) Mortgage. Any mortgage or deed of trust which affects any
--------
interest in the Building or Landlord, and the word "mortgagee" shall mean the
---------
holder of any such mortgage or the beneficiary of any such deed of trust.
(9) Operating Expenses. All costs, expenses and fees paid, incurred
------------------
or accrued each Lease Year by Landlord in connection with the ownership,
management, operation, servicing and maintenance of the Building including, but
not limited to, any costs incurred in keeping the Building in compliance with
code; repairs, maintenance, additions, replacements and improvements to the
Building (excluding capital improvements unless the same are intended by
Landlord to reduce Operating Expenses), including all parking areas, loading and
unloading areas, trash areas, roadways, sidewalks, stairways, landscaped areas,
motor court plaza and fountains, striping, bumpers, irrigation systems, lighting
facilities, building exteriors and roofs, fences and gates; building, janitorial
and cleaning supplies; uniforms and dry cleaning services; window cleaning
services, plumbing, mechanical, electrical systems, life safety systems and
equipment, telecommunication equipment, elevators, escalators, tenant
directories, fire detection systems, including sprinkler system maintenance and
repair; the cost of trash disposal, janitorial services and security services
and systems; service contracts for the maintenance and operation of elevators,
boilers, HVAC, mechanical equipment and exercise equipment; employees'
3
<PAGE>
wages, salaries and fringe benefits; payroll taxes; business and franchise
taxes; Real Estate Taxes (as defined in subsection 12 below); any expenses
incurred by Landlord in attempting to protest, reduce or minimize Real Estate
Taxes; electricity, gas, oil and other fuels, solid waste and utility charges;
sewer and water charges; premiums for fire and casualty, liability, workmen's
compensation and other insurance, including any deductibles; telephone and
facsimile services and other communications costs; common transportation
services; any costs in connection with equipping, maintaining and operating the
health club in the Building; any property owners association dues including the
Tysons II Property Owners Association, Inc.; any parking management fee; the
cost of all business licenses, including Business Professional and Occupational
License Tax and Business Improvements Districts Tax, any gross receipt taxes
based on rental income or other payments received by Landlord, commercial rental
taxes or any similar taxes or fees; the cost of installing intra-building
network cabling ("INC") and maintaining, repairing, securing and replacing
existing INC; administrative costs and overhead expenses; miscellaneous
management-related expenses; and management fees. For purposes of determining
Tenant's Proportionate Share of Operating Expenses which are not fixed and which
vary depending upon Building occupancy levels, such as janitorial services,
electricity, and management fees based upon rental, the Proportionate Share of
such expenses shall be adjusted utilizing as the numerator the rentable square
footage of the Leased Premises and as the denominator the rentable square
footage of office tenants in occupancy of the Building each Lease Year. For
purposes of determining Tenant's Proportionate Share of Operating Expenses which
in certain instances have been contracted for separately by other tenants of the
Building, such as electricity and janitorial services, the Proportionate Share
of such expenses shall be adjusted utilizing as the numerator the rentable
square footage of the Leased Premises and as the denominator the rentable square
footage of all remaining office tenants of the Building which do not contract
separately for such services. If the cost incurred in making an improvement or
replacing any equipment is not fully deductible as an expense in the year
incurred in accordance with generally accepted accounting principles, the cost
shall be amortized over the useful life of the improvement or equipment, as
reasonably determined by Landlord, together with an interest factor on the
unamortized cost of such item equal to the lesser of (i) twelve percent (12%)
per annum, or (ii) the maximum rate of interest permitted by applicable law.
Notwithstanding anything to the contrary contained in the definition
of Operating Expenses set forth in this Section 1(b)(9) of the Lease, Operating
Expenses shall not include the following:
(i) Ground rent.
(ii) Salaries, benefits, wages or fees for employees above the
grade of property manager or for officers or partners of
Landlord.
(iii) Costs and expenses which would otherwise be included in
Operating Expenses but which are in excess of the
competitive rates for similar services of comparable
quality, rendered by persons or entities of similar skill,
competence and experience, provided however that a
management fee of four percent (4%) of gross revenues shall
be deemed not to exceed the competitive rate and shall be
included in the Base Year Operating Expenses and each
comparative year. Management fees for the Base Year and
each comparative year shall be computed as if the vacant
areas of the Building were fully rented at ninety-five
percent (95%) of the average rents being charged in the
Building during the applicable Lease Year.
(iv) To the extent that employees are not employed exclusively
at the Building, the costs and expenses with respect to
such employees should be prorated.
4
<PAGE>
(v) Federal, state, county or municipal taxes, death taxes,
excess profit taxes, franchise or any taxes imposed or
measured on or by the income or revenue of Landlord from
the operation of the Building.
(vi) Any expense for which Landlord is reimbursed from any
tenant or other third party, or under the terms of any
insurance policy, warranty or condemnation award.
(vii) Leasing commissions, attorneys' fees, costs, disbursements
and other expenses incurred in connection with
solicitation of and negotiation of leases with tenants,
other occupants or prospective tenants or other occupants
of the Building.
(viii) All "tenant allowances", "tenant concessions" and other
costs or expenses incurred in completing, fixturing,
furnishing, renovating or otherwise improving, decorating
or redecorating space for tenants or other occupants of
the Building, or vacant lease space in the Building
including space planning fees.
(ix) All items, utilities and services for which Tenant or any
other tenant or occupant of the Building specifically
reimburses Landlord or for which Tenant or any other
tenant or occupant of the Building pays third parties.
(x) All costs or expenses (including fines, penalties,
interest and legal fees) incurred due to the violation by
Landlord, its employees, agents or contractors, or any
tenant (other than Tenant) or other occupant of the
Building, of the terms and conditions of any lease or
other occupancy agreement pertaining to the Building.
(xi) Payment of principal, finance charges or interest on debt
or amortization on any mortgage or other debt or any
penalties assessed as a result of Landlord's late payments
of such amounts.
(xii) Any costs of Landlord's general overhead, including
general and administrative expenses, which costs would not
be chargeable to Operating Expenses of the Building, in
accordance with generally accepted accounting principles,
consistently applied.
(xiii) Any costs or expenses for the acquisition of sculpture,
paintings, or other works of fine art.
(xiv) Any otherwise includible costs of correcting defects in
the Building and/or any associated garage facilities
and/or equipment or replacing defective equipment to the
extent such costs are covered by warranties of
manufacturers, suppliers or contractors.
(xv) All expenses directly resulting from the gross negligence
or willful misconduct of the Landlord, its agents or
employees.
(xvi) All costs and expenses associated with the operation of
the business of the entity which constitutes Landlord as
the same are distinguished from the costs
5
<PAGE>
of operation of the Building, including accounting and
legal matters, costs of defending any lawsuits with any
Landlord's Mortgagee, costs of selling, syndicating,
financing, mortgaging or hypothecating any of the
Landlord's interest in the Building, or costs of any
disputes between Landlord and its employees (if any) not
engaged in Building operation.
(xvii) Rent for space leased to Landlord which is not actually
used by Landlord in connection with the management or
operation of the Building.
(xviii) Costs of correcting any violations under the Americans
with Disabilities Act existing as of the Lease
Commencement Date.
(10) Person. A natural person, partnership, corporation or any other
------
form of business or legal association or entity.
(11) Prime Rate. The prime rate of interest charged from time to time
----------
by NationsBank, N.A. or its successor to its most favored customers on
commercial loans having a 90-day duration.
(12) Real Estate Taxes. All taxes, assessments, water and sewer rents,
-----------------
if any, and other charges, if any, general, special or otherwise, including all
assessments for schools, public betterments and general or local improvements,
levied or assessed upon or with respect to the ownership of and/or all other
taxable interests in the Building imposed by any public or quasi-public
authority having jurisdiction. Except for taxes, fees, charges and impositions
described in the next succeeding sentence, Real Estate Taxes shall not include
any income inheritance, estate, succession, transfer, gift, profit tax or
capital levy. If at any time during the Term the methods of taxation shall be
altered so that in addition to or in lieu of or as a substitute for the whole or
any part of any Real Estate Taxes levied, assessed or imposed there shall be
levied, assessed or imposed (i) a tax, license fee, excise or other charge on
the rents received by Landlord, or (ii) any other type of tax or other
imposition in lieu of, or as a substitute for, or in addition to, the whole or
any portion of any Real Estate Taxes, then the same shall be included as Real
Estate Taxes. A tax bill or true copy thereof, together with any explanatory or
detailed statement of the area or property covered thereby, submitted by
Landlord to Tenant shall be prima facie evidence of the amount of taxes assessed
-----------
or levied, as well as of the items taxed. In the event any building or land
adjacent to the Building in which Landlord has an interest is not separately
assessed and taxed, Landlord shall have the right to allocate a proportionate
share to each such building and Landlord's determination thereof shall be
binding on the parties hereto. If any real property tax or assessment levied
against the land, buildings or improvements covered hereby or the rents reserved
therefrom, shall be evidenced by improvement or other bonds, or in other form,
which may be paid in annual installments, only the amount paid or accrued in any
Lease Year shall be included as Real Estates Taxes for such Lease Year.
(13) Requirements. All laws, statutes, ordinances, codes, orders,
------------
rules, regulations, certificates of occupancy, conditional use or other permits,
variances, easements, covenants and restrictions of record, requirements and
safety recommendations of all federal, state and municipal governments, and the
appropriate agencies, offices, departments, boards and commissions thereof,
Landlord's insurer(s), the board of fire underwriters and/or the fire insurance
rating organization or similar organization performing the same or similar
functions, whether now or hereafter in force, applicable to the Building or any
part thereof and/or the Leased Premises, and notices from Landlord's mortgagee,
as to the manner of use or occupancy or the maintenance, repair or condition of
the Leased Premises and/or the Building, and the requirements of the carriers of
all fire insurance policies maintained by Landlord on or with regard to the
Building.
(14) Tenant Improvements. All tenant improvements to be constructed
-------------------
by Landlord in accordance with Exhibit B attached hereto.
---------
6
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(15) Term. The Initial Term and the extended term(s), if any, as to
----
which Tenant shall have effectively exercised any right to extend, but in any
event the Term shall end on any date when this Lease is sooner terminated in
accordance with the provisions hereof.
2. Term.
----
(a) Term and Commencement Date. The Term and Lease Commencement Date
--------------------------
of this Lease are as specified in Sections 1(a)(3) and 1(a)(4). The Lease
Commencement Date set forth in 1(a)(4) is an estimated Lease Commencement Date.
Subject to the limitations contained in Section 2(c) below, the actual Lease
Commencement Date shall be the date possession of the Leased Premises is
tendered to Tenant in accordance with Section 2(d) below; provided, however,
that if the Lease Commencement Date is other than the first day of the month,
the Term of the Lease shall be computed from the first day of the calendar month
following the Lease Commencement Date. When the actual Lease Commencement Date
is established by Landlord, Tenant shall, within thirty (30) days after
Landlord's request, complete and execute the letter attached hereto as Exhibit C
---------
and deliver it to Landlord. Tenant's failure to execute the letter attached
hereto as Exhibit C within said thirty (30) day period shall be a material
----------
default hereunder and shall constitute Tenant's acknowledgement of the truth of
the facts contained in the letter delivered by Landlord to Tenant.
(b) Delay in Possession. Notwithstanding the estimated Commencement
-------------------
Date specified in Section 1(a)(4), if for any reason Landlord cannot deliver
possession of the Leased Premises to Tenant on said date, Landlord shall not be
subject to any liability therefor, nor shall such failure affect the validity of
this Lease or the obligations of Tenant hereunder; provided, however, in such a
case, Tenant shall not be obligated to pay rent or perform any other obligation
of Tenant under this Lease, except as may be otherwise provided in this Lease,
until possession of the Leased Premises is tendered to Tenant, as defined in
Section 2(d). Notwithstanding the above, if Landlord fails to deliver possession
of the Leased Premises to Tenant on or before June 30, 2000, Tenant shall have
the right to terminate this Lease at any time thereafter (but prior to delivery
of possession of the Leased Premises to Tenant) upon delivery of written notice
to Landlord.
(c) Delays Caused by Tenant. There shall be no abatement of rent to
------------------------
the extent of any delays caused by acts or omissions of Tenant, Tenant's agents,
employees and contractors, or for Tenant delays as defined in Exhibit B attached
---------
to this Lease (hereinafter "Tenant Delays"). Tenant shall pay to Landlord an
amount equal to one thirtieth (1/30th) of the Basic Rent due for the first full
calendar month of the Term for each day of Tenant Delay. For purposes of the
foregoing calculation, the Basic Rent payable for the first full calendar month
of the Term shall not be reduced by any abated rent, conditionally waived rent,
free rent or similar rental concessions, if any. Landlord and Tenant agree that
the foregoing payment constitutes a fair and reasonable estimate of the damages
Landlord will incur as the result of a Tenant Delay. Within thirty (30) days
after Landlord tenders possession of the Leased Premises to Tenant, Landlord
shall notify Tenant of Landlord's reasonable estimate of the date Landlord could
have delivered possession of the Leased Premises to Tenant but for the Tenant
Delays. After delivery of said notice, Tenant shall immediately pay to Landlord
the amount described above for the period of Tenant Delay.
(d) Tender of Possession. Possession of the Leased Premises shall be
deemed tendered to Tenant when Landlord's architect or agent has determined that
(i) the improvements to be provided by Landlord pursuant to Exhibit B are
---------
substantially completed and, if necessary have been approved by the appropriate
governmental entity, (ii) the Building utilities are ready for use in the Leased
Premises, (iii) Tenant has reasonable access to the Leased Premises, and (iv)
three (3) days shall have expired following advance written notice to Tenant of
the occurrence of the matters described in (i), (ii) and (iii) above of this
Section 2(d). If improvements to the Leased Premises are constructed by
7
<PAGE>
Landlord, the improvements shall be deemed "substantially" completed when the
improvements have been completed except for minor items or defects which can be
completed or remedied after Tenant occupies the Leased Premises without causing
substantial interference with Tenant's use of the Leased Premises.
(e) Early Possession. If Tenant occupies the Leased Premises prior to
----------------
the Lease Commencement Date for the purpose of conducting business therein, such
occupancy shall be subject to all provisions of this Lease, such occupancy shall
not change the termination date, and Tenant shall pay Basic Rent and all other
charges provided for in this Lease during the period of such occupancy. Provided
that Tenant does not interfere with or delay the completion by Landlord or its
agents or contractors of the construction of any tenant improvements, Tenant
shall have the right to enter the Leased Premises up to thirty (30) days prior
to the anticipated Lease Commencement Date for the purpose of installing
furniture, trade fixtures, equipment, and similar items. Tenant shall be liable
for any damages or delays caused by Tenant's activities at the Leased Premises.
Provided that Tenant has not begun operating its business from the Leased
Premises, and subject to all of the terms and conditions of the Lease, the
foregoing activity shall not constitute the delivery of possession of the Leased
Premises to Tenant and the Term shall not commence as a result of said
activities. Prior to entering the Leased Premises, Tenant shall obtain all
insurance it is required to obtain by the Lease and shall provide certificates
of said insurance to Landlord. Tenant shall coordinate such entry with
Landlord's building manager, and such entry shall be made in compliance with all
terms and conditions of this Lease and the Rules and Regulations set forth in
Exhibit D attached hereto.
- ---------
3. Rent and Additional Charges; Computation of Operating Expense Increases.
-----------------------------------------------------------------------
(a) Payment of Basic Rent and Additional Charges. Tenant shall pay
--------------------------------------------
the Basic Rent and Parking Rent in equal monthly installments in advance on the
first day of each month during the Term commencing on the Lease Commencement
Date; provided, however, if the Lease Commencement Date is not the first day of
a month, Basic Rent for the period commencing on the Lease Commencement Date and
ending on the last day of the month in which the Lease Commencement Date occurs
shall be pro-rated for each day at the rate of one-thirtieth (1/30) of the full
monthly installment of Basic Rent and paid on the Lease Commencement Date. If
any due and owing Basic Rent is underpaid as a result of failure to make any
required adjustment thereto or other cause, after such required adjustment
thereto or other cause, Tenant shall pay such deficiency in its entirety along
with the next monthly payment of Basic Rent. Tenant shall also pay its
Proportionate Share of Operating Expense Increases as provided in Sections
1(a)(7) and 3(b) hereof. The Basic Rent and all Additional Charges shall be
paid promptly when due, in lawful money of the United States, without notice or
demand and without deduction, diminution, abatement, counterclaim or set-off of
any amount or for any reason whatsoever, to Landlord at Landlord's Notice
Address or at such other address or to such other person as Landlord may from
time to time designate. If Tenant makes any payment to Landlord by check, the
same shall be by check of Tenant only, and Landlord shall not be required to
accept the check of any other person, and any check received by Landlord shall
be deemed received subject to collection. If any check is mailed by Tenant, it
should mailed to Landlord's Notice Address and Tenant shall post such check in
sufficient time prior to the date when payment is due so that such check will be
received by Landlord on or before the date when payment is due. Tenant shall
assume the risk of lateness or failure of delivery of the mails. If, during the
Term, Landlord receives two or more checks from Tenant which are returned by
Tenant's bank for insufficient funds or are otherwise returned unpaid, Tenant
agrees that all checks thereafter shall be either bank certified or bank
cashier's checks. All bank service charges resulting from any bad checks shall
be borne by Tenant. Notwithstanding the foregoing, upon 180 days prior written
notice to Tenant, and to the extent the use of an ACH, as hereinafter defined,
is commercially reasonable for Tenant, Landlord shall have the option of
requiring Tenant to make all payments of Basic Rent by use of an Automatic
Clearing House ("ACH") debit or credit, at the option of Tenant, provided Tenant
is using an ACH debit or credit for any of its other vendors; provided, however,
if Tenant is not using an ACH debit or credit for any of its other vendors, it
shall not be a default hereunder in the event that
8
<PAGE>
Tenant does not comply with the foregoing so long as Tenant continues to make
all scheduled payments of Rent and Additional Charges as required under the
Lease. The Rent reserved under this Lease shall be the total of all Basic Rent
and Additional Charges, increased and adjusted as elsewhere herein provided,
payable during the entire Term and, accordingly, the methods of payment provided
for herein, namely, annual and monthly rental payments, are for convenience only
and are made on account of the total Rent reserved hereunder, provided, however,
that unless Tenant has committed an Event of Default, Landlord cannot demand
payment of the Total Rent reserved hereunder in anything but monthly rental
payments.
(b) Computation of Operating Expenses.
---------------------------------
(1) Following the expiration of each Lease Year, Landlord shall
submit to Tenant a statement setting forth in reasonable detail the Operating
Expenses for the preceding Lease Year and the amount, if any, due to Landlord
from Tenant for such Lease Year on account of such Operating Expenses (the
"Statement"). Such Statement shall constitute a final determination between the
parties for the period represented thereby, subject only to proper adjustments
subsequently made by Landlord. Prior to the rendition of any such Statement,
Tenant shall continue to pay to Landlord, on the first day of each month, 1/12th
of Landlord's most-recent estimate of the Operating Expenses to be due from
Tenant for the current Lease Year. If any such Statement shows any Operating
Expenses due from Tenant with respect to such preceding Lease Year, then Tenant
shall make payment of any unpaid portion thereof within ten (10) days after
receipt of such Statement. Tenant shall also pay to Landlord as additional rent,
commencing as of the first day of the month immediately following the rendition
of such Statement and on the first day of each month thereafter until a new
statement is rendered, 1/12th of Landlord's new estimate of the Operating
Expenses to be due from Tenant for the current Lease Year; and, Tenant shall
also pay to Landlord, as additional rent, within ten (10) business days after
receipt of such statement, an amount equal to the difference between (a) the
product obtained by multiplying the estimated Operating Expenses for the current
Lease Year by a fraction, the denominator of which shall be twelve (12) and the
numerator of which shall be the number of months of the current Lease Year which
shall have elapsed prior to the first day of the month immediately following the
rendition of such Statement, and (b) the sum of all previous Operating Expense
payments (if any) made by Tenant with respect to such prior months in the
current Lease Year. Payments based on the estimated Operating Expenses for the
current Lease Year shall be credited toward the actual Operating Expenses due
from Tenant for the current Lease Year, subject to adjustment as and when the
Statement for such current Lease Year is rendered by Landlord.
(2) Operating Expenses for the Base Year are included in the Basic
Rent payable by Tenant during the first twelve (12) months of the Initial Term.
Tenant shall commence paying its Proportionate Share of Operating Expense
Increases on the first anniversary of the Lease Commencement Date. Upon the
date of expiration or termination of this Lease, whether the same be the date
hereinabove set forth for the expiration of the Term, or any prior or subsequent
date, a prorated share of said Operating Expenses for the Lease Year during
which such expiration or termination occurs shall immediately become due and
payable by Tenant to Landlord, if it was not theretofore already billed and
paid. The said prorated share shall be based upon the length of time that the
Term shall have been in existence during such Lease Year. Landlord shall, as
soon as reasonably practicable, cause statements of the Operating Expenses for
that Lease Year to be prepared and furnished to Tenant. Landlord and Tenant
shall thereupon make appropriate adjustments of amounts then owing. Landlord's
and Tenant's obligation to make the adjustments referred to in subparagraphs (1)
and (2) of this Section 3(b) shall survive any expiration or termination of this
Lease. Any delay or failure of Landlord in billing any Operating Expenses
hereinabove provided shall not constitute a waiver of or in any way impair the
continuing obligation of Tenant to pay such Operating Expenses.
(i) The Operating Expenses for the Base Year shall be
adjusted, if necessary, to a level of that of a 95% occupied and fully
operational office building at cost levels prevailing in the geographic market
in which the Building is located
9
<PAGE>
for an entire Lease Year. This adjustment shall include (a) when Building
systems are under warranty during the Base Year, an adjustment for the cost of
service contracts and other expenses that would have been incurred in the
absence of such warranties; (b) an adjustment for all other expenses that are
not incurred if the Building is new and start-up discounts or similar savings
have been achieved; and (c) adjustments for all other atypical costs that occur
or do not occur during the Base Year other than those costs which would occur in
the Base Year in the ordinary course of business. The purpose of these
adjustments is to include in the Building Operating Expenses for the Base Year
all reasonable cost components that occur or are likely to occur in later years.
(ii) If a new category of expense is incurred after the Base Year,
the first full year's expense for such item shall be added to the Building
Operating Expenses for the Base Year commencing with the first full calendar
year that such expense is incurred, so that Tenant shall only be required to pay
subsequent increases in such expense. The expense incurred for such item during
the first year shall be subject to the adjustments described in the immediately
preceding paragraph .
(c) Interest. If Tenant fails to pay any Basic Rent or Additional
--------
Charges within five (5) business days after the same becomes due and payable,
interest shall, at Landlord's option, accrue from the date due on the unpaid
portion thereof at the rate of one and one-half percent (1-1/2%) per month or
five (5) percentage points above the Prime Rate in effect on such due date,
whichever is higher, but in no event at a rate higher than the maximum rate
allowed by law. Such interest shall be deemed additional rent hereunder and
shall be collectible as such.
(d) Accord and Satisfaction. No payment by Tenant or receipt by
-----------------------
Landlord of any lesser amount than the amount stipulated to be paid hereunder
shall be deemed other than on account of the earliest stipulated Basic Rent or
Additional Charges; nor shall any endorsement or statement on any check or
letter be deemed an accord and satisfaction, and Landlord may accept any check
or payment without prejudice to Landlord's right to recover the balance due or
to pursue any other remedy available to Landlord.
(e) Late Payment Charge. If Tenant fails to pay any Basic Rent or
-------------------
Additional Charges within ten (10) days after the same become due and payable,
Tenant shall also pay to Landlord a late payment service charge (to cover
Landlord's administrative and overhead expenses of processing late payments)
equal to the greater of Five Hundred ($500.00) or Five Percent (5%) of such
unpaid sum. Such payment shall be deemed liquidated damages and not a penalty,
but shall not excuse the timely payment of Rent. Acceptance of such late charge
by Landlord shall in no event constitute a waiver of Tenant's default with
respect to such overdue amount, nor prevent Landlord from exercising any of the
other rights and remedies granted hereunder including the assessment of interest
under Section 3(c).
(f) Right to Audit. Within one hundred twenty (120) days after
--------------
receipt of the Operating Expenses Statement, Tenant shall have the right, at its
expense, to inspect Landlord's Operating Expenses records relating to the Lease
Year covered by the Statement, including the Statement covering the Base Year,
except that any inspection that discloses that Tenant's Proportionate Share of
Operating Expenses has been overstated by more than ten percent (10%) shall be
at Landlord's expense. The inspection must be completed within thirty (30) days
of commencement. Before conducting any inspection, Tenant must pay the full
amount of Operating Expenses billed and there must not be an Event of Default of
any other Lease provisions. Tenant may review only those records of Landlord
that are specifically related to Operating Expenses. The audit shall be
conducted in Landlord's offices and at a time reasonably agreeable to the
parties. Promptly after receipt thereof, Tenant will deliver to Landlord a copy
of any report procured as a result of the inspection and all accompanying data.
Tenant's Proportionate Share of Operating Expense Increases shall be
appropriately adjusted based upon the results of such audit. Tenant will keep
10
<PAGE>
confidential any information gained through and the result of any inspection.
Tenant may not conduct an inspection more often than once each Lease Year.
Tenant may audit records only with respect to the Lease Year in question;
provided, however, that Tenant shall have a one time only right to audit the
Base Year.
4. Services and Utilities.
----------------------
(a) Types. Throughout the Term, Landlord agrees that, without
-----
additional charges except as set forth (i) in the pass-through provisions of the
Lease, (ii) the Parking Rent provisions, and (iii) as otherwise set forth below,
it will furnish to Tenant the following services:
(1) Electricity during normal business hours for normal lighting
purposes and the operation of ordinary office equipment, in accordance with
Section 6(b) hereof;
(2) Adequate supplies for toilet rooms;
(3) Normal and usual cleaning and char services after business
hours each day except on Saturdays, Sundays and legal holidays recognized by the
United States Government;
(4) Hot and cold running water in the bathrooms;
(5) Air cooling/heating, when required, between the hours of 7:00
A.M. and 7:00 P.M. Mondays through Fridays and between 8:00 A.M. and 1:00 P.M.
on Saturdays, except on legal holidays recognized by the United States
Government. Landlord reserves the right to establish and collect a charge for
air cooling/heating utilized by Tenant during hours and/or days other than those
set forth above, but Landlord's failure to establish and/or collect such charge
shall not be deemed a waiver of Landlord's right to include all costs for air
cooling in the computation of Operating Expenses for purposes of Section 1(b)(9)
hereof;
(6) Automatically operated elevator service;
(7) All electric bulbs, ballasts and fluorescent tubes in
standard light fixtures in the Leased Premises and the Common Areas;
(8) Facilities for parking as specified herein;
(9) Two (2) keys and ten (10) access cards to the Leased
Premises at no cost to Tenant, all additional keys at the cost of Tenant;
(10) Lamping of all Building standard ceiling lighting fixtures
in the Leased Premises;
(11) An electronic card-key building access system which will
provide Tenant with twenty-four (24) hours per day, seven (7) days per week
access to the Building and parking garage, provided, however, that Tenant
acknowledges and agrees that repairs, hazardous conditions and circumstances
beyond Landlord's reasonable control may prevent access to the Leased Premises
or parking garage from time to time;
(12) A health club will be located in the concourse level of the
Building, including locker and shower facilities and will be available for use
by Tenant and its employees free of charge through the Term of the Lease; and
(13) Initial Building directory signage strips, elevator lobby
signage on each floor of the Leased Premises and suite entry signage as provided
in Section 24 herein. Tenant shall receive Tenant's Proportionate Share of the
Building directory signage strips as set forth in Section 24 herein. The design,
size, location and materials of such
11
<PAGE>
signage shall be in accordance with Landlord's standard Building signage package
except to the extent such signage package conflicts with the provisions
contained in Section 24.
(b) Access. Landlord shall have reasonable access to and reserves the
------
right to inspect, erect, use, connect to, maintain and repair pipes, ducts,
conduits, cables, plumbing, vents and wires, and other facilities in, to and
through the Leased Premises as and to the extent that Landlord may now or
hereafter deem to be necessary or appropriate for the proper operation and
maintenance of the Building (including the servicing of other occupants of the
Building) and the right at all times to transmit water, heat, air conditioning
and electric current through such pipes, conduits, cables, plumbing, vents and
wires and the right to interrupt the same in suspected emergencies without
eviction of Tenant or abatement of Rent.
(c) Interruption in Services. Tenant agrees that Landlord shall not
------------------------
be liable to Tenant for its failure to furnish gas, electricity, telephone
service, water, HVAC or any other utility services or building services when
such failure is occasioned, in whole or in part, by repairs, replacements, or
improvements, by any strike, lockout or other labor trouble, by inability to
secure electricity, gas, water, telephone service or other utility at the
Building, by any accident, casualty or event arising from any cause whatsoever,
including the negligence of Landlord, its employees, agents and contractors, by
act, negligence or default of Tenant or any other person or entity, or by an
other cause, including bomb scares, and such failures shall never be deemed to
constitute an eviction or disturbance of Tenant's use and possession of the
Leased Premises or relieve Tenant from the obligation of paying rent or
performing any of its obligations under this Lease. Furthermore, Landlord shall
not be liable under any circumstances for loss of property or for injury to, or
interference with, Tenant's business, including, without limitation, loss of
profits, however occurring, through or in connection with or incidental to a
failure to furnish any such services or utilities. Landlord may comply with
voluntary controls or guidelines promulgated by any governmental entity relating
to the use or conservation of energy, water, gas, light or electricity or the
reduction of automobile or other emissions without creating any liability of
Landlord to Tenant under this Lease. Notwithstanding the foregoing, if any
interruption of service shall continue for more than five (5) consecutive
business days and shall render all or any portion of the Leased Premises
unusable or inaccessible for the normal conduct of Tenant's business, and if
Tenant does not in fact use or occupy such portion of the Leased Premises, then
all Basic Rent and Additional Charges payable hereunder with respect to such
portion of the Leased Premises which Tenant does not occupy shall be abated from
and after such fifth (5th) business day until full use of such portion of the
Leased Premises is restored to Tenant.
5. Maintenance and Repairs.
-----------------------
Subject to the provisions of Section 8 below and subject to
reimbursement by Tenant in accordance with the provisions of Sections 1(b)(9)
and 3 herein, Landlord agrees to maintain the roof (structure and membrane),
foundation, structural portions of the Building and central Building mechanical,
electrical and plumbing systems, the Common Areas, and Building standard items
in the Leased Premises but only those behind walls or at or above finished
ceilings, in good order and repair throughout the Term. Tenant, and not
Landlord, shall be responsible for (i) maintaining all other improvements to the
Leased Premises including Building standard items which are not behind walls or
at or above finished ceilings and any Special Items in the Leased Premises, and
(ii) reimbursing Landlord for the full cost of any repairs to the Leased
Premises or to any part of the Building caused by the unreasonable wear and tear
by or negligence of Tenant or its agent or employees, such reimbursement to be
collectible as Additional Charges hereunder immediately upon demand from
Landlord. Any contractors performing repairs which are the responsibility of
Tenant hereunder must receive the prior written approval of Landlord.
6. Use of Leased Premises.
----------------------
12
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(a) General Offices. Tenant shall use and occupy the Leased Premises
---------------
solely for general office purposes, and shall not use or permit or suffer the
use of the Leased Premises for any other purpose whatsoever. Notwithstanding
the foregoing, Tenant shall be prohibited from using the Leased Premises for (i)
the business of providing retail banking services, and (ii) the conduct of a
mortgage banking business. Also, in any announcement of this Lease or other
advertising of Tenant making reference to this Lease or the Leased Premises,
Tenant shall also make reference to "The Corporate Office Centre at Tysons II".
(b) Covenants. Throughout the Term, Tenant covenants and agrees to:
---------
(i) keep the Leased Premises in a neat and clean condition; (ii) pay before
delinquency any and all taxes, assessments and public charges levied, assessed
or imposed upon Tenant's business, upon the leasehold estate created by this
Lease or upon Tenant's fixtures, furnishings or equipment in the Leased
Premises; (iii) not to use or permit or suffer the use of any portion of the
Leased Premises for any unlawful purpose, for any purpose which would injure
the reputation of the Building, or in any manner which might be hazardous or
might jeopardize Landlord's insurance coverage or increase Landlord's insurance
premium; (iv) not to allow any pets to be brought into the Leased Premises; (v)
not to use the plumbing facilities for any purpose other than that for which
they were constructed, or dispose of any foreign substances therein; (vi) not to
place a load on any floor exceeding the floor load per square foot which such
floor was designed to carry in accordance with the plans and specifications of
the Building, and not install, operate or maintain in the Leased Premises any
heavy item of equipment except in such manner as to achieve a proper
distribution of weight; (vii) not to strip, overload, damage or deface the
Leased Premises, the floors, or the hallways, stairways, elevators, parking
facilities or other Common Areas of the Building, or the fixtures therein or
used therewith, nor to permit any hole to be made in any of the same; (viii) not
to move any furniture or equipment into or out of the Leased Premises except at
such times and in such manner as Landlord may from time to time designate; (ix)
not to use any floor adhesive in the installation of any carpeting; (x) not to
install or operate in the Leased Premises any electrical, heating and cooling,
or refrigeration equipment, computer equipment, electronic data processing
equipment, punch card machines or other equipment using electric current in
excess of standard voltage or amperage, or in excess of 5 watts per rentable
square foot on a fully-connected load basis distributed through one breaker per
400 square feet of the Leased Premises, or requiring non-standard electrical
wiring outlets, circuits or panels (other than ordinary office equipment such as
electric typewriters, adding machines, television sets, radios, clocks and
lamps), without first obtaining the written consent of Landlord, who may
condition such consent upon Tenant's agreement to make direct payment to the
local utility company or the payment by Tenant of an Additional Charge to
Landlord, for Tenant's excessive consumption of electricity and for the cost of
additional wiring or metering which may be required for the operation of such
equipment and machinery; (xi) not to install any other equipment of any kind or
nature which will or may overheat, exceed the capacity, or otherwise necessitate
any repairs, changes, replacements or additions to, or in the use of, the water
system, heating system, plumbing system, air conditioning system or electrical
system of the Leased Premises or the Building, without first obtaining the
written consent of Landlord; and (xii) at all times to comply with the
Requirements.
(c) Compliance. Tenant will not use or occupy the Leased Premises in
----------
violation of any Requirement. If any governmental authority, after the
commencement of the Term, shall contend or declare that the Leased Premises are
being used for a purpose which is in violation of any Requirement, then Tenant
shall, immediately upon demand from Landlord, discontinue such use of the Leased
Premises. If thereafter the governmental authority asserting such violation
threatens, commences or continues criminal or civil proceedings against Landlord
for Tenant's failure to discontinue such use, in addition to any and all rights,
privileges and remedies given to Landlord under this Lease for default therein,
Landlord shall have the right to terminate this Lease forthwith. Tenant shall
indemnify and hold Landlord harmless of and from any and all liability for any
such violation or violations.
13
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(d) Rules and Regulations. Tenant and its agents and employees shall
---------------------
comply with and observe all reasonable rules and regulations concerning the use,
management, operation, safety and good order of the Leased Premises and the
Building which may from time to time hereafter be promulgated by Landlord.
Initial rules and regulations, which shall be effective until amended by
Landlord, are attached hereto as Exhibit D. Tenant shall be deemed to have
---------
received notice of any amendment to the rules and regulations when a copy of
such amendment has been delivered to Tenant at the Leased Premises or has been
mailed to Tenant in the manner prescribed for the giving of notices. Tenant
shall comply with all fire protective rules and regulations promulgated by the
Landlord for the safety of the Building and its occupants, including rules
prescribing certain types of materials and prohibiting other types of materials
in the Building. Landlord shall not be responsible to Tenant for any violation
of the rules and regulations, or the covenants or agreements contained in any
other lease, by any other tenant of the Building, or its agents or employees,
and Landlord may waive any or all of the rules or regulations in respect of any
one or more tenants for good cause so long as such rules and regulations are
otherwise non-discriminatorily enforced. Landlord shall use commercially
reasonable efforts to enforce such rules and regulations in a reasonable,
uniform and non-discriminatory manner.
7. Insurance.
---------
(a) Tenant
(1) Types; Limits. Tenant, at Tenant's sole cost and expense,
-------------
shall obtain and maintain in effect at all times during the Term, a policy of
commercial general liability insurance with broad form property damage
endorsement, naming Landlord, Tysons II Development Co. Limited Partnership,
Tysons II Land Company, L.L.C., Lerner Enterprises Limited Partnership, Lerner
Corporation, and (at Landlord's request) any mortgagee of the Building, any
ground landlord and any other agent as additional named insured(s), protecting
such parties against any liability for bodily injury, death or property damage
occurring upon, in or about any part of the Building, the Leased Premises or any
appurtenances thereto, with such policies to afford protection to the limit of
not less than Two Million Dollars ($2,000,000) with respect to bodily injury or
death to any one person, to the limit of not less than Two Million Dollars
($2,000,000) with respect to bodily injury or death to any number or persons in
any one accident, and to the limit of not less than Two Million Dollars
($2,000,000) with respect to damage to the property of any one owner, and with a
deductible no greater than One Thousand Dollars ($1,000.00) for any single
occurrence. Tenant shall obtain and keep in force during the Term of this Lease
"all risk" extended coverage property insurance with coverages acceptable to
Landlord, in Landlord's sole discretion. Said insurance shall be written on a
one hundred percent (100%) replacement cost basis on Tenant's personal property,
all tenant improvements installed at the Leased Premises by Landlord or Tenant,
Tenant's trade fixtures and other property. By way of example and not
limitation, such policies shall provide protection against any peril included
within the classification "fire and extended coverage," against vandalism and
malicious mischief, theft, sprinkler leakage, sewer backup, and flood damage.
Tenant shall, at all times during the Term hereof, maintain in effect workers'
compensation insurance as required by applicable law and business interruption
and extra expense insurance satisfactory to Landlord.
(2) Policies. The insurance policy required to be obtained by
--------
Tenant under this Lease (i) shall be issued by an insurance company of
recognized responsibility licensed to do business in the jurisdiction in which
the Building is located with a rating of at least "A" and a financial rating of
at least "Class X" (or such other rating as may be reasonably required by any
lender having a lien on the Building) as set forth in the most recent edition of
"Best Insurance Reports", and (ii) shall be written as primary policy coverage
and not contributing with or in excess of any coverage which Landlord may carry.
Neither the issuance of any insurance policy required under this Lease, nor the
minimum limits specified herein with respect to Tenant's insurance coverage,
shall be deemed to limit or restrict in any way Tenant's liability arising under
or out of this Lease. With respect to each insurance policy required to be
obtained by Tenant under this
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Section, on or before the Lease Commencement Date, and at least thirty (30) days
before the expiration of any expiring policy or certificate previously
furnished, Tenant shall deliver to Landlord a certificate of insurance therefor,
together with evidence of payment of all applicable premiums. Each insurance
policy required to be carried hereunder by or on behalf of Tenant shall provide
(and any certificate evidencing the existence of each such insurance policy
shall certify) that such insurance policy shall not be canceled unless Landlord
shall have received thirty (30) days' prior written notice of such cancellation.
(3) Prohibitions. Tenant shall not do, permit or suffer to be done
------------
any act, matter, thing or failure to act in respect of the Leased Premises
and/or the Building that will invalidate or be in conflict with insurance
policies covering the Building or any part thereof, and shall not do, or permit
anything to be done, in or upon the Leased Premises and/or the Building, or
bring or keep anything therein, which shall increase the rate of insurance on or
related to the Building or on any property located therein. If, by reason of
the failure of Tenant to comply with the provisions of this subsection, the
insurance rate shall at any time be higher than it otherwise would be, then
Tenant shall reimburse Landlord on demand, for that part of all premiums for any
insurance coverage that shall have been charged because of such violation by
Tenant and which Landlord shall have paid on account of an increase in the rate
or rates in its own policies of insurance.
(4) Hold Harmless; Indemnification. Tenant hereby agrees to indemnify
------------------------------
and hold harmless Landlord, Tysons II Development Co. Limited Partnership,
Tysons II Land Company, L.L.C., Lerner Enterprises Limited Partnership, Lerner
Corporation, Landlord's employees, agents, mortgagees and ground lessors from
and against any and all claims, losses, actions, damages, liabilities and
expenses (including attorneys' fees) that (i) arise from or are in connection
with Tenant's possession, use, occupation, management, repair, maintenance or
control of the Leased Premises or the Building, or any portion thereof, or (ii)
arise from or are in connection with any act or omission of Tenant or Tenant's
agents, employees or invitees, or (iii) result from any default, breach,
violation or non-performance of this Lease or any provision herein by Tenant, or
(iv) result from injury or death to persons or damage to property sustained in
or about the Leased Premises. Tenant shall, at its own cost and expense, defend
any and all actions, suits and proceedings which may be brought against the
aforesaid parties with respect to the foregoing or in which the aforesaid
parties may be impleaded. Tenant shall pay, satisfy and discharge any and all
judgments, orders and decrees which may be recovered against the aforesaid
parties in connection with the foregoing. The aforesaid parties shall not be
liable or responsible for, and Tenant hereby releases the aforesaid parties from
all liability or responsibility to Tenant or any person claiming by, through or
under Tenant, by way of subrogation or otherwise, any injury, loss or damage to
any property in or around the Leased Premises or to Tenant's business
irrespective of the cause of such injury, loss or damage, and Tenant shall
require its insurer(s) to include in all of Tenant's insurance policies which
could give rise to a right of subrogation against the aforesaid parties a clause
or endorsement whereby the insurer(s) shall waive any rights of subrogation
against the aforesaid parties as well as other tenants or occupants of the
Building. Tenant hereby makes such waiver on behalf of its insurer, which
insurer, by insuring Tenant as contemplated under this Lease, shall be deemed to
have acknowledged the provisions hereof.
(5) Coverage. Landlord makes no representation to Tenant that the
--------
limits or forms of coverage specified above or approved by Landlord are adequate
to insure Tenant's property or Tenant's obligations under this Lease, and the
limits of any insurance carried by Tenant shall not limit Tenant's obligations
or liability under any indemnity provision included in this Lease or under any
other provision of this Lease.
(b) Landlord. Landlord shall obtain and keep in force a policy of
--------
comprehensive general liability insurance with coverage against such risks and
in such amounts as Landlord deems advisable insuring Landlord against liability
arising out of the ownership, operation and management of the Building.
Landlord shall also obtain and keep in force during the Term of this Lease a
policy or policies of "all risk" insurance covering loss or damage to the
Building in the amount of not less than eighty percent
15
<PAGE>
(80%) of the full replacement cost thereof, as determined by Landlord from time
to time. The terms and conditions of said policies and the perils and risks
covered thereby shall be determined by Landlord, from time to time, in
Landlord's sole discretion. In addition, at Landlord's option, Landlord shall
obtain and keep in force, during the Term of this Lease, a policy of rental
interruption insurance, with loss payable to Landlord, which insurance shall, at
Landlord's option, also cover all Operating Expenses. Tenant will not be named
as an additional insured in any insurance policies carried by Landlord and shall
have no right to any proceeds therefrom. At Landlord's option, Landlord may
obtain insurance coverages and/or bonds related to the operation of the parking
areas. In addition, Landlord shall have the right to obtain such additional
insurance as is customarily carried by owners or operators of other comparable
office buildings in the geographical area of the Building. The policies
purchased by the Landlord shall contain such deductibles as Landlord may
determine. In addition to amounts payable by Tenant in accordance with Section
1(b)(9), Tenant shall pay any increase in the property insurance premiums for
the Building over what was payable immediately prior to the increase to the
extent the increase is specified by Landlord's insurance carrier as being caused
by the nature of Tenant's occupancy of the Leased Premises, or any act or
omission of Tenant, or Tenant shall cease the activity giving rise to such
increase.
(c) Waiver of Subrogation. Landlord waives any and all rights or
---------------------
recovery against Tenant for or arising out of damage to, or destruction of, the
Building to the extent that Landlord's insurance policies then in force insure
against such damage or destruction and permit such waiver, and only to the
extent of the insurance proceeds actually received by Landlord for such damage
or destruction. Landlord's waiver shall not relieve Tenant from liability under
Section 18 below except to the extent Landlord's insurance company actually
satisfies Tenant's obligations under Section 18 in accordance with the
requirements of Section 18.
8. Damage by Fire or Other Casualty.
--------------------------------
Tenant shall give prompt notice to Landlord in case of any fire or
other damage to the Leased Premises. If the Leased Premises or the Building are
damaged by fire or other casualty not caused by the act or negligence of Tenant
or its agents or employees, Landlord shall diligently and as soon as practicable
after such damage occurs (taking into account the time necessary to effectuate a
satisfactory settlement with Landlord's insurance company) repair such damage at
its own expense, and until such repairs have been completed the Basic Rent and
Additional Charges shall be abated in proportion to the part of the Leased
Premises which is rendered untenantable (in no event shall damage to any parking
areas be deemed to render the Leased Premises untenantable). However, if
available insurance proceeds are insufficient or if the Leased Premises or the
Building are damaged by fire or other casualty to such an extent that the
damage, in Landlord's opinion, cannot be fully repaired within one hundred
eighty (180) days from the date such damage occurs, Landlord shall have the
right to, exercised by giving Tenant written notice within such one hundred
eighty (180)-day period, terminate this Lease effective as of the date of such
damage. Notwithstanding the foregoing, if Landlord shall elect or be obligated
to rebuild or repair the Leased Premises or the Building, but in good faith
determines that the Leased Premises or the Building cannot be rebuilt or
repaired within two hundred ten (210) days after the date of the occurrence of
the damage, without payment of overtime or other premiums, and the damage to the
Building has rendered the Leased Premises wholly or partially unusable or
inaccessible, Landlord shall notify Tenant thereof in writing at the time of
Landlord's election to rebuild or repair and Tenant shall thereafter have a
period of thirty (30) days within which Tenant may elect to terminate this
Lease, upon written notice to Landlord. Failure of Tenant to exercise said
election within said thirty (30) business day period shall constitute Tenant's
agreement to accept delivery of the Leased Premises under this Lease whenever
tendered by Landlord, provided Landlord thereafter pursues reconstruction or
restoration diligently to completion, subject to delays beyond Landlord's
reasonable control. Notwithstanding the foregoing, if the fire or other
casualty shall be caused by the carelessness, negligence or improper conduct of
Tenant or
16
<PAGE>
its agents or employees, Tenant shall remain liable for the full amount of the
Basic Rent and Additional Charges during the period of restoration or until
termination of this Lease, and all required repairs shall be made at Tenant's
expense.
17
<PAGE>
9. Condemnation.
------------
If a majority of the Leased Premises, or all or substantially all of
the Building (or the use or possession thereof), shall be taken in condemnation
proceedings or by exercise of any right of eminent domain, or by a private
purchase in lieu thereof, then this Lease shall terminate and expire on the date
of such taking or purchase and Tenant shall, in all other respects, keep,
observe and perform all the other terms, covenants and conditions of this Lease
up to the date of such taking. The net proceeds of any award or other
compensation payable in connection with such taking or purchase shall be paid to
Landlord, and Tenant hereby assigns to Landlord all of its right, title and
interest in and to such award or other compensation. Tenant shall have no claim
against Landlord for the value (if any) of personal property in the Leased
Premises or the unexpired Term.
10. Assignment and Subletting.
-------------------------
(a) Landlord's Consent Required. Tenant shall not voluntarily or by
---------------------------
operation of law assign, transfer, hypothecate, mortgage, sublet, or otherwise
transfer or encumber all or any part of Tenant's interest in this Lease or in
the Leased Premises (hereinafter collectively a "Transfer"), without Landlord's
prior written consent, which shall not be unreasonably withheld, conditioned or
delayed. Landlord shall respond to Tenant's written request for consent
hereunder within thirty (30) days after Landlord's receipt of the written
request from Tenant. Any attempted Transfer without such consent shall be void
and shall constitute a material default and breach of this Lease. Tenant's
written request for Landlord's consent shall include, and Landlord's thirty (30)
day response period referred to above shall not commence, unless and until
Landlord has received from Tenant, all of the following information: (i)
financial statements for the proposed assignee for the past three (3) years
prepared in accordance with generally accepted accounting principles, (ii)
federal tax returns for the proposed assignee for the past three (3) years,
(iii) a TRW credit report or similar report on the proposed assignee or
subtenant, (iv) a detailed description of the business the assignee or subtenant
intends to operate at the Leased Premises, (v) the proposed effective date of
the assignment or sublease, (vi) a copy of the proposed sublease or assignment
agreement which includes all of the terms and conditions of the proposed
assignment or sublease, (vii) a detailed description of any ownership or
commercial relationship between Tenant and the proposed assignee or subtenant,
and (viii) a detailed description of any Alterations the proposed assignee or
subtenant desires to make to the Leased Premises. If the obligations of the
proposed assignee or subtenant will be guaranteed by any person or entity,
Tenant's written request shall not be considered complete until the information
described in (i), (ii) and (iii) of the previous sentence has been provided with
respect to each proposed guarantor. "Transfer" shall also include the transfer
(i) if Tenant is a corporation, and Tenant's stock is not publicly traded over a
recognized securities exchange, of more than forty percent (40%) of the voting
stock of such corporation during the Term of this Lease (whether or not in one
or more transfers) or the dissolution, merger or liquidation of the corporation,
or (ii) if Tenant is a partnership or other entity, of more than forty percent
(40%) of the profit and loss participation in such partnership or entity during
the Term of this Lease (whether or not in one or more transfers) or the
dissolution, merger or liquidation of the partnership or entity. If Tenant is a
limited or general partnership (or is comprised of two or more persons,
individually or as co-partners), Tenant shall not be entitled to change or
convert to (i) a limited liability company, (ii) a limited liability partnership
or (iii) any other entity which possesses the characteristics of limited
liability without the prior written consent of Landlord, which consent may be
given or withheld in Landlord's sole discretion. Tenant's sole remedy in the
event that Landlord shall wrongfully withhold consent to or disapprove any
assignment or sublease shall be to obtain an order by a court of competent
jurisdiction that Landlord grant such consent; in no event shall Landlord be
liable for damages with respect to its granting or withholding consent to any
proposed assignment or sublease. If Landlord shall exercise any option to
recapture the Leased Premises, or shall deny a request for consent to a
proposed assignment or sublease, Tenant shall indemnify, defend and hold
Landlord harmless from and against any and all losses, liabilities, damages,
costs and claims that
18
<PAGE>
may be made against Landlord by the proposed assignee or subtenant, or by any
brokers or other persons claiming a commission or similar compensation in
connection with the proposed assignment or sublease.
(b) Leveraged Buy-Out. The involvement by Tenant or its assets in any
-----------------
transaction, or series of transactions (by way of merger, sale, acquisition,
financing, refinancing, transfer, leveraged buy-out or otherwise) whether or not
a formal assignment or hypothecation of this Lease or Tenant's assets occurs,
which results or will result in a reduction of the "Net Worth" of Tenant as
hereinafter defined, by an amount equal to or greater than twenty-five percent
(25%) of such Net Worth of Tenant as it is represented to Landlord at the time
of the execution by Landlord of this Lease, or as it exists immediately prior to
said transaction or transactions constituting such reduction, at whichever time
said Net Worth of Tenant was or is greater, shall be considered to be an
assignment of this Lease by Tenant to which Landlord may reasonably withhold its
consent. "Net Worth" of Tenant for purposes of this Section 10(b) shall be the
net worth of Tenant (excluding any guarantors) established under generally
accepted accounting principles consistently applied.
(c) Standard For Approval. Landlord shall not unreasonably withhold
---------------------
its consent to a Transfer provided that Tenant has complied with each and every
requirement, term and condition of this Section 10. Tenant acknowledges and
agrees that each requirement, term and condition in this Section 10 is a
reasonable requirement, term or condition. It shall be deemed reasonable for
Landlord to withhold its consent to a Transfer if any requirement, term or
condition of this Section 10 is not complied with or: (i) the Transfer would
cause Landlord to be in violation of its obligations under another lease or
agreement to which Landlord is a party; (ii) in Landlord's reasonable judgment,
a proposed assignee has a smaller net worth than Tenant had on the date this
Lease was entered into with Tenant or is less able financially to pay the rents
due under this Lease as and when they are due and payable; (iii) a proposed
assignee's or subtenant's business will impose a burden on the Building's
parking facilities, elevators, Common Areas or utilities that is greater than
the burden imposed by Tenant, in Landlord's reasonable judgment; (iv) the terms
of a proposed assignment or subletting will allow the proposed assignee or
subtenant to exercise a right of renewal, right of expansion, right of first
offer, right of first refusal or similar right held by Tenant; (v) a proposed
assignee or subtenant refuses to enter into a written assignment agreement or
sublease, reasonably satisfactory to Landlord, which provides that it will abide
by and assume all of the terms and conditions of this Lease for the term of any
assignment or sublease and containing such other terms and conditions as
Landlord reasonably deems necessary; (vi) the use of the Leased Premises by the
proposed assignee or subtenant will not be identical to the use permitted by
this Lease; (vii) any guarantor of this Lease refuses to consent to the Transfer
or to execute a written agreement reaffirming the guaranty; (viii) Tenant is in
default as defined in Section 11 at the time of the request; (ix) if requested
by Landlord, the assignee or subtenant refuses to sign a non-disturbance and
attornment agreement in favor of Landlord's lender; (x) Landlord or any
mortgagee has sued or been sued by the proposed assignee or subtenant or has
otherwise been involved in a legal dispute with the proposed assignee or
subtenant; (xi) the assignee or subtenant is involved in a business which is not
in keeping with the then current standards of the Building; (xii) the proposed
assignee or subtenant is an existing tenant of the Building or is a person or
entity then negotiating with Landlord for the lease of space in the Building;
(xiii) the assignment or sublease will result in there being more than one
subtenant of the Leased Premises (e.g., the assignee or subtenant intends to use
the Leased Premises as an executive suite); or (xiv) the assignee or subtenant
is a governmental or quasi-governmental entity or an agency, department or
instrumentality of a governmental or quasi-governmental agency.
(d) Additional Terms and Conditions. The following terms and
-------------------------------
conditions shall be applicable to any Transfer:
19
<PAGE>
(1) Regardless of Landlord's consent, no Transfer shall release
Tenant from Tenant's obligations hereunder or alter the primary liability of
Tenant to pay the rent and other sums due Landlord hereunder and to perform all
other obligations to be performed by Tenant hereunder or release any guarantor
from its obligations under its guaranty.
(2) Landlord may accept rent from any person other than Tenant
pending approval or disapproval of an assignment or subletting.
(3) Neither a delay in the approval or disapproval of a Transfer, nor
the acceptance of rent, shall constitute a waiver or estoppel of Landlord's
right to exercise its rights and remedies for the breach of any of the terms or
conditions of this Section 10.
(4) The consent by Landlord to any Transfer shall not constitute a
consent to any subsequent Transfer by Tenant or to any subsequent or successive
Transfer by an assignee or subtenant.
(5) In the event of any default under this Lease, Landlord may
proceed directly against Tenant, any guarantors or anyone else responsible for
the performance of this Lease, including any subtenant or assignee, without
first exhausting Landlord's remedies against any other person or entity
responsible therefor to Landlord, or any security held by Landlord.
(6) Landlord's written consent to any Transfer by Tenant shall not
constitute an acknowledgment that no default then exists under this Lease nor
shall such consent be deemed a waiver of any then existing default.
(7) The discovery of the fact that any financial statement relied
upon by Landlord in giving its consent to an assignment or subletting was
materially false shall, at Landlord's election, render Landlord's consent null
and void.
(8) Landlord shall not be liable under this Lease or under any
sublease to any subtenant.
(9) No assignment or sublease may be modified or amended without
Landlord's prior written consent.
(10) The occurrence of a transaction described in Section 10(b) shall
give Landlord the right (but not the obligation) to require that Tenant
immediately provide Landlord with an additional Security Deposit equal to six
(6) times the monthly Basic Rent payable under the Lease, and Landlord may make
its receipt of such amount a condition to Landlord's consent to such
transaction.
(11) Any assignee of, or subtenant under, this Lease shall, by reason
of accepting such assignment or entering into such sublease, be deemed, for the
benefit of Landlord, to have assumed and agreed to conform and comply with each
and every term, covenant, condition and obligation herein to be observed or
performed by Tenant during the term of said assignment or sublease, other than
such obligations as are contrary or inconsistent with provisions of an
assignment or sublease to which Landlord has specifically consented in writing.
(e) Additional Terms and Conditions Applicable to Subletting.
--------------------------------------------------------
The following terms and conditions shall apply to any subletting by
Tenant of all or any part of the Leased Premises and shall be deemed included in
all subleases under this Lease whether or not expressly incorporated therein:
20
<PAGE>
(1) Tenant hereby absolutely and unconditionally assigns and
transfers to Landlord all of Tenant's interest in all rentals and income arising
from any sublease entered into by Tenant, and Landlord may collect such rent and
income and apply same toward Tenant's obligations under this Lease; provided,
however, that until a default shall occur in the performance of Tenant's
obligations under this Lease, Tenant may receive, collect and enjoy the rents
accruing under such sublease. Landlord shall not, by reason of this or any other
assignment of such rents to Landlord nor by reason of the collection of the
rents from a subtenant, be deemed to have assumed or recognized any sublease or
to be liable to the subtenant for any failure of Tenant to perform and comply
with any of Tenant's obligations to such subtenant under such sublease,
including, but not limited to, Tenant's obligation to return any Security
Deposit. Tenant hereby irrevocably authorizes and directs any such subtenant,
upon receipt of a written notice from Landlord stating that a default exists in
the performance of Tenant's obligations under this Lease, to pay to Landlord the
rents due as they become due under the sublease. Tenant agrees that such
subtenant shall have the right to rely upon any such statement and request from
Landlord, and that such subtenant shall pay such rents to Landlord without any
obligation or right to inquire as to whether such default exists and
notwithstanding any notice from or claim from Tenant to the contrary.
(2) In the event Tenant shall default in the performance of its
obligations under this Lease, Landlord at its option and without any obligation
to do so, may require any subtenant to attorn to Landlord, in which event
Landlord shall undertake the obligations of Tenant under such sublease from the
time of the exercise of said option to the termination of such sublease;
provided, however, Landlord shall not be liable for any prepaid rents or
Security Deposit paid by such subtenant to Tenant or for any other prior
defaults of Tenant under such sublease.
(f) Transfer Premium from Assignment or Subletting. Landlord shall
----------------------------------------------
be entitled to receive from Tenant (as and when received by Tenant) as an item
of additional rent fifty percent (50%) of all amounts received by Tenant from
any subtenant or assignee in excess of the amounts payable by Tenant to Landlord
hereunder (hereinafter the "Transfer Premium"). The Transfer Premium shall be
reduced by the reasonable transaction costs actually paid by Tenant in order to
assign the Lease or to sublet a portion of the Leased Premises, provided that
Tenant provides Landlord with a breakdown of all transaction costs associated
with such Transfer at the time Tenant obtains Landlord's consent and Landlord
consents to such costs, which consent shall not be unreasonably withheld,
conditioned or delayed. "Transfer Premium" shall mean all Basic Rent, Additional
Charges or other consideration of any type whatsoever payable by the assignee or
subtenant in excess of the Basic Rent and Additional Charges payable by Tenant
under this Lease. If less than all of the Leased Premises is transferred, the
Basic Rent and the Additional Charges shall be determined on a per rentable
square foot basis. Transfer Premium shall also include, but not be limited to,
key money and bonus money paid by the assignee or subtenant to Tenant in
connection with such Transfer, and any payment in excess of fair market value
for services rendered by Tenant to the assignee or subtenant or for assets,
fixtures, inventory, equipment, or furniture transferred by Tenant to the
assignee or subtenant in connection with such Transfer. For purposes of
calculating the Transfer Premium, expenses will be amortized over the life of
the sublease.
(g) Landlord's Option to Recapture Space. Notwithstanding anything
------------------------------------
to the contrary contained in this Section 10, Landlord shall have the option, by
giving written notice to Tenant within thirty (30) days after receipt of any
request by Tenant to assign this Lease or to sublease space in the Leased
Premises, to terminate this Lease with respect to said space as of the date
thirty (30) days after Landlord's election. In the event of a recapture by
Landlord, if this Lease shall be canceled with respect to less than the entire
Leased Premises, the Basic Rent, Tenant's Proportionate Share of Operating
Expense increases and the number of parking spaces Tenant may use shall be
adjusted on the basis of the number of rentable square feet retained by
21
<PAGE>
Tenant in proportion to the number of rentable square feet contained in the
original Leased Premises, and this Lease as so amended shall continue thereafter
in full force and effect, and upon request of either party, the parties shall
execute written confirmation of same. If Landlord recaptures only a portion of
the Leased Premises, it shall construct and erect at its sole cost such
partitions as may be required to sever the space to be retained by Tenant from
the space recaptured by Landlord. Landlord may, at its option, lease any
recaptured portion of the Leased Premises to the proposed subtenant or assignee
or to any other person or entity without liability to Tenant. Tenant shall not
be entitled to any portion of the profit, if any, Landlord may realize on
account of such termination and reletting. Tenant acknowledges that the purpose
of this Section 10(g) is to enable Landlord to receive profit in the form of
higher rent or other consideration to be received from an assignee or sublessee,
to give Landlord the ability to meet additional space requirements of other
tenants of the Building and to permit Landlord to control the leasing of space
in the Building. Tenant acknowledges and agrees that the requirements of this
Section 10(g) are commercially reasonable and are consistent with the intentions
of Landlord and Tenant.
(h) Landlord's Expenses. In the event Tenant shall assign this Lease
-------------------
or sublet the Leased Premises or request the consent of Landlord to any
Transfer, then Tenant shall pay Landlord's reasonable costs and expenses
incurred in connection therewith, including, but not limited to, attorneys',
architects', accountants', engineers' or other consultants' fees.
(i) Permitted Transactions. Notwithstanding anything to the contrary
----------------------
contained in this Section 10, Tenant shall have the right, without Landlord's
consent, upon thirty (30) days advance written notice to Landlord, to assign the
Lease or sublet the whole or any part of the Leased Premises to any entity that
controls, is controlled by or is under common control with Tenant or in
connection with any consolidation or reorganization of Tenant or the merger of
Tenant with any other entity or the sale of all or substantially all of Tenant's
assets or of all or substantially all of the interests (partnership, stock, or
otherwise) in Tenant (each of the transactions referenced above in this
subparagraph (i) are hereinafter referred to as a "Permitted Transfer" and each
surviving entity shall hereinafter be referred to as a "Permitted Transferee");
provided that such Permitted Transfer is subject to the following conditions:
(i) Tenant, to the extent Tenant survives such transaction,
shall remain fully liable under the terms and conditions
of the Lease;
(ii) Any such Permitted Transferee shall be subject to all of
the terms, covenants, and conditions of the Lease except
as otherwise specifically provided in this Lease;
(iii) Any such Permitted Transferee expressly assumes the
obligations of Tenant under the Lease;
(iv) Such Permitted Transferee has a net worth at least equal
to the net worth of Tenant as of the date of this Lease.
11. Default Provisions.
------------------
(a) Events of Default. Each of the following events shall be deemed
-----------------
to be a default under this Lease, and is referred to in this Lease as an "Event
of Default":
(1) A default by Tenant in the due and punctual payment of any
Basic Rent or Additional Charges which continues for more than five (5) days
after written notice from Landlord
22
<PAGE>
that such Basic Rent or Additional Charges are past due and payable; provided,
however, it shall be an Event of Default hereunder without any obligation of
Landlord to give any notice to Tenant if Landlord has previously given Tenant
two (2) notices pursuant to this Section 11(a)(1) during the twelve (12) month
period preceding such default; or
(2) The neglect or failure of Tenant to perform or observe any
of the terms, covenants or conditions contained in this Lease on Tenant's part
to be performed or observed [other than those referred to above in subsection
(1)] which is not remedied by Tenant within ten (10) days after Landlord shall
have given to Tenant written notice specifying such neglect or failure [or a
reasonable time after written notice if such failure is incapable of cure within
ten (10) days, so long as Tenant pursues the cure with due diligence]; or
(3) The assignment, transfer, mortgaging or encumbering of this
Lease or the subletting of the Leased Premises in a manner not permitted by
Section 10 hereof; or
(4) The taking of this Lease or the Leased Premises, or any part
thereof, upon execution or by other process of law directed against Tenant, or
upon or subject to any attachment at the insistence of any creditor of or
claimant against Tenant, which execution or attachment shall not be discharged
or disposed of within thirty (30) days after the levy thereof, or the occurrence
of any of the events listed in Section 12 hereof; or
(5) The failure to initially occupy, or any vacating or
abandonment of the Leased Premises by Tenant.
(b) Remedies. Upon the occurrence of an Event of Default, Landlord
--------
shall have the right, at its election, then or at any time thereafter while such
Event of Default shall continue, either:
(1) To give Tenant written notice that this Lease will terminate
on a date to be specified in such notice, which date shall not be less than
three (3) days after such notice, and on the date specified in such notice
Tenant's right to possession of the Leased Premises shall cease and this Lease
shall thereupon be terminated, but Tenant shall remain liable as provided below
in subsection (c); or,
(2) Without demand or notice, to re-enter and take possession of
the Leased Premises, or any part thereof, and repossess the same as of
Landlord's former estate and expel Tenant and those claiming through or under
Tenant and remove its or their effects, either by summary proceedings or by
action at law or in equity or by self-help (if necessary) or otherwise, without
being deemed guilty of any manner of trespass and without prejudice to any
remedies for arrears of rent or preceding breach of covenant. If Landlord elects
to re-enter under this subsection (2), Landlord may terminate this Lease, or,
from time to time, without terminating this Lease but terminating Tenant's right
to occupy the Leased Premises, may relet the Leased Premises, or any part
thereof, as agent for Tenant for such term or terms and at such rental or
rentals and upon such other terms and conditions as Landlord may deem advisable,
with the right to make alterations and repairs to the Leased Premises. No such
re-entry or taking of possession of the Leased Premises by Landlord shall be
construed as an election on Landlord's part to terminate this Lease unless a
written notice of such intention is given to Tenant under above subsection (1)
or unless the termination thereof be decreed by a court of competent
jurisdiction. Tenant waives any right to the service of any notice of Landlord's
intention to re-enter provided for by any present or future law. Tenant also
hereby grants Landlord a lien for any unpaid Rent on all property of Tenant now
or hereafter placed in the Leased Premises.
(c) Damages. If Landlord terminates this Lease or Tenant's right to
-------
occupy the Leased Premises pursuant to above subsection (b), Tenant shall remain
liable (in addition to accrued liabilities) to the extent legally permissible
for (i) (A) all Basic Rent
23
<PAGE>
and Additional Charges provided for in this Lease until the date this Lease
would have expired had such termination not occurred, discounted to present
value at the discount rate of the Federal Reserve Bank of Baltimore at the time
of such termination plus one percent (1%), all accelerated to the date of any
such termination, and (B) any and all expenses incurred by Landlord in re-
entering the Leased Premises, repossessing the same, making good any default of
Tenant, remodeling, altering or dividing the Leased Premises, combining the same
with any adjacent space for any new tenants, putting the same in proper repair,
establishing signage for, reletting the same (including any and all reasonable
attorneys fees and disbursements and reasonable brokerage fees incurred in so
doing), and any and all reasonable expenses which Landlord may incur in
reletting the Leased Premises; less (ii) the net proceeds of any reletting.
Tenant agrees to pay to Landlord the difference between items (i) and (ii)
above, immediately upon any termination or subletting, in full or, at Landlord's
option, with respect to each month during the Term, at the end of such month.
Any suit brought by Landlord to enforce collection of such difference for any
one month shall not prejudice Landlord's right to enforce the collection of any
difference for any other month. In addition to the foregoing, Tenant shall pay
to Landlord such sums as the court which has jurisdiction thereover may adjudge
reasonable as attorneys fees with respect to any successful law suit or action
instituted by Landlord to enforce the provisions of this Lease. Landlord shall
have the right, at its sole option, to relet the whole or any part of the Leased
Premises for the whole of the unexpired Term, or longer, or from time to time
for shorter periods, for any rental then obtainable, giving such concessions of
rent and making such special repairs, alterations, decorations and painting for
any new tenant as Landlord, in its sole and absolute discretion, may deem
advisable. Landlord shall be under no obligation to relet the Leased Premises.
Tenant's liability as aforesaid shall survive the institution of summary
proceedings and the issuance of any warrant thereunder.
(d) Basic Rent and Additional Charges. If Tenant fails to pay Basic
---------------------------------
Rent or any Additional Charges due hereunder on the date it is due, then at any
time after Tenant's third failure to pay any such monetary obligation on the
date it is due, and at Landlord's option, Landlord may require Tenant to pay six
(6) months of Basic Rent and Additional Charges in advance.
12. Bankruptcy Termination Provision.
--------------------------------
This Lease shall, at Landlord's option, terminate and expire, without
the performance of any act or the giving of any notice by Landlord, upon the
occurrence of any of the following events: (1) Tenant's inability to pay its
debts generally as they become due, or (2) the commencement by Tenant of a
voluntary case under the federal bankruptcy laws, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or (3) the entry of a decree or order for
relief by a court having jurisdiction in the premises in respect of Tenant in an
involuntary case under the federal bankruptcy laws, as now constituted or
hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, and the continuance of any such decree or order
unstayed and in effect for a period of sixty (60) consecutive days, or (4)
Tenant's making an assignment of all or a substantial part of its property for
the benefit of its creditors, or (5) Tenant's seeking or consenting to or
acquiescing in the appointment of, or the taking of possession by, a receiver,
trustee or custodian for all or a substantial part of its property, or (6) the
entry of a court order without Tenant's consent, which order shall not be
vacated, set aside or stayed within sixty (60) days from the date of entry,
appointing a receiver, trustee or custodian for all or a substantial part of its
property, (7) the sale of all or substantially all of Tenant's assets, or (8)
any of the foregoing events by or as against any Guarantor. In the event of
termination of the Lease as a result of any of the foregoing events, Landlord
shall be entitled to damages as set forth in Section 11(c) hereof. The
provisions of this Section 12 shall be construed with due recognition for the
provisions of the federal bankruptcy laws, where applicable, but shall be
interpreted in a manner which results in a termination of this Lease in each and
every instance, and to the fullest extent and at the earliest moment, that such
termination is permitted under the federal bankruptcy laws, it being of
24
<PAGE>
prime importance to the Landlord to deal only with Tenants who have, and
continue to have, a strong degree of financial strength and financial stability.
13. Landlord May Perform Tenant's Obligations.
-----------------------------------------
If Tenant shall fail to keep or perform any of its obligations as
provided in this Lease in respect to (a) maintenance of insurance, (b) repairs
and maintenance of the Leased Premises, (c) compliance with the Requirements, or
(d) the making of any other payment or performance of any other obligation, then
Landlord may (but shall not be obligated to do so) upon the continuance of such
failure on Tenant's part for ten (10 )days after written notice to Tenant (or
after such additional period, if any, as Tenant may reasonably require to cure
such failure if of a nature which cannot be cured within said ten (10) day
period) and without waiving or releasing Tenant from any obligation, and as an
additional but not exclusive remedy, make any such payment or perform any such
obligation, and all sums so paid by Landlord and all necessary incidental costs
and expenses, including attorneys fees, incurred by Landlord in making such
payment or performing such obligation, together with interest thereon at the
rate specified in Section 3(c) hereof from the date of payment, shall be deemed
an Additional Charge and shall be paid to Landlord on demand, or at Landlord's
option may be added to any installment of rent thereafter falling due, and if
not so paid by Tenant, Landlord shall have the same rights and remedies as in
the case of a default by Tenant in the payment of Rent.
14. Security Deposit.
----------------
(a) Tenant shall deposit with Landlord the Security Deposit, as
security for the prompt, full and faithful performance by Tenant of each and
every provision of this Lease and of all obligations of Tenant hereunder. The
Security Deposit shall be in the form of cash or, at Tenant's option, an
irrevocable letter of credit (the "Security Deposit L/C"). If the Security
Deposit is in the form of a letter of credit, the Security Deposit L/C shall be
delivered to Landlord at Tenant's sole cost and expense. The Security Deposit
L/C shall be issued by and drawn on a bank reasonably acceptable to Landlord, in
Landlord's sole but reasonable discretion, and shall name Landlord as
Beneficiary. It shall be deemed reasonable for Landlord to require that such
bank have branches which are local to the Washington metropolitan area where
Landlord may present such Security Deposit L/C. The Security Deposit L/C shall
be in a form acceptable to Landlord. If the maturity date of the Security
Deposit L/C is prior to the end of the Term of the Lease, Tenant shall renew the
Security Deposit L/C as often as is necessary with the same bank or financial
institution (or a similar bank or financial institution reasonably acceptable to
Landlord) and upon the same terms and conditions, not less than thirty (30) days
prior to the purported expiration date of the Security Deposit L/C. In the
event that Tenant fails to timely renew the Security Deposit L/C as aforesaid,
Landlord shall be entitled to draw against the entire amount of the Security
Deposit L/C. The Security Deposit L/C shall be assignable by Landlord and upon
such assignment to any party assuming in writing the landlord interest and
obligations under this Lease, this Landlord shall be relieved from all liability
to Tenant therefor. If an Event of Default occurs, Landlord may use, apply or
retain the whole or any part of the Security Deposit for the payment of (i) any
Basic Rent or Additional Charges which Tenant shall not have paid or which may
become due after the occurrence of such Event of Default, (ii) any sum expended
by Landlord on Tenant's behalf in accordance with the provisions of this Lease
or (iii) any other sum which Landlord may expend or be required to expend by
reason of Tenant's default, including damages or deficiency in the reletting of
the Leased Premises as provided in Section 11 hereof. The use, application or
retention of the Security Deposit, or any portion thereof, by Landlord shall not
prevent Landlord from exercising any other right or remedy provided by this
Lease or by law and shall not operate as a limitation on any recovery to which
Landlord may otherwise be entitled. The Security Deposit L/C shall be available
for payment against the presentation of a sight draft by the Landlord together
with a certificate from
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<PAGE>
Landlord that Tenant is in default of its obligations hereunder beyond
expiration of any applicable notice and cure periods and that Landlord is
entitled by the terms of this Lease, to draw upon the Security Deposit L/C and
such Security Deposit L/C shall include a statement therein that the issuing
bank shall honor such drawing within two (2) business days upon Landlords
presentation in compliance with the terms of such Security Deposit L/C. If any
portion of the Security Deposit is used, applied or retained by Landlord for the
purposes set forth above, Tenant agrees, within ten (10) days after a written
demand therefor is made by Landlord, to deposit cash or a new Security Deposit
L/C meeting the criteria referenced in this Section 14, with Landlord in an
amount sufficient to restore the Security Deposit to its original amount. If
Tenant shall fully and faithfully comply with all of the provisions of this
Lease, the Security Deposit, or any balance thereof, shall be returned to Tenant
within ten (10) business days after the expiration of the Term, without
interest. In the absence of evidence satisfactory to Landlord of any permitted
assignment of the right to receive the Security Deposit, or the remaining
balance thereof, Landlord may return the same to Tenant, regardless of one or
more assignments of Tenant's interest in this Lease or the Security Deposit. In
such event, upon the return of the Security Deposit (or balance thereof) to
Tenant, Landlord shall be completely relieved of liability under this Section
14. In the event of a transfer of Landlord's interest in the Leased Premises,
Landlord shall have the right to transfer the Security Deposit to the transferee
thereof. In such event, upon the delivery by Landlord to Tenant of such
transferee's written acknowledgment of its receipt of such Security Deposit and
its agreement to comply with the provisions of this Lease, Landlord shall be
deemed to have been released by Tenant from all liability or obligation for the
return of such Security Deposit, and Tenant agrees to look solely to such
transferee for the return of the Security Deposit and the transferee shall be
bound by all provisions of this Lease relating to the return of the Security
Deposit. The Security Deposit shall not be mortgaged, assigned or encumbered in
any manner whatsoever by Tenant without the prior written consent of Landlord.
To the extent that the Security Deposit L/C is either lost or the issuing bank
will not honor the Security Deposit L/C, Tenant personally guarantees the
proceeds of the Security Deposit L/C and will immediately remit to Landlord the
amount of the Security Deposit in cash to be held in accordance with this
Paragraph 14.
(b) Notwithstanding anything to the contrary contained herein, Tenant
hereby knowingly and willfully, and upon advice of counsel, waives any right it
may have to enjoin, declare or otherwise prohibit the bank issuing such letter
of credit from paying, or Landlord from drawing, upon such letter of credit. If
Tenant attempts to obtain, or obtains, an injunction or other legal writ which
prevents Landlord from drawing upon such letter of credit, Tenant shall, at
Landlord's request, either (a) extend such letter of credit during the time
period ending ten (10) days after expiration of the injunction or other legal
writ; or (b) provide Landlord other reasonably satisfactory security. In the
event Landlord prevails in any litigation concerning such letter of credit and
Landlord's rights thereto, Tenant agrees to reimburse Landlord its attorneys'
fees, court costs, and other expenses related to the litigation.
(c) Notwithstanding anything to the contrary in this Section 14, and
provided that Tenant is not in default beyond any applicable notice and cure
periods under the Lease at the time of each reduction, then commencing on the
first anniversary of the Lease Commencement Date and annually thereafter the
amount of the Security Deposit L/C shall be reduced annually by Twenty Thousand
and 00/100 Dollars ($20,000.00).
(d) Furthermore, and notwithstanding anything to the contrary in this
Section 14, in the event that Tenant provides evidence satisfactory to Landlord
in its sole but reasonable discretion that Tenant has obtained (and maintained
for a period of one (1) year) a net worth in excess of Twenty-Five
26
<PAGE>
Million Dollars ($25,000,000.00), the required Security Deposit shall be reduced
to an amount equal to one (1) month's Basic Rent at the then current escalated
Basic Rent for the Premises. Such reduced Security Deposit may be in the form of
cash or in the form of an irrevocable letter of credit and shall be subject to
all of the provisions of this Section 14.
15. Subordination; Attornment.
-------------------------
(a) Subordination. This Lease and Tenant's interest hereunder shall
-------------
be subject and subordinate to each and every ground or underlying lease now
existing or hereafter made of the Building and/or underlying land and to all
renewals, modifications, replacements and extensions thereof, and to the lien of
any mortgage now or hereafter placed upon the Building, and to all renewals,
modifications, replacements, consolidations and extensions thereof and to any
and all advances made thereunder and the interest thereon. Tenant agrees that
within fifteen (15) days after written request therefor from Landlord, it will,
from time to time, execute and deliver any instrument or other document required
by any such landlord or mortgagee to subordinate this Lease and its interest in
the Leased Premises to such lease or the lien of any such mortgage. Tenant will
also upon request submit current financial statements and financial statements
covering the five (5) immediately preceding years, and Tenant will upon request
record this Lease or a short form thereof if required by Landlord's mortgagee or
other lending institution but, otherwise, Tenant shall not record this Lease or
a short form thereof. Tenant hereby irrevocably constitutes and appoints
Landlord as Tenant's attorney-in-fact to execute, acknowledge and deliver any
and all such instruments for and on behalf of Tenant.
27
<PAGE>
(b) Modifications. In the event that any bank, insurance company,
-------------
university, pension or welfare fund, savings and loan association, real estate
investment trust, business trust, or other financial institution providing
financing for the Building requires, as a condition of such financing, that
modifications to this Lease be obtained, and provided that such modifications
(i) are reasonable, (ii) do not materially adversely affect Tenant's use of the
Leased Premises as herein permitted, (iii) do not increase the rentals and
other sums required to be paid by Tenant hereunder and (iv) do not materially
decrease Tenant's rights or increase Tenant's obligations hereunder, Landlord
shall submit such required modifications to Tenant, and Tenant shall enter into
and execute a written amendment hereto incorporating such required modifications
within ten (10) business days after the same have been submitted to Tenant by
Landlord. If Tenant shall fail to so enter into and execute such a written
amendment, then Landlord shall thereafter have the right, at its sole option, to
cancel and terminate this Lease by giving Tenant written notice of such
termination, and Landlord shall thereupon be relieved from any and all further
liability or obligation hereunder.
(c) Attornment. In the event of (a) a transfer of Landlord's
----------
interest in the Leased Premises, (b) the termination of any ground or underlying
lease of the Building and/or underlying land, or (c) the purchase of the
Building or Landlord's interest therein at a foreclosure sale or by deed in lieu
of foreclosure under any mortgage or pursuant to a power of sale contained in
any mortgage, then in any of such events, Tenant shall, at Landlord's request,
attorn to and recognize the transferee or purchaser of Landlord's interest or
the landlord under the terminated ground or underlying lease, as the case may
be, as landlord under this Lease for the balance then remaining of the Term, and
thereafter this Lease shall continue as a direct lease between such person, as
"Landlord", and Tenant, as "Tenant", but such landlord, transferee or purchaser,
unless an express assumption is made in which case Landlord shall be released
from liability, shall not be liable for any act or omission of Landlord prior to
such lease termination or prior to such person's succession to title, nor be
subject to any offset, defense or counterclaim accruing prior to such lease
termination or prior to such person's succession to title, nor be bound by any
payment of Basic Rent or Additional Charges prior to such lease termination or
prior to such person's succession to title for more than one month in advance.
Tenant agrees that, within five (5) days after written request therefor from
Landlord, it will, from time to time, execute and deliver any instrument or
other document required by any mortgagee, transferee, purchaser or other
interested person to confirm such attornment and/or such obligation to attorn.
(d) Nondisturbance. Notwithstanding anything contained in Section 15
--------------
of the Lease to the contrary:
(a) If this Lease is subordinate to any existing fee or leasehold
mortgages or ground or air space leases covering the underlying land, Building
or Common Areas, Landlord, prior to the Lease Commencement Date, shall obtain,
have executed and shall deliver to Tenant, a Subordination, Nondisturbance and
Attornment Agreement by and between the Tenant and such prior party, in the form
of Exhibit E attached to this Lease.
---------
(b) Subject to the provision of subsection (i) below, this Lease
shall be subordinate and subject to any future fee or leasehold Mortgages and
ground leases covering the underlying land, Building or Common Areas.
(i) If any Mortgage is foreclosed or ground lease or
air space lease is terminated, then:
(1) This Lease shall continue in full force and
effect, and
(2) Tenant's quiet enjoyment shall not be disturbed if
Tenant is not in default of this Lease
28
<PAGE>
beyond any applicable grace and notice period provided
herein for the cure thereof, and
(3) Tenant shall attorn to and recognize the
mortgagee, purchaser at a foreclosure sale or ground or
other lessor ("Successor Landlord") as Tenant's
landlord for the remaining Lease Term; and
(ii) This subsection shall be self-operative; however,
Landlord shall use commercially reasonable efforts to cause a
future lender to enter into an agreement confirming such
subordination, attornment and non-disturbance if either party so
requests. However, the obtaining of any such subordination,
attornment and non-disturbance agreement(s) shall not be a
condition of this Lease. Landlord shall not be required to incur
any cost or expense in connection with obtaining such
agreement(s) other than normal mail costs, and Landlord shall
have no liability to Tenant arising out of the refusal of
Landlord's mortgagee to execute any such agreement.
16. Quiet Enjoyment.
---------------
Landlord covenants that Tenant, upon paying the Basic Rent and the
Additional Charges provided for in this Lease, and upon performing and observing
all of the terms, covenants, conditions and provisions of this Lease on Tenant's
part to be kept, observed and performed, shall quietly hold, occupy and enjoy
the Leased Premises during the Term without hindrance, ejection or molestation
by Landlord or any party lawfully claiming through or under Landlord, subject to
the terms of this Lease.
17. Landlord's Right of Access.
--------------------------
Landlord may, during any reasonable time or times and upon reasonable
notice (unless a suspected emergency), before and after the Lease Commencement
Date, enter upon the Leased Premises, any portion thereof and any appurtenance
thereto (with laborers and materials, if required) for the purpose of: (i)
inspecting the same; (ii) making such repairs, replacements or alterations
which it may be required to perform under the provisions of this Lease or which
it may deem desirable for the Leased Premises or the Building, including but not
limited to repairs and improvements to space above, below and/or on the same
floor as the Leased Premises; and (iii) showing the Leased Premises to
prospective purchasers or tenants. Landlord agrees to give reasonable notice
prior to any such entry except that Landlord may enter without notice in the
case of a suspected emergency. In making such an entry, Landlord agrees to use
reasonable efforts to avoid interfering with the regular and usual conduct of
the Tenant's business. If Tenant shall carpet over the floor of the Leased
Premises, Landlord shall have the right to cut such carpeting in order to make
or install any necessary electrical or telephone equipment or wiring to service
other parts of the Building, without being held liable therefor, provided
Landlord shall have the carpeting restored in a workmanlike manner.
18. Limitation on Landlord's Liability.
----------------------------------
(a) Limitation. Unless caused by Landlord's gross negligence or
----------
willful misconduct or the gross negligence or willful misconduct of Landlord's
affiliates, agents or employees, Landlord, its affiliates and their agents and
employees shall not be liable to Tenant, its employees, agents, business
invitees, licensees, customers, guests or trespassers for any damage or loss to
the property of Tenant or others located on the Leased Premises or for any
accident or injury to persons in the Leased Premises or the Building resulting
from: the necessity of repairing any portion of
29
<PAGE>
the Building; the use or operation (by Tenant or any other person or persons
whatsoever) of any elevators, or heating, cooling, electrical or plumbing
equipment or apparatus; the termination of this Lease by reason of the
destruction of the Building or the Leased Premises; any fire, robbery, theft
and/or any other casualty; any leaking in any part or portion of the Leased
Premises or the Building; any water, wind, rain or snow that may leak into, or
flow from, any part of the Leased Premises or the Building; any acts or
omissions of any occupant of any space adjacent to or adjoining all or any part
of the Leased Premises; any water, gas, steam, fire, explosion, electricity or
falling plaster; the bursting, stoppage or leakage of any pipes, sewer pipes,
drains, conduits, ducts, appliances or plumbing works; the functioning or
malfunctioning of the fire sprinkler system; the functioning or malfunctioning
of any security system installed in the Building or any part thereof; or any
other cause whatsoever.
(b) Force Majeure. Landlord shall not be required to perform any of
-------------
its obligations under Section 4(a) hereof or any other provision of this Lease,
nor be liable for loss or damage for failure to do so, nor shall Tenant be
released from any of its obligations under this Lease because of the Landlord's
failure to perform, where such failure arises from or through acts of God,
strikes, lockouts, labor difficulties, shortages of equipment, delays in
issuance of governmental permits or approvals, explosions, sabotage, accidents,
riots, civil commotions, acts of war, results of any warfare or warlike
conditions in this or any foreign country, fire and casualty, Requirements or
other causes beyond the reasonable control of Landlord. If Landlord is so
delayed or prevented from performing any of its obligations during the Term, the
period of such delay or such prevention shall be deemed added to the time herein
provided for the performance of any such obligation.
19. Hazardous Material. For purposes of this Lease, the term "Hazardous
------------------
Material" means any hazardous substance, hazardous waste, infectious waste, or
toxic substance, material, or waste which becomes regulated or is defined as
such by any local, state or federal governmental authority. Landlord covenants
that, to the best of its knowledge, there is no Hazardous Material located in,
on or under the Building as of the date of this Lease in violation of any
federal or state law. Except for small quantities of ordinary office supplies
such as copier toners, liquid paper, glue, ink and common household cleaning
materials, Tenant shall not cause or permit any Hazardous Material to be
brought, kept or used in or about the Leased Premises or the Building by Tenant,
its agents, employees, contractors, or invitees. Tenant hereby agrees to
indemnify Landlord from and against any breach by Tenant of the obligations
stated in the preceding sentence, and agrees to defend and hold Landlord
harmless from and against any and all claims, judgments, damages, penalties,
fines, costs, liabilities, or losses (including, without limitation, diminution
in value of the Building, damages for the loss or restriction or use of rentable
space or of any amenity of the Building, damages arising from any adverse impact
on marketing of space in the Building, sums paid in settlement of claims,
attorneys' fees, consultant fees and expert fees) which arise during or after
the Term of this Lease as result of such breach. This indemnification of
Landlord by Tenant includes, without limitation, costs incurred in connection
with any investigation of site conditions and any cleanup, remedial removal, or
restoration work required due to the presence of Hazardous Material which arise
during or after the Term of this Lease. Landlord hereby agrees that Tenant shall
not be liable for any Hazardous Material brought into the Building by Landlord
or another tenant of the Building in violation of any federal or state law.
Tenant shall promptly notify Landlord of any release of a Hazardous Material in
the Leased Premises or at the Building of which Tenant becomes aware, whether
caused by Tenant or any other person or entity. The provisions of this Section
19 shall survive the termination of the Lease.
(a) Definition and Consent. The term "Hazardous Substance" as used
----------------------
in this Lease shall mean any product, substance, chemical, material or waste
whose presence, nature, quantity and/or intensity of existence, use,
manufacture, disposal, transportation, spill, release or affect, either by
itself or in combination with other materials expected to be on the Leased
Premises, is either: (a) potentially injurious to the public health, safety or
welfare, the environment or the Leased Premises, (b)
30
<PAGE>
regulated or monitored by any governmental entity, (c) a basis for liability of
Landlord to any governmental entity or third party under any federal, state or
local statute or common law theory or (d) defined as a hazardous material or
substance by any federal, state or local law or regulation. Except for small
quantities of ordinary office supplies such as copier toner, liquid paper, glue,
ink and common household cleaning materials, Tenant shall not cause or permit
any Hazardous Substance to be brought, kept, or used in or about the Leased
Premises or the Building by Tenant, its agents, employees, contractors or
invitees.
(b) Duty to Inform Landlord. If Tenant knows, or has reasonable
-----------------------
cause to believe, that a Hazardous Substance, or a condition involving or
resulting from same, has come to be located in, on or under or about the Leased
Premises or the Building, Tenant shall immediately give written notice of such
fact to Landlord. Tenant shall also immediately give Landlord (without demand by
Landlord) a copy of any statement, report, notice, registration, application,
permit, license, given to or received from, any governmental authority or
private party, or persons entering or occupying the Leased Premises, concerning
the presence, spill, release, discharge of or exposure to, any Hazardous
Substance or contamination in, on or about the Leased Premises or the Building.
(c) Inspection; Compliance. Landlord and Landlord's employees,
----------------------
agents, contractors and lenders shall have the right to enter the Leased
Premises at any time in the case of an emergency, and otherwise at reasonable
times and upon reasonable notice, for the purpose of inspecting the condition of
the Leased Premises and for verifying compliance by Tenant with this Section 19.
Landlord shall have the right to employ experts and/or consultants in connection
with its examination of the Leased Premises and with respect to the
installation, operation, use, monitoring, maintenance, or removal of any
Hazardous Substance on or from the Leased Premises. The costs and expenses of
any such inspections shall be paid by the party requesting same, unless a
contamination, caused or materially contributed to by Tenant, is found to exist
or be imminent, or unless the inspection is requested or ordered by governmental
authority as the result of any such existing or imminent violation or
contamination. In any such case, Tenant shall upon request reimburse Landlord
for the cost and expenses of such inspection.
20. Certificates.
------------
Tenant shall, without charge therefor, at any time and from time to
time, within fifteen (15) business days after request therefor by Landlord,
execute, acknowledge and deliver to Landlord a written estoppel certificate in
the form attached hereto as Exhibit F certifying, among other things, to
----------
Landlord, any mortgagee, assignee of a mortgagee, or any purchaser of the
Building, or any other person designated by Landlord, as of the date of such
estoppel certificate, (i) that Tenant is in possession of the Leased
Premises,(ii) that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the Lease is in full force and effect as
modified and setting forth such modification); (iii) whether or not there are
then existing any set-offs or defenses against the enforcement of any right or
remedy of Landlord, or any duty or obligation of Tenant hereunder (and, if so,
specifying the same in detail); (iv) the dates through which Basic Rent and
Additional Charges have been paid; (v) that Tenant having made due investigation
has no knowledge of any then uncured defaults on the part of Landlord under this
Lease (or if Tenant has knowledge of any such uncured defaults, specifying the
same in detail); (vi) that Tenant having made due investigation has no knowledge
of any event having occurred that authorizes the termination of this Lease by
Tenant (or if Tenant has such knowledge, specifying the same in detail); (vii)
the amount of any Security Deposit held by Landlord; and (viii) other matters
reasonably requested by Landlord. If Tenant shall fail to so execute and
deliver such a written estoppel certificate within said fifteen (15) business
day period,
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<PAGE>
then Landlord shall send Tenant a second written request for such estoppel
certificate. If Tenant shall fail to so execute and deliver such written
estoppel certificate within five (5) business days after this second request,
then such failure of Tenant to deliver such estoppel certificate shall
constitute a material default of Tenant hereunder.
21. Surrender of Leased Premises.
----------------------------
Tenant shall, on or before the last day of the Term, or upon earlier
termination hereof or of Tenant's right to occupy the Leased Premises in
accordance with the terms hereof, (i) peaceably and quietly leave, surrender and
yield up to Landlord the Leased Premises, free of subtenancies, broom clean and,
subject to the provisions of Section 13 hereof, in good order and condition
except for reasonable wear and tear, and (ii) at its expense, remove from the
Leased Premises all movable trade fixtures, furniture, equipment, and other
personal property, provided that Tenant shall promptly repair any damage caused
by such removal. Any of such property not so removed may, at Landlord's
election and without limiting Landlord's right to compel removal thereof, be
deemed abandoned and either may be retained by Landlord as its property or be
disposed of, without accountability, in such manner as Landlord may see fit.
All affixed installations, alterations, additions, betterments and improvements
to the Leased Premises made by either Landlord or Tenant, whether at Landlord's
or Tenant's expense, including, without limitation, all wiring, paneling,
partitions, floor coverings, lighting fixtures, built-in cabinets, bookshelves
affixed to walls, and the like shall become the property of Landlord when
installed and shall remain with the Leased Premises at the expiration or sooner
termination of the Term, except that Landlord shall have the right, by notice to
Tenant, to require Tenant, at its expense, to remove any of such property
installed by or at the sole expense of Tenant or other remaining property
objectionable to Landlord and to repair any damage caused by such removal. In
the event Tenant fails to perform such removal and repair, as aforesaid,
Landlord may remove any property of Tenant from the Leased Premises and store
the same elsewhere at the expense and risk of Tenant. The provisions of this
Section shall survive any expiration or termination of this Lease.
22. Alterations and Additions.
-------------------------
(a) Tenant shall not, without Landlord's prior written consent, which
may be given or withheld in Landlord's sole discretion, make any alterations,
improvements, additions, utility installations or repairs (hereinafter
collectively referred to as "Alteration(s)") in, on or about the Leased Premises
or the Building. Alterations shall include, but shall not be limited to, the
installation or alteration of security or fire protection systems, communication
systems, millwork, shelving, file retrieval or storage systems, carpeting or
other floor covering, window and wall coverings, electrical distribution
systems, lighting fixtures, telephone or computer system wiring, HVAC and
plumbing. At the expiration of the Term, Landlord may require the removal of
any Alterations installed by Tenant and the restoration of the Leased Premises
and the Building to their prior condition, at Tenant's expense. If a work
letter agreement is entered into by Landlord and Tenant, Tenant shall not be
obligated to remove the tenant improvements constructed in accordance with the
work letter agreement. If, as a result of any Alteration made by Tenant,
Landlord is obligated to comply with the Americans With Disabilities Act or any
other law or regulation and such compliance requires Landlord to make any
improvement or Alteration to any portion of the Building, as a condition to
Landlord's consent, Landlord shall have the right to require Tenant to pay to
Landlord prior to the construction of any Alteration by Tenant, the entire cost
of any improvement or Alteration Landlord is obligated to complete by such law
or regulation. Should Landlord permit Tenant to make its own Alterations,
Tenant shall use only such contractor as has been expressly approved by
Landlord, and Landlord may require Tenant to provide to Landlord, at Tenant's
sole cost and expense, a lien and completion bond in an amount equal to one and
one-half times the estimated cost of such Alterations, to insure Landlord
against any liability for mechanic's and materialmen's liens and to insure
completion of the work. In addition, Tenant shall pay to Landlord a fee equal
to ten percent (10%) of the cost of the Alterations to compensate Landlord for
the overhead and other costs it incurs in reviewing the plans for
32
<PAGE>
the Alterations and in monitoring the construction of the Alterations and five
percent (5%) for profit. Should Tenant make any Alterations without the prior
approval of Landlord, or use a contractor not expressly approved by Landlord,
Landlord may, at any time during the Term of this Lease, require that Tenant
remove all or part of the Alterations and return the Leased Premises to the
condition it was in prior to the making of the Alterations. In the event Tenant
makes any Alterations, Tenant agrees to obtain or cause its contractor to
obtain, prior to the commencement of any work, "builders all risk" insurance in
an amount approved by Landlord and workers compensation insurance.
Notwithstanding anything to the contrary hereinabove, Landlord's consent shall
not be required for any Alteration that is strictly of a cosmetic nature (i.e.,
painting, carpeting, wall papering) with at least seventy-two (72) hours prior
written notice of the commencement of any such work and Tenant utilizes
finishes, materials and fixtures of equal or better quality to those originally
approved by Landlord and otherwise complies with the provisions of this Section
22 and the Rules and Regulations attached to this Lease as Exhibit D. The
---------
foregoing notwithstanding, if such cosmetic, non-structural Alterations are
visible from the Common Areas of the Building, Tenant shall obtain Landlord's
prior written consent of such Alterations which consent shall not be
unreasonably withheld, conditioned or delayed. Tenant shall not be required to
pay to Landlord the fee as described hereinabove with respect to any "cosmetic"
Alterations performed by Tenant in accordance with this subsection 22(a). To the
extent the Landlord's consent is required pursuant to this Section 22, at the
written request of Tenant, Landlord agrees to notify Tenant concurrently with
Landlord's consent of any such Alterations whether Landlord will require Tenant
to remove such Alterations at the end of the Lease Term if such Alterations are
required to be removed in accordance with Section 21 hereof.
(b) Any Alterations in or about the Leased Premises that Tenant shall
desire to make shall be presented to Landlord in written form, with plans and
specifications which are sufficiently detailed to obtain a building permit. If
Landlord consents to an Alteration, the consent shall be deemed conditioned upon
Tenant acquiring a building permit from the applicable governmental agencies,
furnishing a copy thereof to Landlord prior to the commencement of the work, and
compliance by Tenant with all conditions of said permit in a prompt and
expeditious manner. Tenant shall provide Landlord with as-built plans and
specifications for any Alterations made to the Leased Premises.
(c) Tenant shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or for use in
the Leased Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Leased Premises or the Building, or any interest
therein. If Tenant shall, in good faith, contest the validity of any such lien,
Tenant shall furnish to Landlord a surety bond satisfactory to Landlord in an
amount equal to not less than one and one half times the amount of such
contested lien or claim indemnifying Landlord against liability arising out of
such lien or claim. Such bond shall be sufficient in form and amount to free
the Building from the effect of such lien. In addition, Landlord may require
Tenant to pay Landlord's reasonable attorneys' fees and costs in participating
in such action.
(d) Tenant shall give Landlord not less than ten (10) days' advance
written notice prior to the commencement of any work in the Leased Premises by
Tenant, and Landlord shall have the right to post notices of non-responsibility
in or on the Leased Premises or the Building.
(e) All Alterations (whether or not such Alterations constitute trade
fixtures of Tenant) which may be made to the Leased Premises by Tenant shall be
paid for by Tenant, at Tenant's sole expense, and shall be made and done in a
good and workmanlike manner and with new materials satisfactory to Landlord and
such Alterations shall be the property of Landlord and remain upon and be
surrendered with the Leased Premises at the expiration of the Term of the Lease.
Provided Tenant is not in default, Tenant's personal property and equipment,
other than that which is affixed to the Leased Premises so that it cannot be
removed without material damage to the Leased Premises or the Building, shall
33
<PAGE>
remain the property of Tenant and may be removed by Tenant subject to the
provisions of Section 21.
23. Holding Over.
------------
If Tenant remains in possession of the Leased Premises or any part
thereof after the expiration or earlier termination of the term hereof with
Landlord's consent, such occupancy shall be a tenancy from month to month upon
all the terms and conditions of this Lease pertaining to the obligations of
Tenant, except that the Basic Rent payable shall be one hundred fifty percent
(150%) of the Basic Rent payable immediately preceding the termination date of
this Lease and all Options, if any, shall be deemed terminated and be of no
further effect. If Tenant remains in possession of the Leased Premises or any
part thereof after the expiration of the Term hereof without Landlord's consent,
Tenant shall, at Landlord's option, be treated as a tenant at sufferance or a
trespasser. Nothing contained herein shall be construed to constitute
Landlord's consent to Tenant holding over at the expiration or earlier
termination of the Term. Tenant hereby agrees to indemnify, hold harmless and
defend Landlord from any cost, loss, claim or liability (including attorneys'
fees) Landlord may incur as a result of Tenant's failure to surrender possession
of the Leased Premises to Landlord upon the termination of this Lease.
24. Signs.
-----
Tenant shall not inscribe, paint, affix, or otherwise display any
sign, advertisement or notice on any part of the outside or inside of the
Building. Landlord shall provide at no cost to Tenant a standard suite
identification sign to be affixed by Landlord at the exterior entrance to the
Leased Premises in the standard size, color and style selected by Landlord for
the Building. Landlord shall also prepare and install at no cost to Tenant a
reasonable quantity of standard name plates as designated by Tenant on written
notice to Landlord for the lobby directory of the Building, but not more than
one (1) plate per Two Thousand Five Hundred (2,500) square feet of the Leased
Premises. If any other signs advertisements or notices are painted, affixed, or
otherwise displayed without the prior approval of Landlord, Landlord shall have
the right to remove the same, and Tenant shall be liable for any and all costs
and expenses incurred by Landlord in such removal.
25. Options.
-------
(a) Definition. As used in this Lease, the word "Option" has the
----------
following meaning: (1) the right or option to extend the Term of this Lease or
to renew this Lease, and (2) the option or right of first refusal to lease the
Leased Premises or the right of first offer to lease the Leased Premises or the
right of first refusal to lease other space within the Building or the right of
first offer to lease other space within the Building, and (3) the right or
option to terminate this Lease prior to its expiration date or to reduce the
size of the Leased Premises. Any Option granted to Tenant by Landlord must be
evidenced by a written option agreement attached to this Lease as a rider or
addendum or said option shall be of no force or effect.
(b) Options Personal. Each Option granted to Tenant in this Lease,
----------------
if any, is personal to the original Tenant and may be exercised only by the
original Tenant while occupying the entire Leased Premises and may not be
exercised or be assigned, voluntarily or involuntarily, by or to any person or
entity other than Tenant, including, without limitation, any permitted
transferee as defined in Section 10. The Options, if any, herein granted to
Tenant are not assignable separate and apart from this Lease, nor may any Option
be separated from this Lease in any manner, either by reservation or otherwise.
If at any time an Option is exercisable by Tenant, the Lease has been assigned,
or a sublease exists as to any portion of the Leased Premises, the Option shall
be deemed null and void and neither Tenant nor any assignee or subtenant shall
have the right to exercise the Option.
34
<PAGE>
(c) Multiple Options. In the event that Tenant has multiple Options
----------------
to extend or renew this Lease a later Option cannot be exercised unless the
prior Option to extend or renew this Lease has been so exercised.
(d) Effect of Default on Options. Tenant shall have no right to
----------------------------
exercise an Option (i) during the time commencing from the date Landlord gives
to Tenant a notice of default pursuant to Section 11 and continuing until the
noncompliance alleged in said notice of default is cured, or (ii) if Tenant is
in default of any of the terms, covenants or conditions of this Lease. The
period of time within which an Option may be exercised shall not be extended or
enlarged by reason of Tenant's inability to exercise an Option because of the
provisions of this Section 25(d).
(e) Limitations on Options. Notwithstanding anything to the contrary
----------------------
contained in any rider or addendum to this Lease, any options, rights of first
refusal or rights of first offer granted hereunder shall be subject and
secondary to Landlord's right to first offer and lease any such space to any
tenant who is then occupying or leasing such space at the time the space becomes
available for leasing and shall be subject and subordinated to any other
options, rights of first refusal or rights of first offer previously given to
any other person or entity.
(f) Notice of Exercise of Option. Notwithstanding anything to the
----------------------------
contrary contained in Section 27(f), Tenant may only exercise an option by
delivering its written notice of exercise to Landlord by certified mail, return
receipt and date of delivery requested. It shall be Tenant's obligation to
prove that such notice was so sent in a timely manner and was delivered to
Landlord by the U.S. Postal Service.
26. Leasing Commission.
------------------
Tenant and Landlord each represent and warrant that, except for the
Leasing Brokers (whose commission shall be paid by Landlord), neither has
employed or had contact with any broker relative to this Lease. Tenant and
Landlord shall indemnify and hold harmless each other from and against any other
claim or claims for brokerage or other fees or commissions arising from or out
of any breach of the foregoing representation and warranty. Landlord shall be
responsible for payment of the brokers' fees to the persons listed in Section
1(a)(10) of this Lease, pursuant to a separate agreement.
27. General Provisions.
------------------
(a) Binding Effect. The covenants, conditions, agreements, terms and
--------------
provisions of this Lease shall be binding upon and shall inure to the benefit of
the parties hereof and, subject to the provisions of Section 10 hereof, each of
their respective personal representatives, successors and assigns.
(b) Laws. It is the intention of the parties hereto that this Lease
----
(and the terms and provisions hereof) shall be construed and enforced in
accordance with the laws of the jurisdiction in which the Building is located.
(c) Attorneys' Fees. If Landlord or Tenant brings an action to
---------------
enforce the terms hereof or declare rights hereunder, the prevailing party in
any such action, or appeal thereon, shall be entitled to its reasonable
attorneys' fees and court costs to be paid by the losing party as fixed by the
court in the same or separate suit, and whether or not such action is pursued to
decision or judgment. The attorneys' fee award shall not be computed in
accordance with any court fee schedule, but shall be such as to fully reimburse
all attorneys' fees and court costs reasonably incurred in good faith. Landlord
shall be entitled to reasonable attorneys' fees and all other costs and expenses
incurred in the preparation
35
<PAGE>
and service of notices of default and consultations in connection therewith,
whether or not a legal action is subsequently commenced in connection with such
default. Landlord and Tenant agree that attorneys' fees incurred with respect to
defaults and bankruptcy are actual pecuniary losses within the meaning of
Section 365(b)(1)(B) of the Bankruptcy Code or any successor statute.
(d) Waiver. No failure by Landlord to insist upon the strict
------
performance of any term, covenant, agreement, provision, condition or limitation
of this Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance by the Landlord of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any such breach or
of any such term, covenant, agreement, provision, condition or limitation. No
term, covenant, agreement, provision, condition or limitation of this Lease to
be kept, observed or performed by Landlord or by Tenant, and no breach thereof,
shall be waived, altered or modified except by a written instrument executed by
Landlord or by Tenant, as the case may be. No waiver of any breach shall affect
or alter this Lease, but each and every term, covenant, agreement, provision,
condition and limitation of this Lease shall continue in full force and effect
with respect to any other existing or subsequent breach thereof. No failure by
Landlord to insist upon the strict performance of any term, covenant, agreement,
provision, condition or limitation of a lease with any other tenant or to
exercise any right or remedy consequent thereof shall constitute a waiver of any
similar term, covenant, agreement, provision, condition or limitation contained
in this Lease unless the same be incorporated in a written instrument signed by
Landlord and making specific reference to this Lease and to the Tenant's
obligations hereunder.
(e) Security Interest. [INTENTIONALLY OMITTED]
-----------------
(f) Notices. No notice, request, consent, approval, waiver or other
-------
communication which may be or is required or permitted to be given under this
Lease shall be effective unless the same is in writing and is delivered in
person or sent by registered or certified mail, return receipt requested, first-
class postage prepaid, (1) if to Landlord, at Landlord's Notice Address, or (2)
if to Tenant, at Tenant's Notice Address, or at any new address that may be
given by one party to the other by notice pursuant to this subsection. Such
notices, if sent by registered or certified mail, shall be deemed to have been
given at the time of mailing.
36
<PAGE>
(g) Entirety. It is understood and agreed by and between the parties
--------
hereto that this Lease contains the final and entire agreement between said
parties relative to the subject matter hereof, and that they shall not be bound
by any terms, statements, conditions or representations relative to the subject
matter hereof, oral or written, express or implied, not herein contained. It is
understood and agreed, however, that, subject to the terms of Section 15(b)
hereof, the terms hereof shall be modified, if so required, for the purpose of
complying with or fulfilling the requirements of any mortgagee secured by a
mortgage that may now be or hereafter become a lien on the Building, provided,
however, that such modification shall not be in substantial derogation or
diminution of any of the rights of the parties hereunder, nor increase any of
the obligations or liabilities of the parties hereunder.
(h) Waiver of Jury. Landlord and Tenant each hereby waives all right
--------------
to trial by jury in any claim, action, proceeding or counterclaim by either
Landlord or Tenant relating to this Lease and/or Tenant's use or occupancy of
the Leased Premises.
(i) Waiver of Venue. Tenant hereby waives any objection to the venue
---------------
of any action filed by Landlord against Tenant in any state or federal court of
the jurisdiction in which the Building is located, and Tenant further waives any
right, claim or power, under the doctrine of forum non conveniens or otherwise,
----- --- ----------
to transfer any such action filed by Landlord to any other court.
(j) Confidentiality. Tenant acknowledges and agrees that the terms
of this Lease are confidential and constitute propriety information of Landlord.
Disclosure of the terms hereof could adversely affect the ability of Landlord to
negotiate other leases with respect to the Building and may impair Landlord's
relationship with other tenants of the Building. Tenant agrees that it and its
partners, officers, directors, employees, brokers, and attorneys, and others as
required by legal process or requirements (including any filing requirements of
the Securities and Exchange Commission), if any, shall not disclose the terms
and conditions of this Lease to any other person or entity without the prior
written consent of Landlord which may be given or withheld by Landlord, in
Landlord's sole discretion. It is understood and agreed that damages alone would
be an inadequate remedy for the breach of this provision by Tenant, and Landlord
shall also have the right to seek specific performance of this provision and to
seek injunctive relief to prevent its breach or continued breach.
(k) Tenant Entity. If Tenant is a corporation, it shall, following a
-------------
request therefore , furnish to Landlord certified copies of the resolutions of
its Board of Directors (or of the executive committee of its Board of Directors)
authorizing Tenant to enter into this Lease; and it shall, if applicable,
furnish to Landlord certified copies of the resolutions of the Board of
Directors (or of the executive committee of such Board of Directors) of any
corporate guarantor, authorizing such corporation to guarantee the obligations
of Tenant under this Lease; and it shall furnish to Landlord evidence
(reasonably satisfactory to Landlord and its counsel) that Tenant is a duly
organized corporation under the laws of the state of its incorporation, is
qualified to do business in the jurisdiction in which the Building is located,
is in good standing under the laws of the state of its incorporation and has the
power and authority to enter into this Lease, and that all corporate action
requisite to authorize Tenant to enter into this Lease has been duly taken. If
Tenant is a partnership, the person executing this Lease on behalf of such
partnership hereby represents and warrants on behalf of such person and the
partners of Tenant that such person is authorized by Tenant to enter into this
Lease.
(l) Time of Essence. Time is of the essence in the performance of all
---------------
of Tenant's obligations under this Lease.
(m) Words and Phrases. Wherever appropriate herein, the singular
-----------------
includes the plural and the plural includes the singular and neuter gender
references shall refer to the gender of the particular party.
37
<PAGE>
(n) Limit on Landlord's Liability. Notwithstanding any provision to
-----------------------------
the contrary, Tenant shall look solely to the estate and property of Landlord in
and to the Building (or the proceeds received by Landlord on a sale of such
estate and property but not the proceeds of any financing or refinancing
thereof) in the event of any claim against Landlord arising out of or in
connection with this Lease, the relationship of Landlord and Tenant, or Tenant's
use of the Leased Premises, and Tenant agrees that the liability of Landlord and
the other parties referenced in Section 7(a)(4) hereof arising out of or in
connection with this Lease, the relationship of Landlord and Tenant, or
Tenant's use of the Leased Premises, shall be limited to such estate and
property of Landlord (or sale proceeds). No other properties or assets of
Landlord shall be subject to levy, execution or other enforcement procedures for
the satisfaction of any judgment (or other judicial process) or for the
satisfaction of any other remedy of Tenant arising out of or in connection with
this Lease, the relationship of Landlord and Tenant or Tenant's use of the
Leased Premises, and if Tenant shall acquire a lien on or interest in any other
properties or assets by judgment or otherwise, Tenant shall promptly release
such lien on or interest in such other properties and assets by executing,
acknowledging and delivering to Landlord an instrument to that effect prepared
by Tenant's attorneys. No partnership relation shall be deemed created
hereunder between Landlord and Tenant. The foregoing provisions of this
subsection shall run to the benefit of Landlord, its successors, assigns,
mortgagees and ground lessors.
(o) Administrative Costs. In addition, if Tenant requests Landlord
--------------------
to review and/or execute any documents in connection with this Lease, including
but not limited to assignment and Transfer documents, Tenant shall pay to
Landlord as an administrative fee for the review and/or execution thereof all
reasonable, out-of-pocket costs and expenses, including reasonable attorney's
fees (which shall include the cost of time expended by in-house counsel)
incurred by Landlord and/or Landlord's agent. Such administrative costs shall
not exceed One Thousand Five Hundred and 00/100 Dollars ($1,500.00) per request.
(p) Counterparts. This Lease maybe executed in several counterparts,
------------
but all such counterparts shall constitute one and the same instrument.
(q) Exhibits and Addendum. Exhibits A (Floor Plan of Leased
---------------------
Premises), A-1, (Base Building Plans), B (Workletter), B-1 (Plans), C
(Verification Letter), D (Rules and Regulations), E (Subordination, Non-
Disturbance and Attornment Agreement), F (Estoppel Certificate) and Addendum, if
any, attached hereto, are hereby incorporated herein.
[SIGNATURES ON FOLLOWING PAGE]
38
<PAGE>
IN WITNESS WHEREOF, Tenant has caused this Lease, including the
attached Addendum, if any, to be signed and attested in its corporate name by
its proper corporate officers and its corporate seal to be affixed as of the day
and year first above written or in its partnership name, as the case may be.
LANDLORD:
MDM DEVELOPMENT COMPANY, L.L.C.
WITNESS:
_________________________ By: ____________________________________
Mark D. Lerner
Manager
TENANT:
NOOSH, INC.
ATTEST:
_________________________ By: ____________________________________
Secretary [corporate seal] Name:____________________________________
Title:___________________________________
39
<PAGE>
EXHIBIT A
LEASED PREMISES
----------------
A-1
<PAGE>
EXHIBIT A-1
BASE BUILDING PLANS
--------------------
Drawings prepared by the Weihe Design Group issued for permit 5/1/97,
for contract 8/1/97, as amended on 10/22/97, as further amended on 1/20/98, and
as further amended 3/4/98.
A-1-1
<PAGE>
EXHIBIT B
=========
WORKLETTER
==========
1. Construction of Base Building. Landlord, at its expense, shall
-----------------------------
construct and provide a completely finished building (the "Base Building"),
excluding interior finishing of tenant space and including public toilets,
telephone closets, mechanical equipment rooms complete with air handling
equipment and duct work, and electrical closets with high and low voltage
panelboards and transformers. Landlord shall construct, supply and install a
finished two-story atrium lobby on the first and second floors, finished
elevators and public stairwells on each floor, vanity or vestibule rooms,
wetstacks, drinking fountains, a sprinkler system riser and sprinkler head
drops, landscaping for the Base Building and all other common areas of the Base
Building, substantially in accordance with the Base Building Plans. The core
walls shall be taped, spackled and ready for painting. Drywall shall be screwed
in place for perimeter walls. The interior columns will be exposed concrete.
Landlord shall also provide venetian blinds for all perimeter windows. The Base
Building will be constructed in compliance with all applicable codes, and all
materials and equipment to be incorporated into the Base Building shall be of
first-class quality and in full operational condition. Landlord shall perform
any additional work, if and to the extent reasonably required, to correct or
satisfy errors or omissions in the Plans caused by field conditions or
inaccuracies in the information provided by the Landlord with regard to the Base
Building.
2. Completion of Leased Premises.
------------------------------
(a) Tenant Improvements. Landlord, at its sole cost and expense,
except as otherwise provided in this Workletter, shall furnish and install, in
or for the benefit of the Premises, the Tenant Improvements (as identified in
the Plans) in accordance with the Plans (the "Plans") attached hereto as Exhibit
-------
B-1 which Plans have been approved by Landlord and Tenant. All architectural
- ---
and engineering work for such Tenant Improvements and any required occupancy
permits for the Leased Premises shall also be provided at Landlord's sole cost
and expense. Any improvements other than the Tenant Improvements shall be
subject to Landlord's prior written approval, shall be at Tenant's sole expense
and, except as otherwise permitted in this Exhibit B, shall be constructed by
---------
Landlord.
B-1
<PAGE>
(b) Construction.
------------
(1) Within a reasonable period of time , Landlord shall instruct its
contractor to secure a building permit and commence construction of the Tenant
Improvements in accordance with the Plans.
(2) Change Orders. Tenant may at any point prior to the Lease
-------------
Commencement Date request changes in the final approved Plans. Promptly
following receipt of Tenant's requested changes, Landlord shall notify Tenant
of: (i) the cost, if any, of performing such changes and (ii) the Lease
Commencement Date Delay ("LCDD"), if any caused by such changes. (For this
purpose, LCDD means the number of days that substantial completion of Tenant's
Improvements will be delayed as a result of the need to perform such changes).
The cost of performing such changes shall be the actual costs charged to
Landlord by Landlord's contractor , plus ten percent (10%) for
overhead/supervisions and five percent (5%) for profit. Promptly following
notification from Landlord as to the cost of the changes and the LCDD, Tenant
shall notify Landlord whether or not to proceed with the changes. If Tenant
elects to proceed, Tenant shall pay Landlord such increase by cashier's check,
which payment shall be made within five (5) days of Landlord's notice to Tenant
that Landlord is prepared to commence construction. Further the Lease
Commencement Date shall be accelerated by the amount of the LCDD (but such
acceleration shall not affect Landlord's obligations hereunder). If Tenant
B-2
<PAGE>
elects not to proceed, it may submit revised changes to Landlord in an effort to
reduce the cost or LCDD caused by such changes. Landlord will cooperate in good
faith to facilitate all requested changes, and to arrange for same to be
performed at a reasonable and competitive cost and with minimal LCDD.
(c) Dates. The Lease Commencement Date shall be as specified in Section
-----
1(a)(4) of this Lease, except that if the Leased Premises are not ready for
occupancy on such date through no fault or delay occasioned Tenant, the same
shall not be considered a default by Landlord and, the sole remedy (except as
otherwise provided in the Lease) shall be that the Lease Commencement Date shall
be delayed until the earlier of (i) the date identified in written notice to
Tenant as the date that the Leased Premises was or will be ready for occupancy
or (ii) the date which is identified in written notice to Tenant as the date
that the Leased Premises would have been ready for occupancy if not for the
delays set forth below in subsection (e). For this purpose, the Leased Premises
shall be deemed to be substantially completed on the date which the required
work is substantially completed as certified by Landlord's architect which
certification shall be made with due regard for the delays set forth below in
subsection (e). For this purpose, too, the date that the Leased Premises "would
have been substantially completed" if not for delays occasioned by Tenant shall
be certified to by Landlord's architect which certification shall be made with
due regard for all of the obligations imposed upon the parties pursuant to above
subsections (a) and (b) and binding. The assumption of possession of the Leased
Premises by Tenant shall constitute an acknowledgement by Tenant that the Leased
Premises are in good condition and the work done by Landlord therein is
satisfactory and accepted in their then "as is" condition subject to the
punchlist items.
(d) Delay. Tenant acknowledges that any change requests made by
-----
Tenant may affect the timely completion of the Leased Premises. In the event
changes are required by Tenant in the final architectural and engineering plans,
and/or Tenant fails to timely pay the amounts for special items, and/or the
delivery time of special items delays completion of the Leased Premises without
the fault of Landlord, and/or the installation time of special items delays
completion of the Leased Premises, any resulting delay in the completion of
construction of the Leased Premises shall be at Tenant's sole cost and expense.
Punchlist items shall not affect the Lease Commencement Date.
B-3
<PAGE>
EXHIBIT B-1
===========
PLANS
B-1-1
<PAGE>
EXHIBIT C
=========
VERIFICATION LETTER
NOOSH, INC., a ____________________ corporation ("Tenant") hereby certifies
that it has entered into a lease with MDM DEVELOPMENT COMPANY, L.L.C., a
Virginia limited liability company ("Landlord") and verifies the following
information as of the _____ day of ___________, 19__:
Number of Rentable Square Feet in Leased Premises:
---------------------------
Lease Commencement Date:
----------------------------------------------
Lease Termination Date:
----------------------------------------------
Tenant's Proportionate Share:
----------------------------------------------
Initial Basic Rent:
----------------------------------------------
Billing Address for Tenant:
----------------------------------------------
----------------------------------------------
----------------------------------------------
Attention:
----------------------------------------------
Telephone Number:
----------------------------------------------
Federal Tax I.D. No.:
----------------------------------------------
Tenant acknowledges and agrees that all tenant improvements Landlord is
obligated to make to the Leased Premises, if any, have been completed and that
Tenant has accepted possession of the Leased Premises and that as of the date
hereof, there exist no offsets or defenses to the obligations of Tenant under
the Lease. Tenant acknowledges that it has inspected the Leased Premises and
found them suitable for Tenant's intended commercial purposes.
TENANT
NOOSH, INC.,
a ___________ corporation
By: _____________________________
Its: _____________________________
ACKNOWLEDGED AND AGREED TO:
C-1
<PAGE>
LANDLORD
MDM DEVELOPMENT COMPANY, L.L.C.,
a Virginia limited liability company
By: ______________________________
Mark D. Lerner, Manager
C-2
<PAGE>
EXHIBIT D
=========
RULES AND REGULATIONS
=====================
The following rules and regulations have been formulated for the safety and
well-being of all tenants of the Building and are incorporated into and made
part of the attached Lease (hereinafter, the "Lease"). Adherence to these rules
and regulations insures that each and every tenant will enjoy a safe and
undisturbed occupancy in the Building. Any violation of these rules and
regulations by any tenant which continues after notice from Landlord shall be
sufficient cause for termination, at the option of Landlord, of any tenant's
Lease.
Landlord shall have the continuing right to amend or eliminate any of these
rules and regulations, and also to adopt additional reasonable rules and
regulations of like force and effect. Any such change shall be effective at the
earlier of actual notice or five (5) days after delivery of written notice
thereof to the Leased Premises by Landlord.
Landlord may, upon request by any tenant, for good cause, waive the
compliance by such tenant of any of the following rules and regulations,
provided that (a) no waiver shall be effective unless signed by Landlord or
Landlord's authorized agent, (b) any such waiver shall not relieve the tenant
from the obligation to comply with such rule or regulation in the future unless
expressly consented to by Landlord, and (c) no waiver of a rule or regulation
granted to any tenant shall relieve any other tenant from the obligation of
complying with the rule or regulation unless such other tenant has received a
similar waiver in writing from Landlord. Landlord shall use commercially
reasonable efforts to enforce such rules and regulations in a reasonable,
uniform and non-discriminatory manner.
1. The sidewalks, entrances, passages, and the parking, loading, and
service areas, Common Areas, or other parts of the Building not occupied by any
tenant shall not be obstructed or encumbered by any tenant or used for any
purpose other than ingress and egress to and from the tenant's premises.
Landlord shall have the exclusive right to control and operate the Common Areas,
and the facilities furnished for the common use of the tenants of the Building,
in such manner as Landlord deems best for the benefit of the tenants generally.
No tenant shall permit the visit to its premises of persons in such numbers or
under such conditions as to interfere with the use and enjoyment by other
tenants of the Common Areas. Landlord shall in any cases retain the right to
control or prevent access by any person whose presence, in Landlord's reasonable
judgment, would be prejudicial or harmful to the safety, peace, character or
reputation of the Building or of any tenant of the Building.
2. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of Landlord. No drapes,
blinds, shades, or screens shall be attached to or hung in, or used in
connection with, any window or door of a tenant's premises, without the prior
written consent of Landlord, except the blinds specified as building standard in
Exhibit B of the Lease. If Landlord has installed or hereafter installs any
- ---------
shade, blind or curtain in any premises, no tenant shall remove it without first
obtaining Landlord's written consent thereto. Approved blinds must be kept in
the down position at all times but may be pivoted open or closed as chosen by
each tenant. Any other awnings, projections, curtains, blinds, screens or other
fixtures must be of a quality, type, design and color, and attached in the
manner approved by Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited,
installed, inscribed, painted or affixed by any tenant on any part of the
outside or
D-1
<PAGE>
inside of the tenant's premises or any window thereof, or any part of the
Building, including the rear entrance and loading areas, without the prior
written consent of Landlord. In the event of the violation of the foregoing by
any tenant, Landlord may remove same without any liability, and may charge the
expense incurred by such removal to the tenant or tenants violating this rule.
All signs, including interior signs on the doors and directory tablet shall be
designed and installed by Landlord, and shall only identify each tenant and be
of a size, color and style acceptable to Landlord. Approved vending machines
must be placed so as to not be visible from outside of the Building.
4. No fixtures, plumbing, electrical equipment, show cases or other items
not shown on approved plans shall be installed or affixed to any part of any
tenant premises or the exterior of the Building, nor placed in the Common Areas,
without the prior written consent of Landlord.
5. The toilet rooms, water and wash closets, and other plumbing fixtures
shall not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other substances shall be
thrown therein. All damages resulting from any misuse of the fixtures shall be
borne by the tenant who, or whose employees, agents, visitors or licensees,
shall have caused the same.
6. There shall be no marking, painting, drilling into or other form of
defacing or damage of any part of a tenant's premises or the Building. No
boring, cutting or stringing of wires shall be done without the consent of
Landlord. If any tenant desires to install signaling, telegraphic, telephonic,
protective alarm or other wires, apparatus or devices within its premises,
Landlord shall direct where and how they are to be installed and, except as so
directed, no installation, boring or cutting shall be permitted. Landlord shall
have the right (a) to prevent or interrupt the transmission of excessive,
dangerous or annoying current of electricity or otherwise into or through the
Building or the premises, (b) to require the changing of wiring connections or
layout at such tenant's expense, to the extent that Landlord may deem necessary,
(c) to require compliance with such reasonable rules as Landlord may establish
relating thereto, and (d) in the event of noncompliance with such requirements
or rules, immediately to cut wiring or do whatever else it considers necessary
to remove the danger, annoyance or electrical interference with apparatus in any
part of the Building. Each wire installed by any tenant must be clearly tagged
at each distributing board and junction box and elsewhere where required by
Landlord, with the number of the office to which such wire leads and the purpose
for which it is used, together with the name of such tenant or other concern, if
any, operating or using it. No tenant shall construct, maintain, use or operate
within its premises or elsewhere within or on the outside of the Building, any
electrical device, wiring or apparatus in connection with a loud speaker system
or other sound system.
7. No tenant shall make, or permit to be made, any disturbing noises or
disturb or interfere with occupants of the Building or neighboring buildings or
premises or those having business with them, whether by the use of any musical
instrument, radio, tape recorder, whistling, singing, or any other way. No
tenant shall throw anything out of the doors or windows or down the corridors or
stairs.
8. No vehicles or animals, birds or pets of any kinds shall be brought
into or kept in or about a tenant's premises. Except in the kitchen and/or
lounge facility shown on approved plans, no cooking shall be done or permitted
by any tenant on its premises and no tenant may install and/or operate any
additional lounge or coffee room or stove, sink and refrigerator, or the like.
No tenant shall cause or permit any unusual or objectionable odors to
D-2
<PAGE>
originate from its premises. All approved kitchen facilities must be adequately
exhausted by Tenant.
9. No space in or about the Building shall be used for the sale of
merchandise, goods or property of any kind or for sleeping purposes.
10. No flammable, combustible or explosive fluid, chemical or substance
shall be brought or kept upon any tenant's premises, unless approved by the
appropriate local government authority. In any event, each tenant shall hold
harmless Landlord from any damage caused by the same.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in existing
locks or the mechanism thereof. The doors leading to the corridors or main
halls shall be kept closed during business hours except as they may be used for
ingress and egress. Each tenant shall, upon the termination of its tenancy,
return to Landlord all keys used in connection with its premises, including any
keys to the premises, to rooms and offices within the premises, to storage rooms
and closets, to cabinets and other built-in furniture, and to toilet rooms,
whether or not such keys were furnished by Landlord or procured by tenant, and
in the event of the loss of any such keys, such tenant shall pay to Landlord the
cost of replacing the locks. On termination of a tenant's lease, the tenant
shall disclose to Landlord the combination of all locks for safes, safe
cabinets, and vault doors, if any, remaining in the premises.
12. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description, must take place in such manner and
during such hours as Landlord may require. Landlord reserves the right to
inspect all freight to be brought into the Building and to exclude from the
Building all freight which violates any of these rules and regulations or the
Lease.
13. Any person employed by any tenant to do janitorial work within the
tenant's premises must obtain Landlord's consent prior to commencing such work,
and such person shall, while in the Building and outside of said premises,
comply with all instructions issued by the superintendent of the Building and
must be properly identified. No tenant shall engage or pay any employees on the
tenant's premises, except those actually working for such tenant on said
premises.
14. No tenant shall purchase spring water, ice, coffee, soft drinks,
towels, or other like merchandise or service from any company or person whose
repeated violations of Building regulations have caused, in Landlord's opinion,
a hazard or nuisance to the Building and/or its occupants.
15. Landlord shall have the right to prohibit any advertising by any
tenant which, in Landlord's opinion, tends to impair the reputation of the
Building or its desirability as a place for offices, and upon written notice
from Landlord, such tenant shall refrain from or discontinue such advertising.
16. Landlord reserves the right to exclude from the Building at all times
any person who is not known or does not properly identify himself to the
Building management or its agents. Landlord may, at its option, require all
persons admitted to or leaving the Building to register. Each tenant shall be
responsible for all persons for whom it authorizes entry into the Building, and
shall be liable to Landlord for all acts of such persons. Landlord shall also
have the right to install an electronic access control system for the Building
requiring the use of pass cards, identifications cards, passwords, confidential
codes or the like as a prerequisite to admission of any person into the
Building, and tenant agrees to faithfully abide by the rules of any such system.
If cards or the like are used in
D-3
<PAGE>
any such system, each tenant shall be issued two (2) without charge, but each
additional or replacement card requested shall be issued only upon payment of a
standard service fee per card.
17. Each tenant, before closing and leaving its premises at any time, even
though the Lease may be net of utilities, should use its best efforts to see
that all lights, electrical appliances and mechanical equipment are turned off.
18. The requirements of tenants will be attended to only upon application
at the management office for the Building. Building employees shall not perform
any work or do anything outside of their regular duties, unless under special
instructions from the management of the Building.
19. Canvassing, soliciting and peddling in the public Building is
prohibited and each tenant shall cooperate to prevent the same, including
notifying Landlord when and if such activity occurs.
20. There shall not be used in any space, or in any public halls of the
Building, either by a tenant or by jobbers or others, in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
side guards.
21. Access plates to under-floor conduits shall be left exposed. Where
carpet is installed, carpet shall be cut around access plates.
22. Mats, trash or other objects shall not be placed in the public
corridors.
23. Drapes which are visible from the exterior of the Building must be
cleaned by each tenant at least once a year, without notice, at such tenant's
own expense.
24. All office equipment of any electrical of mechanical nature shall be
placed by any tenant in its premises in approved settings to absorb or prevent
any vibration, noise or annoyance.
25. Tenant shall not permit or cause to be used in any premises any device
or instrument such as a sound reproduction system, or excessively bright,
changing, flashing, flickering, moving lights or lighting devices or any similar
devices, the effect of which shall be audible or visible beyond the confines of
the demised premises, nor shall tenant permit any act or thing upon the demised
premises distributing to normal sensibilities of other tenants.
26. All moving of safes, freight, furniture or bulky matter of any
description, to or from any premises shall only take place during the hours
designated by the Landlord. Hand trucks may be used only if they are equipped
with rubber tires and side guards, and only in designated delivery areas.
Damages caused thereby shall be borne by Tenant.
27. Tenant shall not use the premises as headquarters for large scale
employment of workers for other locations.
28. The premises shall never at any time be used for any illegal
purposes.
29. Landlord shall have the right, from time to time, to designate
specific parking spaces in the parking areas for the Building as being reserved
for specific tenants or for members of the general public, or designated for
trucks only, and each tenant agrees to honor such reservations and to permit
parking
D-4
<PAGE>
for officers and employees only in those parking spaces available for such
purposes. Violators can be towed at their own expense. Landlord shall have the
further right, during holiday seasons or at other times when parking spaces may
be in short supply, to temporarily change or restrict established parking areas
in order to provide additional public parking, and tenant agrees to honor such
temporary changes and restrictions. Trucks of any tenant's vendors are not to be
left at the Building. Landlord makes no warranty as to the availability of
parking spaces for any tenant unless specific spaces have been reserved as set
forth above.
30. Any utilities meters approved by Landlord shall be placed in the name
of such tenant immediately upon occupancy and, at that time, each tenant shall
provide verification of the meters being in its name to Landlord.
31. Smoking shall not be permitted in the Building.
32. Nothing in these rules and regulations shall give any tenant any right
or claim against Landlord or any other person if Landlord does not enforce any
of them against any other tenant or person (whether or not Landlord has the
right to enforce them against such tenant or person), and no such non-
enforcement with respect to any tenant shall constitute a waiver of the right to
enforce them as to such tenant or any other tenant person thereafter.
33. Each tenant and its employees, agents and invitees, shall observe and
comply with the driving and parking signs and markers on the premises
surrounding the Building. And, Landlord shall have the right to rescind,
suspend or modify the rules and regulations and to promulgate such other rules
or regulations as, in Landlord's reasonable judgment, are from time to time
needed for the safety, care, maintenance, operation and cleanliness of the
Building, or for the preservation of good order therein. Upon any tenant's
having been given notice of the taking of any such action, the rules and
regulations, as so rescinded, suspended, modified or promulgated, shall have the
same force and effect as if in effect at the time at which such tenant's Lease
was entered into (except that nothing in these rules and regulations shall be
deemed in any way to alter or impair any provision of such Lease).
D-5
<PAGE>
EXHIBIT E
=========
SUBORDINATION, NON-DISTURBANCE
==============================
AND ATTORNMENT AGREEMENT
========================
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is made by and between TEACHERS INSURANCE AND ANNUITY ASSOCIATION
- ----------
OF AMERICA, a New York corporation with offices at 730 Third Avenue, New York,
New York 10017, and ("Lender") and _____________________, a ______________ with
------
its principal place of business at 1750 Tysons Boulevard, McLean, Virginia,
22102, ("Tenant").
------ -
RECITALS:
---------
A. Lender has made or is about to make a loan (together with all
advances and increases, the ("Loan") to MDM Development Company, L.L.C., a
---- -
Maryland limited liability company ("Borrower").
--------
B. Borrower, as landlord, and Tenant have entered into a lease dated
__________ as amended by amendments dated ____________ (the "Lease") which
-----
leased to Tenant Suite No. _____ (the "Leased Space") located in the Property
------------
(defined below).
C. The Loan is or will be secured by the Credit Line Deed of Trust,
Assignment and Security Agreement recorded or to be recorded in the official
records of the County of Fairfax, Commonwealth of Virginia (together with all
advances, increases, amendments or consolidations, the "Mortgage") and the
--------
Assignment of Leases and Rents recorded or to be recorded in such official
records (together with all amendments or consolidations, the "Assignment"),
----------
assigning to Lender the Lease and all rent, additional rent and other sums
payable by Tenant under the Lease (the "Rent").
----
D. The Mortgage encumbers the real property, improvements and
fixtures located at 1750 Tysons Boulevard, in the County of Fairfax,
Commonwealth of Virginia, commonly known as The Corporate Office Centre at
Tysons II (the "Property").
--------
IN CONSIDERATION of the mutual agreement contained in this Agreement,
Lender and Tenant agree as follows:
1. The Lease and all of Tenant's rights under the Lease are and will
remain subject and subordinate to the lien of the Mortgage and all of Lender's
rights under the Mortgage and Tenant will not subordinate the Lease to any other
lien against the Property without Lender's prior consent.
2. This agreement constitutes notice to Tenant of the Mortgage and
the Assignment and, upon receipt of notice from Lender, Tenant will pay the Rent
as and when due under the Lease to Lender and the payments will be credited
against the Rent due under the Lease.
3. Tenant does not have and will not acquire and right or option to
purchase any portion of or interest in the Property.
E-1
<PAGE>
4. Tenant and Lender agree that if Lender exercises its remedies
under the Mortgage or the Assignment and if Tenant is not then in default under
this Agreement and if Tenant is not then in default beyond any applicable grace
and cure periods under the Lease:
(a) Lender will not name Tenant as a party to any judicial or non-
judicial foreclosure or other proceeding to enforce the Mortgage unless joinder
is required under applicable law but in such case Lender will not seek
affirmative relief against Tenant, the Lease will not be terminated and Tenant's
possession of the Leased Space will not be disturbed;
(b) If Lender or any other entity (a "Successor Landlord") acquires
------------------
the Property through foreclosure, by other proceeding to enforce the Mortgage or
by deed-in-lieu of foreclosure (a "Foreclosure"), Tenant's possession of the
-----------
Leased Space will not be disturbed and the Lease will continue in full force and
effect between Successor Landlord and Tenant; and
(c) If, notwithstanding the foregoing, the Lease is terminated as a
result of a Foreclosure, a lease between Successor Landlord and Tenant will be
deemed created, with no further instrument required, on the same terms as the
Lease except that the term of the replacement lease will be the then unexpired
term of the Lease. Successor Landlord and Tenant will execute a replacement
lease at the request of either.
5. Upon Foreclosure, Tenant will recognize and attorn to Successor
Landlord as the landlord under the Lease for the balance of the term. Tenant's
attornment will be self-operative with no further instrument required to
effectuate the attornment except that at Successor Landlord's request, Tenant
will execute instruments reasonably satisfactory to Successor Landlord
confirming the attornment.
6. Except as permitted in the Mortgage or Assignment, Successor
Landlord will not be:
(a) liable for any act or omission of any prior landlord under
the Lease occurring before the date of the Foreclosure except for repair and
maintenance obligations of a continuing nature imposed on the landlord under the
Lease;
(b) required to credit Tenant with any Rent paid more than one
month in advance or for any security deposit unless such Rent or security
Deposit has been received by Successor Landlord;
(c) bound by any amendment, renewal or extension of the Lease
that is inconsistent with the terms of this Agreement or is not in writing and
signed both by Tenant and landlord;
(d) bound by any reduction of the Rent unless the reduction is in
connection with an extension
or renewal of the Lease at prevailing market terms or was made with Lender's
prior consent, which will not be unreasonably withheld;
(e) bound by any reduction of the term/1/ of the Lease or any
termination, cancellation or surrender of the Lease unless the reduction,
termination, cancellation or surrender occurred during the last 6 months of the
term or was made with Lender's prior consent;
E-2
<PAGE>
(f) bound by any amendment, renewal or extension of the Lease
entered into without Lender's prior consent if the Leased Space represents 50%
or more of the net rentable area of the building in which the Leased Space is
located;
(g) subject to any credits, offsets, claims, counterclaims or
defenses that Tenant may have that arose prior to the date of the Foreclosure or
liable for any damages Tenant may suffer as a result of any misrepresentation,
breach of warranty or any act of or failure to act by any party other than
Successor Landlord;
(h) bound by any obligation to make improvements to the Property,
including the Leased Space, to make any payment or give any credit or allowance
to Tenant provided for in the Lease or to pay any leasing commissions arising
out of the Lease, except that Successor Landlord will be:
(i) bound by any such obligations provided for in the Lender-
approved form lease;
(ii) bound by any such obligations if the overall economic terms
of the Lease (including the economic terms of any renewal
options) represented market terms for similar space in
properties comparable to the Property when the Lease was
executed; and
(iii) bound to comply with the casualty and condemnation
restoration provisions included in the Lease provided that
Successor Landlord receives the insurance or condemnation
proceeds;
or
(i) liable for obligations under the Lease with respect to any
off-site property or facilities for the use of Tenant (such as off-site leased
space or parking) unless Successor Landlord acquires in the Foreclosure the
right, title or interest to the off-site property.
- --------------------------------------------------------------------------------
/1/For purposes of this subparagraph "the term of the Lease" includes
any renewal term after the right to renew has been exercised.
E-3
<PAGE>
7. Lender will have the right, but not the obligation, to cure any
default by Borrower, as Landlord, under the Lease. Tenant will notify Lender of
any default that would entitle Tenant to terminate the Lease or abate the Rent
and any notice of termination or abatement will not be effective unless Tenant
has so notified Lender of the default and Lender has had a 30-day cure period
(or such longer period as may be necessary if the default is not susceptible to
cure within 30 days) commencing on the latest to occur of the date on which (i)
the cure period under the Lease expires, (ii) Lender receives the notice
required by this paragraph; and (iii) Successor Landlord obtains possession of
the Property if the default is not susceptible to cure without possession.
8. All notices, requests or consents required or permitted to be
given under this Agreement must be in writing and sent by certified mail, return
receipt requested or by nationally recognized overnight delivery service
providing evidence of the date of delivery, with all charges prepaid, addressed
to the appropriate party at the address set forth above.
9. Any claim by Tenant against Successor Landlord under the Lease or
this Agreement will be satisfied solely out of Successor Landlord's interest in
the Property and Tenant will not seek recovery against or out of any other
assets of Successor Landlord. Successor Landlord will have no liability or
responsibility for any obligations under the Lease that arise subsequent to any
transfer of the Property by Successor Landlord.
10. This Agreement is governed by and will be construed in accordance
with the laws of the state or commonwealth in which the Property is located.
11. Lender and Tenant waive trial by jury in any proceeding brought
by, or counterclaim asserted by, Lender or Tenant relating to this Agreement.
12. If there is a conflict between the terms of the Lease and this
Agreement, the terms of this Agreement will prevail as between Successor
Landlord and Tenant.
13. This Agreement binds and inures to the benefit of Lender and
Tenant and their respective successors, assigns, heirs, administrators,
executors, agents and representatives.
14. This Agreement contains the entire agreement between Lender and
Tenant with respect to the subject matter of this Agreement, may be executed in
counterparts that together constitute a single document and may be amended only
by a writing signed by Lender and Tenant.
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<PAGE>
IN WITNESS WHEREOF, Lender and Tenant have executed and delivered
this Agreement as of _________ ____, _______.
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA, a New York
corporation
By:__________________________________
Name:_____________________________
Title:______________________________
[TENANT]
By:___________________________________
Name:______________________________
Title: ______________________________
E-5
<PAGE>
ACKNOWLEDGMENT
State of ______________________
County of ____________________
On this the ______ day of ____________, ________ before me, the
undersigned officer, personally appeared _________________ who acknowledged
himself to be the _____________ of TEACHERS INSURANCE AND ANNUITY ASSOCIATION
OF AMERICA, a corporation, and that he, as such ______________________________
being authorized so to do, executed the foregoing instrument for the purposes
therein contained, by signing the name of the corporation by himself as
_______________________.
In witness whereof I hereunto set my hand and official seal.
__________________________
__________________________
Title of Officer
State of ______________________
County of ____________________
On this the ______ day of ____________, _______ before me, the
undersigned officer, personally appeared _________________ who acknowledged
himself to be the _____________ of __________________, a _____________, and that
he, as such ______________________________ being authorized so to do, executed
the foregoing instrument for the purposes therein contained, by signing the name
of the corporation by himself as _______________________.
In witness whereof I hereunto set my hand and official seal.
__________________________
__________________________
Title of Officer
E-6
<PAGE>
EXHIBIT E
=========
(CONTINUED)
STATEMENT OF TENANT IN RE: LEASE
Tenant's Letterhead
Date
Teachers Insurance and Annuity
Association of America
730 Third Avenue
New York, New York 10017
Attn: Real Estate Banking
RE: TIAA Appl. #: VA-386
TIAA Mtge. #: 0004332-1
Name of Project: 1750 Tysons Boulevard
Address: 1750 Tysons Boulevard
McLean, VA 22102
Tenant Floor & Suite: Suite
Ladies and Gentlemen:
It is our understanding that you have committed to place a mortgage
upon the subject premises and as a condition precedent thereof have required
this certification of the undersigned.
The undersigned, as lessee, under that certain lease dated
____________, made with MDM Development Company, L.L.C., as lessor, hereby
ratifies said lease and certifies that:
1. the "Commencement Date" of said lease is ______________; and
2. the undersigned is presently solvent and free from reorganization
and/or bankruptcy and is in occupancy, open, and conducting
business with the public in the premises; and
3. the operation and use of the premises do not involve the
generation, treatment, storage, disposal or release of a hazardous
substance or a solid waste into the environment other than to the
extent necessary to conduct its ordinary course of business in the
premises and in accordance with all applicable environmental laws,
and that the premises are being operated in accordance with all
applicable environmental laws, zoning ordinances and building
codes; and
4. the current base rental payable pursuant to the terms of said
lease is $_________ per annum; and further, additional rental
pursuant to said lease is payable as follows: $________; and
5. said lease is in full force and effect and has not been assigned,
modified, supplemented or amended in any way (except by
E-7
<PAGE>
agreement(s) dated ___________), and neither party thereto is in
default thereunder; and
6. the lease described above represents the entire agreement between
the parties as to the leasing of the premises; and
7. the term of said lease expires on _____________; and
8. all conditions under said lease to be performed by the lessor have
been satisfied, including, without limitation, all co-tenancy
requirements thereunder, if any; and
9. all required contributions by lessor to lessee on account of
lessee's improvements have been received; and
10. on this date there are no existing defenses or offsets, claims or
counterclaims which the undersigned has against the enforcement of
said lease by the lessor; and
11. no rental has been paid in advance and no security (except the
security deposit in the amount of $____________) has been
deposited with lessor; and
12. lessee's floor area is ________ square feet; and
13. the most recent payment of current basic rental was for the
payment due on ___________, and all basic rental and additional
rental payable pursuant to the terms of the lease have been paid
up to said date; and
14. the undersigned acknowledges notice that lessor's interest under
the lease and the rent and all other sums due thereunder will be
assigned to you as part of the security for a mortgage loan by you
to lessor. In the event that Teachers Insurance and Annuity
Association of America, as lender, notifies the undersigned of a
default under the mortgage and demands that the undersigned pay
its rent and all other sums due under the lease to lender, lessee
agrees that it shall pay its rent and all such other sums to
lender.
Very truly yours,
[TENANT]
By:___________________________
Name:_________________________
Title: _______________________
E-8
<PAGE>
EXHIBIT 10.31
[NOOSH Letterhead]
October 14, 1998
Matthew L. Spolin
300 Beale Street, No. 501
San Francisco, CA 94105
Dear Matthew,
NOOSH, Inc. (the "Company") is pleased to offer you the position of R&D Chief
Architect, reporting initially to NOOSH's CEO. Your starting monthly salary
will be $9,583, less payroll deductions and all required withholding.
You will also receive a bonus of $7,500 upon your start date as an employee of
NOOSH, together with a loan from the Company of $8,000. The loan will bear
interest at the rate of 8.0% per year, with all principal and accrued interest
due upon the date your employment by the Company ends, for any reason. However,
if you are still employed by the Company on the first anniversary of your start
date, your obligation to repay all principal and accrued interest due under the
loan will be forgiven. Please note that the amount forgiven will constitute
income to you, and will, therefore, be subject to withholding.
It will further be recommended to the Board of Directors that you be granted a
stock option to purchase 108,360 shares of Common Stock under NOOSH's Employee
Stock Option Plan. Your option will be subject to a four year vesting schedule,
with vesting to commence as of your start date as an employee under this
agreement. Under the vesting schedule, your option shares would vest at the
rate of 25% upon completion of the first year of employment, with an additional
2.0833% of such shares vesting for each full month of continuous employment
completed after the first anniversary. The exercise price of your stock option
will not be fixed until the date of grant by the Board of Directors. We expect
that the grant will occur during the two weeks following your start date. The
exercise price for your option would be set equal to the fair market value of
NOOSH's stock on the grant date.
NOOSH also offers a benefits package, including medical insurance coverage, two
weeks vacations annually, and sick leave and paid holidays as specified by
Company policy for all employees. Until the Company implements its own medical
insurance plan, NOOSH will reimburse you for up to $____ per month in payments
required under COBRA to maintain your existing personal medical insurance
coverage.
Your employment with NOOSH is for no specified term and is "at will," and may be
terminated by you or NOOSH at any time, with or without cause or advance notice.
This letter, the Company's standard agreement relating to proprietary rights
between you and NOOSH (the "Inventions Agreement") and the form of option
agreement between you and
<PAGE>
NOOSH relating to your option grant described above set forth the terms of
your employment with the Company and supersede any prior representations or
agreements, whether written or oral. As required by law, this offer is subject
to satisfactory proof of your right to work in the United States. This letter
may not be modified or amended, except by a written agreement, signed by the
Company and you.
Matt, we believe this position will provide you with an excellent opportunity
for professional growth, as well as offering you the excitement and rewards of a
dynamic and growing company. NOOSH feels the single most important factor in
our success will be our people. We are confident that the skills and background
you bring to us will be instrumental to NOOSH's success.
Please keep a copy and return the signed original of this offer letter to me by
October 16, 1998. As we've discussed, we look forward to you joining our team
and starting on or before October 23, 1998.
Sincerely,
NOOSH, INC.
By: /s/ Ofer Ben-Shachar
--------------------
Ofer Ben-Shachar
President and CEO
I agree to and accept this offer of employment with NOOSH, Inc..
/s/ Matthew L. Spolin 10/14/98
- --------------------- ------------------
Matthew L. Spolin Start Date
<PAGE>
EXHIBIT 10.32
[NOOSH Letterhead]
April 10, 1999
Larry Slotnick
169 Lockhart Ln.
Los Altos, CA 94022
Dear Larry,
NOOSH, Inc. (the "Company") is pleased to offer you the position of VP
Engineering, reporting initially to NOOSH's President & CEO. Your starting
monthly salary will be $13,334, less payroll deductions and all required
withholding.
Additionally, you and NOOSH's CEO may mutually agree upon quarterly performance
milestones for which you will receive quarterly performance bonuses of $7,500
if, in the sole discretion of NOOSH's CEO, such quarterly milestones have been
achieved.
It will further be recommended to the Board of Directors that you be granted a
stock option to purchase 200,000 shares of Common Stock under NOOSH's Employee
Stock Option Plan. Your option will be subject to a four year vesting schedule,
with vesting to commence as of your start date as an employee under this
agreement. In addition, if we achieve the service delivery goals for the beta
and full launch of the Noosh service, it will further be recommended to the
Board of Directors that you be granted a stock option to purchase 25,000 shares
of Common Stock under NOOSH's Employee Stock Option Plan. Under the vesting
schedule, your option shares would vest at the rate of 25% upon completion of
the first year of employment, with an additional 2.0833% of such shares vesting
for each full month of continuous employment completed after the first
anniversary. The exercise price of your stock option will not be fixed until the
date of grant by the Board of Directors. We expect that the grant will occur
during the two weeks following your start date. The exercise price for your
option would be set equal to the fair market value of NOOSH's stock on the grant
date.
NOOSH also offers a benefits package, including medical insurance coverage, two
weeks vacations annually, and sick leave and paid holidays as specified by
Company policy for all employees.
Your employment with NOOSH is for no specified term and is "at will," and may be
terminated by you or NOOSH at any time, with or without cause or advance notice.
This letter, the Company's standard agreement relating to proprietary rights
between you and NOOSH (the "Inventions Agreement") and the form of option
agreement between you and NOOSH relating to your option grant described above
set forth the terms of your employment with the Company and supersede any prior
representations or agreements, whether written or oral. As required by law,
this offer is subject to satisfactory proof of your right to work in the
<PAGE>
United States. This letter may not be modified or amended, except by a written
agreement, signed by the Company and you.
Larry, we believe this position will provide you with an excellent opportunity
for professional growth, as well as offering you the excitement and rewards of a
dynamic and growing company. NOOSH feels the single most important factor in
our success will be our people. We are confident that the skills and background
you bring to us will be instrumental to NOOSH's success.
Please keep a copy and return the signed original of this offer letter to me by
April 15, 1999. As we've discussed, we look forward to you joining our team and
starting on or before May 10, 1999.
Sincerely,
NOOSH, INC.
By: /s/ Ofer Ben-Shachar
--------------------
Ofer Ben-Shachar
President and CEO
I agree to and accept this offer of employment with NOOSH, Inc..
/s/ Larry Slotnick 4/30/99
- ------------------ ----------
Larry Slotnick Start Date
<PAGE>
EXHIBIT 10.33
[NOOSH Letterhead]
July 27, 1999
Kevin Akeroyd
9515 NW Englemen
Portland, OR 97229
Dear Kevin,
NOOSH, Inc. (the "Company") is pleased to offer you the position of VP Sales,
reporting initially to NOOSH's President & CEO. Your starting monthly salary
will be $12,500, less payroll deductions and all required withholding. In
addition, you will receive a sales commission, yet to be determined, targeted at
$12,500 per month. Until January 1, 2001 you will be guaranteed a minimum
commission of $4,167. Your entire salary and bonus are subject to payroll
deductions and all required withholding. NOOSH will also pay relocation expenses
you incur up to $20,000.
It will further be recommended to the Board of Directors that you be granted a
stock option to purchase 100,000 shares of Common Stock under NOOSH's Employee
Stock Option Plan. Your option will be subject to a four year vesting schedule,
with vesting to commence as of your start date as an employee under this
agreement. Under the vesting schedule, your option shares would vest at the
rate of 25% upon completion of the first year of employment, with an additional
2.0833% of such shares vesting for each full month of continuous employment
completed after the first anniversary. The exercise price of your stock option
will not be fixed until the date of grant by the Board of Directors. We expect
that the grant will occur during the two weeks following your start date. The
exercise price for your option would be set equal to the fair market value of
NOOSH's stock on the grant date.
NOOSH also offers a benefits package, including medical insurance coverage, two
weeks vacations annually, and sick leave and paid holidays as specified by
Company policy for all employees.
Your employment with NOOSH is for no specified term and is "at will," and may be
terminated by you or NOOSH at any time, with or without cause or advance notice.
This letter, the Company's standard agreement relating to proprietary rights
between you and NOOSH (the "Inventions Agreement") and the form of option
agreement between you and NOOSH relating to your option grant described above
set forth the terms of your employment with the Company and supersede any prior
representations or agreements, whether written or oral. As required by law,
this offer is subject to satisfactory proof of your right to work in the United
States. This letter may not be modified or amended, except by a written
agreement, signed by the Company and you.
<PAGE>
Kevin, we believe this position will provide you with an excellent opportunity
for professional growth, as well as offering you the excitement and rewards of a
dynamic and growing company. NOOSH feels the single most important factor in
our success will be our people. We are confident that the skills and background
you bring to us will be instrumental to NOOSH's success.
Please keep a copy and return the signed original of this offer letter to me by
July 31, 1999. As we've discussed, we look forward to you joining our team and
starting on or before August 5th, 1999.
Sincerely,
NOOSH, INC.
By: /s/ Ofer Ben-Shachar
--------------------
Ofer Ben-Shachar
President and CEO
I agree to and accept this offer of employment with NOOSH, Inc..
/s/ Kevin Akeroyd 8/16/99
- ----------------- -------------
Kevin Akeroyd Start Date
<PAGE>
EXHIBIT 10.34
[NOOSH letterhead]
January 6, 1999
Dave Hannebrink
25750 Moodey Rd
Los Altos Hills, CA 94022
Dear Dave,
NOOSH, Inc. (the "Company") is pleased to offer you the position of Vice
President Business Development and Marketing, reporting initially to NOOSH's
CEO. Your starting monthly salary will be $12,500, less payroll deductions and
all required withholding.
Additionally, you and NOOSH's CEO may mutually agree upon quarterly performance
milestones for which you will receive quarterly performance bonuses of $7,500
if, in the sole discretion of NOOSH's CEO, such quarterly performance milestones
have been achieved.
You will further receive a start-up bonus from the Company of $30,000, such
bonus to be made in four equal quarterly installments of $7,500 with the first
installment to be made on your first day of employment. However, if you cease
your employment with the Company for any reason prior to the first anniversary
of your start date, you shall repay to the Company, immediately upon your
termination date, all amounts received pursuant to the start-up bonus; and
provided, further, the Company shall be entitled to offset any amount owed to
you against amounts received pursuant to the start-up bonus. [Please note that
both bonuses will constitute income to you, and will, therefore, be subject to
withholding.]
It will further be recommended to the Board of Directors that you be granted a
stock option to purchase 208,000 shares of Common Stock under NOOSH's Equity
Incentive Plan. Your option will be subject to a four year vesting schedule,
with vesting to commence as of your start date as an employee under this
agreement. In addition, if we achieve the revenue goals for the first two
quarters of the Noosh service, it will be further recommended to the Board of
Directors that you be granted a stock option to purchase 20,000 shares of Common
Stock under NOOSH's Employee Stock Option Plan. Under the vesting schedule,
your option shares would vest at the rate of 25% upon completion of the first
year of employment, with an additional 2.0833% of such shares vesting for each
full month of continuous employment completed after the first anniversary. The
exercise price of your stock option will not be fixed until the date of grant by
the Board of Directors. We expect that the grant will occur during the two
weeks following your start date. The exercise price for your option would be
set equal to the fair market value of NOOSH's stock on the grant date.
NOOSH also offers a benefits package, including medical insurance coverage, two
weeks vacations annually, and sick leave and paid holidays as specified by
Company policy for all employees.
<PAGE>
Your employment with NOOSH is for no specified term and is "at will," and may be
terminated by you or NOOSH at any time, with or without cause or advance notice.
This letter, the Company's standard agreement relating to proprietary rights
between you and NOOSH (the "Inventions Agreement") and the form of option
agreement between you and NOOSH relating to your option grant described above
set forth the terms of your employment with the Company and supersede any prior
representations or agreements, whether written or oral. As required by law,
this offer is subject to satisfactory proof of your right to work in the United
States. This letter may not be modified or amended, except by a written
agreement, signed by the Company and you.
Dave, we believe this position will provide you with an excellent opportunity
for professional growth, as well as offering you the excitement and rewards of a
dynamic and growing company. NOOSH feels the single most important factor in
our success will be our people. We are confident that the skills and background
you bring to us will be instrumental to NOOSH's success.
Please keep a copy and return the signed original of this offer letter to me by
January 8, 1999. As we've discussed, we look forward to you joining our team
and starting on or before January 18, 1999.
Sincerely,
NOOSH, INC.
By: /s/ Ofer Ben-Shachar
---------------------
Ofer Ben-Shachar
President and CEO
I agree to and accept this offer of employment with NOOSH, Inc.
/s/ Dave Hannebrink 1/18/99
- ---------------------- --------------
Dave Hannebrink Start Date
<PAGE>
Exhibit 10.35
[LOGO]
October 7, 1999
Hagi Schwartz
745 Moreno Ave.
Palo Alto, CA 94303
Dear Hagi,
NOOSH, Inc. (the "Company") is pleased to offer you the position of Vice
President Finance and Chief Financial Officer, reporting to NOOSH's CEO. Your
starting monthly salary will be $12,916 less payroll deductions and all required
withholding.
You will also receive a sign on bonus of $65,000 to be paid within the first
month after your start date as an employee of NOOSH. Please note that the sign
on bonus provided will constitute income to you, and will, therefore, be subject
to withholding.
It will further be recommended to the Board of Directors that you be granted a
stock option to purchase 300,000 shares of Common Stock. Your option will be
subject to a four year vesting schedule, with vesting to commence as of your
start date as an employee under this agreement. Also, you will be eligible to
receive an additional 30,000 shares of common stock under NOOSH's Employee Stock
option plan to be granted one year from your hire date and an additional 30,000
shares the second year after your hire date. Eligibility to be granted these
additional options of common stock will be based on NOOSH meeting its business
plan. Under the vesting schedule, your shares under your initial option would
vest at the rate of 25% upon completion of the first year of employment, with an
additional 2.0833% of such shares vesting for each full month of continuous
employment completed after the first anniversary. The additional options are
expected to vest at the rate of 2.0833% for each full month of continuous
employment completed after the date of grant. Notwithstanding the above,
however, all of the shares subject to your options will vest automatically upon
the consummation of a sale of all or substantially all of the assets of the
Company or a merger of the Company with or into another corporation in which the
stockholders of the Company immediately before the transaction do not own,
directly or indirectly, a majority of the Company or the surviving entity
immediately following the transaction. Also, if your employment with the
Company is terminated by the Company without "cause" (as defined below) or
voluntarily, you will be deemed to have completed six (6) additional months of
continuous employment solely for the purpose of calculating the percentage of
shares subject to your options which are vested. The exercise price of your
stock options will not be fixed until the date of grant by the Board of
Directors. We expect that the grant of the initial option will occur during the
two weeks following your start date. The exercise price for your options would
be set equal to the fair market value of NOOSH's stock on the grant date.
NOOSH also offers a benefits package, including medical insurance coverage, two
weeks of vacation annually, and sick leave and paid holidays as specified by
Company policy for all employees.
Your employment with NOOSH is for no specified term and is "at will," and may be
terminated by you or NOOSH at any time, with or without cause or advance notice.
However, if the Company terminates
1.
<PAGE>
your employment without cause or voluntarily under this agreement then, during
the six (6) month period following the termination date, you will be entitled to
receive (i) continued payments on the Company's standard payroll dates at the
rate of $ 12,916 per month, net of withholding, and (ii) reimbursement of COBRA
payments required to continue your personal medical insurance coverage during
such six (6) month period. You shall not be entitled to any such benefits if
your employment is terminated by the Company for cause or by you voluntarily.
For these purposes, "cause" will be defined to mean (i) your violation of any
material provision of the Inventions Agreement (as defined below), (ii) any act
of theft or dishonesty, (iii) any immoral or illegal act which has a detrimental
effect on the business or reputation of the company or its affiliates. You agree
that the benefits stated in this paragraph shall be your sole and exclusive
remedy for any damages or injury arising out of or related to any termination of
your employment by the Company.
This offer letter, the Company's standard agreement relating to proprietary
rights between you and NOOSH (the "Inventions Agreement"), and the form of
option agreements between you and NOOSH (relating to your option grants
described above), will set forth the terms of your employment with the Company.
This letter also supersedes any prior representations or agreements, whether
written or oral. As required by law, this offer is subject to proof of your
right to work in the United States. This letter may not be modified or amended,
except by a written agreement signed by the Company and you.
Hagi, NOOSH is an exciting, dynamic, and growing company. We believe this
position will provide you with an excellent opportunity for professional growth
in a very unique culture. NOOSH feels the single most important factor in our
success will be our people. We are pleased to extend this offer to join our
company, and confident that the skills and background you bring to this position
will be instrumental to NOOSH's success.
Please review this offer letter, keep a copy of this document and return the
signed original offer letter to me by October 11, 1999. As we've discussed, we
look forward to your joining our team on or before October 21, 1999.
Sincerely,
/s/ Ofer Ben-Shachar
- ------------------------
Ofer Ben-Shachar
President and CEO
NOOSH, INC.
______________________________________________________________________
I agree to and accept this offer of employment with NOOSH, Inc.
/s/ Hagi Schwartz October 18, 1999
- ------------------------ ----------------
Hagi Schwartz Start Date
2
<PAGE>
EXHIBIT 10.36
[LOGO OF NOOSH]
January 3, 2000
Timothy J. Moore
206 Galli Drive
Los Altos, CA 94022
Dear Tim,
NOOSH, Inc. (the "Company") is pleased to offer you the position of Vice
President, Strategic Alliances, and General Counsel, reporting to Noosh's CEO.
Your starting monthly salary will be $12,500, less payroll deductions and all
required withholding. You will also be entitled to receive a bonus payment of
$25,000 as of the end of each calendar quarter during the term of your
employment, subject to the CEO's reasonable determination that you have worked
diligently during such quarter on behalf of the Company.
It will further be recommended to the Board of Directors that you be granted a
stock option to purchase 285,000 shares of Common Stock under NOOSH's Employee
Stock Option Plan. Your option will be immediately exercisable in full through
delivery of a promissory note pursuant to the option plan, and will be subject
to a four year vesting schedule, with vesting to commence as of your start date
as an employee. Under the vesting schedule, your shares under your initial
option would vest at the rate of 25% upon completion of the first year of
employment following your start date, with an additional 2.0833% of such shares
vesting for each full month of continuous employment completed after the first
anniversary. Also, you will be eligible to receive additional grants of options
under NOOSH's Employee Stock Option Plan at least annually in amounts to be
determined by the Board based on your performance. Notwithstanding the above,
however, all of the shares subject to your options will vest automatically upon
the consummation of a sale of all or substantially all of the assets of the
Company or a merger of the Company with or into another corporation in which the
stockholders of the Company immediately before the transaction do not own,
directly or indirectly, a majority of the Company or the surviving entity
immediately following the transaction. Also, if your employment with the
Company is terminated by the Company without "cause" (as defined below), (i) you
will be deemed to have completed six (6) additional months of continuous
employment solely for the purpose of calculating the percentage of shares
subject to your options which are vested and (ii) if such a termination occurs
during the first year of your employment, the shares subject to your initial
option will be deemed to vest at the rate of 2.0833% for each month of
continuous employment following your start date. The exercise price of your
stock options will not be fixed until the date of grant by the Board of
Directors. We expect that the grant of the initial option will occur promptly,
and as early as today. The exercise price for your options would be set equal
to the fair market value of NOOSH's stock on the grant date.
1.
<PAGE>
NOOSH also offers a benefits package, including medical insurance coverage, two
weeks of vacation annually, and sick leave and paid holidays as specified by
Company policy for all employees.
Your employment with NOOSH is for no specified term and is "at will," and may be
terminated by you or NOOSH at any time, with or without cause or advance notice.
However, if the Company terminates your employment without cause, then, during
the six month period following the termination date, you will be entitled to
receive (i) continued payments on the Company's standard payroll dates at the
rate of $20,833 per month, net of withholding, and (ii) reimbursement of COBRA
payments required to continue your personal medical insurance coverage during
such six month period. You shall not be entitled to any such benefits if your
employment is terminated by the Company for cause or by you voluntarily. For
these purposes, "cause" will be defined to mean (i) your violation of any
material provision of the Inventions Agreement (as defined below), (ii) any act
of theft or dishonesty or (iii) any immoral or illegal act which has a
detrimental effect on the business or reputation of the Company or its
affiliates. You agree that the benefits stated in this paragraph shall be your
sole and exclusive remedy for any damages or injury arising out of or related to
any termination of your employment by the Company.
This offer letter, the Company's standard agreement relating to proprietary
rights between you and NOOSH (the "Inventions Agreement"), and the form of
option agreements between you and NOOSH (relating to your option grants
described above), will set forth the terms of your employment with the Company.
This letter also supersedes any prior representations or agreements, whether
written or oral. As required by law, this offer is subject to satisfactory
reference check information, and proof of your right to work in the United
States. This letter may not be modified or amended, except by a written
agreement signed by the Company and you.
Tim, NOOSH is an exciting, dynamic, and growing company. We believe this
position will provide you with an excellent opportunity for professional growth
in a very unique culture. NOOSH feels the single most important factor in our
success will be our people. We are pleased to extend this offer to join our
company, and confident that the skills and background you bring to this position
will be instrumental to NOOSH'S success.
2.
<PAGE>
Please review this offer letter, keep a copy of this document and return the
signed original offer letter to me today. As we've discussed, we look forward
to your joining our team on a half-time basis as of January 17, 1999 (your
"start date") and as a full-time employee within some weeks thereafter.
Sincerely,
/s/ Ofer Ben-Shachar
- --------------------
Ofer Ben-Shachar
President and CEO
NOOSH, INC.
- ---------------------------------------------------------------
I agree to and accept this offer of employment with NOOSH, Inc.
/s/ Timothy J. Moore
- -------------------- ------------------------
Timothy J. Moore Start Date
3.
<PAGE>
EXHIBIT 10.37
[LOGO OF NOOSH]
January 4, 2000
Robert Shaw
930 North Clark Unit D
Chicago, IL 60610
Dear Robert,
NOOSH, Inc. (the "Company") is pleased to offer you the position of Senior Vice
President Sales, reporting to NOOSH's CEO. Your starting monthly salary will be
$16,666, less payroll deductions and all required withholding. You may be
eligible for a monthly salary increase after your first year of employment. In
addition, you will receive a sales commission of not less than $12,500 per month
for your continued employment from January 14, 2000 through January 14, 2003.
Your entire salary, sales commissions and any bonuses paid to you are subject to
payroll deductions and all required withholdings.
You will also receive a hire on bonus of $75,000 to be paid within the first
month after your start date as an employee of NOOSH. As part of this offer NOOSH
will also pay standard relocation expenses to include the following; movement of
household items, travel expenses associated with the relocation, selling costs
associated with the sale of your current residence, closing costs for the new
property that you purchase and six months of interim living expenses. NOOSH will
also reimburse you for all reasonable business expenses incurred by you in
accordance with the Company's policy concerning business expense reimbursement.
It will further be recommended to the Board of Directors that you be granted a
stock option (the "Option") to purchase 270,000 shares of Common Stock under
NOOSH's Employee Stock Option Plan (the "Plan"). Your option will be subject to
a four year vesting schedule, with vesting to commence as of your start date as
an employee under this agreement. Under the vesting schedule, your option shares
would vest at the rate of 25% upon completion of the fast year of employment,
with an additional 2.0833% of such shares vesting for each full month of
continuous employment completed after the first anniversary. The exercise price
of your stock option will not be fixed until the date of grant by the Board of
Directors The exercise price for your option would be set equal to the fair
market value of NOOSH's stock on the grant date.
As part of this offer, if you are terminated from NOOSH without cause before one
year of continuous employment, you will be deemed to be vested in 25% of your
option shares as of the termination date. These shares will not vest if you are
terminated for cause or voluntarily resign from NOOSH. The terms and conditions
of your stock option, including, without limitation, the date by which you must
exercise your right to purchase option shares, will be set forth in your option
agreement for the Option and the Plan.
NOOSH also offers a benefits package, including medical insurance coverage, two
weeks of vacation annually, and sick leave and paid holidays as specified by
Company policy for all employees.
1.
<PAGE>
Your employment with NOOSH is for no specified term and is "at will" and may be
terminated by you or NOOSH at any time, with or without cause or advance notice.
However, if the Company terminates your employment without cause under this
agreement, or if you choose to terminate your employment because the Company has
chosen to materially reduce your position or responsibilities (after 30 days
notice from you and the Company's opportunity to cure such martial reduction),
then, during the twelve (12) month period following the termination date, you
will be entitled to receive (i) continued payments on the Company's standard
payroll dates at the rate of $25,000 per month, less withholding, and (ii)
reimbursement of COBRA payments required to continue your personal medical
insurance coverage during such twelve (12) month period. In addition you will be
eligible for outplacement services. You shall not be entitled to any such
benefits if your employment is terminated by the Company for cause or by you
voluntarily. For these purposes, "cause" will be defined to mean (i) your
violation of any material provision of the Inventions Agreement (as defined
below) or this agreement, (ii) any act of theft or material dishonesty which is
detrimental to the best interests of the Company or (iii) any illegal act which
has a detrimental effect on the business or reputation of the company or its
affiliates. You agree that the benefits stated in this paragraph shall be your
sole and exclusive remedy for any damages or injury arising out of or related to
any termination of your employment by the Company.
This offer letter, the Company's standard agreement relating to proprietary
rights between you and NOOSH (the "Inventions Agreement"), and the Plan and
option agreement between you and NOOSH (relating to your option grant described
above), will set forth the terms of your employment with the Company. This
letter also supersedes any prior representations or agreements, whether written
or oral. As required by law, this offer is subject to proof of your right to
work in the United States. This letter may not be modified or amended, except by
a written agreement signed by the Company and you.
Robert, NOOSH is an exciting, dynamic, and growing company. We believe this
position will provide you with an excellent opportunity for professional growth
in a very unique culture. NOOSH feels the single most important factor in our
success will be our people. We are pleased to extend this offer to join our
company, and confident that the skills and background you bring to this position
will be instrumental to NOOSH's success.
Please review this offer letter, keep a copy of this document and return the
signed original offer letter to me by January 10, 2000. As we've discussed, we
look forward to your joining our team on or before January 14, 2000.
Sincerely,
s/ Ofer Ben-Shachar
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Ofer Ben-Shachar
President and CEO
NOOSH, INC.
- ----------------------------------------------------------------
I agree to and accept this offer of employment with NOOSH, Inc.
/s/ Robert Shaw 1/14/00
- --------------- -------
Robert Shaw Start Date
2.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in this Amendment No. 4 to Registration
Statement on Form S-1 of our report dated January 21, 2000 relating to the
financial statements of Noosh, Inc., which appear in such Registration
Statement. We also consent to the reference to us under the headings "Experts"
in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
San Jose, California
May 15, 2000
