SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-KSB
(Mark One)
[X] ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934.
For the fiscal year ended December 31, 1999
OR
[ ] TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934.
For the transition period from __________ to _________
Commission file number 1-13048
HEALTHY PLANET PRODUCTS, INC.
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(Name of Small Business Issuer in Its Charter)
Delaware 94-2601764
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
1700 Corporate Circle, Petaluma, California 94954
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(Address of Principal Executive Offices) (Zip Code)
(707) 778-2280
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(Issuer's Telephone Number, Including Area Code)
Securities registered under Section 12(b) of the Exchange Act:
Common Stock, $.01 par value American Stock Exchange
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(Title of Each Class) (Name of Each Exchange on Which Registered)
Securities registered under Section 12(g) of the Exchange Act:
Common Stock, $.01 par value
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(Title of Class)
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(Title of Class)
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Check whether the issuer: (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes /x/ No /_/
Check if disclosure of delinquent filers in response to Item 405 of
Regulation S-B is not contained in this form, and no disclosure will be
contained, to the best of registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-KSB
or any amendment to this Form 10-KSB. /x/
The Issuer's revenues for its most recent fiscal year ended December
31, 1999 were $3,689,600.
On March 20, 2000, the aggregate market value of the voting stock of
Healthy Planet Products, Inc. (consisting of common stock, $.01 par value (the
"Common Stock")) held by non-affiliates of the Registrant was approximately
$2,351,739 based on the closing price for such Common Stock on said date as
reported by the American Stock Exchange.
In making the foregoing calculation, the Registrant has, for
calculation purposes only, included all presently outstanding 31,335 shares of
its Series D Preferred Stock convertible into shares of Common Stock on a
share-for-share basis.
On March 20, 2000, there were 3,840,584 shares of Common Stock, $.01
par value, issued and outstanding (exclusive of 31,335 shares of voting Series D
Preferred Stock convertible into 31,335 shares of Common Stock).
DOCUMENTS INCORPORATED BY REFERENCE
None
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PART I
Item 1. Business
Incorporation
Healthy Planet Products, Inc. (hereinafter referred to as the
"Registrant" or the "Company") was originally organized under the laws of the
State of California on July 12, 1979 under the name of Carolyn Bean Publishing,
Ltd. On April 12, 1985, the Company effected a domiciliary reincorporation
pursuant to which the Company was reincorporated under the laws of the State of
Delaware, and the California corporate entity was merged into a new Delaware
corporation of the same name. On August 2, 1993, the Company changed its name to
Healthy Planet Products, Inc. The Company's executive offices and warehouse
facilities are located at 1700 Corporate Circle, Petaluma, California 94954, and
its telephone number is (707) 778-2280, fax number (707) 778-0307. The Company's
website is located at http://www.healthyplanet.com
Principal Industry in Which the Company is Engaged
The Company designs, publishes and markets, throughout the United
States and Canada, a diversified line of cause related, nature and wildlife
greeting cards, note cards, holiday cards, adoption kits, gifts and stationery.
In response to environmental considerations, the Company has associated itself
through its licensing agreements with various non-profit organizations and has,
since inception, paid over $3,000,000 in royalties to these groups to further
their efforts on behalf of the environment and its inhabitants.
All of the Company's paper products are produced on elementally
chlorine-free or recycled paper using soy-based ink. The Company publishes and
markets over 600 everyday, occasional and seasonal cards. The Company's products
are predominantly marketed through approximately 130 independent sales
representatives to over 5,800 retail sales outlets comprised of card shops,
stationery stores, gift, notion and variety shops, drug stores, book stores,
department stores and miscellaneous chain and retail sales outlets.
In December 1997, the Company acquired certain assets of Corlett
Collectibles, Inc., a privately owned company which specialized in the design,
manufacture and sale of a line of handcrafted sculptures, figurines and
collectibles of domestic and wild animals. This line, which was introduced by
the Company under the name Healthy Planet Collectibles in the first quarter of
1998, currently consists of approximately 850 animal and wildlife sculptures.
In May 1999, the Company acquired The Evergreen Group(TM) product lines
from KT Holdings, Inc., a privately held company. The primary product is a line
of endangered animal adoption kits marketed under the trademarks Friends of the
Forest(TM) and Friends of the Ocean(TM). These adoption kits are sold through
multiple channels including specialty retail and gift stores, print catalogs,
the internet, and directly to consumers via direct mail. A portion of the
proceeds of each kit sold is paid as a royalty to a conservation group that
assists in the development of the adoption kits.
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General Business Developments During Most Recent Fiscal Year
The Company made a stock rights offering to shareholders of record on
January 11, 1999. Each shareholder on the rights record date was issued two
rights for each common share owned by such shareholder. Each right entitled the
shareholder to purchase one share of the Company's Common Stock at $1.0625 per
share. Shareholders were accorded certain oversubscription rights conditioned
upon their exercising their basic rights. The rights offering expired on March
16, 1999. As a result of the rights offering, the Company issued an aggregate of
1,582,216 shares of Common Stock and received an aggregate of approximately
$1,649,230 in gross proceeds from the rights offering. The Chairman of the
Company and two companies controlled by him agreed to exercise all of their
respective basic rights resulting in their purchase of 927,000 shares of Common
Stock and, in addition, exercised over subscription rights to acquire 43,200
shares of Common Stock, resulting in their purchase of an aggregate of 970,200
shares of Common Stock.
On May 4, 1999, the Company completed the acquisition of The Evergreen
Group product lines from KT Holdings, Inc., a privately held company. The
product lines, which include adoption kits, educational games, activity kits and
gift items, are based on pro-active consumer education about the conservation of
endangered animals. These product lines are associated with, and help to
support, various conservation groups such as the Caribbean Conservation
Corporation, the Earth Island Institute, the Hornocker Wildlife Institute, the
Institute of Range and the American Mustang, the International Wildlife
Coalition, The Raptor Center and The Wolf Education and Research Center.
In August 1999, the Company entered into a license agreement with the
National Wildlife Federation ("NWF"), granting the Company the exclusive use of
NWF's name and trademarks in connection with the manufacture and worldwide
marketing and sale of photography based notecards, stationery, postcards, blank
journals and magnets. NWF is a leading conservation organization reaching 4
million people annually, including 1 million subscribers to their publications.
The NWF's mission is to inspire, educate and assist individuals to conserve
wildlife and other natural resources. NWF was started in 1936 and has grown to
be the nation's largest private, non-profit conservation education organization.
Since 1980, the Company had been the exclusive licensee of the Sierra
Club, a nationally known environmental and conservationist organization, for the
use of the Sierra Club name on a line of wilderness and wildlife cards,
journals, stationery, tablets and magnets. The Sierra Club line accounted for
approximately 44.7% of the Company's net sales for the year ended December 31,
1999 and for approximately 65.5% of the Company's net sales for the year ended
December 31, 1998. Prior to December 31, 1999, the Company notified the Sierra
Club that it had elected not to continue as a licensee of the Sierra Club
commencing in the year 2000. The Sierra Club has initiated legal action against
the Company as a result of the Company's decision not to continue as a licensee.
See "Item 3 - Legal Proceedings" for further information concerning this legal
action.
On December 8, 1999, the Company, in an effort to reduce operating
expenses, entered into an amendment to its lease to surrender approximately
34,181 square feet of its 60,512 square foot facility, resulting in a reduction
of rental expense of $234,896 on an annualized basis effective beginning June 1,
2000 (see "Item 2. Properties").
After 12 years of service, Mr. Bruce A. Wilson, President and Chief
Executive Officer of the Company, retired from participation in the day to day
operations of the Company effective, December 31, 1999. Mr. Wilson remains a
member of the Board of Directors and provides consulting services to the
Company.
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On January 6, 2000, Mr. Donald L. Beckman joined the Company as its
Vice-President of Marketing. Mr. Beckman brings with him thirty years of
experience in the social expression industry, having held various executive
positions with American Greetings. In addition, and effective January 14, 2000,
Mr. Richard M. Widney was appointed as Vice-President and General Manager of the
Company. Mr. Widney was previously President of KT Holdings and was instrumental
in the development of the adoption kit product lines.
Products
Source of Product and Arrangement with Photographers and Others
Published Product and Collectibles
While the overall concept and design of its published products are
developed by the Company in-house, it principally relies on independent,
unaffiliated photographers to create images for its product lines. Agreements
between the Company and its photographers apply to specific images submitted by
a photographer and accepted by the Company. These agreements are exclusive as to
those images, and do not normally cover all of a photographer's works. The
Company utilizes an available pool of 600-700 photographers. It additionally
receives unsolicited submissions from time to time from various photographers.
When utilizing the work of a particular photographer, the Company generally
makes a one time payment of approximately $300-$400, which entitles the Company
to utilize the particular work for three to five years without further royalty
payments. The Company's collectible line of figurines are designed and hand
sculpted by independent artists and craftsmen who generally receive a one time
fee of approximately $400 or a royalty of approximately 4%. Master molds are
designed and created in California, and final product is cast and hand painted
by a non-affiliated manufacturer located in the Far East. No single photographer
or artist (sculptor) with whom the Company has entered into a license or
purchase of rights agreement has created products which have accounted for 4% or
more of the Company's sales in any year.
License Agreements
The Company has entered into licensing agreements with the National
Wildlife Foundation, The Wilderness Society, The Marine Mammal Center, The
Zoological Society of San Diego, The Rainforest Action Network and the SEVA
Foundation, expiring at various dates through August 31, 2002. The agreements
call for royalty payments of 2% - 10% of net sales, as defined in the
agreements, subject to minimum cumulative royalties of $175,000, over the life
of these agreements. All agreements are cancelable with 30 to 60 days notice, as
defined in the agreements. Options exist to extend the terms of certain
agreements.
Manufacture of Product
The Company does not manufacture its products, nor does it have the
equipment to do so. Rather, it contracts for the physical production of its
products with independent contractors, using different suppliers at each stage
of production, so as not to rely on any one specific supplier to satisfy its
needs. The Company believes that there are ample suppliers and production
facilities available to it at competitive costs.
During the year ended December 31, 1999 the Company made 23.6%, 13.2%
and 7.3% of its purchases from three manufacturers or suppliers. Each of these
suppliers is unaffiliated with the Company. The Company does not have any short
or long term supply agreements or exclusive agreements with these suppliers. The
Company believes that the loss of any of these suppliers would not have a
material impact
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upon the Company's business, since it believes that multiple alternate suppliers
are available to the Company at competitive prices.
Marketing and Sales
The Company's products are marketed to over 5,800 retail sales outlets
which are comprised of card shops, stationery stores, gift and book stores,
notions and variety shops, drug stores, department stores, and miscellaneous and
multiple retail outlets. With the exception of Barnes & Noble Superstores, a
national chain of bookstores which accounted for approximately 17.6% of the
Company's net sales, for the year ended December 31, 1999, no other single
customer of the Company accounted for 10% or more of the Company's net sales.
In addition to its sales staff, the Company utilizes approximately 130
independent sales representatives who also represent the products of other
companies. Independent sales representatives accounted for approximately 56.4%
of Company sales for the year ended December 31, 1999 with the balance of
Company sales being generated via direct customer contact. Independent sales
representatives are paid a fixed sales commission ranging from 5% to 25% of
sales. For the year ended December 31, 1999, a total of $287,194 in commissions
were paid to the sales representatives. During this period, no single
independent sales representative accounted for more than 10% of the Company's
sales.
The Company has developed various merchandising programs, which have
been designed to provide increasing levels of benefits to its customers as
customers' commitment to the Company's product lines increase. The Company's
product line has been segmented and is targeted to specific markets. Sales
literature, point of sale advertising and catalogs/flyers explain and highlight
the Company's programs and products, and are used by sales representatives in
presentations to customers. The Company provides a range of options, from small
"promotional" displays to larger "departmental" displays.
Advertising and Sales Promotion
The Company uses various methods to promote its products. It exhibits
at certain trade and gift shows, and provides point of sale materials and a web
site presence. In addition, it produces sales materials which feature new
products and merchandising programs. One of the Company's most effective forms
of retail advertising is the visual display of its products in display space in
retail outlets. The Company believes that its cause related, nature and wildlife
card and other product lines will be the indirect beneficiary of the promotion
of each particular cause, and consumer concerns for the environment and nature
preservation.
Competition
The greeting card, social stationery and gift industry is highly
competitive. The Company only marginally competes with major traditional card
companies, such as Hallmark Cards, Inc., American Greetings Corporation,
Recycled Paper Products and Gibson Greetings, Inc. The major greeting card
companies have greater financial resources, market penetration and experience
than the Company. The Company primarily competes with the smaller alternative
card companies, several of whom have sales and resources greater than those of
the Company; i.e., Paramount and Sunrise Publications (now part of Hallmark),
among others.
The primary basis upon which the Company competes is the marketing of
its cause related products. This factor is a positive aspect to the business of
the Company so long as there continues to be public awareness, support and
identification with a particular cause or environmental issues. Conversely,
should
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a cause or organization fall out of vogue with the public, the attractiveness of
a line may diminish. The Company does not view itself as being a significant
competitive factor in the greeting card or gift industries, though the Company
does believe that growth and opportunity does present itself within the niche of
cause related and associated card and other product lines.
Employees
The Company currently has 34 full-time employees, including its four
executive officers. Of the 34 employees, 22 are in administrative, managerial,
and sales positions, and 12 are warehouse persons. In peak seasons, the Company
may employ up to 12 temporary employees for its warehouse operation. None of the
Company's employees are represented by a labor union, and the Company considers
its relationship with its employees to be good.
Trademarks and Copyrights
In most cases, the Company either owns or shares ownership of the
copyright with the photographers and artists who create products for the
Company, although there are some photographers and artists who have the
exclusive ownership of the copyright for the works published by the Company, in
which case, the right to market and exploit the product is licensed to the
Company in return for a royalty fee or one time payment for rights. To the
extent that any single product enjoys substantial consumer acceptance or demand,
the Company is dependent upon the validity of the copyright of such photograph.
The loss or invalidity of a copyright will not have a material adverse effect on
the Company since no single product, either published or distributed by the
Company, accounts for a material portion of the Company's sales.
The Company has registered HEALTHY PLANET PRODUCTS (Registered) as a
trademark in association with its environmentally cause-related product lines,
and has completed registration of the name, logo and design of HEALTHY PLANET
PRODUCTS with the United States Patent and Trademark Office and the European
Community.
The Company has also registered the "Sea Dreams", "Nature Baby",
"Healthy Planet Collectibles", "Show the World you Care", "The Evergreen Group",
"Friends of the Forest", "Friends of the Ocean" and "Friends of the
Environment", names, logos, and designs as trademarks used in connection with
its various product lines.
Item 2. Properties
The Company's offices and business facilities are located in a building
located in Petaluma, California.
On December 8, 1999, the Company entered into a lease agreement with
RNM Lakeville LP, the landlord of its existing facility, pursuant to which the
Company surrendered approximately 34,181 square feet of its approximate 60,512
square feet of leased facility. The surrender of a portion of its leased
premises was in furtherance of the Company's desire to reduce its monthly
general operating expenses. The new lease now relates to 26,472 square feet
located at 1700 Corporate Circle, Petaluma, California. The lease term extends
through April 14, 2002 and provides for a monthly base rent of $15,833 effective
beginning June 1, 2000. In addition to the base rent, the Company is to pay, as
additional rent, its share of operating expenses and real property taxes. The
Company believes that its present facilities are now adequate and suitable for
its present and anticipated future needs.
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Item 3. Legal Proceedings
In December, 1999, the Company notified the Sierra Club that it would
not be continuing its license with the Sierra Club beyond 1999. On March 14,
2000, the Sierra Club filed a summons and complaint for breach of contract in
the Superior Court of California, County of San Francisco, in support of an
application with the court seeking a provisional order of attachment against the
Company pending determination of an arbitration proceeding which the Sierra Club
is expected to commence against the Company concerning termination of the
license. The Company believes that the proceedings initiated by the Sierra Club
are without merit and intend to defend them vigorously.
Other than as set forth in the preceding paragraph, the Company is not
a party to any material pending legal proceedings, other than ordinary routine
litigation incidental to the business.
Item 4. Submission of Matters to a Vote of Security Holders
Not Applicable.
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PART II
Item 5. Market for and Dividends on the Registrant's
Common Equity and Related Stockholder Matters
A. Principal Market
The American Stock Exchange is the principal market for the Company's
Common Stock, where its shares are traded under the symbol "HPP."
B. Market Information
American Stock Exchange
The following are the high and low closing sale prices for the
Company's Common Stock for the periods indicated:
Year High Low
---- ---- ---
1999
1st Quarter 1 3/8 1/2
2nd Quarter 1 7/8 1/2
3rd Quarter 3/4 1/2
4th Quarter 5/8 5/16
Year High Low
---- ---- ---
1998
1st Quarter 3 3/4 2 7/16
2nd Quarter 2 7/16 1 5/16
3rd Quarter 1 1/2 3/4
4th Quarter 1 1/2
C. Dividends
The Company has never paid a dividend, whether cash or property, on its
shares of Common Stock and has no present expectation of doing so in the
foreseeable future.
D. Approximate Number of Equity Security Holders
The approximate number of record holders of the Company's Common Stock
as of March 20, 2000 was 115. Such number of record owners was determined from
the Company's shareholder records, and does not include beneficial owners of the
Company's Common Stock whose shares are held in the names of various security
holders, dealers and clearing agencies. The Company believes that the number of
beneficial owners of its Common Stock held by others in nominee names exceeds
1,000 in number.
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Item 6. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Special Note Regarding Forward-Looking Statements
Certain statements in this Form 10-KSB, including information set forth
under Item 6 "Management's Discussion and Analysis of Financial Condition and
Results of Operations" constitute "forward-looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995 (the "Act"). The
Company desires to avail itself of certain "safe harbor" provisions of the Act
and is therefore including this special note to enable the Company to do so.
Forward-looking statements included in this Form 10-KSB or hereafter included in
other publicly available documents filed with the Securities and Exchange
Commission, reports to the Company's stockholders and other publicly available
statements issued or released by the Company involve known and unknown risks,
uncertainties, and other factors which could cause the Company's actual results,
performance (financial or operating) or achievements to differ from the future
results, performance (financial or operating) achievements expressed or implied
by such forward looking statements. Such future results are based upon
Management's best estimates based upon current conditions and the most recent
results of operations. These include Management's forecasts for sales,
purchasing plans and programs of certain large chain buyers relating to holiday
product, net operating losses in each of the three most recent fiscal years,
general economic conditions for the Company's product lines, competition
generally and specifically relating to greeting cards having environmental,
nature or wildlife themes, the ability of the Company to sustain consumer demand
for the Company's principal card lines, the ability of the Company to
successfully market its line of handcrafted sculptures, figurines and adoption
kits, and the absence of long term supply contracts which could make production
costs unpredictable. In addition, the ability of the Company to enhance and
expand its product mix and to successfully introduce new products which will
meet with consumer acceptance may also affect future results.
Results of Operations
1999 Compared to 1998
Sales for the year ended December 31, 1999 were $3,689,600, reflecting
a slight increase of 1.5% versus the prior year level of $3,633,900. Paper
product sales declined 19.8% due primarily to a decline in card and bookmark
sales, which were down collectively by 27.7%. This was offset by increased sales
from adoption kits, Henna Kits and collectibles. Included in the 1999 year end
results was a provision for future returns of approximately $109,000. This
provision recognizes and provides for the return of unsold seasonal product from
customers who have qualified for a return privilege.
During 1999, sales of the Company's largest product line, the Sierra
Club line, accounted for 44.7% of total revenues compared to 65.5% for 1998 and
showed a year to year decline of revenues of 30.8%. A continuing decline in
holiday boxed card sales combined with a drop off of everyday card sales
resulted in the overall Sierra Club revenue decline. Sales of the Company's
other product lines sold in both 1998 and 1999, excluding Sierra Club, finished
the year even with the prior year results.
The Company reported an operating loss of $2,727,900 or $.76 per share
versus the prior year level of $2,905,500 or $1.28 per share. Gross margin
increased by $818,300 to $1,077,400 versus the prior year level of $259,100 or
by 315.8%. The gain in gross margin was offset in part by an increase in
operating expenses of $640,700. Costs associated with the acquisition of the KT
Holdings, Inc. product lines, the write-off of phased out computer equipment and
increased selling expenses contributed to the increase in operating expenses.
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Cost of sales amounted to $2,612,200 for the year ended December 31,
1999 representing 70.8% of sales. Included in this year's costs was a $300,000
write-off of collectible product molds. For the comparable prior year period,
cost of sales amounted to $3,374,800 or 92.9% of sales. Included in the prior
year's costs were costs related to a close-out sale and a provision for obsolete
inventory totaling $1,045,000. The Company's inventory reserve decreased from
$995,000 to $828,000.
Selling, shipping and marketing expenses of $1,691,100 were $131,900 or
8.5% higher than the previous year, primarily due to the hiring of additional
sales personnel to market the Company's products.
General and administrative expenses amounted to $2,114,200 reflecting
an increase of $508,800 or 31.7% versus the prior year level of $1,605,400. The
year to year increase was a result of the acquisition and addition of the KT
Holdings, Inc. product lines and the write-off of phased out computer equipment.
The Company's net loss for the year ended December 31, 1999 was
$2,741,700 or $.76 per share, reflecting an improvement over the prior year's
loss of $3,154,800 or $1.39 per share. The reduction in net loss resulted from
an improvement in gross margins, which was partially offset by increases in
operating expenses and one-time charges associated with the disposal of certain
assets acquired from KT Holdings, Inc.
Liquidity and Capital Resources
Total assets at December 31, 1999 amounted to $3,688,000, which
reflected a decrease versus the prior year level of $4,639,800 by $951,800 or
20.5%. A decline in cash and cash equivalents, accounts receivable and property
and equipment resulted in the overall decline.
At December 31, 1999, the Company's working capital was $1,433,300.
This compared to the 1998 working capital of $2,571,100 for a year to year
decline of $1,137,800. The year to year decline was due to lower cash and
marketable securities and receivables combined with higher trade payables and
accruals.
The primary source of the Company's liquidity during the past several
years has been sales of the Company's securities. In September 1997, the Company
sold Common Stock and Common Stock Purchase Warrants to an investor (and certain
of his affiliates), who has since become Chairman of the Board of the Company,
for an aggregate of $975,000. A rights offering made to the Company's
stockholders in 1999, in which the Company issued an aggregate of 1,582,216
shares of Common Stock (including 970,200 shares to the Chairman and certain of
his affiliates), resulted in the receipt by the Company of an aggregate of
approximately $1,649,230 in gross proceeds.
Net cash used by operating activities during 1999 amounted to
$1,638,200. Net loss of $2,741,700 was offset in part by $583,300 provided by
changes in non-cash items and $520,200 provided by changes in net receivables,
inventory and other assets and liabilities. Cash used by investing activities
amounted to $606,500 consisting principally of $285,000 used in the acquisition
of The Evergreen Group product lines and the balance used to purchase computer
equipment and new information systems, color separations and publishing rights.
Cash provided by financing activities consisted of $1,476,400 in cash as net
proceeds from the rights offering completed in March of 1999 and $95,600 used to
repay a note associated with the 1997 acquisition of the Collectibles product
lines.
The Company believes and anticipates that the primary source of its
liquidity and capital resources for the year 2000 will primarily be cash on hand
and cash internally generated from sales. The Company believes that such cash
will be adequate and sufficient for its operations for 2000, based on the
following factors: (i) the reduction in rent expense that will commence in June
2000, (ii) the decrease in minimum royalties that will be paid during the year,
(iii) the reduction or elimination of product lines that generate
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insufficient profit margins, (iv) the increased revenues that will be generated
by a full year of sales of the Evergreen product lines and (v) revenues expected
to be generated from the introduction during the year of new product lines, such
as regional and "versed" greeting cards. Longer term, the Company's source of
liquidity and capital resources is expected to be primarily internally generated
cash from sales and the possible exercise of existing Common Stock Purchase
Warrants, which the Company believes should be adequate for its operations for
the foreseeable future. The Company will also continue to explore the
acquisition of new product lines as a means of augmenting sales. There is no
assurance, however, that cash from sales, exercise of the Common Stock Purchase
Warrants or from any new product line which may be acquired will be sufficient
to satisfy the Company's long term cash requirements. If they do not, the
Company would seek equity and/or debt financing in order to obtain the
additional capital that would be needed. There can be no assurance, however,
that such equity or debt financing will be available to the Company if, as and
when needed or, if available, will be on terms favorable to the Company.
Effects of Inflation
The Company does not view the effects of inflation to have a material
effect upon its business. Increases in material and labor costs have been offset
by increases in the price of the Company's products and through higher
production runs which have reduced the unit cost of the Company's products.
While the Company has in the past increased its prices to its customers, it has
maintained its relative competitive price position.
Year 2000
The Company has not experienced any Year 2000 related problems. During
the year ended December 31, 1999, the Company expended approximately $224,000 to
ensure that its computers would be Year 2000 compliant.
Item 7. Financial Statements and Supplementary Data
See Index to Financial Statements attached hereto.
Item 8. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
Not Applicable.
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PART III
Item 9. Directors, Executive Officers, Promoters and Control Persons; Compliance
with Section 16(a) of the Exchange Act
The Directors and Executive Officers of the Company are as follows:
Name Age Position
- ---- --- --------
Gregory C. McPherson 41 Interim President
Donald L. Beckman 55 Vice President - Marketing
M. Scott Foster 48 Vice President - Sales
Richard M.Widney 55 Vice President and General Manager
Ricky Williams 43 Vice President - Operations
Antonio H. Santiago 43 Director of Finance, Assistant Secretary
Daniel R. Coleman 43 Director
William J. Nance 56 Treasurer, Director
Robert W. Sweitzer 55 Director
Bruce A. Wilson 48 Director
John V. Winfield 53 Chairman of the Board of Directors
Michael G. Zybala 47 Secretary, Director
The Company's Certificate of Incorporation provides for a staggered
Board of Directors. The following persons are Directors of the Company for the
classes and terms as follows:
Director Class Term Expires
- -------- ----- ------------
Bruce A. Wilson 1 2001
William J. Nance 1 2001
Michael G. Zybala 2 2000
Daniel R. Coleman 2 2000
John V. Winfield 3 2002
Robert W. Sweitzer 3 2002
All Officers serve at the discretion of the Board of Directors. None of
the Officers or Directors are related to each other. Set forth below is certain
biographical information for each Director and Officer.
Gregory C. McPherson was appointed as Interim President of the Company
effective March 23, 2000. Mr. McPherson is Executive Vice President and
Assistant Secretary of The InterGroup Corporation, where he has been employed
since 1993. Prior to joining InterGroup, Mr. McPherson was a private financial
and strategic advisor, served as Vice President in the Investment Banking and
Corporate Finance Department of Kemper Securities Group, Inc., was with
Prudential Bache Capital Funding in their Mergers and Acquisitions and Financial
Restructuring Group and was a manager at the public accounting firm of
PricewaterhouseCoopers LLP.
13
<PAGE>
Donald L. Beckman joined the Company on January 6, 2000 as its Vice
President of Marketing. Mr. Beckman was formerly employed as Vice President of
Marketing for Plusmark, a subsidiary of American Greetings Company, for the past
10 years.
M. Scott Foster joined the Company as Vice-President of Sales and
Marketing in 1993. He is currently employed by the Company on an at will basis.
Mr. Foster was formerly employed by Russ Berrie and Company from June, 1980 to
April, 1993, where he served in various positions in sales management, the most
recent of which was Regional Vice President of Sales, in which capacity Mr.
Foster served from January, 1990 through April, 1993.
Richard M. Widney joined the Company effective with the acquisition of
KT Holdings in May 1999 and was appointed as its Vice-President and General
Manager on January 14, 2000. Mr. Widney served as President of The Evergreen
Group from July 1998 until the acquisition by the Company of its adoption kits
product line in May 1999. Prior to his employment with the Evergreen Group, Mr.
Widney served, from June 1997 to April 1998, as Vice President of Marketing of
Konexx, a manufacturer and marketer of computer telephone devices. From January
1993 through May 1997, Mr. Widney served as Vice President of Marketing for
Telcom Technologies, a developer and marketer of computer based call center
management systems.
Ricky Williams joined the Company in 1985 as a systems analyst and has
served as the Company's Vice President of Operations since 1991.
Antonio H. Santiago joined the Company in 1988 and has served in
various financial capacities since that date. He was appointed as the Company's
Director of Finance on January 14, 2000.
Daniel R. Coleman was first elected as a Director of the Company on
August 29, 1996. He has, for the last five years, been a general partner in
three limited partnerships that invest in United States equity securities. He
also serves as President of Clyde Hill Research, a consulting firm to investment
managers.
William J. Nance was elected as a Class I Director in August, 1998. Mr.
Nance is Founder and has been, for the past five years, President of Century
Plaza Printers, Inc. He is a certified public accountant and private consultant.
Mr. Nance is also Treasurer and Director of The InterGroup Corporation and a
Director of Santa Fe Financial Corporation and Portsmouth Square, Inc, each of
which is a public company.
Robert W. Sweitzer, Ph.D. was elected a Class 3 Director on August 5,
1998. He has, for the last five years, been on the faculty of the Peter F.
Drucker Graduate Management Center at the Claremont Graduate School. In
addition, he has served as a consultant to business and industry in the areas of
strategic planning, marketing and franchise distribution.
Bruce A. Wilson joined the Company as Vice-President of Operations on
October 15, 1987, and has served as President of the Company, Chief Financial
and Chief Operating Officer since January 28, 1988, and as a Director since
January 28, 1988. In August, 1994, Mr. Wilson assumed the added position of
Chief Executive Officer. Mr. Wilson served as Chairman from 1987 through 1998.
Effective December 31, 1999, Mr. Wilson retired from active operations to pursue
other interests. He remains a Director of the Company.
John V. Winfield, elected Chairman of the Board on August 5, 1998, was
first elected a Class 3 Director on September 29, 1997 in connection with a
private transaction in which he and a company with which he is affiliated
purchased an aggregate of 300,000 shares of the Company's Common Stock and
300,000 Common Stock Purchase Warrants for an aggregate of $975,000. In
connection with this transaction, the Company has agreed to use its best efforts
to cause Mr. Winfield to be elected as a Director through the year 2000. Mr.
Winfield is the Chairman of the Board, President and Chief Executive Officer of
the InterGroup Corporation, having first been appointed as such in 1987.
InterGroup is a public company traded on the NASDAQ Stock Market (INTG). Mr.
Winfield also presently serves as Chairman and Chief
14
<PAGE>
Executive Officer of Santa Fe Financial Corporation (SFEF) and Portsmouth
Square, Inc. (PRSI), and Chairman of Etz Lavud Limited (ETZ), all public
companies.
Michael G. Zybala, Esq. was elected as a Class 2 Director in June 1998.
Since 1993, Mr. Zybala has been General Counsel for Santa Fe Financial
Corporation and Portsmouth Square, Inc. He has also served as Vice President and
Secretary of those entities since February 1998. Mr. Zybala also serves as Vice
President of Operations of The InterGroup Corporation having been appointed to
that position in January 1999.
Certain Reports; Compliance with Section 16(a) of the Exchange Act
No person who, during the fiscal year ended December 31, 1999, was a
Director, Officer or beneficial owner of more than ten percent of the Company's
Common Stock (which is the only class of securities of the Company registered
under Section 12 of the Securities Exchange Act of 1934 (the "Act") (a
"Reporting Person"), failed to file on a timely basis, reports required by
Section 16 of the Act during the most recent fiscal year or prior years. The
foregoing is based solely upon a review by the Company of Forms 3 and 4 during
the most recent fiscal year as furnished to the Company under Rule 16a-3(d)
under the Act, and Forms 5 and amendments thereto furnished to the Company with
respect to its most recent fiscal year, and any representation received by the
Company from any reporting person that no Form 5 is required.
Item 10. Executive Compensation
Summary Compensation
The following provides certain information concerning all Plan and
Non-Plan (as defined in Item 402 (a)(ii) of Regulation S-B) compensation awarded
to, earned by, paid or accrued by the Company during the years ended December
31, 1999, 1998 and 1997, to the Chief Executive Officer and each other person
who was an executive officer of the Company in the year ended December 31, 1999
(collectively, the "Named Executive Officers"):
15
<PAGE>
<TABLE>
SUMMARY COMPENSATION TABLE
<CAPTION>
Annual Compensation Long Term Compensation Awards
-------------------------- --------------------------------
No. of Securities
Restricted Underlying
Other Annual Stock Options/SARs
Name and Principal Position Year Salary Bonus Comp. Award(s) Granted
- --------------------------- ---- ------ ----- ----- -------- -------
<S> <C> <C> <C> <C> <C> <C>
Bruce A. Wilson (1) 1999 $150,000 $ -- $ 16,566(2) $ 1,500(3) --
President, Chief Executive, 1998 $150,000 $ -- $ 17,676(2) $ 2,750(3) --
Chief Operating and 1997 $150,000 -- $ 23,526(2) $ 14,500(3) --
Chief Financial Officer
Ricky Williams 1999 $ 90,000 $ -- $ 9,805(4) -- --
Vice President of 1998 $ 90,000 -- $ 9,738(4) -- --
Operations 1997 $ 90,000 -- $ 9,670(4) -- --
M. Scott Foster 1999 $100,000 $ 15,626 $ 24,825(5) -- --
Vice-President of 1998 $100,000 -- $ 24,825(5) -- --
Sales and Marketing 1997 $100,000 -- $ 24,825(5) -- --
<FN>
(1) Mr. Wilson commenced serving as Chief Executive Officer in August, 1994 and
continued to serve in such capacity through his resignation effective
December 31, 1999.
(2) Includes: (i) for 1999, an automobile allowance of $12,000, the payment of
premiums on a term life and disability insurance policy of $4,566 and the
payment of taxes on 4,000 shares of restricted Common Stock which vested on
December 31, 1999 of $1,500 ; (ii) for 1998, an automobile allowance of
$12,000, the payment of premiums on a term life insurance policy of $4,026
and the payment of taxes on 4,000 shares of restricted Common Stock which
vested on December 31, 1998 of $1,650; and (iii) for 1997, an automobile
allowance of $12,000, the payment of premiums on a term life insurance
policy of $2,826 and the payment of taxes on 4,000 shares of restricted
Common Stock which vested on December 31, 1997 of $8,700.
(3) In April, 1991, Mr. Wilson was granted 60,000 restricted shares vesting at
the rate of 4,000 shares per year on December 31 of each year, over a 15
year period subject to certain accelerations. As of December 31, 1999, an
aggregate of 36,000 shares have vested. The remaining 24,000 restricted
shares became forfeited effective upon Mr. Wilson's resignation. Amounts
reported under this column represent the fair market value, without giving
effect to the diminution in value attributable to the restriction of such
stock, of 4,000 shares of the Company's Common Stock which have vested each
year, as valued on December 31 of each year. See "Other Annual
Compensation", with respect to the cash payment for taxes attributable to
these shares. As of December 31, 1999, the aggregate restricted stock
holdings of Mr. Wilson consisted of 28,000 shares valued at $17,500, the
market value of these shares as of December 31, 1999, without giving effect
to the diminution in value attributable to the restriction of such stock.
(4) Includes: (i) for 1999, an automobile allowance of $9,000 and the payment
of premiums on a term life insurance policy of $805; (ii) for 1998, an
automobile allowance of $9,000 and the payment of premiums on a term life
insurance policy of $738; and (iii) for 1997, an automobile allowance of
$9,000 and the payment of premiums on a term life insurance policy of $670.
(5) Mr. Foster has served as Vice-President of Sales since 1993. He is
currently employed by the Company on an at will basis. The information set
forth above includes: (i) for 1999, an expense allowance of $24,000, the
payment of a bonus based on sales of $15,626 and the payment of premiums on
a term life insurance policy of $825; (ii) for 1998, an expense allowance
of $24,000 and the payment of premiums on a term life insurance policy of
$825; and (iii) for 1997, an expense allowance of $24,000 and the payment
of premiums on a term life insurance policy of $825.
</FN>
</TABLE>
STOCK OPTIONS/SAR GRANTS
No stock option grants or Stock Appreciation Rights ("SARs") were made
during the year ended December 31, 1999 to any of the Named Executive Officers
of the Company.
16
<PAGE>
AGGREGATED OPTION/SAR EXERCISES IN LAST FISCAL YEAR
AND FISCAL YEAR END OPTION/SAR VALUES
<TABLE>
The following table contains information with respect to the Named
Executive Officers concerning options held as of the year ended December
31,1999.
<CAPTION>
Number of Securities
Underlying Unexercised Value of Unexercised
Options/SARs as of In-the-Money Options/SARs
December 31, 1999 at December 31, 1999(1)
Shares Acquired Value ------------------------- -----------------------------
Name on Exercise (#) Realized ($) Exercisable/Unexercisable Exercisable/Unexercisable
---- --------------- ------------ ------------------------- -------------------------
<S> <C> <C> <C> <C>
Bruce A. Wilson -- $ - 102,500 (2) / -- $ -- / --
Ricky Williams -- $ - 55,000 / -- $ -- / --
M. Scott Foster -- $ - 102,500 (2) / -- $ -- / --
<FN>
(1) Based upon the average closing bid and asked prices of the Company's Common
Stock on December 31, 1999 ($.625 per share), less the exercise price for
the aggregate number of shares subject to the options, none of the
Options/SARs are in-the-money.
(2) These options expired on December 31, 1999 without being exercised.
</FN>
</TABLE>
Employment Agreements
Effective December 31, 1999, the employment agreement between Mr. Bruce
A. Wilson and the Company entered into in 1995 expired according to its terms.
Mr. Wilson had been employed as the Company's President, Chief Executive, Chief
Operating and Chief Financial Officer. At the expiration of the term of his
employment agreement, and after 12 years of service with the Company, Mr. Wilson
withdrew from active day to day operations of the Company, though he continues
to serve as a member of the Company's Board of Directors. Upon the expiration of
his employment agreement, Mr. Wilson was granted a severance package consisting
of $30,000 in severance compensation paid in six monthly installments, a $15,000
payment for reasonable executive search fees, and the continuation of existing
health and life insurance through June 30, 2000.
On September 8, 1997, the Company extended and modified the Employment
Agreement of Mr. Ricky Williams, Vice President of Operations. Mr. Williams'
Employment Agreement was extended through December 31, 2000. During the extended
term, Mr. Williams' base salary of $90,000 is increased by $5,000 in each year
of the extended term provided that the Company has achieved a net pre-tax profit
for the immediately preceding year. Mr. Williams is entitled to elect to receive
up to 10% of each year's base salary in January in each year, with the remainder
being paid to him over the course of the year pursuant to the Company's regular
payroll policies. During the continuation of his employment, Mr. Williams is to
receive an automobile allowance of $750 per month and is to be provided with
life insurance in the amount of $250,000. In connection with his original
Employment Agreement, Mr. Williams was granted options to purchase 30,000 shares
of the Company's Common Stock at an exercise price of $4.75 per share. All of
such options are vested and are exercisable through December 31, 2000. On
November 4, 1993, Mr. Williams was granted options to purchase 30,000 shares of
the Company's Common Stock at an exercise price of $6.625 per share, exercisable
through December 31, 2000, and vesting in equal increments on December 31st of
each year of the term of his Agreement, as extended, commencing December 31,
1994.
17
<PAGE>
1999 Incentive Compensation Plan
The Company's 1999 Incentive Compensation Plan (sometimes referred to
as the "Plan" or the "1999 Incentive Plan"), as adopted by the shareholders of
the Company at the Company's 1999 Annual Meeting of Shareholders, provides for
the issuance of up to 400,000 shares of the Company's Common Stock in connection
with the issuance of stock options and other stock purchase rights to executive
officers, key employees, consultants and directors of the Company. The Plan is
administered by the Stock Option Committee of the Board of Directors (the
"Committee").
The 1999 Incentive Plan provides several types of awards: stock
options, stock appreciation rights (including limited stock appreciation
rights), restricted stock, restricted stock units, bonus stock and awards in
lieu of obligations, dividend equivalents, annual incentive and performance
awards, and other stock-based awards. During the year ended December 31, 1999,
the only awards granted under the Plan were stock options. For a more detailed
description of the Plan, see the Company's proxy statement dated June 8, 1999
relating to the Company's 1999 Annual Meeting of Shareholders.
It is the intent of the Company that the grant of any awards to or
other transaction by a holder who is subject to Section 16 of the Exchange Act
shall be exempt from Section 16 pursuant to an applicable exemption (except for
transactions acknowledged in writing to be non-exempt by such holder).
Accordingly, if any provision of the 1999 Incentive Plan or any award agreement
does not comply with the requirements of Rule 16b-3 as then applicable to any
such transaction, such provision shall be construed or deemed amended to the
extent necessary to conform to the applicable requirements of Rule 16b-3 so that
such holder shall avoid liability under Section 16(b).
No award or other right or interest granted under the 1999 Incentive
Plan shall be pledged, hypothecated or otherwise encumbered or subject to any
lien, obligation or liability of the holder thereof to any party (other than the
Company or a subsidiary), or assigned or transferred by such holder otherwise
than by will or the laws of descent and distribution or to a beneficiary upon
the death of a holder, and such awards or rights that may be exercisable shall
be exercised during the lifetime of the holder only by the holder or his or her
guardian or legal representative, except that awards and other rights (other
than ISOs and SARs in tandem therewith) may be transferred to one or more
beneficiaries or other transferees during the lifetime of the holder, and may be
exercised by such transferees, in accordance with the terms of such award, but
only if and to the extent such transfers are permitted by the Committee pursuant
to the express terms of an award agreement (subject to any terms and conditions
which the Committee may impose thereon). A beneficiary, transferee, or other
person claiming any right sunder the 1999 Incentive Plan from or through any
holder shall be subject to all terms and conditions of the 1999 Incentive Plan
and any award agreement applicable to such holder, except as otherwise
determined by the Committee, and to any additional terms and conditions deemed
necessary or appropriate by the Committee.
18
<PAGE>
Automatic Option Grants to Non-Employee Directors. The 1999 Incentive
Plan provides for the automatic grant of options to non-employee directors on
the last trading day of July of each year. The Plan provides that each
non-employee director will automatically be granted an option to purchase 5,000
shares of the Company's Common Stock each year. The exercise price for options
granted shall be 100% of the fair market value of the Common Stock on the date
of grant. The term of each option is ten (10) years from the date of grant or
three months following the date that a participant ceases to serve as a director
and each option vests in three annual increments commencing one year after the
date of grant. Pursuant to this automatic grant provision, options for an
aggregate of 25,000 shares were granted on July 31, 1999 to five directors, each
at an exercise price of $.625 per share.
Employee 401(k) Plan
The Company established a 401(k) Profit Sharing Plan and Trust through
the adoption of the Dun & Bradstreet Pension Services, Inc. Non-Standardized
401(k) Profit Sharing Plan and Trust (the "Plan"). The Plan is effective January
1, 1996 and covers all employees of the Company. Each present employee or new
hire is eligible to participate in the Plan after one year of service. Each
eligible employee may elect to voluntarily contribute out of his or her
compensation amount ranging from 1% to 15% of compensation. The Company, though
not required, may elect to make a matching contribution equal to a discretionary
percentage, to be determined by the Company, of the employees' salary
contributions. Vesting of a participant's interest in the Plan is in accordance
with a schedule of vesting ranging from 20% after two years of service to 100%
after six years of service.
Item 11. Security Ownership of Certain
Beneficial Owners and Management
<TABLE>
The following table sets forth certain information as of March 20, 2000
with respect to the ownership of Common Stock by (i) the persons (including any
"group" as that term is used in Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended), known by the Company to be the beneficial owner of more
than five percent of any class of the Company's voting securities, (ii) each
Director and each Named Executive Officer identified in the Summary Compensation
Table, and (iii) Directors and Executive Officers as a group:
<CAPTION>
Amount and Nature
Beneficial Ownership
And Percentage
----------------------------------------------
Name and Address of Number of
Beneficial Owner Shares Percentage
----------------------------------------------- ----------------- ----------------
<S> <C> <C>
John V. Winfield............................ 2,190,145 (1) 48.3%
820 Moraga Drive
Los Angeles, CA 90049
The InterGroup Corporation.................. 1,235,024 (2) 29.3%
820 Moraga Drive
Los Angeles, CA 90049
Grace & White Inc........................... 238,700 (3) 6.2%
515 Madison Avenue
New York, NY 10022
Linda Jesselson ............................ 273,106 (3) 7.1%
450 Park Avenue
New York, NY 10022
19
<PAGE>
Amount and Nature
Beneficial Ownership
And Percentage
----------------------------------------------
Name and Address of Number of
Beneficial Owner Shares Percentage
----------------------------------------------- ----------------- ----------------
Phyllis Jesselson .......................... 273,106 (4) 7.1%
450 Park Avenue
New York, NY 10022
Paul Bluhdorn............................... 181,256 (5) 4.7%
P.O. Box 7854
Burbank, CA 91510
Yvette Bluhdorn............................. 71,738 (6) 1.9%
P.O. Box 7854
Burbank, CA 91510
Mark S. Siegel.............................. 70,062 (7) 1.8%
P.O. Box 7854
Burbank, CA 91510
M. Scott Foster............................. - -
1700 Corporate Circle
Petaluma, CA 94954
Ricky Williams.............................. 55,000 (8) 1.4%
1700 Corporate Circle
Petaluma, CA 94954
Bruce A. Wilson............................. 28,100 *
2401 Marilyn Circle
Petaluma, CA 94952
Daniel R. Coleman........................... 20,000 (9) *
500 108th Avenue, NE
Bellevue, WA 98004
Michael G. Zybala........................... 10,000 (10) *
11315 Rancho Bernardo Road,
Suite 129
San Diego, CA 92127
William J. Nance............................ 10,000 (10) *
ABC Entertainment Center
2040 Avenue of the Stars
Los Angeles, CA 90067
Robert W. Sweitzer, Ph.D.................... 10,000 (10) *
The Claremont Graduate School
925 N. Dartmouth Avenue
Claremont, CA 91711
All Directors and Executive Officers as a
Group (8 persons in number)................. 2,323,245 (11) 50.1%
<FN>
* Less than one percent (1%)
(1) Based upon information contained in a Form 4 for December 1999 (the
"Winfield Form 4"), on behalf of Mr. Winfield, the InterGroup Corporation
("InterGroup") and Santa Fe Financial Corporation ("Santa Fe"), and
corporate records of the Company. Includes (i) 540,100 shares of Common
Stock and warrants to purchase
20
<PAGE>
304,972 shares of Common Stock owned by Mr. Winfield; (ii) 871,800 shares
of Common Stock and warrants to purchase 363,224 shares of Common Stock
owned by InterGroup and as to which Mr. Winfield has shared voting and
dispositive power; (iii) 89,100 shares of Common Stock and warrants to
purchase 10,949 shares of Common Stock owned by Santa Fe and as to which
Mr. Winfield has shared voting and dispositive power; and (iv) options to
purchase 15,000 shares of Common Stock granted to Mr. Winfield pursuant to
the Company's Non-Employee Director Plan. As of December 13, 1999, Mr.
Winfield owned 49.5% of InterGroup, per a proxy statement of InterGroup
dated December 16, 1999. As of December 31, 1999, InterGroup controlled
53.2% of Santa Fe. Mr. Winfield is the Chairman and CEO of both Santa Fe
and InterGroup.
(2) Based upon information contained in the Winfield Form 4 and corporate
records of the Company. Includes (i) 871,800 shares of Common Stock and
363,224 warrants owned by InterGroup and (ii) 89,100 shares of Common Stock
and 10,949 warrants owned by Santa Fe.
(3) Based upon information contained in an amendment to a Schedule 13G dated
February 9, 1999, filed on behalf of Grace & White Inc. ("Grace").
According to the amended Schedule 13G, Grace is a registered investment
advisor with voting power and sole dispositive power over 12,900 and
238,700 shares, respectively.
(4) Based upon information contained in an amendment to a Schedule 13G dated
December 22, 1999 filed by Linda Jesselson, Phyllis Henderson and certain
other persons, all of whom disclaim that they are acting as a group. The
number of shares set forth above does not include an additional 2,500
shares owned by the other reporting persons in such Schedule 13G.
(5) Based on information contained in an amendment to a Schedule 13D dated
January 27, 1993 (the "Bluhdorn 13D"), filed on behalf of Paul Bluhdorn,
Yvette Bluhdorn and Mark Siegel. It includes 31,250 shares of the Company's
Common Stock owned by Mr. Bluhdorn, and 150,006 shares of Common Stock
issued in February, 1998 upon conversion of 150,006 shares of series D
preferred stock owned by Mr. Bluhdorn. It does not include shares of Common
Stock owned by Ms. Bluhdorn or Mr. Siegel, as to which shares of Common
Stock Mr. Bluhdorn disclaims beneficial ownership.
(6) Based on information contained in the Bluhdorn 13D and corporate records of
the Company. Does not include shares of Common Stock owned by Mr. Bluhdorn
and Mr. Siegel as to which shares of Common Stock Ms. Bluhdorn disclaims
beneficial ownership.
(7) Based on information contained in the Bluhdorn 13D and corporate records of
the Company.
(8) Includes 55,000 vested and presently exercisable options.
(9) Includes 20,000 vested and presently exercisable options.
(10) Includes 10,000 vested and presently exercisable options.
(11) Includes an aggregate of 799,145 shares subject to warrants and presently
exercisable options.
</FN>
</TABLE>
Item 12. Certain Relationships and Related Transactions
For information concerning the employment agreements of Bruce A.
Wilson, Ricky Williams and M. Scott Foster, see Item 10 "Executive
Compensation".
For information concerning the issuance of 60,000 restricted shares to
Mr. Bruce A. Wilson and the reversion to the Company of 24,000 shares, see Item
10 "Executive Compensation".
On September 29, 1997, the Company completed a transaction with John
Winfield and InterGroup Corporation ("InterGroup"), an affiliate of Mr.
Winfield. Pursuant to the transaction, the Company sold 150,000 shares of its
Common Stock to Mr. Winfield for an aggregate of $487,500 and
21
<PAGE>
sold 150,000 shares of its Common Stock to InterGroup for an aggregate of
$487,500. As part of the transaction, Mr. Winfield and InterGroup were each
issued warrants to purchase 150,000 shares each of the Company's Common Stock,
of which one-third of such warrants are exercisable at $4.00 per share,
one-third at $4.25 per share, and one-third at $4.50 per share, subject to
adjustment under certain circumstances. The warrants are exercisable commencing
September 29, 1997 and may be exercised through September 29, 2002. Mr. Winfield
and InterGroup were each accorded certain demand and piggyback registration
rights. In connection with the transaction, Mr. Winfield was elected a Class 3
Director and the Company agreed to use its best efforts to cause Mr. Winfield to
be elected as a Director through September 29, 2000. As of August 5, 1998, Mr.
Winfield has served as the Chairman of the Board of Directors of the Company.
On March 16, 1999, the Company completed a rights offering which
commenced on February 22, 1999. Mr. Winfield, InterGroup and Santa Fe Financial
Corporation ("Santa Fe"), a subsidiary of InterGroup, agreed to exercise all of
their respective basic rights in the rights offering. In exchange for this
commitment, the Company issued to Mr. Winfield, InterGroup and Santa Fe
additional warrants to purchase an aggregate of 250,000 shares of Common Stock
at an exercise price of $1.1875 per share, distributed pro rata according to
their ownership percentage before the rights offering, as follows: 90,399 to Mr.
Winfield, 148,652 to InterGroup and 10,949 to Santa Fe. The warrants are
exercisable commencing February 22, 1999 and may be exercised through February
22, 2004. Mr. Winfield, InterGroup and Santa Fe were each accorded certain
demand and piggyback registration rights. The Company did not offer warrants to
any other stockholders in connection with the rights offering.
In connection with the acquisition of the The Evergreen Group product
lines from KT Holdings, Inc. in May 1999, the Company issued to the seller, as
part of the purchase price, five year warrants to purchase an aggregate of
292,260 shares, one half of which are exercisable at $2.00 per share and the
remaining one half of which are exercisable at $2.50 per share. Richard M.
Widney, who was appointed as Vice President and General Manager of the Company
in January 2000, was a shareholder of KT Holdings. Prior to Mr. Widney's
appointment as an officer of the Company, KT Holdings assigned to Mr. Widney
warrants to purchase 14,613 shares at the $2.00 exercise price and 14,613 shares
at the $2.50 exercise price.
Item 13. Exhibits, List and Reports on Form 8-K
(A) 1. Financial Statements
See Index to Financial Statements Attached hereto.
2. Financial Statement Schedules
See Index to Financial Statements attached hereto.
3. Exhibits:
Incorporated by reference to the Exhibit Index at the end of this
Report.
(B) Reports on Form 8-K
During the last quarter of the period covered by this Report, the
following report on Form 8-K was filed by the Registrant:
22
<PAGE>
Date of Filing: December 6, 1999
Item Reported: Item 5 (reporting resignation of Company's President
and Chief Executive Officer)
23
<PAGE>
SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, the
Registrant caused this Report to be signed on its behalf by the undersigned,
thereunto duly authorized.
HEALTHY PLANET PRODUCTS, INC.
By: /s/ Gregory C. McPherson
-----------------------------------
Gregory C. McPherson
Interim President
(principal executive officer)
By: /s/ Antonio H. Santiago
-----------------------------------
Antonio H. Santiago
Director of Finance
(principal financial and accounting officer)
Dated: March 29, 2000
In accordance with the Exchange Act, this Report has been signed below
by the following persons on behalf of the Registrant and in the capacities and
on the dates indicated.
/s/ Bruce A. Wilson March 29, 2000
- -------------------------------
Bruce A. Wilson
Director
/s/ John Winfield March 29, 2000
- -------------------------------
John Winfield
Director
/s/ Daniel Coleman March 29, 2000
- -------------------------------
Daniel Coleman
Director
/s/ William J. Nance March 29, 2000
- -------------------------------
William J. Nance
Director
/s/ Robert W. Sweitzer March 29, 2000
- -------------------------------
Robert W. Sweitzer
Director
/s/ Michael G. Zybala March 29, 2000
- -------------------------------
Michael G. Zybala
Director
24
<PAGE>
EXHIBIT INDEX
The exhibits designated with an asterisk (*) have previously been filed
with the Commission and, pursuant to 17 C.F.R. Secs. 201.24 and 240.12b-32, are
incorporated by reference to the document referenced in brackets following the
descriptions of such exhibits.
Exhibit
No. Description
- --- -----------
2.1* Certificate of Merger of Carolyn Bean Publishing, Ltd. (California) and
Carolyn Bean Publishing, Ltd. (Delaware) [Exhibit 2.l to Registration
Statement on Form S-18, File No. 2-97768]
3.l* Amended and Restated Certificate of Incorporation of Registrant [Exhibit
3 to Quarterly Report on Form 10-Q for the quarterly period ended June
30, 1990]
3.2* Certificate of Amendment of Certificate of Incorporation filed on August
2, 1993 effecting change in Registrant's name to Healthy Planet
Products, Inc. [Exhibit 3.2 to Annual Report on Form 10-KSB for the year
ended December 31, 1993]
3.3* By-Laws [Exhibit 3.2 to Registration Statement on Form S-18, File No.
2-97768]
4.l* Form of Common Stock Certificate [Exhibit 4 to Quarterly Report on Form
10-Q for the quarterly period ended June 30, 1990]
4.3* Form of Rights, Designation and Preferences of Series D Preferred Stock
[Exhibit 4 to Current Report on Form 8-K dated January 8, 1993]
10.1* Extension and Modification Agreement dated September 10, 1993 extending
Employment Agreement of Ricky Williams [Exhibit 10.1 to Current Report
on Form 8-K dated September 24, 1993]
10.2* License Agreement between Registrant and Sierra Club dated December 30,
1994 [Exhibit 10.1 to Current Report on Form 8-K dated January 24, 1995]
10.3* License Agreement between Registrant and The Wilderness Society dated
June 24, 1994 [Exhibit 10.1 to Current Report on Form 8-K dated July 1,
1994]
10.4* License Agreement between Registrant and The Marine Mammal Center dated
July 28, 1994 [Exhibit 10.10 to Form 10-KSB for year ended December 31,
1995]
10.5* Lease for premises 1694-1736 Corporate Circle, Petaluma, California
94954 [Exhibit 10.1 to Current Report on Form 8-K dated February 15,
1996]
10.6* License Agreement between Registrant and Twin Oaks Publishing Limited
dated December 18, 1995 [Exhibit 10.1 to Current Report on Form 8-K
dated December 18, 1995]
10.7* License Agreement with the Zoological Society of San Diego dated
September 30, 1996 [Exhibit 10.1 to Current Report on Form 8-K dated
November 5, 1996]
10.8 Lease dated December 8, 1999 between the Registrant, as lessee, and RNM
Lakeville, L.P., as lessor
11 Computation of Earnings per Common Share
<PAGE>
23.1 Consent of Moss Adams, Independent Auditors, to the incorporation by
reference in the Registration Statement of Healthy Planet Products, Inc.
on Form S-8 (File No. 33-84740) of their report dated February 10, 2000
27 Financial Data Schedule
28.l* Registrant's 1999 Incentive Compensation Plan [Appendix A to Definitive
Proxy Statement dated June 8, 1999]
<PAGE>
================================================================================
HEALTHY PLANET PRODUCTS, INC.
INDEPENDENT AUDITOR'S REPORT
AND
FINANCIAL STATEMENTS
DECEMBER 31, 1999
================================================================================
<PAGE>
================================================================================
CONTENTS
PAGE
INDEPENDENT AUDITOR'S REPORT ..................................... F-1
FINANCIAL STATEMENTS
Balance sheet - December 31, 1999 ........................... F-2
Statements of Operations -
Years Ended December 31, 1999 and 1998 .................. F-3
Statements of Shareholders' Equity -
Years Ended December 31, 1999 and 1998 .................. F-4
Statements of Cash Flows -
Years Ended December 31, 1999 and 1998 .................. F-5
Notes to Financial Statements ............................... F-6
================================================================================
<PAGE>
INDEPENDENT AUDITOR'S REPORT
To the Board of Directors
Healthy Planet Products, Inc.
We have audited the accompanying balance sheet of Healthy Planet Products, Inc.,
as of December 31, 1999, and the related statements of operations, shareholders'
equity and cash flows for each of the two years in the period ended December 31,
1999. 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 in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Healthy Planet Products, Inc.,
as of December 31, 1999, and the results of its operations and its cash flows
for each of the two years in the period ended December 31, 1999, in conformity
with generally accepted accounting principles.
/s/ Moss Adams LLP
Santa Rosa, California
February 10, 2000, except for Note 18,
which is as of March 14, 2000
Page F-1
<PAGE>
<TABLE>
HEALTHY PLANET PRODUCTS, INC.
<CAPTION>
BALANCE SHEET
December 31, 1999
- ------------------------------------------------------------------------------------------------------------------------------------
ASSETS
<S> <C>
CURRENT ASSETS
Cash and cash equivalents $ 1,298,700
Accounts receivable 543,300
Inventories 520,500
Prepaid expenses 119,000
------------
Total current assets 2,481,500
------------
PROPERTY AND EQUIPMENT 538,700
------------
OTHER ASSETS
Deferred income taxes 450,700
Customer list 89,500
Publishing rights 88,500
Other 39,100
------------
667,800
------------
Total assets $ 3,688,000
============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Accounts payable $ 517,400
Royalties payable 63,400
Commissions payable 34,300
Series B preferred stock redemption and dividends payable 161,500
Accrued wages, bonuses and payroll taxes 164,600
Accrued liabilities 107,000
------------
Total current liabilities 1,048,200
------------
SHAREHOLDERS' EQUITY
Common stock, $.01 par value, 12,000,000 shares
authorized; 3,840,584 shares issued and outstanding 38,400
Series D preferred stock, $.10 par value, with aggregate
liquidation preference of $160,100; 371,009
shares authorized; 31,335 shares issued and outstanding 3,100
Additional paid-in capital 14,670,200
Accumulated deficit (12,071,900)
------------
Total shareholders' equity 2,639,800
------------
Total liabilities and shareholders' equity $ 3,688,000
============
<FN>
The accompanying notes are an integral part of these financial statements.
- ------------------------------------------------------------------------------------------------------------------------------------
Page F-2
</FN>
</TABLE>
<PAGE>
HEALTHY PLANET PRODUCTS, INC.
STATEMENTS OF OPERATIONS
Years Ended December 31, 1999 and 1998
- --------------------------------------------------------------------------------
1999 1998
----------- -----------
NET SALES $ 3,689,600 $ 3,633,900
COST OF GOODS SOLD 2,612,200 3,374,800
----------- -----------
GROSS PROFIT 1,077,400 259,100
----------- -----------
OPERATING EXPENSES
Selling, shipping and marketing 1,691,100 1,559,200
General and administrative 2,114,200 1,605,400
----------- -----------
3,805,300 3,164,600
----------- -----------
OPERATING LOSS (2,727,900) (2,905,500)
----------- -----------
OTHER INCOME (EXPENSE)
Interest income 91,400 130,400
Other income 55,100 135,400
Interest expense (4,200) (14,300)
Loss on disposal of assets (155,300) --
----------- -----------
(13,000) 251,500
----------- -----------
LOSS BEFORE INCOME TAXES (2,740,900) (2,654,000)
PROVISION FOR INCOME TAXES 800 500,800
----------- -----------
NET LOSS $(2,741,700) $(3,154,800)
=========== ===========
LOSS PER COMMON SHARE $ (0.76) $ (1.39)
=========== ===========
LOSS PER COMMON SHARE-ASSUMING DILUTION $ (0.76) $ (1.39)
=========== ===========
The accompanying notes are an integral part of these financial statements.
- --------------------------------------------------------------------------------
Page F-3
<PAGE>
<TABLE>
HEALTHY PLANET PRODUCTS, INC.
STATEMENTS OF SHAREHOLDERS' EQUITY
Years Ended December 31, 1999 and 1998
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
SERIES D
----------------------------
COMMON STOCK PREFERRED STOCK ADDITIONAL
---------------------------- ---------------------------- PAID-IN ACCUMULATED
SHARES AMOUNT SHARES AMOUNT CAPITAL DEFICIT
------------ ------------ ------------ ------------ ------------ ------------
<S> <C> <C> <C> <C> <C> <C>
Balance, December 31, 1997 2,132,362 $ 21,300 181,341 $ 18,100 $ 13,127,100 $ (6,164,900)
Net loss for the year ended
December 31, 1998 -- -- -- -- -- (3,154,800)
Net unrealized gain on marketable
securities -- -- -- -- -- (10,500)
Conversion of Series D preferred
stock to common stock 150,006 1,500 (150,006) (15,000) 13,500 --
Vesting of 4,000 restricted shares
of common stock -- -- -- -- 22,400 --
------------ ------------ ------------ ------------ ------------ ------------
Balance, December 31, 1998 2,282,368 22,800 31,335 3,100 13,163,000 (9,330,200)
Net loss for the year ended
December 31, 1999 -- -- -- -- -- (2,741,700)
Stock rights offering, net of
issuance costs of $189,100 1,582,216 15,800 -- -- 1,460,600 --
Stock warrants issued as part
of asset purchase -- -- -- -- 23,900 --
Vesting of 4,000 restricted shares
of common stock -- -- -- -- 22,500 --
Surrender of restricted shares
of common stock (24,000) (200) -- -- 200 --
------------ ------------ ------------ ------------ ------------ ------------
Balance, December 31, 1999 3,840,584 $ 38,400 31,335 $ 3,100 $ 14,670,200 $(12,071,900)
============ ============ ============ ============ ============ ============
<FN>
The accompanying notes are an integral part of these financial statements.
- ------------------------------------------------------------------------------------------------------------------------------------
Page F-4
</FN>
</TABLE>
<PAGE>
<TABLE>
HEALTHY PLANET PRODUCTS, INC.
STATEMENTS OF CASH FLOWS
Years Ended December 31, 1999 and 1998
- ------------------------------------------------------------------------------------------------------------------------------------
<CAPTION>
1999 1998
----------- -----------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $(2,741,700) $(3,154,800)
Adjustments to reconcile net loss to net
cash used by operating activities:
Depreciation and amortization 643,700 300,100
Loss on disposal of assets 155,300 --
Loss on prepaid rent 100,300 --
Vesting of restricted shares 22,500 22,400
Allowance for doubtful accounts and returns (205,000) 140,400
Inventory reserve (133,500) 665,000
Deferred income taxes -- 500,000
Net change in unrealized gains on cash equivalents
and marketable securities -- (10,500)
Changes in:
Accounts receivable 288,500 (56,200)
Inventories (8,000) 497,000
Prepaid expenses (60,600) 57,300
Other assets (4,900) --
Accounts payable 281,100 (139,700)
Royalties payable 52,500 6,300
Commissions payable (46,500) (13,400)
Income taxes payable -- (800)
Accrued wages, bonuses and payroll taxes 115,700 1,900
Accrued liabilities 27,800 1,400
Accrued rent payable (125,400) 39,800
----------- -----------
Net cash used by operating activities (1,638,200) (1,143,800)
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchases of property and equipment (393,800) (107,500)
Purchase of intangible assets (146,400) --
Purchase of publishing rights (66,300) (31,200)
Maturity of marketable securities -- 250,000
Other -- 14,500
----------- -----------
Net cash provided (used) by investing activities (606,500) 125,800
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES
Net proceeds from sale of common stock 1,476,400 --
Principal repayments on note payable (95,600) (105,500)
----------- -----------
Net cash provided (used) by financing activities 1,380,800 (105,500)
----------- -----------
DECREASE IN CASH AND
CASH EQUIVALENTS (863,900) (1,123,500)
CASH AND CASH EQUIVALENTS
Beginning of year 2,162,600 3,286,100
----------- -----------
End of year $ 1,298,700 $ 2,162,600
=========== ===========
<FN>
The accompanying notes are an integral part of these financial statements.
- ------------------------------------------------------------------------------------------------------------------------------------
Page F-5
</FN>
</TABLE>
<PAGE>
HEALTHY PLANET PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS
- --------------------------------------------------------------------------------
NOTE 1 - DESCRIPTION OF OPERATIONS AND SUMMARY OF SIGNIFICANT ACCOUNTING
POLICIES
Description of operations - Healthy Planet Products, Inc., designs, publishes,
markets and distributes greeting cards, stationery and other gift items. The
Company's products are marketed to over 5,200 retail sales outlets. The majority
of the Company's sales are blank notes and holiday greeting cards.
Cash and cash equivalents - The Company considers all investments with
maturities at the time of acquisition of three months or less to be cash
equivalents.
Inventory - Inventory consists of unprinted paper, unbatched and batched
greeting cards, stationary, and other gift items and is stated at the lower of
cost (first-in, first-out method) or market.
Property and equipment - Property and equipment are stated at cost and are
depreciated and amortized using the straight-line method over the estimated
useful lives of the assets or over the period of the lease. Additions or
improvements to property and equipment are capitalized at cost, while
maintenance and repair expenditures are charged to operations. Estimated useful
lives are as follows:
Machinery, equipment and leasehold improvements 3 - 10 years
Molds 3 years
Color separations 3 years
Furniture and fixtures 5 years
Computer software 5 years
Royalties - The Company pays royalties to licensers and artists for use of their
names, logos and artwork based on actual volume of products sold.
Income taxes - The provision for income taxes is based on pre-tax earnings
reported in the financial statements, adjusted for requirements of current tax
law, plus the change in deferred taxes. Deferred tax assets and liabilities are
recognized using enacted tax rates and reflect the expected future tax
consequences of temporary differences between the recorded amounts of assets and
liabilities for financial reporting purposes and tax basis of such assets and
liabilities and future benefits from net operating loss carryforwards and other
expenses previously recorded for financial reporting purposes. Income taxes are
described further in Note 6.
Publishing rights - Publishing rights consist of costs incurred to obtain images
for use on the Company's products. Such costs are capitalized and amortized over
three years.
Customer list - The Company acquired a customer list as part of the acquisition
of a new product line. The customer list is being amortized over three years.
Concentrations of risk - Financial instruments potentially subjecting the
Company to concentrations of credit risk consist primarily of bank demand
deposits in excess of FDIC insurance thresholds and trade receivable balances of
the Company's largest customers. Cash equivalents consist of money funds and
United States government and Federal agency securities. Receivables are not
collateralized, but the Company conducts frequent credit checks on customers
with material balances.
Use of estimates - The preparation of financial statements in conformity with
generally accepted accounting principles requires the Company make estimates and
assumptions affecting the reported amounts of assets, liabilities, revenues and
expenses, and disclosure of contingent assets and liabilities. Significant
estimates include the reserves for product returns and slow-moving or obsolete
inventory. The amounts estimated could differ from actual results.
- --------------------------------------------------------------------------------
Page F-6
<PAGE>
HEALTHY PLANET PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
- --------------------------------------------------------------------------------
NOTE 1 - DESCRIPTION OF OPERATIONS AND SUMMARY OF SIGNIFICANT ACCOUNTING
POLICIES (Continued)
Advertising - Costs associated with the production of catalogs are capitalized
and amortized over the expected life of the catalog of one to two years. Total
capitalized catalog costs at December 31, 1999, were $52,400. All other
advertising costs are expensed as incurred. Advertising expense totaled $42,400
and $68,300 for the years ended December 31, 1999 and 1998.
Fair value of financial instruments - The following methods and assumptions were
used by the Company in estimating its fair value disclosures for financial
instruments:
Cash, money funds, and United States government and Federal agency securities:
The carrying amount approximates fair value because of the short maturities of
these instruments.
Loss per share - Loss per common share was computed using the weighted average
number of common shares outstanding. Loss per common share assuming dilution was
computed using the weighted average number of common shares and the common
equivalent shares outstanding. Common stock equivalents associated with warrants
and stock options have been excluded from the weighted average shares
outstanding since the effect of these potentially dilutive securities would be
antidilutive.
New accounting pronouncements - The Financial Accounting Standards Board has
issued SFAS No. 133 "Accounting for Derivative Instruments and Hedging
Activities." It requires companies to record derivatives on the balance sheet as
assets or liabilities, measured at fair market value. Gains or losses resulting
from changes in the value of those derivatives are accounted for depending on
the use of the derivative and whether it qualifies for hedge accounting. The key
criterion for hedge accounting is that the hedging relationship must be highly
effective in achieving the offsetting changes in fair value or cash flows. The
effective date for SFAS No. 133 has been extended to all fiscal quarters of
fiscal years beginning after June 15, 2000. Management believes that the
adoption of SFAS No. 133 will have no material effect on its financial
statements.
NOTE 2 - MANAGEMENT'S PLANS
The Company has experienced recurring losses from operations and use of cash
from operations. Management of the Company has developed plans that it believes
will generate sufficient cash flow from operations to meet its expected cash
requirements for 2000, based on the following factors: (i) the reduction in rent
expense that will commence in June 2000, (ii) the decrease in minimum royalties
that will be paid during the year, (iii) the reduction or elimination of product
lines that generate insufficient profit margins, (iv) the increased revenues
that will be generated by a full year of sales of the Evergreen product lines
and (v) revenues expected to be generated from the introduction during the year
of new product lines, such as regional and "versed" greeting cards.
NOTE 3 - ACCOUNTS RECEIVABLE
Accounts receivable $ 801,800
Less allowances for doubtful accounts and returns (258,500)
---------
$ 543,300
=========
- --------------------------------------------------------------------------------
Page F-7
<PAGE>
HEALTHY PLANET PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
- --------------------------------------------------------------------------------
NOTE 4 - INVENTORIES
Raw materials $ 17,700
Work-in-process 208,800
Finished goods 294,000
--------
$520,500
========
Due to efforts to reduce overall inventory levels in 1999, management placed a
significant reserve on inventories at December 31, 1998. The change in the
reserve increased cost of goods sold and decreased gross profit by $665,000 for
the year ended December 31, 1998. Inventory reserves totaled $828,000 and
$995,000 at December 31, 1999 and 1998.
NOTE 5 - PROPERTY AND EQUIPMENT
Machinery, equipment and leasehold improvements $ 790,800
Molds 406,000
Color separations 309,800
Furniture and fixtures 100,800
Computer software 225,000
-----------
1,832,400
Less accumulated depreciation and amortization (1,293,700)
-----------
$ 538,700
===========
NOTE 6 - PUBLISHING RIGHTS
Publishing rights $ 263,000
Less accumulated amortization (174,500)
---------
$ 88,500
=========
NOTE 7 - CUSTOMER LIST
Customer list $ 109,400
Less accumulated amortization (19,900)
---------
$ 89,500
=========
- --------------------------------------------------------------------------------
Page F-8
<PAGE>
HEALTHY PLANET PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
- --------------------------------------------------------------------------------
NOTE 8 - INCOME TAXES
1999 1998
-------- --------
Provision for income taxes
Federal $ -- $ --
State 800 800
-------- --------
800 800
-------- --------
Deferred
Current -- 264,900
Non-current -- 235,100
-------- --------
-- 500,000
-------- --------
$ 800 $500,800
======== ========
The difference between the actual income tax provision and the tax provision
computed by applying the statutory federal income tax rate to the loss before
taxes is attributable to the following:
1999 1998
-------- --------
Income tax benefit (34.0)% (34.0)%
State tax benefit (4.4) (4.4)
Change in deferred tax asset valuation allowance 39.4 43.9
Change in inventory reserve (2.7) 10.7
Change in allowance for doubtful accounts and returns (3.3) 2.3
Other 5.0 0.4
-------- --------
--% 18.9%
======== ========
At December 31, 1999, the Company had available net operating loss carryovers of
approximately $10,483,000, to be applied against future federal taxable income.
Due to changes in ownership during 1988, 1997 and 1999, these amounts are
subject to an IRS Code Section 382 limitation. The Company has not calculated
the effect of the limitation. If the Company does not generate sufficient income
to use the maximum limitation, remaining amounts accumulate for use in future
periods until the operating loss expires. For federal tax purposes, net
operating losses expire as follows:
Year Ending December 31,
------------------------
2002 $ 2,638,500
2003 1,222,000
2004 1,299,100
2005 383,500
2006 31,700
2012 570,700
2018 1,821,600
2019 2,515,900
------------
$ 10,483,000
============
The Company has available approximately $25,500 of federal alternative minimum
tax credits which can be carried forward indefinitely and offset against future
income taxes.
- --------------------------------------------------------------------------------
Page F-9
<PAGE>
HEALTHY PLANET PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
- --------------------------------------------------------------------------------
NOTE 8 - INCOME TAXES (Continued)
The Company has available approximately $2,462,000 of California net operating
losses which can be carried forward and offset against future taxable income.
These loss carryforwards expire through 2004 and may be subject to the same
limitations as the federal net operating losses.
Gross deferred tax assets and liabilities are $4,363,0000 and $102,000,
respectively.
The significant temporary differences and carryforwards that give rise to
deferred tax assets at December 31, 1999, are as follows:
Accounts receivable allowances $ 110,700
Inventory reserve 354,700
Other (18,400)
Valuation allowance (447,000)
-----------
Current deferred tax asset $ --
===========
Depreciation and amortization $ 87,500
Benefits from net operating loss carryforward 3,781,700
Valuation allowance (3,363,500)
Other (55,000)
-----------
Non-current deferred tax asset $ 450,700
===========
During 1999 and 1998, the valuation allowance increased $836,200 and $1,474,300,
respectively, due to a continuing assessment of the Company's ability to realize
its deferred tax assets. Management of the Company believes it is more likely
than not that a portion of the federal net operating loss carryforwards will be
utilized prior to expiration.
<TABLE>
NOTE 9 - LOSS PER SHARE
<CAPTION>
Year Ended December 31, 1999
----------------------------------------------------------
Per-Share
Loss Shares Amount
----------- ----------- -----------
<S> <C> <C> <C>
Net loss $(2,741,700)
===========
Basic loss per share:
Loss available to common shareholders $(2,741,700) 3,598,881 $ (0.76)
===========
Effect of dilutive securities -- --
----------- -----------
Diluted loss per share:
Loss available to common shareholders
plus assumed conversions $(2,741,700) 3,598,881 $ (0.76)
=========== =========== ===========
- ------------------------------------------------------------------------------------------------------------------------------------
Page F-10
</TABLE>
<PAGE>
HEALTHY PLANET PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
- --------------------------------------------------------------------------------
NOTE 9 - LOSS PER SHARE (Continued)
Warrants to purchase 1,031,394 shares of common stock at a weighted average
price per share of $2.10 and options to purchase 160,000 shares of common stock
at a weighted average price per share of $4.36 were outstanding at December 31,
1999, but were not included in the computation of diluted loss per share as the
exercise prices were greater than the average market price of the common shares.
<TABLE>
Preferred stock convertible into 31,335 shares of common stock were outstanding
at December 31, 1999, but were not included in the computation of diluted loss
per share as the effect would be antidilutive.
<CAPTION>
Year Ended December 31, 1998
----------------------------------------------------------
Per-Share
Loss Shares Amount
----------- ----------- -----------
<S> <C> <C> <C>
Net loss $(3,154,800)
===========
Basic loss per share:
Income available to common shareholders $(3,154,800) 2,269,868 $ (1.36)
===========
Effect of dilutive securities -- --
----------- -----------
Diluted earnings per share:
Income available to common shareholders
plus assumed conversions $(3,154,800) 2,269,868 $ (1.36)
=========== =========== ===========
</TABLE>
Warrants to purchase 360,000 shares of common stock at a weighted average price
per share of $4.39 and options to purchase 350,000 shares of common stock at a
weighted average price per share of $5.88 were outstanding at December 31, 1998,
but were not included in the computation of diluted earnings per share as the
exercise prices were greater than the average market price of the common shares.
Preferred stock convertible into 31,335 shares of common stock were outstanding
at December 31, 1998, but were not included in the computation of diluted
earnings per share as the effect would be antidilutive.
NOTE 10 - COMMITMENTS
Leases - The Company leases office and warehouse space under an operating lease
expiring April 2002, for $15,900 per month. The Company is responsible for
substantially all costs associated with repairs, maintenance, taxes, and
insurance. Future minimum lease payments are as follows:
Year Ending December 31,
------------------------
2000 $ 202,800
2001 190,600
2002 55,600
------------
$ 449,000
============
Rent expense totaled $402,800 and $397,000 for the years ended December 31, 1999
and 1998.
- --------------------------------------------------------------------------------
Page F-11
<PAGE>
HEALTHY PLANET PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
- --------------------------------------------------------------------------------
NOTE 10 - COMMITMENTS (Continued)
Employment agreements - The Company has an employment agreement with a key
employee expiring on December 31, 2000. Compensation related to this agreement
was $95,000 for the year ended December 31, 1999.
License agreements - The Company has entered into licensing agreements with the
National Wildlife Foundation, The Wilderness Society, The Marine Mammal Center,
The Zoological Society of San Diego and the Rainforest Action Network, expiring
through August 31, 2002. The agreements call for royalty payments of 2% - 10% of
net sales, as defined in the agreements, subject to minimum cumulative royalties
of $175,000, over the life of these agreements. All agreements are cancelable
with 30 to 60 days notice, as defined in the agreements. Options exist to extend
the terms of certain agreements. The Sierra Club license agreement was canceled
in December 1999. Sales under the Sierra Club agreement accounted for 45% and
66% of total sales for the years ended December 31, 1999 and 1998.
NOTE 11 - MAJOR SUPPLIERS
During the years ended December 31, 1999 and 1998, the Company made 36% and 39%,
respectively, of its purchases from two suppliers. Amounts due to suppliers
included in accounts payable totaled $163,900 at December 31, 1999.
NOTE 12 - CAPITAL STOCK
Series B preferred stock carried a cumulative annual dividend of $10.80 per
share and allowed the Company to redeem the stock upon 60 days notice, plus
cumulative but unpaid dividends. During 1997, the Company exercised its right to
redeem all outstanding shares and suspended the accumulation of dividends.
Redemption and cumulative dividends payable of $161,500 is accrued pending
location of the shareholder.
Series D preferred stock has full voting rights at the rate of one vote per
share and is convertible into common stock at the rate of one share of common
stock for each share of preferred. The preferred stock has a liquidating
preference of $5.11 per share and carries no dividend.
In 1999, the Company granted its holders of common stock and Series D preferred
stock two common stock purchase rights for each share of stock held. Each right
entitled the holder to purchase one share of common stock at $1.0625 per share.
As a result of the offering, 1,582,216 shares or common stock were issued with
net proceeds of $1,476,400.
NOTE 13 - STOCK OPTIONS AND WARRANTS
In 1999, the Company adopted a new stock option plan, which provides for the
granting of qualified and non-qualified stock options, incentive stock options,
stock appreciation rights, restricted stock, restricted stock units, and
dividend equivalents to employees, consultants and non-employee directors up to
an aggregate of 400,000 shares of common stock, plus any stock reserved or
unreserved under the pre-existing plans. This plan supercedes pre-existing
plans. Awards under superceded plans are included in the new plan. During 1999,
25,000 options were granted, no options were exercised, and 220,000 options
expired. At December 31, 1999, 160,000 common stock options were exercisable at
a weighted-average exercise price of $4.36. The exercise prices of the options
range from $.63 to $10.50. Options have a remaining life of one to five years.
- --------------------------------------------------------------------------------
Page F-12
<PAGE>
HEALTHY PLANET PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
- --------------------------------------------------------------------------------
NOTE 13 - STOCK OPTIONS AND WARRANTS (Continued)
In 1991, 60,000 shares of restricted shares were issued to an officer, vesting
at 4,000 shares per year. Each year a cash bonus of 60% of the fair-market value
of the vested shares was paid to the officer for his income tax liability
related to the income attributable to vesting of shares. The officer retired on
December 31, 1999, and unvested restricted shares were surrendered to the
Company.
In September 1997, the Company issued 300,000 common stock warrants exercisable
as follows: 100,000 warrants at $4.00 per share, 100,000 warrants at $4.25 per
share, and 100,000 warrants at $4.50 per share. Due to the Company's stock
rights offering in March 1999 and the anti-dilution provisions carried by the
above warrants, these warrants were reissued as follows: 141,806 warrants at
$2.04 per share, 143,088 warrants at $2.13 per share and 144,240 warrants at
$2.21 per share.
In March 1999, the Company issued 250,000 common stock warrants exercisable at
$1.1875 per share to certain stockholders as an inducement to exercise all of
their stock rights in the stock rights offering.
In April 1999, the Company issued 292,260 common stock warrants exercisable as
follows: 146,130 warrants at $2.00 per share and 146,130 warrants issued at
$2.50 per share. These warrants, which were valued $23.9, were issued in
connection with the purchase of assets.
The Company applies Accounting Principles Board Opinion No. 25, "Accounting for
Stock Issued to Employees," and related interpretations in accounting for stock
options and warrants. Accordingly, no compensation expense has been recognized
for stock options and warrants issued during 1999 and 1998. Had compensation
cost for the Company's options and warrants been determined based on the fair
value at the grant date for awards in 1999 and 1998 consistent with the
provisions of Statement of Financial Accounting Standards No. 123, "Accounting
for Stock-Based Compensation," the Company's net loss and loss per share would
have changed to the pro forma amounts indicated below:
1999 1998
------------- -------------
Net loss - as reported $ (2,741,700) $ (3,154,800)
Net loss - pro forma $ (2,817,400) $ (3,176,200)
Loss per share - as reported $ (0.76) $ (1.39)
Loss per share - pro forma $ (0.78) $ (1.40)
The fair value of warrants issued for the purchase of assets equals the fair
value of those assets on the date of purchase. The fair value of other options
and warrants is estimated on date of grant using the Black-Scholes
option-pricing model with the following weighted-average assumptions used for
grants in:
1999 1998
------------ ------------
Dividends None None
Expected volatility 106.2%-147.5% 38.5%-64.4%
Risk free interest rate 5.0%-5.7% 5.7%-6.7%
Expected life 5 years 5 years
- --------------------------------------------------------------------------------
Page F-13
<PAGE>
HEALTHY PLANET PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
- --------------------------------------------------------------------------------
NOTE 13 - STOCK OPTIONS AND WARRANTS (Continued)
Options issued during 1999 and 1998 have an estimated weighted average fair
value of $0.57 and $0.85, respectively. Warrants issued during 1999 have an
estimated weighted average fair value of $0.25.
<TABLE>
The activity of the stock option plan and warrants is as follows:
<CAPTION>
Weighted- Weighted-
Shares Average Shares Average
Under Exercise Under Exercise Restricted
Warrants Price Options Price Shares
-------- ----- ------- ----- ------
<S> <C> <C> <C> <C> <C>
Balance, December 31, 1997 368,117 $ 4.45 325,000 $ 6.19 32,000
Granted -- 30,000 1.79 --
Exercised -- -- --
Forfeited (8,117) 7.20 -- --
Vested -- -- (4,000)
---------- ---------- ----------
Balance, December 31, 1998 360,000 4.39 355,000 5.82 28,000
Granted 971,394 1.92 25,000 0.63 --
Exercised -- -- --
Forfeited (300,000) 4.25 (220,000) 6.29 (24,000)
Vested -- -- (4,000)
---------- ---------- ----------
Balance, December 31, 1999 1,031,394 $ 2.10 160,000 $ 4.36 --
========== ========== ==========
</TABLE>
NOTE 14 - STATEMENTS OF CASH FLOWS
1999 1998
------- -------
Cash paid during the year for:
Interest $ 4,200 $14,300
Income taxes $ 800 $ 800
Non-cash investing and financing activities for the year ended December 31,
1999, consisted of:
o Surrender of 24,000 shares of restricted common stock
o Issuance of 30,000 shares of common stock to a related company for
consulting fees with a fair value of $26,300 related to the stock
rights offering
o Issuance of common stock purchase warrants for equipment with a fair
value of $23,900
o Assumption of $57,500 of liabilities subject to an asset purchase
agreement
Non-cash investing and financing activities for the year ended December 31,
1998, consisted of converting 150,006 shares of Series D preferred stock to
150,006 shares of common stock and offsetting $43,300 of officer receivables
against the note payable to officer.
- --------------------------------------------------------------------------------
Page F-14
<PAGE>
HEALTHY PLANET PRODUCTS, INC.
NOTES TO FINANCIAL STATEMENTS (Continued)
- --------------------------------------------------------------------------------
NOTE 15 - MAJOR CUSTOMER
Sales to a major customer were approximately $649,000 and $376,000 during the
years ended December 31, 1999 and 1998, representing 17.6% and 10.3% of total
sales, respectively. At December 31, 1999, amounts due from this customer
included in accounts receivable was $70,400.
NOTE 16 - EMPLOYEE BENEFIT PLAN
The Company has a 401(k) profit sharing plan covering all employees meeting
minimum service requirements. Plan contributions are discretionary. There were
no employer contributions for the years ended December 31, 1999 and 1998.
NOTE 17 - YEAR 2000
Because of the unprecedented nature of the Year 2000 Issue, its effects, if any,
may not be identified until a future date. Management cannot ensure that the
Company has identified all Year 2000 Issues, that the Company's remediation
efforts have been successful in whole or in part, or that parties with whom the
Company does business will not be significantly impacted by Year 2000 Issues.
NOTE 18 - CONTINGENCY
In December, 1999, the Company notified the Sierra Club that it would not be
continuing its license with the Sierra Club beyond 1999. On March 14, 2000, the
Sierra Club filed a summons and complaint for breach of contract in the Superior
Court of California, County of San Francisco, in support of an application with
the Court seeking a provisional order of attachment against the Company pending
determination of an arbitration proceeding which the Sierra Club is expected to
commence against the Company concerning termination of the license. The Company
believes that the proceedings initiated by the Sierra Club are without merit and
intend to defend them vigorously.
- --------------------------------------------------------------------------------
Page F-15
1700 Corporate Circle, Petaluma, California
LEASE
between
RNM LAKEVILLE, L.P.,
a California Limited Partnership
as LANDLORD
and
HEALTHY PLANET PRODUCTS, INC.,
a Delaware corporation
as TENANT
December 8, 1999
<PAGE>
LEASE
TABLE OF CONTENTS
Paragraph Page
- --------- ----
1. SUMMARY AND DEFINITIONS ................................................. 1
2. DEMISE .................................................................. 1
3. ACCEPTANCE OF PREMISES .................................................. 2
4. RENT .................................................................... 2
5. SECURITY DEPOSIT ........................................................ 2
6. UTILITIES ............................................................... 3
7. USE OF PREMISES ......................................................... 3
8. BROKERS ................................................................. 3
9. TENANT'S TAXES .......................................................... 3
10. ALTERATIONS, REPAIRS AND MAINTENANCE .................................... 4
11. LIENS ................................................................... 6
12. ENTRY ................................................................... 6
13. INDEMNIFICATION AND EXCULPATION ......................................... 6
14. INSURANCE ............................................................... 7
15. NO SUBROGATION .......................................................... 8
16. DAMAGE OR DESTRUCTION ................................................... 8
17. CONDEMNATION ............................................................ 9
18. DEFAULTS AND REMEDIES ................................................... 9
19. ENCUMBRANCES, ASSIGNMENT AND SUBLETTING ................................. 11
20. SUBORDINATION ........................................................... 12
21. ESTOPPEL CERTIFICATE .................................................... 13
22. SIGNS ................................................................... 13
23. SURRENDER OF PREMISES ................................................... 13
24. PROFESSIONAL FEES ....................................................... 13
25. GENERAL PROVISIONS ...................................................... 14
SIGNATURES .................................................................. 17
ADDENDUM
26. TENANT'S EXTENSION OPTION ............................................... 1
27. PARKING ................................................................. 1
28. HAZARDOUS MATERIAL ...................................................... 1
29. COMMON AREAS ............................................................ 3
30. EXISTING LEASE .......................................................... 4
Exhibits
--------
A Definitions
B Floor Plan
C Tenant Items to Be Removed at Termination
D Form of Tenant Estoppel Certificate
E Rules and Regulations
F Hazardous Materials
<PAGE>
LEASE
RNM LAKEVILLE, L.P., a California Limited Partnership (with its successors
called "Landlord"), and HEALTHY PLANET PRODUCTS, INC., a Delaware corporation
(with its successors called "Tenant"), agree as follows as of December 8, 1999.
R E C I T A L S
A. Tenant is currently leasing 60,512 square feet of Rentable Area
within the Building pursuant to that certain Lease Agreement dated as of January
12, 1996 ("Existing Lease").
B. Tenant wishes to surrender to Landlord approximately 34181 square
feet of Rentable Area ("Surrendered Premises") and twenty (20) parking spaces
and to be released from its future Lease obligations with respect thereto,
subject to the terms and conditions of this Lease.
Therefore, the parties agree that upon the full execution of this
Lease, the Existing Lease shall be superceded in its entirety by this Lease,
except as expressly provided herein.
1. SUMMARY AND DEFINITIONS: The following definitions and those in Exhibit A
apply in this Lease:
1.1. Premises:
(a) 26,472 square feet of Rentable Area in the Building at
1700 Corporate Circle in Petaluma, California depicted as the Premises on
Exhibit B. The Premises are part of a Project comprising of three buildings,
parking areas and Common Areas. The Rentable Areas set forth in this Lease shall
be binding on the parties.
1.2. Term:
(a) The Term shall commence upon completion of the Tenant Work
as described in Paragraph 30.1(b) of this Lease or such other date as the
parties shall mutually agree (the "Commencement Date").
(b) The Term shall end at 11:59 p.m. on April 14, 2002 (the
"Termination Date"). The Termination Date shall not be in any way extended or
advanced except pursuant to the provisions herein.
1.3. Base Rent: Monthly Base Rent for the Term of this Lease shall
$15883.00 per month.
1.4. Tenant's Share: 35.0% of the Building and 8.10% of the Project.
1.5. Use: The Premises shall be used and occupied only for the purpose
of general office and the storage and distribution of consumer products and for
no other purpose whatsoever.
1.6. Security Deposit: $50,244.
1.7. Brokers: None.
1.8. Exhibits: Exhibits A, B, C, D, E and F.
2. DEMISE. For the Term, Landlord leases the Premises to Tenant and Tenant
leases the same from Landlord, all upon and subject to the terms, covenants and
conditions of this Lease.
-1-
<PAGE>
3. ACCEPTANCE OF PREMISES. Tenant hereby accepts the Premises AS-IS and WITH ALL
FAULTS. Tenant acknowledges that it has occupied the Premises since April 1996
and is fully familiar with its condition. Notwithstanding the above, Landlord,
at its expense, agrees to construct within the Premises two bathrooms for use by
Tenant*, its employees and invitees. Such bathrooms shall be constructed in
accordance with such plans as are reasonably approved by Landlord and shall be
completed within one-hundred twenty days following the Commencement Date.
* Also to include sink and countertop with cabinets for breakroom area.
4. RENT. All amounts due hereunder from Tenant to Landlord, whether designated
as Base Rent, Additional Rent, late charges, interest or otherwise, shall be
deemed "rent" hereunder. From the Commencement Date, Tenant will pay Landlord,
without prior notice, demand, offset or deduction, the following rent:
4.1. Base Rent. Subject to the provisions of Paragraph 25.10, Tenant
will pay the Base Rent (prorated for any partial month) in advance on the first
day of each month during the term hereof.
4.2. Additional Rent.
(a) Tenant shall pay Tenant's Share of Operating Expenses and
Real Property Taxes. The terms "Tenant's Share", "Operating Expenses" and "Real
Property Taxes" are defined in Exhibit A. For partial years, Operating Expenses
and Real Property Taxes will be calculated on a full-year basis, and then
prorated. Tenant shall pay monthly installments of Additional Rent on the first
day of each month, in amounts specified in good faith by Landlord from time to
time, which, by the end of each calendar year (or by the Termination Date, if
earlier), will total Landlord's estimate of Additional Rent paid for such year.
As soon as is reasonably practicable after the end of each calendar year during
which Tenant paid Additional Rent based on Landlord's estimates as provided
above, Landlord will furnish Tenant a statement of Operating Expenses and Real
Property Taxes for such year. Any amounts owing for that year shall, within
thirty (30) days, be paid by Tenant to Landlord. Any amounts overpaid shall, at
Landlord's option, be credited against the next installment(s) of estimated
Additional Rent due from Tenant, or be refunded to Tenant. The parties'
obligations with respect to payment or refund of any deficiency or overpayment
shall survive termination or expiration of this Lease.
(b) Notwithstanding the foregoing, Tenant's responsibility for
any increase in Real Property Taxes attributable to a sale or other transfer in
an arm's length transaction resulting in reassessment of the Building, Property
or Premises shall be limited as follows: (i) after the first such reassessment,
Tenant's annual liability shall be limited to one hundred ten percent (110%) of
the Real Property Taxes payable before such reassessment ("Base Assessment"),
plus any annual increase in taxes based on the Base Assessment; and (ii) after
the second such reassessment, Tenant's annual liability shall be limited to the
Real Property Taxes payable before such reassessment, plus any annual increase
in taxes based on such amount. Nothing contained herein is intended to limit
Tenant's responsibility for supplemental, escaped or special assessments.
5. SECURITY DEPOSIT. To secure its performance of its obligations under this
Lease, Tenant has deposited the Security Deposit with Landlord pursuant to the
Existing Lease. Landlord shall hold such amount as Tenant's Security Deposit
under this Lease. Landlord may commingle the Security Deposit with other funds.
If Tenant defaults with respect to any provisions of this Lease, including but
not limited to the provisions relating to the payment of Rent, Additional Rent
and any of the monetary sums due herewith, Landlord may use, apply or retain all
or any part of this Security Deposit for the payment of any other amount which
Landlord may spend or become obligated to spend by reason of Tenant's default or
to compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion of said deposit is so used or
applied, Tenant shall, within ten (10) days after written demand therefore,
deposit cash with Landlord in an amount sufficient to restore the Security
Deposit to its original amount, and Tenant's failure to do so shall be a
material breach of this Lease. Tenant shall forthwith on demand restore the
Security Deposit to its full original amount. If Tenant is not in default at the
termination of this Lease, Landlord will return any remaining Security Deposit,
without interest, upon receipt of Tenant's forwarding address, or as provided by
law, whichever is later. Tenant shall not assign
-2-
<PAGE>
or encumber the Security Deposit or attempt to do so, and Landlord shall not be
bound by any such assignment or encumbrance. Regardless of any Assignment,
Landlord may return the Security Deposit to the original Tenant.
6. SERVICES AND UTILITIES. Tenant shall contract for, and pay for, janitorial
services for the Premises using such janitorial contractor as Landlord shall
approve, which approval shall not be unreasonably withheld. If separately
metered or provided, Tenant shall pay prior to delinquency for all water, gas,
light, heat, power, electricity, telephone, janitorial service, trash pick-up,
sewer charges, and all other services supplied to or consumed on the Premises,
and all taxes and surcharges thereon. If such utilities or services are not
separately metered or provided, Tenant shall pay Tenant's Share of such charges.
Tenant shall pay to Landlord Tenant's Share of the cost of all utilities
supplied in connection with the operation of the Common Areas.
7. USE OF PREMISES. Tenant will use and occupy the Premises only for the purpose
set forth in Paragraph 1.5 and no other, using and maintaining the Premises in a
careful, sanitary and proper manner. Subject to the waiver set forth in
Paragraph 15, Tenant will pay for any damage to any part of the Premises or
Building or Project caused by any negligence or willful act by Tenant or
Tenant's employees, agents, contractors or invitees. Tenant will comply with the
Building's Rules and Regulations and the CC&Rs and will not cause anywhere in
the Building or Project, or permit in the Premises, (i) any activity or thing
contrary to applicable law, ordinance, regulation, restrictive covenant, or
insurance regulation whether now in force or hereafter in force; or which is in
any way extra-hazardous or could jeopardize the coverage of normal insurance
policies or increase their cost; (ii) waste or nuisance, or any activity causing
odors perceptible outside the Premises; (iii) cooking or heating food, except
for incidental use, solely for Tenant's employees, of microwave ovens and
beverage-brewing devices, provided that the foregoing do not use a flame and are
approved by Underwriters Laboratories for residential use; (iv) overloading the
floors or the structural or mechanical systems of the Building; or (v) obstruct
or interfere with the rights of other tenants or users of the Building or the
Project. Tenant shall not erect or place any item in or upon the Common Areas.
Tenant shall store its waste either inside the Premises or in its own dumpsters
located within outside trash enclosures. Tenant shall not store, place or
maintain any garbage, trash, rubbish, other refuse or Tenant's personal property
in any area of the Common Area or exterior of the Premises at any time. Tenant
at its sole expense shall be responsible to maintain and keep the designated
trash enclosures free of garbage, trash, rubbish, other refuse or personal
property. Tenant shall at Tenant's sole cost and expense faithfully observe and
promptly comply with all local, state and federal laws, statutes, ordinances and
governmental resolutions, orders, rules, regulations and requirements
(including, by way of example, building codes, Title 24, and the Americans With
Disabilities Act of 1990) and with the requirements of any board of fire
underwriters (or other similar body now or hereafter constituted) whether now in
force or which may hereafter be in force with respect to Tenant's use,
occupancy, modification or possession of the Premises, Tenant's business
conducted in the Premises or the design, equipment condition, use or occupancy
of the Premises. Tenant shall also comply with the CC&Rs and any other covenant,
condition or restriction affecting the Building or the Project. Without limiting
the generality of the provisions of this Paragraph 7, as between Landlord and
Tenant, Tenant shall make all alterations to the Premises, whether major or
minor, reasonably necessary to comply at any time with the requirements referred
to in this Paragraph 7.
8. BROKERS. Landlord and Tenant warrant that they have had no dealing with any
finder, broker or agent in connection with this Lease. Tenant will indemnify,
defend and hold Landlord harmless from and against any and all costs, expenses
or liability for commissions or other compensation or charges claimed by any
finder, broker or agent based on dealings with Tenant with respect to this
Lease. Landlord will indemnify, defend and hold Tenant harmless from and against
any and all costs, expenses or liability for commissions or other compensation
or charges claimed by any finder, broker or agent based on dealings with
Landlord with respect to this Lease.
9. TENANT'S TAXES. In addition to Tenant's obligations to pay Real Property
Taxes as set forth in Section 4.2, Tenant shall be liable for and shall pay,
before delinquency, all taxes levied or assessed against or attributable to any
personal property or trade fixtures in the Premises. If any such taxes or
-3-
<PAGE>
value are included in Landlord's taxes, Landlord may pay them regardless of
their validity (under proper protest, if requested by Tenant), and Tenant upon
demand will repay Landlord.
10. ALTERATIONS, REPAIRS AND MAINTENANCE.
10.1. Repairs and Maintenance.
(a) Landlord shall, as an Operating Expense (except as
excluded herein), repair and maintain the exterior roof, exterior walls,
foundations and structural portions of the Building and the Project and the
improvements within the Common Areas and the building standard plumbing,
heating, ventilating, air conditioning, and electrical systems serving the
Building and the Project, and any sidewalks, landscaping (including but not
limited to irrigation systems and backflow prevention devices), Parking Areas,
fences and signs located in the areas which are adjacent to the Building.
Subject to the waivers set forth in Paragraph 15, to the extent any such
maintenance and repairs are caused in part or in whole by the act, neglect or
omission of any duty by Tenant or Tenant's employees, agents, contractors or
invitees, then Tenant shall pay to Landlord, as Additional Rent, the entire cost
of such maintenance and repairs. Landlord shall not, however, be obligated to
paint the interior surface of exterior walls, ceiling or doors, nor shall
Landlord be required to maintain, repair or replace windows, doors, skylights or
plate glass. Landlord shall have no obligation to make repairs under this
Paragraph 10.1(a) until a reasonable time after receipt of written notice of the
need for such repairs. Landlord shall maintain, repair or patch the roof
membrane as an Operating Expense, and Tenant shall pay Tenant's Share of the
cost thereof, pursuant to Paragraph 4.2 above. Except for Landlord's obligations
with respect to the condition of the Premises upon delivery of the Premises to
Tenant, Landlord shall have no obligation to alter, remodel, improve, repair,
decorate or paint the Premises or any part thereof. Unless otherwise provided
herein, there shall be no abatement of rent and no liability of Landlord by
reason of any injury to or interference with Tenant's business arising from the
making of any repairs, alterations or improvements in or to any portion of the
Building, the Premises or parking areas or in or to fixtures, appurtenances and
equipment therein provided that all such work is done in such a manner as to
reasonably minimize the disruption of Tenant's business ("Conditions of Entry").
Tenant expressly waives the benefits of any statute (including, without
limitation, the provisions of subsection 1 of Section 1932, Section 1941 and
Section 1942 of the California Civil Code and any similar law, statute or
ordinance now or hereafter in effect) which would otherwise afford Tenant the
right to make repairs at Landlord's expense (or to deduct the cost of such
repairs from rent due hereunder) or to terminate this Lease because of
Landlord's failure to keep the Premises in good order, condition and repair.
(b) In all other regards, Tenant, at Tenant's sole cost and
expense, shall keep, maintain and preserve the Premises in first class condition
and repair and shall, promptly make all non-structural repairs and replacements
to the Premises and every part thereof, including but not limited to floors,
ceilings, windows, doors, skylights, interior walls, and the interior surfaces
of the exterior walls, plumbing, heating, air conditioning and ventilating
equipment, telecommunications equipment and intrabuilding network cabling,
electrical and lighting facilities and equipment including circuit breakers and
exterior lighting attached to the Premises. At Landlord's request, Tenant shall
provide Tenant with copies of any maintenance contracts and certificates of
insurance from its contractors. In the event Tenant fails to perform Tenant's
obligations under this Section, Landlord shall give Tenant notice to do such
acts as Landlord deems are reasonably required to so maintain the Premises. If
Tenant, within ten (10) days after notice from Landlord, fails to commence to do
the work and diligently prosecute it to completion, then Landlord shall have the
right (but not the obligation) to do such acts and expend such funds at the
expense of Tenant as are reasonably required to perform such work. Any amount so
expensed by Landlord shall be paid by Tenant promptly after demand as Additional
Rent. Landlord shall have no liability to Tenant for any damage, inconvenience
or interference with the use of the Premises by Tenant as a result of performing
any such work and other communications equipment and lines.
10.2. Alterations.
(a) Tenant will not make or permit alterations, improvements
or additions (including fixtures) in or to the Premises (collectively
"Alterations") without Landlord's prior, written consent. At the
-4-
<PAGE>
time Landlord grants its consent to any Alterations, Landlord may notify Tenant
in writing (a "Removal Notice") that Tenant will be required to remove such
Alterations at the expiration or termination of the Term in accordance with the
provisions of Paragraph 23.1 hereof. Notwithstanding the foregoing, (i) minor
alterations such as repainting and carpeting, or alterations with an aggregate
cost of less than $25,000 per year, and (ii) which do not affect structural
components or building systems, shall not require Landlord's consent hereunder,
but all work in connection therewith shall be conducted and completed in a first
class manner and in such a manner as to not materially interfere with the use of
the Common Areas or any other portion of the Project by Landlord or its other
tenants. Tenant's request for such consent shall be in writing, accompanied by
proposed detailed plans and specifications. Landlord may require Tenant to
provide Landlord, at Tenant's cost and expense, a payment and performance bond
in an amount equal to the estimated cost of such Alterations, to insure Landlord
against any liability for any mechanic's and materialmen's liens and to insure
completion of the work. Alterations will be performed, if Landlord elects, by
Landlord or a contractor designated by Landlord, at Tenant's cost and expense.
Tenant may engage its own contractors to perform remodel work upon written
approval by Landlord. In such event, Landlord shall charge a five percent (5%)
administration fee on all construction costs. Any and all plans must be
submitted to Landlord for approval, and building permits must be obtained prior
to commencement of any construction remodeling. All alterations, additions and
improvements constructed by Tenant shall remain the property of Tenant during
the Lease Term but shall not be damaged, altered, or removed from the Premises.
Subject to Paragraph 23, at the expiration or sooner termination of the Lease
Term, all alterations, additions, or improvements except moveable furniture and
trade fixtures not affixed to the Premises shall be surrendered to Landlord as a
part of the realty and shall then become Landlord's property. Tenant will
promptly notify Landlord of the value thereof for insurance and tax purposes.
Tenant will hold Landlord forever harmless against any and all claims, expenses
(including taxes) and liabilities of every kind which may arise out of or in any
way be connected with any work performed by or on behalf of Tenant. Without
limiting the generality of the foregoing, all heating, lighting, electrical
(including all wiring, conduit, outlets, drops, buss ducts, main and subpanels),
air conditioning, partitioning, drapery, and carpet installations made by Tenant
regardless of how affixed to the Premises, together with all other additions,
alterations and improvements that have become an integral part of the Building,
shall be and become the property of the Landlord upon termination of the Lease,
and shall not be deemed trade fixtures, and shall remain upon and be surrendered
with the Premises at the termination of this Lease. Notwithstanding anything to
the contrary contained herein, Landlord has consented to Tenant installing the
improvements, trade fixtures and equipment described on Exhibit C attached
hereto and to the removal thereof at the expiration of the term of this Lease,
except from the Surrendered Premises. Prior to the expiration of the Term, all
of such items shall be removed by Tenant, and any and all damage caused by their
installation, use or removal (including all holes and other damage to walls,
floors, ceilings, doors, fixtures, windows, etc.) shall be repaired and the
Premises repaired and restored to their condition prior to such installation,
all at Tenant's sole cost.
(b) Tenant shall give Landlord not less than ten (10) days
notice prior to the commencement of any work in the Premises by or on behalf of
Tenant, and Landlord shall have the right to post notices of non-responsibility
in or on the Premises or the Building as provided by law. All Alterations,
repairs and replacements by Tenant shall be made, constructed and installed in
accordance with all applicable laws, rules and ordinances (and Tenant shall
perform all work necessary to comply fully with all laws, ordinances and
regulations necessitated by the Alterations, whether structural or
non-structural, within or without the Premises) and the requirements of any
insurance carrier, and shall be of a quality and class at least equal to the
original work, performed in a good and workmanlike manner with grades of
materials approved by Landlord. Tenant will give Landlord opportunity to
supervise all work. Tenant shall provide Landlord with permit drawings, as-built
sepia drawings, job cards and temporary certificates of occupancy for all
Alterations promptly upon their completion. Should Tenant make any Alterations
without Landlord's prior written approval, or in violation of such approval or
the requirements of this Paragraph 10.2, Landlord may, at any time during the
Term, either remove any part or all of the same on Tenant's behalf and at
Tenant's expense, or require that Tenant do so.
(c) If during the term of this Lease, any alteration, addition
or change of any sort, whether structural or otherwise to all or any portion of
the Premises or Building is required by law (including, but not limited to,
alterations required by the Americans with Disabilities Act of 1990 or any
-5-
<PAGE>
amendments thereto or any regulations prorogated thereunder (collectively the
"ADA") because of (i) Tenant's use or occupancy of the Premises or change of use
or occupancy of the Premises, (ii) Tenant's application for any permit or
governmental approval, (iii) Tenant's construction or installation of any
leasehold improvements or trade fixtures, (iv) any violation by Tenant of any
Law (including any requirement of the ADA), (v) any special use of the Premises
or any part thereof by Tenant or any subtenant or assignee of Tenant (including,
but not limited to any use for a facility which constitutes, or if open to the
public would generally constitute a "place of public accommodation" under the
ADA requirements), or (vi) any special needs of the employees of Tenant or any
assignee or subtenant of Tenant, then Tenant shall promptly make the same at its
sole cost and expense. Within ten (10) days after receipt, Tenant shall notify
Landlord in writing and provide Landlord with copies of (i) any notices alleging
any violation of any Law relating to the Premises or Tenant's occupancy or use
of the Premises, including any notices alleging violation of the Project or the
ADA to any portion of the Project or the Premises; (ii) any claims made or
threatened in writing regarding non-compliance with the ADA or any Law relating
to the Project or the Premises; or (iii) any governmental or regulatory actions
or investigations instituted or threatened regarding non-compliance with the ADA
or any Law relating to any portion of the Project or the Premises.
11. LIENS. Tenant shall not permit any lien on any part of the Premises,
Building or the Project allegedly resulting from any work or materials furnished
or obligations incurred by or for Tenant. Tenant shall discharge any such lien
of record immediately upon its filing. Neither this Lease, nor any request or
consent of Landlord to the labor, materials or obligations, is a consent to such
a lien. Landlord may keep posted on the Premises any notices it deems necessary
for protection from such liens. Landlord may cause such liens to be released by
any means it deems proper, including payment, at Tenant's expense and without
affecting Landlord's rights.
12. ENTRY. Landlord may enter any part of the Premises at all reasonable hours
(or in any emergency or suspected emergency, at any hour), to (a) inspect, test,
clean, or make repairs, alterations and additions to the Building or the
Premises as Landlord believes appropriate, or (b) provide any service which
Landlord is now or hereafter obligated to furnish to tenants of the Building or
the Project, or (c) show the Premises to prospective lenders, purchasers or
tenants and, if they are vacated, to prepare them for reoccupancy. Tenant hereby
waives any claim for abatement of rent or for damages for any injury,
inconvenience to or interference, loss of occupancy or quiet enjoyment caused by
Landlord's entry. Landlord shall at all times have keys to all doors to or in
the Premises.
13. INDEMNIFICATION AND EXCULPATION.
(a) Tenant will indemnify, defend and hold and save Landlord
and its employees, officers, directors, shareholders, partners and agents (each
an "Indemnitee") harmless from all fines, suits, losses, costs, expenses,
liabilities, claims, demands, actions, damages and judgments ("Liabilities")
suffered by, recovered from or asserted against the Indemnitee, of every kind
and character, resulting from (i) the operation, condition, maintenance, use or
occupancy of the Premises, (ii) any bodily injury, death or property damage
occurring in or about the Premises, (iii) any act, omission or neglect of Tenant
or its agents, or (iv) any breach or default in the performance in a timely
manner of any obligation on Tenant's part to be performed under this Lease.
Tenant, as a material part of the consideration to Landlord, hereby assumes all
risk of damage to property or injury to persons, in, upon or about the Premises
arising from any cause and Tenant hereby waives all claims in respect thereof
against Landlord.
(b) Landlord will indemnify, defend and hold and save Tenant
and its related Indemnitees harmless from and against all Liabilities suffered
by, recovered from or asserted against Tenant and its related Indemnitees, of
every kind and character, resulting from any injury or damage to person or
property within the Project but only to the extent caused by the gross
negligence or intentional misconduct of Landlord or its employees, agents,
contractors or invitees (not including other tenants of the Project).
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(c) If any such proceeding is brought, the indemnifying party
will retain counsel reasonably satisfactory to the indemnified party to defend
the indemnified party at the indemnifying party's sole cost and expense. All
such costs and expenses, including attorneys' fees and court costs, shall be a
demand obligation owing by the indemnifying party to the indemnified party. The
indemnifying party's obligations under this Paragraph 13 shall survive the
termination or expiration of this Lease.
14. INSURANCE. Tenant, during the term and any other period of occupancy, will,
at its expense, maintain insurance reasonably satisfactory to Landlord, but in
no event less than:
(a) General Liability insurance with combined single limits
not less than $3,000,000.00, for personal injury or death and property damage
occurring in or about or related to the use of the Premises or Tenant's (or its
agents, employees or representatives) use of the Building, Common Areas and
Project. Such comprehensive general liability insurance shall be extended to
include a "blanket contractual liability" endorsement insuring Tenant's
performance of Tenant's obligation to indemnify Landlord contained in Section 13
and all of the other broadened liability features normally contained in an
extended liability endorsement, including, provided Tenant uses Hazardous
Materials pursuant to Paragraph 28 without limitation, "Pollution Liability".
(b) "All Risk" insurance for 80% of the full replacement cost
of all Tenant's property on the Premises and all fixtures and leasehold
improvements in the Premises. Unless this Lease is terminated upon damage or
destruction, the proceeds of such insurance will be used to restore the
foregoing.
(c) Worker's Compensation (as required by state law), and
Employer's Liability insurance in the amount of not less than $500,000.00.
All policies required hereunder will be issued by carriers
rated A-VII or better by Best's Key Rating Guide and licensed to do business in
the State of California. The policies shall name Landlord, Landlord's managing
agent and any other person or entity that Landlord may designate from time to
time as additional insureds, with primary coverage non-contributing to and not
in excess of any insurance Landlord may carry, and shall provide that coverage
cannot be cancelled or materially changed except upon thirty (30) days prior
written notice to Landlord. At least thirty (30) days prior to expiration of
such policies, and promptly upon any other request by Landlord, Tenant shall
furnish Landlord with copies of policies, or certificates of insurance,
evidencing maintenance and renewal of the required coverage. In the event Tenant
does not maintain said insurance, Landlord may, in its sole discretion and
without waiving any other remedies hereunder, procure said insurance and Tenant
shall pay to Landlord as Additional Rent the cost of said insurance plus a ten
percent (10%) administrative fee. If Landlord's lender, insurance advisor or
counsel reasonably determines at any time that the amount of such coverage is
not adequate, Tenant shall increase such coverage to such amount as Landlord's
lender, insurance advisor or counsel reasonably deems adequate but such right
may not be exercised by Landlord more than once every two (2) years. The limit
of such insurance shall not limit the liability of Tenant.
During the Term, Landlord shall insure the Building (excluding
any property which Tenant is obligated to insure) against damage with All-Risk
insurance (including earthquake as commercially reasonable) and public liability
insurance, business interruption insurance to protect against any interruption
or disturbance to Tenant's business conducted in the Premises for up to twelve
(12) months and, all in such amounts and with such deductibles as Landlord
considers appropriate. Landlord may, but shall not be obligated to, obtain and
carry any other form or forms of insurance as it or its Mortgagees may determine
advisable. Tenant has no right to receive any proceeds from any insurance
policies carried by Landlord. Notwithstanding anything in the foregoing to the
contrary, however, Landlord may self-insure.
If the acts or omissions of Tenant or Tenant's employees,
agents, contractors or invitees, whether or not Landlord has consented to the
same, increase the cost of Landlord's insurance, Tenant will pay the full cost
of any such increase as additional rent.
15. NO SUBROGATION. The parties shall use their best commercial efforts to
obtain property insurance policies affecting the Premises which include a clause
or endorsement denying the insurer any
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rights of subrogation against the other party. Landlord and Tenant waive any
rights or recovery against the other for any actually insured injury or loss and
any injury or loss required to be insured against hereunder.
16. DAMAGE OR DESTRUCTION. If the Premises or any part thereof are damaged by
fire or other casualty, Tenant will promptly notify Landlord.
16.1. Cancellation of Lease; Restoration of Building. If the Building
or the Premises are damaged by fire or other casualty to the extent that
substantial alteration or reconstruction is required in Landlord's sole opinion,
Landlord may terminate this Lease by notifying Tenant within sixty (60) days
after the later of the date the damage occurs, or the date Landlord is so
notified by any holder ("Mortgagee") of a mortgage or deed of trust (blanket or
otherwise) covering any part of the Building ("Mortgage"), in which event the
rent under this Lease will be abated as of the date of the fire or other
casualty. In the event Landlord elects to terminate this Lease, Tenant shall
have the right within ten (10) days of receipt of the required notice to notify
Landlord, in which event this Lease shall continue in full force and effect, and
Tenant shall proceed to make such repairs as soon as reasonably possible (or
Landlord may elect, in its sole discretion, to require Tenant to pay to Landlord
within ten (10) days following written request therefor, or furnish evidence
reasonably satisfactory to Landlord of Tenant's ability to fund, that portion of
the cost of such repair or restoration which is not covered by insurance
proceeds, in which event Landlord shall proceed to make such repairs). If Tenant
does not give such notice within the ten (10) day period, this Lease shall be
cancelled and terminated as of the date of the occurrence of such damage. All
insurance proceeds available from the fire and property damage insurance carried
by Landlord pursuant to Paragraph 14 shall be paid to and become the property of
Landlord. If this Lease is not terminated, then within seventy-five (75) days
after the fire or other casualty, or such greater period as may be reasonably
necessary, Landlord will commence to repair and restore the Premises and any
portion of the Building required for access to the Premises, and will diligently
complete the same, but Landlord is not required (a) to expend more for such
repair of the Premises than the net insurance proceeds (after any payment
required under any Mortgage) reasonably allocable to the Premises, or (b) to
rebuild, repair or replace any of Tenant's furniture, furnishings, fixtures or
equipment removable by Tenant under the provisions of this Lease or which Tenant
has insured or is required to insure under the provisions of this Lease.
Notwithstanding the above, if the damage to the Building or Premises was caused
by the fault, omission or negligence of Tenant, its agents, employees,
contractors or invitees, such damage shall be repaired by and at the expense of
Tenant under the direction and supervision of Landlord, and there shall be not
abatement of rent.
16.2. Casualty Loss During Last Year of Lease. If the Premises are
damaged by fire or other casualty during the last twelve (12) months of the
Term, whether or not the damage requires substantial repair and reconstruction,
Landlord may cancel this Lease as of the date of the fire or casualty by notice
to Tenant within thirty (30) days thereafter; provided, however, that if any
unexercised option to extend the Term is in then full force and effect, then
Tenant may exercise such option within the ten (10) days after receipt of such
cancellation and this Lease shall continue in effect for the remainder of the
extended Term, subject to all the other provisions hereof.
16.3. Abatement of Rent. Landlord will allow Tenant a fair diminution
of rent while and to the extent the Premises are unfit for occupancy due to fire
or other casualty. Except as expressly provided to the contrary in this Lease,
this Lease will not terminate, and Tenant will not be entitled to damages or to
any abatement of rent or other charges, as a result of a fire or other casualty,
repair or restoration Tenant hereby waives the provisions of California Civil
Code Sections 1932(2) and 1933(4) which permit termination of a lease upon
destruction of Premises, and any other present or future statute that may so
permit.
17. CONDEMNATION. If all or substantially all of the Building or of the Premises
is taken for any public or quasi-public use under any governmental law,
ordinance or regulation or by right of eminent domain or is sold to the
condemning authority in lieu of condemnation, then this Lease will terminate
when physical possession is taken by the condemning authority. If a lesser but
material portion of the Building is thus taken or sold (whether or not the
Premises are affected thereby), Landlord may terminate
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this Lease by notice to Tenant within sixty (60) days after the taking or sale,
in which event this Lease will terminate when physical possession of the
applicable portion of the Building or the Premises is taken by the condemning
authority. If the Lease is not terminated, rent payable will be reduced by the
amount allocable to any portion of the Premises so taken or sold, and Landlord,
at its sole expense, will restore the affected portion of the Building to
substantially its former condition as far as commercially feasible, but not
beyond the work done by Landlord in originally constructing the affected portion
of the Building and installing tenant improvements in the Premises. However,
Landlord need not spend more for such restoration of the Premises than the
Premises' allocable share of the net compensation or damages received by
Landlord for the part of the Building taken. Landlord shall be entitled to
receive all of the compensation awarded upon a taking of any part or all of the
Building or Premises, including any award for any unexpired term of this Lease.
Tenant may seek an award in separate proceedings for its personal property,
trade fixtures and moving expenses.
In the event of such taking or sale of the Premises or any part thereof
for temporary use of not more than one (1) year, this Lease shall remain
unaffected and rent shall not abate, and Tenant shall be entitled to such
portion or portions of any award made for such use with respect to the period of
the taking which is within the Term, provided that, if such taking shall remain
in force at the expiration or earlier termination of this Lease, Tenant shall
then pay to Landlord a sum equal to the reasonable cost of performing Tenant's
obligations with respect to surrender of the Premises.
To the extent that it is inconsistent with the provisions of this
Paragraph 17, each party hereto hereby waives the provisions of Section 1265.130
of the California Code of Civil Procedure allowing either party to petition a
court to terminate this Lease in the event of a partial taking of the Premises.
18. DEFAULTS AND REMEDIES.
18.1. Events of Default. The occurrence of one or more of the following
events shall constitute a material default and breach hereunder by Tenant:
18.1.1 Tenant fails to make a payment within three (3) days
after written notice that it is due hereunder; or
18.1.2 Tenant fails to comply with any other obligation under
this Lease and does not cure such failure as soon as reasonably practicable and
in any event within twenty (20) days after written notice or, if such failure is
not susceptible of cure within twenty (20) days, as soon as reasonably
practicable after such written notice, provided Tenant commences to cure within
such twenty (20) day period and diligently prosecutes such cure to completion;
or
18.1.3 Tenant attempts any Assignment (as defined in Paragraph
19) except as expressly permitted pursuant to Paragraph 19; or
18.1.4 Tenant or any Guarantor becomes insolvent, makes a
transfer in fraud of creditors or an assignment for the benefit of creditors,
admits in writing its inability to pay its debts as they become due, or files a
petition under any Section or Chapter of the United States Bankruptcy Code or
any similar law or statute; or an order for relief is entered with respect to
Tenant or any Guarantor in any bankruptcy, reorganization or insolvency
proceedings; or a pleading seeking such an order is not discharged or denied
within sixty (60) days after its filing; or the taking of any action at the
corporate or partnership level by Tenant to authorize any of the foregoing
actions on behalf of Tenant; or a receiver or trustee is appointed for all or
substantially all assets of Tenant or any guarantor or of the Premises or any of
Tenant's property located thereon in any proceedings brought by Tenant or
Guarantor, or any receiver or trustee is appointed in any proceeding brought
against Tenant or Guarantor and not discharged within sixty (60) days after
appointment or Tenant or Guarantor does not contest such appointment; or any
part of Tenant's estate under this Lease is taken by process of law in any
action against Tenant (but in the event that any provision of this Paragraph
18.1.4 is contrary to any applicable law, such provision shall be of no force or
effect); or
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18.1.5 Tenant abandons or vacates the Premises; or
18.1.6 Three (3) times within any twelve-month period, Tenant
fails to fulfill an obligation under this Lease, even if Tenant thereafter cures
such failure within the time provided.
Any notice specified above shall serve as, and not be
in addition to, any notice required under California Code of Civil Procedure
Section 1161 or otherwise regarding unlawful detainer actions.
18.2. Remedies. On an event of default, Landlord may terminate this
Lease by notice to Tenant, or continue this Lease in full force and effect,
and/or perform Tenant's obligations on Tenant's behalf and at Tenant's expense.
18.2.1 If and when this Lease is so terminated, all rights of
Tenant and those claiming under it will terminate. In such event, Landlord may
immediately recover from Tenant:
(a) The worth at the time of award of any unpaid rent
which had been earned at the time of such termination; plus
(b) The worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant proves could
have been reasonably avoided; plus
(c) The worth at the time of award of the amount by
which the unpaid rent for the balance of the term after the time of award
exceeds the amount of such rental loss that Tenant proves could be reasonably
avoided; plus
(d) Any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform Tenant's
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, including but not limited to the unamortized
principal balance of any suspended rent, moving allowance, Tenant's Allowance,
Broker's commission, legal and other professional fees and other costs incurred
by Landlord in connection with the entering into of this Lease, using an
amortization schedule equal to the initial term of this Lease (or the Extension
Term, if any Extension Option has been exercised) and a discount rate of the
Prime Rate plus 4% per annum, plus (A) expenses for cleaning, repairing or
restoring the Premises; (B) expenses for altering, remodeling or otherwise
improving the Premises for the purpose of reletting, including installation of
leasehold improvements (whether such installation be funded by a reduction of
rent, direct payment or allowance to the succeeding lessee, or otherwise); (C)
real estate broker's fees, advertising costs and other expenses of reletting the
Premises; (D) costs of carrying the Premises such as taxes and insurance
premiums thereon, utilities and security precautions; (E) expenses in retaking
possession of the Premises; and (F) attorneys' fees and court costs.
As used in Subsections (a) and (b) above, the "worth at the
time of award" is computed by allowing interest at the Prime Rate, plus four
percent (4%) per annum (or at the maximum rate permitted by law, whichever is
less). As used in Subsection (c) above, the "worth at the time of award" is
computed by discounting such amount at the discount rate of the Federal Reserve
Bank of San Francisco at the time of award plus one percent (1%). Until Tenant
confirms in writing that this Lease is terminated, Landlord's failure to relet
the Premises shall not constitute a failure to mitigate damages.
18.2.2 Landlord shall have the remedy described in California
Civil Code Section 1951.4 (Landlord may continue this Lease in effect after
Tenant's breach, even if Tenant has abandoned the Premises, and enforce all of
Landlord's rights and remedies under this Lease, including the right to recover
rent as it becomes due, if Tenant has the right to sublet or assign, subject
only to reasonable limitations).
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18.2.3 Upon an event of default or when Tenant is no longer
entitled to possession, Landlord may enter the Premises and dispose of Tenant's
property as herein provided, and may perform Tenant's obligations hereunder on
Tenant's behalf. Tenant will reimburse Landlord on demand for Landlord's
attorneys' fees and other expenses in doing so. This Paragraph 18.2.3 shall
survive expiration or termination of this Lease.
18.3. Continuing Liability. No repossession, re-entering or reletting
of the Premises or any part thereof by Landlord shall relieve Tenant or any
Guarantor of its liabilities and obligations under this Lease.
18.4. Remedies Cumulative. All rights and remedies of Landlord under
this Lease will be non-exclusive of and in addition to any other remedies
available to Landlord at law or in equity.
18.5. No Waiver. Landlord's failure to insist on strict compliance with
any terms hereof or to exercise any right or remedy, does not waive the same.
Waiver of any agreement regarding any breach does not affect any subsequent or
other breach, unless so stated. A receipt by Landlord of any rent with knowledge
of the breach of any covenant or agreement contained in this Lease shall not be
a waiver of the breach, and no waiver by Landlord of any violation or provision
of this Lease shall be effective unless expressed in writing and signed by
Landlord. Payment by Tenant or receipt by Landlord of a lesser amount than due
under this Lease may be applied to such of Tenant's obligations as Landlord
elects. No endorsement or statement on any check, and no accompanying letter,
shall make the same an accord and satisfaction, and Landlord may accept any
check or payment without prejudice to Landlord's right to recover the balance of
the rent or pursue any other remedy provided in this Lease.
19. ENCUMBRANCES, ASSIGNMENT AND SUBLETTING. Except upon Landlord's written
consent, which shall not be unreasonably withheld or delayed, or as otherwise
permitted herein, Tenant may not assign, transfer, or encumber this Lease or any
estate or interest herein, or permit the same to occur, or sublet or grant any
right of occupancy for any part of the Premises, or permit such occupancy by any
other parties other than Tenant and Tenant's employees, or modify or terminate
any agreement providing for any of the foregoing (the foregoing collectively
referred to as "Transfer," and the other party thereto the "Transferee"). Any
prohibited Transfer is voidable by Landlord.
19.1. Conditions of Transfer. Landlord's consent to a Transfer may,
without limitation, be conditioned on Landlord's determination whether (a) the
Transferee will conduct business of a quality equal to that of Tenant,
consistent with the character of the Project and its occupants, and consistent
with any exclusives or other rights held by or contemplated for other occupants,
and (b) the Transferee's financial responsibility shall equal or exceed that of
Tenant and that which is then required by Landlord, whichever is greater.
Consent by Landlord to any Transfer shall not be a waiver of Landlord's rights
as to any subsequent Transfers. Any approved Transfer shall be expressly subject
to the terms and conditions of this Lease. If Tenant's obligations under this
Lease have been guaranteed by third parties (herein called "Guarantors"), then
Landlord's consent to the Transfer may be conditioned upon Landlord's receipt of
the written consent of each Guarantor to such Transfer and the terms thereof. In
the event of any Transfer, each transferor and all Guarantors will remain fully
responsible and liable for all of Tenant's obligations under this Lease, and the
Transferee will automatically be jointly and severally liable to the extent of
the transferred portion of the Premises. Upon an event of default, as
hereinafter defined, while a Transfer is in effect, Landlord may collect
directly from the Transferee all sums becoming due to Tenant under the Transfer
and apply this amount against any sums due Landlord by Tenant, and Tenant
authorizes and directs any Transferee to make payments directly to Landlord upon
notice from Landlord. No direct collection by Landlord from any Transferee shall
constitute a novation or release of Tenant or any Guarantor, a consent to the
Transfer or a waiver of the covenant prohibiting Transfers. Landlord, as
Tenant's agent, may endorse any check, draft or other instrument payable to
Tenant for sums due under a Transfer, and apply the proceeds in accordance with
this Lease; this agency is coupled with an interest and is irrevocable.
19.2. Request to Assign or Sublet; Cancellation. With any request for
consent to a Transfer, Tenant will submit a copy of the proposed Transfer
document to Landlord and notify Landlord of
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the proposed effective date of the Transfer, the name of the proposed Transferee
(accompanied by evidence of the nature, character, and financial condition of
the Transferee and its business), and all terms and conditions (including
rental) of or relating to the Transfer. Notwithstanding anything to the contrary
in this Paragraph 19, within thirty (30) days of such request (or any time, if
Tenant enters into any Transfer without obtaining the consent of Landlord),
Landlord, by notice to Tenant, may terminate this Lease (and, in the case of a
sublease of substantially all the Premises for the balance or substantially all
the balance of the Term, Landlord may terminate this Lease in its entirely or
may terminate this Lease as to all or any portion of the Premises proposed to be
sublet), as of the proposed effective date of the Transfer as if that were the
original Termination Date (or immediately, if Tenant enters into the Transfer
without obtaining the consent of Landlord). If Landlord so elects to terminate,
Landlord shall have the right to relet the Premises (or the portion of the
Premises as to which this Lease is terminated pursuant to Landlord's election as
a result of a sublease) or any portion thereof to anyone (including the proposed
Transferee) on any terms, and Tenant shall not be entitled to any portion of any
profit Landlord may realize as a result of any such reletting. If this Lease is
terminated as to a portion of the Premises as a result of the foregoing, then
Base Rent, Tenant's Share of Operating Expenses, Tenant's parking rights (if
any), and any other provisions hereof based upon the rentable area of the
Premises shall be reduced by the amount allocable to such portion of the
Premises so terminated.
19.3. Excess Rent. If the consideration Tenant receives for any
Transfer exceeds the rent payable under this Lease for the same period and
portion of the Premises and Tenant's subleasing expenses such as broker's
commissions, advertising costs and tenant improvements, then fifty percent (50%)
of the excess shall be immediately due and payable by Tenant to Landlord as
Additional Rent under this Lease.
19.4. Transfers to Related Entities. "Transfer" within the meaning of
this Paragraph 19 shall not include any sublease or assignment of all or a
portion of the Premises to any (i) person, corporation or partnership which
controls, is controlled by or is under common control with Tenant; (ii) a
successor corporation related to Tenant by merger, consolidation, nonbankruptcy
reorganization or government action; or (iii) a purchaser of substantially all
of the Tenant's assets; provided that, in each instance described above, (a) the
transferee assumes the obligations of the Tenant under this Lease in a written
instrument delivered to Landlord; (b) the transferor Tenant remains liable as a
primary obligor for the obligations of Tenant under this Lease; and (c) the
financial strength of the transferee Tenant is no less than Tenant's financial
strength as of the Commencement Date or the date of such Transfer, whichever is
greater. Tenant shall notify Landlord of any such transfer to a related or
successor entity prior to its consummation.
20. SUBORDINATION. This Lease and all rights of Tenant under this Lease are
subordinate to any of the following, and any modifications thereof, which may
now or hereafter affect any portion of the Building: any Mortgage, or any ground
or underlying lease covering any part of the Building, provided that the
Mortgage holder or ground lessor shall agree that Tenant's peaceable possession
of the Premises will not be disturbed on account of such subordination so long
as Tenant is not in default and performs all obligations hereunder. On sale by
foreclosure of a Mortgage or sale in lieu of foreclosure, Tenant will attorn to
the purchaser if requested by such purchaser, and recognize the purchaser as the
Landlord under this Lease. These provisions are self-operative and no further
instrument is required to effect them; however, upon demand from time to time,
Tenant shall execute, acknowledge and deliver to Landlord any instruments
necessary or proper to evidence such subordination and/or attornment or, if
Landlord so elects, to render any of the foregoing subordinate to this Lease or
to any or all rights of Tenant hereunder. Tenant further waives the provisions
of any current or future statute, rule or law which may give or purport to give
Tenant any right or election to terminate or otherwise adversely affect this
Lease and the obligations of Tenant hereunder in the event of any such
foreclosure proceeding or sale, and agrees that this Lease shall not be affected
in any way whatsoever by any such proceeding or sale unless the Mortgagee, or
the purchaser, shall declare otherwise.
21. ESTOPPEL CERTIFICATE. Upon Landlord's written request from time to time,
Tenant will execute and deliver to Landlord, within ten (10) days after Tenant's
receipt of Landlord's written request, certificates, an example of which is
attached hereto as Exhibit D, certifying: (i) the date of
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commencement of this Lease; (ii) the fact that this Lease is unmodified (except
as the certificate specifies) and in full force and effect; (iii) the date to
which the sums payable under this Lease have been paid; (iv) that there are no
current defaults under this Lease by either Landlord or Tenant except as
specified; and (v) such other matters as Landlord requests. This certification
may be relied upon by any actual or prospective Mortgagee or purchaser of all or
part of the Building or any interest therein or in Landlord. Failure to so
execute and deliver said certificate shall be deemed a default under this Lease.
22. SIGNS. Intentionally deleted.
23. SURRENDER OF PREMISES. As soon as its right to possession ends, Tenant will
surrender the Premises to Landlord with all originally painted interior walls
washed, or re-painted if marked or damaged and other interior walls and doors
cleaned and repaired or replaced, all carpets cleaned and in good condition, the
HVAC equipment inspected, serviced and repaired by a reputable and licensed
service firm and all floors cleaned and waxed and otherwise in as good repair
and condition as when Tenant first occupied, except for reasonable wear and
tear, and for damage or destruction by fire or other casualty for which Tenant
is not otherwise responsible. Tenant will concurrently deliver to Landlord all
keys to the Premises, and restore any locks which it has changed to the system
which existed at the commencement of the Term. If possession is not immediately
surrendered by Tenant, Landlord may 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.
23.1. Leasehold Improvements and Fixtures. At the expiration or
termination of the Term, Landlord may require the removal of any or all
Alterations, personal property and equipment from the Premises, and the
restoration of the Premises to its condition as when Tenant first occupied,
except for reasonable wear and tear, at Tenant's expense. Unless Landlord
requires their removal pursuant to this Lease, all Alterations made to the
Premises shall remain upon and be surrendered with the Premises at the
expiration or termination of the Term. All personal property and equipment on or
about the Premises, other than that which is affixed to the Premises so that it
cannot be removed without material damage to the Premises or the Building, shall
be removed from the Premises by Tenant (if it is not in default) at the
expiration or termination of the Term. All removals by Tenant will be
accomplished in a good and workmanlike manner so as not to damage any portion of
the Premises or Building, and Tenant will promptly repair and restore all damage
done. If Tenant does not so remove any property which it has the right or duty
to remove, Landlord may immediately either claim it as abandoned property, or
remove, store and dispose of it in any manner Landlord may choose, at Tenant's
cost and without liability to Tenant or any other party.
23.2. Holding Over. If Tenant does not surrender the Premises as
required and holds over after its right to possession ends, Tenant shall become
a tenant at sufferance only, at a monthly rental rate equal to one hundred fifty
percent (150%) of the total rent payable in the last prior full month, or the
then existing fair market rental, whichever is greater, without renewal,
extension or expansion rights, and otherwise subject to the terms, covenants and
conditions herein specified, so far as applicable. Nothing other than a fully
executed written agreement of the parties creates any other relationship. Tenant
is liable for Landlord's loss, costs and damage from such holding over,
including, without limitation, those from Landlord's delay in delivering
possession to other parties. These provisions are in addition to other rights of
Landlord hereunder and as provided by law.
24. PROFESSIONAL FEES. Landlord shall be entitled to reasonable attorneys' fees
and all other costs and expenses incurred in the preparation and service of
notices of default and consultations in connection therewith, whether or not a
legal action is subsequently commenced in connection with such default. In any
dispute between the parties (whether or not litigated) arising hereunder or out
of Tenant's use or occupancy of the Premises, the prevailing party's reasonable
costs and expenses (including fees of attorneys and experts) will be paid or
reimbursed by the unsuccessful party.
25. GENERAL PROVISIONS.
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25.1. Mortgagee Protection. Tenant shall not sue Landlord for damages
or exercise any right to terminate until (a) it gives written notice to any
Mortgagee whose name and address have been furnished to Tenant, and (b) a
reasonable time for remedying the act or omission giving rise to such suit has
elapsed following the giving of the notice, without the same being remedied.
During that time, Landlord shall not be considered in default, and Landlord
and/or any Mortgagee and/or their employees, agents or contractors may enter the
Premises and do therein whatever may be necessary to remedy the act or omission.
25.2. Transfer of Landlord's Interest. Landlord may transfer, assign or
convey any or all of its interest in the Building or its rights under this
Lease. Upon transfer of its rights under this Lease, Landlord is freed and
relieved of all then future obligations under this Lease, the transferee shall
be deemed to have assumed those obligations, and Tenant will look solely to the
successor to Landlord. This Lease shall inure to the benefit of and bind all
parties hereto and their respective successors and assigns.
25.3. Waiver. Tenant waives any right it may now or hereafter have (i)
to redeem the Premises or to have a continuance of this Lease after termination
of the Lease, Tenant's right of occupancy or the Term (ii) for exemption of
property from liability for debt or for distress for rent, (iii) relating to
notice or delay in levy of execution in case of eviction for nonpayment of rent.
The parties agree that in any litigation under this Lease for the relationship
it creates, the judge, rather than the jury, shall determine any matters of fact
relating to Transfers, bankruptcy or similar matters or to the structural or
mechanical systems of the Building.
25.4. Identification of Tenant. If there is more than one party
constituting Tenant or any Guarantor, their obligations are joint and several,
and Landlord may proceed against any one or more of them before proceeding
against the others, nor shall any party constituting Tenant or Guarantor be
released for any reason whatsoever, including, without limitation, any amendment
of this Lease, any forbearance by Landlord or waiver of any of Landlord's
rights, the failure to give any party constituting Tenant or Guarantor any
notices, or the release of any party liable for the payment of Tenant's
obligations. If there is more than one party constituting Tenant, any of them
acts for all others in every regard with respect to this Lease (including but
not limited to any renewal, extension, expiration, termination or modification).
25.5. Interpretation of Lease. Tenant acquires no rights by implication
from this Lease, and is not a beneficiary of any past, current or future
agreements between Landlord and third parties. Surrender or cancellation of this
Lease shall not work a merger, and shall, at Landlord's option, assign to it all
subleases or subtenancies. The delivery of keys to Landlord or Landlord's
Managing Agent is not a termination of this Lease or a surrender of the
Premises. Headings in this Lease are for convenience only, and do not affect the
meaning of the text. Unless context indicates otherwise, words of any gender or
grammatical number include all genders and numbers. Where context conflicts with
the definition of any term, context will control, but only for that use and
related uses. If any provision of this Lease or any application thereof is
invalid, void or illegal, no other provision or application shall be affected.
Time is of the essence of every provision of this Lease. California law governs
this Lease. Neither party may record this Lease or a copy or memorandum thereof.
Submission of this Lease to Tenant is not an offer, and Tenant will have no
rights hereunder until each party executes a counterpart and delivers it to the
other party.
25.6. Limitation on Liability. Landlord's rights hereunder are solely
for Landlord's benefit, and Landlord has no duty to exercise them for the
benefit of Tenant or others. Any liability of Landlord to Tenant under this
Lease, or arising from the relationship under it, is limited to the lesser of
(i) the value of the equity interest of Landlord in the Building or (ii) twenty
percent (20%) of the value of the Building, and Landlord and Landlord's
employees, officers, directors, shareholders, partners and agents shall not be
personally liable for any deficiency; but this does not limit or deny any
remedies which do not involve personal liability. Tenant shall not, however,
name Landlord's employees, officers, directors, shareholders, partners and
agents as a defendant in any action seeking to impose personal liability on any
one or more of them. If Tenant proposes any action which requires Landlord's
consent and such
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consent is impermissibly withheld, denied or delayed, Tenant may seek an
injunction or specific performance but shall not be entitled to damages
therefor.
25.7. Financial Statements. Tenant represents, warrants and covenants
that financial statements heretofore or hereafter furnished to Landlord, in
connection with this Lease, are accurate and are not materially misleading. At
any time during the Term, Tenant shall, upon ten (10) days prior written notice,
provide Landlord with a current financial statement and financial statements of
the two (2) years prior to the current financial statement year, and prepared in
accordance with generally accepted accounting principles and, if such is
Tenant's normal practice, audited by an independent certified public accountant.
25.8. Quiet Enjoyment. If Tenant pays all sums and performs all its
other obligations under this Lease, Tenant shall and may peaceably and quietly
have, hold and enjoy the Premises, subject to this Lease and to rights to which
the Lease is subordinate. Tenant acknowledges that it may be subject to
inconveniences typical of projects under development such as construction,
maintenance and repair in other areas of the Project and Building, and further
acknowledges that the Building and the Project are subject to sight, sound and
overflight by general aviation aircraft.
25.9. Payments and Notices. Any notice or document shall be considered
received when personally delivered by mail, messenger, overnight courier or
otherwise to, or whether actually received or not, on the third day after
deposit in the United States mail, postage prepaid, registered or certified
mail, return receipt requested, addressed to the parties hereto at the
respective addresses set forth on the signature page of this Lease, or to Tenant
at the Premises, or at such other address as they may specify from time to time
by written notice delivered in accordance with this Paragraph 25.9, except that
if such day is not a business day, the notice or document will be considered
delivered on the next business day. All payments required to be made by Tenant
to Landlord are to be paid, without prior demand except as may be specified and
without any setoff, deduction or counterclaim whatsoever, in legal tender of the
United States of America at the address set forth on the invoice or, if no
invoice is submitted or no address is set forth, at the address for the Landlord
set forth on this Lease or at any other address as Landlord may specify from
time to time by written notice in accordance with this Paragraph 25.9.
25.10. Late Payments. If any amounts due hereunder from Tenant are not
received by Landlord within ten (10) days after said amounts are due, Tenant
shall also pay to Landlord a late charge of six percent (6%) of all such past
due amounts for which the parties agree is a fair and reasonable estimate of the
extra costs (including, without limitation, processing and accounting charges)
Landlord will incur by reason of the late payment. Acceptance of any late charge
shall not constitute a waiver of Tenant's default with respect to such overdue
amount, or prevent Landlord from exercising any of its other rights and
remedies. Any amounts overdue from Tenant hereunder shall accrue interest from
the date due at the Prime Rate plus two percent (2%) per annum. If Tenant is
late in the payment of Base Rent for two (2) consecutive months, Landlord may
require Tenant to pay Base Rent in advance on a quarterly basis. If any check or
other payment device is returned due to insufficient funds or any other reason,
Landlord may require all future payments to be made by money order or cashier's
check.
25.11. Rules and Regulations. Tenant shall comply with the Rules and
Regulations (as changed from time to time as therein provided) attached hereto
as Exhibit E.
25.12. Rights Reserved by Landlord. In addition to other rights
retained or reserved, Landlord reserves the following rights, exercisable
without notice and without liability to Tenant and without effecting an
eviction, constructive or actual, or in any way diminishing Tenant's
obligations: (a) to change the name or street address of the Building or
Project; (b) to install and maintain, modify or remove any signs on the exterior
and interior of the Building or Project; (c) to designate and approve, prior to
installation, all types of interior and exterior window treatments and to
control all internal lighting that may be visible from the exterior of the
Building; (d) the exclusive right to designate, limit, restrict and control any
business and any service in or to the Project or its tenants; (e) to keep, and
to use in appropriate instances, keys to all doors within and into the Premises
(no locks shall be changed or added without the prior, written consent of
Landlord); (f) to decorate and make repairs, alterations or additions, whether
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structural or otherwise, in and about any part of the Project and to enter the
Premises for these purposes and, during such work, to temporarily close doors,
entryways, public space and corridors in the Building or Project, to interrupt
or temporarily suspend Building services and facilities and to change the
arrangement and location of entrances or passageways, windows, doors and
doorways, corridors, elevators, stairs, toilets, or other public parts of the
Building or Project; (g) to approve the weight, size and location of safes and
other heavy equipment and articles in and about the Premises and the Building,
and to require all such items and furniture to be moved into and out of the
Building and Premises only at times and in such manner as Landlord directs
(movement of Tenant's property is entirely at the risk and responsibility of
Tenant, and Landlord reserves the right to require permits before allowing any
property to be moved into or out of the Building); (h) to have access for
Landlord and other tenants of the Building to any mail receptacles located on
the Project according to the rules of the United States Postal Service; (i) to
close any part of the Common Areas to the extent necessary in Landlord's opinion
to prevent the accrual of any prescriptive rights, to temporarily close any part
of the Common Areas to repair and maintain them or for any other reasonable
purpose, or to change the nature of the Common Areas, including without
limitation changes in the location, size, shape, and number of driveways,
entrances, parking spaces, parking areas, loading and unloading areas, ingress,
egress, direction of traffic, landscaped areas, and walkways; and (j) to take
all reasonable measures Landlord considers advisable for the security of the
Project and its occupants.
25.13. Responsibility for Others. Where either party waives rights
against the other party, it also waives the same rights against the other
party's employees, officers, directors, shareholders, partners, agents,
contractors and invitees. The waiver shall be considered a waiver on behalf of
the party making it, of all that party's employees, officers, directors,
shareholders, partners and agents, and of anyone claiming under any of them,
including insurers and creditors. Wherever in this Lease Tenant agrees not to do
a particular thing, Tenant also agrees not to permit its employees, agents,
contractors or invitees to do so.
25.14. Landlord's Costs. Where Tenant is required to pay or reimburse
Landlord for the costs of any item, the cost shall be the reasonable and
customary charge established by Landlord from time to time, including a
reasonable allocation of Landlord's overhead, administrative and related costs
associated with the ownership and operation of the Building. Failure to pay any
reimbursable cost shall be treated as a failure to pay rent. In connection with
any request by Tenant for the consent of Landlord to an Alteration, Transfer or
other act proposed by Tenant under this Lease, Tenant shall pay Landlord's
reasonable costs and expenses incurred in connection therewith, including
attorneys', architects', engineers' and other consultants' fees.
25.15. Invoices. Tenant will promptly notify Landlord of any dispute it
may have regarding Landlord's invoices. If Tenant does not notify Landlord
within thirty (30) days after receiving the invoice, it shall be conclusively
deemed to have agreed to the invoice and all underlying facts.
25.16. Force Majeure. When a period of time is herein prescribed for
action to be taken by Landlord, Landlord shall not be liable or responsible for,
and there is excluded from the computation for any such period of time, any
delays due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions or any other cause of any kind
whatsoever which are beyond the control of Landlord. Subject to the preceding
sentence, time is of the essence of every part of this Lease.
25.17. Lender Modification. Tenant agrees to make such reasonable
modifications to this Lease as may reasonably be required in connection with the
obtaining of normal financing or refinancing of the Building.
25.18. Negotiated Transaction. The parties mutually acknowledge that
this Lease has been negotiated at arm's length. The provisions of this Lease
shall be deemed to have been drafted by all of the parties and this Lease shall
not be interpreted or constructed against any party solely by virtue of the fact
that such party or its counsel was responsible for its preparation.
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THIS LEASE CONTAINS ALL AGREEMENTS OF THE PARTIES CONCERNING THIS SUBJECT
MATTER, SUPERSEDING ANY SUCH PRIOR AGREEMENTS, REPRESENTATIONS OR WARRANTIES,
AND MAY BE AMENDED OR MODIFIED ONLY BY A WRITTEN AGREEMENT SIGNED BY BOTH
PARTIES.
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of
the date first above written.
LANDLORD'S ADDRESS LANDLORD:
c/o RNM Properties RNM LAKEVILLE, L.P., a California Limited
135 Main Street, Suite 1140 Partnership
San Francisco, CA 94105
By RNM PETALUMA, INC., a California
corporation, its Managing General Partner
Attention: John R. McNulty
By ______________________________________
John R. McNulty, Its President
TENANT'S ADDRESS Date ____________________________________
At the Premises: TENANT:
Attention: Bruce Wilson
Tenant and the person executing HEALTHY PLANET PRODUCTS, INC., a
this Lease on Tenant's behalf Delaware corporation
represent and warrant that they are
duly authorized and empowered so to
execute and deliver this Lease, and
that this Lease is binding upon By ______________________________________
Tenant in accordance with its (signature)
terms.
______________________________________
(print name)
Its _____________________________________
(insert title)
Date ____________________________________
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ADDENDUM
TO LEASE
This Addendum is made and entered into by and between RNM Lakeville, L.P., a
California Limited Partnership, as Landlord, and HEALTHY PLANET PRODUCTS, INC.,
a Delaware corporation, as Tenant, and is dated as of the date set forth on the
first page of the Lease between Landlord and Tenant to which this Addendum is
attached (the "Lease"). The promises, covenants, agreements and declarations
made and set forth herein are intended to and shall have the same force and
effect as if set forth at length in the body of the Lease. To the extent that
the provisions of this Addendum are inconsistent with the terms and conditions
of the Lease, the terms of this Addendum shall control.
26. TENANT'S EXTENSION OPTION. Tenant's options to extend the term of the Lease
under the Existing Lease have lapsed and are no longer in effect. Tenant has no
further option to extend.
27. PARKING. Tenant shall be entitled to the non-exclusive use of up to thirty
(30) unreserved and unassigned parking spaces in the Common Areas in accordance
with Landlord's rules and regulations as may be amended from time to time and
such areas as are designated by Landlord. Notwithstanding the above, Landlord
shall designate two parking spaces at the front of the Building for Tenant's
visitors, and the other spaces shall located along the side or rear of the
Building. Tenant shall not park any vehicle other than ordinary passenger
vehicles in the Common Areas, except for loading purposes. Loading and loading
is permitted only on designated loading docks or areas. Tenant shall not at any
time park or permit the parking of Tenant's vehicles or trucks, or the vehicles
or trucks of Tenant, its employees, invitees, suppliers or others, in any
portion of the Common Area not designated by Landlord for such use by Tenant.
Tenant shall not abandon any inoperative vehicles or equipment on any portion of
the Common Area, nor shall Tenant, its employees, invitees, suppliers or others
park or store any vehicle (permitted size or otherwise) on any portion of the
Common Area, including designated parking areas, unattended for any period
longer than twenty-four (24) hours. Vehicles parked in violation of this Section
shall be subject to towing at Tenant's expense.
28. HAZARDOUS MATERIAL.
28.1. Use Restrictions. Tenant shall not use, generate, manufacture,
produce, store, release, discharge or dispose of, on, under or about the
Premises, or transport to or from the Premises, any Hazardous Materials or allow
its employees, Agents, contractors, invitees or any other person or entity to do
so except in full compliance with all Federal, state and local laws, regulations
and ordinances and this Agreement. The term "Hazardous Materials" shall include
without limitation: (1) Those substances included within the definitions of
"hazardous substances", "hazardous materials", "toxic substances" or "solid
waste" under CERCLA, RCRA and the Hazardous Materials Transportation Act, 49
U.S.C. Sections 1801, et seq. and in the regulations promulgated pursuant to
said Laws; (2) Those substances defined as "hazardous wastes" in Section 25117
of the California Health & Safety Code, or as "hazardous substances" in Section
25316 of the California Health & Safety Code, and in the regulations promulgated
pursuant to said Laws; (3) Those substances listed in the United States
Department of Transportation Table (49 CFR 172.101 and amendments thereto) or
designated by the Environmental Protection Agency (or any successor agency) as
hazardous substances; (4) Such other substances, materials and wastes which are
or become regulated under applicable local, state or federal Law or the United
States government, or which are or become classified as hazardous or toxic under
federal, state or local Laws or regulations; and (5) Any material, waste or
substance which is (i) petroleum, (ii) asbestos, (iii) polychlorinated
biphenyls, (iv) designated as a "hazardous substance" pursuant to Section 311 of
the Clean Water Act of 1977, 33 U.S.C. Sections 1251, et seq. (33 U.S.C. Section
1321) or listed pursuant to Section 307 of the Clean Water Act of 1977 (33
U.S.C. Section 1317), (v) flammable explosives, or (vi) radioactive materials.
28.2. Tenant's Indemnity. Tenant shall be liable to Landlord for and
indemnify and hold Landlord harmless against all damages (including
investigation and remedial costs), liabilities, losses
ADDENDUM-1
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(including diminution of value of the Premises), fines, penalties, fees, and
claims arising out of Tenant's and Tenant's agents' activities associated with
Hazardous Materials, including all costs and expenses incurred by Landlord in
remediating, cleaning up, investigating or responding to any governmental or
third party claims, demands, orders or enforcement actions. In the event Tenant
and/or Tenant's agents' activities with Hazardous Materials create a
contamination problem on or adjacent to the Premises, the Building or the
Project, Tenant shall promptly commence investigation and remedial activities to
fully clean up the problem. If appropriate or required by law, these activities
shall be conducted in conjunction with Federal, state and local oversight and
approvals. If any action of any kind is required or requested to be taken by any
governmental authority to clean-up, remove remediate or monitor any Hazardous
Materials (the presence of which is the result of the acts or omissions of
Tenant or its Agents) and such action is not completed prior to the expiration
or earlier termination of the Lease, Tenant shall be deemed to have
impermissibly held over until such time as such required action is completed,
and Landlord shall be entitled to all damages directly or indirectly incurred in
connection with such holding over, including, without limitation, damages
occasioned by the inability to re-let the Premises or a reduction of the fair
market and/or rental value of the Premises.
28.3. Assignment and Subletting. It shall not be unreasonable for
Landlord to withhold its consent to any proposed assignment or subletting if (i)
the proposed assignee's or subtenant's anticipated use of the Premises involves
the storage, generation, discharge, transport, use or disposal of any Hazardous
Material in a greater intensity and scope than Tenant's then-existing use, or
(ii) the proposed assignee or subtenant has been required by any prior landlord,
Lender or governmental authority to "clean-up" or remediate any Hazardous
Material and has failed to do so, or (iii) the proposed assignee or subtenant is
subject to a criminal investigation or enforcement order or proceeding by any
government authority in connection with the use, generation, discharge,
transport, disposal or storage of any Hazardous Material.
28.4. List of Hazardous Materials. Upon request of Landlord, Tenant
shall provide Landlord with a list of Hazardous Materials (and the quantities
thereof) which Tenant uses or stores (or intends to use or store) on the
Premises, which list shall be attached to this Lease as Exhibit F.
(a) Prior to Tenant using, handling, transporting or storing
any Hazardous Material at or about the Premises, Tenant shall submit to Landlord
a Hazardous Materials Management Plan ("HMMP") for Landlord's review and
approval, which approval shall not be unreasonably withheld. The HMMP shall
describe: (aa) the quantities of each material to be used, (bb) the purpose for
which each material is to be used, (cc) the method of storage of each material,
(dd) the method of transporting each material to and from the Premises and
within the Premises (ee) the methods Tenant will employ to monitor the use of
the material and to detect any leaks or potential hazards, and (ff) any other
information any department of any governmental entity (city, state or federal)
requires prior to the issuance of any required permit for the Premises or during
Tenant's occupancy of the Premises. Landlord may, but shall have no obligation
to review and approve the foregoing information and HMMP, and such review and
approval or failure to review and approve shall not act as an estoppel or
otherwise waive Landlord's rights under this Lease or relieve Tenant of its
obligations under this Lease. If Landlord determines in good faith by inspection
of the Premises or review of the HMMP that the methods in use or described by
Tenant are not adequate in Landlord's good faith judgment to prevent or
eliminate the existence of environmental hazards, then Tenant shall not use,
handle, transport, or store such Hazardous Materials at or about the Premises
unless and until such methods are approved by Landlord in good faith and added
to an approved HMMP. Once approved by Landlord, Tenant shall strictly comply
with the HMMP and shall not change its use, operations or procedures with
respect to Hazardous Materials without submitting an amended HMMP for Landlord's
review and approval as provided above.
(b) Tenant shall pay to Landlord when Tenant submits an HMMP
(or amended HMMP) the amount reasonably determined by Landlord to cover all
Landlord's costs and expenses reasonably incurred in connection with Landlord's
review of the HMMP which costs and expenses shall include, among other things,
all reasonable out-of-pocket fees of attorneys, architects, or other consultants
incurred by Landlord in connection with Landlord's review of the HMMP. Landlord
shall have no obligation to consider a request for consent to a proposed HMMP
unless and until Tenant has paid all
ADDENDUM-2
<PAGE>
such costs and expenses to Landlord irrespective of whether Landlord consent to
such proposed HMMP. Tenant shall pay to Landlord on demand the excess, if any,
of such costs and expenses actually incurred by Landlord over the amount of such
costs and expenses actually paid by Tenant over the amount such costs and
expenses actually incurred by Landlord. Tenant shall immediately notify Landlord
or any inquiry, test, investigation, enforcement proceeding by or against Tenant
or the Premises concerning any Hazardous Material. Any remediation plan prepared
by or on behalf of Tenant must be submitted to Landlord prior to conducing any
work pursuant to such plan and prior to submittal to any applicable government
authority and shall be subject to Landlord's consent. Tenant acknowledges that
Landlord, as the owner of the Property, at its election, shall have the sole
right to negotiate, defend, approve and appeal any action taken or order issued
with regard to any Hazardous Material by any applicable governmental authority.
Landlord shall have the right to appoint a consultant to conduct an
investigation to determine whether any Hazardous Material is being used,
generated, discharged, transported to or from, stored or disposed of in, on,
over, through, or about the Premises, in an appropriate and lawful manner and in
compliance with the requirements of this Lease. Tenant, at its expense, shall
comply with all reasonable recommendations of the consultant required to conform
Tenant's use, storage or disposal of Hazardous Materials to the requirements of
applicable Law or to fulfill the obligations of Tenant hereunder.
28.5. Landlord's Indemnity. Landlord shall be liable to Tenant for and
indemnify and hold Tenant harmless against all damages (including investigation
and remedial costs), liabilities and claims arising out of Landlord's and
Landlord's agents' activities associated with Hazardous Materials, and arising
out of any Hazardous Materials existing on or under the Building as of the
Commencement Date, including all costs and expenses incurred by Tenant in
remediating, cleaning up, investigating or responding to any governmental or
third party claims, demands, orders or enforcement actions.
28.6. Provisions Survive Termination. Upon the expiration or earlier
termination of the Lease, Tenant, at its sole cost, shall remove all Hazardous
Materials from the Premises that Tenant or its Agents introduced to the
Premises. The provisions of this Section 28 shall survive the expiration or
termination of this Lease.
29. COMMON AREAS.
(a) Landlord hereby grants to Tenant, for the benefit of
Tenant and its employees, suppliers, shippers, customers and invitees, during
the term of this Lease, the non-exclusive right to use, in common with others
entitled to such use, the Common Areas as they exist from time to time, subject
to any rights, powers, and privileges reserved by Landlord under the terms
hereof or under the terms of any rules and regulations or restrictions governing
the use of the Project. Under no circumstances shall the right herein granted to
use the Common Area be deemed to include the right to store any property,
temporarily or permanently, in the Common Area or to construct or install any
improvements in the Common Area. Any such storage shall be permitted only by the
prior written consent of Landlord or Landlord's designated agent, which consent
may be revoked at any time. In the event that any unauthorized storage shall
occur, the Landlord shall have the right, without notice, in addition to such
other rights and remedies that it may have, to remove the property and charge
the cost to Tenant, which cost shall be immediately payable by Tenant to
Landlord upon demand by Landlord.
(b) Landlord or such other person(s) as Landlord may appoint,
shall have the exclusive control and management of the Common Areas and shall
have the right, from time to time, to establish, modify, amend and enforce
reasonable rules and regulations with respect thereto. Tenant agrees to abide by
and conform to all such rules and regulations, as well as any private
conditions, covenants, and restrictions of public record now or hereafter
affecting the Premises and any amendment thereof, and to cause its employees,
suppliers, shippers, customers and invitees to abide and conform. Landlord shall
not be responsible to Tenant for the non-compliance with said rules and
regulations by other tenants or authorized users of the Project. Any failure by
Tenant or its agents, employees or representatives to observe and comply with
the rules and regulations established by Landlord with respect to the Common
Areas shall be a default by Tenant hereunder.
ADDENDUM-3
<PAGE>
(c) Landlord shall have the right in Landlord's sole
discretion, from time to time: (i) to make changes to the Common Areas,
including, without limitation, changes in the location, size, shape and number
of driveways entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, landscaped areas and walkways;
(ii) to close temporarily any of the Common Areas for maintenance purposes, so
long as reasonable access to the Premises remains available; (iii) to designate
other land outside the boundaries of the Project to be a part of the Common
Areas; (iv) to add additional buildings and improvements to the Common Areas;
(v) to use the Common Areas while engaged in making additional improvements,
repairs or alterations to the Project, or any portion thereof; (vi) to close, at
reasonable times, all or any portion of the parking areas for any reasonable
purpose, including without limitation, the prevention of a dedication thereof,
or the accrual of the rights of any person or public therein; and, (vii) to do
and perform such other acts and make such other changes in, to or with respect
to the Common Areas and the Project as Landlord may, in the exercise of sound
business judgment, deem to be appropriate.
30. EXISTING LEASE.
30.1. Conditions to Acceptance. As material consideration for
Landlord's agreeing to supercede the Existing Lease with this Lease, Tenant
shall perform the following:
(a) Surrender to Landlord the 34,181 square feet of Rentable
Area designated on Addendum B ("Surrendered Premises") no later than December
31, 1999 (the "Surrender Date"), free of all subtenants, in good and clean
condition, with light fixtures, doors, walls and floors clean, patched and
otherwise in good repair (including repair of loading dock doors) and otherwise
in conformance with the provisions of the Existing Lease, except that Tenant
shall not (i) remove or disable any cabling or communications wiring within the
Surrendered Premises or (ii) remove any improvements, fixtures, trade fixtures,
additions or alterations from the Surrendered Premises, except for its personal
property and trade fixtures which are not affixed to the Surrendered Premises.
Tenant shall restore any and all damage to the Surrendered Premises resulting
from the removal of its property. Tenant shall fully perform its obligations
with respect to the Existing Lease through the Surrender Date, including payment
of rent thereunder for the Premises and the Surrendered Premises.
(b) Prior to the Surrender Date, Tenant shall construct a
demising wall between the Surrendered Premises and the Premises in accordance
with such plans as are approved by Landlord and in accordance with applicable
laws, rules, regulations, ordinances, and building codes ("Tenant Work"). In the
event Tenant has not completed the demising wall by January 15, 2000, or
Landlord reasonably believes Tenant will not complete such construction by said
date, then Landlord, following three (3) days notice to Tenant, shall assume
control of such construction, and Tenant shall reimburse Landlord for all costs
and expenses incurred by Landlord in connection with such construction, together
with an administrative fee equal to 5% of such Landlord costs. Further, Tenant
shall reimburse Landlord for the costs of separating the electrical service
(including installing separate meters) for the Surrendered Premises and the
Premises.
(c) Tenant shall pay to Landlord $61,449.60 (the "Termination
Payment") in four (4) equal monthly installments of $15,362.40 each on the first
day of each calendar month commencing on the Commencement Date. Failure to pay
all or any portion of the Termination Payment may, at the election of the
Landlord, be deemed a failure to pay rent under this Lease.
30.2. Entry by Landlord. Notwithstanding the provisions of the Lease,
commencing upon execution of this Agreement, Landlord, following written or oral
notice to Tenant, may enter upon the Surrendered Premises to show the
Surrendered Premises to prospective tenants and measure and plan for future
tenants. Further, it Tenant is not occupying the Surrendered Premises, Landlord
may enter the Surrendered Premises to commence construction of tenant
improvements therein, without such entry being deemed an early surrender of the
Surrendered Premises, a trespass by Landlord, or any interference with Tenant's
use and quiet enjoyment of the Surrendered Premises or Premises.
ADDENDUM-4
<PAGE>
EXHIBIT A
LEASE
Definitions
Building means the building in which the Premises are located,
identified as 1720-1736 Corporate Circle, Petaluma, California. The total
Rentable Area of the Building is 78,269 square feet.
Business days means Monday through Friday, except holidays; "holidays"
means those holidays specified by the laws of the United States or State of
California, and all holidays to which maintenance employees of the Building are
entitled from time to time under their union contract or other agreement.
CC&Rs means all restrictions of public record affecting the Building,
Project or Tenant's use of the Premises, including but not limited to that
certain Amended and Restated Declaration of Covenants, Conditions and
Restrictions recorded on March 23, 1998, in the Official Records of Sonoma
County California as serial number 98-28875, as amended from time to time.
Common Areas means all areas within the Building and the Project which
are not designated for the exclusive use of Tenant, Landlord or any other
tenant, including but not limited to parking areas, loading and unloading areas
and docks, platforms, trash areas, roadways, sidewalks, landscaping, ramps,
driveways, recreations areas, greenbelts, common entrances, restrooms and
accessways, and the common pipes, conduits, wires and appurtenant equipment
serving the Premises, and similar areas and facilities appurtenant to the
Building and the Project.
Guarantor means any guarantor of any of Tenant's obligations under this
Lease.
Lease Years means successive periods of twelve (12) full calendar
months, beginning on the Commencement Date. If the Commencement Date is not the
first day of a month, then the first Lease Year also includes the partial month
in which the Commencement Date occurs.
Mortgage means any mortgage or Deed of Trust, blanket or otherwise,
covering any part of the Building.
Mortgagee means the holder of a Mortgage.
Operating Expenses means any and all costs, expenses and disbursements
of every kind and character which Landlord incurs, pays or becomes obligated to
pay at any time during the Term in connection with its ownership interest in the
Building, Common Areas and Project and associated land and parking, or the
operation, maintenance, management, repair, replacement, and security thereof;
plus, with respect to such costs, expenses, and disbursements for the Project
which do not exclusively pertain to a single building, the portion which
Landlord reasonably allocates to the Building. Operating costs include, without
limitation, any and all assessments Landlord must pay pursuant to the CC&Rs and
any other covenants, conditions or restrictions, reciprocal easement agreements,
tenancy-in-common agreements or similar restrictions and agreements affecting
the Building or the Project; rent taxes, gross receipt taxes (whether assessed
against Landlord or assessed against Tenant and paid by Landlord, or both);
water and sewer charges; accounting, legal and other consulting fees; the net
cost and expense of insurance, including loss of rents coverage, for which
Landlord is responsible hereunder or which Landlord or any Mortgagee reasonably
deems necessary or desirable (including losses borne by Landlord as a result of
deductibles carried by Landlord under any insurance policy or self insurance by
Landlord); utilities not paid directly by Tenant; security; labor; utilities
surcharges, or any other costs levied, assessed or imposed by, or at the
direction of, or resulting from statutes or regulations or interpretations
thereof, promulgated by any federal, state, regional, municipal or local
government authority in connection with the use or occupancy of the Building,
the Project or the Common Areas; the cost (subject to the exclusions set forth
below) of any equipment used in connection in operations and of any capital
improvements; air conditioning; waste disposal; heating, ventilating; elevator
maintenance and supplies; materials; equipment; tools; repair and
EXHIBIT A
Page A-1
<PAGE>
maintenance of the Building, including the structural portion of the Building,
and the plumbing, heating, ventilating, air conditioning, electrical and
building management systems installed or furnished by Landlord; maintenance
costs, including utilities and payroll expenses, rental of personal property
used in maintenance, gardening and landscaping, repaving and all other upkeep of
all Common Areas; maintenance of signs (other than Tenant's signs); personal
property taxes levied on or attributable to personal property used in connection
with the entire Building or Project, including the Common Areas; reasonable
audit or verification fees; costs and expenses of repairs, resurfacing,
repairing, maintenance, painting, lighting, cleaning, refuse removal, security
and similar items, including appropriate reserves; and costs reasonably incurred
to reduce or contest Real Property Taxes and other Operating Expenses. Operating
Expenses shall also include costs incurred in the management of Building,
including supplies, wages and salaries of employees used in the management,
operation, repair and maintenance of the Building, and payroll taxes and similar
governmental charges with respect thereto, management office rental, and a
management fee, which costs and fee shall not, in the aggregate, exceed one and
one quarter percent (1.25%) of the Rent and Additional Rent hereunder, excluding
therefrom the management fee. Operating Expenses paid or incurred by Landlord
during any calendar year of the Lease term during which the occupancy rate in
the Project is less than ninety-five percent (95%) shall be adjusted upward to
reflect (i) a ninety-five percent (95%) occupancy rate for the Project , and
(ii) assuming a tax appraisal of the Project as though it were completed and
fully-occupied.
Exclusions from Operating Expenses: Notwithstanding the above,
Operating Expenses shall not include the following:
(i) Interest, principal, depreciation, and other lender costs
and closing costs on any mortgage or mortgages, ground lease payments, or other
debt instrument encumbering the Building or Project;
(ii) Any bad debt loss, rent loss, or reserves for bad debt or
rent loss;
(iii) Interest or penalties resulting from late payment of any
Operating Expense by Landlord due to Landlord's negligence or willful misconduct
(unless Landlord in good faith disputes a charge and subsequently loses or
settles that dispute);
(iv) Costs associated with operation of the business of the
ownership of the Building or Project or entity that constitutes Landlord or
Landlord's property manager, as distinguished from the cost of Building
operations, including the costs of partnership or corporate accounting and legal
matters; defending or prosecuting any lawsuit with any mortgagee, lender, ground
lessor, broker, tenant, occupant, or prospective tenant or occupant; selling or
syndicating any of Landlord's interest in the Building or Project; and disputes
between Landlord and Landlord's property manager;
(v) Landlord's general corporate or partnership overhead and
general administrative expenses, including the salaries of management personnel
who are not directly related to the Building or Project and primarily engaged in
the operation, maintenance, and repair of the Building or Project, except to the
extent that those costs and expenses are included in the management fees;
(vi) Advertising, promotional expenditures and leasing
expenses primarily directed toward leasing tenant space in the Project;
(vii) Leasing commissions, space-planning costs, attorney fees
and costs, disbursements, and other expenses incurred in connection with
leasing, other negotiations, or disputes with tenants, occupants, prospective
tenants, or other prospective occupants of the Project, or associated with the
enforcement of any leases;
(viii) Charitable or political contributions;
(ix) Costs for which Landlord is reimbursed;
EXHIBIT A
Page A-2
<PAGE>
(x) Damage or loss results from any casualty which Landlord
has covenanted to insure against, except to the extent of deductibles
contemplated herein;
(xi) Any costs or expenses that are incurred directly or
indirectly with respect to Landlord's indemnity obligations under this Lease;
(xii) Fees paid to any affiliate or party related to Landlord
to the extent such fees exceed the charges for comparable services rendered by
unaffiliated third parties of comparable skill, stature and reputation in the
same market; and
(xiii) As to the costs of capital improvements, replacements,
repairs, equipment and other capital costs, all such costs shall be amortized
over the useful life of such improvement, replacement, repair or equipment in
accordance with generally accepted accounting principles together with interest
at the Prime Rate on the unamortized balance.
Premises means the approximate area shown on Exhibit B. Landlord hereby
reserves for its sole and exclusive use, the roof, any and all mechanical,
electrical, telephone and similar rooms, janitor closets, elevator, pipe and
other vertical shafts and ducts, flues, stairwells; the area above the
acoustical ceiling; facilities serving parts of the Building or Project other
than the Premises; and any other area not shown on Exhibit B as being part of
the Premises.
Prime Rate means the rate of interest published in the "Money Rates"
column of Wall Street Journal as the Prime Rate, as such rate may change from
time to time (or, if such rate is no longer published in the Wall Street
Journal, such reasonable substitute as Landlord may select).
Project means the Building, the Common Areas, and any other buildings
or facilities owned by Landlord and operated together with the Building.
Real Property Taxes means any form of general or special assessment,
license fee, license tax, business license fee, any form of real estate tax or
assessment, general, special, ordinary or extraordinary, and any license fee,
commercial rental tax, improvement bond, levy or tax (other than inheritance,
personal income or estate taxes) imposed on the Building, the Project or any
portion thereof by any authority having the direct or indirect power to tax,
including any city, county, state or federal government, or any school,
sanitary, fire, street, drainage or other improvement district, or any other
governmental entity or public corporation, as against (a) any legal or equitable
interest of Landlord in the Building, the Project or any portion thereof, (b)
Landlord's right to rent or other income therefrom, (c) the square footage
thereof, (d) the act of entering into any lease, (e) the occupancy of tenant or
tenants generally, or (f) Landlord's business of leasing the Building, the
Project or any portion thereof. The term "real property taxes" shall also
include any tax, fee, levy, assessment or charge including, without limitation,
any so-called value added tax, (i) which is in the nature of, in substitution
for or in addition to any tax, fee, levy, assessment or charge hereinbefore
included within the definition of "real property taxes," (ii) which is imposed
for a service or right not charged for prior to June 1, 1978, or if previously
charged for, which has been increased since June 1, 1978, (iii) which is imposed
or added to any tax or charge hereinbefore included within the definition of
real property taxes as a result of a "change in ownership" of the Building, the
Project or any portion thereof, as defined by applicable statutes and
regulations, for property tax purposes, or (iv) which is imposed by reason of
this transaction, any modification or change hereto or any transfer hereof.
Tenant's Share means the percentage of the cost of Operating Expenses
for which Tenant is obligated to reimburse Landlord pursuant to this Lease.
Landlord shall determine Tenant's Share of the cost of Operating Expenses using
the following methods: (a) by multiplying the cost of all Operating Expenses by
a fraction, the numerator of which is the number of square feet of Rentable Area
in the Premises and the denominator of which is the number of square feet of
Rentable Area in all buildings in the Project; or (b) (i) with respect to an
Operating Expense attributable solely to the Building, requiring Tenant to pay
that portion of the cost of the Operating Expense that is obtained by
multiplying such cost by a fraction, the numerator of which is the number of
square feet of Rentable Area in the Premises and the denominator of which is the
number of square feet of Rentable Area in the entire Building, (ii) with
EXHIBIT A
Page A-3
<PAGE>
respect to an Operating Expense attributable to the Common Areas of the Project,
but not any particular building in the Project, requiring Tenant to pay that
portion of the cost of the Operating Expense that is obtained by multiplying
such cost by a fraction, the numerator of which is the number of square feet of
Rentable Area in the Premises and the denominator of which is the number of
square feet of Rentable Area in all buildings in the Project.
Year or year means a calendar year.
EXHIBIT A
Page A-4
<PAGE>
EXHIBIT C
TENANT ITEMS TO BE REMOVED AT TERMINATION
o Gas Heaters (2)
o Transformer
o Two sub panels
o Electrical conduit & wiring
o Ceiling Electrical Drops
o Two power disconnects
o Telephone & Data Cabling
o Magnetic Starter
EXHIBIT C
Page C-1
<PAGE>
EXHIBIT E
SAMPLE FORM OF
TENANT ESTOPPEL CERTIFICATE
____________________________________________ ("Tenant") hereby
certifies to ___________ as follows:
1. Attached hereto is a true, correct and complete copy of a lease
dated _______________, 19___, between RNM Lakeville, L.P. ("Landlord") and
Tenant (the "Lease"), which demised premises located at ___________________,
_____________ California (the "Property"). The Lease is now in full force and
effect and has been amended, modified, supplemented, extended, renewed or
assigned by and only by the following described agreements, copies of which are
attached hereto (if none, so indicate), all of which (together with the Lease)
are hereby ratified: ___________________________________________________________
_________________________________________
2. The term of this Lease commenced on _________, 19__ and will expire
on _______________, 19__.
3. Tenant has accepted and is now in possession of said premises.
4. Tenant and Landlord acknowledge that the Lease will be assigned to
__________ and that no modification, adjustment, revision or cancellation of the
Lease or amendments thereto shall be effective unless written consent of
________________________________________________ is obtained, and that until
further notice, payments under the Lease may continue as heretofore.
5. The amount of fixed monthly rent is $__________. Tenant is paying in
full lease rental which has been paid in full as of the date hereof. No rent
under the Lease has been paid for more than thirty (30) days in advance of its
due date.
6. The amount of security deposits (if any) is $____________. No other
security deposits have been made.
7. All work required to be performed by Landlord or Tenant under the
Lease has been performed, except for the following (if none, so indicate) ______
_________________________________________
8. There are no defaults on the part of the Landlord or Tenant under
the Lease, except for the following (if none, so indicate) _____________________
_________________________________________
9. Tenant has no defense as to its obligations under the Lease and
claims no setoff or counterclaim against Landlord, except for the following (if
none, so indicate) _____________________________________________________________
_________________________________________
10. Tenant has no right to any concession (rental or otherwise) or
similar compensation in connection with renting the space it occupies except as
provided in the Lease, except for the following (if none, so indicate) _________
_________________________________________
EXHIBIT D
Page D-1
<PAGE>
The foregoing certification is made with the knowledge that
________________________ is about to (fund a loan to) (purchase the Property
from) Landlord and that said party is relying upon the representations herein
made in (funding such loan) (making such purchase).
Dated: ___________, 19___.
TENANT:
________________________________________
By: ____________________________________
Its: ___________________________________
EXHIBIT D
Page D-2
<PAGE>
EXHIBIT E
RULES AND REGULATIONS
1. The sidewalks, plazas, halls, passages, exits, entrances, elevators,
stairways and lobbies of the Building and the other Common Areas shall
not be obstructed by Tenant or used by it for any purpose other than
for ingress to and egress from the Premises. Landlord retains the right
to control and prevent access to the Common Areas of all persons whose
presence in the judgement of the Landlord would be prejudicial to the
safety, character, reputation and interests of the Project and its
tenants, or who it believes are engaged in illegal or objectionable
activities.
2. Except for signage authorized in the Lease, no sign, placard, picture,
name, advertisement or notice visible from the exterior of the Building
or Premises shall be inscribed, painted, affixed or otherwise displayed
by Tenant on any part of the Building or in any area outside the
Premises and any such sign, placard, picture, name, advertisement or
notice may be removed by Landlord without notice to and at the expense
of Tenant. No sign will be permitted on any door visible from outside
the Premises without Landlord's written approval. All approved signs or
lettering on doors shall be printed, painted, affixed or inscribed at
the expense of Tenant by a person approved by Landlord, which approval
will not be unreasonably withheld. Tenant shall not place anything
within the Premises which is visible from outside the Building of the
Premises, with the exception of ordinary office furnishings, plants and
equipment.
3. With the exception of typical catering and food warming activities, no
cooking shall be done or permitted by Tenant on the Premises, except
that use by Tenant of Underwriters' Laboratory-approved portable
equipment for brewing coffee, tea, hot chocolate and similar beverages
shall be permitted, as shall the use of similarly-approved microwave
ovens for personal use by Tenant's employees, provided that such use is
in accordance with all applicable federal, state, and local laws,
codes, ordinances, rules and regulations. Tenant's employees may
prepare food items solely for their own personal consumption and for
guests, and shall not prepare or sell, or permit to be prepared or
sold, any consumable items whatsoever in the Premises or in the
Building. In the event pest control is required within the Premises as
a result of food preparation or other activities by Tenant, Tenant
shall contract and pay for such services.
4. No person or persons other than those approved by Landlord shall be
permitted to enter the Building for the purpose of cleaning same.
Tenant shall not cause any unnecessary labor by reason of Tenant's
carelessness or indifference in the preservation of good order and
cleanliness.
5. Landlord will initially furnish to Tenant, free of charge, two keys per
lockset to the Premises, and Landlord may make a reasonable charge for
additional keys. No additional locking devices shall be installed in
the Premises by Tenant, nor shall any locking device be changed or
altered in any respect without the prior written consent of Landlord.
Landlord may make reasonable charge for any additional lock or any bolt
(including labor) installed on any door of the Premises. All locks
installed in the Premises shall be identified in writing to Landlord
and shall be keyed to the Building master key system, with the
exception of locks leading to vaults, safes or other secured areas as
previously identified in writing to Landlord. The installation of such
vaults, safes or other secured areas by Tenant will be subject to
Landlord's prior written approval, which shall not be unreasonably
withheld. Tenant, upon the termination of its tenancy, shall deliver to
Landlord all keys to doors in the Premises and all access cards and
I.D. cards, if any, to the Building.
6. Landlord and Tenant shall mutually agree to a reasonable time for
Tenant's initial move to the Premises. Tenant shall reimburse Landlord
upon demand for any additional security or other charges incurred by
Landlord as a consequence of a major move. Any third parties employed
by Tenant to move equipment or other items in or out of the Building
must be approved in advance by Landlord. The floors, corners and walls
of corridors used for the moving of equipment or other items into or
out of the Building must be adequately covered, padded and protected,
and Landlord
EXHIBIT E
Page E-1
<PAGE>
may elect to provide such padding and protection, at Tenant's expense,
if Landlord determines that such measures undertaken by Tenant or
Tenant's movers are inadequate. Landlord shall have the right to
prescribe the maximum weight, size and position of all equipment,
materials, supplies, furniture or other property bought into the
Building, but this right shall apply only if the weight, size or
position of same could reasonably be expected to exceed the load
capacity of the floors and structure of the Building, or if in
Landlord's reasonable estimation the position of such items creates a
hazard or interferes with operation of the building systems. Heavy
objects shall, if considered necessary by Landlord, be placed on a
platform of such thickness as is necessary to properly distribute the
weight of such objects. Landlord shall not be responsible for loss of
or damage to the Building resulting from moving or maintaining Tenant's
property and shall be repaired at the expense of Tenant.
7. Tenant agrees to cooperate in any delivery scheduling programs for the
Common Areas, including restriction of deliveries or pickups to
reasonable periods as may be determined by Landlord. In its use of the
loading and unloading areas of the Building, Tenant shall not obstruct
or permit the obstruction of the Common Areas, and at no time shall
Tenant store materials, furniture, or equipment, or park vehicles
therein.
8. Tenant shall not permit the use, storage or disposal in the Premises or
the Building of any kerosene, gasoline or toxic, hazardous, flammable,
combustible or noxious gas, fluid or materials, except reasonable
quantities of normal office supplies used, stored and disposed of in
accordance with manufacturers' specifications, nor use without
Landlord's prior written approval any method of heating or air
conditioning other than that supplied by Landlord. Tenant shall not
permit or suffer the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the
Building by reason of noise, odors, and/or vibrations, nor interfere in
any way with other tenants or persons having business in the Building.
Tenant shall not bring or permit to be brought into the Building any
firearm. Tenant shall be solely responsible for repairing any damage
and liable for any injury to any person caused as a result of a
violation of this provision by Tenant.
9. Landlord reserves the right to exclude from the Building at all times
other than the usual business hours of the Building, as established by
Landlord, all persons who do not have proper evidence of Tenant's prior
authorization to enter the Premises after hours. Landlord may establish
at its discretion what shall constitute proper evidence, which may
include I.D. cards, special passes or other forms or methods. Tenant
shall be responsible to Landlord for all persons for whom it requests
such access, and shall be liable to Landlord for any and all acts of
such persons. Landlord shall in no case be liable for damages for any
error with regard to the admission to or exclusion from the Building of
any person. In the case of invasion, mob, riot, public excitement or
other circumstances rendering such action advisable in Landlord's sole
opinion, Landlord reserves the right to prevent access to the Building
during the continuance of same by such action as Landlord may deem
appropriate, including closing and securing any doors in the Building.
10. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, hangings or decorations shall be attracted to or placed in,
or used in connection with, any window of the Building without the
prior written consent of the Landlord, other than standard window
coverings.
11. Tenant shall use reasonable procedures to see that the doors of the
Premises are closed and locked and that all water faucets, water
apparatus, light switches, cooking facilities and office equipment
(excluding office equipment required to be operative at all times) are
shut off before Tenant or Tenant's employees leave the Premises, so as
to prevent waste or damage. Tenant shall at all times comply with any
rules or orders of the fire department or any other government agency
with respect to ingress and egress.
12. The toilets, urinals, wash bowls and other restroom facilities shall
not be used for any purpose other than that for which they are
constructed, no foreign substance of any kind whatsoever shall be
placed therein, and the expense of repairing any breakage, stoppage or
damage resulting from the violation of this rule shall be borne by the
tenant whose employees or invitees shall have caused it.
EXHIBIT E
Page E-2
<PAGE>
13. Tenant shall not install any radio or television antenna, loudspeaker,
or other device on or about the Common Areas or the roof or exterior
walls of the Building. No television, radio or other audio or visual
apparatus shall be used in the Premises in such a manner as to cause a
nuisance to any other Project tenant or to interfere with any
frequencies used in connection with Building operations.
14. Tenant shall at all times maintain the Premises in a neat, professional
and first-class manner, and shall show the same standard of care with
regard to the Common Areas. Tenant shall store all its trash and
garbage within the Premises until removal of same to such location in
the Common Areas as may be designated from time to time by Landlord,
and at no time shall Tenant store any trash or garbage in any of the
hallways, stairways, elevator or stairway lobbies, loading areas,
entrances or exits for the Building. No fluid or material shall be
placed with Tenant's trash and garbage or be placed in the Building
trash boxes or receptacles if such fluid or material is of such nature
that it may not be disposed of in the ordinary and customary manner of
removing and disposing of trash and garbage in the City of Petaluma
without being in violation of any law or ordinance governing such
disposal. Tenant shall pay reasonable extra charges as determined by
Landlord for any unusual trash disposal.
15. Canvassing, soliciting, peddling, or distribution by Tenant to other
Project tenants or visitors of handbills or any other written material
in the Project is prohibited, and Tenant shall not permit such
activities by its employees or invitees. Tenant shall cooperate in
reporting to Landlord any such activities of solicitors in the
Building.
16. Tenant shall immediately, upon written request from Landlord (which
request need not be in writing), reduce its lighting in the Premises
for temporary periods designated by Landlord, when required in a
temporary emergency situation caused by earthquake or other force
majeure event to prevent overloading of the mechanical or electrical
systems of the Building.
17. Tenant shall not place any load on the floors of the Premises or the
Building exceeding the live load capacity thereof as determined by
Landlord. Tenant shall not use electricity for lighting, machines or
equipment in excess of the consumption load of the Premises as
determined by Landlord. Except as permitted in accordance with the
Lease, Tenant shall not alter any of the Building systems, including
but not limited to heating, air conditioning, and other mechanical or
electrical systems, without the prior written consent of Landlord.
18. Landlord reserves the right to exclude or expel from the Project any
person who is, in the judgement of Landlord, intoxicated or under the
influence of alcohol or other drug, or acting in a violent or
disruptive manner, or who shall in any manner do any act in violation
of any of the Rules and Regulations of the Building.
19. No animals of any kind shall be permitted at any time in the Premises
or the Building, with the exception of guide animals for the
handicapped employees or invitees of Tenant.
20. Any charges which Tenant is obligated by these Rules to pay shall be
deemed additional rent under the Lease, and should Tenant fail to pay
the same within ten (10) days after written demand, such failure shall
be treated as a default by Tenant to pay rent as due under the Lease.
21. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of these Rules and Regulations
in favor of any other tenant or tenants, nor prevent Landlord from
thereafter enforcing any such Rules and Regulations against any or all
of the tenants of the Building. All waivers shall be one time waivers
only unless in writing and specifically providing to the contrary.
22. These Rules and Regulations are in addition to, and shall not be
construed in any way to modify, alter or amend, in whole or part, the
terms, covenants, agreements and conditions of Tenant's Lease or any
other lease of premises in the Project. In the event of any conflict
between the terms
EXHIBIT E
Page E-3
<PAGE>
of these Rules and Regulations and the terms of any lease in the
Building, the terms of the lease shall prevail.
23. Landlord reserves the right to make such other reasonable rules and
regulations, or to amend or repeal these Rules and Regulations, as in
its judgement may from time to time be needed for the safety, care and
cleanliness of the Project and for the preservation of good order
therein.
24. Tenant shall be responsible for the observance of all of the foregoing
rules and regulations by Tenant's employees, agents, contractors,
clients, customers, invitees and guests. Tenant shall cooperate with
Landlord's educational programs for Landlord's policies and procedures
with regard to fire and life safety, earthquakes and any other
emergency or evacuation procedures of which Landlord shall notify
Tenant from time to time.
25. Tenant shall at all times require communication, telephone, computer
and all other similar types of vendors installing cables, lines, and
the like in the ceiling plenum, to support their work independently of
the ducts and ceiling grids.
EXHIBIT E
Page E-4
<PAGE>
EXHIBIT F
LIST OF HAZARDOUS MATERIALS
o 6 Volt Wet Cell Batteries
o Non-detergent Motor Oil
o Pneumatic Oil
o Lithium Grease
o Betco dust mop treatment
o Spartan DMQ Disinfectant
o Grants Ant Stakes
o 3M Spray Mount Adhesive
o Gillette Company Liquid Paper
o Copier and Printer Toner
o Copier Fusing Oil
o Copier Fusing Agent
o Pitney Bowes Meter Ink
o Printers Ink
o Ink Thinner
EXHIBIT F
Page F-1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders of
Healthy Planet Products, Inc.
We consent to the incorporation by reference in the registration statement of
Healthy Planet Products, Inc. on Form S-8 (File No. 33-84740) of our report
dated February 10, 2000 on our audits of the balance sheet of Healthy Planet
Products, Inc. as of December 31, 1999, and the related statements of
operations, shareholders' equity and cash flows for each of the two years in the
period ended December 31, 1999, which report is included in this Annual Report
on Form 10-KSB.
/s/ Moss Adams LLP
Santa Rosa, California
March 28, 2000
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 1,298,700
<SECURITIES> 0
<RECEIVABLES> 801,800
<ALLOWANCES> (258,500)
<INVENTORY> 520,500
<CURRENT-ASSETS> 2,481,500
<PP&E> 1,832,400
<DEPRECIATION> (1,293,700)
<TOTAL-ASSETS> 3,688,000
<CURRENT-LIABILITIES> 1,048,200
<BONDS> 0
0
3,100
<COMMON> 38,400
<OTHER-SE> 2,598,300
<TOTAL-LIABILITY-AND-EQUITY> 3,688,000
<SALES> 3,689,600
<TOTAL-REVENUES> 3,836,100
<CGS> 2,612,200
<TOTAL-COSTS> 6,417,500
<OTHER-EXPENSES> 155,300
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (4,200)
<INCOME-PRETAX> (2,740,900)
<INCOME-TAX> 800
<INCOME-CONTINUING> (2,741,700)
<DISCONTINUED> 0
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<NET-INCOME> (2,741,700)
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