<PAGE> 1
===============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1997
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
----------- --------------
-----------------------
COMMISSION FILE NUMBER: 0-16454
CIMETRIX INCORPORATED
(Exact name of registrant as specified in its charter)
NEVADA 87-0439107
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 N. TAMPA ST., TAMPA, FLORIDA 33602
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (813)277-9199
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 of 15(d) of the Securities Exchange
Act of 1934 during the preceding 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 [ ]
APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY
PROCEEDINGS DURING THE PRECEDING FIVE YEARS:
Indicate by check mark whether the registrant has filed all documents
and reports required to be filed by section 12, 13, or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes [ ] No [ ]
APPLICABLE ONLY TO CORPORATE ISSUERS:
Number of shares outstanding of each of the issuer's classes of common
stock as of August 8, 1997:
Common stock, par value $.0001 - 24,143,928.
===============================================================================
EXHIBIT INDEX ON PAGE 21
<PAGE> 2
PART 1 - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CIMETRIX INCORPORATED
CONDENSED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AND SHARE AMOUNTS)
(UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
------------------------- -----------------------
1997 1996 1997 1996
----- ---- ---- ----
<S> <C> <C> <C> <C>
NET REVENUES $ 541 $ 177 $ 1,053 $ 458
---------- ---------- ---------- ----------
OPERATING EXPENSES
Cost of revenues, including customer support 340 123 549 287
Sales and marketing 293 293 583 592
Research and development 498 422 922 711
General and administrative 635 332 1,065 649
Compensation expense - stock options - - - 693
---------- ---------- ---------- ----------
-
Total operating expenses 1,766 1,170 3,119 2,932
----------- ---------- ---------- ----------
LOSS FROM OPERATIONS (1,225) (993) (2,066) (2,474)
----------- ---------- ---------- ----------
OTHER INCOME (EXPENSES)
Interest income 12 23 33 46
Interest expense (16) (1) (21) (3)
----------- ---------- ---------- ----------
Total other income (expense) (4) 22 12 43
----------- ---------- ---------- ----------
LOSS BEFORE INCOME TAXES (1,229) (971) (2,054) (2,431)
CURRENT INCOME TAX EXPENSE
(BENEFIT) - - - -
DEFERRED INCOME TAX EXPENSE
(BENEFIT) - - - -
NET LOSS $ (1,229) $ (971) $ (2,054) $ (2,431)
========== ========= ========== ==========
LOSS PER COMMON SHARE $ (.05) $ (.05) $ (.10) $ (.13)
========== ========= ========== ==========
WEIGHTED AVERAGE SHARES
OUTSTANDING 22,438,428 18,813,095 21,142,678 18,707,986
========== ========== ========== ==========
</TABLE>
The accompanying notes are an integral part of these
financial statements(unaudited).
2
<PAGE> 3
ITEM 1. FINANCIAL STATEMENTS (CONT.)
CIMETRIX INCORPORATED
CONDENSED BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AMOUNTS)
<TABLE>
<CAPTION>
ASSETS
JUNE 30, DECEMBER 31,
CURRENT ASSETS: 1997 1996
-------- -----------
(UNAUDITED)
<S> <C> <C>
Cash and cash equivalenets $ 758 $ 2,785
Accounts receivable, net 803 617
Inventories 401 533
Prepaid expenses and other current assets 200 285
-------- -------
Total current assets 2,162 4,220
PROPERTY AND EQUIPMENT, net 871 614
CAPITALIZED SOFTWARE COSTS, net 609 707
TECHNOLOGY, net 688 715
GOODWILL, net 2,862 2,971
-------- -------
Total Assets $ 7,192 $ 9,227
======== =======
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Current portion of long-term debt 41 $ 44
Accounts payable 584 671
Accrued expenses 143 459
Customer deposits 111 170
-------- -------
Total current liabilities 879 1,344
LONG TERM DEBT, net of current portion 261 252
-------- -------
Total Liabilities 1,140 1,596
-------- -------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDERS' EQUITY:
Common stock, $.0001 par value: 100,000,000 shares
authorized; 24,143,928 and 18,096,428 shares issued
and outstanding, respectively 2 2
Additional paid-in capial 18,881 18,406
Accumulated deficit (12,597) (10,543)
Unearned compensation - stock options (234) (234)
-------- --------
Net Stockholders' Equity 6,052 7,631
$ 7,192 $ 9,227
======== ========
</TABLE>
The accompanying notes are an integral part of these
financial statements (unaudited).
3
<PAGE> 4
ITEM 1. FINANCIAL STATEMENTS (CONT.)
CIMETRIX INCORPORATED
CONDENSED STATEMENTS OF CASH FLOWS
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
(IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
-------------------------
1997 1996
---- ----
<S> <C> <C>
CASH FLOWS TO OPERATING ACTIVITIES:
Net Loss $ (2,054) $ (2,431)
Adjustments to reconcile net loss to net cash used by --------- ---------
operating activities:
Amortization and depreciation 351 321
Compensation related to stock options 693
Changes in assets and liabilities:
(Increase) decrease in accounts receivable (186) (17)
(Increase) decrease in inventory 132 (30)
(Increase) decrease in prepaid expenses 85 10
Increase (decrease) in accounts payable (87) 50
Increase (decrease) in accrued expenses (316) (17)
Increase (decrease) in customer deposits (59) --
--------- ---------
Total adjustments (80) 1,010
--------- ---------
Net Cash Flow Used by Operating Activities (2,134) (1,421)
--------- ---------
CASH FLOWS TO INVESTING ACTIVITIES:
Payments for capitalized software costs -- (72)
Purchase of property and equipment, net of retirements (358) (68)
--------- ---------
Net Cash Flow Used by Investing Activities (358) (140)
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock 475 881
Payments for capital lease obligations, net (10) (9)
--------- ---------
Net Cash Flow Provided by Financing Activities 465 872
--------- ---------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (2,027) (689)
CASH AND CASH EQUIVALENTS AT THE BEGINNING OF PERIOD 2,785 2,345
--------- ---------
CASH AND CASH EQUIVALENTS AT THE END OF PERIOD 785 1,656
--------- ---------
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest $ 10 $ 3
Income taxes $ -- $ --
========= =========
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND FINANCING
ACTIVITIES:
Compensation expense - stock options $ -- 693
Issuance of stock upon exercise of non-qualified
options or warrant, net of repurchase 475 881
======== ========
</TABLE>
The accompanying notes are an integral part of these
financial statements(unaudited).
4
<PAGE> 5
ITEM 1. FINANCIAL STATEMENTS (CONT.)
CIMETRIX INCORPORATED
NOTES TO CONDENSED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION - The accompanying unaudited condensed financial
statements of Cimetrix Incorporated have been prepared in accordance with
the Securities and Exchange Commission's instructions to Form 10-Q and,
therefore, omit or condense footnotes and certain other information
normally included in financial statements prepared in accordance with
generally accepted accounting principles. The accounting policies followed
for quarterly financial reporting conform with generally accepted
accounting policies disclosed in Note 1 to the Notes to Financial
Statements included in the Company's Annual Report on Form 10-K for the
year ended December 31, 1996. In the opinion of management, all
adjustments of a normal recurring nature that are necessary for a fair
presentation of the financial information for the interim periods reported
have been made. Certain amounts for the three and six-month periods ended
June 30, 1996 have been reclassified to conform to the June 30, 1997
classification. The results of operations for the three and six-month
periods ended June 30, 1997 are not necessarily indicative of the results
that can be expected for the entire year ending December 31, 1997. The
unaudited condensed financial statements should be read in conjunction
with the financial statements and the notes thereto included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1996.
CASH AND CASH EQUIVALENTS - For purposes of the statements of cash flows,
the Company considers all highly liquid debt instruments purchased with a
maturity of three months or less to be cash equivalents. At June 30, 1997,
the Company had cash equivalents of $757,866 invested in money market
accounts, which are readily convertible into cash and are not subject to
significant risk from fluctuation in interest rates. There were cash
equivalents of approximately $1,656,527 at June 30, 1996. The carrying
value of the cash equivalents approximates their fair value because of the
short maturity of the investments.
INVENTORIES - Inventories are stated at the lower of cost or market. Cost
is determined by the first-in, first-out method. Inventories at June 30,
1997 and December 31, 1996 are summarized as follows (in thousands):
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Parts and supplies $ 156 $ 211
Work in process 36 128
Finished goods 209 194
------ ------
$ 401 $ 533
====== ======
</TABLE>
PROPERTY AND EQUIPMENT - Property and equipment is stated at cost and
depreciated using the straight-line method over the estimated useful lives
of the related assets. The estimated lives are as follows: buildings, 40
years; leasehold improvements, the lease term; computer equipment and
other, three to seven years.
5
<PAGE> 6
ITEM 1. FINANCIAL STATEMENTS (CONT.)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES [CONTINUED]
SOFTWARE DEVELOPMENT COSTS - Certain software development costs are
capitalized when incurred in accordance with Financial Accounting
Standards Board (FASB) Statement No. 86, "Accounting for the Costs of
Computer Software to be Sold, Leased, or Otherwise Marketed."
Capitalization of software development costs begins upon the establishment
of technological feasibility. Costs incurred prior to the establishment of
technological feasibility are expensed as incurred. The Company also
expenses hardware design and prototype expenses as incurred as research
and product development costs. The establishment of technological
feasibility and the ongoing assessment of recoverability of capitalized
software development costs requires considerable judgment by management
with respect to certain external factors, including, but not limited to,
technological feasibility, anticipated future gross revenues, estimated
economic life and changes in software and hardware technologies.
Amortization of capitalized software development costs is provided on a
product-by-product basis at the greater of the amount computed using (a)
the ratio of current gross revenues for a product to the total of current
and anticipated future gross revenues or (b) the straight-line method over
the remaining estimated economic life of the product. As of June 30, 1997,
the unamortized portion of capitalized software development costs was
approximately $609,000. Amortization of software development costs was
approximately $49,000 and $43,000 for the three months ended June 30, 1997
and 1996, respectively. Amortization of software development costs was
approximately $98,000 and $86,000 for the six months ended June 30, 1997
and 1996, respectively.
GOODWILL - Goodwill reflects the excess of the costs of purchasing the
minority interest of Cimetrix (USA) Incorporated over the fair value of
the related net assets at the date of acquisition (August 31, 1995) and is
being amortized on the straight line basis over 15 years. Amortization
expense charged to operations for both the periods ended June 30, 1997 and
1996 was approximately $54,300. At June 30, 1997, the accumulated
amortization was approximately $398,530. The Company evaluates the
impairment of long-lived assets, such as goodwill, in accordance with
Statement of Financial Accounting Standards No. 121. The Company evaluates
on a quarterly basis the projected undiscounted cash flows to determine,
when indicators of impairment are present, whether or not there has been
permanent impairment of its long-lived assets and accrues expenses for the
amount, if any, determined to be permanently impaired. Management of the
Company does not believe any impairment exists as of June 30, 1997.
INCOME TAXES - The Company records income taxes in accordance with
Statement of Financial Account Standards No. 109, "Accounting for Income
Taxes." Under the asset and liability method of accounting for income
taxes of Statement 109, deferred tax assets and liabilities are recognized
for the future tax consequences attributable to differences between the
financial statement carrying amounts of existing assets and liabilities
and their respective tax bases. Because of uncertainty about whether the
Company will generate sufficient future taxable income to realize its
deferred tax assets, the Company has established a valuation allowance to
offset all its deferred tax assets. Deferred tax assets and liabilities
are measured using enacted tax rates expected to apply to taxable income
in the years in which those temporary differences are expected to be
recovered or settled. Under Statement
6
<PAGE> 7
ITEM 1. FINANCIAL STATEMENTS (CONT.)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
109, the effect on deferred tax assets and liabilities of a change in
tax rates is recognized in income in the period that includes the
enactment date.
NET LOSS PER COMMON SHARE - The Company has adopted Financial Accounting
Standards Board (FASB) Statement No. 128, "Earnings Per Share." All loss
per share amounts for 1997 and 1996 have been calculated in accordance
with FASB Statement No. 128. Loss per share of common stock is computed on
the basis of the weighted average number of common shares outstanding
during the periods presented. Fully diluted loss per share is not
presented because the effect is anti-dilutive.
ACCOUNTING ESTIMATES - The preparation of financial statements in
conformity with generally accepted accounting principles requires
management to make estimates and assumptions that affect the reported
amounts of assets and liabilities, the disclosures of contingent assets
and liabilities at the date of the financial statements and the reported
amount of revenues and expenses during the reporting period. Actual
results could differ from those estimated.
RECLASSIFICATIONS - Certain reclassifications have been made for
consistent presentation.
NOTE 2 - PREPAID LICENSE AGREEMENTS
Pursuant to an agreement dated July 26, 1995, which incorporated
provisions of a 1994 agreement, the Company entered into a license/royalty
agreement with a provider of real-time development licenses which allowed
the Company to resell real-time development licenses to its customers. The
Company has prepaid for development licenses and this prepayment will be
amortized until licenses and services from the provider have been
consumed. At June 30, 1997 and December 31, 1996, the unamortized
prepayment was $122,235 and $130,235, respectively, and is included in
"Prepaid expenses and other current assets" on the Company's Balance
Sheets. The agreement also provides the Company with the option, expiring
on July 25, 1998, to purchase all existing development operating system
source code from the provider.
NOTE 3 - TECHNOLOGY
Effective July 5, 1995, the Company purchased the technology that was then
being licensed from Brigham Young University (BYU) and referred to as
ROBLINE and ROBCAL. The Company purchased all rights, title, interest and
benefit in and to the intellectual property for cash payments of $50,000
per year for ten years, which were discounted using an incremental
borrowing rate of 9.5% per annum and recorded as a note payable of
$343,765, plus 120,000 shares of previously unissued, restricted common
stock of the Company valued at $3.75 per share, for a total purchase value
of $793,765. The technology is being amortized on a straight-line basis
over 15 years. Amortization expense was approximately $13,500 during both
the three-month periods ended June 30, 1997 and 1996 and was approximately
$27,000 during both the six-month periods ended June 30, 1997 and 1996.
7
<PAGE> 8
ITEM 1. FINANCIAL STATEMENTS (CONT.)
NOTE 4 - LONG-TERM DEBT
Long-term debt at June 30, 1997 and December 31, 1996 consisted of the
following ( in thousands):
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Note payable to BYU $ 272 $ 272
Capital lease obligations 30 24
------ ------
302 296
Less current maturities 41 44
------ ------
Net long-term debt $ 261 $ 252
====== ======
</TABLE>
In connection with the purchase of the technology from BYU discussed in
Note 3, the Company agreed to make payments of $50,000 per year for ten
years. This stream of payments was discounted using an incremental
borrowing rate of 9.5% per annum and was recorded as a note payable with a
beginning balance of $343,765.
NOTE 5 - SIGNIFICANT CUSTOMERS
Approximately 53.5% and 36.9% of the Company's net revenues during the
three and six-month periods ended June 30, 1997, respectively, were
attributable to Fuji Machine Mfg. Co., Ltd. ("Fuji"). The Company did not
have any revenues from Fuji during the three and six-month periods ended
June 30, 1996. Aries, Inc. ("Aries"), the Company's distributor in Japan,
accounted for approximately 4.8% and 13.7% of the Company's net revenues
for the three and six month periods ended June 30, 1996, respectively.
Aries accounted for approximately 7% of the Company's net revenues during
both the three and six-month periods ended June 30, 1997.
NOTE 6 - STOCK OPTIONS AND WARRANTS
On December 21, 1994, the Company's Board of Directors adopted effective
immediately, subject to shareholder approval at the annual meeting of
shareholders held in July 1995, a stock option plan under which options
may be granted to officers, employees, directors and others. The plan
specifically replaced all prior option agreements between the Company, its
employees and its consultants. A total of 1,993,816 shares of common stock
had been reserved for issuance under the plan. On May 31, 1997, the
shareholders of the Company approved an amendment to the Cimetrix
Incorporated 1994 Stock Option Plan to increase the number of shares of
the Company's common stock reserved for issuance thereunder by 506,184
shares to an aggregate of 2,500,000 shares. Options granted under the plan
are exercisable at a price not less than the fair market value of the
shares at the date of the grant, and one-half of the granted options vest
on the first anniversary of the date of grant, with the remaining one half
vesting on the second anniversary of the date of grant. The option period
and exercise price will be specified for each option granted, as
determined by the Board of Directors, but in no case shall the option
period exceed five years from the date of grant, and the exercise price
cannot be less than one-half the market price of the Company's common
shares on the date of grant.
8
<PAGE> 9
NOTE 6 - STOCK OPTIONS AND WARRANTS [CONTINUED]
On March 21, 1994, the Company entered into a separate consulting
agreement with its current President, granting him warrants to purchase
6,000,000 restricted shares of the Company's common stock for a cash
payment of $1,000,000. The warrants were assignable, irrevocable and
exercisable for a period of five years. On April 15, 1997, these warrants
were exercised, and the Company concurrently repurchased 200,000 of the
6,000,000 shares from Bicoastal Holding Company, an affiliate of the
President, for $1,000,000. On May 31, 1997, the shareholders of the
Company ratified an agreement with Bicoastal Holding Company providing for
the services of Paul Bilzerian as an officer, director, and management
consultant of the Company and for the exercise of the warrants and stock
repurchase described above.
During July 1994, in connection with conversion of three notes payable
into common shares of the subsidiary, the Company issued warrants to
purchase up to an aggregate of 317,500 shares of its common stock for
$2.00 per share. The warrants were exercisable until April 29, 1997.
Warrants for 125,000 shares were exercised during 1996, and the remaining
warrants for 192,500 shares were exercised during April 1997.
On September 12, 1994, the Board of Directors approved the issuance of
stock warrants to members of its advisory panel. Each panel member was
granted warrants to purchase 50,000 restricted shares of the Company's
common stock at an exercise price of $3.00 per share for a period of five
years. At the time of the grant, there was no trading market for either
the warrants or the Company's common shares, although the Company had
received a price of $2.00 per share for common stock of the Company's
privately-owned, sole subsidiary. Consequently, no compensation has been
recorded in connection with the granting of these warrants. As of December
31, 1996, none of the warrants granted to members of the advisory panel
have been exercised.
NOTE 7 - VOTING RIGHTS ASSIGNED TO PRESIDENT
The President of the Company has an irrevocable proxy agreement with W.
Keith Seolas, a former director of the Company, and members of his family
wherein they assigned the voting rights of their common stock
(approximately 2,000,000 shares) to the President. The proxy agreement has
a term expiring on December 31, 1998. (See Note 8, "Litigation.")
NOTE 8 - COMMITMENTS AND CONTINGENCIES
PRODUCT WARRANTIES - The Company provides certain product warranties to
customers including repair or replacement for defects in materials and
workmanship of hardware products. The Company also warrants that software
and firmware products will conform to published specifications and not
fail to execute the Company's programming instructions due to defects in
materials and workmanship. In addition, if the Company is unable to repair
or replace any product to a condition warranted, within a reasonable time,
the Company will provide a refund to the customer. As of June 30, 1997, no
provision for warranty claims has been established since the Company has
not incurred substantial sales from which to develop reliable estimates.
Also, no refunds have been paid to any customer as of June 30, 1997.
Management believes that any allowance for warranty would be currently
immaterial to the financial condition of the Company.
9
<PAGE> 10
NOTE 8 - COMMITMENTS AND CONTINGENCIES [CONTINUED]
LITIGATION - The Company filed a lawsuit on February 8, 1996 and an
amended complaint on March 7, 1997 against W. Keith Seolas ("Seolas"), a
former director of the Company, and members of his family. The lawsuit,
styled Cimetrix Incorporated v. Waldron Keith Seolas, et al., is pending
in the Fourth Judicial District Court of Utah County, Utah, and seeks
declaratory relief and a determination of the validity of the issuance of
approximately 2,000,000 shares of stock to Seolas and his family members.
Seolas filed a separate lawsuit against the Company on April 26, 1996 and
an amended complaint on March 17, 1997 in the United States District Court
for Utah. In his lawsuit, styled Waldron Keith Seolas et al. v. Cimetrix
Incorporated, Seolas alleges fraud by the Company in connection with his
return of approximately 200,000 shares to the Company in 1994. The Company
believes that it has strong defenses to Seolas' claims and intends to
vigorously defend them. The Company's counsel believes the claims against
the Company are without merit.
Other than as stated above, the Company is not a party to any material
pending legal proceedings and, to the knowledge of the Company's
management, no such proceedings by or against the Company have been
threatened. To the knowledge of the Company's management, there are no
material proceedings pending or threatened against any director or
executive officer of the Company, whose position in such proceeding would
be adverse to that of the Company.
NOTE 9 - SUBSEQUENT EVENT
On July 2, 1997, the Company filed a registration statement with the
Securities and Exchange Commission for an offering of a minimum of
$3,000,000 and a maximum of $10,000,000 aggregate principal amount of its
unsecured 10% Senior Notes Due 2002 at 100% of face value, coupled with
warrants to purchase 100 shares of the Company's common stock for each
$1,000 principal amount of Senior Notes purchased. The offering will be
made directly by the Company on best efforts basis and will not be
underwritten. Accordingly, there is no assurance that any or all of the
Senior Notes will be sold. The proceeds of the offering would be used for
working capital and other general corporate purposes.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
This Management's Discussion and Analysis of Financial Condition and
Results of Operations should be read in conjunction with the Company's
Condensed Financial Statements and Notes thereto included elsewhere in this
Quarterly Report. The ensuing discussion and analysis contains both statements
of historical fact and forward-looking statements. Forward-looking statements
generally are identified by the words "expects," "believes" and "anticipates"
or words of similar import. Examples of forward-looking statements include: (a)
projections regarding sales, revenue, liquidity, capital expenditures and other
financial items; (b) statements of the plans, beliefs and objectives of the
Company or its management; (c) statements of future economic performance, and
(d) assumptions underlying statements regarding the Company or its business.
Forward-looking statements are subject to certain factors and uncertainties
that could cause actual results to differ materially from the forward-looking
statements, including, but not limited to, those factors and uncertainties
described below under "Liquidity and Capital Resources" and "Factors Affecting
Future Results."
10
<PAGE> 11
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONT.)
OVERVIEW
The Company is the developer of the world's first open
architecture, standards-based, personal computer (PC) software for
controlling machine tools, industrial robots and industrial automation
equipment that operates on the factory floor. The following table sets
forth the percentage of costs and expenses to net revenues derived from
the Company's Condensed Statements of Operations for the three and six
months ended June 30, 1997 and 1996:
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
--------------------- -----------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
NET REVENUES 100% 100% 100% 100%
---- ---- ---- ----
OPERATING EXPENSES
Cost of revenues, including customer support 62.8 69.5 52.1 62.7
Sales and marketing 54.2 165.5 55.4 129.3
Research and development 92.0 238.4 87.6 155.2
General and administrative 117.4 187.6 101.1 141.7
Compensation expense - stock options - - - 151.3
-------- -------- --------- --------
Total operating expenses 326.4 661.0 296.2 640.2
-------- -------- --------- --------
LOSS FROM OPERATIONS (226.4) (561.0) (196.2) (540.2)
-------- -------- --------- --------
Interest income, net of expense (0.8) 12.4 1.1 9.4
-------- -------- --------- --------
NET LOSS (227.2%) (548.6%) (195.1%) (530.8%)
======== ======== ========= ========
</TABLE>
RESULTS OF OPERATIONS
THREE AND SIX MONTHS ENDED JUNE 30, 1997
NET REVENUES
Net revenues for the second quarters of 1997 and 1996 were
approximately $541,000 and $177,000, respectively. Net revenues for the second
quarter of 1997 included approximately $268,000, or 49.6%, from custom
applications and programming and system integration projects primarily with
original equipment manufacturers ("OEMs"), approximately $210,000, or 38.8%,
from the sale of software products, approximately $46,000, or 8.5%, from
customer support and approximately $17,000, or 3.1%, from the sale of hardware
products. Net revenues for the second quarter of 1996 included approximately
$69,000, or 39%, from the sale of hardware products, approximately $46,000, or
26%, from the sale of software products and approximately $62,000, or 35%, from
training, support services and custom applications and systems integration
projects.
Net revenues for the first half of 1997 and 1996 were approximately
$1,053,000 and $458,000, respectively. Net revenues for the first half of 1997
included approximately $308,000, or 29.3%, from
11
<PAGE> 12
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONT.)
custom applications and programming and system integration projects primarily
with OEMs, approximately $627,000, or 59.5%, from the sale of software
products, approximately $82,000, or 7.8%, from customer support, approximately
$36,000, or 3.4%, from the sale of hardware products. Net revenues for the
first half of 1996 included approximately $204,000, or 44.5%, from the sale of
hardware products, approximately $122,000, or 26.6%, from the sale of software
products and approximately $132,000, or 28.9%, from training, customer support
and custom applications and systems integration projects.
The increase in net revenues for the second quarter and first half of
1997 compared to the comparable periods in 1996 are primarily attributable to
increased revenues from the sale of software products ($210,000 and $627,000
for the second quarter and first half of 1997, respectively, compared to
$46,000 and $122,000 for the second quarter and first half of 1996,
respectively) and to increased revenues from custom applications and
programming and systems integration projects primarily for OEMs ($268,000 and
$308,000 for the second quarter and first half of 1997, respectively, compared
to $62,000 and $132,000 for the second quarter and first half of 1996,
respectively). The increased revenues in 1997 reflect the company's marketing
strategy of increased software sales and increased custom applications and
system integration projects with OEMs to help them integrate the Company's
software products with their equipment and a significantly reduced amount of
hardware sales because most of the hardware necessary for the software products
is available through other normal distribution channels. The increases in
revenues were primarily attributable to volume and did not include any
significant price increases.
Fuji Machine Mfg. Co., Ltd. ("Fuji") accounted for approximately 53.5%
and 36.9% of the Company's net revenue for the second quarter and first half of
1997, respectively. On June 25, 1997, the Company announced that Fuji had
selected the Company's CODE software suite of products as the control standard
for Fuji's surface mount technology ("SMT") equipment. The Company has expended
significant time and resources working with Fuji during the past year, and the
Company expects Fuji to continue to be a significant customer, although the
Company does not expect its revenues from Fuji, as a percentage of the
Company's net revenues, to continue at the levels reflected during the second
quarter and first half of 1997. Aries, Inc. ("Aries"), the Company's
distributor in Japan, accounted for approximately 4.8% and 13.7% of the
Company's net revenues in the second quarter and first half of 1996,
respectively. Aries accounted for approximately 7% of the Company's net
revenues in both the second quarter and first half of 1997.
COST OF REVENUES
Cost of revenues as a percentage of net revenues was 62.8% in the
second quarter of 1997 compared to 69.5% in the second quarter of 1996, and
52.1% in the first half of 1997 versus 62.7% in the first half of 1996. The
decrease in cost of revenues was primarily attributable to the increased
percentage of revenues from custom applications and systems integration
projects primarily with OEMs and a reduction in sales of hardware products. The
profit margin on custom applications and systems integration projects is higher
than the profit margin on sales of hardware products.
12
<PAGE> 13
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONT.)
SALES AND MARKETING
Sales and marketing expenses were approximately $293,000 in both the
second quarter of 1997 and the second quarter of 1996 and were approximately
$583,000 in the first half of 1997 compared to approximately $592,000 in the
first half of 1996. Sales and marketing expenses as a percentage of net
revenues were 54.2% and 165.5% in the second quarters of 1997 and 1996,
respectively, and were 55.4% and 129.3% in the first half of 1997 and 1996,
respectively. The number of sales personnel and related sales and marketing
expenses have been relatively constant, but the percentage of these expenses to
net revenues has decreased as revenues have increased.
RESEARCH AND DEVELOPMENT
Research and development expenses increased approximately 18% to
$498,000, or 92% of net revenues, in the second quarter of 1997 from
approximately $422,000, or 238% of net revenues, in the second quarter of 1996.
Research and development expenses during the first half of 1997 were
approximately $922,000 compared to approximately $711,000 during the first half
of 1996. The Company's extensive effort to develop its products for WindowsNT
and the continued development of the Company's GEM software products
represented most of the increase in research and development expenditures. The
Company plans to continue to make significant investments in research and
development and expects to incur research and development expenses of
approximately $1,500,000 to $2,000,000 per year during 1997 and 1998.
GENERAL AND ADMINISTRATIVE
General and administrative expenses have increased from approximately
$332,000 in the second quarter of 1996 to approximately $635,000 in the second
quarter of 1997. General and administrative expenses increased 62.7% to
approximately $1,065,000, or 101% of net revenues, in the first half of 1997
compared to approximately $649,000, or 141.7% of net revenues, in the first
half of 1996. The primary increases in general and administrative expenses are
approximately $80,000 in rent and related costs associated with the new offices
in Midvale, Utah and Tampa, Florida, $90,000 in legal expenses related
primarily to the Seolas litigation, approximately $66,000 in increased
recruiting costs, and approximately $100,000 of increased payroll for
administrative officers and employees.
COMPENSATION - STOCK OPTIONS
During the six months ended June 30, 1996, the Company recorded in
accordance with APB 25 the compensation cost related to all options granted
during 1996 and any currently outstanding options that had been previously
granted to employees. Additionally, the Company expensed that portion of the
compensation cost related to employee services rendered during 1996. Employee
services are assumed to be rendered over the two-year vesting period of the
options. Compensation expense recorded during the six months ended June 30
,1996 was approximately $693,000.
In 1995, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation" ("FAS 123"), which is effective for the Company's fiscal year
ending December 31, 1996. FAS 123 encourages, but does not require, companies
to recognize compensation expense based on the fair value of grants of stock,
stock options and other
13
<PAGE> 14
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONT.)
equity investments to employees. Although expense recognition for employee
stock-based compensation is not mandatory, FAS 123 requires that companies not
adopting must disclose the pro forma effect on net income and earnings per
share. The Company will continue to apply prior accounting rules and make pro
forma disclosures in 1997.
LIQUIDITY AND CAPITAL RESOURCES
The Company had approximately $1,283,000 of working capital at June
30, 1997, compared with approximately $2,876,000 at December 31, 1996. The
decrease in working capital from December 31, 1996 to June 30, 1997 was
primarily attributable to the $2,134,000 of cash used to fund the Company's net
loss during the six months ended June 30, 1997.
The Company had negative cash flow from operating activities of
approximately $2,134,000 for the six months ended June 30, 1997 compared to
approximately $1,421,000 for the six months ended June 30, 1996. The Company's
negative cash flow from operations for the six months ended June 30, 1997 was
approximately equal to the net loss for the period. Negative cash flow from
operations for the six months ended June 30, 1996 was approximately equal to
the Company's net loss for the period, minus depreciation, amortization and
compensation expense for stock options.
The Company's future liquidity is subject to significant uncertainty.
The Company has incurred operating losses since its inception and remains
primarily dependent on external financing for liquidity. Management does not
believe that the Company's existing working capital is sufficient to maintain
its foreseeable short-term or long-term levels of operations.
On July 2, 1997, the Company filed a registration statement with the
Securities and Exchange Commission for an offering of a minimum of $3,000,000
and a maximum of $10,000,000 aggregate principal amount of its unsecured 10%
Senior Notes due 2002 at 100% of face value, coupled with warrants to purchase
100 shares of the Company's common stock for each $1,000 principal amount of
Senior Notes purchased. The offering will be made directly by the Company on a
best efforts basis and will not be underwritten. Accordingly, there is no
assurance that any or all the Senior Notes will be sold. The proceeds of the
offering would be used for working capital and other general corporate
purposes.
The Company's future liquidity is dependent on its proposed offering
of the Senior Notes, its future operating cash flow and its management of trade
receivables, inventories and payables. Management expects that, if the offering
of the Senior Notes is successful, the Company's working capital will be
sufficient to maintain its current and foreseeable levels of operations for 12
to 15 months, if the minimum proceeds of $3,000,000 are realized, and for at
least 36 months, if the maximum proceeds of $10,000,000 are realized. The
Company's ability to continue to operate would be jeopardized if its offering
of the Senior Notes were unsuccessful and it were unable to find alternative
sources of working capital. The Company currently does not have an alternative
plan to provide for its future liquidity.
The Company anticipates that capital expenditures for fiscal year
1997, primarily for computer equipment, will be approximately $400,000 to
$600,000. Management does not believe that the Company currently has sufficient
funds to meet its capital expenditure requirements for 1997.
14
<PAGE> 15
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONT.)
The Company has not been adversely affected by inflation as
technological advances and competition within the software industry have
generally caused prices of the products sold by the Company to decline.
Management believes that any price increases could be passed on to its
customers.
Sales to foreign customers account for a significant percentage of the
Company's revenues. Thus far, all the Company's international sales are payable
in United States dollars, so foreign currency exchange rates have not had any
effect on the Company's liquidity or results of operations.
FACTORS AFFECTING FUTURE RESULTS
The Company's future operating results and financial condition are
difficult to predict and will be affected by a number of factors, including the
following:
- The level of market acceptance of the Company's products and
technology;
- Delays or difficulties encountered in customer testing,
evaluation and integration of the Company's software
products;
- The ability and willingness of manufacturers of automated
manufacturing devices to substitute the Company's technology
for their own proprietary technology;
- The willingness of industrial users of robots, machine tools
and other automated manufacturing equipment to acquire new or
more advanced models;
- General business and economic conditions in the United States
and international markets;
- External competitive factors, such as price pressures and the
development of substitute or competitive technology;
- The economic and political risks inherent in foreign trade,
including currency controls, expropriation of property,
foreign taxation of sales, changes in currency exchange rates
and laws, taxes, tariffs, and governmental policies that
restrict, prohibit, or adversely affect foreign trade,
particularly with respect to Japan;
- Technological changes that adversely affect the life cycle of
the Company's products, that require adaptation or
enhancement of the Company's products or that enhance or
diminish industrial use of automated manufacturing devices
that use computerized motion control;
- Fluctuations in sales attributable to the extended sales
process for the Company's products, changes in customer order
patterns or the new product cycle for manufacturers of
automated manufacturing devices; and
- The loss of, or a significant reduction in purchases by,
significant customers, such as Fuji.
15
<PAGE> 16
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONT.)
The markets for the Company's products are emerging and specialized, and the
Company's technology has been commercially available for a relatively short
time. Accordingly, the Company has limited experience with the commercial use
and acceptance of its products and the extent of the modifications, adaptations
and custom applications that are required to integrate its products and satisfy
customer performance requirements. There can be no assurance that the emerging
markets for industrial motion control that are served by the Company will
continue to grow or that the Company's existing and new products will satisfy
the requirements of those markets and achieve a successful level of customer
acceptance.
Because of these and other factors, past financial performance is not
necessarily indicative of future performance, historical trends should not be
used to anticipate future operating results, and the trading price of the
Company's common stock may be subject to wide fluctuations in response to
quarter-to-quarter variations in operating results and market conditions.
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
The Company filed a lawsuit on February 8, 1996 and an amended
complaint on March 7, 1997 against W. Keith Seolas ("Seolas"), a former
director of the Company, and members of his family. The lawsuit, styled
Cimetrix Incorporated v. Waldron Keith Seolas et al., is pending in the Fourth
Judicial District Court of Utah County, Utah, and seeks declaratory relief and
a determination of the validity of the issuance of approximately 2,000,000
shares of the Company's common stock to Seolas and his family members.
Seolas filed a separate lawsuit against the Company on April 26, 1996
and an amended complaint on March 17, 1997 in the United States District Court
for Utah. In his lawsuit, styled Waldron Keith Seolas et al. v. Cimetrix
Incorporated, Seolas alleges fraud by the Company in connection with his return
of approximately 200,000 shares to the Company in 1994. The Company believes
that it has strong defenses to Seolas' claims and intends to vigorously defend
them. The Company's counsel believes the claims against the Company are without
merit.
Other than as stated in the preceding paragraphs, the Company is not a
party to any material pending legal proceedings and, to the knowledge of its
management, no such proceedings by or against the Company have been threatened.
To the knowledge of the Company's management, there are no material proceedings
pending or threatened against any director or executive officer of the Company,
whose position in any such proceeding would be adverse to that of the Company.
ITEM 2. CHANGES IN SECURITIES
None.
16
<PAGE> 17
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
The annual meeting of shareholders of the Company was held on May 31,
1997, and proxies for the meeting were solicited by the Company`s Board of
Directors pursuant to Regulation 14A under the Securities Exchange Act of 1934.
The matters voted on at the meeting were as follows: the election of directors;
approval of an amendment to the Company's stock option plan to increase the
number of shares reserved for issuance thereunder by 506,814 shares to a total
of 2,500,000 shares; ratification of the issuance to David L. Redmond, the
Company's new Chief Financial Officer, of warrants to purchase 325,000 shares
of the Company's common stock; ratification of the grant to non-employee
directors of the Company of options to purchase a total of 132,000 shares of
the Company's common stock; and ratification of a contract with Bicoastal
Holding Company to retain the services of Paul A. Bilzerian and Terri L.
Steffen, his wife, and to repurchase 200,000 shares of the Company's common
stock acquired by Bicoastal Holding Company pursuant to the exercise of stock
purchase warrants issued in 1994. There was not any proxy solicitation in
opposition to management's proposals or nominees for election as directors.
The proposals that were submitted to the shareholders were adopted by
the margins indicated below:
1. To elect five directors to the Company's Board of Directors to
serve for one-year terms.
<TABLE>
<CAPTION>
Number of Shares
----------------
For Withheld
---------- -------------
<S> <C> <C>
Paul A. Bilzerian 16,507,214 796,229
Douglas A. Davidson 16,812,136 491,307
Paul A. Johnson 16,812,536 490,907
Dr. Ron Lumia 16,812,136 491,307
David L. Redmond 16,805,536 497,907
</TABLE>
2. To approve an amendment to the Cimetrix Incorporated 1994 Stock
Option Plan to increase the number of shares of the Company's
common Stock reserved for issuance thereunder by 506,184 shares
to an aggregate of 2,500,000 shares.
For: 16,351,951
Against: 613,320
Abstain: 34,098
Broker Non-Vote: 304,074
17
<PAGE> 18
3. To ratify the issuance to David L. Redmond, the Company's new
Chief Financial Officer, of warrants to purchase 325,000 shares
of the Company's common stock.
For: 16,328,376
Against: 609,245
Abstain: 61,748
Broker Non-Vote: 304,074
4. To ratify the issuance of options to purchase 132,000 shares of
the Company's common stock to non-employee directors of the
Company.
For: 16,353,403
Against: 595,968
Abstain: 49,998
Broker Non-Vote: 304,074
5. To ratify a contract with Bicoastal Holding Company for Paul
Bilzerian's continuing services to Cimetrix as its President.
For: 15,607,842
Against: 1,056,479
Abstain: 335,048
Broker Non-Vote: 304,074
ITEM 5. OTHER INFORMATION
See Note 9 of the Notes to Condensed Financial Statements (Unaudited)
included elsewhere in this Quarterly Report and Item 2. Management's Discussion
and Analysis of Financial Condition and Results of Operations - Liquidity and
Capital Resources in Part I of this Quarterly Report for information regarding
the Company's filing of a registration statement with the Securities and
Exchange Commission for an offering of a minimum of $3,000,000 and a maximum of
$10,000,000 aggregate principal amount of its unsecured 10% Senior Notes due
2002 coupled with warrants to purchase up to 1,000,000 shares of the Company's
common stock.
Following the annual meeting of shareholders held on May 31, 1997, the
Company's Board of Directors elected officers for the next year. All executive
officers listed in the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 were re-elected to the same offices. In addition, Paul
A. Johnson was elected Executive Vice President of Software Development.
18
<PAGE> 19
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
REPORTS ON FORM 8-K
The Company did not file a Current Report on Form 8-K during the
quarterly period ended June 30, 1997.
EXHIBITS
The following exhibits are filed as part of this Quarterly
Report:
<TABLE>
<CAPTION>
Exhibit No. Exhibits Description
- ----------- ---------------------
<S> <C>
10.2 Lease dated November 22, 1996 between Cimetrix Incorporated
and Capitol Properties Four, L.C. with a commencement date of
April 1, 1997.(1)
10.3 Agreement dated March 21, 1997 between Cimetrix
Incorporated and Bicoastal Holding Company for the
services of Paul A. Bilzerian and Terri L. Steffen, his
wife (1)
10.6 Amendment No. 1 to the Cimetrix Incorporated Stock Option Plan (2)
10.8 Sublease Agreement dated June 30, 1997 between Cimetrix
Incorporated and Just In Time Solutions, Inc. (1)
10.9 Stock Purchase Warrant dated April 15, 1997 issued by Cimetrix
Incorporated to David L. Redmond (2)
10.11 Consulting Agreement dated May 15, 1997 between Cimetrix
Incorporated and PAJ Software Development for the services of
Paul A. Johnson
10.12 Letter dated June 26, 1997 from Paul A. Bilzerian to Shirley
Dastrup, Linda Dastrup, and Lincoln Dastrup, releasing
irrevocable proxies previously granted to Mr. Bilzerian
10.13 Settlement Agreement and Mutual Release dated February 24,
1997 between Cimetrix Incorporated and Claude O. Goldsmith,
settling litigation over the validity of certain stock issuances
and a stock option exercised by Mr. Goldsmith
</TABLE>
19
<PAGE> 20
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (CONT.)
<TABLE>
<S> <C>
10.14 Lease Agreement dated January 29, 1997
between Cimetrix Incorporated and Plaza IV Associates,
Ltd., with a commencement date of April 9, 1997
27 Financial Data Schedule (for SEC use only)
</TABLE>
- --------------------------------------
(1) Incorporated by reference from the Registration Statement on
Form S-2, File No. 333-60, filed with the Securities and
Exchange Commission on July 2, 1997.
(2) Incorporated by reference from the Proxy Statement dated May
2, 1997, pertaining to the 1997 Annual Meeting of
Shareholders.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
CIMETRIX INCORPORATED
By: /s/ David L. Redmond
-------------------------------
DAVID L. REDMOND
Executive Vice President
and Chief Financial Officer
(Its Duly Authorized Officer)
Date: August 11, 1997
20
<PAGE> 21
EXHIBITS INDEX
--------------
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBIT DESCRIPTION PAGE NO.
- ----------- ------------------- --------
<S> <C> <C>
10.2 Lease dated November 22, 1996 between Cimetrix Incorporated *
and Capitol Properties Four, L.C. with a commencement date
of April 1, 1997
10.3 Agreement dated March 21, 1997 between Cimetrix *
Incorporated and Bicoastal Holding Company for the services
of Paul A. Bilzerian and Terri L. Steffen, his wife
10.6 Amendment No. 1 to the Cimetrix Incorporated Stock Option *
Plan
10.8 Sublease Agreement dated June 30, 1997 *
between Cimetrix Incorporated and Just In Time
Solutions, Inc.
10.9 Stock Purchase Warrant dated April 15, 1997 issued by *
Cimetrix Incorporated to David L. Redmond
10.11 Consulting Agreement dated May 15, 1997 between Cimetrix **
Incorporated and PAJ Software Development for the services
of Paul A. Johnson
10.12 Letter dated June 26, 1997 from Paul A. Bilzerian to **
Shirley Dastrup, Linda Dastrup, and Lincoln Dastrup,
releasing irrevocable proxies previously granted to Mr. Bilzerian
10.13 Settlement Agreement and Mutual Release dated February 24, **
1997 between Cimetrix Incorporated and Claude O. Goldsmith,
settling litigation over the validity of certain stock
issuances and a stock option exercised by Mr. Goldsmith
10.14 Lease Agreement dated January 29, 1997 between Cimetrix **
Incorporated and Plaza IV Associates, Ltd., with a commencement date
of April 9, 1997
27 Financial Data Schedule (for SEC use only) **
</TABLE>
- ----------------------------------
* Incorporated by reference
** Electronically filed with Form 10-Q
21
<PAGE> 1
EXHIBIT 10.11
CIMETRIX, INC.
100 North Tampa Street
Suite 3550
Tampa, FL 33602
(813) 277-9199
SENT BY FACSIMILE (972) 516-9278
May 15, 1997
A Paul A. Johnson
PAJ Software Development
2200 Bluffton Drive
Plano, Texas 75075
Re: Consulting Agreement
Dear Paul:
On behalf of everyone at Cimetrix, I am delighted to offer you a consulting
contract on the following terms and conditions:
1. TERM OF CONTRACT. The term of this Agreement shall be for the period
beginning May 19, 1997 and ending November 30, 1997. The Agreement may
be extended by written mutual agreement of the parties at any time
prior to November 30, 1997.
2. COMPENSATION. For the month of May, PAJ Software Development (PAJ)
shall be paid $5,000 by Cimetrix, which shall be payable not later than
June 15, 1997. For each of the following six months, Cimetrix shall pay
PAJ $10,000 per month, payable not later than fifteen days following
the end of each month.
3. CIMETRIX STOCK OPTIONS. As a result of your service as a member of the
Board of Directors of Cimetrix, you presently have an option to
purchase 10,000 shares of Cimetrix common stock for $7.50 per share.
You will be allowed to exchange this option for a new option to
purchase 10,000 shares at $5.00 per share. In addition, you will be
given an option to purchase 90,000 shares of Cimetrix common stock at
$5.00 per share for your service as both a member of the Board of
Directors of Cimetrix for the term beginning May 31, 1997 and
continuing until the 1998 annual shareholders meeting, and for your
service as a Consultant under the terms of this Agreement. All options
will vest on a pro rata basis over the next twelve months. However, in
the event of a
<PAGE> 2
sale of a majority of the common stock of Cimetrix, or substantially
all of the assets of Cimetrix, to a third party, all of your options
shall immediately vest.
4. EXPENSES. Cimetrix will reimburse you for all reasonable travel
expenses including, but not limited to, airfare from Dallas to Salt
Lake City on a weekly basis. You may submit your travel expenses for
reimbursement on a weekly or monthly basis, whichever you prefer.
Cimetrix will reimburse you within fifteen days of receipt of your
request.
5. DUTIES AND RESPONSIBILITIES. You be given the title of Executive Vice
President, Software Development. You will have complete responsibility
for all software development by Cimetrix. You will report directly to
me and you shall be included in all executive management decisions. You
shall also serve as a member of the Board of Directors of Cimetrix
until the new election of Directors by the shareholders at the annual
meeting in 1998.
If the terms of this letter agreement are acceptable to you, please sign below
and send it to me by facsimile at (813) 277-0065 at your earliest convenience.
Warmest regards,
/s/ Paul A. Bilzerian
- ---------------------
Paul A. Bilzerian
President
AGREED TO BY PAJ SOFTWARE DEVELOPMENT:
/s/ Paul A. Johnson
- ---------------------
By: Paul A. Johnson
2
<PAGE> 1
EXHIBIT 10.12
BICOASTAL HOLDING COMPANY
16229 Villarreal de Avila
Tampa, Florida 33613
(813) 264-1818
SENT BY FACSIMILE (801) 222-9960
PAUL A. BILZERIAN
President
June 26, 1997
Shirlee Dastrup
Lincoln & Linda Dastrup
871 Osmond Lane
Provo, Utah 84604
Dear Shirlee, Lincoln & Linda:
This letter shall serve as my notification that I hereby release all of the
proxies that you have given me with respect to the shares of common stock of
Cimetrix so that you may now vote those shares in whatever manner you choose.
Thank you for your continuous support on both a personal and business level
throughout this very difficult thirty-nine month period. I look forward to
seeing you soon.
Best regards,
/s/ Paul A. Bilzerian
- ---------------------
Paul A. Bilzerian
cc: Todd Hodges (by facsimile)
David Redmond (by facsimile)
<PAGE> 1
EXHIBIT 10.13
SETTLEMENT AGREEMENT AND MUTUAL RELEASE
THIS SETTLEMENT AGREEMENT AND RELEASE OF CLAIMS ("this Agreement") is
made and entered into as of this 24th day of February 1997, by and between
Cimetrix, Inc. ("Cimetrix") and Claude O. Goldsmith ("Goldsmith").
NOW THEREFORE, in consideration of the mutual covenants, obligations,
representations, warranties and releases contained herein, the parties mutually
agree as follows:
BACKGROUND
1. Cimetrix is a Nevada corporation with its principal place of
business located in Provo, Utah.
2. Goldsmith has been a shareholder of Cimetrix since 1990. In 1994,
Goldsmith served as an officer and director of Cimetrix.
3. In February 1996, Cimetrix commenced an action against Goldsmith and
others in the Fourth Judicial District Court for the State of Utah, styled
Cimetrix, Inc. v. Scolas, et al, Civ. No. 960400085CV ("the litigation").
4. In the litigation, Cimetrix asserted venous claims against Goldsmith
including claims related to certain shares of Cimetrix common stock held by
Goldsmith, claims related to a stock option agreement between Goldsmith and
Cimetrix and claims arising from alleged threats of litigation against Cimetrix
made by Goldsmith.
1
<PAGE> 2
5. In the litigation, Goldsmith asserted various counterclaims against
Cimetrix, including claims of breach of contract, fraud and conversion.
PURPOSE OF THIS AGREEMENT
6. The purpose of this Agreement is to settle and compromise all
aspects of the litigation between Goldsmith and Cimetrix and to release all
claims asserted or which might have been asserted in the litigation between
Goldsmith and Cimetrix, and all claims which either Cimetrix or Goldsmith may
have as of the date of this Agreement against each other.
DISMISSAL OF ACTION.
7. Cimetrix agrees to dismiss with prejudice its complaint against
Goldsmith in its entirety and Goldsmith agrees to dismiss with prejudice his
counterclaim against Cimetrix in its entirety.
8. The parties agree that they will take all steps necessary to have
the litigation between them dismissed with prejudice, including the execution of
a stipulation of dismissal with prejudice in a form acceptable to counsel for
both parties.
COVENANTS
9. Cimetrix represents and covenants that its Board of Directors has
approved this Agreement, and that the representative of Cimetrix signing this
Agreement is duly authorized to execute it on Cimetrix's behalf.
2
<PAGE> 3
10. In 1995, Cimetrix and Goldsmith entered into an Option Agreement
("the Option"). Cimetrix and Goldsmith agree and acknowledge that Goldsmith's
attempted exercise of his rights under the Option in February 1996 was
ineffective, invalid and void ab initio. Contemporaneously with the execution of
this Agreement, Cimetrix shall deliver to Goldsmith checks totalling $268,387 to
reimburse Goldsmith for the $250,000 option price, $3,887 Social Security tax,
and $14,500 Medicaid tax Goldsmith paid to Cimetrix in February 1996 in
connection with Goldsmith's ineffective attempt to exercise the Option.
11. Cimetrix shall issue a corrected W-2C and a corrected Form 1099 to
Goldsmith and the United States Internal Revenue Service ("IRS") by February 28,
1997 reflecting that Goldsmith received no wages or other income in connection
with the ineffective attempt to exercise the Option. Cimetrix shall confirm that
Goldsmith's attempted exercise of the Option was ineffective if the IRS or other
taxing authority questions or challenges the corrected W-2C or the corrected
Form 1099 Cimetrix agrees to take reasonable steps to inform Goldsmith if the
IRS or other taxing authority contacts Cimetrix with respect to Goldsmith;
provided, however, that Cimetrix's failure to do so shall not be deemed a
material breach of this Agreement.
12. Cimetrix acknowledges that Goldsmith's sale of 7,000 shares of
Cimetrix common stock in February 1996 was valid and that Goldsmith may retain
the proceeds of that sale
13. Goldsmith now has in his possession certificates representing
38,000 shares of Cimetrix common stock, the validity of which Cimetrix
challenged in the litigation. Cimetrix and Goldsmith acknowledge and agree that
12,000 of the 38,000 shares were invalidly issued
3
<PAGE> 4
and void ab initio. Cimetrix and Goldsmith agree that Goldsmith may retain
26,000 shares of the Cimetrix common stock currently in his possession, which
shares shall be unrestricted. Goldsmith shall tender his existing certificates
for 38,000 shares of Cimetrix, and Cimetrix, at the same time, shall deliver to
Goldsmith a new, unrestricted certificate for 26,000 shares. In no event shall
this exchange of certificates be delayed by either party beyond March 7, 1997.
Cimetrix shall give all consents necessary to allow Goldsmith to sell or
transfer these shares as he sees fit.
14. With respect to the 12,000 shares of Cimetrix common stock which
the parties agree was invalidly issued and void ab initio, in the event the IRS
or other taxing authority challenges the cancellation and/or attempts to
classify it as a disposition triggering any taxable gain, Cimetrix agrees to
inform the IRS and other taxing authorities that such shares were void ab initio
and invalidly issued.
RELEASES
15. In consideration for the various covenants and promises set forth
above, Cimetrix for itself and for its officers, directors, stockholders,
employees and agents, hereby releases, waives, acquits and discharges Goldsmith
and Goldsmith's heirs, successors, agents, attorneys and assigns from any and
all claims, actions, demands, losses, causes of action, damages, attorneys fees,
costs, judgments, liens, indebtedness and liabilities whatsoever, known or
unknown, suspected or unsuspected, past or present, absolute, contingent or
otherwise arising
4
<PAGE> 5
from or in any way related to the relationship between the parties or the
transactions and occurrences giving rise to the litigation.
16. In consideration for the various covenants and promises set forth
above, Goldsmith for himself and for his heirs, successors and assigns, hereby
releases, waives, acquits and discharges Cimetrix and all of its directors,
officers, shareholders, supervisors, employees, agents, attorneys and
representatives from any and all claims, actions, demands, losses, causes of
action, damages, attorneys fees, costs, judgments, liens, indebtedness and
liabilities whatsoever, known or unknown, suspected or unsuspected, past or
present, absolute, contingent or otherwise arising from or in any way related to
the relationship between the parties or the transactions and occurrences giving
rise to the litigation.
ENFORCEMENT OF OBLIGATIONS CREATED BY THIS AGREEMENT
17. In any action brought to enforce the obligations imposed by this
Agreement, the prevailing party shall be entitled to recover actual attorneys
fees and expenses from the nonprevailing party
MISCELLANEOUS PROVISIONS
18. This Agreement contains the entire understanding of the parties
with respect to the matters addressed herein and no representations or
provisions have been made between the parties except as contained herein. The
provisions of this Agreement are integrated and they
5
<PAGE> 6
shall not be modified, revoked, waived, altered or amended except by an
instrument in writing signed by both parties.
19. This Agreement is to be governed by and construed in accordance
with Utah law.
20. This Agreement may be executed by the parties in counterparts
IN WITNESS WHEREOF, the undersigned have executed this Settlement
Agreement and Mutual Release of Claims on the date first above written.
/s/ Claude O. Goldsmith
-------------------------------
Claude O. Goldsmith
Cimetrix, Inc.
By /s/ Paul A. Bilzerian
----------------------------
Its President
---------------------------
6
<PAGE> 7
MUTUAL GENERAL RELEASE
This Mutual General Release ("Agreement") is entered into by and
between Claude O. Goldsmith ("Goldsmith") and Paul A. Bilzerian ("Bilzerian")
RECITALS
Goldsmith and Bilzerian deem it to be in their best interests and to
their mutual advantage to forever settle, adjust and compromise all
controversies and disputes of any kind existing between them as of the date of
this Agreement.
MUTUAL RELEASE
Goldsmith and Bilzerian hereby forever release and discharge each
other, and all of their respective agents, attorneys, heirs, administrators,
predecessors, successor and assigns, from any and all claims, demands and causes
of action of any kind or nature that Goldsmith or Bilzerian ever had or claimed
to have had or now have or claim to have against each other.
The parties warrant and represent that they have not heretofore
assigned or transferred, or purported to assign or transfer, to any person or
entity any claims, demands or action released by them herein, and that they
agree to indemnify, defend and save each other harmless from all claims,
expenses and liabilities arising from any prior assignment or transfer of any
such claims, demands or causes of action.
1
<PAGE> 8
By entering into this Agreement, the parties do not admit or concede
any liability, and expressly deny engaging in any illegal, unlawful or improper
conduct.
This Agreement may be executed by the parties in counterpart.
DATED: February 24, 1997 /s/ Claude O. Goldsmith
----------------------------------
CLAUDE O. GOLDSMITH
DATED: February 24, 1997 /s/ Paul A. Bilzerian
----------------------------------
PAUL A. BILZERIAN
2
<PAGE> 1
EXHIBIT 10.14
LEASE AGREEMENT BETWEEN
PLAZA IV ASSOCIATES, LTD.
A FLORIDA LIMITED PARTNERSHIP
AND
CIMETRIX INCORPORATED
1
<PAGE> 2
LEASE INDEX
<TABLE>
<CAPTION>
NO. ITEM PAGE
<S> <C> <C>
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. PREMISES AND TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
4. CONSUMER PRICE ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. OPERATING EXPENSE ADJUSTMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6. USE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
8. ACCESS TO PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9. LANDLORD'S SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
10. ELECTRICAL OVERLOAD; STRUCTURAL OVERLOAD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
11. PARKING AREAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
12. LEASEHOLD IMPROVEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
13. REPAIRS AND MAINTENANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
14. ALTERATIONS AND IMPROVEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
15. INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
16. DAMAGE BY FIRE OR THE ELEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
17. BUILDING RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
18. EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
19. SIGNS AND ADVERTISING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
20. TENANT'S DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
21. CONTRACTUAL LANDLORD'S LEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
22. SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
23. QUIET ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
24. SECURITY DEPOSIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
25. MECHANIC'S LIENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
26. FORCE MAJEURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
27. SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
28. HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
29. RELOCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
30. RENT A SEPARATE COVENANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
31. JOINT AND SEVERAL LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
32. ABSENCE OF OPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
33. CORPORATE TENANCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
34. BROKERAGE COMMISSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
35. LANDLORD'S DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
36. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
</TABLE>
<PAGE> 3
<TABLE>
<S> <C> <C>
37. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
38. RECORDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
39. STATUTORILY MANDATED NOTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
40. NON-DISCLOSURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
41. HAZARDOUS MATERIALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
42. AMENDMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
43. TEMPORARY SPACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
44. TENANT'S ESSENTIAL OBLIGATIONS TO EXPEDITE
COMMENCEMENT DATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SIGNATURE PAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
EXHIBIT(S)
BUILDING RULES AND REGULATIONS
</TABLE>
<PAGE> 4
LEASE
THIS LEASE AGREEMENT ("Lease") is made this 29th day of January, 1997,
by and between the "Landlord" and the "Tenant" hereafter set forth.
WITNESSETH:
1. DEFINITIONS.
(a) "Landlord": PLAZA IV ASSOCIATES, LTD., A Florida
Limited Partnership
Address: Suite 4100
100 North Tampa Street
Tampa, FL 33602
(b) "Tenant": CIMETRIX INCORPORATED
Address: 100 N. Tampa Street
Suite 3550
Tampa, Florida 33602
(c) "Premises": Suite No. 3550 consisting of approximately 4,754
square feet of net rentable area (which the parties expressly
and irrevocably agree are contained in the Premises), as
outlined in red on the attached Exhibit "A" expressly made a
part hereof. The Premises are located on the 35th floor of the
structure, hereinafter called the "Building," located at 100
North Tampa Street Tampa, FL 33602. The parties expressly
and irrevocably agree that there are 4,754 rentable square
feet within the Premises and 552,080 rentable square feet
within the Building, despite the fact that such figures may not
be actually correct. For the purposes of Items 1 (i) and 5
(only) of this Lease, the term "Building" includes its
appurtenances, to include its parking facilities.
(d) "Use of Premises": General office use
(e) "Commencement Date": January 29, 1997 ("the anticipated
Commencement Date"). If, however, Tenant takes possession of
the Premises prior to the anticipated Commencement Date, then
the date Tenant so takes possession shall be the Commencement
Date. See also Items 43 and 44 and Exhibit "B" of this Lease.
(f) "Term": The Term of this Lease shall begin on the Commencement
Date and shall end at midnight on June 30, 2000, such ending
date being an absolute one [anything elsewhere in this Lease
(to include its exhibits and attachments) notwithstanding].
(g) "Rent": The sum of Six Thousand Nine Hundred Thirty Two and
54/100 DOLLARS ($6,932.92) per month. See also Item 3. Rent
and all other sums payable by Tenant to Landlord under this
Lease, plus any applicable tax, shall be paid to Landlord,
without demand, recoupment, abatement, deduction or offset, at
its office presently located at Suite 3160, 100 North Tampa
Street, Tampa, FL 33602 , or at such other place as Landlord
may hereafter specify in writing. SEE ALSO ITEMS 43 AND 44 AND
EXHIBIT "B" OF THIS LEASE.
<PAGE> 5
(h) "Security Deposit": The sum of One Hundred Twenty-Seven
Thousand Eight Hundred Fifty and 91/100 DOLLARS ($127,850.91).
(i) "Expense Base": The actual expenses (per net rentable square
foot per annum) incurred for the operation of the Building and
its appurtenances for the calendar year 1996. See also Item 5
of this Lease for a more detailed description of the
applicable expenses, such expenses being the Operating
Expenses, Real Estate Taxes and Utility Costs described in
said Item 5.
(j) "Proportionate Share": The net rentable area in the Premises
(4,754 square feet) divided by the net rentable area in the
Building (552,080 square feet), which equals .8611 percent. If
Tenant leases from Landlord any additional space in the
Building pursuant to the terms and provisions of this Lease,
then Tenant's Proportionate Share shall be increased
accordingly.
2. PREMISES AND TERM. Landlord, in consideration of the Rent
hereinafter reserved to be paid and of the covenants, conditions and agreements
to be kept and performed by Tenant, hereby leases, lets and demises to Tenant,
and Tenant hereby leases and hires from Landlord, that certain space called the
Premises as described above in Item 1, Section (c).
If Landlord, for any reason whatsoever, cannot deliver possession of
the Premises to Tenant on or before the anticipated Commencement Date, this
Lease shall not be void or voidable, nor shall Landlord be liable to Tenant for
any claim, loss or damage resulting therefrom, but, in that event, there shall
be an abatement of Rent and Additional Rent covering the period between the
anticipated Commencement Date and the time when Landlord can so deliver
possession, the date when Landlord can so deliver possession being deemed to be
the "Commencement Date" (Commencement Date). If the Commencement Date is other
than the anticipated Commencement Date, the parties' representatives shall
execute a letter amendment to this Lease (which they are hereby authorized to
do) whereby the Commencement Date of this Lease will be specified; however,
their failure to do so shall have no effect on the other contents of this
Lease, such contemplated execution to be merely for clarification purposes. By
occupying the Premises, Tenant shall be conclusively deemed to have accepted
the Premises as complying fully with each, every, any and all of Landlord's
covenants and obligations with respect to the delivery thereof.
3. RENT. Tenant, beginning with the Commencement Date, covenants
and agrees to pay, without demand, recoupment, abatement, deduction or offset,
to Landlord Rent and Additional Rent for the Premises on or before the first
(1st) day of the first (1st) full calendar month of the Term hereof and on or
before the first (1st) day of each and every successive calendar month
thereafter during the full Term of this Lease, subject to the adjustments as
provided hereinafter, along with any applicable tax, at the then current rate.
In the event the Commencement Date occurs on a day other than the first (1st)
day of a calendar month, the first Rent payment shall be in the amount of the
Rent for one (1) full calendar month, plus the prorated Rent for the calendar
month in which the Term of this Lease commences, such payment to be due on the
Commencement Date.
SEE ALSO ITEMS 43 AND 44 AND EXHIBIT "B" OF THIS LEASE.
2
<PAGE> 6
Whenever under the terms of this Lease any sum of money is required to
be paid by Tenant in addition to the Rent herein reserved, whether or not such
sum is herein described as "Additional Rent" or a provision is made for the
collection of said sum as "Additional Rent," said sum shall nevertheless, at
Landlord's option, if not paid when due, be deemed Additional Rent, and shall
be collectible as such with the first installment of Rent thereafter falling
due hereunder. In the event any installment or increment of Rent or Additional
Rent payable under this Lease shall not be paid FOLLOWING DUE NOTICE AND WITHIN
THE CURATIVE PERIOD DESCRIBED IN ITEM 20 (A) OF THIS LEASE, a "late charge" of
five percent (5%) of the amount overdue may be charged (as Additional Rent) by
Landlord for the purpose of defraying the expense and inconvenience incident to
handling such overdue payment and for the purpose of compensating Landlord for
its attendant inconvenience and loss of cash flow.
5. OPERATING EXPENSE ADJUSTMENTS. The parties each acknowledge that
the Rent specified in Item 3 of this Lease does not provide for increases in
Operating Expenses, Real Estate Taxes, and Utility Costs (all as hereinafter
defined) which may hereafter affect the Premises or the Building; accordingly,
during the Term of this Lease, and any extension(s) thereof, Tenant, beginning
with the Commencement Date, shall pay to Landlord, in the form of Additional
Rent (plus any applicable tax), its Proportionate Share of estimated increased
Operating Expenses, Real Estate Taxes and Utility Costs over the base amount as
defined in Item 1, Section (i).
To implement and effect the foregoing obligation of Tenant to pay its
Proportionate Share of the increases in the Operating Expenses, Real Estate
Taxes and Utility Costs referenced in this Item 5, the parties agree that
Tenant shall pay Landlord on or before the first day of each calendar month
one-twelfth (1/12) of the amount of Tenant's estimated
3
<PAGE> 7
annualized liability for such increases in such Operating Expenses, Real Estate
Taxes and Utility Costs for the then current calendar year. There shall be an
annual reconciliation between what Tenant paid and what Tenant should have
paid. Any amount paid by Tenant which exceeds the correct amount due shall be
credited to the next succeeding payment due under this Item 5. If Tenant has
paid less than the correct amount due, Tenant shall pay the balance within ten
(10) days of receipt of notice from Landlord. If the Term of this Lease begins
or ends other than on the first day or last day of a calendar year, the
foregoing Operating Expenses, Real Estate Taxes and Utility Costs shall be
billed and adjusted on the basis of such fraction of a calendar year. Tenant's
obligation to pay the adjustments described in this Item 5 shall survive the
expiration or earlier termination of this Lease. Tenant shall have thirty (30)
days immediately following the submission to it by Landlord of each applicable
adjustment calculation to object to such particular calculation. Should Tenant
fail duly and timely to object to such particular calculation, which objection,
to be effective, must be in writing and must state the specifics of such
particular objection, then, the parties understand and agree, Landlord's
calculation shall be conclusively deemed to be correct.
LANDLORD, CONTEMPORANEOUSLY WITH ITS SUBMISSION TO TENANT OF EACH
APPLICABLE YEAR-END ADJUSTMENT CALCULATION, SHALL SUBMIT TO TENANT A REASONABLY
DETAILED AND THEN-PERTINENT STATEMENT OF OPERATING EXPENSES, REAL ESTATE TAXES
AND UTILITY COSTS, TO INCLUDE, WHERE REASONABLY APPROPRIATE, BACKUP DATA.
TENANT AGREES THAT IT WILL NOT DIVULGE OR DISCLOSE TO THIRD PARTIES (OTHER THAN
TENANT'S ATTORNEYS, ACCOUNTANTS, AUDITORS OR SIMILAR SUCH PROFESSIONALS, WHERE
IN EACH INSTANCE SUCH "OUTSIDE" PARTIES HAVE A BONA-FIDE "NEED TO KNOW") ANY
DATA, INFORMATION, ETC., DISCLOSED BY LANDLORD TO TENANT UNDER THE TERMS AND
PROVISIONS OF THIS ITEM 5. IF TENANT BREACHES THE CONTENTS OF THE IMMEDIATELY
PRECEEDING SENTENCE, THEN LANDLORD THEREAFTER SHALL NOT HAVE THE OBLIGATION(S)
DESCRIBED IN THE PENULTIMATE SENTENCE.
The term "Real Estate Taxes" shall include, but not be limited to, the
annual taxes and any special assessments or other charges levied against the
real property of which the Building or the Premises are a part by any authority
having the power so to tax, including any city, county, state or federal
government, or any school, agricultural, transportation or environmental
control agency, lighting, drainage, or other improvement district thereof, and
shall include the expenses of contesting the amount or validity of any such
taxes, charges or assessments. The term "Operating Expenses" shall include, but
not be limited to, the annual expenses of Landlord for the operation, repair
and maintenance of the Premises and the Building which are presently or
hereafter reasonable or customary for the operation, repair and maintenance of
this type of Premises and Building, and shall include, but not be limited to,
management salaries, consultants' fees, maintenance and janitorial expense, the
provision of services to the Building, costs of maintenance, repairs and
replacements, management and operation of the Building, taxes and fees,
employee benefits, administrative salaries, costs and fees, insurance, security
and landscaping. The term "Utility Costs" shall include Landlord's annual
expenses for the operation and maintenance of the Building and the Premises
with respect to charges, costs and taxes for furnishing heat, air-conditioning,
electricity, water, sewerage, gas, garbage removal, etc. The three defined
terms the subject of this particular paragraph are for definitional purposes
only and shall not impose any obligation whatsoever upon Landlord to incur any
expense or provide any service within such three defined terms.
If Landlord in its sole discretion in operating the Building chooses
to install any energy or labor saving devices, equipment, fixtures or
appliances to or in the Building that otherwise might be considered a capital
expenditure, then Landlord may depreciate the cost of the equipment, device,
appliance or fixture into the Operating Expenses of the Building, including
interest at a reasonable rate, all according to generally accepted accounting
principles applied on a consistent basis.
6. USE OF PREMISES. The Premises shall be used by Tenant as described
above in Item 1, Section (d), and for no other business or purpose whatsoever
without the prior written discretionary consent of Landlord. Tenant shall not
do or permit to be done in or about the Premises, nor bring or keep or permit
to be brought or kept therein, anything
4
<PAGE> 8
which is prohibited by, or will in any way conflict with, any law, statute,
ordinance or governmental rule or regulation now in force or which may
hereafter be enacted or promulgated, or which is presently or hereafter
prohibited by any standard form of fire insurance policy or will presently or
hereafter in any way increase the existing rate of or affect any fire or other
insurance upon the Building or any of its contents, or presently or hereafter
cause a cancellation of any insurance policy covering the Building or any part
thereof or any of its contents. Tenant shall not do or permit anything to be
done in or about the Premises which will presently or hereafter in any way
obstruct or interfere with the rights of other tenants of the Building, or
injure or annoy them or use or allow to be used the Premises for any improper,
immoral, unlawful or objectionable purpose (as determined by Landlord); nor
shall Tenant cause, maintain, or permit any nuisance (as determined by Landlord
or by law) in or about the Premises or commit or suffer to be committed any
waste in, on, or about the Premises. Tenant shall be responsible for all losses
and damages to Landlord as a result of Tenant's failure to use, occupy and
surrender the Premises in strict accordance with the contents of this Lease,
and such responsibility shall survive the expiration or earlier termination of
this Lease. Tenant, at Tenant's expense, shall comply with all laws, rules,
orders, statutes, ordinances, directions, regulations and requirements of all
federal, state, county and municipal authorities pertaining to Tenant's use and
occupancy of the Premises and with the recorded covenants, conditions and
restrictions pertaining thereto, regardless of when they become effective or
applicable, including, without limitation, all applicable federal, state and
local laws, regulations or ordinances pertaining to air and water quality,
Hazardous Materials, waste disposal, air emissions and other environmental
matters, all zoning and other land use matters, and with any direction of any
public officer or officials which shall impose any duty upon Landlord or Tenant
with respect to the use or occupation of the Premises. For the purposes of this
Item 6, the term "Tenant" includes Tenant's agents, employees, principals,
officers, successors, assigns, subtenants, invitees, contractors and
consultants.
7. ASSIGNMENT AND SUBLETTING. Tenant shall not assign the right of
occupancy under this Lease, or any other interest therein, or sublet the
Premises, or any portion thereof, without the prior written consent of
Landlord, which CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED. LANDLORD
MAY, HOWEVER, AT LANDLORD'S REASONABLE DISCRETION, REQUIRE OF TENANT AND/OR THE
PROPOSED ASSIGNEE OR SUBLESSEE AN ADDITIONAL OR NEW SECURITY DEPOSIT IN SUCH
AMOUNT(S) AND IN SUCH FORM(S) AS LANDLORD MAY NOT UNREASONABLY PRESCRIBE.
Tenant absolutely shall have no right of assignment or subletting if it is, or
has ever been, in default of this Lease. If Landlord elects to grant its
written consent to any proposed assignment or sublease (whether by Tenant or by
others claiming by or through Tenant), Tenant or such others agree to pay
Landlord an administrative fee in a reasonable amount (but not less than
$150.00), plus attorney's fees to process and approve such assignment or
sublease, and Landlord may prescribe the substance and form of such assignment
or sublease.
LANDLORD SHALL NOT BE DEEMED TO HAVE UNREASONABLY WITHHELD ITS CONSENT
TO A PROPOSED ASSIGNMENT OF THIS LEASE OR TO A PROPOSED SUBLEASE OF PART OR ALL
OF THE PREMISES IF SUCH CONSENT IS WITHHELD BECAUSE: (I) TENANT IS THEN IN
UNCURED (I.E., BEYOND OR DURING ANY APPLICABLE CURATIVE PERIOD FOLLOWING DUE
NOTICE) DEFAULT OF THIS LEASE; OR (II) ANY NOTICE OF TERMINATION OF THIS LEASE
OR TERMINATION OF TENANT'S RIGHTS UNDER THIS LEASE HAS BEEN GIVEN UNDER ITEM 20
HEREOF; OR (III) EITHER THE PORTION OF THE PREMISES WHICH TENANT PROPOSES TO
SUBLEASE, OR THE REMAINING PORTION OF THE PREMISES, OR THE MEANS OF INGRESS AND
EGRESS TO EITHER THE PORTION OF THE PREMISES WHICH TENANT PROPOSES TO SUBLEASE
OR THE REMAINING PORTION OF THE PREMISES, OR THE PROPOSED USE OF THE PREMISES
OR ANY PORTION THEREOF BY THE PROPOSED ASSIGNEE OR SUBTENANT WILL VIOLATE ANY
CITY, COUNTY, STATE OR FEDERAL LAW, ORDINANCE, ORDINANCE, STATUTE, CODE OR
REGULATION, INCLUDING, WITHOUT LIMITATION, ANY APPLICABLE BUILDING CODE OR
ZONING ORDINANCE; OR (IV) THE PROPOSED USE OF THE PREMISES BY THE PROPOSED
ASSIGNEE OR SUBTENANT DOES NOT OR WOULD NOT CONFORM WITH THE USE SET FORTH IN
ITEM 1(D) OF THIS LEASE; OR (V) IN THE REASONABLE JUDGMENT OF LANDLORD, THE
PROPOSED ASSIGNEE OR SUBTENANT, WHEN COMPARED TO OTHER TENANTS IN THE BUILDING
OR IN CLASS A OFFICE BUILDINGS IN DOWNTOWN TAMPA, FLORIDA, SUBSTANTIALLY
SIMILAR TO THE BUILDING, IS OF A CHARACTER OR REPUTATION OR IS
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ENGAGED IN A BUSINESS WHICH WOULD BE HARMFUL TO THE IMAGE AND REPUTATION OF THE
BUILDING OR LANDLORD; OR (VI) THE PROPOSED ASSIGNEE OR SUBTENANT IS A
GOVERNMENTAL ENTITY (OR SUBDIVISION OR AGENCY THEREOF); OR (VII) THE PROPOSED
ASSIGNEE OR SUBTENANT IS A CURRENT PROSPECTIVE TENANT INVOLVED IN ACTIVE
WRITTEN AND CHRONOLOGICALLY PRECEDING NEGOTIATIONS FOR SPACE AVAILABLE FOR
LEASE ELSEWHERE WITHIN THE BUILDING. FURTHERMORE, IT SHALL NOT BE UNREASONABLE
FOR LANDLORD TO REFUSE TO CONSENT TO A PROPOSED ASSIGNMENT OR SUBLEASE IF THE
PREMISES OR ANY OTHER PORTION OF THE BUILDING WOULD BECOME SUBJECT TO
ADDITIONAL OR DIFFERENT GOVERNMENTAL REGULATIONS AS A DIRECT OR INDIRECT
CONSEQUENCE OF (A) THE PROPOSED ASSIGNMENT OR SUBLEASE AND/OR (B) THE PROPOSED
ASSIGNEE'S OR SUBTENANT'S USE AND OCCUPANCY OF THE PREMISES OR THE BUILDING.
THE FOREGOING, TENANT UNDERSTANDS AND ACKNOWLEDGES, ARE MERELY EXAMPLES OF
REASONS FOR WHICH LANDLORD MAY WITHHOLD ITS CONSENT AND SHALL NOT BE DEEMED
EXCLUSIVE OF ANY PERMITTED REASONS FOR LANDLORD TO WITHHOLD ITS CONSENT,
WHETHER SIMILAR OR DISSIMILAR TO THE FOREGOING EXAMPLES. TENANT AGREES THAT ALL
ADVERTISING BY TENANT OR ON TENANT'S BEHALF WITH RESPECT TO THE ASSIGNMENT OF
THIS LEASE OR THE SUBLETTING OF ALL OR ANY PART OF THE PREMISES MUST BE
REASONABLY APPROVED IN WRITING BY LANDLORD PRIOR TO PUBLICATION.
Notwithstanding any assignment of this Lease, or the subletting of the
Premises, or any portion thereof, Tenant shall continue to be fully liable for
the performance of the terms, conditions and covenants of this Lease,
including, but not limited to, the payment of Rent and Additional Rent. The
continuing liability the subject of the immediately preceding sentence shall be
absolute and unconditional and shall remain in full force and effect without
regard to, and shall not be released, discharged, diminished, reduced or in any
other way affected by, (a) any amendment or modification of, or supplement to,
this Lease or any further assignment or transfer thereof or any further
sublease pertaining thereto; or (b) any action taken or not taken by Landlord
against any assignee or sublessee; or (c) any agreement which modifies any of
the rights or obligations of the parties (or their respective successors) under
this Lease; or (d) any agreement which extends the time within which an
obligation under this Lease is to be performed; or (e) any waiver of the
performance of an obligation required under this Lease; or (f) any failure to
enforce any of the obligations set forth in this Lease; or (g) any exercise or
non-exercise by Tenant or any assignee or any sublessee of Tenant's, such
assignee's or such sublessee's rights and/or options under this Lease. Consent
by Landlord to one or more assignments or sublettings shall not operate as a
waiver of Landlord's rights as to any subsequent assignments or sublettings.
Landlord shall have the additional option, which shall be exercised by
providing Tenant with written notice, of terminating Tenant's rights and
obligations under this Lease rather than permitting any assignment or
subletting by Tenant, any statement or implication in this Lease or at law to
the contrary notwithstanding.
If Landlord permits any assignment or subletting by Tenant and if the
monies (no matter how characterized) received as a result of such assignment or
subletting [when compared to the monies still payable by Tenant to Landlord] be
greater than would have been received hereunder had not Landlord permitted such
assignment or subletting, then ONE-HALF (1/2) the excess shall be payable by
Tenant to Landlord. If there are one or more assignments or sublettings by
Tenant to which Landlord consents, then any and all extension options to be
exercised subsequent to the date of such assignment or subletting and all
options to lease additional space in the Building to be exercised subsequent to
the date of such assignment or subletting are absolutely waived and terminated
at Landlord's sole discretion. In the event of the transfer and assignment by
Landlord of its interest in this Lease and/or sale of the Building containing
the Premises, either of which it may do at its sole option, Landlord shall
thereby be released from any further obligations hereunder, and Tenant agrees
to look solely to such successor in interest of Landlord for performance of
such obligations. The provisions of Item 36 hereafter dealing with "Notices"
shall be amended to provide the correct names and addresses of the assignee or
sublessee. If Tenant is a corporation whose stock is not regularly traded on a
bona fide public exchange, and if any transfer, sale, pledge or other
disposition of the common stock shall occur which changes the power to vote the
majority of the outstanding capital stock of the company, such
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action shall be considered an assignment under the terms of this Lease. Any
breach of this Item 7 by Tenant will constitute an automatic default under the
terms of this Lease, per Item 20 hereof.
BEFORE THE PARTIES' RESPECTIVE ONE-HALF SHARES OF "THE EXCESS" (SEE
THE FIRST SENTENCE OF THE FOURTH PARAGRAPH OF THIS ITEM 7) ARE CALCULATED,
THERE SHALL FIRST BE DEDUCTED FROM THE APPLICABLE MONIES THE REASONABLE AND
NECESSARY OUT-OF-POCKET EXPENSES INCURRED BY TENANT TO EFFECT SUCH ASSIGNMENT OR
SUBLEASE, SUCH AS REASONABLE AND NECESSARY BROKERS' FEES AND REASONABLE AND
NECESSARY AND NON-DECORATIVE IMPROVEMENT OR ALTERATION COSTS, SUCH DEDUCTION
AND SUCH EXPENSES TO BE AMORTIZED OVER THE TERM OF THE APPLICABLE ASSIGNMENT
AND/OR SUBLEASE. TENANT SHALL (AND HEREBY DOES, IT AGREES) HAVE AN OBLIGATION
OF "GOOD FAITH" AND "FAIR DEALING" TO AND WITH LANDLORD AS REGARD THE CONTENTS
OF THIS PARTICULAR PARAGRAPH OF THIS ITEM 7.
8. ACCESS TO PREMISES. Landlord or its authorized agent or agents
shall have the right to enter upon the Premises at all reasonable times AND
UPON REASONABLE ADVANCE (EXCEPT IN CASE OF BONA-FIDE EMERGENCIES) ORAL NOTICE
(NO NOTICE, HOWEVER, TO BE NECESSARY FOR ROUTINE CLEANING OR JANITORIAL
SERVICE) for the purposes of inspecting the same, preventing waste, making such
repairs as Landlord may consider necessary (but without any obligation to do so
except as expressly provided for herein), and showing the Premises to
prospective tenants, mortgagees and/or purchasers. IN ADDITION, EXCEPT IN CASE
OF BONA-FIDE EMERGENCIES, LANDLORD SHALL USE REASONABLE EFFORTS TO MINIMIZE ANY
DISRUPTION TO OR INTERFERENCE WITH THE OPERATION OF TENANT'S BUSINESS ARISING
OUT OF ANY ENTRY BY LANDLORD (OR ITS EMPLOYEES OR CONTRACTORS) INTO THE
PREMISES. If during the last month of the Term, Tenant shall have removed all
or substantially all of Tenant's property therefrom, Landlord may immediately
enter and alter, renovate and redecorate the Premises without elimination or
abatement of Rent or Additional Rent or incurring liability to Tenant for any
compensation or offsets in Rent or Additional Rent and charges owed and such
acts shall have no effect upon this Lease.
9. LANDLORD'S SERVICES. Landlord shall, at its expense, furnish the
Premises with (i) electricity subject to Item 10 of this Lease; (ii) heat and
air-conditioning during reasonable and usual business hours (exclusive of
Saturdays, Sundays and nationally-recognized holidays) reasonably required for
the occupation of the Premises, such heat and air-conditioning to be provided
by utilizing the existing Building systems, it being expressly understood and
agreed by the parties that Landlord specifically shall not be liable for any
losses or damages of any nature whatsoever incurred by Tenant due to any
failure of the equipment to function properly, or while it is being repaired,
or due to any governmental laws, regulations or restrictions pertaining to the
furnishing or use of such heat and air-conditioning; (iii) elevator service;
(iv) lighting replacement for Building Standard lights; (v) toilet room
supplies; (vi) daily janitor service during the time and in the manner that
such janitor service is customarily furnished in first class office buildings
in the metropolitan area where the Building is located; (vii) water; and (viii)
sewerage. The foregoing services are designated "Building Standard."
Tenant agrees that Landlord is only responsible for Building Standard
maintenance and Building Standard services. If other, more complete or special
services and maintenance (over Building Standard) are required, then Tenant
solely shall be and is responsible for same and for any and all expenses and
costs of any nature whatsoever associated with same. To this end, Tenant is and
shall be solely responsible for any expenses and costs of any nature whatsoever
associated with, among other things, maintaining upgraded tenant improvements
in the Premises, replacing non-Building Standard lighting fixtures and bulbs in
the Premises, servicing, operating and maintaining any separate and
non-Building Standard HVAC systems and facilities serving the Premises, etc.
Landlord shall not be liable for any damages directly or indirectly or
consequentially resulting from, nor shall any Rent or Additional Rent herein
set forth be reduced or abated by reason of, (1) installation, use, or
interruption of use of any equipment in connection with the
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furnishing of any of the foregoing services, or (2) failure to furnish, or
delay in furnishing, any such services when such failure or delay is caused by
accident or any condition beyond the reasonable control of Landlord or by the
making of necessary repairs or improvements to the Premises or to the Building
or because of any governmental laws, regulations or restrictions. The temporary
failure to furnish any such services shall not be construed as an eviction of
Tenant or relieve Tenant from the duty of observing and performing each, every,
any and all of the provisions of this Lease.
10. ELECTRICAL OVERLOAD: STRUCTURAL OVERLOAD.
A. Tenant's use of electrical services furnished by
Landlord shall be subject to the following:
(1) Tenant's electrical equipment shall be
restricted to that equipment which
individually does not have a rated capacity
greater than .5 kilowatts per hour and/or
require voltage other than 120/208 volts,
single phase. Collectively, Tenant's
equipment shall not have an electrical design
load greater than an average of 3 watts per
square foot (including overhead lighting).
(2) Tenant's overhead lighting shall not have a
design load greater than an average of 2
watts per square foot.
(3) If Tenant's consumption of electrical
services exceeds either the rated capacities
and/or design loads as per subsections (1)
and (2) above, then Tenant shall remove such
equipment and/or lighting to achieve
compliance within ten (10) days after
receiving notice from Landlord. Or upon
receiving Landlord's prior written approval,
such equipment and/or lighting may remain in
the Premises, subject to the following:
(a) Tenant shall pay for all costs of
installation and maintenance of
submeter, wiring, air-conditioning
and other items required by
Landlord, in Landlord's discretion,
to accommodate Tenant's excess
design loads and capacities;
(b) Tenant shall pay to Landlord, upon
demand, the cost of the excess
demand and consumption of electrical
service at rates determined by
Landlord which shall be in
accordance with any applicable laws;
(c) Landlord may, at its option, upon
not less than thirty (30) days'
prior written notice to Tenant,
discontinue the availability of such
extraordinary utility service. If
Landlord gives any such notice,
Tenant will contract directly with
the public utility for the supplying
of such utility service to the
Premises.
B. Tenant shall not place a load upon any floor of the
Premises exceeding the floor load per square foot area which such floor was
designed to carry and which may be allowed by law. Landlord reserves the right
to prescribe the weight and position of all heavy equipment and similar items,
and to prescribe the reinforcing necessary, if any, which in the opinion of
Landlord may be required under the circumstances, such reinforcing to be at
Tenant's pre-paid expense.
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LANDLORD HEREBY DECLARES THAT THE FLOOR LOAD FACTOR FOR THE PREMISES
IS AS FOLLOWS: 50 POUNDS FOR ALL FLOOR AREAS OTHER THAN CORE AREAS. CORE AREAS
AND UP TO 10 FEET AROUND CORE AREAS HAVE A LOAD FACTOR OF 100 POUNDS.
11. PARKING AREAS. Landlord shall keep and maintain in good
condition any parking areas that may be provided. Landlord reserves the right
to control the method, manner and time of parking in parking spaces. Landlord
shall not be responsible at all, any statement or implication elsewhere in this
Lease to the contrary notwithstanding, for the security of the parking areas
provided pursuant to this Lease. Any and all parking charges payable by Tenant,
whether to Landlord or to Landlord's designate(s), shall be Additional Rent;
furthermore, if Tenant fails to pay duly, fully and timely such parking
charges, Landlord [or its designate(s)] may discontinue, without notice to
Tenant (or anyone else), the availability of the parking space(s) the subject
of such parking charges, no matter by whom such parking spaces are or were
being utilized or are in the future to be utilized, anything to the contrary
elsewhere in this Lease notwithstanding. During the Term of this Lease,
Landlord shall provide Tenant with five (5) parking spaces, the same to be
located within the parking garage a part of the Building. The spaces shall be
at the monthly rates to be determined at any time and from time to time by
Landlord and as generally charged other tenants for non-reserved or reserved
(as applicable) spaces. Landlord reserves the right at any time, and from time
to time, to designate at its sole discretion the location(s) of all such
parking spaces. Up to two (2) of such five (5) spaces may be reserved spaces,
all other spaces to be non-reserved spaces.
12. LEASEHOLD IMPROVEMENTS. The Premises are rented "as is,"
without any additional services or improvements to be rendered by Landlord,
other than those services described in Item 9 and such other services or
improvements as may be described in Exhibit "B" attached hereto and expressly
made a part hereof. If Landlord is to additionally alter, remodel, improve, or
do any physical act or thing to the space as presently constituted or as
described in Exhibit "B", same shall be at the sole expense of Tenant and shall
be effected only by an "Extra Work Agreement" signed by the parties. In the
absence of an "Extra Work Agreement" signed by the parties, Landlord is under
no obligation to make any such alteration, remodeling or improvement or do any
physical act or thing to the space.
Any and all extraordinary (as so determined by Landlord at its sole
discretion) expenses and costs of any nature whatsoever attributable to the
installation, maintenance and/or removal of telephone equipment, computer
equipment and the like shall be borne solely by Tenant.
13. REPAIRS AND MAINTENANCE. Landlord will, at its own cost and
expense, except as may be provided elsewhere herein, make necessary repairs of
damage to the Building corridors, lobby, structural members of the Building,
and equipment used to provide the Building Standard services referred to in
Item 9, unless any such damage is caused by acts or omissions of Tenant, its
agents, customers, employees, principals, contractors, consultants, assigns,
subtenants or invitees, in which event Tenant will bear the cost of such
repairs. Tenant will allow no maintenance or repairs to be done in, on, to or
about the Premises other than by a contractor (such term to include all degrees
and levels of subcontractors) approved by Landlord in writing prior to any such
maintenance or repairs being undertaken; BUT SEE THE SECOND PARAGRAPH OF THIS
ITEM 13. Landlord shall be entitled to require such contractor to be bonded and
insured in such amounts and with such companies as Landlord may in its
discretion prescribe. Tenant will not injure the Premises or the Building but
will maintain the Premises in a clean, attractive condition and in good repair,
except as to damage to be repaired by Landlord as provided above. Upon
termination of this Lease, Tenant will surrender and deliver the Premises to
Landlord in the same condition in which they existed at the commencement of
this Lease, excepting only ordinary wear and tear and damage arising from any
cause not required to be repaired by Tenant. This Item 13 shall not apply in
the case of damage or destruction by fire or other casualty which is covered by
insurance maintained by Landlord on the Building (as to which Item 16 hereof
shall apply) or damage resulting from an Eminent Domain taking (as to which
Item 18 hereof shall apply).
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NOTWITHSTANDING THE CONTENTS OF THE SECOND SENTENCE OF THE FIRST
PARAGRAPH OF THIS ITEM 13, TENANT SHALL BE PERMITTED TO MAKE MINOR MAINTENANCE
AND REPAIRS IN THE PREMISES FROM TIME TO TIME. LANDLORD'S PRIOR WRITTEN CONSENT
SHALL NOT BE A PREREQUISITE TO ANY SUCH MINOR MAINTENANCE AND REPAIRS, BUT THE
REMAINDER OF THE FIRST PARAGRAPH OF THIS ITEM 13 SHALL REMAIN FULLY APPLICABLE.
"MINOR MAINTENANCE AND REPAIRS" MEANS ANY MAINTENANCE AND REPAIRS THAT (A) DO
NOT ALTER ANY STRUCTURAL COMPONENT OF THE PREMISES AND/OR THE BUILDING, AND (B)
DO NOT AFFECT, OR REQUIRE ANY MODIFICATION OF, THE PLUMBING, HVAC, ELECTRICAL,
MECHANICAL OR LIFE SAFETY SYSTEMS SERVING THE BUILDING OR THE PREMISES, AND (C)
DO NOT DURING ANY TWELVE (12) MONTH PERIOD EXCEED A TOTAL AGGREGATE COST OF TWO
THOUSAND FIVE HUNDRED DOLLARS ($2,500.00).
14. ALTERATIONS AND IMPROVEMENTS. Tenant absolutely shall not make any
alterations, additions or improvements to or in the Building outside the
Premises. Furthermore, Tenant shall make no alterations, additions or
improvements to or in the Premises without the prior written approval of
Landlord, unless in each instance and for each such alteration, addition or
improvement Landlord or a contractor approved by Landlord is hired to do such
alterations, additions or improvements. Such approval shall not be unreasonably
withheld in the case of alterations, additions or improvements to the interior
of the Premises if such alterations, additions, or improvements are normal for
the use described in Item 1 (d) of this Lease, do not adversely affect utility
of the Premises for future tenants, do not alter the exterior of the Building,
and are accompanied by insurance satisfactory to Landlord and by prepayment or
bond provisions or waivers by the contractor in form satisfactory to Landlord
sufficient to protect the Building from claims of lien of any sort; otherwise,
such approval may be withheld for any reason whatsoever. Furthermore, such
alterations, additions or improvements absolutely shall not affect the
mechanical, plumbing, electrical and HVAC systems in the Premises or the
Building and shall not be of a structural nature. Tenant shall conduct its work
in such a manner as to maintain harmonious labor relations and as not to
interfere with the operation of the Building and shall, prior to the
commencement of the work, submit to Landlord copies of all necessary permits.
Landlord reserves the right to have final approval of the contractors hired by
Tenant. All such contractors hired by Tenant shall be, at levels and coverages
prescribed by Landlord, bonded and insured, and Landlord may require evidence
of same, which Tenant agrees to secure and provide Landlord prior to the
commencement of any work by such contractors. All alterations, additions or
improvements, whether temporary or permanent in character, made in or upon the
Premises, either by Landlord or Tenant, shall be Landlord's property and at the
end of the term hereof shall remain in or upon the Premises without
compensation to Tenant. If, however, Landlord shall request in writing, Tenant
will, prior to the expiration or earlier termination of this Lease, remove any
and all alterations, additions and improvements placed or installed by Tenant
in the Premises, and will repair any damage caused by such removal. All of
Tenant's furniture, movable trade fixtures and equipment not attached to the
Building may be removed by Tenant at the expiration of this Lease, if Tenant so
elects, and shall be so removed, if required by Landlord, and, if not so
removed, shall, at the option of Landlord, become the property of Landlord. To
the extent Tenant makes any alterations, additions or improvements and/or to
the extent Landlord on behalf of Tenant under an "Extra Work Agreement" makes
such alterations, additions or improvements, and as a result thereof it can be
determined that thereupon was caused an increase in real estate taxes or
insurance premiums, then Tenant shall be responsible for reimbursing Landlord
for such increases as Landlord may pay.
NOTWITHSTANDING ANYTHING EXPRESSLY TO THE CONTRARY WITHIN THE CONTENTS
OF THE FIRST PARAGRAPH OF THIS ITEM 14, TENANT SHALL BE PERMITTED TO MAKE MINOR
ALTERATIONS IN THE PREMISES FROM TIME TO TIME TO ACCOMMODATE CHANGES IN
TENANT'S BUSINESS REQUIREMENTS. LANDLORD'S CONSENT SHALL NOT BE A PREREQUISITE
TO ANY MINOR ALTERATIONS, THE BALANCE OF THE FIRST PARAGRAPH OF THIS ITEM 14 TO
REMAIN FULLY APPLICABLE, HOWEVER. "MINOR ALTERATIONS" SHALL MEAN A CHANGE IN
THE CONFIGURATION, LAYOUT, DECORATION OR FINISH OF ANY PORTION OF THE PREMISES
OR INSTALLATION OF FURNITURE, FIXTURES OR EQUIPMENT
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THAT (A) DO NOT VIOLATE THE OTHER CONTENTS OF THIS LEASE, AND DO NOT ALTER ANY
STRUCTURAL COMPONENT OR ANY EXTERIOR SURFACE OF THE BUILDING AND/OR THE
PREMISES, AND (C) DO NOT REQUIRE ANY MODIFICATION OF THE PLUMBING, HVAC OR LIFE
SAFETY SYSTEMS, THE ELEVATORS, OR THE MECHANICAL, ELECTRICAL OR STRUCTURAL
COMPONENTS OF THE BUILDING AND/OR THE PREMISES, AND (D) DO NOT DURING ANY
TWELVE (12) MONTH PERIOD EXCEED A TOTAL AGGREGATE OF FIVE THOUSAND DOLLARS
($5,000.00).
15. INDEMNITY. Landlord shall not be liable for, and Tenant will
indemnify and save Landlord (and Landlord's officers, principals, agents,
employees and insurers) harmless of and from, each, every, any and all fines,
suits, damages, claims, demands, losses and actions (including attorney's fees)
for any injury to person or damage to or loss of property on or about the
Premises and Building caused by the negligence or misconduct or breach of this
Lease by Tenant, its employees, agents, principals, contractors, consultants,
assigns, subtenants, invitees or by any other person entering the Premises or
the Building under express or implied invitation of Tenant, or arising out of
Tenant's use of the Premises. Landlord absolutely shall not be liable or
responsible for any loss or damage to any property or the death or injury to
any person occasioned by theft, crime (of any nature whatsoever), fire, act of
God, public enemy, injunction, riot, strike, insurrection, war, court order,
requisition of governmental body or authority, by other tenants of the Building
or by any other matter beyond the absolute control of Landlord, or for any
injury or damage or inconvenience which may arise through repair or alteration
of any part of the Building, or failure to make repairs, or from any cause
whatsoever except Landlord's negligence or intentional act. It is specifically
understood and agreed that there shall be no personal liability on Landlord
(nor on Landlord's officers, principals, agents and employees) with respect to
any of the covenants, conditions or provisions of this Lease; in the event of a
breach or default by Landlord of any of its obligations under this Lease,
Tenant shall look solely to the equity of Landlord in the Building for the
satisfaction of Tenant's remedies.
16. DAMAGE BY FIRE OR THE ELEMENTS. In the event that the Building
is totally destroyed by fire, tornado or other casualty, or in the event the
Premises or Building is so damaged that rebuilding or repairs cannot be
completed within one hundred eighty (180) days after the date of such damage,
either Landlord or Tenant may, at its option, by written notice to the other
given not more than thirty (30) days after the date of such fire or other
casualty, terminate this Lease. In such event, the Rent and Additional Rent
shall be abated during the unexpired portion of this Lease effective with the
date of such fire or other casualty.
In the event the Building or the Premises are damaged by fire,
tornado, or other casualty covered by Landlord's insurance but only to such
extent that rebuilding or repairs can be completed within one hundred eighty
(180) days after the date of such damage, or if the damage should be more
serious but neither Landlord nor Tenant elects to terminate this Lease, then
Landlord shall, within thirty (30) days after the date of such damage or such
election, commence to rebuild or repair the Building and/or the Premises and
shall proceed with reasonable diligence to restore the Building and/or the
Premises to substantially the same condition in which it/they was/were
immediately prior to the happening of the casualty, except that Landlord shall
not be required to rebuild, repair or replace any part of the furniture,
equipment, fixtures and other improvements which may have been placed by Tenant
or other tenants or occupants within the Building or Premises. Landlord shall,
unless such damage is deemed by Landlord to be the result of the negligence or
willful misconduct of Tenant or Tenant's employees, agents, principals,
contractors, consultants, assigns, subtenants or invitees, allow Tenant a fair
diminution of Rent and Additional Rent during the time of such rebuilding or
repairs. In the event any mortgagee, or the holder of any deed of trust,
security agreement or mortgage on the Building, requires that the insurance
proceeds be used to retire the mortgage debt, Landlord shall have no obligation
to rebuild and this Lease shall terminate upon notice to Tenant. Any insurance
which may be carried by Landlord or by Tenant against loss or damage to the
Premises or its contents shall be for the sole benefit of the party carrying
such insurance and under its sole control.
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17. BUILDING RULES AND REGULATIONS. Tenant shall faithfully
observe and comply with the Rules and Regulations printed on or annexed to (and
expressly made a part of) this Lease and all reasonable modifications of and
additions thereto from time to time put into effect by Landlord. Landlord shall
not be responsible to Tenant for the nonperformance of any of said Rules and
Regulations by any other tenant, occupant, invitee or visitor of the Building.
Tenant shall and does hereby have an affirmative obligation (to include
indemnification of Landlord, per Item 15 hereof) to notify its agents,
employees, principals, assigns, subtenants and invitees of the contents of such
Rules and Regulations and of this Lease and to assure their compliance
therewith.
18. EMINENT DOMAIN. If the whole or a portion of the Building is
taken for any public or quasi-public use under any statute or by right of
Eminent Domain or private purchase in lieu thereof, then at Landlord's option,
but not otherwise, this Lease, the Term hereby demised and each, every, any and
all rights of Tenant hereunder shall immediately cease and terminate and the
Rent and Additional Rent shall be adjusted as of the date of such termination.
Tenant shall be entitled to no part of the award made for such condemnation (or
other taking) or the purchase price thereof. Nevertheless, anything to the
contrary notwithstanding, likewise at Landlord's option, but not otherwise, if
the Premises are unaffected by such condemnation (or other taking), then this
Lease and each and every one of its provisions shall continue in full force and
effect.
19. SIGNS AND ADVERTISING. Without the prior written approval of
Landlord, which may be withheld at Landlord's discretion, Tenant shall not
permit the painting or display of any signs, placard, lettering, or advertising
material of any kind on or near the exterior of the Premises or the Building.
Notwithstanding the foregoing, Tenant may, with Landlord's prior approval,
display Tenant's name on or near the entrance to the Premises, in a
Building-standard manner prescribed by Landlord.
20. TENANT'S DEFAULT. Landlord, at its election, may exercise any
one or more of the options referred to below upon the happening, or at any time
after the happening, of any one or more of the following events, to wit:
(a) Tenant's failure to pay the Rent, Additional Rent, or
any other sums (no matter how characterized) payable
hereunder for a period of FIVE (5) BUSINESS days
after written notice by Landlord;
(b) Tenant's failure to observe, keep or perform any of
the other terms, covenants, agreements or conditions
of this Lease or in the Building Rules and
Regulations for a period often (10) days after
written notice by Landlord;
(c) The bankruptcy of Tenant;
(d) Tenant's making an assignment for the benefit of
creditors;
(e) A receiver or trustee being appointed for Tenant or a
substantial portion of Tenant's assets;
(f) Tenant's voluntarily petitioning for relief under, or
otherwise seeking the benefit of, any bankruptcy,
reorganization, arrangement or insolvency law;
(g) Tenant's deserting, vacating or abandoning any
portion of the Premises or attempting to mortgage,
pledge or otherwise encumber in any way its interest
hereunder;
(h) Tenant's interest under this Lease being sold under
execution or other legal process;
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(i) Tenant's interest under this Lease being affected,
modified or altered by any unauthorized assignment or
subletting or by operation of law;
(j) Any of the goods or chattels of Tenant used in, or
incident to, the operation of Tenant's business at, from
or in the Premises being seized, sequestered, or
impounded by virtue of, or under authority of, any legal
proceeding;
(l) Tenant's failure to operate continuously during normal
business hours from the Premises in a fully-staffed,
fully-equipped manner and/or as contemplated by Item l
(d) of this Lease;
(m) Tenant's failure to take occupancy of the Premises when
same is tendered by Landlord to Tenant.
In the event of any of the foregoing happenings, Landlord, at its
election, may exercise any one or more of the following options, the exercise of
any of which shall not be deemed to preclude the exercise of any others herein
listed or otherwise provided or permitted by statute or general law at the same
time or in subsequent times or actions:
(1) Terminate Tenant's right to possession under this Lease and
re-enter and retake possession of the Premises and relet or
attempt to relet the Premises on behalf of Tenant at such
rent and under such terms and conditions as Landlord may
deem best under the circumstances for the purpose of reducing
Tenant's liability. Landlord shall not be deemed to have
thereby accepted a surrender of the Premises, and Tenant
shall remain fully liable for any and all Rent, Additional
Rent, or other sums (no matter how characterized) due under
this Lease and for all damages suffered by Landlord because
of Tenant's breach of any of the covenants of this Lease.
(2) Declare this Lease to be terminated and ended, and re-enter
upon and take possession of the Premises whereupon all right,
title and interest of Tenant in the Premises shall end.
(3) Accelerate and declare the entire remaining unpaid Rent and
Additional Rent for the balance of this Lease to be
immediately due and payable forthwith, and may, at once, take
legal action to recover and collect the same.
No re-entry or retaking possession of the Premises by Landlord shall be
construed as an election on its part to terminate this Lease, unless a specific
written notice of such intention is given to Tenant, nor shall pursuit of any
remedy herein provided constitute a forfeiture or waiver of any Rent, Additional
Rent or other monies due to Landlord hereunder or of any damages accruing to
Landlord by reason of the violations of any of the terms, provisions and
covenants herein contained. Landlord's acceptance of Rent or Additional Rent or
other monies following any event of default hereunder shall not be construed as
Landlord's waiver of such event of default. No forbearance by Landlord of action
upon any violation or breach of any of the terms, provisions, and covenants
herein contained shall be deemed or construed to constitute a waiver of the
terms, provisions, and covenants herein contained. Forbearance by Landlord to
enforce one or more of the remedies herein provided upon an event of default
shall not be deemed or construed to constitute a waiver of any other violation
or default. Legal actions to recover for loss or damage that Landlord may suffer
by reason of termination of this Lease or the deficiency from any reletting as
provided for above
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shall include the expense of repossession or reletting and any repairs or
remodeling undertaken by Landlord following repossession.
The parties hereto shall, and they hereby do, waive trial by jury in
any action, proceeding, or counterclaim brought by either of the parties hereto
against the other on account of any matters whatsoever arising out of, or in any
way connected with, this Lease, the relationship of landlord and tenant,
Tenant's use or occupancy of the Premises and/or Building, and/or claim of loss,
injury or damage. In the event Landlord commences any proceeding to enforce this
Lease or the landlord/tenant relationship between the parties or for nonpayment
of Rent, Additional Rent or other monies due Landlord from Tenant under this
Lease, Tenant will not, UNLESS OTHERWISE CALLED FOR BY THE APPLICABLE FLORIDA
RULES OF CIVIL PROCEDURE OR OTHER APPLICABLE COURT RULES OR ORDERS, interpose
any counterclaim of whatever nature or description (OTHER THAN A COMPULSORY
COUNTERCLAIM) in any such proceedings. In the event Tenant must, because of
applicable court rules, interpose any counterclaim or other claim against
Landlord in such proceedings, Landlord and Tenant covenant and agree that, in
addition to any other lawful remedy of Landlord, upon motion of Landlord, such
counterclaim or other claim asserted by Tenant shall be severed out of the
proceedings instituted by Landlord (and, if necessary, transferred to a court of
different jurisdiction), and the proceedings instituted by Landlord may proceed
to final judgment separately and apart from and without consolidation with or
reference to the status of each counterclaim or any other claim asserted by
Tenant.
The parties hereto agree that any and all suits for any and every
breach of this Lease shall be instituted and maintained only in those courts of
competent jurisdiction in the county or municipality in which the Building is
located. In the event of litigation by and between the parties [or their
respective successor(s)] to enforce the terms and provisions of this Lease, the
prevailing party shall be entitled to recover from the non-prevailing party the
prevailing party's reasonable attorney's fees and court costs, all through final
appeal.
Time is of the essence of this Lease; and in case Tenant shall fail to
perform the covenants and obligations on its part to be performed at the time
fixed for the performance of such respective covenants and obligations by the
provisions of this Lease, Landlord may declare Tenant to be in default of such
Lease.
21. CONTRACTUAL LANDLORD'S LIEN. Landlord shall have, at all times, a
valid security interest to secure payment of all Rent, Additional Rent and other
sums of money becoming due hereunder from Tenant, and to secure payment of any
damages or loss which Landlord may suffer by reason of the breach by Tenant of
any covenant, agreement or condition contained herein, upon all goods, wares,
equipment, fixtures, furniture, improvements and other personal property of
Tenant presently or which may hereinafter be situated in the Premises, and all
proceeds therefrom, and such property shall not be removed therefrom without the
consent of Landlord until all arrearages in Rent and Additional Rent as well as
any and all other sums of money then due to Landlord hereunder shall first have
been paid and discharged and all of the covenants, agreements, and conditions
hereof have been fully complied with and performed by Tenant. In consideration
of this Lease, upon the occurrence of an event of default by Tenant, Landlord
may, in addition to any other remedies provided herein, enter upon the Premises
and take possession of any and all goods, wares, equipment, fixtures, furniture,
improvements, and other personal property of Tenant situated on or in the
Premises, without liability for trespass or conversion, and sell the same at
public or private sale, with or without having such property at the sale, after
giving Tenant reasonable notice of the time and place of any public sale or of
the time after which any private sale is to be made, at which sale Landlord or
its assigns may purchase unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other manner of giving
Tenant reasonable notice, the requirement of reasonable notice shall be met if
such notice is given in the manner prescribed in Item 36 dealing with "Notices"
in this Lease at least five (5) days before the time of sale. The proceeds from
any such disposition, less any and all expenses connected with the taking of
possession, holding and selling of the property (including reasonable attorney's
fees and other expenses), shall be
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applied as a credit against the indebtedness secured by the security interest
granted in this Item 21. Any surplus shall be paid to Tenant or as otherwise
required by law, and Tenant shall pay any deficiencies forthwith. Upon request
by Landlord, Tenant agrees to execute and deliver to Landlord a financing
statement in form sufficient to perfect the security interest of Landlord in the
aforementioned property and proceeds thereof under the provisions of the Uniform
Commercial Code then in force in the State of Florida. THE CONTENTS OF THE
IMMEDIATELY PRECEDING SENTENCE SHALL BE APPLICABLE IF (AND ONLY IF) THERE IS A
CHANGE, AFTER THE DATE OF THIS LEASE, IN THE APPLICABLE FLORIDA LAW WHEREBY IT
WOULD BE NECESSARY FOR TENANT TO EXECUTE AND DELIVER TO LANDLORD A FINANCING
STATEMENT IN ORDER FOR LANDLORD TO PERFECT LANDLORD'S SECURITY INTEREST IN THE
AFOREMENTIONED PROPERTY AND PROCEEDS THEREOF UNDER THE PROVISIONS OF THE UNIFORM
COMMERCIAL CODE THEN IN FORCE IN THE STATE OF FLORIDA.
22. SUBORDINATION. In consideration of the execution of this Lease by
Landlord, Tenant accepts this Lease subject to any deeds of conveyance and any
deeds of trust, master leases, security interests or mortgages and all renewals,
modifications, extensions, spreads, consolidations and replacements of the
foregoing which might now or hereafter constitute a lien upon the Building (or
the land upon which it is situated) or improvements therein or thereon or upon
the Premises and to zoning ordinances and other building and fire ordinances and
governmental regulations relating to the use of the property. Although no
instrument or act on the part of Tenant shall be necessary to effectuate such
subordination, Tenant shall, nevertheless, for the purpose of confirmation, at
Landlord, execute any instruments, estoppel certificates, releases or other
documents that may be requested or required by any purchaser or any holder of
any superior interest for the purposes of subjecting and subordinating this
Lease to such deed of conveyance or to the lien of any such deed of trust,
master lease, security interest, mortgage, or superior interest. Tenant hereby
appoints Landlord attorney-in-fact, irrevocably, to execute and deliver any such
instrument or document for Tenant should Tenant fail or refuse to do so.
23. QUIET ENJOYMENT. Provided Tenant has fully, duly and timely
performed all of the terms, covenants, agreements and conditions of this Lease
on its part to be performed, including the payment of Rent, Additional Rent and
all other sums due hereunder, Tenant shall peaceably and quietly hold and enjoy
the Premises, except as described in Item 22 above, against Landlord and all
persons claiming by, through or under Landlord, for the Term (as may be
extended) herein described, subject to the provisions and conditions of this
Lease.
24. SECURITY DEPOSIT. Tenant, concurrently with the execution of this
Lease, has deposited with Landlord a Security Deposit as described in Item 1,
Section (h), which sum shall be retained by Landlord as a Security Deposit. The
Security Deposit shall be held by Landlord without liability for interest and as
security for the performance by Tenant of Tenant's covenants and obligations
under this Lease, it being expressly understood that such deposit shall not be
(unless Landlord in writing so elects) considered an advance payment of Rent or
Additional Rent or a measure of Landlord's damages in case of default by Tenant.
Upon the occurrence of any non-performance by Tenant of its duties, obligations
or responsibilities under this Lease (to include its exhibits and attachments),
Landlord may, from time to time, without prejudice to any other available
remedy, use such deposit to the extent necessary to make good any arrearages of
Rent, Additional Rent and any other damage, injury, loss, cost, expense or
liability caused to Landlord by such non-performance. Following any such
application of the Security Deposit, Tenant shall pay to Landlord on demand the
amount so applied in order to restore the Security Deposit to its original
amount. If Tenant is not then in default hereunder, any remaining balance of
such deposit shall be returned by Landlord to Tenant upon expiration of this
Lease. If Landlord transfers its ownership interest in the Building during the
Lease Term (or any extension thereof), Landlord may assign the Security Deposit
to the transferee and thereafter Landlord absolutely shall have no further
liability for the return of such Security Deposit.
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<PAGE> 19
Tenant's obligation under this Item 24 to provide Landlord with a
Security Deposit shall be fulfilled by Tenant's delivery to Landlord of a
CONTINUOUS SERIES OF IRREVOCABLE LETTERS OF CREDIT drawn upon BARNETT BANK OF
TAMPA, Tampa, Florida, ("THE BANK"). THE FIRST SUCH IRREVOCABLE LETTER OF CREDIT
SHALL BE IN THE AMOUNT OF ONE HUNDRED TWENTY-SEVEN THOUSAND EIGHT HUNDRED FIFTY
AND 91/100 DOLLARS ($127,850.91), SHALL HAVE A TERM BEGINNING JANUARY 27, 1997,
AND ENDING AT THE CLOSE OF BUSINESS FOR THE BANK ON AUGUST 31, 1997, AND SHALL
BE IN PLACE BEFORE THE DATE TENANT EXECUTES THIS lEASE. PROVIDED (BUT NOT
OTHERWISE) TENANT ALWAYS DULY, FULLY AND TIMELY COMPLIES WITH EACH, EVERY, ANY
AND ALL OF ITS DUTIES, OBLIGATIONS AND RESPONSIBILITIES UNDER THIS LEASE THROUGH
MIDNIGHT ON AUGUST 1, 1997, AND FURTHER PROVIDED (BUT NOT OTHERWISE) TENANT'S
FINANCIAL STATUS (TO BE EVIDENCED IN DETAIL BY TENANT TO LANDLORD IN SUCH MANNER
AS lANDLORD MAY PRESCRIBE) IS ON AUGUST 1, 1997, AS GOOD OR BETTER THAN IT
IS/WAS AS OF THE DATE OF THIS LEASE, THEN THE SECOND SUCH IRREVOCABLE LETTER OF
CREDIT SHALL BE IN THE AMOUNT OF ONE HUNDRED SEVEN THOUSAND DOLLARS
($107,000.00), SHALL HAVE A TERM BEGINNING SEPTEMBER 1, 1997, AND ENDING AT THE
CLOSE OF BUSINESS FOR THE BANK ON AUGUST 31, 1998, AND SHALL BE IN PLACE ON OR
BEFORE AUGUST 1, 1997. PROVIDED (BUT NOT OTHERWISE) TENANT ALWAYS DULY, FULLY
AND TIMELY COMPLIES WITH EACH, EVERY, ANY AND ALL OF ITS DUTIES, OBLIGATIONS AND
RESPONSIBILITIES UNDER THIS LEASE THROUGH MIDNIGHT ON AUGUST 1, 1998, AND
FURTHER PROVIDED (BUT NOT OTHERWISE) TENANT'S FINANCIAL STATUS (TO BE EVIDENCED
IN DETAIL BY TENANT TO LANDLORD IN SUCH MANNER AS LANDLORD MAY PRESCRIBE) IS ON
AUGUST 1, 1998, AS GOOD OR BETTER THAN IT IS/WAS AS OF THE DATE OF THIS LEASE,
THEN THE THIRD SUCH IRREVOCABLE LETTER OF CREDIT SHALL BE IN THE AMOUNT OF
SEVENTY-ONE THOUSAND DOLLARS ($71,000.00), SHALL HAVE A TERM BEGINNING SEPTEMBER
1, 1998, AND ENDING AT THE CLOSE OF BUSINESS FOR THE BANK ON AUGUST 31, 1999,
AND SHALL BE IN PLACE ON OR BEFORE AUGUST 1, 1998. PROVIDED (BUT NOT OTHERWISE)
TENANT ALWAYS DULY, FULLY AND TIMELY COMPLIES WITH EACH, EVERY, ANY AND ALL OF
ITS DUTIES, OBLIGATIONS AND RESPONSIBILITIES UNDER THIS LEASE THROUGH MIDNIGHT
ON AUGUST 1, 1999, AND FURTHER PROVIDED (BUT NOT OTHERWISE) TENANT'S FINANCIAL
STATUS (TO BE EVIDENCED IN DETAIL BY TENANT TO LANDLORD IN SUCH MANNER AS
LANDLORD MAY PRESCRIBE) IS ON AUGUST 1, 1999, AS GOOD OR BETTER THAN IT IS/WAS
AS OF THE DATE OF THIS LEASE, THEN THE FOURTH (AND FINAL) SUCH IRREVOCABLE
LETTER OF CREDIT SHALL BE IN THE AMOUNT OF THIRTY-SIX THOUSAND DOLLARS
($36,000.00), SHALL HAVE A TERM BEGINNING SEPTEMBER 1, 1999, AND ENDING AT THE
CLOSE OF BUSINESS FOR THE BANK ON AUGUST 31, 2000, AND SHALL BE IN PLACE OR
BEFORE AUGUST 1, 1999. EACH SUCH IRREVOCABLE LETTER OF CREDIT SHALL HAVE A
SUBSTANCE, CONTENT AND FORM AS MAY NOT BE UNREASONABLY PRESCRIBED BY LANDLORD.
TENANT'S FAILURE (FOR ANY OR NO REASON) TO COMPLY STRICTLY WITH THE CONTENTS OF
THIS ITEM 24 ON ITS PART TO BE PERFORMED SHALL BE A DEFAULT UNDER THIS LEASE,
WHEREUPON LANDLORD MAY IMMEDIATELY AVAIL ITSELF OF THE RIGHTS AND REMEDIES
AFFORDED BY THIS LEASE AND/OR THE LETTER(S) OF CREDIT AND/OR THE APPLICABLE LAW
25. MECHANIC'S LIENS. Tenant is prohibited from making, and agrees not
to make, alterations in the Premises, except as permitted by Item 14, and Tenant
shall not permit any mechanic's lien or liens to be placed upon the Premises or
the Building or improvements thereon during the Term (as may be extended) hereof
caused by or resulting from any work performed, materials furnished or
obligation incurred by or at the request of Tenant, and in the case of the
filing of any such lien, Tenant will promptly pay or statutorily bond same. If
default in payment or statutory bonding thereof shall continue for ten (10) days
after written notice thereof from Landlord to Tenant, Landlord shall have the
right and privilege, at Landlord's option, of paying the same or any portion
thereof without inquiry as to the validity thereof, and any amounts so paid,
including expenses, interest, and attorney's fees, shall be so much additional
indebtedness hereunder due from Tenant to Landlord and shall be repaid to
Landlord immediately on rendition of a bill therefor, together with interest per
annum at the maximum rate permitted by law until repaid, and if not so paid
within ten (10) days of the rendition of such bill shall constitute default
under Item 20 hereof.
The interest of Landlord shall not be subject to liens for improvements
made by Tenant in or to the Premises or the Building. Tenant shall notify every
contractor making such improvements of the provision set forth in the
immediately preceding sentence of this
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paragraph. The parties agree, should Landlord so request, to execute,
acknowledge and deliver without charge to the other a Memorandum of Lease in
recordable form containing a confirmation that the interest of Landlord (as well
as those parties holding interests superior), or inferior to, Landlord) shall
not be subject to liens for improvements made by Tenant the Premises or the
Building.
26. FORCE MAJEURE. Whenever a period of time is herein prescribed for
action to be taken by Landlord, Landlord shall not be liable or responsible
for, and there shall be excluded from the computation for any such period of
time, any delays due to strikes riots, acts of God, shortages of labor or
materials, theft, crime, fire, public enemy, injunction insurrection, court
order, requisition of governmental body or authority, war, governmental laws,
regulations or restrictions or any other causes of any kind whatsoever which
are beyond the absolute control of Landlord.
27. SEVERABILITY. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during the Term
(as may be extended) of this Lease, then and in that event, it is the intention
of the parties hereto that the remainder of this Lease shall not be affected
thereby.
28. HOLDING OVER. The failure of Tenant to surrender the Premises on
the date provided herein for the expiration of the Term (as may have been
theretofore extended) of this Lease (or at the time this Lease may be terminated
otherwise by Landlord), and the subsequent holding over by Tenant, with or
without the consent of Landlord, shall result in the creation of a tenancy at
will at double the Rent payable at the time of the date provided herein for the
expiration of this Lease or at the time this Lease may be terminated otherwise
by Landlord. This provision does not give Tenant any right to hold over at the
expiration of the Term (as may have been heretofore extended) of this Lease, and
shall not be deemed, the parties agree, to be a renewal of the Lease Term (as
may have been heretofore extended) either by operation of law or otherwise.
30. RENT A SEPARATE COVENANT. Tenant shall not for any reason withhold
or reduce Tenant's required payments of Rent, Additional Rent and other charges
provided in this Lease, it being expressly understood and agreed contractually
by the parties that the payment of Rent and Additional Rent is a contractual
covenant by Tenant that is independent of the other covenants of the parties
under this Lease. OTHER THAN ONCE (ONLY), Tenant may not and shall not change
or convert its
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business form and/or composition in any way whatsoever without Landlord's prior,
written and solely discretionary consent.
32. ABSENCE OF OPTION. submission of this Lease for examination does
not constitute a reservation of or option for the Premises, and this Lease
becomes effective only upon execution and delivery thereof by Landlord.
33. CORPORATE TENANCY. If Tenant is a corporation, the undersigned
officer of Tenant hereby warrants and certifies to Landlord that Tenant is a
corporation in good standing and is authorized to do business in the State of
Florida. The undersigned officer of Tenant hereby further warrants and certifies
to Landlord that he or she, as such officer, is authorized and empowered to bind
the corporation to the terms of this Lease by his or her signature thereto.
Landlord, before it accepts and delivers this Lease, may require Tenant to
supply it with a certified copy of the corporate resolution authorizing the
execution of this Lease by Tenant.
34. BROKERAGE COMMISSION. Tenant warrants that there are no claims for
broker's commissions or finder's fees in connection with its execution of this
Lease with the exception of CB Commercial Real Estate Group, Inc., a licensed
Florida real estate broker, which shall be entitled to a commission to be paid
by Landlord in accordance with a separate written agreement (attached to this
Lease as Exhibit C) and agrees to indemnify and save Landlord completely
harmless from any liability that may arise from such claim, including reasonable
attorney's fees.
35. LANDLORD'S DEFAULT. Landlord shall in no event be charged with
default in the performance of any of its obligations under this Lease unless and
until Landlord shall have failed to perform such obligations within ten (10)
days (or within such additional time as is reasonably required to remedy any
such default) after written notice to Landlord by Tenant properly specifying and
detailing the particulars of wherein and whereby Tenant claims Landlord has
failed to perform any such obligations. If the holder of record of the first
mortgage covering the Premises shall have given prior written notice to Tenant
that it is the holder of such first mortgage and such notice includes the
address at which notices to such mortgagee are to be sent, then Tenant shall
give such mortgagee notice simultaneously with any notice given to Landlord to
correct any default of Landlord as hereinabove provided. Such mortgagee shall
have the right within thirty (30) days (or within such additional time as is
reasonably required to correct any such default) after receipt of such notice to
correct or remedy such default before Tenant may take any action under this
Lease by reason of such default. Any notice of default given Landlord by Tenant
shall be null and void unless simultaneous notice has been given by Tenant to
said first mortgagee. It is specifically understood and agreed, anything in this
Lease to the contrary notwithstanding, that there shall be no personal liability
on Landlord (nor on Landlord's officers, principals, agents and employees) with
respect to any of the covenants, conditions or provisions of this Lease; in the
event of a breach or default by Landlord of any of its obligations under this
Lease, Tenant shall look solely to the equity of Landlord in the Building for
the satisfaction of Tenant's remedies, and in absolutely no event shall Landlord
be liable for prospective profits or special, indirect, or consequential
damages. Likewise, anything in this Lease to the contrary notwithstanding, in no
event shall Tenant have the right to terminate this Lease as a result of any
default by Landlord, but rather Tenant's remedies against Landlord shall be
solely limited to a claim for damages and/or a claim for injunction.
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36. NOTICES. Any notice or document required or permitted to be
delivered hereunder shall be deemed to be delivered or given when (a) actually
received or (b) signed for or "refused" as indicated on the postal service
return receipt. Delivery shall and must be by personal delivery or by United
States mail, postage prepaid, certified or registered mail, addressed to the
parties hereto at the respective addresses set out opposite their names below,
or at such other address as they may hereafter specify by written notice
delivered in accordance herewith:
LANDLORD: PLAZA IV ASSOCIATES, LTD., A Florida
Limited Partnership
Suite 4100
100 North Tampa Street
Tampa, FL 33602
Atten: Harry C. Flowers
TENANT: CIMETRIX INCORPORATED
Suite 3550
100 North Tampa Street
Tampa, FL 33602
Atten: David L. Redmond
37. INSURANCE. Tenant shall not conduct or permit to be conducted
any activity, or place any equipment, materials or other items in, on or about
the Premises or the Building, which will in any way increase the rate of fire or
liability or casualty insurance on the Building. Should Tenant fail to comply
with the foregoing covenant on its part to be performed, Tenant shall reimburse
Landlord for such increased amount upon written demand therefor from Landlord,
the same to be considered Additional Rent payable hereunder.
Tenant shall, at Tenant's sole expense, obtain and keep in force at all
times during the Term (as may be extended) of this Lease comprehensive general
liability insurance, to include fire and extended coverage including property
damage, on an occurrence basis, with limits of not less that One Million Dollars
($1,000,000.00) combined single limit, insuring Landlord and Tenant against any
liability arising out of the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. The limit of said insurance shall
not, however, limit the liability of Tenant hereunder. Tenant may carry said
insurance under a blanket policy, provided an endorsement naming Landlord as an
additional insured is attached thereto.
Tenant shall maintain insurance with a contractual liability
endorsement and upon all property in the Premises owned by Tenant or for which
Tenant is legally liable. Tenant shall maintain insurance against such other
perils and in such amounts as Landlord may in writing from time to time require.
The insurance required to be obtained and maintained under this Lease shall be
with a company or companies licensed to issue the relevant insurance and
licensed to do business in the State of Florida. Such insurance company or
companies shall each have a policyholder's rating of no less than "A" in the
most recent edition of Best's Insurance Reports. No policy shall be cancelable
or subject to reduction of coverage except after thirty (30) days' prior written
notice to Landlord. All policies of insurance maintained by Tenant shall be in a
form, and shall have a substance, acceptable to Landlord with satisfactory
evidence that all premiums have been paid. Tenant agrees not to violate or
permit to be violated any of the conditions or provisions of the insurance
policies required to be furnished hereunder, and agrees to promptly notify
Landlord of any fire, loss or other casualty. If Tenant fails to procure and
maintain insurance as required hereunder Landlord
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may do so, and Tenant shall, on written demand, as Additional Rent, reimburse
Landlord for all monies expended by Landlord to procure and maintain such
insurance.
Tenant hereby waives each, every, any and all rights of action against
Landlord for any loss, costs, damage or expense incurred by Tenant resulting in
any way from fire, explosion, or any other casualty or occurrence, which loss,
costs, damages or expense is then covered in whole or in part by insurance
maintained, or required to be maintained, pursuant to this Lease or applicable
law, and Tenant waives any right of subrogation that might otherwise exist in or
accrue to any person, party or entity or on account thereof.
Upon Landlord's written request for same, Tenant will provide Landlord
with written evidence of Tenant's compliance with its obligations under this
Item 37.
38. RECORDING. This Lease shall not be recorded without Landlord's
prior written discretionary consent.
39. STATUTORILY MANDATED NOTIFICATION. As required by F.S. 404.056(8),
Landlord hereby notifies Tenant as follows: "RADON GAS: Radon is a naturally
occurring radioactive gas that, when it has accumulated in a building in
sufficient quantities, may present health risks to persons who are exposed to it
over time. Levels of radon that exceed federal and state guidelines have been
found in buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit."
40. NON-DISCLOSURE. Tenant agrees that it will not divulge or disclose
to third parties the terms, provisions and conditions of this Lease. Tenant's
breach of this Item 40 shall constitute a Default under Item 20 of this Lease,
no curative notice to Tenant from Landlord being required.
41. HAZARDOUS MATERIALS. Tenant shall not cause or permit any Hazardous
Material (as hereinafter defined) to be brought upon, kept or used in or about
the Premises or the Building by Tenant, its agents, principals, employees,
assigns, sublessees, contractors, consultants or invitees without the prior
written consent of Landlord, which consent may be withheld for any reason
whatsoever or for no reason at all. If Tenant breaches the obligations stated in
the immediately preceding sentence, or if the presence of Hazardous Material on
the Premises or around the Building caused or permitted by Tenant (or the
aforesaid others) results in contamination of the Premises or the Building or
the surrounding area(s), or if contamination of the Premises or the Building or
the surrounding area(s) by Hazardous Material otherwise occurs for which Tenant
is legally, actually or factually liable or responsible to Landlord (or any
party claiming by, through or under Landlord) for damages, losses, costs or
expenses resulting therefrom, then Tenant shall fully and completely indemnify,
defend and hold harmless Landlord (or any party claiming by, through or under
Landlord) from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses [including, without limitation: (i) diminution in the
value of the Premises and/or the Building and/or the land on which the Building
is located and/or any adjoining area(s) which Landlord owns or in which it holds
a property interest; (ii) damages for the loss or restriction on use of rentable
or usable space of any amenity of the Premises, the Building or the land on
which the Building is located; (iii) damages arising from any adverse impact on
marketing of space; and (iv) any sums paid in settlement of claims, attorneys'
fees, consultants' fees and expert fees] which arise during or after the Term of
this Lease, as may be extended, as a consequence of such contamination. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any
clean-up, remedial, removal or restoration work required by any federal, state
or local governmental agency or political subdivision because of Hazardous
Material present in the soil or ground water on or under the Premises or the
Building. Without limiting the foregoing, if the presence of any Hazardous
Material on, under or about the Premises, the Building or the surrounding
area(s) caused or permitted by Tenant (or the aforesaid others) results in any
contamination of the Premises, the Building or
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the surrounding area(s), Tenant shall immediately take all actions at its sole
expense as are necessary or appropriate to return the Premises, the Building and
the surrounding area(s) to the condition existing prior to the introduction of
any such Hazardous Material thereto; provided that Landlord's prior written
discretionary approval of such actions by Tenant shall be first obtained. The
foregoing obligations and responsibilities of Tenant shall survive the
expiration or earlier termination of this Lease.
As used herein, the term "Hazardous Material" means any hazardous or
toxic substance, material or waste, including, but not limited to, those
substances, materials, and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49 CFR 172.101) or by the
Environmental Protection Agency as hazardous substances (40 CFR Part 302) and
amendments thereto, or such substances, materials and wastes that are or become
regulated under any applicable local, state or federal law. "Hazardous Material"
includes any and all material or substances which are defined as "hazardous
waste", "extremely hazardous waste" or a "hazardous substance" pursuant to
state, federal or local governmental law. "Hazardous Substance" includes but is
not restricted to asbestos, polychlorobiphenyls ("PCB's") and petroleum.
Landlord and its agents shall have the right, but not the duty, to
inspect the Premises at any time and from time to time to determine whether
Tenant is complying with the terms of this Item 41. If Tenant is not in
compliance with this Item 41, Landlord shall have the right to immediately enter
upon the Premises to remedy any contamination caused by Tenant's failure so to
comply, notwithstanding any other provision of this Lease. Landlord shall use
its best efforts to minimize interference with Tenant's business, but shall not
be liable for any interference caused thereby.
Any non-compliance by Tenant with its duties, responsibilities and
obligations under this Item 41 shall be an "automatic" (no notice of any nature
from Landlord to Tenant being required) default of this Lease (see Item 20).
42. AMENDMENTS. This Lease contains the entire agreement between the
parties hereto and may not be altered, changed or amended, except by written
instrument signed by both parties hereto. No provision of this Lease shall be
deemed to have been waived by Landlord unless such waiver is in writing signed
by Landlord and addressed to Tenant, nor shall any custom or practice which may
grow up between the parties in the administration of the provisions hereof be
construed to waive or lessen the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms hereof. The terms,
provisions, covenants, and conditions contained in this Lease shall apply to,
inure to the benefit of, and be binding upon the parties hereto, and upon their
respective successors in interest and legal representative, except as otherwise
herein expressly provided.
The parties each acknowledge that they have thoroughly read and
understand this Lease (to include its Exhibits and attachments) in its entirety,
that they are completely familiar with each, every, any and all of the terms,
covenants, provisions and conditions set forth therein and that there are no
other representations, promises, covenants, assurances, conditions, statements,
understandings, warranties or agreements (collectively, "Representations")
concerning this Lease which do not appear in writing therein. This Lease
supersedes and revokes all previous negotiations, arrangements, letters of
intent, offers to lease, lease proposals, brochures, Representations, and
information or data conveyed, whether oral or in writing, between the parties
and/or their respective representatives or any other person(s) purporting to
represent either Landlord or Tenant. Each party acknowledges that it has not
been induced to enter into this Lease by any Representations not expressly set
forth herein. The parties further acknowledge that the terms and provisions
contained within this Lease have been fully, freely and fairly negotiated by and
between them.
43. TEMPORARY SPACE. WHILE THE PREMISES ARE BEING PREPARED FOR TENANT'S
OCCUPANCY THEREOF, TENANT SHALL BE PERMITTED TEMPORARILY TO USE AND OCCUPY SUITE
#2975 ("THE TEMPORARY SPACE") IN THE BUILDING. TENANT HEREBY ACCEPTS THE
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TEMPORARY SPACE IN ITS "AS-IS" CONDITION AS OF THE DATE OF THIS LEASE AND
LANDLORD SHALL HAVE NO DUTIES OR OBLIGATIONS OF ANY NATURE WHATSOEVER TO IMPROVE
OR MODIFY THE TEMPORARY SPACE PRIOR TO TENANT'S USE AND OCCUPANCY THEREOF. THE
TEMPORARY SPACE CONSISTS OF APPROXIMATELY 1,747 SQUARE FEET OF NET RENTABLE AREA
(WHICH THE PARTIES EXPRESSLY AND IRREVOCABLY AGREE ARE CONTAINED IN THE
TEMPORARY SPACE), AS OUTLINED IN BLUE ON THE ATTACHED EXHIBIT "A-1" EXPRESSLY
MADE A PART HEREOF. THE TEMPORARY SPACE IS LOCATED ON THE 29TH FLOOR OF THE
BUILDING. SUBJECT TO THE OTHER CONTENTS OF THIS ITEM 43, SUCH TEMPORARY USE AND
OCCUPANCY BY TENANT OF THE TEMPORARY SPACE SHALL BE RENT-FREE, EXCEPT TENANT
SHALL BE OBLIGATED TO PAY THE PARKING CHARGES AND TAXES THE SUBJECT OF ITEM 11
OF THIS LEASE. TENANT MAY NOT AND SHALL NOT TAKE OCCUPANCY OF THE TEMPORARY
SPACE UNTIL: (A) THIS LEASE HAS BEEN FULLY EXECUTED BY BOTH LANDLORD AND TENANT
AND (B) THE SECURITY DEPOSIT THE SUBJECT OF ITEM L(H) AND ITEM 24 OF THIS LEASE
IS IN PLACE AND APPROVED BY LANDLORD. ONCE THE PREMISES ARE READY FOR TENANT'S
OCCUPANCY THEREOF (SEE GENERALLY EXHIBIT "B" TO THIS LEASE) AND LANDLORD
NOTIFIES TENANT OF SUCH READINESS, TENANT SHALL IMMEDIATELY (I.E., WITHIN TEN
(10) BUSINESS DAYS AFTER THE GIVING OF SUCH NOTIFICATION) AND UNEQUIVOCALLY
VACATE THE TEMPORARY SPACE AND MOVE INTO THE PREMISES.
IF (FOR ANY OR NO REASON WHATSOEVER) TENANT FAILS TO COMPLY WITH THE
FINAL SENTENCE OF THE IMMEDIATELY PRECEDING PARAGRAPH OF THIS ITEM 43 AND/OR
FAILS TO MEET AND/OR ADHERE TO THE DATES DESCRIBED IN ITEM 44 AND/OR EXHIBIT "B"
TO THIS LEASE, THEN TENANT'S USE AND OCCUPANCY OF THE TEMPORARY SPACE SHALL NOT
BE RENT-FREE, BUT RATHER TENANT SHALL, BEGINNING THE DATE TENANT EXECUTES THIS
LEASE AND ENDING THE DATE TENANT TAKES OCCUPANCY OF THE PREMISES, BE AND BECOME
OBLIGATED TO PAY LANDLORD RENT AND ADDITIONAL RENT FOR SUCH USE AND OCCUPANCY OF
THE TEMPORARY SPACE. THE RATE OF SUCH RENT SHALL BE TWO THOUSAND FIVE HUNDRED
FORTY SEVEN AND 71/100 DOLLARS ($2,547.71 PER MONTH AND SHALL BE GENERALLY
GOVERNED BY ITEM 3 OF THIS LEASE. FOR THE PURPOSES OF DETERMINING ADDITIONAL
RENT, TENANT'S "PROPORTIONATE SHARE" SHALL BE .32 PERCENT. TENANT SHALL BE
RESPONSIBLE FOR PAYING ALL TAX(ES) ON THE PAYMENT OF SUCH RENT AND ADDITIONAL
RENT. THIS ITEM 43 SHALL BE LIBERALLY AND BROADLY CONSTRUED IN FAVOR OF
LANDLORD.
44. TENANT'S ESSENTIAL OBLIGATIONS TO EXPEDITE COMMENCEMENT DATE. IN
ORDER THAT LANDLORD MAY FULFILL ITS DUTIES AND OBLIGATIONS UNDER THIS lEASE AND
IN ORDER THAT THE COMMENCEMENT DATE AND TENANT'S OCCUPANCY OF THE PREMISES MAY
BE EXPEDITED, TENANT SHALL STRICTLY (UNDER ANY AND ALL CIRCUMSTANCES OF ANY
NATURE WHATSOEVER) FULLY, DULY AND TIMELY MEET AND/OR ADHERE TO THE FOLLOWING
DATES AND/OR SCHEDULES:
TENANT'S EXECUTION OF LEASE AND DELIVERY TO LANDLORD OF
THE SECURITY DEPOSIT IN STRICT ACCORDANCE WITH ITEM 24 OF
THIS LEASE; JANUARY 29, 1997
TENANT'S APPROVAL OF DRAWINGS PER EXHIBIT B; JANUARY 29, 1997
TENANT'S SELECTION OF ALL FINISH SELECTIONS INCLUDING CARPET,
BASE, PAINT COLORS, LAMINATE, AND/OR WALLCOVERING; JANUARY 31, 1997
IF (FOR ANY OR NO REASON WHATSOEVER) TENANT SO FAILS WITHIN THREE (3)
BUSINESS DAYS TO MEET AND/OR ADHERE TO THE FOREGOING DATES AND/OR SCHEDULES [OR
ANY PORTION(S) THEREOF], THEN THE COMMENCEMENT DATE OF THIS LEASE ABSOLUTELY
SHALL BE JANUARY 29, 1997, AND TENANT'S MONETARY DUTIES, OBLIGATIONS AND
RESPONSIBILITIES UNDER ITEMS 1(G) AND 3 OF THIS LEASE AS A RESULT THEREOF SHALL
BE IN ADDITION TO THOSE DESCRIBED IN THE
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SECOND PARAGRAPH OF ITEM 43 OF THIS lEASE, THIS PARTICULAR PARAGRAPH OF THIS
ITEM 44 TO BE LIBERALLY AND BROADLY CONSTRUED IN FAVOR OF LANDLORD.
IN WITNESS WHEREOF, the parties, either for themselves or by and
through their undersigned, duly-authorized representatives, have executed this
Lease for the purposes therein expressed.
Signed, sealed and delivered
in the presence of: TENANT: CIMETRIX INCORPORATED
/s/ Denise M. Fisher (Sign)
- ----------------------------
Denise M. Fisher (Print) By: /s/ David L. Redmond (Seal)
- ---------------------------- --------------------------
Witness
Name: David L. Redmond
------------------------
/S/ Virginia Anne Beall (Sign) Title: BOARD MEMBER
- ---------------------------- -----------------------
Virginia Anne Beall (Print) Date: 1/28/97
- ---------------------------- ------------------------
Witness
LANDLORD: PLAZA IV ASSOCIATES, LTD.,
A Florida Limited Partnership
By:Tampa Plaza IV Company, Ltd., a Florida
Limited Partnership, Manager
/s/ Deborah P. Gaines (Sign)
- ----------------------------
Deborah P. Gaines (Print) By: /s/ Richard A. Beard, III (Seal)
- ---------------------------- --------------------------
Witness
Name: Richard A. Beard, III
/s/ Mina D. Penty (Sign) Title: General Partner
- ----------------------------
Mina D. Penty (Print) Date: January 31, 1997
- ---------------------------- ------------------------
Witness
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EXHIBIT "A"
[MAP]
<PAGE> 28
EXHIBIT "A-1"
[MAP]
<PAGE> 29
EXHIBIT "B"
January 29, 1997
WORK LETTER
1. Landlord has installed or will install on each occupied floor of the
Building the following Building Standard Improvements:
a. Heating, ventilation and air-conditioning (HVAC) system(s).
b. Fire sprinkler system(s) with up-right mounted brass
sprinkler heads, installed on a 10'by 12' grid.
c. Toilet rooms, such toilet rooms to include HVAC, lighting,
typical plumbing fixtures, toilet accessories and wall,
counter, floor and ceiling finishes.
d. Electrical and telephone rooms, such rooms to be available
for source connections to the Premises. (Tenant's telephone
equipment will be restricted to, and must be installed
within, the Premises.)
2. In addition to the above-described Building Standard Improvements,
Landlord shall provide a Building Standard Credit ("Credit") in an
amount up to Twenty Dollars ($20.00) per rentable square foot of area
contained within Suite 3550. Landlord shall apply the Credit to the
total cost of improvements to Suite 3550 that are to be made in
accordance with the Drawings (as defined in Paragraph 5, below) to be
prepared by Landlord from information supplied by Tenant and approved
by Tenant no later than January 29, 1997. The Credit is to be used
solely for improvements and fixtures to Suite 3550 and for no other
purpose unless otherwise agreed in writing by the parties hereto.
LANDLORD SHALL PROMPTLY PROVIDE TENANT WITH AN ESTIMATE ("THE
ESTIMATE") OF THE costs TO BE INCURRED FOR THE AFORESAID IMPROVEMENT
AND FIXTURING OF SUITE 3550, THE ENTIRETY OF WHICH ESTIMATE TENANT
SHALL, WITHIN TWO (2) BUSINESS DAYS OF ITS RECEIPT THEREOF, IN WRITING
APPROVE OR DISAPPROVE. If TENANT ELECTS TO DISAPPROVE THE ENTIRETY OF
SUCH ESTIMATE, IT SHALL AND MUST, WITHIN SAID TWO (2) BUSINESS DAY
PERIOD, ADVISE lANDLORD IN WRITING: (A) AS TO WHICH ITEMS IT WISHES TO
DELETE FROM THE CONTENTS OF THE ESTIMATE AND (B) THAT LANDLORD IS
AUTHORIZED TO PROCEED TO DO THE IMPROVEMENT AND FIXTURING THE SUBJECT
OF THE ESTIMATE, AS SO MODIFIED BY TENANT. IF TENANT FAILS SO TO
RESPOND WITHIN THE AFORESAID TWO (2) BUSINESS DAY PERIOD, THEN IT SHALL
BE ABSOLUTELY AND CONCLUSIVELY DEEMED THAT TENANT HAS UNEQUIVOCALLY
AUTHORIZED LANDLORD TO PROCEED TO DO THE IMPROVEMENT AND FIXTURING THE
SUBJECT OF THE ESTIMATE AND THAT TENANT WILL PAY LANDLORD THE MONIES
(IF ANY) THAT EXCEED THE CREDIT AND ARE INCLUDED AS A PART OF THE
ESTIMATE.
All costs of improvements to Suite 3550 in excess of the Credit shall
be the responsibility of Tenant to pay. Tenant shall be obligated to
pay to Landlord (or Landlord's contractor) the excess ("the Excess
Monies") of such cost herein referred to as "the Excess Work." The
Excess Work may and shall only be performed by Landlord or Landlord's
contractor. Fifty percent (50%) of the Excess Monies shall be paid by
Tenant to Landlord (or Landlord's contractor) prior to the beginning of
any build-out, construction or improvement of the Premises. The balance
of the Excess Monies shall be paid by Tenant to Landlord (or Landlord's
contractor) as work is completed and upon billing(s) therefor submitted
by Landlord (or Landlord's contractor) to Tenant at any time and from
time to time. Landlord shall not be (nor shall Landlord's contractor
be) liable for any damages, nor shall the Commencement Date be delayed,
nor any Rent and/or Additional Rent abated, recouped, deducted or
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set-off as a result of the performance or non-performance of any Excess
Work or any delay in such performance, Tenant's recognizing and
agreeing hereby that such performance is an extraordinary accommodation
of and to Tenant by Landlord. If Tenant does not duly, fully and timely
comply with all its duties, obligations and responsibilities under this
Exhibit "B" and under this Lease generally, then neither Landlord nor
Landlord's contractor shall be obligated to perform the Excess Work or
any balance thereof (but may so perform if it/they so wish).
If Tenant wishes any build-out, construction or improvement work to be
done to the Premises prior to the Commencement Date that was not
included in the Working Drawings, the extra work ("the Extra Work"),:
(i) shall be a written request to Landlord that Landlord (or Landlord's
contractor) perform such Extra Work and (ii) simultaneously with such
written request, Tenant shall submit to Landlord all necessary
drawings, plans, specifications, etc., pertaining to such Extra Work
(the expense of such drawings, plans, specifications, etc., in all
instances and under all circumstances to be solely borne by Tenant). If
Landlord agrees (to be in writing signed by Landlord) to perform (or
have Landlord's contractor perform) such Extra Work, such Extra Work
will be done, in all instances and under all circumstances, at Tenant's
sole cost and expense. But prior to commencing any such Extra Work that
Landlord has so agreed to perform (or have Landlord's contractor
perform), Landlord shall first submit to Tenant a written estimate of
the cost and expense of such Extra Work. If Tenant fails (for any
reason or for no reason) to approve in writing signed by Tenant said
written estimate within seven (7) days after Tenant's receipt of such
written estimate, then such written estimate shall be deemed
disapproved in all respects by Tenant and Landlord shall not be
authorized or obligated to proceed thereon and Tenant's request that
such Extra Work be performed shall become an absolute nullity, Tenant
nevertheless to be obligated to reimburse Landlord for the reasonable
expenses associated with Landlord's preparation and submission of such
written estimate. If Tenant duly and timely approves (to be in writing
signed by Tenant) such written estimate, then Landlord (or its
contractor) shall be authorized to proceed with the performance of such
Extra Work. Simultaneously with its aforesaid approval of such written
estimate, Tenant shall pay Landlord fifty percent (50%) of the monies
the subject of such written estimate. The balance of the cost of the
Extra Work shall be paid by Tenant to Landlord as work is completed and
upon billing(s) therefor submitted by Landlord to Tenant at any time
and from time to time. Landlord shall not be liable for any damages,
nor shall the Commencement Date be delayed, nor any Rent and/or
Additional Rent abated, recouped, deducted or set-off as a result of
the performance or non-performance of any Extra Work or any delay in
such performance, Tenant's recognizing and agreeing hereby that such
performance is an extraordinary accommodation of and to Tenant by
Landlord. If Tenant does not duly, fully and timely comply with all its
duties, obligations and responsibilities under this Exhibit "B" and
under this Lease generally, then neither Landlord nor Landlord's
contractor shall be obligated to perform the Extra Work or any balance
thereof (but may so perform if it/they so wish).
3. The work shall be done using the items and materials described as
"Building Standard Tenant Finishes" (see Exhibit "B-1" for a listing
thereof) and/or Landlord-approved additions and/or Landlord-approved
substitutions for such items and materials.
4. In order that Landlord may maintain, control and monitor the quality of
the Building and the design intent of its systems and any warranties,
guarantees, etc., Tenant agrees that any and all Work, Extra Work
and/or Excess Work will be performed solely (no exceptions) by
Landlord's contractor(s). Furthermore, Tenant agrees that any and all
mechanical, structural, electrical, HVAC, plumbing, life safety, fire
sprinklering, etc., engineering required or appropriate to perform the
Work, Extra Work and/or Excess Work (or any other type of work in the
Premises) will be done solely (no exceptions) by Landlord's
engineer(s). Landlord's contractor(s) and/or engineer(s) shall not be
required to perform any Work, Extra Work and/or Excess
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Work that would violate the construction and/or engineering standards
from time to time established by Landlord (or its designates) for the
Building or that would violate any applicable codes, regulations, laws,
ordinances, policies of insurance, rules, etc.
5. Landlord shall provide to Tenant at no additional cost to Tenant the
services of an architect selected by Landlord to provide architectural
working drawings ("the Working Drawings"), the same to include
partition and door location drawings, telephone and electrical location
drawings, reflected ceiling drawings and finish specifications, all as
associated with the Work. Notwithstanding the contents of the
immediately preceding sentence, the expense of all drawings not Working
Drawings ("the Other Drawings") and the research cost to produce
drawings ("the Extra Drawings") of nonstandard items to be installed in
the Premises, including, but not limited to, elevations, cabinet or
millwork details and nonstandard installations, furnishings, fixtures
or finishes of any nature whatsoever, shall be paid by Tenant, as shall
be the reproduction expense of extra copies of the Working Drawings and
the expense of the Other Drawings and the Extra Drawings. All drawings
(of any nature or description whatsoever; "the Drawings") are subject
to Landlord's prior, written and discretionary approval. Landlord, at
its discretion, may limit the number of revisions, redraws or changes
to the Drawings, preclude further revisions, redraws or changes to the
Drawings or require that Tenant pay [in such manner and under such
circumstances as Landlord (or Landlord's contractors) may or shall,
from time to time and at its (their) discretion, direct Tenant in
writing] for any such revisions, redraws or changes to the Drawings.
6. Landlord, at Landlord's sole discretion, may permit Tenant and/or
Tenant's agents, contractors or consultants ("Tenant's Others") to
enter the Premises prior to the Commencement Date in order that there
may be done other work to prepare the Premises for Tenant's use and
occupancy thereof. If Landlord permits such entry, then such permission
is: (i) revocable by Landlord at any time (for any reason or for no
reason) at Landlord's sole discretion and (ii) conditioned upon
Tenant's and Tenant's Others' working in harmony with, and not
interfering with, Landlord and Landlord's designates in doing
Landlord's work in and to the Premises or elsewhere in and to the
Building. Tenant understands and agrees that: (i) any such entry into,
and occupation of, the Premises is and shall be deemed to be under all
of the terms, conditions, provisions and contents of this Lease (except
as to the obligation to pay Rent); (ii) Landlord shall not be liable in
any way whatsoever for any injury, loss or damage of any nature
whatsoever which may (or does) occur to any of Tenant's (or Tenant's
Others') work, property or installations made in or to the Premises or
to any property placed in the Premises by Tenant, Tenant's Others or
others prior to the Commencement Date, all of the same being at
Tenant's sole and exclusive risk, which risk Tenant hereby voluntarily
assumes; (iii) Item 15 of this Lease shall be (and hereby is)
specifically and fully applicable as regards any such entry; (iv)
Landlord, prior to permitting any such entry, shall be entitled to
require Tenant and/or Tenant's Others to be bonded and insured in such
amounts and with such companies as Landlord may in its sole discretion
prescribe; and (v) Tenant shall pay Landlord in advance for any and all
extraordinary expenses incurred by Landlord associated with such entry
(e.g., extra or overtime personnel or extra utility services).
7. Tenant understands and agrees that Tenant shall, anything anywhere
notwithstanding, commence its payment of Rent and/or Additional Rent to
Landlord on the anticipated Commencement Date described in Item l(e) of
this Lease in the event Tenant:
(a) becomes in default (see Item 20) of this Lease, or
(b) fails to meet duly, fully and timely any of its duties,
obligations or responsibilities under this Exhibit "B" and/or
under this Lease generally, or
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(c) orders or requests materials, finishes, fixtures or
installations other than those described in Exhibit "B-1," or
(d) makes changes in the Drawings and/or any specifications
thereof and/or any work or improvements called for thereby
(notwithstanding that Landlord may have approved of any or all
of such changes), or
(e) fails to perform duly, fully and timely any work to be
performed by Tenant, or
(f) fails to ensure performance duly, fully and timely of any work
to be performed by third parties on behalf of Tenant as
regards this Lease, or
(g) directly or indirectly in any way whatsoever interferes with
or delays the performance of the Work, Extra Work and/or
Excess Work, or
(h) directly or indirectly in any way whatsoever causes any delay
in Landlord's preparation and completion of the Premises, or
(i) directly or indirectly in any way whatsoever allows or permits
third parties for which Tenant rightfully should be
responsible to interfere with or delay the performance of the
Work, Extra Work and/or Excess Work, or
(j) directly or indirectly in any way whatsoever allows or permits
third parties for which Tenant rightfully should be
responsible to cause any delay in Landlord's preparation and
completion of the Premises.
THOROUGHLY READ, UNDERSTOOD AND AGREED:
LANDLORD:
PLAZA IV ASSOCIATES, LTD. TENANT:
A Florida Limited Partnership CIMETRIX INCORPORATED
By: Tampa Plaza IV Company, Ltd., a
Florida Limited Partnership Manager
By: /s/ Richard A. Beard, III By: /s/ David L. Redmond
-------------------------------- --------------------------------
Name: Richard A. Beard, III Name: David L. Redmond
Title: General Partner Title: Board Member
4
<PAGE> 33
BUILDING RULES AND REGULATIONS
The following Building Rules and Regulations have been adopted by
Landlord for the care, protection and benefit of the Premises and the Building
and for the general comfort and welfare of all tenants.
1. The sidewalks, entrances, passages, halls, elevators and stairways
shall not be obstructed by Tenant or used by Tenant for any purpose other than
for ingress and egress to and from the Building and Tenant's Premises.
2. Restroom facilities, water fountains, and other water apparatus
shall not be used for any purposes other than those for which they were
constructed.
3. Landlord reserves the right to designate the time when freight,
furniture, goods, merchandise and other articles may be brought into, moved or
taken from Tenant's Premises or the Building.
4. Tenant shall not put additional locks or latches upon any door
without the written discretionary consent of Landlord. Any and all locks so
added on any door shall remain for the benefit of Landlord, and the keys to such
locks shall be delivered to Landlord by and from Tenant.
5. Landlord shall not be liable for injuries, damage, theft, or other
loss to persons or property that may occur upon or near any parking areas that
may be provided by Landlord. Tenant, its agents, employees, and invitees are to
use same at their own risk, Landlord to provide no security with respect
thereto. The driveways, entrances, and exits upon, into and from such parking
areas shall not be obstructed by Tenant, Tenant's employees, agents, guests, or
invitees; provided, however, Landlord shall not be responsible or liable for
failure of any person to observe this rule. Tenant, its employees, agents,
guests and/or invitees shall not park in space(s) that may be reserved or
designated for others.
6. Tenant shall not install in the Premises any heavy weight equipment
or fixtures or permit any concentration of excessive weight in any portion
thereof without first having obtained Landlord's discretionary written consent.
7. Landlord reserves the right at all times to exclude newsboys,
loiterers, vendors, solicitors, and peddlers from the Building and to require
registration or satisfactory identification or credentials from all persons
seeking access to any part of the Building outside ordinary business hours.
Landlord will exercise its best judgment in the execution of such control but
will not be liable for the granting or refusal of such access.
8. Landlord reserves the right at all times to exclude the general
public from the Building upon such days and at such hours as in Landlord's sole
judgment will be in the best interest of the Building and its tenants.
9. No wires of any kind or type (including but not limited to T.V. and
radio antennas) shall be attached to the outside of the Building and no wires
shall be run or installed in any part of the Building without Landlord's prior
discretionary written consent.
10. If the Premises are furnished with carpeting, Tenant shall provide
a plexiglass or comparable carpet protection mat for each desk chair customarily
used by Tenant. For default or carelessness in these respects, Tenant shall pay
Landlord the cost of repairing or replacing said carpet, in whole or in part, as
Additional Rent when, in Landlord's sole judgment, such repair or replacement is
necessary.
11. Landlord shall furnish a reasonable number of door keys to Tenant's
Premises and/or the Building which shall be surrendered on termination or
expiration of the Lease. Landlord reserves the right to require a deposit for
such keys to insure their return at the termination or expiration of the Lease.
Tenant shall get keys only from Landlord and shall not
1
<PAGE> 34
obtain duplicate keys from any outside source. Further, Tenant shall not alter
the locks or effect any substitution of such locks as are presently being used
in Tenant's Premises or the Building.
12. Tenant shall keep all doors to Premises closed at all times except
for ingress and egress to the Premises.
13. All installations in the Common Telephone/Electrical Equipment
Rooms shall be limited to terminal boards and connections. All other electrical
equipment must be installed within Tenant's Premises.
14. It is expressly understood and agreed that any items of any nature
whatsoever placed in Common Areas (i.e., hallways, restrooms, elevators, parking
garage, storage areas and equipment rooms) are placed at Tenant's sole risk and
Landlord assumes no responsibility whatsoever for any loss or damage as regards
same.
15. Tenant will allow no maintenance or repairs to be done in, on, to
or about the Premises other than by a contractor (such term to include all
degrees of subcontractors) approved by Landlord in writing prior to any such
maintenance or repairs being undertaken. Landlord shall be entitled to require
such contractor to be bonded and insured in such amounts and with such companies
as Landlord may in its discretion prescribe.
* * * * * * * * * * * *
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EXHIBIT "B-1"
BUILDING STANDARD TENANT FINISHES
A. Diffusers by Kruger (or equal) laid-in, perforated ventilation model
no. 4504F236, to be installed into ceiling grid. Thermostat controls
for each zone located throughout the Premises.
B. Acoustical ceiling tile as provided by Armstrong, premium quality soft
textured Cirrus Travertone #BF584 reveal edge style in 24" square size.
Suspended ceiling grid system by Armstrong, Prelude T-Bar 15/16" wide
2' x 2' grid. #7300 main runners; #7342 4' cross tees; #7324 2' cross
tees; #7800 wall molding. Color matched with tile.
C. Light fixtures by Metalux, 2' x 4' parabolic, fluorescent, with three
40-watt warm white bulbs with electronic solid state ballasts and
return air slots.
D. One inch window blinds by Bali, "Classic", custom color to match
mullions at all exterior windows.
E. Finish Hardware
Manufacturer: Schlage
Series Selection: "L" Series
Trim Assembly Style Selection: #17 Design
Finish Selections:
1. Locksets, Latchsets, Pulls & Plates, Hinges, Flush Bolts:
US10(612) - Satin Bronze, Clear Coated.
2. Closers (covers & arms)
Paint finish color as selected by Landlord's architect.
F. Interior partitions (measured through door openings) consisting of 25
gage, 2-1/2" metal studs, 24" on center from floor to ceiling grid with
1/2" gypsum wallboard on each side.
G. Common partitions between the Premises and common areas or other
adjoining tenant space consisting of 25 gage, 2-1/2" metal studs, 16"
on center from floor to underside of slab above, with 1/2" gypsum
wallboard and 2-1/2" mineral fiber insulation between studs.
H. Solid core entrance doors of 3'0" x 8'7" x 1-3/4", dimension, premium
grade, plain sliced Honduran Mahogany finish RA-969-O by Algoma
Hardwoods placed in metal frames of 16 gage cold rolled steel, with
frames to be primed and painted with 2 coats of oil base paint.
I. Solid core interior doors of 3'0" x 8'0" x 1-3/4", premium grade
Honduran Mahogany finish RA-969-0 by Algoma Hardwoods with frames and
hardware as above.
J. Electrical duplex outlet in ivory color, "Decora" style.
K. Wall switches in "Decora" rocker type, ivory color.
L. Telephone outlets, plug-in type, ivory color installed in wall with
conduit stubbed in wall 6" above ceiling grid. Tenant is responsible
for installation of all phone equipment.
M. Fire exit signs by Lithonia, 277V, red letters, brushed aluminum panel
color; installed as determined by City Fire Codes.
1
<PAGE> 36
N. Fire enunciator speakers by Pyrotonics (or equal) installed as
determined by Codes.
O. Carpet 30 oz. from Landlord's selection.
P. Two coats of prime quality latex paint on all walls.
2
<PAGE> 37
EXHIBIT "C"
[Cimetrix, Inc. Letterhead]
COMMISSION AGREEMENT
THIS COMMISSION AGREEMENT ("Agreement") is made this 29th day of
OCTOBER, 1996, by and between C.B. COMMERCIAL REAL ESTATE GROUP, INC.
("Broker"), with its address at 201 E. KENNEDY BOULEVARD, SUITE 1121, TAMPA,
FLORIDA 33602 and INSIGNIA COMMERCIAL GROUP, INC. ("INSIGNIA"), with its address
at SUITE 4100, 100 NORTH TAMPA STREET, TAMPA, FLORIDA 33602. The term
"PRINCIPAL" means PLAZA IV ASSOCIATES, LTD., A FLORIDA LIMITED PARTNERSHIP, or
its successors and assigns as Landlord of the Building. Principal is Landlord of
the Building. Broker and Insignia agree and acknowledge as follows:
l. Broker has procured CIMETRIX, INC. ("TENANT"), as a
prospective tenant of the following property: 100 NORTH TAMPA STREET,
TAMPA, FLORIDA 33602 ("THE BUILDING"). Broker represents that Broker
has knowledge of (a) Tenant's intended use of the premises Tenant
proposes to lease in the Building, (b) the nature of Tenant's business,
space and parking requirements, price sensitivities, and required lease
term, and (c) Tenant's general financial condition. Broker, upon
Insignia's request, will cause Tenant to submit to Insignia any
financial statements and data and any references Insignia requests.
Insignia may for any (or no) reason and at its sole and unrestricted
discretion reject Tenant, any statement or implication elsewhere in
this Agreement to the contrary notwithstanding.
2. In absolutely no event whatsoever may or shall this Agreement
be construed as a listing agreement. Both Broker and Insignia have
completely read and completely understand this Agreement and its
contents and effects.
3. The term of this Agreement is and shall be for a SIX (6) MONTH
period commencing OCTOBER 29, 1996. and ending at midnight on APRIL 30,
1997. This Agreement will be extended if negotiations are ongoing.
4. Broker hereby discloses to Insignia, and Insignia hereby
specifically acknowledges, that Broker represents and is acting as the
agent of Tenant exclusively.
5. Broker and Insignia hereby confirm the following commission
agreement between them:
(a) Any commission(s) earned and payable shall be,
subject to the remaining contents of this paragraph #5, generally
earned and payable fifty percent (50%) within thirty (30) days
following the full execution of a lease by and between Tenant and
Insignia (or Principal, as hereinafter defined) and fifty percent (50%)
within thirty (30) days following the occupancy, fully-staffed and
fully-operational, of the leased premises by Tenant, such commission(s)
to be paid in accordance with the following:
(i) Four percent (4%) of the total base rental
(but not pass-throughs, parking fees, amortized
tenant improvement allowances, etc.) for the initial
lease term of SIXTY (60) MONTHS.
1
<PAGE> 38
(ii) If a lease for which a commission is earned
and payable under (a) above contains (1) an option(s)
to extend, and the lease term is extended by reason
of such option(s) and/or (2) an option(s) to expand,
and Tenant occupies space in addition to the original
leased premises by reason of such option(s) then
Broker shall be entitled to a commission of two
percent (2%) of the total base rental (but not
escalators, pass-throughs, parking fees, amortized
tenant improvement allowances, etc.) payable by
Tenant during the extended term (but not in excess of
60 months) and/or payable by Tenant as regards the
additional leased space. The commission(s) the
subject of this subparagraph (ii) are expressly and
strictly contingent and conditioned upon Broker's
being actively involved in the subject extension
and/or expansion negotiations upon the written by
either Tenant or Insignia (or Principal). The
commission(s) the subject of this subparagraph (ii)
shall be earned and payable at the time the extended
term commences or the additional leased space is
occupied (fully-staffed and fully-operational), as
applicable.
(b) The commission(s) the subject of this Agreement shall
be payable to Broker:
( ) by Insignia solely and not at all by Principal.
---
( x ) by Principal solely and not at all by Insignia.
---
(c) In the event a lease contains a cancellation option
exercisable by Tenant, a commission will not be paid on the
entire lease term. Commissions applicable to that portion of
the lease following any cancellation option shall be treated
as additional commission and be paid at the time Tenant agrees
to fulfill the balance of the lease term.
(d) Payment for commission(s) will be made only upon
receipt of a written invoice and a W-9 Form from Broker, any
statement or implication elsewhere notwithstanding.
(e) Broker will be solely responsible for Broker's
overhead expenses.
(f) No monies shall be payable to Broker by Insignia (or
Principal) other than as expressly and strictly provided in
this Agreement.
6. Insignia and Broker shall cooperate with each other in
attempting to effect the proposed lease. To the extent reasonable,
practical and feasible, and except for Broker's non-availability or
directions otherwise, all negotiations are to be through Broker.
7. Each signatory to this Agreement represents and warrants that
he/she has full authority to sign this Agreement on behalf of the party
for when he/she signs and that this Agreement binds such party.
8. In the event of litigation by and between Broker and Insignia
(or Principal) to enforce the terms and provisions of this Agreement,
the prevailing party shall be entitled to recover from the
non-prevailing party the prevailing party's reasonable attorney's fees
and court costs, all through final appeal. This Agreement has been
negotiated by the parties and each has been instrumental in its
preparation; therefore, its contents shall not be construed in favor
of, or against, either under the rule of construction against the
draftsperson.
2
<PAGE> 39
9. Broker shall not at all or in any way whatsoever divulge or
disclose to third parties any of the terms, provisions, contents or
conditions of this Agreement or of any proposed lease submitted by or
to Insignia.
10. This Agreement constitutes and contains the entire agreement
between Broker and Insignia and supersedes all prior discussions,
negotiations, understandings and agreements of any nature whatsoever,
whether oral, written or both. No amendment, modification, alteration,
cancellation or withdrawal of this Agreement shall be valid or binding
unless made in writing and signed by both Broker and Insignia.
IN WITNESS WHEREOF, Broker and Insignia have executed this Agreement
for the purposes described therein.
WITNESSES: C.B. COMMERCIAL REAL ESTATE GROUP, INC.
("BROKER")
/s/ Debbie Roberts By: /s/
- ------------------------------ -----------------------------
Name:
/s/ Ursula S. Zilla
- ------------------------------
Title: Sr. V.P.
Date: 1/20/97
WITNESSES: INSIGNIA COMMERCIAL GROUP, INC.
/s/ Phillip J. By: /s/ Harry C. Flowers
- ------------------------------ ------------------------------
Name: Harry C. Flowers
/s/ Julie R. Young
- ------------------------------
Title: Managing Director
Date: January 29, 1997
3
<PAGE> 40
AGENCY DISCLOSURE
Florida real estate licensees are required by law to disclose which party
they represent in a transaction and to allow a party the right to choose or
refuse among the various agency relationships.
The purpose of the AGENCY DISCLOSURE is to acknowledge that the disclosure
occurred and that the consumer has been informed of the various agency
relationships which are available in a real estate transaction. The following
descriptions of terms, agency relationships and the respective duties and
obligations are based upon Florida Law (Chapter 475, Florida Statutes).
Landlord's Agent
A licensee who is engaged by and acts as the agent of the Landlord only is
known as a Landlord's agent. A Landlord's agent has the following duties and
obligations:
To the Landlord:
(a) The fiduciary duties of loyalty, confidentiality, obedience,
full disclosure, accounting and the duty to use skill, care
and diligence.
To the Landlord and Tenant:
(a) A duty of honesty and fair dealing.
(b) A duty to disclose all facts known to the Landlord's agent
materially affecting the value of the property which are not
known to, or readily observable by, the parties in a
residential transaction.
Tenant's Agent
A licensee who is engaged by and acts as the agent of the Tenant only is
known as the Tenant's agent. A Tenant's agent has the following duties and
obligations:
To the Tenant:
(a) The fiduciary duties of loyalty, confidentiality, obedience,
full disclosure, accounting and the duty to use skill, care
and diligence.
To the Landlord and Tenant:
(a) A duly of honesty and fair dealing.
Disclosed Dual Agent
A disclosed dual agent is a licensee who, with the informed written consent
of Landlord and Tenant, is engaged as an agent for both Landlord and Tenant.
As a disclosed dual agent, the licensee shall not represent the interests
of one party to the exclusion or detriment of the interests of the other party.
A disclosed dual agent has all the fiduciary dukes to the Landlord and Tenant
that a Landlord's or Tenant's agent has except the duties of full disclosure and
undivided loyalty.
A disclosed dual agent may, not disclose:
(a) To the Tenant that the Landlord will accept less than the
asking or listed price, unless otherwise instructed in writing
by the Landlord;
(b) To the Landlord that the Tenant will pay a price greater than
the price submitted in a written offer to the Landlord, unless
otherwise instructed in writing by the Tenant;
(c) The motivation of any party for selling, buying, or leasing a
property, unless otherwise instructed in writing by the
respective party; or
(d) That a Landlord or Tenant will agree to financing terms other
than those offered, unless otherwise instructed in writing by
the respective party.
4
<PAGE> 41
AGENCY DISCLOSURE
CIMETRIX INCORPORATED is a X Tenant ___ Landlord and is hereby informed
that INSIGNIA COMMERCIAL GROUP, INC. and PHILIP T. DINKINS are acting as
X Landlord's Agent Tenant's Agent
--- ---
You have the explicit right to choose or refuse among these relationships. Other
brokerage firms may offer you other brokerage relationships. You are free to
seek any brokerage firm offering the type of relationship you desire.
TENANT: CIMETRIX INCORPORATED
By: /s/ David L. Redmond
-----------------------------------------
Name: /s/ DAVID L. REDMOND
---------------------------------------
Title: Board Member
--------------------------------------
Date: 1/28/97
---------------------------------------
LANDLORD: PLAZA IV ASSOCIATES, LTD.,
---------
A Florida Limited Partnership
By: Tampa Plaza IV Company, Ltd., a Florida
Limited Partnership, Manager
By: /s/ Richard A. Beard, III
-----------------------------------------
Name: Richard A. Beard, III
Title: General Partner
Date: January 31, 1997
---------------------------------------
CONSENT TO DUAL AGENCY
Sign only if you are giving your informed written consent to the brokerage firm
and its licensees acting as a dual agent representing both Landlord and Tenant.
Your signature also acknowledges that you have received a copy of this
disclosure.
TENANT:
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
Date:
---------------------------------------
LANDLORD: PLAZA IV ASSOCIATES, LTD.,
A Florida Limited Partnership
By: Tampa Plaza IV Company, Ltd., a Florida
Limited Partnership, Manager
By:
-----------------------------------------
Name: Richard A. Beard, III
Title: General Partner
Date:
---------------------------------------
THE AGENCY DISCLOSURE form has been adopted by the Florida Real Estate
Commission and is required to be used by real estate licensees pursuant to Rule
6IJ2-10.036 of the rules of the Commission.
5
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