SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________________
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
OR
For the quarterly period ended September 30, 1996
Commission File No. 0-15360
BIOJECT MEDICAL TECHNOLOGIES INC.
(Exact name of registrant as specified in its charter)
Oregon 93-1099680
(State of other jurisdiction of (I.R.S. identification no.)
employer incorporation or organization)
7620 SW Bridgeport Road
Portland, Oregon 97224
(Address of principal executive offices) (Zip code)
(503) 639-7221
(Registrant's telephone number, including areas code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 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 [ ]
At September 30, 1996 there were 15,616,712 outstanding shares of common
stock of the registrant.
<PAGE>
PART I
FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
The following unaudited consolidated financial statements of Bioject
Medical Technologies Inc. (BMT) and its subsidiaries, Bioject Medical Systems
Ltd. (BMSL) and Bioject Inc. (BI) (together, unless the context otherwise
requires, the "Company"), have been prepared pursuant to the rules and
regulations of the Securities and Exchange Commission. BMT, BMSL and BI were
formed for the purpose of developing, manufacturing and distributing a new
drug delivery system, capable of injecting medications through the skin
without the traditional needle puncture. The following 10-Q report reflects
the consolidated results of operations, cash flows and financial position for
the second quarter of the year ending March 31, 1997. The results of
operations for interim periods are not necessarily indicative of the results
to be expected for the year.
- Consolidated Statements of Operations for the quarters ended
September 30, 1996 and September 30, 1995
- Consolidated Statements of Operations for the six months ended
September 30, 1996 and September 30, 1995
- Consolidated Balance Sheets dated September 30, 1996 and
March 31, 1996
- Consolidated Statements of Cash Flows for the quarters ended
September 30, 1996 and September 30, 1995
- Consolidated Statements of Cash Flows for the six months ended
September 30, 1996 and September 30, 1995
Page 1
<PAGE>
BIOJECT MEDICAL TECHNOLOGIES INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Three-Month Period Ended
September 30,
1996 1995
-------------------------
<S> <C> <C>
REVENUES:
Net sales of products $ 342,762 $ 930,575
Licensing/technology fees 270,600 225,000
----------- ---------
613,362 1,155,575
----------- -----------
EXPENSES:
Manufacturing 603,001 1,485,237
Research and development 284,112 360,202
Selling, general and administrative 824,637 811,055
Other (income) expense, net (28,440) (41,029)
----------- -----------
1,683,310 2,615,465
----------- -----------
INCOME (LOSS) BEFORE TAXES (1,069,948) (1,459,890)
PROVISION FOR INCOME TAXES - -
----------- -----------
NET INCOME (LOSS) $(1,069,948) $(1,459,890)
=========== ===========
EARNINGS (LOSS) PER SHARE $ (.07) $ (.11)
=========== ===========
SHARES USED IN PER SHARE CALCULATION 15,616,712 13,270,251
=========== ===========
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements.
Page 2
<PAGE>
BIOJECT MEDICAL TECHNOLOGIES INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
<TABLE>
<CAPTION>
Six-Month Period Ended
September 30,
1996 1995
-------------------------
<S> <C> <C>
REVENUES:
Net sales of products $ 519,631 $ 1,634,019
Licensing/technology fees 585,500 450,000
----------- ---------
1,105,131 2,084,019
----------- -----------
EXPENSES:
Manufacturing 1,184,543 2,894,027
Research and development 692,480 728,008
Selling, general and administrative 1,572,064 1,677,364
Other (income) expense, net (50,112) (108,747)
----------- -----------
3,398,975 5,190,652
----------- -----------
INCOME (LOSS) BEFORE TAXES (2,293,844) (3,106,633)
PROVISION FOR INCOME TAXES - -
----------- -----------
NET INCOME (LOSS) $(2,293,844) $(3,106,633)
=========== ===========
EARNINGS (LOSS) PER SHARE $ (.15) $ (.23)
=========== ===========
SHARES USED IN PER SHARE CALCULATION 15,601,058 13,264,754
=========== ===========
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements.
Page 3
<PAGE>
BIOJECT MEDICAL TECHNOLOGIES INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
September 30, March 31,
1996 1996
--------------------------
ASSETS (unaudited)
- ------------------------------------------
CURRENT ASSETS:
Cash and cash equivalents $ 1,501,373 $ 3,098,251
Securities available for sale - 993,056
Accounts receivable 269,586 424,859
Inventories 1,575,984 1,255,945
Prepaid and other current assets 43,850 45,714
----------- -----------
Total current assets 3,390,793 5,817,825
CASH - RESTRICTED 795,836 -
PROPERTY AND EQUIPMENT, at cost:
Machinery and equipment 1,435,738 1,428,001
Production molds 780,980 777,353
Furniture and fixtures 163,832 163,116
Leasehold improvements 73,854 73,854
Equipment and molds under
construction, pledged 604,164 -
Capitalized interest 30,908
----------- -----------
3,089,476 2,442,324
Less - Accumulated depreciation (1,337,838) (1,048,638)
----------- -----------
1,751,638 1,393,686
OTHER ASSETS 297,927 307,105
----------- -----------
$ 6,236,194 $ 7,518,616
=========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
- --------------------------------------------
CURRENT LIABILITIES:
Accounts payable $ 442,299 $ 550,174
Accrued payroll 184,932 158,225
Other accrued liabilities 286,166 216,924
Deferred revenue 30,000 566,000
----------- -----------
Total current liabilities 943,397 1,491,323
LONG-TERM DEBT 1,400,000 -
COMMITMENTS
SHAREHOLDERS' EQUITY:
Preferred stock, no par, 10,000,000
shares authorized; no shares issued
and outstanding -
Common stock, no par, 100,000,000
shares authorized; issued and
outstanding 15,616,712 shares at
September 30, 1996 and 15,585,232
at March 31, 1996 36,160,508 36,001,158
Accumulated deficit (32,267,711) (29,973,865)
----------- -----------
Total shareholders' equity 3,892,797 6,027,293
----------- -----------
$ 6,236,194 $ 7,518,616
=========== ===========
The accompanying notes are an integral part
of these consolidated financial statements.
Page 4
<PAGE>
BIOJECT MEDICAL TECHNOLOGIES INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Three-Month Period Ended
September 30,
1996 1995
--------------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $(1,069,948) $(1,459,890)
Adjustments to net loss:
Depreciation and amortization 132,000 132,600
Common stock issued for services - -
Net changes in assets and liabilities:
Accounts receivable (196,876) 121,452
Inventories (58,804) 32,438
Prepaid and other current assets 3,932 11,418
Accounts payable 136,322 (96,197)
Accrued payroll 48,774 107,525
Other accrued liabilities 60,462 18,584
Deferred revenue (270,600) (25,000)
----------- -----------
Net Cash Used in Operating Activities (1,214,738) (1,157,070)
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Transfers to restricted cash (622,673) -
Purchase of securities available for sale -
Sale of securities available for sale - 986,320
Capital expenditures (360,672) (23,645)
Other assets (4,033) (12,804)
----------- -----------
Net Cash Used in Investing Activities (987,378) 949,871
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of long-term debt 950,000 -
Cash proceeds from common stock - -
----------- -----------
Net Cash Provided by Financing Activities 950,000 -
----------- -----------
CASH AND CASH EQUIVALENTS:
Net increase (decrease) in cash and
cash equivalents (1,252,116) (207,199)
Cash and cash equivalents at beginning
of period 2,753,489 2,688,336
----------- -----------
Cash and cash equivalents at end
of period $ 1,501,373 $ 2,481,137
=========== ===========
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements.
Page 5
<PAGE>
BIOJECT MEDICAL TECHNOLOGIES INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Six-Month Period Ended
September 30,
1996 1995
--------------------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $(2,293,844) $(3,106,633)
Adjustments to net loss:
Depreciation and amortization 304,200 265,200
Common stock issued for services 159,350 16,766
Net changes in assets and liabilities:
Accounts receivable 155,273 52,203
Inventories (320,039) (235,438)
Prepaid and other current assets 1,864 25,934
Accounts payable (107,875) (45,062)
Accrued payroll 26,707 57,717
Other accrued liabilities 69,240 32,900
Deferred revenue (536,000) (100,000)
----------- -----------
Net Cash Used in Operating Activities (2,541,124) (3,036,413)
----------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Transfers to restricted cash (795,836) -
Purchase of securities available for sale - (986,320)
Sale of securities available for sale 993,056 4,975,788
Capital expenditures (647,152) (490,943)
Other assets (5,822) (38,359)
----------- -----------
Net Cash Used in Investing Activities (455,754) 3,460,166
----------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Issuance of long-term debt 1,400,000 -
Cash proceeds from common stock - -
----------- -----------
Net Cash Provided by Financing Activities 1,400,000 -
----------- -----------
CASH AND CASH EQUIVALENTS:
Net increase (decrease) in cash and
cash equivalents (1,596,878) 423,753
Cash and cash equivalents at beginning
of period 3,098,251 2,057,384
----------- -----------
Cash and cash equivalents at end
of period $ 1,501,373 $ 2,481,137
=========== ===========
</TABLE>
The accompanying notes are an integral part
of these consolidated financial statements.
Page 6
<PAGE>
BIOJECT MEDICAL TECHNOLOGIES INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. THE COMPANY:
The consolidated financial statements of Bioject Medical Technologies
Inc. and its subsidiaries (the "Company"), include the accounts of Bioject
Medical Technologies Inc. ("BMT") and its wholly owned subsidiaries, Bioject
Medical Systems Ltd. ("BMSL") and Bioject Inc. ("BI"). All significant
intercompany transactions have been eliminated. BMT was incorporated on
December 17, 1992 under the laws of the State of Oregon for the purpose of
acquiring all of the outstanding common shares of BMSL in exchange for an
equivalent number of common shares of BMT stock under a plan of U.S.
reincorporation approved by the Company's shareholders on November 20, 1992.
BMSL was incorporated on February 14, 1985, under the laws of British
Columbia, and BI was incorporated on February 8, 1985, under the laws of the
State of Oregon.
The Company commenced operations in 1985 for the purpose of developing,
manufacturing and distributing a new drug delivery system. Since its
formation, the Company has been engaged principally in organizational,
financing, research and development, and marketing activities. In the last
quarter of fiscal 1993, the Company launched U.S. distribution of its
Biojector 2000 system primarily to the hospital and large clinic market.
The Company's products and manufacturing operations are subject to extensive
government regulation, both in the U.S. and abroad. In the U.S., the
development, manufacture, marketing and promotion of medical devices is
regulated by the Food and Drug Administration ("FDA") under the Federal Food,
Drug, and Cosmetic Act ("FFDCA"). In 1987, the Company received clearance from
the FDA under Section 510(k) of the FFDCA to market a hand-held CO2-powered
jet injection system. In June 1994, the Company received clearance from the
FDA under 510(k) to market a version of its Biojector 2000 system in a
configuration targeted at high volume injection applications.
The Company's revenues to date have been derived primarily from licensing
and technology fees and more recently from sales of the Biojector 2000 system
and Biojector syringes to public health clinics and to Health Management Inc.
with whom the Company signed a two-year distribution agreement in fiscal
1995. Subsequent to year end this agreement was cancelled. Although not
obligated to do so, the Company agreed to repurchase a portion of the goods
sold. Future revenues will depend upon acceptance and use by healthcare
providers of the Company's jet injection technology. Uncertainties over
government regulation and competition in the healthcare industry may impact
healthcare provider expenditures and third party payer reimbursements and,
accordingly, the Company cannot predict what impact, if any, subsequent
healthcare reforms might have on its business. In the future the Company may
require additional financing. Failure to obtain such financing on favorable
terms could adversely affect the Company's business.
2. ACCOUNTING POLICIES:
INVENTORIES
Inventories are stated at the lower of cost or market. Cost is determined in a
manner which approximates the first-in, first out (FIFO) method. Costs
utilized for inventory valuation purposes include labor, materials and
manufacturing overhead. Net inventories consist of the following:
September 30, March 31,
1996 1996
---------- ----------
Raw Materials $ 739,004 $ 697,694
Work in Process 18,352 12,467
Finished Goods 818,628 545,784
---------- ----------
$1,575,984 $1,255,945
========== ==========
Page 7
<PAGE>
During the first six months, although not obligated to do so, the Company
committed to repurchase certain inventories from one customer. The purchase
price totalled $660,000 of which $491,000 has been satisfied and the balance
is to be paid in October 1996.
PROPERTY AND EQUIPMENT AND LONG-TERM DEBT
In the first six months of fiscal 1997, the Company commenced acquiring
tooling and molds under a contract with Schering AG. Under the contract,
Schering has agreed to advance the Company up to $1.6 million on an agreed-
upon schedule to acquire this capital equipment which is pledged to Schering
subject to repayment of the loans. During the six month period, $1.4 million,
of these loans were received from Schering. Unexpended funds advanced to the
Company must be held in a separate account and are also pledged against
repayment of the debt. The loans bear interest at Wells Fargo Bank prime rate
plus 2 1/2%. Interest only is payable in annual installments until March 1998
at which time repayment of principal and interest will commence and be
amortized over a 24-36 month period.
USE OF ESTIMATES
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reporting period. Actual results could differ from those estimates.
3. BASIS OF PREPARATION OF CONSOLIDATED FINANCIAL STATEMENTS
The accompanying, unaudited consolidated financial statements do not
include all information and footnote disclosures normally included in an
audited financial statement. However, in the opinion of management, all
adjustments (which include only normal, recurring adjustments except as
described below) necessary to present fairly the financial position, cash
flows, and results of operations have been made. It is suggested that these
statements be read in conjunction with the financial statements included in
the Company's Annual Report on Form 10-K for the year ended March 31, 1996.
On June 3, 1996, the British Columbia Securities Commission informed the
Company that its Executive Director (formerly the Superintendent of Brokers)
consented to the release of all shares originally held in escrow pursuant to
an escrow agreement dated May 30, 1986. This means that the 1.5 million
shares of common stock which had been held under this escrow arrangement since
the Company's initial public offering in July 1986 are now held by the owners
of the shares without risk of cancellation and may be sold. As previously
disclosed, a non-cash charge to compensation expense is required to be
recorded for certain of the shares being released from the escrow account and
transferred to certain former employees and consultants of the Company.
Accordingly, a non-cash charge totalling $120,000 has been recorded in the
financial statements in the first quarter of fiscal 1997.
Page 8
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The Company has been developing a self-injection system for Schering AG,
Germany, under a multi-year contract signed in March 1994. On June 26, 1996,
the Company and Schering entered into a Supply Agreement which specifies the
terms under which the Company will manufacture and sell the self-injection
systems to Schering. Subject to Schering's satisfaction with certain product
test results and receipt of regulatory approval in the United States and
certain foreign countries, Bioject will manufacture the self-injection systems
exclusively for Schering AG which will distribute the systems on a worldwide
basis to multiple sclerosis patients using Betaseron. The agreement extends
for an initial term of eight years and provides for minimum amounts which must
be produced by Bioject and which must be purchased by Schering AG in order for
both parties to maintain their rights under the agreement. The Company has
commenced preparation to manufacture the self-injection systems, and initial
shipments under the agreement are scheduled to commence in the first quarter
of fiscal 1998.
The Company's revenues to date have not been sufficient to cover
operating expenses. However, the Company believes that if its products
achieve market acceptance and the volume of sales increases, and its product
costs are reduced, its costs of goods as a percentage of sales will decrease
and eventually the Company will generate net income. (See "Forward Looking
Statements") The level of sales required to generate net income will be
affected by a number of factors including the pricing of the Company's
products, its ability to attain efficiencies that can be attained through
volume and automated manufacturing, and the impact of inflation on the
Company's manufacturing and other operating costs. There can be no assurance
that the Company will be able to successfully implement its manufacturing cost
reduction program or sell its products at prices or in volumes sufficient to
achieve profitability or offset increases in its costs should they occur.
Revenues and results of operations have fluctuated and can be expected to
continue to fluctuate significantly from quarter to quarter and from year to
year. Various factors may affect quarterly and yearly operating results
including (i) length of time to close product sales, (ii) customer budget
cycles, (iii) implementation of cost reduction measures, (iv) uncertainties
and changes in purchasing due to third party payor policies and proposals
relating to national healthcare reform, (v) timing and amount of payments
under technology development agreements and (vi) timing of new product
introductions by the Company and its competition.
On June 3, 1996, the British Columbia Securities Commission informed the
Company that its Executive Director (formerly the Superintendent of Brokers)
consented to the release of all shares originally held in escrow pursuant to
an escrow agreement dated May 30, 1986. This means that the 1.5 million
shares of common stock which had been held under this escrow arrangement since
the Company's initial public offering in July 1986 are now held by the owners
of the shares without risk of cancellation and may be sold. As previously
disclosed, a non-cash charge to compensation expense is required to be
recorded for certain of the shares being released from the escrow account and
transferred to certain former employees and consultants of the Company.
Accordingly, a non-cash charge totalling $120,000 has been recorded in the
financial statements during the first quarter.
During fiscal 1997, the Company will continue to focus its efforts on
expanding sales, reducing the cost of its products, developing injectors for
Schering and Hoffmann-La Roche, pursuing additional alliances with
pharmaceutical companies and conserving its fiscal resources. The Company
does not expect to report net income from options in fiscal 1997. (See
Forward Looking Statements).
Page 9
<PAGE>
RESULTS OF OPERATIONS
QUARTER ENDED SEPTEMBER 30, 1996 COMPARED TO QUARTER ENDED SEPTEMBER 30, 1995.
Product sales decreased from $931,000 in the second quarter of fiscal
1996 to $343,000 in the second quarter of fiscal 1997. Sales in the second
quarter of fiscal 1996 consisted of approximately $650,000 of sales to Health
Management Inc., and the remainder to providers of flu season immunizations.
Product Sales in the second quarter of fiscal 1997 consisted primarily of
sales for flu season immunizations. The decrease in product sales was directly
attributable to the previously announced suspension of shipments to HMI.
License and technology fees increased from $225,000 in the second quarter
of fiscal 1996 to $271,000 in the second quarter of fiscal 1997. Both
quarters consisted of product development fees recognized for work performed
to develop a self injection device for the administration of Betaseron to
multiple sclerosis patients under an agreement with Schering, AG, and product
development fees for work to develop proprietary drug delivery systems under
an agreement with Hoffmann-La Roche. The increase in fees reflected an
variations in activity for the second quarter of fiscal 1997 compared to the
second quarter in the prior year.
Manufacturing expense decreased from the second quarter of fiscal 1996 to
the second quarter of fiscal 1997 by $882,000. This decrease was the result
of the decline in product sales and the elimination of certain excess
materials and labor costs incurred in connection with the installation and
validation of the automated syringe assembly equipment and testing of
Biojector unibody prototypes in the second quarter of the prior year.
Research and development expenses declined from $360,000 in the second
quarter of fiscal 1996 to $284,000 in the second quarter of fiscal 1997 due to
fluctuations in out-of-pocket expenses associated with the Schering and
Hoffmann-La Roche projects. Selling, general and administrative expense
remained constant at $811,000 in the second quarter of fiscal 1996 compared to
$825,000 in the second quarter of fiscal 1997. The slight increase was due
to normal variations in the timing of some expenses.
Other income consists of earnings on available cash balances. Other
income decreased from $41,000 in the second quarter of fiscal 1996 to $28,000
in the second quarter of fiscal 1997 as a result of decreases in cash
balances.
SIX MONTHS ENDED SEPTEMBER 30, 1996 COMPARED TO SIX MONTHS ENDED SEPTEMBER 30,
1995. Revenues for the six months ended September 30, 1996 consist of $520,000
in product sales and $586,000 in product development fees. This compares to
$1.6 million from product sales (81% of which were to HMI) and $450,000 in
product development fees earned in the comparable period in the prior year. The
decrease in product sales was directly attributable to the previously
announced suspension of shipments to HMI. Licensing and technology fees
consist entirely of product development fees recognized as revenue under the
Schering and Hoffmann-La Roche contracts.
Manufacturing costs decreased from $2.9 million in the first six months of the
prior year to $1.2 million in the comparable period in the current year. This
decrease was due to lower product sales and, therefore, corresponding
decreases in the costs of product sold. It was also due to the elimination of
excess labor and materials associated with qualifying the syringe automation
equipment for production and to costs associated with Biojector unibody
prototype testing and qualification. Research and product development expenses
decreased approximately $36,000 due to fluctuation in prototype and other
out-of-pocket expenses. Selling, general and administrative costs decreased
approximately $100,000 due primarily to reduced personnel expenses.
Other income consists of earnings on available cash balances. Other income
decreased in relation to the comparable periods the prior year as a result of
decreases in cash balances.
Page 10
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
Since its inception in 1985, the Company has financed its operations,
working capital needs and capital expenditures primarily from private
placements of securities, exercises of stock options, proceeds received from
its initial public offering in 1986, proceeds received from a public offering
of Common Stock in November 1993, licensing and technology revenues and more
recently from sales of products and a private placement of common stock
completed in fiscal 1996 with net proceeds of approximately $3.5 million. Net
proceeds received upon issuance of securities from inception through
September 30, 1996 totalled approximately $36.0 million.
Cash, cash equivalents and marketable securities totalled, $1.5 million
at September 30, 1996 and $4.1 million at March 31, 1996. The decrease
resulted primarily from operating losses and from reductions in certain short
term liabilities.
Inventories increased from $1.3 million at March 31, 1996 to $1.6 million
at September 30, 1996, due to the repurchase of certain inventories from HMI.
The Company has committed to repurchase an additional $169,000 in inventories
in October 1996. The repurchase of these inventories was optional and was at a
substantial discount to the original selling price to HMI.
The Company expects to expend approximately $2.0 million for capital
equipment in fiscal 1997. Substantially all of these expenditures are related
to ramp-up of manufacturing for the Schering product launch. Based on its
contract with Schering, the Company believes that up to $1.6 million of these
expenditures will be funded by interest bearing loans to be provided by
Schering with repayment by Bioject over a period of 4 to 5.5 years. During the
first six months, a total of $1.4 million of these funds was advanced by
Schering to the Company. Of this total, $604,000 was used as deposits on
equipment and molds and $796,000 was held in a restricted cash account for
future equipment and mold expenditures.
The Company believes that its current cash position and loans from
Schering combined with revenues and other cash receipts will be adequate to
fund the Company's operations through fiscal 1997. (See "Forward Looking
Statements"). Thereafter, the Company will require additional financing.
However, unforeseen costs and expenses or lower than anticipated cash
receipts from product sales or research and development activities could
accelerate the financing requirement. The Company has been successful in
raising additional financing in the past and believes that sufficient funds
will be available to fund future operations. (See "Forward Looking
Statements"). However, there can be no assurance that such financing will be
available on favorable terms or at all. Failure to obtain additional financing
when required would significantly restrict the Company's operations and
ability to continue product development, and materially adversely affect the
Company's business. The Company has no banking line of credit or other
established source of borrowing.
FORWARD LOOKING STATEMENTS
Certain statements in this report constitute "forward looking statements"
within the meaning of the Private Securities Litigation Reform Act of 1995.
Such forward looking statements involve known and unknown risks, uncertainties
and other factors which may cause the actual results, performance or
achievements of the Company, or industry results, to be materially different
from any future results, performance, or achievements expressed or implied by
such forward-looking statements. Such risks, uncertainties and factors are
described in more detail in the Company's Annual Report on Form 10-K and other
S.E.C. filings.
Page 11
<PAGE>
PART II
OTHER INFORMATION
Item 1. Legal Proceedings
None during the quarter ended September 30, 1996.
Item 2. Changes in Securities
None during the quarter ended September 30, 1996.
Item 3. Defaults Upon Senior Securities
None during the quarter ended September 30, 1996.
Item 4. Submission of Matters to a Vote of Security Holders
None during the quarter ended September 30, 1996.
Item 5. Other Information
None during the quarter ended September 30, 1996.
Item 6. Exhibits and Reports on Form 8-K
EXHIBITS:
10.4.2 Lease Agreement dated September 10, 1996 between
Bridgeport Woods Business Park and Bioject Inc. for
the Portland, Oregon facility.
REPORTS ON FORM 8K:
None.
Page 12
<PAGE>
SIGNATURE
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.
BIOJECT MEDICAL TECHNOLOGIES INC.
(Registrant)
Date: November 14, 1996 /S/ James C. O'Shea
---------------------------------
James C. O'Shea
Chairman, Chief Executive Officer
and President
/S/ Peggy J. Miller
---------------------------------
Peggy J. Miller
Vice President and Chief Financial Officer
Page 13
EXHIBIT 10.4.2
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between BRIDGEPORT WOODS
BUSINESS PARK hereinafter referred to as "Landlord", and BIOJECT, INC., an
Oregon corporation hereinafter referred to as "Tenant";
WITNESSETH
1. PREMISES AND TERM.
A. In consideration of the obligation of Tenant to pay rent as herein
provided, and in consideration of the other terms, provisions and covenants
hereof, Landlord hereby demises and leases to Tenant, and Tenant hereby takes
and leases from Landlord those certain Premises as outlined in red on Exhibit
"A" attached hereto (hereinafter referred to as the "Premises") and
incorporated herein by reference, together with all rights, privileges,
easements, appurtenances, and amenities belonging to or in any way
appertaining to the Premises and together with the buildings and other
improvements situated or to be situated upon land described in Exhibit "B"
attached hereto.
B. TO HAVE AND TO HOLD the same for a term commencing on the
"Commencement Date", as hereinafter defined, and ending thereafter as
specified in the Basic Lease Information, attached hereto, (the "Lease Term"),
provided, however, that, in the event the "Commencement Date" is a date other
than the first day of a calendar month, said term shall extend for said number
of months in addition to the remainder of the calendar month following the
"Commencement Date". (Tenant is presently in occupancy of the Premises).
C. The "Commencement Date" shall be the Scheduled Term Commencement Date
shown in the Basic Lease Information, attached hereto and incorporated herein
by reference. After the Commencement Date, Tenant shall, upon demand, execute
and deliver to Landlord a letter of acceptance of delivery of the Premises,
specifying the Commencement Date and the rent commencement date, in recordable
form.
2. BASE RENT AND SECURITY DEPOSIT.
A. Tenant agrees to pay to Landlord Base Rent for the Premises, in
advance, without demand, deduction or set off, for the entire Lease Term
hereof at the rate specified in the Basic Lease Information, payable in
monthly installments. One such monthly installment shall be due and payable
on the date hereof and a like monthly installment shall be due and payable on
or before the first day of each calendar month succeeding the Commencement
Date recited above during the Lease Term, except that the rental payment for
any fractional calendar month at the commencement or end of the Lease period
shall be prorated on the basis of a 30-day month.
B. In addition, Tenant agrees to deposit with Landlord on the date hereof
a security deposit in the amount specified in the Basic Lease Information,
which sum shall be held by Landlord, without obligation for interest, as
security for the performance of Tenant's covenants and obligations under this
Lease, it being expressly understood and agreed that such deposit is not an
advance rental deposit, not the last month's rent nor a measure of Landlord's
damages in the event of Tenant's default. Upon the occurrence of any event of
default by Tenant, Landlord may, from time to time, without prejudice to any
other remedy provided herein or provided by law, use such deposit to the
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extent necessary to make good any arrears of rent or other payment due
Landlord hereunder, and any other damage, injury, expense or liability caused
by such event of default; or to perform any obligation required of Tenant
under the Lease; and Tenant shall pay to Landlord on demand the amount so
applied in order to restore the security deposit to its original amount.
Although the security deposit shall be deemed the property of Landlord, any
remaining balance of such deposit shall be returned by Landlord to Tenant at
such time after termination of this Lease that all of Tenant's obligations
under this Lease have been fulfilled.
3. USE. The Premises shall be used only for the purpose of general office,
receiving, storing, shipping, assembly, light manufacturing, and selling
(other than retail) products, materials and merchandise made and/or
distributed by Tenant and for such other lawful purposes as may be incidental
thereto. Tenant's current use of the Premises is acceptable to Landlord.
Outside storage, including without limitation, trucks and other vehicles, is
prohibited without Landlord's prior written consent. Tenant may park one
delivery-type truck on the property. Tenant shall at its own cost and expense
obtain any and all licenses and permits necessary for its use of the Premises.
Tenant shall comply with all governmental laws, ordinances and regulations
applicable to the use of the Premises, and shall promptly comply with all
governmental orders and directives including but not limited to those
regarding the correction, prevention and abatement of nuisances in or upon, or
connected with, the Premises, all at Tenant's sole expense. Tenant shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the Premises, nor take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of the
building in which the Premises are situated or unreasonably interfere with
their use of their respective Premises. In addition to any other remedies
Landlord may have for a breach by Tenant of the terms of this Section 3,
Landlord shall have the right to have Tenant evicted from the Premises.
Without Landlord's prior written consent, Tenant shall not receive, store or
otherwise handle any product, material or merchandise which is explosive or
highly flammable. Tenant will not permit the Premises to be used for any
purpose or in any manner (including without limitation any method of storage)
which would render the insurance thereon void or the insurance risk more
hazardous or cause the State Board of Insurance or other insurance authority
to disallow any sprinkler credits. In the event Tenant's use of Premises
shall result in an increase in insurance premiums, Tenant shall be solely
responsible for said increase.
4. TAXES AND OTHER CHARGES.
A. Tenant agrees to pay its proportionate share of any and all real and
personal property taxes, regular and special assessments, license fees and
other charges of any kind and nature whatsoever, payable by Landlord as a
result of any public or quasi-public authority, private party, or owner's
association levy, assessment or imposition against, or arising out of
Landlord's ownership of or interest in, the real estate described in Exhibit
"B" attached hereto, together with the building and the grounds, parking
areas, driveways, roads, and alleys around the building in which the Premises
are located, or any part thereof (hereinafter collectively referred to as the
"Charges"). During each month of the Lease Term, Tenant shall make a monthly
escrow deposit with Landlord (the "Escrow Payment") equal to 1/12 of its
proportionate share of the Charges which will be due and payable for that
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particular calendar year. Tenant authorizes Landlord to use the funds
deposited by Tenant with Landlord under this Paragraph 4 to pay the Charges.
Each Escrow Payment shall be due and payable, as additional rent, at the same
time and in the same manner as the payment of monthly rental as provided
herein. The amount of the initial monthly Escrow Payment will be specified in
the Basic Lease information. The initial Escrow Payment is based upon
Tenant's proportionate share of the estimated Charges for the year in
question, and the monthly Escrow Payment is subject to increase or decrease as
determined by Landlord to reflect an accurate escrow of Tenant's estimated
proportionate share of the Charges. The Escrow Payment account of Tenant
shall be reconciled annually. If the Tenant's total Escrow Payments are less
than Tenant's actual pro rata share of the Charges, Tenant shall pay to
Landlord upon demand the difference; if the Tenant's total Escrow Payments are
more than Tenant's actual pro rata share of the Charges, Landlord shall retain
such excess and credit it to Tenant's Escrow Payment account for the
successive year's Charges. Tenant's proportionate share of the Charges shall
be computed by multiplying the Charges by a fraction, the numerator of which
shall be the number of gross leasable square feet of floor space in the
Premises and the denominator of which shall be the total applicable gross
leasable square footage. Tenant's proportionate share is 35.4%.
B. If Tenant should fail to pay any Escrow Payments required to be paid
by Tenant hereunder, in addition to any other remedies provided herein,
Landlord may, if it so elects, pay such Escrow Payments or taxes, assessments,
license fees and other charges. Any sums so paid by Landlord shall be deemed
to be so much additional rental owing by Tenant to Landlord and due and
payable upon demand as additional rental plus interest at the rate of
eighteen percent (18%) per annum from the date of payment by Landlord until
repaid by Tenant.
C. (1) If at any time during the Lease Term, the present method of
taxation shall be changed so that in lieu of the whole or any part of any
taxes, assessments, fees or charges levied, assessed or imposed on real estate
and the improvements thereon, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received therefrom
and/or a franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rents of the present or any future building or
buildings, then all such taxes, assessments, fees or charges, or the part
thereof so measured or based, shall be deemed to be included within the term
"Charges" for the purposes hereof.
(2) Tenant may, alone or along with other tenants of the building
containing the Premises, at its sole cost and expense, in its or their own
name(s) dispute and contest any Charges by appropriate proceedings diligently
conducted in good faith, but only after Tenant and all other tenants, if any,
joining with Tenant in such contest have deposited with Landlord the amount so
contested and unpaid or their proportionate shares thereof as the case may be,
which shall be held by Landlord without obligation for interest until the
termination of the proceedings, at which time the amount(s) deposited shall be
applied by Landlord toward the payment of the items held valid (plus any court
costs, interest, penalties and other liabilities associated with the
proceedings), and Tenant's share of any excess shall be returned to Tenant.
Tenant further agrees to pay to Landlord upon demand Tenant's share (as among
all Tenants who participated in the contest) of all court costs, interest,
penalties and other liabilities relating to such proceedings. Tenant hereby
indemnifies and agrees to hold harmless the Landlord from and against any
cost, damage or expense (including attorney's fees) in connection with any
such proceedings.
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(3) Any payment to be made pursuant to this Paragraph 4 with respect
to the calendar year in which this Lease commences or terminates shall bear
the same ratio to the payment which would be required to be made for the full
calendar year as that part of such calendar year covered by the Lease Term
bears to a full calendar year.
D. Tenant shall be liable for all taxes levied against personal property
and trade fixtures placed by Tenant in the Premises. If any such taxes are
levied against Landlord or Landlord's property and if Landlord elects to pay
the same or if the assessed value of Landlord's property is increased by
inclusion of personal property and trade fixtures placed by Tenant in the
Premises and Landlord elects to pay the taxes based on such increase, Tenant
shall pay to Landlord upon demand that part of such taxes for which Tenant is
primarily liable hereunder.
5. TENANT'S MAINTENANCE.
A. Tenant shall at its own cost and expense keep and maintain all parts
of the Premises (except those for which Landlord is expressly responsible
under the terms of this Lease) in good condition, promptly making all
necessary repair and replacements, including but not limited to, windows,
glass and plate glass, doors, any special office entry, interior walls and
finish work, floor and floor covering, downspouts, gutters, heating and air
conditioning systems, dock boards, truck doors, dock bumpers, paving, plumbing
work and fixtures, termite and pest extermination, regular removal of trash
and debris, keeping the parking areas, driveways, alleys and the whole of the
Premises in a clean and sanitary condition. Tenant shall not be obligated to
repair any damage caused by fire, tornado, or other casualty covered by the
insurance to be maintained by Landlord pursuant to subparagraph 13(A) below,
except that Tenant shall be obligated to repair all wind damage to glass
except with respect to tornado or hurricane damage. However, Tenant shall not
be responsible for window glass damage caused by vandalism or the wilfull acts
of others
B. Tenant shall not damage any demising wall or disturb the integrity and
support provided by any demising wall and shall, at its sole cost and expense,
promptly repair any damage or injury to any demising wall caused by Tenant or
its employees, agents, licensees or invitees.
C. Tenant and its employees, customers and licensees shall have the right
to use the parking areas, if any, as may be designated by Landlord in writing,
subject to such reasonable rules and regulations as Landlord may from time to
time prescribe and subject to rights of ingress and egress of other tenants.
Landlord shall not be responsible for enforcing Tenant's exclusive parking
rights against any third parties. If Tenant or any other particular tenant of
the building can be clearly identified as being responsible for obstructions
or stoppage of a common sanitary sewage line, then Tenant, if Tenant is
responsible, or such other responsible Tenant, shall pay the entire cost
thereof, upon demand, as additional rent.
D. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance
contractor for servicing all heating and air conditioning systems and
equipment within the Premises.
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6. LANDLORD'S REPAIRS. After reasonable notice from Tenant, Landlord shall
repair the roof, exterior walls and foundations, and the cost thereof shall be
borne by the Landlord. Tenant shall repair and pay for any damage to such
items to be maintained by Landlord caused by any act, omission or negligence
of Tenant, or Tenant's employees, agents, licensees or invitees, or caused by
Tenant's default hereunder. The term "walls" as used herein shall not include
windows, glass or plate glass, doors, special store fronts or office entries.
Tenant shall immediately give Landlord written notice of defect or need for
repairs, after which Landlord shall have a reasonable opportunity and time to
repair same or cure such defect. Landlord's liability with respect to any
defects, repairs or maintenance for which Landlord is responsible under any of
the provisions of this Lease shall be limited to the cost of such repairs or
maintenance or the curing of such defect.
7. MONTHLY COMMON AREA MAINTENANCE CHARGE. Tenant agrees to pay as an
additional charge each month for its proportionate share of the cost of
operation and maintenance of the Common Area which shall be defined from time
to time by Landlord. Common Area costs which may be incurred by Landlord at
its discretion, shall include, but not limited to those costs incurred for
lighting, water, sewage, trash removal, exterior painting, exterior window
cleaning, sweeping, management, accounting, policing, inspecting, sewer lines,
plumbing, paving, landscape maintenance, plant material replacement and other
like charges, and Landlord's fee for supervision and administration of the
items set forth in this paragraph, currently at 10%. Landlord shall maintain
the Common Areas in reasonably good condition and repair. The proportionate
share to be paid by Tenant of the cost of operation and maintenance of the
Common Area shall be computed on the ratio that the gross leasable square feet
of the Premises bears to the total applicable gross leasable square footage or
such other equitable apportionment as may be adopted. Landlord shall make
monthly or other periodic charges based upon the estimated annual cost of
operation and maintenance of the Common Area, payable in advance but subject
to adjustment after the end of the fiscal year on the basis of the actual cost
for such year. Any such periodic charges shall be due and payable upon
delivery of notice thereof. The initial Common Area Maintenance Charge,
subject to adjustment as provided herein, shall be due and payable, as
additional rent, at the same time and in the same manner as the time and
manner of the payment of monthly rental as provided herein. The amount of the
initial monthly Common Area Maintenance Charge shall be as specified in the
Basic Lease Information.
8. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises (including but not limited to roof and wall
penetrations) without the prior written consent of Landlord. Tenant may,
without the consent of Landlord, but at its own cost and expense and in a good
workmanlike manner erect such shelves, bins, machinery and trade fixtures as
it may deem advisable, without altering the basic character of the building or
improvements and without overloading or damaging such building or
improvements, and in each case complying with all applicable governmental
laws, ordinances, regulations and other requirements. All alterations,
additions, improvements and partitions erected by Tenant shall be and remain
the property of Tenant during the Term of this Lease and Tenant shall, unless
Landlord otherwise elects as hereinafter provided, remove all alterations,
additions, improvements and partitions erected by Tenant and restore the
Premises to their original condition by the date of termination of this Lease
or upon earlier vacating of the Premises, provided, however, that if Landlord
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so elects prior to termination of this Lease or upon earlier vacating of the
Premises, any or all alterations, additions, improvements and partitions as
elected by Landlord shall become the property of Landlord as of the date of
termination of this Lease or upon earlier vacating of the Premises and shall
be delivered up to the Landlord with the Premises. All shelves, bins,
machinery and trade fixtures installed by Tenant may be removed by Tenant
prior to the termination of this Lease if Tenant so elects, and shall be
removed by the date of termination of this Lease or upon earlier vacating of
the Premises if required by Landlord; upon any such removal Tenant shall
restore the Premises to their original condition. All such removals and
restoration shall be accomplished in good workmanlike manner so as not to
damage the primary structure or structural qualities of the buildings and
other improvements situated on the Premises.
9. SIGNS. Tenant shall not install signs upon the Premises without
Landlord's prior written approval, and any such signage shall be subject to
any applicable governmental laws, ordinances, regulations and other
requirements. Tenant shall remove all such signs by the termination of this
Lease. Such installations and removals shall be made in such a manner as to
avoid injury or defacement of the building and other improvements, and Tenant
shall repair any injury or defacement, including without limitation
discoloration, caused by such installation and/or removal.
10. INSPECTION.
A. Landlord and Landlord's agents and representatives shall have the
right to enter and inspect the Premises at any reasonable time during business
hours, for the purpose of ascertaining the condition of the Premises or in
order to make such repairs as may be required or permitted to be made by
Landlord under the terms of this Lease. During the period that is six (6)
months prior to the end of the Term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the Premises at any reasonable
time during business hours for the purpose of showing the Premises and shall
have the right to erect on the Premises a suitable sign indicating the
Premises are available.
B. Tenant shall give written notice to Landlord at least thirty (30) days
prior to vacating the Premises and shall arrange to meet with Landlord for a
joint inspection of the Premises prior to vacating. In the event of Tenant's
failure to give such notice or arrange such joint inspection, Landlord's
inspection at or after Tenant's vacating the Premises shall be conclusively
deemed correct for purposes of determining Tenant's responsibility for repairs
and restoration. It shall be the responsibility of Tenant, prior to vacating
the Premises, to clean and repair the Premises and restore them to the
condition in which they were in upon delivery of the Premises to Tenant at
the Commencement Date, reasonable wear and tear excepted. Cleaning, repair and
restoration shall include, but not be limited to, removal of all trash,
cleaning and repainting of walls, where necessary, cleaning of carpet and
flooring, replacement of light bulbs and tubes, cleaning and wiping down of
all fixtures, maintenance and repair of all heating and air conditioning
systems, and all similar work, which shall be done at the latest practical
date prior to vacation of the Premises.
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11. UTILITIES. Tenant shall pay for all water, gas, heat, light, power,
telephone, sewer, sprinkler charges and other utilities and services used on
or from the Premises, together with any taxes, penalties, surcharges, or the
like pertaining thereto and any maintenance charges for utilities and shall
furnish all electric light bulbs and tubes. If any such services are not
separately metered to Tenant, Tenant shall pay a reasonable proportion as
determined by Landlord of all charges jointly metered with other Premises.
Landlord shall in no event be liable for any interruption or failure of
utility services on the Premises.
12. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not have the right, voluntarily or involuntarily, to
assign, convey, transfer, mortgage or sublet the whole or any part of the
Premises under this Lease without the prior written consent of Landlord. In
the event Tenant applies to Landlord for consent to assign, convey, transfer
or sublet the Premises, Landlord may condition such consent upon the right to
receive one-half of the profit, if any, which Tenant may realize on account of
such assignment, conveyance, transfer or sublease of the Premises. For
purposes of this paragraph, "profit" shall mean any sum which the assignee,
sublessee or transferee is required to pay, or which is credited to Tenant as
rent in excess of the Rents required to be paid by Tenant to Landlord under
this Lease. Landlord also reserves the right to recapture the Premises or
applicable portion thereof in lieu of giving its consent by notice given to
Tenant within twenty (20) days after receipt of Tenant's written request for
assignment or subletting. Such recapture shall terminate this Lease as to the
applicable space effective on the prospective date of assignment or
subletting, which shall be the last day of a calendar month and not earlier
than sixty (60) days after receipt of Tenant's request hereunder. In the
event that Landlord shall not elect to recapture and shall thereafter give its
consent, Tenant shall pay Landlord a reasonable fee, not to exceed $500.00, to
reimburse Landlord for processing costs incurred in connection with such
consent. (See Addendum).
B. Notwithstanding any permitted assignment or subletting, Tenant shall
at all times remain directly, primarily and fully responsible and liable for
the payment of the rent herein specified and for compliance with all of its
other obligations under the terms, provisions and covenants of this Lease.
Upon the occurrence of an "event of default" as hereinafter defined, if the
Premises or any part thereof are then assigned or sublet, Landlord, in
addition to any other remedies herein provided, or provided by law, may at its
option, collect directly from such assignee or subtenant all rents becoming
due to Tenant under such assignment, transfer or sublease and apply such rent
against any sums due to Landlord from Tenant hereunder, and no such collection
shall be construed to constitute a novation or a release of Tenant from the
further performance of Tenant's obligations hereunder.
13. INSURANCE, FIRE AND CASUALTY DAMAGE.
A. Landlord agrees to maintain insurance covering the building of which
the Premises are a part in an amount not less than eighty percent (80%) (or
such greater percentage as may be necessary to comply with the provisions of
any co-insurance clauses of the policy) of the "replacement cost" thereof as
such term is defined in the Replacement Cost Endorsement to be attached
thereto, insuring against the perils of Fire, Lightning, Extended Coverage,
Vandalism and Malicious Mischief, extended by Special Extended Coverage
Endorsement to insure against all other Risks of Direct Physical Loss, such
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coverages and endorsements to be as defined, provided and limited in the
standard bureau forms prescribed by the insurance regulatory authority for the
State in which the Premises are situated for use by insurance companies
admitted in such state for the writing of such insurance on risks located
within such state. Subject to the provisions of subparagraph 13, C, D, E
below, such insurance shall be for the sole benefit of Landlord and under its
sole control. In the event the insurance policy shall contain a deductible,
Tenant shall be liable for and pay its pro rata share, not to exceed $500, of
any deductible withheld from insurance proceeds or payable under the terms of
the insurance policy in the event of a claim or insured loss thereunder.
B. Tenant agrees to pay its proportionate share of Landlord's cost of
carrying fire and extended coverage insurance ("Insurance") on the building.
During each month of the term of this Lease, Tenant shall make a monthly
escrow deposit with Landlord equal to one-twelfth of its proportionate share
of the Insurance on the buildings and grounds which will be due and payable
for that particular year. Tenant authorizes Landlord to use the funds
deposited by him with Landlord under this paragraph to pay the cost of such
insurance. Each Insurance Escrow payment shall be due and payable, as
additional rent, at the same time and manner of the payment of the monthly
rental as provided herein. The initial share of the estimated Insurance for
the year in question, and the monthly Insurance Escrow Payment is subject to
increase or decrease as determined by Landlord to reflect an accurate monthly
escrow of Tenant's estimated proportionate share of this Insurance. The
Insurance Escrow Payment account of Tenant shall be reconciled annually. If
the Tenant's total Insurance Escrow Payments are less than Tenant's actual pro
rata share of the Insurance, Tenant shall pay to Landlord upon demand the
difference; if the total Insurance Escrow Payments of Tenant are more than
Tenant's actual pro rata share of the Insurance, Landlord shall promptly
refund the balance of such excess to Tenant after first crediting the excess
to the next monthly payment by Tenant for its proportionate share of Taxes and
Insurance. Tenant's cost of insurance shall be computed by multiplying the
cost of Insurance by a fraction, the numerator of which shall be the number of
gross leasable square feet of floor space in the Premises and the denominator
of which shall be the total applicable gross leasable square footage. The
amount of the initial monthly Insurance Escrow Payment will be as specified in
the Basic Lease Information.
C. If the building, of which the Premises are a part, should be damaged
or destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
D. If the building, of which the Premises are a part, should be totally
destroyed by fire, tornado or other casualty, or if it should be so damaged
thereby that rebuilding or repairs cannot in Landlord's estimation be
completed within two hundred (200) days after the date upon which Landlord is
notified by Tenant of such damage, this Lease shall terminate and the rent
shall be abated during the unexpired portion of this Lease, effective upon the
date of the occurrence of such damage. Landlord shall give notice to Tenant
in writing of its determination to terminate this Lease within ninety (90)
days following the date of the occurrence of such damage.
E. If the building, of which the Premises are a part, should be damaged
by any peril covered by the Insurance to be provided by Landlord under
subparagraph 13(A) above, but only to such extent that rebuilding or repairs
can in Landlord's estimation be completed within two hundred (200) days after
the date upon which Landlord is notified by Tenant of such damage, this Lease
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shall not terminate, and Landlord shall at its sole cost and expense thereupon
proceed with reasonable diligence to rebuild and repair such building to
substantially the condition in which it existed prior to such damage, except
that Landlord shall not be required to rebuild, repair or replace any part of
the partition, fixtures, additions and other improvements which may have been
placed in, or about the Premises by Tenant. If the Premises are untenantable
in whole or in part following such damage, the rent payable hereunder during
the period in which they are untenantable shall be reduced to such extent as
may be fair and reasonable under all of the circumstances. In the event that
Landlord shall fail to complete such repairs and rebuilding within two hundred
(200) days after the date upon which Landlord is notified by Tenant of such
damage, Tenant may at its option terminate this Lease by delivering written
notice of termination to Landlord as Tenant's exclusive remedy, whereupon all
rights and obligations hereunder shall cease and terminate.
F. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
Premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this Lease by delivering
written notice of termination to Tenant within fifteen (15) days after such
requirement is made by any such holder, whereupon all rights and obligations
hereunder shall cease and terminate.
G. Each of Landlord and Tenant hereby releases the other from any loss or
damage to property caused by fire or any other perils insured through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured in policies of Insurance covering
such property, even if such loss or damage shall have been caused by the fault
or negligence of the other party, or anyone for whom such party may be
responsible; provided, however, that this release shall be applicable and in
force and effect only with respect to loss or damage occurring during such
times as the releasor's policies shall contain a clause or endorsement to the
effect that any such release shall not adversely affect or impair said
policies or prejudice the right of the releasor to recover thereunder and then
only to the extent of the Insurance proceeds payable under such policies.
Each of the Landlord and Tenant agrees that it will request its Insurance
carriers to include in its policies such a clause or endorsement. If extra
cost shall be charged therefor, each party shall advise the other thereof and
of the amount of the extra cost, and the other party, at its election, may pay
the same, but shall not be obligated to do so.
14. LIABILITY. Landlord shall not be liable to Tenant or Tenant's employees,
agents, servants, guests, invitees or visitors, or to any other person
whomsoever, for any injury to person or damage to property on or about
the Premises, resulting from and/or caused in part or whole by the negligence
or misconduct of Tenant its employees, agents, servants, guests, invitees or
visitors, or of any other person entering upon the Premises, or caused by the
building and improvements located on the Premises becoming out of repair, or
caused by leakage of gas, oil, water or steam or by electricity emanating from
the Premises, or due to any cause whatsoever, and Tenant hereby covenants and
agrees that it will at all times indemnify and hold safe and harmless the
property, the Landlord (including without limitation the trustee and
beneficiaries if Landlord is a trust), Landlord's employees, agents, servants,
guests, invitees, and visitors from any loss liability, claims, suits, costs,
expenses, including without limitation attorney's fees and damages, both real
and alleged, arising out of any such damage or injury; except injury to
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persons or damage to property the sole cause of which is the negligence of
Landlord or the failure of Landlord to repair any part of the Premises which
Landlord is obligated to repair and maintain hereunder within a reasonable
time after the receipt of written notice from Tenant of needed repairs.
Tenant shall procure and maintain throughout the term of this Lease a policy
or policies of Insurance, at its sole cost and expense, insuring both Landlord
and Tenant against all claims, demands or actions arising out of or in
connection with: (i) the Premises; (ii) the condition of the Premises; (iii)
Tenant's operations in and maintenance and use of the Premises; and (iv)
Tenant's liability assumed under this Lease, the limits of such policy or
policies to be in the amount of not less than $1,000,000 per occurrence in
respect of injury to persons (including death) and in respect of property
damage or destruction, including loss of use thereof. All such policies shall
be procured by Tenant from responsible Insurance companies satisfactory to
Landlord. A certificate of insurance shall be delivered to Landlord prior to
the commencement date of this Lease. Not less than fifteen (15) days prior to
the expiration date of any such policies, a certificate of insurance for the
renewals thereof (bearing notations evidencing the payment of renewal
premiums) shall be delivered to Landlord. Such policies shall further provide
that not less than thirty (30) days written notice shall be given to Landlord
before such policy may be canceled or changed to reduce insurance provided
thereby.
15. CONDEMNATION.
A. If the whole or any substantial part of the Premises should be taken
for any public or quasi-public use under government law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent or materially interfere with the use of
the Premises for the purpose for which they are being used, this lease shall
terminate and the rent shall be abated during the unexpired portion of this
Lease, effective when the physical taking of said Premises shall occur.
B. If part of the Premises shall be taken for any public or quasi-public
use under any governmental law, ordinance or regulation, or by right of
eminent domain, or by private purchase in lieu thereof, and this Lease is not
terminated as provided in the subparagraph above, this Lease shall not
terminate but the rent payable hereunder during the unexpired portion of this
Lease shall be reduced to such extent as may be fair and reasonable under all
of the circumstances.
C. In the event of any such taking or private purchase in lieu thereof,
Landlord shall be entitled to receive the entire award. Tenant shall be
entitled to make a claim in any condemnation proceedings which does not reduce
the amount of Landlord's award, for the value of any furniture, furnishing and
fixtures installed by and at the sole expense of Tenant.
16. HOLDING OVER. Tenant will, at the termination of this Lease by lapse
of time or otherwise, yield up immediately possession to Landlord. If
Landlord agrees in writing that Tenant may hold over after the expiration or
termination of this Lease, unless the parties hereto otherwise agree in
writing on the terms of such holding over, the hold over tenancy shall be
subject to termination by Landlord at any time upon not less than five (5)
days advance written notice, or by Tenant at any time upon not less than
thirty (30) days advance written notice, and all of the other terms and
provisions of this Lease shall be applicable during that period, except that
Page 10
<PAGE>
Tenant shall pay Landlord from time to time upon demand, as rental for the
period of any hold over, an amount equal to one and one-half (1-1/2) the Base
Rent in effect on the termination date, plus all additional rental as defined
herein, computed on a daily basis for each day of the hold over period. No
holding over by Tenant, whether with or without consent of Landlord, shall
operate to extend this Lease except as otherwise expressly provided. The
preceding provisions of this Paragraph 16 shall not be construed as Landlord's
consent for Tenant to hold over.
17. QUIET ENJOYMENT. Landlord covenants that it now has, or will acquire
before Tenant takes possession of the Premises, good fee or leasehold title to
the Premises, free and clear of all liens and encumbrances, excepting only the
lien for current taxes not yet due, such mortgage or mortgages as are
permitted by the terms of this Lease, zoning ordinances and other building and
fire ordinances and government regulations relating to the use of such
property, and easements, restrictions and other conditions or record. In the
event this Lease is a sublease, then Tenant agrees to take the Premises
subject to the provisions of the prior leases. Landlord represents and
warrants that it has full right and authority to enter into this Lease and
that Tenant, upon paying the rental herein set forth and performing its other
covenants and agreements herein set forth, shall peaceably and quietly have,
hold and enjoy the Premises for the term hereof without hindrance or
molestation from Landlord, subject to the terms and provisions of this Lease.
18. EVENTS OF DEFAULT. The following events shall be deemed to be events
of default by Tenant under this Lease:
A. Tenant shall fail to pay any installment of the rent herein reserved
when due, or any payment with respect to taxes hereunder when due, or any
other payment or reimbursement to Landlord required herein when due, and such
failure shall continue for a period of ten (10) days from the date such
payment was due, and ten (10) days after written notice from Landlord.
B. Tenant shall become insolvent, or shall make a transfer in fraud of
creditors, or shall make an assignment for the benefit of creditors.
C. Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute of
the United States or any State thereof; or Tenant shall be adjudged bankrupt
or insolvent in proceedings filed against Tenant thereunder.
D. A receiver or trustee shall be appointed for all or substantially all
of the assets of Tenant.
E. Tenant shall desert or vacate any substantial portion of the Premises.
F. Tenant shall fail to comply with any term, provision or covenant of
this Lease (other than the foregoing in this Paragraph 18), and shall not cure
such failure within twenty (20) days after written notice thereof to Tenant.
19. REMEDIES. Upon the occurrence of any such events of default described
in Paragraph 18 hereof, Landlord shall have the option to pursue any one or
more of the following remedies without any notice or demand whatsoever.
A. Landlord may accelerate all rent payments due hereunder which shall
then become immediately due and payable.
Page 11
<PAGE>
B. Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord, and if Tenant fails so to do, Landlord
may, without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the Premises and expel
or remove Tenant and any other person who may be occupying such Premises or
any part thereof, by force if necessary, without being liable for prosecution
or any claim of damages therefor, and Tenant agrees to pay to Landlord on
demand the amount of all loss and damage which Landlord may suffer by reason
of such termination, whether through inability to relet the Premises on
satisfactory terms or otherwise.
C. Enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying such Premises or any part
thereof, by force if necessary, without being liable for prosecution or any
claim for damages therefor, and relet the Premises for such terms ending
before, on or after the expiration date of the Lease Term, at such rentals and
upon such other conditions (including concessions and prior occupancy periods)
as Landlord in its sole discretion may determine, and receive the rent
therefor; and Tenant agrees to pay to the Landlord on demand any deficiency
that may arise by reason of such reletting. Landlord shall make best efforts
to relet the Premises or any part thereof and shall not be liable for refusal
or failure to relet or in the event of reletting for refusal or failure to
collect any rent due upon such reletting. In the event Landlord is successful
in reletting the Premises at a rental in excess of that agreed to be paid by
Tenant pursuant to the terms of this Lease, Landlord and Tenant each mutually
agree that Tenant shall not be entitled, under any circumstances, to such
excess rental, and Tenant does hereby specifically waive any claim to such
excess rental.
D. Enter upon the Premises, by force if necessary, without being liable
for prosecution or any claim for damages therefor, and do whatever Tenant is
obligated to do under the terms of this Lease; and Tenant agrees to reimburse
Landlord on demand for any expenses which Landlord may incur in thus effecting
compliance with Tenant's obligations under this Lease, and Tenant further
agrees that Landlord shall not be liable for any damages resulting to the
Tenant from such action, whether caused by the negligence of Landlord or
otherwise.
E. Whether or not Landlord retakes possession or relets the Premises,
Landlord shall have the right to recover unpaid rent and all damages caused by
Tenant's default, including attorney's fees. Damage shall include, without
limitation: all rentals lost, all legal expenses and other related costs
incurred by Landlord following Tenant's default, all costs incurred by
Landlord in restoring the Premises to good order and condition, or in remod-
eling, renovating or otherwise preparing the Premises for reletting, all costs
(including without limitation any brokerage commissions and the value of Land-
lord's time) incurred by Landlord, plus interest thereon from the date of ex-
penditure until fully repaid at the rate of eighteen percent (18%) per annum.
F. In the event Tenant fails to pay any installment of rent, additional
rent or other charges hereunder as and when such installment is due, to help
defray the additional cost to Landlord for processing such late payments Ten-
ant shall pay to Landlord on demand a late charge in an amount equal to five
percent (5%) of such installment; and the failure to pay such amount within
ten (10) days after demand therefore shall be an event of default hereunder.
The provision for such late charge shall be in addition to all of Landlord's
other rights and remedies hereunder or at law and shall not be construed as
liquidated damages or as limiting Landlord's remedies in any manner.
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<PAGE>
G. Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by
law, such remedies being cumulative and non-exclusive, nor shall pursuit of
any remedy herein provided constitute a forfeiture or waiver of any rent due
to Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained. No
act or thing done by the Landlord or its agents during the Lease Term hereby
granted shall be deemed a termination of this Lease or an acceptance of the
surrender of the Premises, and no agreement to terminate this Lease or accept
a surrender of said Premises shall be valid unless in writing signed by
Landlord. No waiver by Landlord of any violation or breach of any of the
terms, provisions and covenants herein contained shall be deemed or construed
to constitute a waiver of any other violation or breach of any of the terms,
provisions and covenants herein contained. Landlord's acceptance of the
payment of rental or other payments hereunder after the occurrence of an event
of default shall not be construed as a waiver of such default, unless Landlord
so notifies Tenant in writing. 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 such default or of Landlord's right to
enforce any such remedies with respect to such default or any subsequent
default. If, on account of any breach or default by Tenant in Tenant's
obligations under the terms and conditions of this Lease, it shall become
necessary or appropriate for Landlord to employ or consult with an attorney
concerning or to enforce or defend any of Landlord's rights or remedies
hereunder, Tenant agrees to pay any reasonable attorney's fees so incurred.
20. LANDLORD'S LIEN. In addition to any statutory lien for rent in
Landlord's favor, Landlord shall have and Tenant hereby grants to Landlord a
continuing security interest for all rentals and other sums of money becoming
due hereunder from Tenant, upon all goods, wares, equipment, fixtures,
furniture, inventory, accounts, contract rights, chattel paper and other
personal property of Tenant situated on the Premises, and such property shall
not be removed therefrom without the consent of Landlord until all arrearages
in rent as well as any and all other sums of money then due to Landlord
hereunder shall first have been paid and discharged. In the event of a
default under this Lease, Landlord shall have, in addition to any other
remedies provided herein or by law, all rights and remedies under the Uniform
Commercial Code, including without limitation the right to sell the property
described in this Paragraph 20 at public or private sale. Tenant hereby
agrees to execute such financing statements and other instruments necessary or
desirable in Landlord's discretion to perfect the security interest hereby
created. Any statutory lien for rent is not hereby waived, the express
contractual lien herein granted being in addition and supplementary thereto.
21. MORTGAGES. Tenant accepts this Lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting
a lien or charge upon the Premises or the improvements situated thereon,
provided, however, that if the mortgages, trustee, or holder of any such
mortgage or deed of trust elects to have Tenant's interest in this Lease
superior to any such instrument, then by notice to Tenant from such mortgagee,
trustee or holder, this Lease shall be deemed superior to such lien, whether
this Lease was executed before or after said mortgage or deed of trust.
Tenant shall at any time hereafter on demand execute any instruments, releases
or other documents which may be required by any mortgagee for the purpose of
subjecting and subordinating this Lease to the lien of any such mortgage.
Page 13
<PAGE>
22. LANDLORD'S DEFAULT. In the event Landlord should become in default in
any payment due on any such mortgage described in Paragraph 21 hereof or in
the payment of taxes or any other item which might become a lien upon the
Premises and which Tenant is not obligated to pay under the terms and
provisions of this Lease. Tenant is authorized and empowered after giving
Landlord five (5) days prior written notice of such default and Landlord's
failure to cure such default, to pay any such items for and on behalf of
Landlord, and the amount of any item so paid by Tenant for or on behalf of
Landlord, together with any interest or penalty required to be paid in
connection therewith, shall be payable on demand by Landlord to Tenant
provided however, that Tenant shall not be authorized and empowered to make
any payment under the terms of this Paragraph 22 unless the item paid shall be
superior to Tenant's interest hereunder. In the event Tenant pays any
mortgage debt in full, in accordance with this paragraph, it shall, at its
election, be entitled to the mortgage security by assignment or subrogation.
23. MECHANIC'S LIENS. Tenant shall have no authority, express or implied,
to create or place any lien or encumbrance of any kind or nature whatsoever
upon, or in any manner to bind, the interest of Landlord in the Premises or to
charge the rentals payable hereunder for any claim in favor of any person
dealing with Tenant, including those who may furnish materials or perform
labor for any construction or repairs, and each such claim shall affect and
each such lien shall attach to, if at all, only the leasehold interest granted
to Tenant by this instrument. Tenant covenants and agrees that it will pay or
cause to be paid all sums legally due and payable by it on account of any
labor performed or materials furnished in connection with any work performed
on the Premises on which any lien is or can be validly and legally asserted
against its leasehold interest in the Premises or the improvements thereon and
that it will save and hold Landlord harmless from any and all loss, cost or
expense based on or arising out of asserted claims or liens against the
leasehold estate or against the right, title and interest of the Landlord in
the Premises or under the terms of this Lease.
24. NOTICES. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivery of any notice or the making of
any payment by Landlord to Tenant or with reference to the sending, mailing or
delivery of any notice or the making of any payment by Tenant to Landlord
shall be deemed to be complied with when and if the following steps are taken:
A. All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address hereinbelow set forth or
at such other address as Landlord may specify from time to time by written
notice delivered in accordance herewith. Tenant's obligation to pay rent and
any other amounts to Landlord under the terms of this Lease shall not be
deemed satisfied until such rent and other amounts have been actually received
by Landlord.
B. All payments required to be made by Landlord to Tenant hereunder shall
be payable to Tenant at the address hereinbelow set forth, or at such other
address within the continental United States as Tenant may specify from time
to time by written notice delivered in accordance herewith.
Page 14
<PAGE>
C. Any notice or document required or permitted to be delivered hereunder
shall be deemed to be delivered whether actually received or not when
deposited in the United States Mail, postage prepaid, Certified or Registered
Mail, addressed to the parties hereto at the respective addresses set out
below, or at such other address as they have theretofore specified by
written notice delivered in accordance herewith:
LANDLORD: TENANT:
Bridgeport Woods Business Park Bioject, Inc.
c/o Kiersey & McMillan, Inc. 7620 S.W. Bridgeport Road
P.O. Box 207 Durham, OR 97224
Lake Oswego, OR 97034
Telephone: (503) 635-3411 (503) 639-7221
Facsimile: (503) 635-4088 (503) 620-6431
If and when included within the term "Landlord", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address for the receipt of notices
and payments to Landlord; if and when included within the term "Tenant", as
used in this instrument, there are more than one person, firm or corporation,
all shall jointly arrange among themselves for their joint execution of such a
notice specifying some individual at some specific address within the
continental United States for the receipt of notices and payments to Tenant.
All parties included within the terms "Landlord" and "Tenant", respectively,
shall be bound by notices given in accordance with the provisions of this
paragraph to the same effect as if each had received such notice.
25. HAZARDOUS MATERIALS. Tenant hereby covenants and agrees not to cause or
permit the presence, use, generation, release, discharge, storage, disposal,
or transportation of any Hazardous Materials (as defined below) on, under, in,
above, to, or from the Premises, the Common Areas or any portion of the Park
other than in strict compliance with all applicable federal, state, and local
laws, regulations, and orders. For the purposes of this Lease the term
"Hazardous Materials" shall refer to any substances, materials, and wastes
that are or become regulated as hazardous or toxic substances under any
applicable local, state, or federal law, regulation, or order. Tenant shall
indemnify, defend, and hold Landlord harmless from and against (a) any loss,
cost, expense, claim, or liability arising out of any investigation, moni-
toring, clean-up, containment, removal, storage, or restoration work ("Reme-
dial Work") required by, or incurred by Landlord or any non-governmental
entity or person in a reasonable belief that such work is required by, any
applicable federal, state, or local law, governmental agency, or political
subdivision, and (b) any claims of third parties for loss, injury, expense, or
damage arising out of the presence, release, or discharge of any Hazardous
Material on, under, in, above, to, or from the Premises during the term of
this Lease. In the event any Remedial Work is so required under any appli-
cable federal, state, or local law during the term of this Lease, Tenant shall
perform or cause to be performed the Remedial Work in compliance with such
law, regulation, or order. All Remedial Work shall be performed by one or more
contractors under the supervision of a consulting engineer, each selected by
Tenant and approved in advance in writing by Landlord. In the event Tenant
shall fail to commence the Remedial Work in timely fashion or fail to
prosecute diligently the Remedial Work to completion, Landlord may, but shall
not be required to, cause the Remedial Work to be performed, subject fully to
the indemnification provisions of this paragraph. The foregoing indemni-
fication obligation shall survive termination of this Lease.
Page 15
<PAGE>
26. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
B. The terms, provisions and 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 heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly
provided. Landlord shall have the right to assign any of its rights and
obligations under this Lease. Each party agrees to furnish to the other,
promptly upon demand, a corporate resolution, proof of due authorization by
partners, or other appropriate documentation evidencing the due authorization
of such party to enter into this Lease.
C. The captions inserted in this Lease are for convenience only and in no
way define, limit or otherwise describe the scope or intent of this Lease, or
any provision hereof, or in any way affect the interpretation of this Lease.
D. Tenant agrees from time to time within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate that this Lease is in full force and effect, the date to which
rent has been paid, the unexpired term of this Lease and such other matters
pertaining to this Lease as may be requested by Landlord. It is understood
and agreed that Tenant's obligation to furnish such estoppel certificates in a
timely fashion is a material inducement for Landlord's execution of this
Lease.
E. This Lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the Term hereof, including without
limitation all payment obligations with respect to taxes and insurance and all
obligations concerning the condition of the Premises. Upon the expiration or
earlier termination of the Term hereof, and prior to Tenant vacating the
Premises, Tenant shall pay to Landlord any amount reasonably estimated by
Landlord as necessary to put the Premises, including without limitation all
heating and air conditioning systems and equipment therein, in good condition
and repair pursuant to Paragraph 10(B) hereof. Tenant shall also, prior to
vacating the Premises, pay to Landlord the amount, as estimated by Landlord,
of Tenant's obligation hereunder for real estate taxes and insurance premiums
for the year in which the Lease expires or terminates. All such amounts shall
be used and held by Landlord for payment of such obligations of Tenant
hereunder, with Tenant being liable for any additional costs therefor upon
demand by Landlord, or with any excess to be returned to Tenant after all such
obligations have been determined and satisfied, as the case may be. Any
security deposit held by Landlord shall be credited against the amount payable
by Tenant under this Paragraph 25(F).
G. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Term 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, and it is also the
intention of the parties to this Lease that in lieu of each clause or
Page 16
<PAGE>
provision of this Lease that is illegal, invalid or unenforceable, there be
added as part of this Lease contract a clause or provision as similar in terms
to such illegal, invalid or unenforceable clause or provision as may be
possible and be legal, valid and enforceable.
H. Because the Premises are on the open market and are presently being
shown, this Lease shall be treated as an offer with the Premises being subject
to prior Lease, and such offer subject to withdrawal or non-acceptance by
Landlord or to other use of the Premises without notice, and this Lease shall
not be valid or binding unless and until accepted by Landlord in writing and a
fully executed copy delivered to both parties hereto.
I. All references in this Lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on
which all parties hereto have executed this Lease.
27. LIABILITY OF LANDLORD. Tenant agrees that no trustee, officer,
employee, agent or individual partner of Landlord, or its constituent
entities, shall be personally liable for any obligation of Landlord hereunder,
and that Tenant must look solely to the interests of Landlord, or its
constituent entities in the subject real estate, for the enforcement of any
claims against Landlord arising hereunder.
28. ADDITIONAL PROVISIONS. Addendum and Additional Paragraphs 29-30
attached hereto and made a part hereof.
LANDLORD: TENANT:
Bridgeport Woods Business Park Bioject, Inc.
By: /S/ B.K. HERNDON By: /S/ PEGGY J. MILLER
------------------------- --------------------
Title: OWNER Title: VICE PRESIDENT
Page 17
<PAGE>
ADDENDUM TO LEASE AGREEMENT
Bridgeport Woods Business Park
and
Bioject, Inc.
Addendum to Paragraph 12.
A. Tenant may assign this Lease without Landlord's consent, to the
following (if the company has a net worth equal to or greater than Tenant's):
1. A parent, subsidiary or affiliate corporation of Tenant;
2. Any corporation into which Tenant merges or with which it is
consolidated;
3. Any corporation that purchases all or substantially all of Tenant's
assets.
Other than as stated above, Tenant shall not have the right, voluntarily or
involuntarily, to assign, convey, transfer, or mortgage the whole or any part
of the Premises under this Lease without the prior written consent of
Landlord, which consent shall not be unreasonably withheld.
Paragraph 29, Parking. Landlord will make available to Tenant those spacees
outlined in red on the attached Exhibit A-2 on a first come, first served
basis for Tenant's use. Those spaces outlined in blue on the attached Exhibit
A-2 will be made available for the sole use of Bioject, Inc. and its
employees, visitors or invitees. At present, these spaces will not be striped
"Reserved". However, if it becomes necessary, in Tenant's opinion, Landlord
will stripe these spaces to enforce Tenant's exclusivity.
Paragraph 30, Tenant Improvements. Landlord agrees to make a $10,000
allowance to Tenant for the purpose of replacing the carpeting in the office
areas of the Premises. The allowance will be in the form of a check to Tenant
at the time that Landlord's property manager verifies that the new carpeting
has been installed.
Page 18
<PAGE>
EXHIBIT A-1
Detailed drawing of business park with emphasis on building space leased by
Bioject.
EXHIBIT A-2
Detailed drawing of business park with emphasis on parking spaces assigned to
Bioject.
EXHIBIT B
BRIDGEPORT WOODS BUSINESS PARK
Property Description
Description of a parcel of land situated in the South one half of Section 13,
Township 2 South, Range 1 West, Willamette Meridian, Washington County, Oregon
being all of Lots 70 and 71, "Tualatin Valley Homes", City of Durham, a duly
recorded plat more particularly described as follows:
Beginning at the intersection of the East right of way line of State Highway
141 (S.W. Upper Boones Ferry Road), 60 feet wide, (AKA Beaverton-Tualatin Hwy.
No. 141) with the South right of way line of S.W. Bridgeport Road (County
Road No. 1387), 40 feet wide, said point of intersection also being the
Northwest corner of Lot 71, said Tualatin Valley Homes; thence South 7 degrees
36 minutes 40 seconds West along the East line of said S.W. Upper Boones
Ferry Road (and the West line of Lots 70 and 71) 429.34 feet to the
Southwest corner of Lot 70; thence South 89 degrees 47 minutes 10 seconds
East along the South line of said Lot 70, 512.14 feet to an angle corner
therein; thence North 51 degrees 16 minutes 45 seconds East along the
Southeasterly line of said Lot 70, 181.16 feet to the most Easterly corner
of said Lot 70; thence North 38 degrees 33 minutes 50 seconds West along
the Easterly line of said Lot 70 and Lot 71, 412.00 fee to a point in the
Southeasterly right of way line of S.W. Bridgeport Raod (County Road No.
1387), 40 feet wide, said point also being the Northeast corner of Lot 71,
aforesaid; thence South 51 degrees 26 minutes 10 second West along said
Southeasterly right of way line 14.18 feet to an angle corner therein;
thence continuing along the South right of way line of said street (and
the North line of said Lot 71) North 89 degrees 52 minutes 05 seconds West
329.10 feet to the point of beginning.
Containing therein an area of 219,343 square feet (5.04 acres, more or less).
Registered Professional Land Surveyor
/S/ JIM WEDDLE
Oregon
July 12, 1968
James O. Weddle
874
Page 19
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
EXHIBIT 27.1
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS AND THE CONSOLIDATED STATEMENTS OF OPERATIONS
FILED AS PART OF THE QUARTERLY REPORT ON FORM 10-Q AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH QUARTERLY REPORT ON FORM 10-Q.
</LEGEND>
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAR-31-1997
<PERIOD-END> SEP-30-1996
<CASH> 1,501,373
<SECURITIES> 0
<RECEIVABLES> 269,586
<ALLOWANCES> 0
<INVENTORY> 1,575,984
<CURRENT-ASSETS> 3,390,793
<PP&E> 3,089,476
<DEPRECIATION> 1,337,838
<TOTAL-ASSETS> 6,236,194
<CURRENT-LIABILITIES> 943,397
<BONDS> 1,400,000
0
0
<COMMON> 36,160,508
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 6,236,194
<SALES> 342,762
<TOTAL-REVENUES> 613,362
<CGS> 603,001
<TOTAL-COSTS> 603,001
<OTHER-EXPENSES> 1,080,309
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (1,069,948)
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,069,948)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,069,948)
<EPS-PRIMARY> (.07)
<EPS-DILUTED> (.07)
</TABLE>
