<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 10-Q
X Quarterly report pursuant to Section 13 or 15(d) of the Securities Exchange
- --- Act of 1934 for the quarterly period ended DECEMBER 31, 1997 or
Transition report pursuant to Section 13 or 15(d) of the Securities
- --- Exchange Act of 1934
COMMISSION FILE NUMBER 1-10981
SBS TECHNOLOGIES, INC.
New Mexico 85-0359415
(State or other jurisdiction of (IRS Employer Identification Number)
incorporation or organization)
2400 Louisiana Blvd. NE
AFC Building 5, Suite 600
Albuquerque, New Mexico 87110
(505) 875-0600
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 and (2) has been subject to such filing requirements for
the past 90 days.
YES X NO
---- ----
As of January 31, 1998, the Registrant had 5,621,204 shares of its common
stock outstanding.
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Assets December 31, 1997 June 30, 1997
------ ----------------- -------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 18,093,801 21,661,671
Receivables, net (note 2) 10,868,107 9,244,269
Inventories (note 3) 8,635,353 7,705,470
Deferred income taxes 1,420,000 1,327,000
Income tax receivable 1,710,441 -
Prepaid expenses 332,950 232,283
Other current assets 149,051 128,560
------------ -----------
Total current assets 41,209,703 40,299,253
------------ -----------
Property and equipment, at cost 6,232,878 4,729,259
Less accumulated depreciation 2,597,031 2,247,408
------------ -----------
Net property and equipment 3,635,847 2,481,851
------------ -----------
Intangible assets, net 17,735,030 14,099,254
Deferred income taxes 4,000,000 4,253,000
Other assets 48,447 31,656
------------ -----------
Total assets $ 66,629,027 61,165,014
------------ -----------
------------ -----------
Liabilities and Stockholders' Equity
------------------------------------
Current liabilities:
Current portion of long-term debt $ - 13,316
Notes payable to related parties (note 5) 2,908,126 1,000,000
Accounts payable 1,816,736 1,541,846
Accrued representative commissions 462,922 449,699
Accrued salaries 1,296,451 1,868,623
Accrued compensated absences 639,069 560,061
Income taxes - 1,095,162
Other current liabilities 1,474,450 1,493,368
------------ -----------
Total current liabilities 8,597,754 8,022,075
Long-term liabilities:
Notes payable to related parties (note 5) - 2,816,251
------------ -----------
Total long-term liabilities - 2,816,251
------------ -----------
Total liabilities 8,597,754 10,838,326
------------ -----------
Stockholders' equity:
Common stock, no par value;100,000,000 shares authorized,
5,620,943 issued and outstanding at December 31, 1997
5,405,381 issued and outstanding at June 30, 1997 47,039,262 43,889,754
Common stock warrants 79,563 111,286
Retained earnings 10,912,448 6,325,648
------------ -----------
Total stockholders' equity 58,031,273 50,326,688
------------ -----------
Total liabilities and stockholders' equity $ 66,629,027 61,165,014
------------ -----------
------------ -----------
</TABLE>
See accompanying notes to condensed consolidated financial statements
Page 2
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Six Months Ended December 31 Three Months Ended December 31
-----------------------------------------------------------------
1997 1996 1997 1996
------------- ----------- ---------- -----------
<S> <C> <C> <C> <C>
Sales $ 34,741,648 23,530,369 18,379,139 12,266,903
Cost of sales 15,261,910 11,366,476 8,262,189 6,120,723
------------ ----------- ---------- -----------
Gross Profit 19,479,738 12,163,893 10,116,950 6,146,180
Selling, general and administrative expense 7,672,738 4,868,469 4,215,961 2,194,823
Research and development expense 3,672,969 1,515,966 1,890,086 861,020
Acquired in-process research and
development charge - 11,000,000 - 11,000,000
Amortization of intangible assets 896,478 561,935 446,707 342,563
------------ ----------- ---------- -----------
Operating income 7,237,553 (5,782,477) 3,564,196 (8,252,226)
------------ ----------- ---------- -----------
Interest income 567,814 103,095 283,140 88,251
Interest expense (95,067) (302,165) (48,454) (138,185)
------------ ----------- ---------- -----------
472,747 (199,070) 234,686 (49,934)
------------ ----------- ---------- -----------
Income before income taxes 7,710,300 (5,981,547) 3,798,882 (8,302,160)
Income taxes 3,123,500 (2,392,600) 1,539,500 (3,320,800)
------------ ----------- ---------- -----------
Net income $ 4,586,800 (3,588,947) 2,259,382 (4,981,360)
------------ ----------- ---------- -----------
------------ ----------- ---------- -----------
Net income per common share $ 0.83 (0.97) 0.41 (1.24)
----- ----- ----- -----
----- ----- ----- -----
Net income per common share -
assuming dilution $ 0.76 (0.97) 0.37 (1.24)
----- ----- ----- -----
----- ----- ----- -----
</TABLE>
See accompanying notes to condensed consolidated financial statements
Page 3
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
(UNAUDITED)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Common Total
stock Common stock-
------------------------ stock Retained holders'
Shares Amount warrants earnings equity
---------- ---------- ---------- ---------- ----------
<S> <C> <C> <C> <C> <C>
Balance at June 30, 1997 5,405,381 $ 43,889,754 $ 111,286 $ 6,325,648 $ 50,326,688
Exercise of stock options
and warrants 215,562 1,511,531 (31,723) - 1,479,808
Income tax benefit from stock
options exercised 1,637,977 1,637,977
Net income - - - 4,586,800 4,586,800
---------- ----------- ----------- ----------- -----------
Balance at December 31, 1997 5,620,943 $ 47,039,262 $ 79,563 $ 10,912,448 $ 58,031,273
---------- ----------- ----------- ----------- -----------
---------- ----------- ----------- ----------- -----------
</TABLE>
See accompanying notes to condensed consolidated financial statements
Page 4
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Six Months Ended December 31
-------------------------------
1997 1996
----------- ----------
<S> <C> <C>
Cash flows from operating activities:
Net income (loss) $ 4,586,800 (3,588,947)
------------ -----------
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation 397,841 267,161
Amortization of intangible assets 896,478 561,935
Bad debt expense 171,486 186,002
Deferred income taxes 160,000 (4,400,000)
Gain on disposition of assets (4,871) (503)
Imputed interest 91,875 20,582
Acquired in-process research and development charge - 11,000,000
Changes in assets and liabilities:
Receivables (851,407) (556,219)
Inventories (454,572) (536,607)
Prepaids and other assets (116,838) 37,714
Accounts payable 98,153 71,830
Accrued representative commissions (27,017) 128,022
Accrued salaries (646,110) 103,551
Accrued compensated absences 69,037 107,607
Income taxes (1,221,663) (221,829)
Other current liabilities (96,802) (25,478)
------------ -----------
Net adjustments (1,534,410) 6,743,768
------------ -----------
Net cash provided by operating activities 3,052,390 3,154,821
------------ -----------
Cash flows from investing activities:
Cash received from sale of assets 50,000 -
Business acquisitions (note 5) (5,565,603) (20,259,266)
Acquisition of property and equipment (1,571,149) (564,078)
------------ -----------
Net cash used by investing activities (7,086,752) (20,823,344)
------------ -----------
</TABLE>
(Continued)
Page 5
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Six Months Ended December 31
------------------------------
1997 1996
----------- ----------
<S> <C> <C>
Cash flows from financing activities:
Payments on notes payable to related parties (1,000,000) -
Payments on long-term borrowings and capitalized leases (13,316) (6,954,643)
Proceeds from exercise of stock options and warrants 1,479,808 1,373,523
Net proceeds from sale of common stock - 35,693,198
---------- -----------
Net cash provided by financing activities 466,492 30,112,078
---------- -----------
Net increase (decrease) in cash and cash equivalents (3,567,870) 12,443,555
Cash and cash equivalents at beginning of period 21,661,671 1,130,030
---------- -----------
Cash and cash equivalents at end of period $18,093,801 13,573,585
---------- -----------
---------- -----------
Supplemental disclosure of cash flow information:
Interest paid $ 3,192 270,043
Income taxes paid 4,185,163 2,231,027
Noncash financing and investing activities:
Assets acquired through capital leases $ - 70,733
Income tax benefit of stock options exercised 1,637,977 -
Summary of assets, liabilities, and equity
acquired through acquisition:
Cash and cash equivalents $ 239,021 23,489
Receivables 943,917 2,157,225
Inventories 475,311 2,412,589
Deferred income tax - 65,963
Prepaid expenses 21,111 213,115
Goodwill 4,532,254 9,780,590
Property and equipment 25,817 1,065,180
Accumulated depreciation - (609,322)
Accounts payable (176,737) (441,134)
Accrued representative commissions (40,240) (17,240)
Accrued salaries (73,938) (108,099)
Accrued compensated absences (9,971) (154,135)
Debt - (404,277)
Income taxes (54,037) 1,552
Other current liabilities (77,884) (278,733)
Common stock - (68,000)
Retained earnings $ - (683,829)
---------- -----------
---------- -----------
</TABLE>
See accompanying notes to condensed consolidated financial statements
Page 6
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1997
(Unaudited)
- --------------------------------------------------------------------------------
1) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accounting policies as set forth in SBS Technologies, Inc.'s (the
"Company") Annual Report on Form 10-K dated September 26, 1997 have been
adhered to in preparing the accompanying interim consolidated financial
statements. These statements are unaudited but include all adjustments,
consisting of normal recurring adjustments, that the Company considers
necessary for a fair presentation of the results for such interim period.
Results for an interim period are not necessarily indicative of results for
a full year.
2) RECEIVABLES, NET
Receivables, net consisted of the following:
<TABLE>
<CAPTION>
December 31, 1997 June 30, 1997
----------------- --------------
<S> <C> <C>
Accounts receivable $ 11,345,160 9,545,264
Less: allowance for doubtful accounts (477,053) (300,995)
------------- ------------
$ 10,868,107 9,244,269
------------- ------------
------------- ------------
</TABLE>
3) INVENTORIES
Inventories are valued at average cost, which does not exceed market.
<TABLE>
<CAPTION>
December 31, 1997 June 30, 1997
----------------- ---------------
<S> <C> <C>
Raw materials $ 3,725,074 3,211,502
Work in process 3,210,552 2,953,140
Finished goods 1,699,727 1,540,828
----------- ----------
$ 8,635,353 7,705,470
----------- ----------
----------- ----------
</TABLE>
4) EARNINGS PER SHARE
Effective with the quarter ended December 31, 1997, the Company has
adopted SFAS No. 128, "Earnings per Share." In accordance with SFAS No.
128, all previously reported earnings (loss) per share amounts have been
restated to comply with SFAS No. 128. Net income (loss) per share is
based on weighted average shares outstanding. Net income (loss) per
share - assuming dilution includes the dilutive effects of potential
common shares outstanding during the period (i.e. options and warrants).
Earnings per common share and earnings per common share - assuming dilution
are based on the weighted average shares of common stock and, if dilutive,
options and warrants outstanding during the period.
A reconciliation of the numerator and denominator of the of the per share
and per share - assuming dilution calculation follows:
Page 7
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1997
(Continued)
- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Six Months Ended December 31
----------------------------------------------------------------------------
1997 1996
----------------------------------------------------------------------------
Income Shares Per-Share Loss Shares Per-Share
(Numerator) (Denominator) Amount (Numerator) (Denominator) Amount
----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
NET INCOME (LOSS) PER COMMON SHARE
Income (Loss) Available to Common Stockholders $4,586,800 5,523,794 $0.83 ($3,588,947) 3,709,624 ($0.97)
EFFECT OF DILUTIVE SECURITIES -------
Dilutive options and warrants 550,714
------------------------
NET INCOME (LOSS) PER COMMON SHARE-ASSUMING
DILUTION
Income (Loss) Available to Common Stockholders $4,586,800 6,074,508 $0.76 ($3,588,947) 3,709,624 ($0.97)
----- -------
----- -------
</TABLE>
<TABLE>
<CAPTION>
Three Months Ended December 31
----------------------------------------------------------------------------
1997 1996
----------------------------------------------------------------------------
Income Shares Per-Share Loss Shares Per-Share
(Numerator) (Denominator) Amount (Numerator) (Denominator) Amount
----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
NET INCOME (LOSS) PER COMMON SHARE
Income (Loss) Available to Common Stockholders $2,259,382 5,576,670 $0.41 ($4,981,360) 4,025,670 ($1.24)
EFFECT OF DILUTIVE SECURITIES
Dilutive options and warrants 615,133
------------------------ --------------------------
NET INCOME (LOSS) PER COMMON SHARE-ASSUMING
DILUTION
Income (Loss) Available to Common Stockholders $2,259,382 6,191,803 $0.37 ($4,981,360) 4,025,670 ($1.24)
----- -------
----- -------
</TABLE>
For the six months and three months ended December 31, 1997, options to purchase
286,494 shares of common stock and 223,687 shares of common stock, respectively,
were outstanding but were not included in the computation of net income per
common share - assuming dilution because the options' exercise price was greater
than the average market price of the common shares.
5) BUSINESS ACQUISITIONS
On November 24, 1997, the Company completed the purchase of Micro Alliance,
Inc. ("Micro Alliance"), a privately held San Diego county-based
manufacturer of industrial computer enclosures and systems. Micro Alliance
specializes in the design and manufacture of special-purpose PC-compatible
computer systems offering a variety of CPU boards and system enclosures,
including rack mount, desktop and mobile systems. Most systems contain
passive backplanes that allow the addition of up to 20 ISA and PCI cards.
These systems are often customized to meet the needs of particular OEM
applications. The Company acquired all of the outstanding capital stock
of Micro Alliance for a total purchase price of $5.8 million. The
acquisition was accounted for using the purchase method of accounting and
$4.5 million of goodwill is being amortized over 10 years. The financial
results of Micro Alliance have been included in the Company's Consolidated
Financial Statements from November 24, 1997.
The purchase price was paid as follows:
<TABLE>
<CAPTION>
<S> <C>
Cash $ 5,736,368
Acquisition costs 68,256
------------
$ 5,804,624
------------
------------
</TABLE>
Page 8
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 1997
(Continued)
- --------------------------------------------------------------------------------
On November 18, 1996, the Company completed the purchase of Bit 3
Computer Corporation ("Bit 3"), a Minneapolis-based manufacturer of
computer networking and interconnection hardware. The Company
acquired all of the outstanding capital stock of Bit 3 for a total
purchase price of $24.0 million. Of this purchase price, $20.0
million was paid to the sellers in cash upon closing of the public
stock offering. Of the balance of $4.0 million, $1.0 million was paid
on July 1, 1997 and the balance of $3.0 million will be paid on July
1, 1998. The financial results of Bit 3 have been included in the
Company's Consolidated Financial Statements from November 18, 1996.
In connection with the acquisition of Bit 3, the Company recorded an
$11.0 million earnings charge in the quarter ended December 31, 1996,
based on an assessment by the Company, in conjunction with an
independent valuation firm, of purchased technology of Bit 3. The
assessment determined that $11.0 million of Bit 3's purchase price
represented technology that does not meet the accounting definitions
of "completed technology," and thus should be charged to earnings
under generally accepted accounting principles. In addition, as a
result of the acquisition, the Company recorded $10.0 million of
goodwill which is being amortized over a ten-year period.
The following (unaudited) proforma consolidated results of operations have
been prepared as if the acquisitions of Bit 3 and Micro Alliance had
occurred at July 1, 1996:
<TABLE>
<CAPTION>
($ in millions except per share amounts)
Six Months Ended Three Months Ended
December 31 December 31
------------------- ------------------
1997 1996 1997 1996
----- ----- ----- -----
<S> <C> <C> <C> <C>
Sales 37.0 32.5 19.3 16.1
Net income (loss) 4.5 (2.3) 2.3 1.9
Net income (loss) per common share .82 (.46) .40 .39
Net income (loss) per common share -
Assuming dilution .74 (.46) .37 .32
</TABLE>
The proforma information is presented for informational purposes only
and is not necessarily indicative of the results of operations that
actually would have been achieved had the acquisitions been consummated
as of that time, nor is it intended to be a projection of future
results.
Page 9
<PAGE>
SBS TECHNOLOGIES INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CONSOLIDATED
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
DECEMBER 31, 1997
- --------------------------------------------------------------------------------
THE FOLLOWING DISCUSSION AND ANALYSIS SHOULD BE READ IN CONJUNCTION WITH THE
COMPANY'S FINANCIAL STATEMENTS AND NOTES THERETO. INFORMATION DISCUSSED HEREIN
MAY INCLUDE FORWARD-LOOKING STATEMENTS REGARDING FUTURE EVENTS OR THE FUTURE
FINANCIAL PERFORMANCE OF THE COMPANY, AND ARE SUBJECT TO A NUMBER OF RISKS AND
OTHER FACTORS WHICH COULD CAUSE THE ACTUAL RESULTS TO DIFFER MATERIALLY FROM
THOSE CONTAINED IN ANY FORWARD LOOKING STATEMENTS. AMONG SUCH FACTORS ARE:
GENERAL BUSINESS AND ECONOMIC CONDITIONS; CUSTOMER ACCEPTANCE OF AND DEMAND FOR
THE COMPANY'S PRODUCTS; THE COMPANY'S OVERALL ABILITY TO DESIGN, TEST, AND
INTRODUCE NEW PRODUCTS ON A TIMELY BASIS; THE NATURE OF THE MARKETS ADDRESSED BY
THE COMPANY'S PRODUCTS; AND OTHER RISK FACTORS LISTED FROM TIME TO TIME IN
DOCUMENTS FILED BY THE COMPANY WITH THE SECURITIES AND EXCHANGE COMMISSION.
PUBLIC STOCK OFFERING
On November 18, 1996, the Company consummated a fully underwritten public stock
offering of 1,500,000 shares of the Company's Common Stock at a price of
$25.625 per share. In addition, certain selling shareholders sold an additional
300,000 shares in the offering. The proceeds of the sale of the 300,000
additional shares did not benefit the Company; however, the Company did receive
the exercise price of $4.80 per share from the exercise of warrants covering
100,000 of the shares. The offering was managed by an underwriting group led by
Cowen & Co. and SoundView Financial Group, Inc. The net proceeds to the Company
of the public stock offering were used to fund the acquisition of Bit 3 (see
Recent Acquisition below), to repay long-term debt, and the balance will be used
for general working capital requirements and future business acquisitions.
RECENT ACQUISITIONS
On November 24, 1997, the Company completed the purchase of Micro Alliance, a
privately held San Diego county-based manufacturer of industrial computer
enclosures and systems. Micro Alliance specializes in the design and
manufacture of special-purpose PC-compatible computer systems offering a
variety of CPU boards and system enclosures, including rack mount, desktop
and mobile systems. Most systems contain passive backplanes that allow the
addition of up to 20 ISA and PCI cards. These systems are often customized
to meet the needs of particular OEM applications. Under the terms of the
purchase agreement dated November 24, 1997 (the "Agreement") among the
Company, Micro Alliance, a California corporation, and Jeffery Huston, Edward
Larson, and Sherrin W. Larson (together "Shareholders"), the Company acquired
all of the outstanding capital stock of Micro Alliance for a total purchase
price of $5.8 million. Of this total purchase price, $250,000 in cash was
placed in a joint escrow account until the earlier of resolution of certain
tax issues or the end of any applicable statute of limitations. The
financial results of Micro Alliance have been included in the Company's
Consolidated Financial Statements from November 24, 1997. As a result of the
acquisition, the Company recorded $4.5 million of goodwill, which is being
amortized over a ten-year period.
Page 10
<PAGE>
SBS TECHNOLOGIES INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CONSOLIDATED
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
DECEMBER 31, 1997
(Continued)
- --------------------------------------------------------------------------------
On November 18, 1996, the Company completed the purchase of Bit 3. Bit 3 is a
Minneapolis-based manufacturer of computer networking and interconnection
hardware for many of the most widely used computer architecture standards in the
standard bus embedded computer market. Under the terms of the purchase
agreement dated October 8, 1996 (the "Acquisition Agreement") among the Company
and the two shareholders of Bit 3 (the "Sellers"), the Company acquired all of
the outstanding capital stock of Bit 3 for a total purchase price of $24.0
million paid or to be paid from proceeds from the public stock offering and cash
flow from the Company's operations. Of this total purchase price, $20.0 million
was paid to the sellers in cash upon the closing of the offering. Of the
balance of $4.0 million, $1.0 million was paid to the Sellers on July 1, 1997
and $3.0 million will be paid to the sellers on July 1, 1998, pursuant to
secured promissory notes according to the terms of the Acquisition Agreement.
The financial results of Bit 3 have been included in the Company's Consolidated
Financial Statements from November 18, 1996. In connection with the acquisition
of Bit 3, the Company recorded an $11.0 million earnings charge in the quarter
ended December 31, 1996, based on an assessment by the Company, in conjunction
with an independent valuation firm, of purchased technology of Bit 3. The
assessment determined that $11.0 million of Bit 3's purchase price represented
technology that does not meet the accounting definitions of "completed
technology," and thus should be charged to earnings under generally accepted
accounting principles. In addition, as a result of the acquisition, the Company
recorded $10.0 million of goodwill, which is being amortized over a ten-year
period.
The following (unaudited) proforma consolidated results of operations have been
prepared as if the acquisitions of Micro Alliance and Bit 3 had occurred at July
1, 1996:
<TABLE>
<CAPTION>
($ in millions except per share amounts)
Six Months Ended Three Months Ended
December 31 December 31
----------- -----------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Sales 37.0 32.5 19.3 16.1
Net income (loss) 4.5 (2.3) 2.3 1.9
Net income (loss) per common share .82 (.46) .40 .39
Net income (loss) per common share -
Assuming dilution .74 (.46) .37 .32
</TABLE>
The proforma information is presented for informational purposes only and is not
necessarily indicative of the results of operations that actually would have
been achieved had the acquisitions been consummated as of that time, nor is it
intended to be a projection of future results.
RESULTS OF OPERATIONS
SIX MONTHS ENDED DECEMBER 31, 1997 COMPARED TO SIX MONTHS ENDED DECEMBER 31,
1996
Page 11
<PAGE>
SBS TECHNOLOGIES INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CONSOLIDATED
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
DECEMBER 31, 1997
(Continued)
- --------------------------------------------------------------------------------
SALES. For the six-month period ended December 31, 1997, sales increased
47.7%, or $11.2 million, from $23.5 million for the six month period ended
December 31, 1996, to $34.7 million. Of this 47.7% increase, sales contributed
by Micro Alliance, which was acquired on November 24, 1997, comprised 3.0% of
this increase, sales contributed by Bit 3, which was acquired on November 18,
1996, comprised 26.8% of this increase, and 21.3% of this increase was
attributable to the Company's other product lines, offset by 3.4% due to the
sale of the Company's Judgmental Use of Force business on June 26, 1997. During
the six month period ended December 31, 1997, prices for the Company's products
remained firm and unit shipments increased in all product lines, with the
exception of the Company's CPU product line which was consistent with the six
month period ended December 31, 1996.
GROSS PROFIT. For the six-month period ended December 31, 1997, gross profit
increased 59.8%, or $7.3 million, from $12.2 million for the six-month
period ended December 31, 1996, to $19.5 million. For the six month period
ended December 31, 1997, gross profit as a percentage of sales increased to
56.2% from 51.9% for the six-month period ended December 31, 1996. This
increase was primarily due to the acquisition of Bit 3, increased sales
volume over fixed costs, material cost improvements, a reduction in
independent representative sales commissions due to the movement from an
independent sales force to a direct sales force, and the sale of the
Company's low margin Judgmental Use of Force business.
SELLING, GENERAL AND ADMINISTRATION EXPENSE. For the six month period ended
December 31, 1997, selling, general and administration (SG&A) expense
increased 57.1%, or $2.8 million, from $4.9 million for the six month period
ended December 31, 1996, to $7.7 million, resulting from the added
expenditures due to the acquisitions of Bit 3 and Micro Alliance, additional
salaried sales personnel as the Company transitions from an independent sales
force to a direct sales force, as well as additional administrative staffing
and promotional costs commensurate with the growth of the Company. For the
same reasons, for the six-month period ended December 31, 1997, SG&A expense
as a percentage of sales increased to 22.2% from 20.9% in the six month
period ended December 31, 1996.
RESEARCH AND DEVELOPMENT EXPENSE. For the six month period ended December
31, 1997, research and development expense (R&D) increased 146.7%, or $2.2
million, from $1.5 million for the six month period ended December 31, 1996,
to $3.7 million, as a result of the added expenditures due to the
acquisitions of Bit 3 and Micro Alliance as well as increased investment in
new products in the Company's other product areas. For the same reasons, for
the six month period ended December 31, 1997, R&D expense as a percentage of
sales increased to 10.7% from 6.4% in the six month period ended December
31, 1996.
ACQUIRED IN-PROCESS RESEARCH AND DEVELOPMENT CHARGE. For the six month period
ended December 31, 1996, in connection with the acquisition of Bit 3 completed
on November 18, 1996, the Company recorded an $11.0 million earnings charge
based on an assessment by the Company, in conjunction with an independent
valuation firm, of purchased technology of Bit 3. The assessment determined
that $11.0 million of Bit 3's purchase price represented technology that does
not meet the accounting definitions of completed technology, and thus should be
charged to earnings under generally accepted accounting principles.
AMORTIZATION OF INTANGIBLE ASSETS. For the six-month period ended December 31,
1997, amortization of intangible assets increased 59.4%, or $334,000, from
$562,000 for the six-month period ended December 31, 1996, to $896,000. This
increase was the result of the amortization of goodwill associated with the
acquisitions of Bit 3 and Micro Alliance.
Page 12
<PAGE>
SBS TECHNOLOGIES INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CONSOLIDATED
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
DECEMBER 31, 1997
(Continued)
- --------------------------------------------------------------------------------
INTEREST INCOME. For the six month period ended December 31, 1997, interest
income increased 451.5%, or $465,000, from $103,000 for the six month period
ended December 31, 1996, to $568,000. This increase is due to earnings on
surplus cash from operations as well as earnings on cash received above the
Company's immediate requirements from the public offering consummated on
November 18, 1996.
INTEREST EXPENSE. For the six-month period ended December 31, 1997, interest
expense decreased 68.5%, or $207,000, from $302,000 for the six-month period
ended December 31, 1996, to $95,000. This decrease is attributable to the
reduction of debt incurred primarily to finance the acquisition of
GreenSpring Computers, Inc. in April 1995 and the elimination of all bank
debt effective November 22, 1996 by application of some of the proceeds of
the public offering. Of the $95,000 of interest expense for the six-month
period ended December 31, 1997, $92,000 represents the imputed interest
associated with the remaining notes payable to the former owners of Bit 3.
INCOME TAXES. For the six month period ended December 31, 1997 and the
six-month period ended December 31, 1996, income taxes represented an effective
income tax rate of 40.5% and 40%, respectively. The increase in the effective
income tax rate is due to an increase in the federal tax rate associated with an
increase in the Company's estimated taxable income.
EARNINGS PER SHARE. For the six month period ended December 31, 1997, net
income (loss) per common share was $0.83 compared to ($0.97) for the six
month period ended December 31, 1996. The loss for the six-month period
ended December 31, 1996 was due to the $11.0 million charge (net of tax) to
earnings associated with the acquisition of Bit 3. For the six-month period
ended December 31, 1996, net income per common share before the charge to
earnings was $0.81. For the six month period ended December 31, 1997, net
income (loss) per common share assuming dilution was $0.76 compared to
($0.97) for the six month period ended December 31, 1996. For the six-month
period ended December 31, 1996, net income per common share assuming dilution
before the charge to earnings was $0.65.
THREE MONTHS ENDED DECEMBER 31, 1997 COMPARED TO THREE MONTHS ENDED DECEMBER 31,
1996
SALES. For the three-month period ended December 31, 1997, sales increased
49.6%, or $6.1 million, from $12.3 million for the three-month period ended
December 31, 1996, to $18.4 million. Of this 49.6% increase, sales contributed
by Micro Alliance, which was acquired on November 24, 1997, comprised 5.7% of
this increase, sales contributed by Bit 3, which was acquired on November 18,
1996, comprised 19.5% of this increase, and 28.5% of this increase was
attributable to the Company's other product lines, offset by 4.1% due to the
sale of the Company's Judgmental Use of Force business on June 26, 1997. During
the three month period ended December 31, 1997 prices for the Company's products
remained firm and unit shipments increased in all product lines, with the
exception of the Company's CPU product line which was consistent with the three
month period ended December 31, 1996.
GROSS PROFIT. For the three-month period ended December 31, 1997, gross
profit increased 65.6%, or $4.0 million, from $6.1 million for the
three-month period ended December 31, 1996, to $10.1 million. For the three
month period ended December 31, 1997, gross profit as a percentage of sales
increased to 54.9% from 49.6% for the three month period ended December 31,
1996. This increase was primarily due to the acquisition of Bit 3, increased
sales volume over fixed costs, material cost improvements, a reduction in
independent representative sales commissions due to the movement from an
independent sales force to a direct sales force, and the sale of the
Company's low margin Judgmental Use of Force business.
Page 13
<PAGE>
SBS TECHNOLOGIES INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CONSOLIDATED
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
DECEMBER 31, 1997
(Continued)
- --------------------------------------------------------------------------------
SELLING, GENERAL AND ADMINISTRATION EXPENSE. For the three month period
ended December 31, 1997, selling, general and administration (SG&A) expense
increased 90.9%, or $2.0 million, from $2.2 million for the three month
period ended December 31, 1996, to $4.2 million, resulting from the added
expenditures due to the acquisitions of Bit 3 and Micro Alliance, additional
salaried sales personnel as the Company transitions from an independent sales
force to a direct sales force, as well as additional administrative staffing
and promotional costs commensurate with the growth of the Company. For the
same reasons, for the three-month period ended December 31, 1997, SG&A
expense as a percentage of sales increased to 22.8% from 17.9% in the three
month period ended December 31, 1996.
RESEARCH AND DEVELOPMENT EXPENSE. For the three month period ended December
31, 1997, research and development expense (R&D) increased 116.1%, or $1.0
million, from $861,000 for the three month period ended December 31, 1996,
to $1.9 million, as a result of the added expenditures due to the
acquisitions of Bit 3 and Micro Alliance as well as increased investment in
new products in the company's other product areas. For the same reasons, for
the three month period ended December 31, 1997, R&D expense as a percentage
of sales increased to 10.3% from 7.0% in the three month period ended
December 31, 1996.
ACQUIRED IN-PROCESS RESEARCH AND DEVELOPMENT CHARGE. For the three month period
ended December 31, 1996, in connection with the acquisition of Bit 3 completed
on November 18, 1996, the Company recorded an $11.0 million earnings charge
based on an assessment by the Company, in conjunction with an independent
valuation firm, of purchased technology of Bit 3. The assessment determined
that $11.0 million of Bit 3's purchase price represented technology that does
not meet the accounting definitions of completed technology, and thus should be
charged to earnings under generally accepted accounting principles.
AMORTIZATION OF INTANGIBLE ASSETS. For the three-month period ended December
31, 1997, amortization of intangible assets increased 30.3%, or $104,000, from
$343,000 for the three-month period ended December 31, 1996, to $447,000. This
increase was the result of the amortization of goodwill associated with the
acquisitions of Bit 3 and Micro Alliance.
INTEREST INCOME. For the three month period ended December 31, 1997, interest
income increased 221.6%, or $195,000, from $88,000 for the three month period
ended December 31, 1996, to $283,000. This increase is due to earnings on
surplus cash from operations as well as earnings on cash received above the
Company's immediate requirements from the public offering consummated on
November 18, 1996.
INTEREST EXPENSE. For the three-month period ended December 31, 1997,
interest expense decreased 65.2%, or $90,000, from $138,000 for the
three-month period ended December 31, 1996, to $48,000. This decrease is
attributable to the reduction of debt incurred primarily to finance the
acquisition of GreenSpring Computers, Inc. in April 1995 and the elimination
of all bank debt effective November 22, 1996 by application of some of the
proceeds of the public offering. Of the $48,000 of interest expense for the
three-month period ended December 31, 1997, $46,000 represents imputed
interest associated with the remaining notes payable to the former owners of
Bit 3.
INCOME TAXES. For the three month period ended December 31, 1997 and the
three-month period ended December 31, 1996 income taxes represented an effective
income tax rate of 40.5% and 40%, respectively. The increase in the effective
income tax rate is due to an increase in the federal tax rate associated with an
increase in the Company's estimated taxable income.
Page 14
<PAGE>
SBS TECHNOLOGIES INC. AND SUBSIDIARIES
MANAGEMENT'S DISCUSSION AND ANALYSIS OF CONSOLIDATED
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
DECEMBER 31, 1997
(Continued)
- --------------------------------------------------------------------------------
EARNINGS PER SHARE. For the three month period ended December 31, 1997, net
income (loss) per common share was $0.41 compared to ($1.24) for the three
month period ended December 31, 1996. The loss for the three-month period
ended December 31, 1996 was due to the $11.0 million charge (net of tax) to
earnings associated with the acquisition of Bit 3. For the three-month
period ended December 31, 1996 net income per common share before the charge
to earnings was $0.40. For the three month period ended December 31, 1997,
net income (loss) per common share assuming dilution was $0.37 compared to
($1.24) for the three month period ended December 31, 1996. For the
three-month period ended December 31, 1996, net income per common share
assuming dilution before the charge to earnings was $0.32.
LIQUIDITY AND CAPITAL RESOURCES
The Company uses a combination of the sale of equity securities, internally
generated funds, and bank borrowings to finance its acquisitions, working
capital requirements, capital expenditures, and operations.
Cash totaled $18.1 million at December 31, 1997, a decrease of $3.6 from June
30, 1997. This decrease is a result of the acquisition of Micro Alliance for
$5.6 million, net of cash received, purchases of property and equipment of
$1.6 million and payments to the former owners of Bit 3, in conjunction with
the acquisition, of $1.0 million, offset by cash flow from operations of $3.1
million and $1.5 million received from the exercise of stock options and
warrants. The Company's growth during the six-month period ended December 31,
1997 caused the Company to increase accounts receivable and inventories.
Liabilities were in line with the current level of business. The exercise of
stock options related to Company stock option plans reduced the Company's tax
liability.
On April 26, 1996 and November 15, 1996, the Company amended its bank financing
agreement with NationsBank of Texas, N.A. ("NationsBank"), originally entered
into in April 1995, to provide the Company with a $6.8 million term loan and a
$2.5 million revolving line of credit. The term loan was completely paid down
in November 1996 with a portion of the proceeds from the public stock offering.
For the entire six-month period ended December 31, 1997, there were no
borrowings drawn on the revolving line of credit, which expired on October 30,
1997. Management is currently negotiating a renewal of this facility.
Management believes that financial resources, including its internally generated
funds, bank borrowing facilities currently being negotiated, and the remaining
net proceeds from the public offering, will be sufficient to finance the
Company's current operations and capital expenditures, excluding acquisitions,
for the next twelve months.
For the six-month period ended December 31, 1997, there was no material impact
from inflation or changing prices on the Company's sales or income from
operations.
YEAR 2000 ISSUE
The Company has determined that its internal reporting systems are Year 2000
compliant. However, final determination regarding the impact and materiality
of Year 2000 issues pertaining to the Company's products has not been
completed.
Page 15
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings - None
Item 2. Changes in Securities - None
Item 3. Defaults by the Company upon its Senior Securities - None
Item 4. Submission of Matters to a Vote of Security Holders
The following items were submitted to a vote and approved at the
Annual Meeting of Stockholders held on November 11, 1997, and
adjourned and reconvened on December 10, 1997:
<TABLE>
<CAPTION>
TABULATION OF VOTES
--------------------------------------------------------------------------------------------------
Against Abstentions and
Item Voted For or Broker Non-
Withheld Votes
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Election of Directors:
Scott A. Alexander 4,748,519 220,958 369
Warren W. Andrews 4,748,506 220,971 369
Christopher J. Amenson 4,747,383 222,094 369
William J. Becker 4,544,687 424,790 369
Lawrence A. Bennigson 4,548,233 421,244 369
Stephen D. Cooper 4,746,340 223,137 369
Alan F. White 4,743,023 226,454 369
--------------------------------------------------------------------------------------------------
Approval of an amendment to the Company's
Articles of Incorporation, as amended, to increase
the Company's authorized shares from 30,000,000 to
100,000,000 3,668,876 1,293,629 7,341
--------------------------------------------------------------------------------------------------
Ratification of the Company's 1998 Long Term
Equity Incentive Program 2,911,048 1,017,448 1,307,810
--------------------------------------------------------------------------------------------------
Ratification of selection of KPMG Peat Marwick
LLP as independent auditor for the Company for
fiscal year ending 1998 4,947,303 13,724 8,819
--------------------------------------------------------------------------------------------------
</TABLE>
Item 5. Other Information
On September 26, 1997, the Company was notified by First Security
Bank, N.A., Corporate Trust Services, which served as the Company's
stock transfer agent, that it was exiting the stock transfer
business and was giving notice of its resignation. Effective
January 1, 1998, the Company appointed Norwest Bank Minnesota,
N.A., Shareowner Services, 161 North Concord Exchange Street, South
St. Paul, Minnesota 55075-1139 to serve as the Company's stock
transfer agent.
Page 16
<PAGE>
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits (exhibit reference numbers refer to Item 601 of
Regulation S-K)
03.i (1) Articles of Incorporation, as amended.
03.ii (1) Bylaws, as amended.
10.aa (1) Purchase Agreement among the Company and Micro
Alliance, Inc., Jeffrey Huston, Edward Larson,
and Sherrin W. Larson, dated November 24, 1997.
10.ab (1) Third Amendment to that Certain Lease Agreement
dated May 25, 1995 by and between Firouz D.
Memarzadeh and Farah R. Memarzadeh, husband and
wife dba PARS Asset Management Company and SBS
Technologies, Inc., dated December 3, 1997.
10.ac (1) Office/Warehouse Lease between Lutheran
Brotherhood, (a Minnesota Corporation), and Bit 3
Computer Corporation, a wholly owned subsidiary
of SBS Technologies Inc., dated September 5, 1997.
10.ad (1) Amendment #1 to Lease between Lutheran Brotherhood,
a Minnesota Corporation, and Bit 3 Computer
Corporation, a wholly owned subsidiary of SBS
Technologies Inc., dated December 23, 1997.
27. Financial Data Schedule
(b) Reports on Form 8-K - On December 9, 1997, the Company filed Form
8-K, relating to the acquisition of Micro Alliance, Inc. On
December 10, 1997, the Company filed Form 8-K/A, to incorporate
Exhibit 23.1 Consent of KPMG Peat Marwick, LLP. On January 21,
1998, the Company filed Form 8-K/A Pro Forma Financial
Information relating to the acquisition of Micro Alliance.
(1) See Exhibit Index
Page 17
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
SBS TECHNOLOGIES, INC.
Date: February 17, 1998 /s/ Christopher J. Amenson
President and Chief Executive Officer
Date: February 17, 1998 /s/ James E. Dixon, Jr.
Vice President of Finance & Administration
Page 18
<PAGE>
SBS TECHNOLOGIES, INC. AND SUBSIDIARIES
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description Method of Filing
- -------------- -------------------------------------- -----------------------------
<S> <C> <C>
03.i Articles of Incorporation, as amended. Filed herewith electronically
03.ii (1) Bylaws, as amended. - -
10.aa (2) Purchase Agreement among the Company - -
and Micro Alliance, Inc., Jeffrey
Huston, Edward Larson, and Sherrin W.
Larson, dated November 24, 1997.
10.ab Third Amendment to that Certain Lease Filed herewith electronically
Agreement dated May 25, 1995 by and
between Firouz D. Memarzadeh and
Farah R. Memarzadeh, husband and wife
dba PARS Asset Management Company and
SBS Technologies, Inc., dated
December 3, 1997.
10.ac Office/Warehouse Lease between Filed herewith electronically
Lutheran Brotherhood, (a Minnesota
Corporation), and Bit 3 Computer
Corporation, a wholly owned
subsidiary of SBS Technologies Inc.,
dated September 5, 1997.
10.ad Amendment #1 to Lease between Filed herewith electronically
Lutheran Brotherhood, a Minnesota
Corporation, and Bit 3 Computer
Corporation, a wholly owned
subsidiary of SBS Technologies Inc.,
dated December 23, 1997.
27. Financial Data Schedule Filed herewith electronically
</TABLE>
(1) Incorporated by reference to Exhibit 3.ii, of the Registrant's Quarterly
Report on Form 10-Q for the quarter ended December 31, 1995.
(2) Incorporated by reference to Exhibit 10.aa of the Registrant's Report
on Form 8-K filed December 9, 1997.
Page 19
<PAGE>
STATE OF NEW MEXICO
[SEAL]
CERTIFICATE OF INCORPORATION
OF
SBE ENGINEERING, INC.
1332881
The State Corporation Commission certifies that duplicate originals of
the Articles of Incorporation attached hereto, duly signed and verified
pursuant to the provisions of the BUSINESS Corporation Act, have been received
by it and are found to conform to law.
Accordingly, by virtue of the authority vested in it by law, the State
Corporation Commission issues this Certificate of Incorporation and attaches
hereto a duplicate original of the Articles of Incorporation.
Dated: NOVEMBER 21, 1986
In Testimony Whereof, the State
Corporation Commission of the State of
[SEAL] New Mexico has caused this certificate
to be signed by its Chairman and the
Seal of said Commission to be affixed
at the City of Santa Fe.
/s/ Eric P. Serna
--------------------------------------
Chairman
/s/ Mercie Candlaw
--------------------------------------
For Director
<PAGE>
FILED IN OFFICE OF
STATE CORPORATION COMMISSION
OF NEW MEXICO
NOV 21 1986
CORPORATION AND
FRANCHISE TAX DEPTS.
ARTICLES OF INCORPORATION
-------------------------
The undersigned, acting as an Incorporator of a corporation under the
New Mexico Business Corporation Act, adopts the following Articles of
Incorporation for the corporation:
ARTICLE I
---------
Its corporate name will be SBE Engineering, Inc.
ARTICLE II
----------
It is organized to provide engineering and related services and for
every other purpose permitted by the Business Corporation Act.
ARTICLE III
-----------
It will have authority to issue one class of 500,000 shares of common
stock.
ARTICLE IV
----------
Its initial registered office address will be 10001 Coors Boulevard,
N.W., Albuquerque, New Mexico, 87114 and its initial registered agent at that
address will be A. Rolfe Black.
ARTICLE V
---------
The name and address of the sole Director who will constitute its initial
Board of Directors is:
A. Rolfe Black
10001 Coors Boulevard, N.W.
Albuquerque, New Mexico 87114
<PAGE>
ARTICLE VI
----------
Its shareholders will have no preemptive right to acquire authorized but
unissued shares, or securities convertible into such shares or carrying a
right to subscribe to or acquire such shares.
DATED: November 10, 1986
-----------------
/s/ Alison K. Schuler
--------------------------------------
ALISON K. SCHULER
707 Broadway Place, N.E.
Albuquerque, New Mexico 87125
ARTICLES OF INCORPORATION - Page 2
<PAGE>
FILED IN OFFICE OF
STATE CORPORATION COMMISSION
OF NEW MEXICO
NOV 11 1986
CORPORATION AND
FRANCHISE TAX DEPTS.
ACCEPTANCE OF APPOINTMENT
AS REGISTERED AGENT
-------------------------
The undersigned, being duly sworn, accepts appointment as Registered
Agent pursuant to the Business Corporation Act for SBE Engineering, Inc., a
New Mexico corporation.
By: /s/ A. Rolfe Black
----------------------------------
A. Rolfe Black
STATE OF NEW MEXICO )
) ss.
COUNTY OF BERNALILLO )
SUBSCRIBED AND SWORN TO before me on November 17, 1986.
/s/ Dorothy Pitsford
--------------------------------------
NOTARY PUBLIC
My Commission Expires:
3-30-87
- ----------------------
15,63/85
ARTICLES OF INCORPORATION - Page 3
<PAGE>
STATE OF NEW MEXICO
[SEAL]
OFFICE OF
THE STATE CORPORATION COMMISSION
CERTIFICATE OF AMENDMENT
OF
SBE ENGINEERING, INC.
3012275
The State Corporation Commission certifies that duplicate originals of
the Articles of Amendment attached hereto, duly signed and verified pursuant
to the provisions of the BUSINESS Corporation Act, have been received by it
and are found to conform to law.
Accordingly, by virtue of the authority vested in it by law, the State
Corporation Commission issues this Certificate of Amendment and attaches
hereto a duplicate original of the Articles of Amendment.
Dated: MARCH 10, 1989
In Testimony Whereof, the State Corporation
Commission of the State of New Mexico has
[SEAL] caused this certificate to be signed by its
Chairman and the Seal of said Commission to be
affixed at the City of Sante Fe
/s/ Eric P. Serna
------------------------------------------
Chairman
/s/ [ILLEGIBLE]
------------------------------------------
Director
<PAGE>
-and-
By /s/ Scott Alexander
--------------------------------------
Scott Alexander
Its Secretary
STATE OF NEW MEXICO )
) ss.
COUNTY OF BERNALILLO )
I certify that on February 6, 1989, ANDREW C. CRUCE AND SCOTT
ALEXANDER, being duly sworn, declared they are the corporate officers who
signed the foregoing document executed by the Corporation, and that the
statements contained therein are true.
/s/ [ILLEGIBLE]
------------------------------------
Notary Public
My commission expires:
3/13/89
- ----------------------
3044H
-2-
<PAGE>
FILED IN OFFICE OF
STATE CORPORATION COMMISSION
OF NEW MEXICO
MAR 10 1989
CORPORATION DEPT.
ARTICLES OF AMENDMENT
---------------------
SBE ENGINEERING, INC. adopts the following Articles of Amendment under
the New Mexico Business Corporation Act:
Article One
-----------
The Shareholders adopted the following amendment to the Articles of
Incorporation on September 30, 1988:
RESOLVED, that the Articles of Incorporation be amended by deleting
ARTICLE III and substituting the following:
ARTICLE III
-----------
It will have authority to issue one
class of 5,000,000 shares of common
stock.
Article Two
-----------
The number of shares issued at the time of adoption was 100,000, all of
which were entitled to vote on the amendment. 100,000 voted for the
amendment and 0 voted against it.
DATED: 9/30/88, 1988.
SBE ENGINEERING, INC.
By /s/ Andrew C. Cruce
---------------------------
Andrew C. Cruce
Its President
<PAGE>
STATE OF NEW MEXICO
[SEAL]
OFFICE OF
THE STATE CORPORATION COMMISSION
CERTIFICATE OF AMENDMENT
OF
SBS ENGINEERING, INC.
3021615
The State Corporation Commission certifies that duplicate originals of
the Articles of Amendment attached hereto, duly signed and verified pursuant
to the provisions of the BUSINESS Corporation Act, have been received by it
and are found to conform to law.
Accordingly, by virtue of the authority vested in it by law, the State
Corporation Commission issues this Certificate of Amendment and attaches
hereto a duplicate original of the Articles of Amendment.
Dated: OCTOBER 17, 1989
In Testimony Whereof, the State Corporation
Commission of the State of New Mexico has
[SEAL] caused this certificate to be signed by its
Chairman and the Seal of said Commission to be
affixed at the City of Santa Fe
/s/ Eric P. Serna
--------------------------------------------
Chairman
[ILLEGIBLE]
--------------------------------------------
Director
<PAGE>
FILED IN OFFICE OF
STATE CORPORATION COMMISSION
OF NEW MEXICO
OCT 17 1989
CORPORATION DEPT.
ARTICLES OF AMENDMENT
---------------------
SBE ENGINEERING, INC. adopts the following Articles of Amendment
pursuant to the New Mexico Corporation Act:
ARTICLE I
---------
The shareholders adopted the following Amendment to the Articles of
Incorporation on September 30, 1989:
Article I of the Corporation's Articles of Incorporation is amended to
change the name of the Corporation to "SBS ENGINEERING, INC."
ARTICLE II
----------
A new Article VII is added as follows:
A director shall not be personally liable to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director
unless:
(1) the director has breached or failed to perform the duties of the
director's office in compliance with the New Mexico Business
Corporation Act, as amended from time to time; and
(2) the breach or failure to perform constitutes:
(a) negligence, willful misconduct or recklessness in the case of a
director who has either an ownership interest in the Corporation
or receives in the capacity as a director or as an employee of
the Corporation compensation of more than two thousand dollars
($2,000) from the Corporation in any calendar year; or
(b) willful misconduct or recklessness in the case of a director
who does not have an ownership interest in the Corporation and
does not receive in the capacity as director or as an employee
of the Corporation compensation of more than two thousand
dollars ($2,000) from the Corporation in any calendar year.
<PAGE>
ARTICLE III
-----------
1,000,000 shares of the Corporation's Common Stock were issued and
outstanding and entitled to vote on the Amendment, when this Amendment was
adopted. All shares voted for the Amendment, no shares voted against the
Amendment.
DATED: September 30, 1989.
SBE ENGINEERING, INC.
/s/ Andrew C. Cruce
-------------------------------
ANDREW C. CRUCE, President
/s/ Scott Alexander
-------------------------------
SCOTT ALEXANDER, Secretary
STATE OF NEW MEXICO )
) ss.
COUNTY OF BERNALILLO )
Personally appeared before me ANDREW C. CRUCE, President, this 30 day of
SEPTEMBER, 1989, who, being first duly sworn, declared that he is the person
who signed the foregoing document as President and that the statements
therein contained are true.
/s/ Dorothy Pitsford
----------------------------------
NOTARY PUBLIC
My Commission Expires:
3-30-91
- --------------------- [SEAL]
STATE OF NEW MEXICO )
) ss.
COUNTY OF BERNALILLO )
Personally appeared before me SCOTT ALEXANDER, Secretary, this 30 day of
SEPTEMBER, 1989, who, being first duly sworn, declared that he is the person
who signed the foregoing document as Secretary and that the statements
therein contained are true.
/s/ Dorothy Pitsford
---------------------------------
NOTARY PUBLIC
My Commission Expires:
3-30-91
- --------------------- [SEAL]
<PAGE>
STATE OF NEW MEXICO
[SEAL]
STATE CORPORATION COMMISSION OF NEW MEXICO
OFFICE OF
THE STATE CORPORATION COMMISSION
CERTIFICATE OF AMENDMENT
OF
SBS ENGINEERING, INC.
3051083
The State Corporation Commission certifies that duplicate originals of
the Articles of Amendment attached hereto, duly signed and verified pursuant
to the provisions of the BUSINESS Corporation Act, have been received by it
and are found to conform to law.
Accordingly, by virtue of the authority vested in it by law, the State
Corporation Commission issues this Certificate of Amendment and attaches
hereto a duplicate original of the Articles of Amendment.
Dated: OCTOBER 10, 1991
In Testimony Whereof, the State Corporation
Commission of the State of New Mexico has
caused this certificate to be signed by its
[SEAL] Chairman and the Seal of said Commission to be
affixed at the City of Santa Fe
/s/ [ILLEGIBLE]
----------------------------------------------
Chairman
/s/ [ILLEGIBLE]
----------------------------------------------
Director
<PAGE>
FILED IN OFFICE OF
STATE CORPORATION COMMISSION
OF NEW MEXICO
OCT 10 1991
CORPORATION DEPT.
ARTICLES OF AMENDMENT
---------------------
SBS Engineering, Inc., adopts the following Articles of Amendment
pursuant to the New Mexico Business Corporation Act.
ARTICLE ONE
-----------
The Shareholders of the Corporation adopted the following amendment to
Article III of the Articles of Incorporation on September 20, 1991:
"The Corporation will split its common stock by 1.828467 to 1 and
increase the authorized common stock to 30,000,000 shares."
ARTICLE TWO
-----------
The Shareholders of the Corporation adopted the following amendment to
the Articles of Incorporation on September 20, 1991:
A new Article VIII is added as follows:
"An affidavit signed by each Director that he or she consents to be
a Director of the Corporation is on file at the office of the Corporation."
ARTICLE THREE
-------------
1,035,500 shares were issued and outstanding and entitled to vote on
the amendment. 782,250 shares voted for the amendment; No shares voted
against the amendment.
Dated: September 20, 1991
SBS Engineering, Inc.
By: /s/ Andrew C. Cruce
------------------------------
Andrew C. Cruce, President
By: /s/ Scott A. Alexander
------------------------------
Scott A. Alexander, Secretary
ARTICLES OF AMENDMENT - PAGE 1
AMENDMENT.ART
<PAGE>
STATE OF NEW MEXICO )
----------- ) ss.
COUNTY OF BERNALILLO )
-----------
Personally appeared before me Andrew C. Cruce, President, this 7th day
of October, 1991, who, being first sworn, declared that he is the person who
signed the foregoing document as President and that the statements therein
contained are true.
/s/ Dorothy Pitsford
----------------------------------
NOTARY PUBLIC
My Commission Expires:
3-30-95
- ----------------------
STATE OF NEW MEXICO )
----------- ) ss.
COUNTY OF BERNALILLO )
-----------
Personally appeared before me Scott A. Alexander, Secretary, this 7th day
of October, 1991 who, being first sworn, declared that he is the person who
signed the foregoing document as President and that the statements therein
contained are true.
/s/ Dorothy Pitsford
----------------------------------
NOTARY PUBLIC
My Commission Expires:
3-30-95
- ----------------------
ARTICLES OF AMENDMENT - PAGE 2
AMENDMENT.ART
<PAGE>
STATE OF NEW MEXICO
[SEAL]
OFFICE OF
THE STATE CORPORATION COMMISSION
CERTIFICATE OF AMENDMENT
OF
SBS TECHNOLOGIES, INC.
3111705
The State Corporation Commission certifies that duplicate originals of
the Articles of Amendment attached hereto, duly signed and verified pursuant
to the provisions of the
BUSINESS CORPORATION ACT
(53-11-1 to 53-18-12 NMSA 1978)
have been received by it and are found to conform to law.
Accordingly, by virtue of the authority vested in it by law, the State
Corporation Commission issues this Certificate of Amendment and attaches
hereto a duplicate original of the Articles of Amendment.
Dated: JUNE 28, 1995
IN TESTIMONY WHEREOF, THE STATE
CORPORATION COMMISSION OF THE STATE
OF NEW MEXICO HAS CAUSED THIS
[SEAL] CERTIFICATE TO BE SIGNED BY ITS
CHAIRMAN AND THE BOARD OF SAID
COMMISSION TO BE AFFIXED AT THE CITY
OF SANTA FE
[ILLEGIBLE]
---------------------------------------
CHAIRMAN
[ILLEGIBLE]
---------------------------------------
DIRECTOR
<PAGE>
FILED IN OFFICE OF
STATE CORPORATION COMMISSION
OF NEW MEXICO
[ILLEGIBLE DATE]
CORPORATION DEPARTMENT
ARTICLES OF AMENDMENT
SBS ENGINEERING, INC.
---------------------
Pursuant to the New Mexico Business Corporation Act, the Shareholders
of SBS ENGINEERING, INC. adopt the following Amendment to its Restated
Articles of Incorporation:
SECTION 1
The current name of the corporation is SBS Engineering, Inc.
SECTION 2
The following amendment to the Articles of Incorporation was adopted by
the shareholders of the corporation on December 15, 1994, in the manner
prescribed by the New Mexico Business Corporation Act:
Article I of the Articles of Incorporation of SBS Engineering, Inc. is
hereby amended in its entirety to read as follows:
ARTICLE I
The name of the corporation is SBS Technologies, Inc.
SECTION 3
The number of shares issued at the time of adoption was 2,818,657, all
of which were entitled to vote on the amendment. 1,588,928 shares voted for
the amendment, and 0 voted against it.
DATED: JUNE 27, 1995
--------------
SBS ENGINEERING, INC.
By /s/ Christopher J. Amenson
---------------------------
Christopher J. Amenson
Its President
and
<PAGE>
By /s/ Scott A. Alexander
---------------------------
Scott A. Alexander
Its Secretary
I verify that I am one of the corporate officers who signed the
foregoing document executed by the corporation, and that the statements
contained therein are true and correct to the best of my knowledge.
/s/ Christopher J. Amenson
---------------------------
Christopher J. Amenson
STATE OF NEW MEXICO )
) ss.
COUNTRY OF BERNALILLO )
I certify that on 6/27, 1995, Christopher Amenson, being duly sworn,
declared he is one of the corporate officers who signed the foregoing
document executed by the Corporation, and that the statements contained
therein are true.
/s/ Elizabeth Cantrell
---------------------------
Notary Public
My commission expires:
6/2/98
- -------------------------
<PAGE>
FILED IN OFFICE OF
STATE CORPORATION COMMISSION
OF NEW MEXICO
[ILLEGIBLE DATE]
CORPORATION DEPT.
ARTICLES OF AMENDMENT
SBS ENGINEERING, INC.
---------------------
Pursuant to the New Mexico Business Corporation Act, the Shareholders
of SBS ENGINEERING, INC. adopt the following Amendment to its Restated
Articles of Incorporation:
SECTION 1
The current name of the corporation is SBS Engineering, Inc.
SECTION 2
The following amendment to the Articles of Incorporation was adopted by
the shareholders of the corporation on December 15, 1994, in the manner
prescribed by the New Mexico Business Corporation Act:
Article I of the Articles of Incorporation of SBS Engineering, Inc. is
hereby amended in its entirety to read as follows:
ARTICLE I
The name of the corporation is SBS Technologies, Inc.
SECTION 3
The number of shares issued at the time of adoption was 2,818,657, all
of which were entitled to vote on the amendment. 1,588,928 shares voted for
the amendment, and 0 voted against it.
DATED: JUNE 27, 1995
-------------------
SBS ENGINEERING, INC.
By /s/ Christopher J. Amenson
-----------------------------
Christopher J. Amenson
Its President
and
<PAGE>
By /s/ Scott A. Alexander
-----------------------------
Scott A. Alexander
Its Secretary
I verify that I am one of the corporate officers who signed the
foregoing document executed by the corporation, and that the statements
contained therein are true and correct to the best of my knowledge.
/s/ Christopher J. Amenson
------------------------------
Christopher J. Amenson
STATE OF NEW MEXICO )
) ss.
COUNTY OF BERNALILLO )
I certify that on 6/27, 1995, Christopher Amenson, being duly
sworn, declared he is one of the corporate officers who signed the foregoing
document executed by the Corporation, and that the statements contained
therein are true.
/s/ Elizabeth Cantrell
-------------------------------
Notary Public
My commission expires:
6/2/98
- --------------------
<PAGE>
STATE OF NEW MEXICO
[SEAL]
OFFICE OF
THE STATE CORPORATION COMMISSION
CERTIFICATE OF AMENDMENT
OF
SBS TECHNOLOGIES, INC.
3157831
The State Corporation Commission certifies that duplicate originals of
the Articles of Amendment attached hereto, duly signed and verified pursuant
to the provisions of the
BUSINESS CORPORATION ACT
(53-11-1 to 53-18-12 NMSA 1978)
have been received by it and are found to conform to law.
Accordingly, by virtue of the authority vested in it by law, the State
Corporation Commission issues this Certificate of Amendment and attaches
hereto a duplicate original of the Articles of Amendment.
Dated: FEBRUARY 11, 1998
IN TESTIMONY WHEREOF, THE STATE
CORPORATION COMMISSION OF THE STATE
OF NEW MEXICO HAS CAUSED THIS
[SEAL] CERTIFICATE TO BE SIGNED BY ITS
CHAIRMAN AND THE BOARD OF SAID
COMMISSION TO BE AFFIXED AT THE CITY
OF SANTA FE
[ILLEGIBLE]
---------------------------------------
CHAIRMAN
[ILLEGIBLE]
---------------------------------------
DIRECTOR
<PAGE>
FILED IN OFFICE OF
NM STATE CORPORATION COMMISSION
FEB 11 1998
CORPORATION DEPARTMENT
ARTICLES OF AMENDMENT
---------------------
SBS Technologies, Inc. adopts the following Articles of Amendment
pursuant to the New Mexico Corporation Act:
ARTICLE I
---------
The Shareholders approved the following Amendment the Articles of
Incorporation of SBS Technologies, Inc. on November 11, 1997:
Article III of the original Articles of Incorporated,
as previously amended, is amended to increase the number
of shares which the corporation is authorized to issue
from 30,000,000 to 100,000,000 shares of Common Stock.
ARTICLE II
----------
5,548,872 shares of the Corporation's Common Stock were issued and
outstanding and entitled to vote on the Amendment, when this Amendment was
adopted. 3,668,876 shares voted for the Amendment, 1,293,629 shares voted
against the Amendment.
DATED: February 6, 1998.
SBS TECHNOLOGIES, INC.
/s/ James E. Dixon
-------------------------------------
James E. Dixon, Jr. Vice President
[SEAL]
/s/ Scott A. Alexander
-------------------------------------
Scott A. Alexander, Secretary
[SEAL]
<PAGE>
STATE OF NEW MEXICO )
) ss.
COUNTY OF BERNALILLO )
Personally appeared before me James E. Dixon, Jr., Vice President,
this 6th day of February, 1998, who, being first duly sworn, declared that he
is the person who signed the foregoing document as Vice President and that the
statements therein contained are true.
/s/ Agnes S. Mounkes
-------------------------------------
NOTARY PUBLIC
My Commission Expires:
April 3, 2001
- -----------------------
[SEAL]
STATE OF NEW MEXICO )
) ss.
COUNTY OF BERNALILLO )
Personally appeared before me Scott A. Alexander, Secretary, this 6th
day of February, 1998, who, being first duly sworn, declared that he is the
person who signed the foregoing document as Secretary and that the statements
therein contained are true.
/s/ Agnes S. Mounkes
-------------------------------------
NOTARY PUBLIC
My Commission Expires:
April 3, 2001
- -----------------------
[SEAL]
<PAGE>
THIRD AMENDMENT TO THAT CERTAIN LEASE AGREEMENT
DATED MAY 25, 1995
THIS THIRD AMENDMENT ("Amendment") to that certain Lease Agreement dated
May 25, 1995 by and between Firouz D. Memarzadeh and Farah R. Memarzadeh,
husband and wife dba PARS Asset Management Company ("Landlord") and SBS
Technologies,Inc. ("Tenant") is dated 12/3/97, 1997 for references purposes
only.
WITNESSETH:
WHEREAS, PARS Asset Management Company and SBS Engineering, Inc. entered
into a Lease Agreement dated May 25, 1995 and modified by an Amendment to Lease
Agreement dated September 21, 1996, and a Second Amendment to Lease Agreement
dated March 26, 1997 (collectively referred to as "Agreement").
WHEREAS, AFC-5 LLC, a New Mexico limited liability company ("Landlord") is
the current owner of American Financial Center-5 ("Building") and has been
assigned all rights, title and interest in the Agreement;
WHEREAS, Tenant desires to lease additional space in the Building.
NOW, THEREFORE, for valuable consideration in the receipt and adequacy of
which are expressly acknowledged, Landlord and Tenant agree as follows:
1. Tenant shall lease the 4th floor of the Building ("4th Floor") which
consists of approximately 15,741 rentable square feet ("RSF").
2. The commencement term of the Amendment shall be January 1, 1998 and
shall terminate June 30, 2000.
3. Landlord shall provide to Tenant $3.00/RSF ($3 x 15,741 = $47,223)
allowance ("Allowance"). Tenant has submitted, and Landlord has
approved, a drawing showing the build out (see Exhibit "A"). Tenant,
at Tenant's sole cost and expense, has contracted with B.R. Gordon
Construction to do the build out and with DuPont Flooring Systems for
the floor covering for the 4th Floor. Tenant has verified that no
special permits are required for the build out. The Allowance shall be
paid to Tenant upon occupancy of the 4th Floor. Tenant may use the
Allowance at Tenant's sole and absolute discretion.
Page 1 of 2
<PAGE>
4. The rent schedule for the 4th Floor and Tenant's existing premises
(6th Floor) is as follows:
- ---------------------------------------------------------------
PERIOD 4TH FLOOR 6TH FLOOR TOTAL MONTHLY
MONTHLY MONTHLY RENT
- ---------------------------------------------------------------
1/1/98 - 12/31/98 $23,217.98 $21,447.11 $44,665.09
- ---------------------------------------------------------------
1/1/99 - 12/31/99 $23,873.85 $21,447.11 $45,320.96
- ---------------------------------------------------------------
1/1/00 - 6/30/00 $24,529.73 $21,447.11 $45,976.84
- ---------------------------------------------------------------
5. Tenant, at it's sole cost and expense, and subject to approvals from
appropriate governing authorities, may place a sign on the Building at
a location approved by Landlord. Landlord has approved the size and
quality of the signage (see Exhibit "B").
6. Tenant shall not pay any Project Operating Cost Pass Thrus for the
term of this Amendment for the 4th Floor. However, among other things,
the obligations of Tenant regarding Project Operating Cost Pass Thrus
for the 6th floor remain in full force and effect pursuant to the
Agreement.
7. Landlord is not responsible for payment of any commission in
connection with this Amendment.
8. Upon full execution of this Amendment, the Second Amendment to Lease
dated March 26, 1997 for the existing Expansion Space (Suite 300)
shall be terminated. Tenant shall have no further obligation under the
Second Amendment.
9. Except as set forth in this Amendment, all provisions of the Agreement
shall remain unchanged and in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment on the 3rd day of
December, 1997.
TENANT LANDLORD
SBS TECHNOLOGIES, INC. AFC-5, LLC
By: /s/ J. E. Dixon By: /s/ Firouz D. Memarzadeh
----------------------------- --------------------------
Firouz D. Memarzadeh
Its: V.P. Finance & Administration Its: Manager
-----------------------------
Page 2 of 2
<PAGE>
RIDER NO. 1
TO THIRD AMENDMENT TO THAT CERTAIN LEASE
AGREEMENT DATED MAY 25, 1995
This Rider No. 1 is attached to and becomes a part of the Third Amendment
to that Certain Lease Agreement dated May 25, 1995 by and between AFC-5, LLC
("Landlord") and SBS Engineering, Inc. ("Tenant").
WHEREAS, Tenant assigned all of its rights, titles and interest to that
certain Lease dated May 25, 1995 ("Lease") to SBS Technologies, Inc. by an
Assignment, Assumption and Acknowledgment of Lease on June 30, 1995.
NOW, THEREFORE, in consideration of the material considerations and
covenants contained herein, the parties agree as follows:
1. By Assignment, SBS Technologies, Inc. holds all rights, titles, and
interest in the Lease and shall be obligated to all the terms and
conditions of the Lease, Amendment to Lease Agreement dated September
21, 1996, Second Amendment dated March 26, 1997, Third Amendment dated
December 3, 1997, and any subsequent amendments to the Lease.
2. Except as set forth in this Rider No. 1, all provisions of the Third
Amendment to that Certain Lease Agreement dated May 25, 1995 shall
remain unchanged and in full force and effect.
ACKNOWLEDGED AND AGREED:
TENANT: SBS TECHNOLOGIES, INC. LANDLORD: AFC-5, LLC
By: /s/ J. E. Dixon By: /s/ Firouz D. Memarzadeh 12/10/97
------------------------------ ----------------------------------
Name: J. E. Dixon Firouz D. Memarzadeh
------------------------------
Its: V.P. Finance & Administration Its: Manager
-------------------------------
<PAGE>
OFFICE/WAREHOUSE LEASE
THIS INDENTURE of lease, entered into this 5TH day of SEPTEMBER, 1997, by and
between LUTHERAN BROTHERHOOD, (A MINNESOTA CORPORATION) hereinafter referred to
as "Lessor", and BIT 3 COMPUTER CORPORATION, A WHOLLY OWNED SUBSIDIARY OF SBS
TECHNOLOGIES. INC. (A NEW MEXICO CORPORATION) hereinafter referred to as
"Lessee".
DEFINITIONS:
"Premises" - That certain real property commonly described as OAKVIEW
BUSINESS CENTER, LOCATED AT 1284 CORPORATE CENTER DRIVE IN THE CITY OF EAGAN,
COUNTY OF DAKOTA AND STATE OF MINNESOTA containing approximately 85,600
square feet and legally described on Exhibit "A" attached hereto and made a
part hereof, including all buildings and site improvements located thereon.
"Building" - Those certain office/warehouse buildings containing approximately
157,428 square feet commonly described as OAKVIEW BUSINESS CENTER I LOCATED AT
1284 CORPORATE CENTER DRIVE AND OAKVIEW BUSINESS CENTER II LOCATED AT 1325
EAGANDALE COURT, BOTH WITHIN THE CITY OF EAGAN, MINNESOTA.
"Demised Premises" - That certain portion of the Premises located at 1284
CORPORATE CENTER DRIVE and designated as Bays 200 through , consisting of
approximately 39,597 square feet (14,813 square feet office space and 24,784
square feet of warehouse space), as measured from the outside walls of the
Demised Premises to the center of the partition wall, as shown on the floor
plan attached hereto as Exhibit "B" and made a part hereof. The Demised
Premises include a non-exclusive easement for access to common areas, as
hereinafter defined, and all licenses and easements appurtenant to the
Demised Premises.
"Common Areas" - The term "common area" means the entire areas to be used for
the non-exclusive use by Lessee and other lessees in the Building, including,
but not limited to, corridors, lavatories, driveways, truck docks, parking lots
and landscaped areas. Subject to reasonable rules and regulations promulgated by
Lessor, the common areas are hereby made available to Lessee and its employees,
agents, customers, and invitees for reasonable use in common with other lessees,
their employees, agents, customers and invitees.
WITNESSETH:
TERM:
1. For and in consideration of the rents, additional rents, terms, provisions
and covenants herein contained, Lessor hereby lets, leases and demises to Lessee
the Demised Premises for the term of 60 months commencing on the FIRST day of
December, 1997 (sometimes called "the Commencement Date"), subject to delays in
delivery of the Demised Premises on account of changes made by Lessee to the
Plans as referenced in Exhibit D of the Lease, and expiring the LAST day of
NOVEMBER, 2002 (sometimes called "Expiration Date"), unless sooner terminated as
hereinafter provided. To the extent the Commencement Date is delayed due to
changes to the plans shown on Exhibit D made by the Lessee, the Lessee agrees to
extend the Expiration Date of the Lease by the same amount of days that the
Commencement Date was delayed, but in any event the Expiration Date shall occur
on the last day of a month.
BASE RENT:
2. Lessor reserves and Lessee shall pay Lessor, a total rental of ONE
MILLION ONE HUNDRED SIXTY-SEVEN THOUSAND FOUR HUNDRED NINETY-TWO AND 00/100
Dollars ($1,167,492.00), payable in advance, in equal monthly installments of
(SEE ARTICLE 42) Dollars ($ SEE ARTICLE 42), commencing on the Commencement
Date and continuing on the first day of each and every month thereafter for
the next succeeding months during the balance of the term (sometimes called
"Base Rent"). In the event the Commencement Date falls on a date other than
the first of a month the rental for that month shall be prorated and adjusted
accordingly.
ADDITIONAL RENT:
3. Lessee shall pay to Lessor throughout the term of this Lease
the following:
a. Lessee shall pay a sum equal to FORTY-SIX AND 26/100 percent (46.26%)
of the Real Estate taxes. The term "Real Estate Taxes" shall mean all real
estate taxes, all assessments and any taxes in lieu thereof which may be levied
upon or assessed against the Premises of which the Demised Premises are a part.
Lessee, in addition to all other payments to Lessor by Lessee required hereunder
shall pay to Lessor, in each year during the term of this Lease and any
extension or renewal thereof, Lessee's proportionate share of such real estate
taxes and assessments paid in the first instance by Lessor.
Any tax year commencing during any lease year shall be deemed to correspond
to such lease year. In the event the taxing authorities include in such real
estate taxes and assessments the value of any improvements made by Lessee, or of
machinery, equipment, fixtures, inventory or other personal property or assets
of lessee, then Lessee shall pay all the taxes attributable to such items in
addition to its proportionate share of said aforementioned real estate taxes and
assessments. A photostatic copy of the tax statement submitted by Lessor to
Lessee shall be sufficient evidence of the amount of taxes and assessments
assessed or levied against the Premises of which the Demised Premises are a
part.
b. A sum equal to TWENTY-FIVE AND 15/100 percent (25.15%) of the annual
aggregate operating expenses incurred by Lessor in the operation, maintenance
and repair of the Building. The term "Operating Expenses" shall include but not
be limited to maintenance, repair, replacement and care of all common area
lighting, common area plumbing, parking and landscaped areas, signs, snow
removal, non-structural repair and maintenance of the exterior of the Building,
insurance premiums, management fee, wages and fringe benefits of personnel
employed for such work, costs of equipment purchased and used for such purposes,
and the cost or portion thereof properly allocable to the Building (amortized
over such reasonable period as Lessor shall determine together with the interest
at the rate of TEN percent (10%) per annum on the unamortized balance) of any
capital improvements made to the Building by Lessor after the Base Year which
result in a reduction of Operating Expenses or made to the Building by Lessor
after the date of this Lease that are required under any governmental law or
regulation that was not applicable to the Building at the time it was
constructed. To the best of Lessor's knowledge, the Demised Premises and
Building comply with all applicable governmental laws (excluding ADA, the
Americans with Disabilities Act of 1990) and further, to the best of Lessor's
knowledge, the structural and exterior components of the Building are in
reasonably good condition. The following are expressly excluded from the term
"Operating Expenses":
1) Any charge for depreciation of the Building or Demised Premises or any
equipment located thereon, and any interest or other financing charge.
2) All costs relating to activities for the solicitation and execution of
leases of space in the Building.
3) All costs for which Lessee or any other tenant of the Building is
being charged other than pursuant to the operating expenses clause set
forth in this Lease or comparable operating expenses clauses.
4) The cost of any repair made by Lessor because of the total or partial
destruction of the Building or Demised Premises or the condemnation of
a portion of the Building or Demised Premises.
5) The cost of any items for which Lessor is reimbursed by insurance or
otherwise compensated by parties other than by tenants of the Building
pursuant to an operating expense clause.
6) Any operating expense representing an amount paid to a related
corporation, entity or person which is in excess of the amount would
be paid in the absence of such relationship.
7) The cost of alterations of space in the Building leased to other
tenants.
8) Any projects Lessor undertakes to make Common Areas of the building
comply with ADA.
<PAGE>
c. The payment of the sums set forth in this Article 3 shall be in
addition to the Base Rent payable pursuant to Article 2 of this Lease. All sums
due hereunder shall be due and payable within thirty (30) days of delivery of
written certification by Lessor setting forth the computation of the amount due
from Lessee. In the event the lease term shall begin or expire at any time
during the calendar year, the Lessee shall be responsible for his pro-rata share
of Additional Rent under subdivisions a. and b. during the Lease and/or
occupancy time.
Prior to commencement of this Lease and prior to the commencement of each
calendar year thereafter commencing during the term of this Lease or any renewal
or extension thereof, Lessor may estimate for each calendar year (i) the total
amount of Real Estate Taxes; (ii) the total amount of Operating Expenses; (iii)
Lessee's share of Real Estate Taxes for such calendar year; (iv) Lessee's share
of Operating Expenses for such calendar year; and (v) the computation of the
annual and monthly rental payable during such calendar year as a result of
increases or decreases in Lessee's share of Real Estate Taxes, and Operating
Expenses. Said estimates will be in writing and will be delivered or mailed to
Lessee.
The amount of Lessee's share of Real Estate Taxes, and Operating Expenses
for each calendar year, so estimated, shall be payable as Additional Rent, in
equal monthly installments, in advance, on the first day of each month during
such calendar year at the option of Lessor. In the event that such estimate is
delivered to Lessee before the first day of January of such calendar year, said
amount, so estimated, shall be payable as additional rent in equal monthly
installments, in advance on the first day of each month during such calendar
year. In the event that such estimate is delivered to Lessee after the first day
of January of such calendar year, said amount, so estimated, shall be payable as
additional rent in equal monthly installments, in advance, on the first day of
each month over the balance of such calendar year, with the number of
installments being equal to the number of full calendar months remaining in such
calendar year.
Upon completion of each calendar year during the term of this Lease or any
renewal or extension thereof, Lessor shall cause its accountants to determine
the actual amount of the Real Estate Taxes, and Operating Expenses payable in
such calendar year and Lessee's share thereof and deliver a written
certification of the amounts thereof to Lessee. If Lessee has underpaid its
share of Real Estate Taxes, or Operating Expenses for such calendar year, Lessee
shall pay the balance of its share of same within ten (10) days after the
receipt of such statement. If Lessee has overpaid its share of Real Estate
Taxes, or Operating Expenses for such calendar year, Lessor shall either (i)
refund such excess, or (ii) credit such excess against the most current monthly
installment or installments due Lessor for its estimate of Lessee's share of
Real Estate Taxes, and Operating Expenses for the next following calendar year.
A prorata adjustment shall be made for a fractional calendar year occurring
during the term of this Lease or any renewal or extension thereof based upon the
number of days of the term of the Lease during said calendar year as compared to
three hundred sixty-five (365) days and all additional sums payable by Lessee
or credits due Lessee as a result of the provisions of this Article 3 shall be
adjusted accordingly.
COVENANT TO PAY RENT:
4. The covenants of Lessee to pay the Base Rent and the Additional Rent
are each independent of any other covenant, condition, provision or agreement
contained in this Lease. All rents are payable to Lessor at:
WELSH COMPANIES, INC.
CM 9660, ST. PAUL, MINNESOTA 55170-9660
UTILITIES:
5. Lessor shall provide mains and conduits to supply water, gas,
electricity and sanitary sewage to the Premises. Lessee shall pay, when due,
all charges for sewer usage or rental, garbage, disposal, refuse removal,
water, electricity, gas, fuel oil, L.P. gas, telephone and/or other utility
services or energy source furnished to the Demised Premises during the term
of this Lease, or any renewal or extension thereof. If Lessor elects to
furnish any of the foregoing utility services or other services furnished or
caused to be furnished to Lessee, then the rate charged by Lessor shall not
exceed the rate Lessee would be required to pay to a utility company or
service company furnishing any of the foregoing utilities or services. The
charges thereof shall be deemed additional rent in accordance with Article 3.
CARE AND REPAIR OF DEMISED PREMISES:
6. Lessee shall, at all times throughout the term of this Lease, including
renewals and extensions, and at its sole expense, keep and maintain the
Demised Premises in a clean, safe, sanitary and reasonably good condition and
in compliance with all applicable laws, codes, ordinances, rules and
regulations. Lessee's obligations hereunder shall include but not be limited
to the maintenance, repair and replacement, if necessary, of heating, air
conditioning fixtures*, equipment, and systems, all lighting and plumbing
fixtures and equipment, fixtures, motors and machinery, all interior walls,
partitions, doors and windows, including the regular painting thereof, all
exterior entrances, windows, doors and docks and the replacement of all
broken glass. When used in this provision, the term "repairs" shall include
replacements or renewals when necessary, and all such repairs made by the
Lessee shall be equal in quality and class to the original work. The Lessee
shall keep and maintain all portions of the Demised Premises and the sidewalk
and areas adjoining the same in a clean and orderly condition.
If Lessee fails, refuses or neglects to maintain or repair the Demised
Premises as required in this Lease after notice shall have been given Lessee, in
accordance with Article 33 of this Lease, Lessor may make such repairs without
liability to Lessee for any loss or damage that may accrue to Lessee's
merchandise, fixtures or other property or to Lessee's business by reason
thereof, and upon completion thereof, Lessee shall pay to Lessor all costs plus
15% for overhead incurred by Lessor in making such repairs upon presentation to
Lessee of bill therefor.
Lessor shall repair, at its expense, the structural portions of the
Building, provided however where structural repairs are required to be made by
reason of the acts of Lessee, the costs thereof shall be borne by Lessee and
payable by Lessee to Lessor upon demand.
The Lessor shall be responsible for all outside maintenance of the
Demised Premises, including grounds and parking areas. All such maintenance
which is the responsibility of the Lessor shall be provided as reasonably
necessary to the comfortable use and occupancy of Demised Premises during
business hours, except Saturdays, Sundays and holidays, upon the condition
that the Lessor shall not be liable for damages for failure to do so due to
causes beyond its control.
If Lessor fails, refuses or neglects to perform outside maintenance of the
Demised Premises as required in this Lease after notice shall have been given to
Lessor in accordance with Article 33 of this Lease, Lessee may perform such
maintenance without liability to Lessor for any loss or damage that may accrue
by reason thereof (excepting gross negligence and willful misconduct of Lessee),
and upon completion thereof, Lessor shall pay to Lessee all reasonable costs
plus 10% for overhead incurred by Lessee in performing such maintenance upon
presentation to Lessor of a bill therefor.
* The Lessor will be responsible for a semi-annual inspection and
servicing of the heating, ventilating and air conditioning (HVAC) components
as part of the Operating Expenses for the Building. The Lessee will be
responsible for repairs and replacements outside of Lessor's semi-annual
preventative maintenance. Lessor will also service and certify the existing
HVAC components are in good working condition as of the Commencement of the
Lease. The Lessor will be responsible for any repairs or replacements of any
faulty HVAC components through June 30, 1998.
SIGNS:
7. Any sign, lettering, picture, notice or advertisement installed on or
in any part of the Premises and visible from the exterior of the Building, or
visible from exterior of the Demised Premises, shall be approved and
installed by Lessor at Lessee's expense. In the event of a violation of the
foregoing by Lessee, Lessor may remove the same without any liability and may
charge the expense incurred by such removal to Lessee.
ALTERATIONS, INSTALLATION, FIXTURES:
8. Except as hereinafter provided, Lessee shall not make any alteration,
additions, or improvements in or to the Demised Premises or add, disturb or
in any way change any plumbing or wiring therein without the prior written
consent of the Lessor. In the event alterations are required by any
governmental agency by reason of the use and occupancy of the Demised
Premises by Lessee, Lessee shall make such alterations at its own cost and
expense after first obtaining Lessor's approval of plans and specifications
therefor and furnishing such indemnification as Lessor may reasonably require
against liens, costs, damages and expenses arising out of such alterations.
Alterations or additions by Lessee must be built in compliance with all laws,
ordinances and governmental regulations affecting the Premises and Lessee
shall warrant to Lessor that all such alterations, additions, or improvements
shall be in strict compliance with all relevant laws, ordinances,
governmental regulations, and insurance requirements. Construction of such
alterations or additions shall commence only upon Lessee obtaining and
exhibiting to Lessor the requisite approvals, licenses and permits and
indemnification against liens. All alterations, installations, physical
additions or improvements to the Demised Premises made by Lessee shall at
once become the property of Lessor and shall be surrendered to Lessor upon
the termination of this Lease; provided, however, this clause shall not apply
to movable equipment, trade fixtures or furniture owned by
<PAGE>
Lessee which may be removed by Lessee at the end of the term of this lease if
Lessee is not then in default.
POSSESSION:
9. Except as hereinafter provided lessor shall deliver possession of the
Demised Premises to Lessee in the condition required by Article 43 of this
Lease on or before November 1, 1997 (the "Delivery Date") for the purpose of
installing and moving in Lessee's equipment and trade fixtures within the
Demised Premises ("Lessee's Work"). Lessee shall have a period of one full
calendar month beginning on the Delivery Date within which to complete
Lessee's Work ("Lessee's Work Period"), but delivery of possession prior to
or later than such Delivery Date shall postpone the Expiration Date by an
equal number of days. If, for example, the Delivery Date falls on November 3,
1997, Lessee's Work Period shall end on December 31, 1997. The Commencement
Date and the rentals herein reserved shall commence on the later of the first
day of the month following the end of Lessee's Work Period, or December 1,
1997. Any occupancy of the Demised Premises by Lessee prior to the beginning
of the term shall in all respects be the same as that of a Lessee under this
Lease, except that Lessee shall have no obligation to pay rent prior to the
Commencement Date. Lessor shall have no responsibility or liability for loss
or damages to fixtures, facilities or equipment or installed or left on the
Demised Premises.
SECURITY AND DAMAGE DEPOSIT:
10. INTENTIONALLY DELETED
USE:
11. The Demised Premises shall be used and occupied by Lessee solely for
the purposes of office, warehouse, distribution and manufacturing so long as
such use is in compliance with all applicable laws, ordinances and
governmental regulations affecting the Building and Premises. The Demised
Premises shall not be used in such manner that, in accordance with any
requirement of law or of any public authority, Lessor shall be obliged on
account of the purpose or manner of said use to make any addition or
alteration to or in the Building. The Demised Premises shall not be used in
any manner which will increase the rates required to be paid for public
liability or for fire and extended coverage insurance covering the Premises.
Lessee shall occupy the Demised Premises, conduct its business and control
its agents, employees, invitees and visitors in such a way as is lawful, and
reputable and will not permit or create any nuisance, noise, odor, or
otherwise interfere with, annoy or disturb any other tenant in the Building
in its normal business operations or Lessor in its management of the
Building. Lessee's use of the Demised Premises shall conform to all the
Lessor's rules and regulations as shown on Exhibit C to the Lease relating to
the use of the Premises. Outside storage on the Premises of any type of
equipment, property or materials owned or used on the Premise by Lessee or
its customers and suppliers shall not be permitted.
ACCESS TO DEMISED PREMISES:
12. The Lessee agrees to permit the Lessor and the authorized
representatives of the Lessor to enter the Demised Premises upon at least
twenty-four (24) hours notice to Lessee, except in the event of an emergency,
during usual business hours for the purpose of inspecting the same and making
any necessary repairs to the Demised Premises and performing any work therein
that may be necessary to comply with any laws, ordinances, rules, regulations
or requirements of any public authority or of the Board of Fire Underwriters
or any similar body or that the Lessor may deem necessary to prevent waste or
deterioration in connection with the Demised Premises. Nothing herein shall
imply any duty upon the part of the Lessor to do any such work which, under
any provision of this Lease, the Lessee may be required to perform and the
performance thereof by the Lessor shall not constitute a waiver of the
Lessee's default in failing to perform the same. The Lessor may, during the
progress of any work in the Demised Premises, keep and store upon the Demised
Premises all necessary materials, tools and equipment. The Lessor shall not
in any event be liable for reasonable inconvenience, annoyance, disturbance,
loss of business, or other damage of the Lessee by reason of making repairs
or the performance of any work in the Demised Premises, or on account of
bringing materials, supplies and equipment into or through the Demised
Premises during the course thereof and the obligations of the Lessee under
this Lease shall not thereby be affected in any manner whatsoever.
Lessor reserves the right to enter upon the Demised Premises at any time in
the event of an emergency and at reasonable hours to exhibit the Demised
Premises to prospective purchasers or others; and upon at least twenty-four
(24) hours prior notice to Lessee to exhibit the Demised Premises to
prospective Lessees and to the display "For Lease" or similar signs on
windows or doors in the Demised Premises during the last NINETY (90) days of
the term of this Lease, all without hindrance or molestation by Lessee.
EMINENT DOMAIN:
13. In the event of any eminent domain or condemnation proceeding or
private sale in lieu thereof in respect to the Premises during the term
thereof, the following provisions shall apply:
a. If the whole of the Premises shall be acquired or condemned by
eminent domain for any public or quasi-public use or purpose, then the term
of this Lease shall cease and terminate as of the date possession shall be
taken in such proceeding and all rentals shall be paid up to that date.
b. If any part constituting less than the whole of the Premises
shall be acquired or condemned as aforesaid, and in the event that such
partial taking or condemnation shall materially affect the Demised Premises
so as to render the Demised Premises unsuitable for the business of the
Lessee, in the reasonable opinion of Lessor, then the term of this Lease
shall cease and terminate as of the date possession shall be taken by the
condemning authority and rent shall be paid to the date of such termination.
In the event of a partial taking or condemnation of the Premises which
shall not materially affect the Demised Premises so as to render the Demised
Premises unsuitable for the business of the Lessee, in the reasonable opinion
of the Lessor, this Lease shall continue in full force and effect but with a
proportionate abatement of the Base Rent and Additional Rent based on the
portion, if any, of the Demised Premises taken. Lessor reserves the right, at
its option, to restore the Building and the Demised Premises to substantially
the same condition as they were prior to such condemnation. In such event,
Lessor shall give written notice to Lessee, within thirty (30) days following
the date possession shall be taken by the condemning authority, of Lessor's
intention to restore. Upon Lessor's notice of election to restore, Lessor
shall commence restoration and shall restore the Building and the Demised
Premises with reasonable promptness, subject to delays beyond Lessor's
control and delays in the making of condemnation or sale proceeds adjustments
by Lessor; and Lessee shall have no right to terminate this Lease except as
herein provided. Upon completion of such restoration, the rent shall be
adjusted based upon the portion, if any, of the Demised Premises restored.
c. In the event of any condemnation or taking as aforesaid, whether
whole or partial, the Lessee shall not be entitled to any part of the award
paid for such condemnation and Lessor is to receive the full amount of such
award, the Lessee hereby expressly waiving any right to claim to any part
thereof.
d. Although all damages in the event of any condemnation shall
belong to the Lessor whether such damages are awarded as compensation for
diminution in value of the leasehold or to the fee of the Demised Premises,
Lessee shall have the right to claim and recover from the condemning
authority, but not from Lessor, such compensation as may be separately
awarded or recoverable by Lessee in Lessee's own right on account of any and
all damage to Lessee's business by reason of the condemnation and for or on
account of any cost or loss to which Lessee might be put in removing Lessee's
merchandise, furniture, fixtures, leasehold improvements and equipment.
However, Lessee shall have no claim against Lessor or make any claim with the
condemning authority for the loss of its leasehold estate, any unexpired term
or loss of any possible renewal or extension of said lease or loss of any
possible value of said lease, any unexpired term renewal or extension of said
Lease.
DAMAGE OR DESTRUCTION:
14. In the event of any damage or destruction to the Premises by fire or
other cause during the term hereof, the following provisions shall apply:
a. If the Building is damaged by fire or any other cause to such
extent that the cost of restoration will equal or exceed thirty percent (30%)
of the replacement value of the Building (exclusive of foundations) just
prior to the occurrence of the damage, then Lessor or Lessee may, no later
than the sixtieth (60th) day following the damage, give written notice to the
other of its election to terminate this Lease.
b. INTENTIONALLY DELETED
c. If the cost of restoration shall amount to less than thirty
percent (30%) of said replacement value of the Building, or if, despite the
cost, neither Lessor nor Lessee has elected to terminate this Lease, Lessor
shall restore the Building and the Demised Premises with reasonable
promptness, subject to delays beyond Lessor's control and delays in the
making of insurance adjustments by Lessor; and Lessor shall not be
responsible for restoring or repairing leasehold improvements of the Lessee.
d. In the event of either of the elections to terminate, this Lease
shall be deemed to terminate on the date of the receipt of the notice of
election and all rents shall be paid up to that date. Lessee shall have no
claim against Lessor for the value of any unexpired term of this Lease.
e. In any case where damage to the Building shall materially affect
the Demised Premises so as to render them unsuitable in whole or in part for
the purposes for which they are demised hereunder, then, unless such
destruction was wholly or partially caused by the negligence or breach of the
terms of this Lease by Lessee, its employees, contractors or licensees, a
portion of the
<PAGE>
rent based upon the amount of the extent which the Demised Premises are
rendered unsuitable shall be abated until repaired or restored. If the
destruction or damage was wholly or partially caused by negligence or breach
of the terms of this Lease by Lessee as aforesaid and if Lessor shall elect
to rebuild, the rent shall not abate and the Lessee shall remain liable for
the same.
CASUALTY INSURANCE:
15. a. Lessor shall at all times during the term of this Lease, at its
expense, maintain a policy or policies of insurance with premiums paid in
advance issued by an insurance company licensed to do business in the State
of Minnesota insuring the Building against loss or damage by fire, explosion
or other insurance hazards and contingencies for the full replacement value,
provided that Lessor shall not be obligated to insure any furniture,
equipment, machinery, goods or supplies not covered by this Lease which
Lessee may bring upon the Demised Premises or any additional improvements
which Lessee may construct or install on the Demised Premises.
b. Lessee shall not carry any stock of goods or do anything in or
about the Demised Premises which will in any way impair or invalidate the
obligation of the insurer under any policy of insurance required by this
Lease.
c. Lessor hereby waives and releases all claims, liability and
causes of action against Lessee and its agents, servants and employees for
loss or damage to, or destruction of, the Premises or any portion thereof,
including the buildings and other improvements situated thereon, resulting
from fire, explosion and other perils included in standard extended coverage
insurance, whether caused by the negligence of any of said persons or
otherwise. Likewise, Lessee hereby waives and releases all claims,
liabilities and causes of action against Lessor and its agents, servants and
employees for loss or damage to, or destruction of, any of the improvements,
fixtures, equipment, supplies, merchandise and other property, whether that
of Lessee or of others in, upon or about the Premises resulting from fire,
explosion or the other perils included in standard extended coverage
insurance, whether caused by the negligence of any of said persons or
otherwise. The waiver shall remain in force whether or not the Lessee's
insurer shall consent thereto.
d. In the event that the use of the Demised Premises by Lessee
increases the premium rate for insurance carried by Lessor on the
improvements of which the Demised Premises are a part, Lessee shall pay
Lessor, upon demand, the amount of such premium increase. If Lessee installs
any electrical equipment that overloads the power lines to the building or
its wiring, Lessee shall, at its own expense, make whatever changes are
necessary to comply with the requirements of the insurance underwriter,
insurance rating bureau and governmental authorities having jurisdiction.
PUBLIC LIABILITY INSURANCE:
16. Lessee shall during the term hereof, keep in full force and effect at
its expense a policy or policies of public liability insurance with respect
to the Demised Premises and the business of Lessee, on terms with companies
approved in writing by Lessor, in which both Lessee and Lessor shall be
covered by being named as insured parties under reasonable limits of
liability not less than: $500,000 for injury/death to any one person;
$1,000,000 for injury/death to more than one person, and $500,000 with
respect to damage to property. Such policy or policies shall provide that ten
(10) days written notice must be given to Lessor prior to cancellation
thereof. Lessee shall furnish evidence satisfactory to Lessor at the time
this Lease is executed that such coverage is in full force and effect.
DEFAULT OF LESSEE:
17. a. In the event of any failure of Lessee to pay any rental due
hereunder within ten (10) days after the same shall be due, or any failure to
perform any other of the terms, conditions or covenants of this Lease to be
observed or performed by Lessee for more than thirty (30) days after written
notice of such failure shall have been given to Lessee, or if Lessee or an
agent of Lessee shall falsify any report required to be furnished to Lessor
pursuant to the terms of this Lease, or if Lessee or any guarantor of this
Lease shall become bankrupt or insolvent, or file any debtor proceedings or
any person shall take or have against Lessee or any guarantor of this Lease
in any court pursuant to any statute either of the United States or of any
state a petition in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or trustee of all or a portion of Lessee's or any
such guarantor's property, or if Lessee or any such guarantor makes an
assignment for the benefit of creditors, or petitions for or enters into an
arrangement, or if Lessee shall abandon the Demised Premises or suffer this
Lease to be taken under any writ of execution, then in any such event Lessee
shall be in default hereunder, and Lessor, in addition to their rights or
remedies it may have, shall have the immediate right of re-entry and may
remove all persons and property from the Demised Premises and such property
may be removed and stored in a public warehouse or elsewhere at the cost of,
and for the account of Lessee, as provided in Minnesota Statutes Chapter 566.
b. Should Lessor elect to re-enter the Demises Premises, as herein
provided, or should it take possession of the Demised Premises pursuant to
legal proceedings or pursuant to any notice provided for by law, it may
either terminate this Lease or it may from time to time, without terminating
this Lease, make such alterations and repairs as may be necessary in order to
relet the Demised Premises, and relet the Demised Premises or any part
thereof upon such term or terms (which may be for a term extending beyond the
term of this Lease) and at such rental or rentals and upon such other terms
and conditions as Lessor in its sole discretion may deem advisable. Upon each
such reletting all rentals received by the Lessor from such reletting shall
be applied first to the payment of any indebtedness other than rent due
hereunder from Lessee to Lessor; second, to the payment of any costs and
expenses of such reletting, including brokerage fees and attorney's fees and
costs of such alterations and repairs; third, to the payment of the rent due
and unpaid payment of future rent as the same may become due and payable
hereunder. If such rentals received from such reletting during any month be
less than that to be paid during that month by Lessee hereunder, Lessee, upon
demand, shall pay any such deficiency to Lessor. No such re-entry or taking
possession of the Demised Premises by Lessor shall be construed as an
election on its part to terminate this Lease unless a written notice of such
intention be given to Lessee or unless the termination thereof be decreed by
a court of competent jurisdiction. Notwithstanding any such reletting without
termination, Lessor may at any time after such re-entry and reletting elect
to terminate this Lease for any such breach, in addition to any other
remedies it may have, it may recover from Lessee all damages it may incur by
reason of such breach, including the cost of recovering the Demised Premises,
reasonable attorney's fees, and including the worth at the time of such
termination of the excess, if any, of the amount of rent and charges
equivalent to rent reserved in this Lease for the remainder of the stated
term over the then reasonable rental value of the Demised Premises for the
remainder of the stated term, all of which amounts shall be immediately due
and payable from Lessee to Lessor.
c. Lessor may, at its option, instead of exercising any other rights or
remedies available to it in this Lease or otherwise by law, statute or equity,
spend such money as is reasonably necessary to cure any default of Lessee herein
and the amount so spent, and costs incurred, including attorney's fees in curing
such default, shall be paid by Lessee, as additional rent, upon demand.
d. In the event suit shall be brought for recovery of possession of the
Demised Premises, for the recovery of rent or any other amount due under the
provisions of this Lease, or because of the breach of any other covenant herein
contained on the part of Lessee to be kept or performed, and a breach shall be
established, Lessee shall pay to Lessor all expenses incurred therefor,
including a reasonable attorney's fee, together with interest on all such
expenses at the rate of ten percent (10%) per annum from the date of such breach
of the covenants of this Lease.
e. INTENTIONALLY DELETED
f. No remedy herein or elsewhere in this Lease or otherwise by law,
statute or equity, conferred upon or reserved to Lessor or Lessee shall be
exclusive of any other remedy, but shall be cumulative, and may be exercised
from time to time and as often as the occasion may arise.
17.1 In the event of any failure of Lessor to perform any of the terms,
conditions or covenants of this Lease to be observed or performed by Lessor for
more than thirty (30) days after written notice of such failure shall have been
given to Lessor, then in any event, Lessor shall be in default hereunder, and
Lessee may, in addition to exercising any other rights or remedies available to
it in this Lease or otherwise by law, statute or equity, spend such money as is
reasonably necessary to cure any default of Lessor herein and the amount so
spent, and costs incurred, including attorneys fees in curing such default,
shall be paid by Lessor to Lessee upon written demand. Upon completion of any
such work by Lessee and payment by Lessor of the same, Lessor shall be deemed to
have cured such default.
COVENANTS TO HOLD HARMLESS:
18. Unless the liability for damage or loss is caused by the gross
negligence or intentional act of Lessor, its agents or employees, Lessee
shall hold harmless Lessor from any liability for damages to any person or
property in or upon the Building or Demised Premises, and to the person and
the property of Lessee and its employees and all other persons in the
Building at its or their invitation or sufferance, and from all damages
resulting from Lessee's failure to perform the covenants of this Lease. All
property kept, maintained or stored on the Demised Premises shall be so kept,
maintained or stored at the sole risk of Lessee. Lessee agrees to pay all
sums of money in respect of any labor, service, materials, supplies or
equipment furnished or alleged to have been furnished to Lessee in or about
the Premises, and not furnished on order of Lessor, which may be secured by
any Mechanic's Materialmen's or other lien to be discharged at the time
performance of any obligation secured thereby matures, provided
<PAGE>
that Lessee may contest such lien, but if such lien is reduced to final
judgment and if such judgment or process thereon is not stayed, or if stayed
and said stay expires, then and in each such event, Lessee shall forthwith
pay and discharge said judgment. Lessor shall have the right to post and
maintain on the Demised Premises, notices of non-responsibility under the
laws of the State of Minnesota.
NON-LIABILITY:
19. Subject to the terms and conditions of Article 14 hereof, Lessor
shall not be liable for damage to any property of Lessee or of others located
on the Premises, nor for the loss of or damage to any property of Lessee or
of others by theft or otherwise. Lessor shall not be liable for any injury or
damage to persons or property resulting from fire, explosion, any injury or
damage to persons or property resulting from fire, explosion, falling
plaster, steam, gas, electricity, water, rain or snow or leaks from any part
of the Premises or from the pipes, appliances, or plumbing works or from the
roof, street or subsurface or from any other place or by dampness or by any
such damage caused by other Lessees or persons in the Premises, occupants of
adjacent property, of the buildings, or the public or caused by operations in
construction of any private, public or quasi-public work. Lessor shall not be
liable for any latent defect in the Demised Premises. All property of Lessee
kept or stored on the Demised Premises shall be so kept or stored at the risk
of Lessee only and Lessee shall hold Lessor harmless from any claims arising
out of damage to the same, including subrogation claims by Lessee's insurance
carrier.
SUBORDINATION:
20. This Lease shall be subordinated to any mortgages that may not exist
or that may hereafter be placed upon the Demised Premises and to any and all
advances made thereunder, and to the interest upon the indebtedness evidenced
by such mortgages, and to all renewals, replacements and extensions thereof.
In the event of execution by Lessor after the date of this Lease of any such
mortgage, renewal, replacement or extension, Lessee agrees to execute a
subordination agreement with the holder thereof which agreement shall provide
that:
a. Such holder shall not disturb the possession and other rights of
Lessee under this Lease so long as Lessee is not in default hereunder,
b. In the event of acquisition of title to the Demised Premises by such
holder, such holder shall accept the Lessee as Lessee of the Demised Premises
under the terms and conditions of this Lease and shall perform all the
obligations of Lessor hereunder, and
c. The Lessee shall recognize such holder as Lessor hereunder.
Lessee shall, upon receipt of a request from Lessor therefor, execute and
deliver to Lessor or to any proposed holder of a mortgage or trust deed or to
any proposed purchaser of the Premises, a certificate in recordable form,
certifying that this Lease is in full force and effect, and that there are no
offsets against rent nor defenses to Lessee's performance under this Lease,
or setting forth any such offsets or defenses claimed by Lessee as the case
may be.
ASSIGNMENT OR SUBLETTING: See Article 47
21. Lessee agrees to use and occupy the Demised Premises throughout the
entire term hereof for the purpose of purposes herein specified and for no
other purposes, in the manner and to substantially the extent now intended,
and not to transfer or assign this Lease or sublet said Demised Premises, or
any part thereof, whether by voluntary act, operation of law, or otherwise,
without obtaining the prior written consent of Lessor in each instance.
Lessee shall seek such consent of Lessor by a written request therefor,
setting forth such information as Lessor may deem necessary. Lessor agrees
not to withhold consent unreasonably. Consent by Lessor to any assignment of
this Lease or to any subletting of the Demised Premises shall not be a waiver
of Lessor's rights under this Article as to any subsequent assignment or
subletting. Lessor's rights to assign this Lease are and shall remain
unqualified. No such assignment or subleasing shall relieve the Lessee from
any of Lessee's obligations in this Lease contained, nor shall any assignment
or sublease or other transfer of this Lease be effective unless the assignee,
sublessee or transferee shall at the time of such assignment, sublease or
transfer, assume in writing for the benefit of Lessor, its successors or
assigns, all of the terms, covenants and conditions of this Lease thereafter
to be performed by Lessee and shall agree in writing to be bound thereby.
ATTORNMENT:
22. In the event of a sale or assignment of Lessor's interest, in the
Premises, or the Building in which the Demised Premises are located, or this
Lease, or if the Premises come into custody or possession of a mortgagee or
any other party whether because of a mortgage foreclosure, or otherwise,
Lessee shall attorn to such assignee or other party and recognize such party
as Lessor hereunder; provided, however, Lessee's peaceable possession will
not be disturbed so long as Lessee faithfully performs its obligations under
this Lease. Lessee shall execute, on demand, any attornment agreement
required by any such party to be executed, containing such provisions and
such other provisions as such party may require.
NOVATION IN THE EVENT OF SALE:
23. In the event of the sale of the Demised Premises, Lessor shall be and
hereby is relieved of all of the covenants and obligations created hereby
accruing from and after the date of sale, and such sale shall result
automatically in the purchaser assuming and agreeing to carry out all the
covenants and obligations of Lessor herein. Notwithstanding the foregoing
provisions of this Article, Lessor, in the event of a sale of the Demised
Premises, shall cause to be included in this agreement of sale and purchase a
covenant whereby the purchase of the Demised Premises assumes and agrees to
carry out all of the covenants and obligations of Lessor herein.
The Lessee agrees at any time and from time to time upon not less than
ten (10) days prior written request by the Lessor to execute, acknowledge and
deliver to the Lessor a statement in writing certifying that this Lease is
unmodified and in full force and effect as modified and stating the
modifications, and the dates to which the basic rent and other charges have
been paid in advance, if any, it being intended that any such statement
delivered pursuant to this paragraph may be relied upon by any prospective
purchaser of the fee or mortgagee or assignee of any mortgage upon the fee of
the Demised Premises.
SUCCESSORS AND ASSIGNS:
24. The terms, covenants and conditions hereof shall be binding upon and
inure to the successors and assigns of the parties hereto.
REMOVAL OF FIXTURES:
25. INTENTIONALLY DELETED
QUIET ENJOYMENT:
26. Lessor warrants that it has full right to execute and to perform this
Lease and to grant the estate demised, and that Lessee, upon payment of the
rents and other amounts due and the performance of all the terms, conditions,
covenant and agreements on Lessee's part to be observed and performed under
this Lease, may peaceably and quietly enjoy the Demised Premises for the
business uses permitted hereunder, subject, nevertheless, to the terms and
conditions of this Lease.
RECORDING:
27. Lessee shall not record this Lease without the written consent of
Lessor. However, upon the request of either party hereto, the other party
shall join in the execution of the Memorandum lease for the purposes of
recordation. Said Memorandum lease shall describe the parties, the Demised
Premises and the term of the Lease and shall incorporate this Lease by
reference. This Article 27 shall not be construed to limit Lessor's right to
file this Lease under Article 22 of this Lease.
OVERDUE PAYMENTS:
28. All monies due under this Lease from Lessee to Lessor shall be due on
demand, unless otherwise specified and if not paid within ten (10) days of
when due, shall result in the imposition of a service charge for such late
payment in the amount of five percent (5%) of the amount due.
SURRENDER:
29. On the Expiration Date or upon the termination hereof upon a day
other than the Expiration Date, Lessee shall peaceably surrender the Demised
Premises broom-clean in good order, condition and repair, reasonable wear and
tear only excepted. On or before the Expiration Date or upon termination of
this Lease on a day other than the Expiration Date, Lessee shall, at its
expense, remove all trade fixtures, personal property and equipment and signs
from the Demised Premises and any property not removed shall be deemed to
have been abandoned. Any damage caused in the removal of such items shall be
repaired by Lessee and at its expense. All alterations, additions,
improvements and fixtures (other than trade fixtures) which shall have been
made or installed by Lessor or Lessee upon the Demised Premises and all floor
covering so installed shall remain upon and be surrendered with the Demised
Premises as a part thereof, without disturbance, molestation or injury, and
without charge, at the expiration of termination of this Lease. If the
Demised Premises are not surrendered on the Expiration Date or the date of
termination,
<PAGE>
Lessee shall indemnify Lessor against loss or liability, claims, without
limitation, made by any succeeding Lessee founded on such delay. Lessee shall
promptly surrender all keys for the Demised Premises to Lessor at the place then
fixed for payment of rent and shall inform Lessor of combinations of any locks
and safes on the Demised Premises.
HOLDING OVER:
30. In the event of a holding over by Lessee after expiration or
termination of this Lease without the consent in writing of Lessor, Lessee
shall be deemed a Lessee at sufferance and shall pay rent for such occupancy
at the rate of one hundred fifty (150%) percent of the last-current aggregate
Base and Additional Rent, prorated for the entire holdover period, plus all
attorney's fees and expenses incurred by Lessor in enforcing its rights
hereunder, plus any other damages occasioned by such holding over. Except as
otherwise agreed, any holding over with the written consent of Lessor shall
constitute Lessee a month-to-month lessee.
ABANDONMENT:
31. In the event Lessee shall remove its fixtures, equipment or machinery or
shall vacate the Demised Premises or any part thereof prior to the Expiration
Date of this Lease, or shall discontinue or suspend the operation of its
business conducted on the Demised Premises for a period of more than thirty (30)
consecutive days (except during any time when the Demised Premises may be
rendered untenantable by reason of fire or other casualty), and the Lessee has
simultaneously defaulted on any other terms of the Lease, then in any such event
Lessee shall be deemed to have abandoned the Demised Premises and Lessee shall
be in default under the terms of this Lease.
CONSENTS BY LESSOR:
32. Whenever provision is made under this Lease for Lessee securing the
consent or approval by Lessor, such consent or approval shall only be in
writing.
NOTICES:
33. Any notice required or permitted under this Lease shall be deemed
sufficiently given or secured if sent by registered or certified return receipt
mail to Lessee at 1284 Corporate Center Drive, Suite 200, Eagan, MN 55121
with a copy to:
Bit 3 Computer Corporation
c/o SBS Technologies, Inc.
2400 Louisiana Boulevard NE
AFC Building
Albuquerque NM 87110-4316
ATTN: Jim Dixon (or current CFO)
and:
Bit 3 Computer Corporation
c/o SBS Technologies, Inc.
2265 Camino Vida Roble
Carlsbad CA 92009
ATTN: Steve Cooper (or current President)
and to Lessor at:
Lutheran Brotherhood
625 Fourth Avenue, Suite 1400
Minneapolis, MN 55415
Attn: R.E. Asset Management
and either party may by like written notice at any time designate a different
address to which notices shall subsequently be sent or rent to be paid.
RULES AND REGULATIONS:
34. Lessee shall observe and comply with the rules and regulations as set
forth in Exhibit C, on written notice to Lessee for the safety, care and
cleanliness of the Building.
INTENT OF PARTIES:
35. Except as otherwise provided herein, the Lessee covenants and agrees
that if it shall any time fail to pay any such cost or expense, or fail to
take out, pay for, maintain or deliver any of the insurance policies above
required, or fail to make any other payment or perform any other act on its
part to be made or performed as in this Lease provided, then the Lessor may,
but shall not be obligated so to do, and without notice to or demand upon the
Lessee and without waiving or releasing the Lessee from any obligations of
the Lessee in this Lease contained, pay any such cost or expense, effect any
such insurance coverage and pay premiums therefor, and may make any other
payment or perform any other act on the part of the Lessee to be made and
performed as in this Lease provided, in such manner and to such extent as the
Lessor may deem desirable, and in exercising any such right, to also pay all
necessary and incidental costs and expenses, employ counsel and incur and pay
reasonable attorneys' fees. All sums so paid by Lessor and all necessary and
incidental costs and expenses in connection with the performance of any such
act by the Lessor, together with interest thereon at the rate of ten percent
(10%) per annum from the date of making of such expenditure, by Lessor, shall
be deemed additional rent hereunder, and shall be payable to Lessor on
demand. Lessee covenants to pay any such sum or sums with interest as
aforesaid and the Lessor shall have the same rights and remedies in the event
of the nonpayment thereof by Lessee as in the case of default by Lessee in
the payment of the Base Rent payable under this Lease.
GENERAL:
36. The Lease does not create the relationship of principal agent or of
partnership or of joint venture or of any association between Lessor and Lessee,
the sole relationship between the parties hereto being that of Lessor and
Lessee.
No waiver of any default of Lessee hereunder shall be implied from
any omission by Lessor to take any action on account of such default if such
default persists or is repeated, and no express waiver shall affect any
default other than the default specified in the express waiver and that only
for the time and to the extent therein stated. One or more waivers by Lessor
shall not then be construed as a waiver of a subsequent breach of the same
covenant, term or condition. The consent to or approval by Lessor of any act
by Lessee requiring Lessor's consent or approval shall not waive or render
unnecessary Lessor's consent to or approval of any subsequent similar act by
Lessee shall be construed to be both a covenant and a condition. No action
required or permitted to be taken by or on behalf of Lessor under the terms
or provisions of this Lease shall be deemed to constitute an eviction or
disturbance of Lessee's possession of the Demised Premises. All preliminary
negotiations are merged into and incorporated in this Lease. The laws of the
State of Minnesota shall govern the validity, performance and enforcement of
this Lease.
a. This Lease and the exhibits, if any, attached hereto and forming
a part hereof, constitute the entire agreement between Lessor and Lessee
affecting the Demised Premises and there are no other agreements, subsequent
alteration, amendment, change or addition to this Lease shall be binding upon
Lessor or Lessee unless reduced to writing and executed in the same form and
manner in which this Lease is executed.
b. If any agreement, covenant or condition of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such agreement, covenant or condition to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and each agreement, covenant or condition of this Lease shall be
valid and be enforced to the fullest extent permitted by law.
HAZARDOUS MATERIAL: See Article 48
37. a. The Demised Premises hereby leased shall be used by and/or at the
sufferance of Lessee only for the purpose set forth in Article 11 above and for
no other purposes. Lessee shall not use or permit the use of the Demised
Premises in any manner that will tend to create waste or a nuisance, or will
tend to unreasonably disturb other Lessees in the Building or the Premises.
Lessee, its employees and all person visiting or doing business with Lessee in
the Demised Premises shall be bound by and shall observe the reasonable rules
and regulations made by Lessor relating to the Demised Premises, the Building or
the Premises of which notice in writing shall be given to the Lessee, and all
such rules and regulations shall be deemed to be incorporated into and form a
part of this Lease.
b. Lessee covenants through the Lease Term, at Lessee's sole cost
and expense, promptly to comply with all laws and ordinances and the orders,
rules and regulations and requirements of all federal, state and municipal
governments and appropriate departments, commission, boards, and officers
thereof, and the orders, rules and regulations of the Board of Fire
Underwriters where the Demised Premises are situated, or any other body now
or hereafter as well as extraordinary, and whether or not the same require
structural repairs or alterations, which may be applicable to the Demised
Premises, or the use or manner of use of the Demised Premises. Lessee will
likewise observe and comply with the requirements of all policies of public
liability, fire and all other policies of insurance at any time in force with
respect to the building and improvements on the Demised Premises and the
equipment thereof.
CAPTIONS:
38. The captions are inserted only as a matter of convenience and for
reference, and in no way define, limit or describe the scope of this Lease
nor the intent or any provision thereof.
<PAGE>
ATTACHMENTS:
39. See also rider attached hereto and made a part hereof containing
articles 42 through 49 inclusive as well as Exhibits A through F, inclusive,
which Exhibits are attached hereto and made a part hereof.
<TABLE>
<CAPTION>
Exhibit Description
------- -----------
<S> <C>
Exhibit A Legal Description
Exhibit B Demised Premises
Exhibit C Building Rules and Regulations
Exhibit D Improvements
Exhibit E Sign Criteria
Exhibit F Guarantee of Lease
</TABLE>
SUBMISSION:
40. Submission of this instrument to Lessee or proposed Lessee or his
agents or attorneys for examination, review, consideration or signature does
not constitute or imply an offer to lease reservation of space, or option to
lease, and this instrument shall have no binding legal effect until execution
hereof by both Lessor/Owner and Lessee or its agents.
REPRESENTATION:
41. It is agreed and understood that Brian Doyle and Todd McGinley, agent
or broker with Welsh Companies, Inc. is representing Lutheran Brotherhood,
Lessor, and Scott Frederiksen, agent or broker with Welsh Companies, Inc., is
representing Bit 3 Computer Corporation, a wholly owned subsidiary of SBS
Technologies, Inc., Lessee.
<PAGE>
IN WITNESS WHEREOF, the Lessor and the Lessee have caused these presents to be
executed in form and manner sufficient to bind them at law, as of the day and
year first above written.
<TABLE>
<CAPTION>
Lessee: Lessor:
<S> <C>
Bit 3 Computer Corporation, Lutheran Brotherhood
a wholly owned subsidiary of (a Minnesota corporation)
SBS Technologies, Inc. (a New Mexico corporation)
/s/ Philip M. Vukovic
- --------------------------------------
By: Philip M. Vukovic 9/22/97 By: /s/ Clifford W. Habeck
----------------------------------- ------------------------------
Clifford W. Habeck
Its: President Its: Vice President
---------------------------------- ------------------------------
</TABLE>
STATE OF MINNESOTA
COUNTY OF HENNEPIN ss.:
On this 22nd day of September, 1997, personally came before me, a Notary
Public within and for said County, Philip M. Vukovic and ________________, to
me well known to be the same persons described in and who executed the
foregoing instrument, and acknowledged that they executed the same as their
free act and deed.
/s/ Janet Day
--------------------------------
Notary Public
My commission expires: 1/31/00
----------
[NOTARY SEAL]
STATE OF MINNESOTA
COUNTY OF HENNEPIN ss.:
On this 23rd day of September, 1997, personally came before me, a Notary
Public within and for said County, Clifford W. Habeck and ________________, to
me well known to be the same persons described in and who executed the
foregoing instrument, and acknowledged that they executed the same as their
free act and deed.
/s/ Alice P Hertel
------------------------------
Notary Public
My commission expires: January 31, 2000
----------------
[NOTARY SEAL]
<PAGE>
RIDER TO LEASE
DATED SEPTEMBER 5, 1997
BY AND BETWEEN
LUTHERAN BROTHERHOOD, A MINNESOTA CORPORATION, AS LESSOR
AND
BIT 3 COMPUTER CORPORATION, A WHOLLY OWNED SUBSIDIARY OF SBS TECHNOLOGIES, INC.,
A NEW MEXICO CORPORATION, AS LESSEE
ARTICLE 42 - BASE RENT
The following is hereby added to and made a part of Article 2, Base Rent,
and Article 3, Additional Rent of this Lease:
<TABLE>
<CAPTION>
Period Net Monthly Rent Total Period Base Rent
------ ---------------- ----------------------
<S> <C> <C>
November 1, 1997 through and
including October 31, 2000 $18,469.00 $ 664,884.00
November 1, 2000 through and
including October 31, 2002 $20,942.00 $ 502,608.00
TOTAL BASE RENT $1,167,492.00
</TABLE>
ARTICLE 43 - IMPROVEMENTS
Lessor shall fit-up the Demised Premises as set forth in Exhibit D. Lessor
is under no obligation to make any structural or other alterations,
decoration, additions or improvements in or to the Demised Premises except
as expressly set forth in Exhibit D. By taking occupancy of the Demised
Premises, Lessee shall be deemed to have acknowledged that Lessor has
completed all of its obligations for improvements to the Demised Premises,
subject to the following. Promptly following substantial completion, as
determined by Lessor, representatives of Lessor and Lessee shall inspect
the Demised Premises and jointly prepare a punch list of incomplete and
defective items. Such punch list shall be signed by both parties and Lessor
shall diligently pursue completion of its punch list items. Lessee shall
also have thirty (30) days after the Commencement Date to notify Lessor of
any additional items it has identified that constitute defects in
construction and materials related to the improvements and Lessor shall
also repair such items, except in circumstances in which the defect was
caused by or resulted from the use or damage to the Demised Premises by
Lessee. Lessor shall also be responsible for repair of any structural
latent defects not reasonably discoverable upon diligent inspection by
Lessee, to the extent that the Lessee notifies Lessor thereof within one
(1) year after the Commencement Date.
ARTICLE 44 - FIRST OPPORTUNITY TO LEASE
A. So long as there is no uncured default by Lessee then existing under
the Lease, Lessee shall have the first right of refusal to lease
32,197 square feet currently demised as Suite 100 or the 13,822 square
feet currently demised as Suite 300 in their entirety (the "First
Opportunity to Lease").
B. Upon notification in writing by Lessor that such space is available,
Lessee shall have five (5) business days in which to elect in writing
so to lease such space in which event the lease for same shall
commence not more than thirty (30) days after such space becomes
vacant and shall be coterminous with this Lease and shall be at the
Base Rent then in affect under the Lease, unless otherwise agreed
upon.
C. In the event Lessee declines or fails to elect so to lease such space,
then the First Opportunity to Lease hereby granted shall automatically
terminate and shall thereafter be null and void as to such space.
D. It is understood that this First Opportunity to Lease shall not be
construed to prevent any lessee in the Building from extending or
renewing its lease.
<PAGE>
E. The First Opportunity to Lease hereby granted is personal to Lessee
and Guarantor (as defined in Exhibit "F") and is not transferable; in
the event of any assignment or subletting under this Lease, this First
Opportunity to Lease shall automatically terminate and shall
thereafter be null and void.
ARTICLE 45 - OPTION TO EXTEND
A. So long as there is no uncured default by Lessee then existing under
the Lease, Lessee shall have the option to extend the Term of this
Lease (hereinafter, the "Option") for one consecutive period of
twenty-four (24) to thirty-six (36) months upon the same terms and
conditions, except for the Monthly Base Rent shall be $20,623.44 and
upon the following further terms and conditions.
B. Lessee shall exercise said Option only by giving written notice to
Lessor of its intent to extend not less than nine (9) months prior to
such termination date.
C. It is understood and agreed that this Option is personal to Lessee and
Guarantor (as defined in Exhibit "F") and is not transferable; in the
event of any assignment or subleasing of any or all of the Demised
Premises said Option shall be null and void.
ARTICLE 46 - OPTION TO TERMINATE
A. So long as there is no uncured default by Lessee then existing under
the Lease, Lessee shall have the one time option to terminate the Term
of this Lease (hereinafter, the "Option to Terminate") at the end of
the thirty-sixth (36th) month of the lease term and upon the following
further terms and conditions.
B. Lessee can exercise said Option to Terminate only by giving written
notice to Lessor not later than nine (9) months prior to said
termination date. Said notice to Lessor must be accompanied by a
termination fee in the amount of $233,292.25 in certified funds.
C. It is understood and agreed that this Option to Terminate is personal
to Lessee and Guarantor (as defined in Exhibit "F"), and is not
transferable; in the event of any assignment or subleasing of any or
all of the Demised Premises said Option to Terminate shall be null and
void.
ARTICLE 47 - ASSIGNMENT & SUBLETTING
Any consent required for assignment or subletting shall not be unreasonably
withheld nor delayed by Lessor. Lessor will have no recapture rights and
Lessee and Guarantor (as defined in Exhibit "F") shall retain any and all
profits. Lessee and Guarantor (as defined in Exhibit "F") shall have the
right to sublet or assign to a parent or, subsidiary or affiliate of equal
or greater net worth throughout the lease term, without the Lessor's
consent. In the event of a subletting or assignment, Lessee and Guarantor
(as defined in Exhibit "F") shall remain fully responsible for the
performance of all obligations hereunder throughout the term of the Lease.
ARTICLE 48 - HAZARDOUS MATERIALS
To the best of Lessor's knowledge, there are no Hazardous Substances
presently located in, on or under the real property commonly described as
Oakview Business Center I and II (the "Property") and such knowledge is
based solely on the Phase I report currently in Lessee's possession
prepared by Nova Environmental Services and dated November 16, 1995. The
term "Hazardous Substances" as used in this Lease shall mean pollutants,
contaminants, toxic or hazardous wastes, or any other substances, the
removal of which is required or the use of which is restricted, prohibited
or penalized by and "Environmental Law", which term shall mean any federal,
state or local law or ordinance relating to pollution or protection of the
environment. Lessee hereby agrees that (i) no activity will be conducted on
the Demised Premises that will produce any Hazardous Substance, except for
such activities that are part of the ordinary course of Lessee's business
activities (the "Permitted Activities") provided said Permitted Activities
are conducted in accordance with all Environmental Laws and have been
approved in advance in writing by Lessor; (ii) the Demised Premises will
not be used in any manner for the storage of any Hazardous Substances
except for the temporary storage of such materials that are used in the
ordinary course of Lessee's business (the "Permitted Material") provided
such Permitted Materials are properly stored in a manner and location
meeting all Environmental Laws and approved in advance in writing by
Lessor; (iii) no portion of the
<PAGE>
Demised Premises will be used as a landfill or a dump; (iv) Lessee will not
install any underground tanks of any type; (v) Lessee will not allow any
surface or subsurface conditions to exist or to come into existence that
constitute, or with the passage of time may constitute, a public or private
nuisance; (vi) Lessee will not permit any Hazardous Substances to be
brought onto the Demised Premises, except for the Permitted Materials
described above, and if so brought or found located thereon the same shall
be immediately removed, with proper disposal, and all required cleanup
procedures shall be diligently undertaken pursuant to all Environmental
Laws. If at any time during or after the term of this Lease, the Demised
Premises is found to be so contaminated, or subject to said conditions,
solely by action or inaction of Lessee, its agents, employees, contractors
or invitees, Lessee agrees to defend, indemnify and hold Lessor harmless
from all claims, demands, actions, liabilities, costs, expenses, damages
and obligations or any nature arising from or as a result of the use of the
Demised Premises by Lessee. The foregoing indemnification shall survive the
termination or expiration of this Lease, but the foregoing indemnification
shall not apply to (a) any action or inaction of Lessor, its agents,
employees, contractors or other third parties acting at the direction of or
with the permission of Lessor; or (b) Hazardous Substances originating on
property not owned by Lessor adjacent to the Property; or (c) any action or
inaction of any other Lessee of the Property.
Lessor shall indemnify, defend and hold Lessee harmless from and against
any and all loss, damage, expense or cost, including all attorney's fees
incurred in connection with the defense of any court action or
administrative proceeding against the Lessee, arising out of Lessor's
breach of any of the terms set forth in this Article 48. This Article shall
survive the expiration or termination of this Lease for the benefit of
Lessee and any successors and assigns of this Lease.
ARTICLE 49 - ADA
Lessee shall be responsible for ADA requirements and regulations within the
Demised Premises. The Lessor shall be responsible for ADA requirements and
regulations for all non-tenant spaces and common areas of the Building.
<TABLE>
<CAPTION>
Lessee: Lessor:
<S> <C>
Bit 3 Computer Corporation, Lutheran Brotherhood
a wholly owned subsidiary of SBS Technologies, Inc. (a Minnesota corporation)
(a New Mexico corporation)
By: /s/ Philip M. Vukovic By: /s/ Clifford W. Habeck
---------------------------------- --------------------------------
Clifford Habeck
Its: President 9/22/97 Its: Vice President
--------------------------------- -------------------------------
</TABLE>
<PAGE>
EXHIBIT "B"
[FLOOR PLAN]
<PAGE>
Exhibit C
Building Rules and Regulations
l. Any sign, lettering, picture, notice, or advertisement installed on or
in any part of the Premises and visible from the exterior of the Premises shall
be installed at Lessee's sole cost and expense, and in such manner, character,
and style as Lessor may approve in advance in writing. In the event of a
violation of the foregoing by Lessee, Lessor may remove the same without any
liability and may charge the expense incurred by such removal to Lessee.
2. No awning or other projection shall be attached to the outside walls of
the Office-Warehouse Complex. No curtains, blinds, shades, or screens visible
from the exterior of the Premises shall be attached to or hung in, or used in
connection with any window or door of the Premises without the prior written
consent of Landlord. Such curtains, blinds, shades, screens, or other fixtures
must be of a quality, type, design, and color and attached in the manner
approved in advance by Lessor.
3. Lessee, its servants, employees, customers, invitees, and guests
shall not obstruct sidewalks, entrances, passages, corridors, vestibules, or
halls in and about the Office-Warehouse Complex which are used in common with
other tenants and their servants, employees, customers, guests and invitees,
and which are not a part of the Premises of Lessee.
4. Lessee shall not make excessive noises, cause disturbances or
vibrations, or use or operate any electrical or mechanical devices that emit
excessive sound or other waves or disturbances or create obnoxious odors, any of
which may be offensive to the other tenants and occupants of the
Office-Warehouse Complex.
5. Lessee assumes full responsibility for protecting its space from theft,
robbery, and pilferage; which includes keeping doors locked and other means of
entry to the Premises closed and secured after normal business hours.
6. In no event shall Lessee bring into the Office-Warehouse Complex
inflammables, such as gasoline, kerosene, naptha, and benzine, or explosives or
any other article of intrinsically dangerous nature. If, by reason of the
failure of Lessee to comply with the provisions of this subparagraph, any
insurance premium for all or any part of the Office-Warehouse Complex shall at
any time be increased, Lessee shall be required to make immediate payment of the
whole of the increased insurance premiums.
7. The water and wash closets, drinking fountains and other plumbing
fixtures shall not be used for any purpose other than those for which they were
constructed, and no sweepings, rubbish, rags, coffee grounds, or other
substances shall be thrown therein. All damages resulting from any misuse of the
fixtures shall be borne by the Lessee who, or in whose servants, employees,
agents, visitors, or licensees, shall have caused the same. No person shall
waste water by interfering or tampering with the faucets or otherwise.
8. Lessee shall keep the Premises at a temperature sufficiently high to
prevent freezing of water in pipes and fixtures.
9. The outside areas immediately adjoining the Premises shall be kept clean
by Tenant and Tenant shall not place or permit any obstructions or merchandise
in such areas.
10. The use of parking shall be subject to reasonable regulations as
Landlord may promulgate from time to time uniformly to all lessees. Lessee
agrees that it will not use more than its prescribed number of stalls at any one
time, and will not use or permit the use by its employees of the parking area
for the overnight storage of automobiles or other vehicles. There will not be
any assigned exclusive parking spaces available to any tenant of the building
except with prior, written consent of the Lessor.
11. Lessee and its servants, employees, agents, visitors, and licensees
shall observe faithfully and comply strictly with the foregoing rules and
regulations and such other and further appropriate rules and regulations as
Landlord or its agent may from time to time adopt. Lessor shall give written
notice of any additional rules and regulations.
12. Lessor reserves the right at any time and from time to time as
reasonably necessary to rescind, alter, or waive, in whole or in part, any of
these Rules and Regulations when it is deemed necessary, desirable, or proper,
in Lessor's reasonable judgment, for its best interest or for the best interest
of the tenants of the Office-Warehouse Complex.
<PAGE>
EXHIBIT D
I. DEFINITIONS
"Lessee's Improvement Allowance" means $350,000.00
"Lessor's Improvements" means all improvements, alterations and
installations shown in the Plans.
"Plans" means the plans and specifications for the Lessor's Improvements
to be completed in the Demised Premises by Lessor, a copy of which is
attached hereto.
"Price" means the bid or quotation for Lessor's Improvements submitted by
Lessor to Lessee and approved by Lessee as adjusted pursuant to Article
IV.
II. CONSTRUCTION OF LESSOR'S IMPROVEMENTS
A. Lessor shall be fully responsible for all matters that must be
accomplished to perform, furnish and completely install the Lessor's
Improvements (in operating condition to manufacturer's specifications, if
applicable) in accordance with provisions herein and in the Lease. Lessor
shall use its best efforts to complete Lessor's Improvements on or before
October 31, 1997. Lessor's obligations hereunder shall include furnishing
all labor, materials and equipment; filing plans and other required
documentation with the proper governmental authorities; demolishing all
existing improvements as necessary; securing all necessary permits;
supervising all details of construction; obtaining the certificate of
occupancy; engaging and supervising all contractors and subcontractors;
removing debris from the Demised Premises caused by Lessor's trades;
obtaining insurance coverage, and providing utility and building
services. Lessee shall have the right to inspect Lessor's Improvements as
they are being installed and to require Lessor to correct, at Lessor's
expense, any aspect of lessor's Improvements that have not been installed
in compliance with the Plans or agreed upon changes.
B. Lessee shall not be liable for any injury to persons (including
death) or damage to property within the building during performance of
Lessor's Improvement work, unless caused by the active negligence or
willful misconduct of Lessee, its employees, agents, or contractors.
Lessor will indemnify and save Lessee harmless from, and defend it against
any such liability, and any costs or charges (including reasonable
attorney's fees and court costs) which Lessee may incur on account of any
such injury, death or damage. Lessor shall carry commercial general
liability insurance which shall include coverage of the foregoing
contractual liability.
C. Lessee shall not be responsible for any expenses relating to
abatement with respect to any existing Hazardous Substances (as defined in
Article 48) in the Demised Premises.
III. PRICING LESSOR'S IMPROVEMENTS
A. Lessor shall obtain competitive bids for Lessor's Improvements,
including bids from one fully licensed, bonded and insured general
contractor selected by Lessee. (Subsequent changes shall be priced in
accordance with Article IV below.)
B. Lessor will submit all bids obtained for Lessor's Work to Lessee
with an indication of Lessor's intent to contract with a particular
general contractor. Lessee will have five (5) days in which to provide
Lessor with written notice objecting to Lessor's decision, and in the
event such objection is made, Lessee shall indicate the basis of such
objection. In the event Lessor and Lessee cannot agree to a resolution
within five (5) days following Lessee's notice of objection, Lessee will
be required to notify Lessor that either Lessor may proceed and Lessee
will waive such objection, or that Lessee has elected to contract for all
of Lessor's work and Lessor will provide Lessee with payment of Lessor's
Improvement Allowance upon completion of the work as evidenced by paid
invoices accompanied by lien waivers from Lessee's contractor. In the
event Lessee elects the latter option, Lessee will be bound by the same
terms and conditions of Exhibit D to Lessor, as if Lessor had performed
the work.
<PAGE>
IV. CHANGES
A. From time to time, Lessee may make changes to the Plans or request
changes to Lessor's Improvements already installed.
B. Within five (5) business days after Lessee notifies Lessor of the
change or request thereof, Lessor shall submit to Lessee in writing an
analysis of the additional charges or savings involved, and the period of
time, if any, that the change will materially and adversely affect the
completion of Lessor's Improvements. If the additional construction costs
resulting from changes approved by Lessee cause the Price to exceed the
Lessee's Improvement Allowance, Lessee shall pay the excess as provided
in Article V. In the event such changes delay the Commencement Date, the
Expiration Date of the Lease will be extended by the same amount of days
that the Commencement Date was delayed, but in any event the Expiration
Date shall occur on the last day of a month.
C. If Lessee shall fail to approve in writing the proposal made by
Lessor pursuant to Paragraph B above within three (3) business days
following receipt thereof, the same shall be deemed disapproved in all
respects by Lessee and Lessor shall not make the change. If Lessee
approves in writing the additional charges or savings, if any, Lessor
shall cause the approved changes to be made. All savings or additional
charges shall be substantiated to Lessee's reasonable satisfaction.
V. PAYMENT OF THE PRICE
A. Lessor and Lessee shall pay the Price as follows:
(1) If the price does not exceed Lessee's Improvement Allowance,
Lessor shall pay all of the Price. Any unused allowance shall be
amortized using five (5%) percent annual interest rate and the
lesser of sixty (60) monthly payments or the remaining lease term
and applied as a credit to reduce the monthly Base Rent under the
Lease.
(2) If the Price exceeds Lessee's Improvement Allowance, Lessee
shall pay, subject to any reasonable retainage based on the punch
list, the excess within ten (10) days after completion and receipt
of written certification by Lessor's architect that Lessor's
Improvements have been completed in compliance with the provisions
of the Lease, including this Exhibit D. Lessor agrees that
acceptance of final payment is a waiver and release of Lessee from
any further claims under this Exhibit D.
(3) Lessor shall, or shall cause its general contractor to pay
everyone who has worked on Lessor's Improvements the full amount due
each under its respective contract with Lessor or its general
contractor.
(4) Lessor shall maintain a reasonable accounting of all costs of
the improvements which will be submitted to the Lessee at the
completion of the work and the Lessee will have the right, with
prior written notice to Lessor, to review the progress or the work
and costs at the offices of the general contractor.
<PAGE>
EXHIBIT E
SIGN CRITERIA
OAKVIEW BUSINESS CENTER
1284 CORPORATE CENTER DRIVE
1325 EAGANDALE COURT
EAGAN, MN 55121
1. TENANT IDENTIFICATION SIGNAGE: Tenant will be allowed a maximum of 15
individual letters to be mounted on a solid colored sign band, color to
match the accent color on the building. Letters shall be a maximum 12"
height, be white in color, and be Helvetica or Optima type style.
2. FRONT DOOR SIGN: Tenant will be allowed to install one 2' x 4' sign to
the right side of the primary entrance door. Size and style of type used
for tenant name and address may be at tenant's discretion. Field color of
sign panel shall match the accent color band on the building and
lettering shall be white.
3. MONUMENT SIGN: Tenant shall be allowed to install one line of type on the
monument sign facing Corporate Center Drive. Lettering shall match the
type style and color used for Office Plan and shall be no larger than 4"
height.
4. DOCK SIGNS: Tenant identification signs will be allowed above each
overhead dock or drive in door and on one walk-in man door. Sign placards
shall be a maximum 8" high x 24" long, be the same color as the accent
color on the building, have maximum 4" white lettering, and shall be
glued to the building. Signage mounted directly to the man door shall be
maximum 2" high white vinyl lettering.
5. No signage may be erected until a scaled layout has been approved by the
Lessor.
6. All letters and signage shall be non-illuminated.
<PAGE>
EXHIBIT F
GUARANTY OF LEASE
1. GUARANTY
SBS Technologies, Inc., a New Mexico corporation, ("Guarantor"), whose
address is 2400 Louisiana Boulevard NE, Albuquerque, New Mexico, 87110, as a
material inducement to and in consideration of Lutheran Brotherhood ("Lessor")
entering into a written lease (the "Lease") with Bit 3 Computer Corporation
("Lessee"), dated the same date as this Guaranty, unconditionally guarantees and
promises to and for the benefit of Lessor that Lessee shall perform the
provisions of the Lease that Lessee is to perform. If, at any time, default
shall be made by Lessee in the performance or observance of any of the terms,
covenants or conditions in the Lease contained on the Lessee's part to be kept,
performed or observed, the Guarantor will keep, perform and observe the same, as
the case may be, in place and stead of the Lessee.
If the Lease shall be renewed, or its term extended, or if the Lessee
holds over beyond the term of the Lease, the obligations hereunder of Guarantor
shall extend and apply with respect to the full and faithful performance and
observance of all of the covenants, terms, and conditions of the Lease and of
any such modification thereof.
2. INDEPENDENT OBLIGATIONS
If there is more than one guarantor, Guarantor's obligations are joint
and several with those of any other guarantor and are independent of Lessee's
obligations. A separate action may be brought or prosecuted against the
Guarantor whether the actions brought or prosecuted against any other Guarantor
or Lessee, or all, or whether any other Guarantor or Lessee, or all, are joined
in the action.
3. CHANGES TO LEASE
The provisions of the Lease may be changed by written agreement between
Lessor and Lessee at any time, with the consent of Guarantor. This Guaranty
shall guarantee the performance of the Lease as changed. Assignment of the Lease
(as may be permitted by the Lease) shall not affect this Guaranty.
4. SECURITY FOR LESSEE'S PERFORMANCE
The obligations of the Guarantor hereunder shall not be released by
Lessor's receipt, application or release of security given for Lessee's
performance and observance of covenants and conditions in the Lease; nor by any
modification of such Lease, but in case of any such modification, the liability
of Guarantor shall be deemed modified in accordance with the terms of such
modification of the Lease.
5. LESSEE'S ABILITY TO PERFORM
Guarantor assumes full responsibility for keeping fully informed of the
financial condition of Lessee and all other circumstances affecting Lessee's
ability to perform its obligations to Lessor, and agrees that Lessor shall have
no duty to report to any Guarantor any information which Lessor receives about
Lessee's financial condition or any circumstances bearing on Lessee's ability to
perform.
6. DELAY
This Guaranty shall not be affected by Lessor's failure or delay to
enforce any of its rights.
7. NOTICE OF LESSEE DEFAULT
Lessor agrees to give Guarantor ten (10) days written notice of any
breach or default by Lessee, which notice shall be deemed delivered twenty-four
(24) hours after the same is deposited in the United States mail, postage
prepaid, addressed to Guarantor at the address set forth above.
<PAGE>
8. DEFAULT
If Lessee defaults under the Lease, Lessor may proceed immediately
against Guarantor or Lessee, or both, subject to any existing cure period Lessee
is entitled to under the Lease or Lessor may enforce against Guarantor or
Lessee, or both, any rights that it has under the Lease, or pursuant to
applicable laws, but if Lessor chooses to proceed against both, such proceeding
need not be simultaneous but can be against Guarantor after proceeding against
Lessee or vice versa. If the lease terminates and Lessor has any rights it can
enforce against Lessee after termination, Lessor can enforce those rights
against Guarantor without giving previous notice to Lessee or Guarantor, or
without making any demand on either of them.
9. WAIVER OF DEFENSES
Guarantor hereby waives the right to require Lessor to (a) proceed
against Lessee (except as otherwise provided herein); (b) proceed against or
exhaust any security that Lessor holds from Lessee; or (c) pursue any other
remedy in Lessor's power. Until all of Lessee's obligations to Lessor have been
discharged in full, Guarantor has no right to subrogation against Lessee.
Guarantor waives its right to enforce any remedies that Lessor now has, or later
may have, against Lessee. Guarantor waives any right to participate in any
security now or later held by Lessor. Guarantor waives all presentments,
protests, notices of protest, notices of dishonor and notices of acceptance of
this Guaranty, and except as otherwise provided herein waives all notice of the
existence, creation, or incurring of the new or additional obligations.
The liability of Guarantor hereunder shall in no way be affected by (a)
the release or discharge of the Lessee in any bankruptcy, receivership or other
proceedings; (b) the impairment, limitation or modification of the liability of
Lessee or the estate of Lessee in bankruptcy, or of any remedy for the
enforcement of Lessee's said liability under the Lease, resulting from the
operation of any present or future provision of the bankruptcy laws or other
statutes or from the decisions of any court; (c) the rejection or disaffirmance
of the Lease in any proceeding; (d) the assignment or transfer of the Lease by
Lessee; (e) any disability or other defense of Lessee; or (f) the cessation from
any cause whatsoever of the liability of Lessee.
10. ATTORNEY'S FEES
If Lessor is required to enforce Guarantor's obligations by legal
proceeding, Guarantor shall pay to Lessor all costs incurred, including, without
limitation, reasonable attorneys' fees and costs of suits.
11. ASSIGNMENT
This Guaranty may be assigned and/or pledged without Guarantor's prior
consent and shall inure to the benefit of any successor in interest of Lessor.
Guarantor's obligations under this Guaranty shall be binding on Guarantor's
successors and legal representatives.
12. SEVERABILITY
The enforceability, invalidity or illegality of any provision shall not
render the other provisions unenforceable, invalid or illegal.
13. STATE LAW
The Lease and this Guaranty shall be governed by the laws of the State of
Minnesota.
<PAGE>
IN WITNESS WHEREOF, the Guarantor has hereunto set his hand this 19th
day of Sept, 1997.
Guarantor:
SBS TECHNOLOGIES, INC.
(a New Mexico corporation)
By: /s/ Steve Cooper
--------------------------------
Its: President & COO
-------------------------------
STATE OF CA )
) ss.
COUNTY OF SAN DIEGO )
On this the 19th day of Sept, 1997, before me, Julie Ann Shannon, the
undersigned notary Public, personally appeared Steve Cooper, personally known
to me or proved to me on the basis of satisfactory evidence to be the person
whose name is subscribed to the within instrument, and acknowledged that he
executed it.
WITNESS my hand and official seal.
/s/ Julie Ann Shannon
- ------------------------------
Notary Public
[NOTARY PUBLIC SEAL]
<PAGE>
AMENDMENT #1
TO LEASE DATED September 15, 1997 BY AND BETWEEN Lutheran Brotherhood, a
Minnesota corporation, AS LESSOR AND Bit 3 Computer Corporation, a wholly owned
subsidiary of SBS Technologies, AS LESSEE
THIS AMENDMENT TO LEASE, entered into and made as of the 23rd day of
December, 1997, by and between Lutheran Brotherhood, a Minnesota corporation, as
Lessor and Bit 3 Computer Corporation, a wholly owned subsidiary of SBS
Technologies, as Lessee.
WITNESSETH:
WHEREAS, Lessor and Lessee have heretofore entered into a certain lease,
dated September 5, 1997, (the "Lease"), of a certain space at Oakview Business
Center, Suite 200, 1284 Corporate Center Drive, Eagan, Minnesota (the
"Premises"), upon terms and conditions described in said Lease; and
WHEREAS, Lessor and Lessee desire to amend said lease as described below:
NOW THEREFORE, in consideration of the rents reserved and of the covenants
and agreements herein set forth, it is agreed that the Lease be hereby amended
from and after the date hereof as follows:
1. DEMISED PREMISES: Suite 200, the Demised Premises, consist of
approximately 39,576 square feet (14,803 square feet office and 24,773 square
feet of warehouse space.)
2. ADDITIONAL RENT: Lessee's prorata share of additional rent as defined
in Article 3 of the Lease shall be changed to Forty Six and 23/100 percent
(46.23%) for real estate taxes and Twenty Five and 14/100 percent (25.14%) of
annual aggregate operating expenses.
3. TERM: Pursuant to the provisions of the Lease relating to commencement
of the Term thereof, Lessor and Lessee, for themselves, their heirs, successors
and assigns, intending to be legally bound hereby, agree and stipulate that the
original Term of said Lease shall commence February 1, 1998, and will expire
January 31, 2003.
4. RENT COMMENCEMENT: Lessee shall pay to Lessor its prorata share of
Additional Rent as defined in Article 3 of the Lease, commencing January 1, 1998
through and including the Lease expiration date. Base Rent shall commence
February 1, 1998.
5. RENT PAYMENT ADDRESS: The address within Article 4 of the Lease to
which Lessee shall send rent payment to Lessor shall be changed to Welsh
Companies, Inc., CM 3650, St. Paul, Minnesota 55170-3650.
Except as is hereinabove set forth, all other terms, provisions and
covenants of the Lease shall remain unchanged and in full force and effect.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the day and year first above written.
LESSEE: LESSOR:
BIT 3 COMPUTER CORPORATION, LUTHERAN BROTHERHOOD
A WHOLLY OWNED SUBSIDIARY OF (A MINNESOTA CORPORATION)
SBS TECHNOLOGIES INC.
(A NEW MEXICO CORPORATION).
By: /s/ David Greig By: /s/ Clifford W. Habeck
------------------------------ ---------------------------------
David Greig Clifford W. Habeck
Its: President Its: Vice President
------------------------------ ---------------------------------
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THIS
CONSOLIDATED BALANCE SHEETS AND CONSOLIDATED STATEMENTS OF OPERATIONS FOUND IN
THE COMPANY'S 10-Q FOR THE YEAR-TO-DATE, AND IS QUALIFIED IN ITS ENTIRETY
BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1998
<PERIOD-END> DEC-31-1997
<CASH> 18,093,801
<SECURITIES> 0
<RECEIVABLES> 11,345,160
<ALLOWANCES> (477,053)
<INVENTORY> 8,635,353
<CURRENT-ASSETS> 41,209,703
<PP&E> 6,232,878
<DEPRECIATION> 2,597,031
<TOTAL-ASSETS> 66,629,027
<CURRENT-LIABILITIES> 8,597,754
<BONDS> 0
0
0
<COMMON> 47,039,262
<OTHER-SE> 10,992,011
<TOTAL-LIABILITY-AND-EQUITY> 66,629,027
<SALES> 34,741,648
<TOTAL-REVENUES> 34,741,648
<CGS> 15,261,910
<TOTAL-COSTS> 27,504,095
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 171,486
<INTEREST-EXPENSE> 95,067
<INCOME-PRETAX> 7,710,300
<INCOME-TAX> 3,123,500
<INCOME-CONTINUING> 7,710,300
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,586,800
<EPS-PRIMARY> .83
<EPS-DILUTED> 0.00
</TABLE>
