<PAGE> 1
Form 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
(MARK ONE)
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1997
--------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
--------------- -------------------
Commission File Number 0-10583
-------
- --------------------------------------------------------------------------------
FUQUA ENTERPRISES, INC.
-----------------------
(Exact name of registrant as specified in its charter)
DELAWARE 13-1988043
- ------------------------------- --------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ONE ATLANTIC CENTER, SUITE 5000
1201 W. PEACHTREE STREET, N.W., ATLANTA, GEORGIA 30309
------------------------------------------------------
(Address of principal executive offices)
Registrant's telephone number, including area code: 404-815-2000
-------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
--------- ---------
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date. As of June 30, 1997, there
were 4,482,709 shares of Common Stock, Par Value $2.50 per share outstanding.
<PAGE> 2
FUQUA ENTERPRISES, INC. AND SUBSIDIARIES
INDEX
PART I. FINANCIAL INFORMATION
<TABLE>
<S> <C>
Item 1. Financial Statements
Condensed Consolidated Balance Sheets
- June 30, 1997 and December 31, 1996
Condensed Consolidated Statements of Income
- for three months and six months ended June 30, 1997 and
June 30, 1996
Condensed Consolidated Statements of Cash Flows
- for six months ended June 30, 1997 and June 30, 1996
Notes to Condensed Consolidated Financial Statements
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
Item 6. Exhibits and Reports on Forms 8-K
</TABLE>
(i)
<PAGE> 3
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONDENSED CONSOLIDATED BALANCE SHEETS
FUQUA ENTERPRISES, INC. AND SUBSIDIARIES
(Unaudited; Amounts In Thousands)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1997 1996
------------ --------------
<S> <C> <C>
ASSETS
Cash and cash equivalents . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 4,535 $ 4,616
Receivables
Trade accounts, less allowance of $250 (1996, $250) . . . . . . . . . . . . . 46,552 33,871
Lease receivables, less allowance of $350 (1996, $350) . . . . . . . . . . . 176 1,147
Inventories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44,569 42,059
Prepaid expenses and other assets . . . . . . . . . . . . . . . . . . . . . . . 2,311 2,620
Deferred income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,934 3,477
-------------------------
Total Current Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . 103,077 87,790
-------------------------
Property, plant and equipment . . . . . . . . . . . . . . . . . . . . . . . . . 51,778 48,927
Less accumulated depreciation . . . . . . . . . . . . . . . . . . . . . . . . . (17,694) (15,166)
-------------------------
Net Property, Plant and Equipment . . . . . . . . . . . . . . . . . . . . . 34,084 33,761
-------------------------
Intangible assets, less accumulated amortization of $923 (1996, $399) . . . . . 37,995 20,014
Lease receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 3,503
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,557 1,408
-------------------------
Total Assets of Continuing Operations . . . . . . . . . . . . . . . . . . . 176,713 146,476
Total Assets of Discontinued Operations . . . . . . . . . . . . . . . . . . 3,491 4,935
-------------------------
Total Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 180,204 $ 151,411
=========================
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
1
<PAGE> 4
CONDENSED CONSOLIDATED BALANCE SHEETS
FUQUA ENTERPRISES, INC. AND SUBSIDIARIES
(Unaudited; Amounts In Thousands, Except Share Data)
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
1997 1996
------------ --------------
<S> <C> <C>
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable and accrued expenses . . . . . . . . . . . . . . . . . . . . . $ 29,489 $ 29,992
Current portion of debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,867 1,453
-------------------------
Total Current Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . 33,356 31,445
Long-term liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54,579 30,686
-------------------------
Total Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87,935 62,131
-------------------------
Stockholders' equity
Preference stock, $1 par value:
authorized 8,000,000 shares; none issued . . . . . . . . . . . . . . . . . - -
Common stock, $2.50 par value:
authorized 20,000,000 shares; issued 4,528,669
(1996 - 4,523,669) shares . . . . . . . . . . . . . . . . . . . . . . . . . 11,322 11,309
Additional paid-in capital . . . . . . . . . . . . . . . . . . . . . . . . . . 24,902 24,847
Retained earnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56,918 53,971
-------------------------
93,142 90,127
Treasury stock, at cost: 45,960 (1996 - 44,822) shares . . . . . . . . . . . . (873) (847)
-------------------------
Total Stockholders' Equity . . . . . . . . . . . . . . . . . . . . . . . . 92,269 89,280
-------------------------
Total Liabilities and Stockholders' Equity . . . . . . . . . . . . . . . $ 180,204 $ 151,411
=========================
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
2
<PAGE> 5
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
FUQUA ENTERPRISES, INC. AND SUBSIDIARIES
(Unaudited; Amounts In Thousands, Except Per Share Data)
<TABLE>
<CAPTION>
FOR THREE MONTHS ENDED FOR SIX MONTHS ENDED
JUNE 30, JUNE 30,
---------------------------- --------------------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
REVENUES:
Net Sales . . . . . . . . . . . . . . . . . . . . . . . $ 62,708 $ 46,898 $ 118,329 $ 77,398
Investment income . . . . . . . . . . . . . . . . . . . 33 597 83 1,267
-------------------------------------------------------
Total revenues . . . . . . . . . . . . . . . . . . . . 62,741 47,495 118,412 78,665
-------------------------------------------------------
COSTS AND EXPENSES:
Cost of sales . . . . . . . . . . . . . . . . . . . . . 49,701 36,163 94,278 60,374
Selling, general and administrative expenses . . . . . 9,641 7,802 18,014 11,801
Interest expense . . . . . . . . . . . . . . . . . . . 938 761 1,531 1,094
-------------------------------------------------------
Total costs and expenses . . . . . . . . . . . . . . . 60,280 44,726 113,823 73,269
-------------------------------------------------------
INCOME BEFORE INCOME TAXES . . . . . . . . . . . . . . . 2,461 2,769 4,589 5,396
INCOME TAXES . . . . . . . . . . . . . . . . . . . . . . 856 931 1,642 1,958
-------------------------------------------------------
NET INCOME . . . . . . . . . . . . . . . . . . . . . . . $ 1,605 $ 1,838 $ 2,947 $ 3,438
=======================================================
PER SHARE:
Net Income . . . . . . . . . . . . . . . . . . . . . . $ .36 $ .40 $ .65 $ .76
Common shares and equivalents . . . . . . . . . . . . . . 4,483 4,603 4,514 4,551
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
3
<PAGE> 6
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
FUQUA ENTERPRISES, INC. AND SUBSIDIARIES
(Unaudited; Amounts In Thousands)
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE 30,
-------------------------
1997 1996
---- ----
<S> <C> <C>
OPERATING ACTIVITIES
Net cash used in continuing operations . . . . . . . . . . . . . . . . . . . $ (7,854) $ (6,945)
Net cash provided by discontinued operations . . . . . . . . . . . . . . . . 1,444 3,706
-------------------------
Net Cash Used In All Operations . . . . . . . . . . . . . . . . . . . . . (6,410) (3,239)
-------------------------
INVESTING ACTIVITIES
Purchase of business, net of cash acquired . . . . . . . . . . . . . . . . . 1,058 (41,300)
Sales of available for sale investments . . . . . . . . . . . . . . . . . . . - 10,517
Purchases of available for sale investments . . . . . . . . . . . . . . . . . - (20,685)
Purchase of property, plant and equipment . . . . . . . . . . . . . . . . . . (1,578) (1,020)
Total from discontinued operations . . . . . . . . . . . . . . . . . . . . . - (165)
-------------------------
Net Cash Used In Investing Activities . . . . . . . . . . . . . . . . . . (520) (52,653)
-------------------------
FINANCING ACTIVITIES
Net increase in notes payable . . . . . . . . . . . . . . . . . . . . . . . . - 34,826
Payment of long-term liabilities . . . . . . . . . . . . . . . . . . . . . . (1,193) (2,064)
Additional long-term liabilities . . . . . . . . . . . . . . . . . . . . . . 8,000 -
Exercise of stock options . . . . . . . . . . . . . . . . . . . . . . . . . . 68 974
Acquired shares for treasury . . . . . . . . . . . . . . . . . . . . . . . . (26) (827)
-------------------------
Net Cash Provided By Financing Activities . . . . . . . . . . . . . . . 6,849 32,909
-------------------------
Increase (Decrease) in Cash and Cash Equivalents
Continuing Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . (223) (26,524)
Discontinued Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 3,541
Cash and Cash Equivalents, Beginning of Period . . . . . . . . . . . . . . . . 4,616 29,000
-------------------------
Cash and Cash Equivalents, End of Period . . . . . . . . . . . . . . . . . . . $ 4,535 $ 6,017
=========================
</TABLE>
See accompanying Notes to Condensed Consolidated Financial Statements.
4
<PAGE> 7
FUQUA ENTERPRISES, INC. AND SUBSIDIARIES
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
June 30, 1997
1. CORPORATE DEVELOPMENT ACTIVITIES:
On April 3, 1996, Fuqua acquired the medical products operations of Lumex,
Inc. (the "Lumex Division") from Cybex International, Inc. (formerly Lumex,
Inc., the "Seller"). The purchase price for the Lumex Division was $40.7
million subject to a final adjustment as provided in the asset sale agreement.
The final purchase price adjustment is in dispute and is being resolved through
arbitration. Fuqua submitted its initial position statement to the arbitrator
in March 1997, which claimed that net assets at the closing date were overstated
by $9.3 million. In March 1997, Fuqua gave notice to the Seller to preserve
Fuqua's indemnification rights provided in the asset sale agreement. On April
18, 1997, the Seller obtained an interim stay of the arbitration proceedings,
pending a hearing on May 9, 1997. On May 9, 1997, the New York County Supreme
Court vacated its stay of the arbitration proceedings and directed Fuqua and the
Seller to proceed to arbitration forthwith. On June 10, 1997, the Seller filed
a motion for a stay of arbitration pending the hearing and determination of the
Seller's appeal with the Appellate Division of the New York County Supreme
Court. On June 24, 1997, the Appellate Division denied the Seller's motion to
stay the arbitration proceedings pending appeal. Accordingly, Fuqua and the
Seller are continuing with the arbitration proceedings. On August 4, 1997, the
Seller filed its brief with the Appellate Division in connection with the
Seller's appeal of the May 9, 1997 order of the New York County Supreme Court.
Briefing of the Seller's appeal is expected to be completed in September 1997.
On February 26, 1997, Fuqua acquired 100% of the outstanding common stock
and warrants of Prism Enterprises, Inc. ("Prism"). Prism, whose 1996 net
sales were $12.0 million, is a manufacturer of therapeutic heat and cold packs
for medical and consumer uses and vacuum systems for obstetrical and other
applications. Prism's operating facilities are located in San Antonio, Texas
and Rancho Cucamonga, California. The purchase price was $19.5 million and was
financed with borrowings under Fuqua's Revolving Credit Facility. Based on the
preliminary allocation of purchase price, the excess purchase price over the
net assets acquired of $16.2 million was assigned to goodwill and is being
amortized on a straight-line basis over 30 years.
The results of operations of the Lumex Division are included in the
Condensed Consolidated Financial Statements for the three months and six months
ended June 30, 1997. The results of operations of Prism are included in the
Condensed Consolidated Financial Statements for the period from acquisition
date, February 26, 1997, through June 30, 1997. The following pro forma summary
presents Fuqua's consolidated results from operations as if these acquisitions
had occurred on the first day of each of the respective three and six month
periods for Prism and on January 1, 1996 for the Lumex Division. These pro
forma results have been prepared for comparative purposes only and do not
purport to be indicative of what would have occurred had the acquisitions
actually been made as of those dates or the results which may occur in the
future.
<TABLE>
<CAPTION>
FOR THREE MONTHS FOR THREE MONTHS FOR SIX MONTHS FOR SIX MONTHS
ENDED ENDED ENDED ENDED
JUNE 30, 1997 JUNE 30, 1996 JUNE 30, 1997 JUNE 30, 1996
(Amounts In Thousands, Except Share Data)
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $ 61,412 $ 50,544 $ 118,906 $ 96,851
Net income (loss) 1,471 1,885 2,910 (1,213)
Net income (loss) per share .33 .42 .65 (.27)
</TABLE>
5
<PAGE> 8
2. PER SHARE CALCULATIONS:
Per share calculations are based on the average number of shares outstanding
plus common stock equivalents, if dilutive. Common stock equivalents include
the effect of options granted to key employees under Fuqua's Stock Option
Plans. Fully diluted per share calculations are not significantly different
from those reported.
3. INVENTORIES:
Inventories consisted of the following:
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
(Amounts In Thousands) 1997 1996
- -------------------------------------------------------------------------------------------------------
<S> <C>
Finished goods $ 13,243 $ 16,238
Work in progress 12,189 12,338
Raw materials and supplies 19,137 13,483
------ ------
$ 44,569 $ 42,059
====== ======
</TABLE>
4. SUPPLEMENTAL CASH FLOW INFORMATION:
<TABLE>
<CAPTION>
FOR SIX MONTHS ENDED
JUNE 30,
(Amounts In Thousands) 1997 1996
- -------------------------------------------------------------------------------------------------------
<S> <C>
Interest payments $ 1,035 $ 1,565
------- -------
Income tax payments $ 832 $ 2,058
------- -------
Issuance of debt in connection with business acquisition $ 19,500 $ 33,000
------- -------
</TABLE>
5. CAPITAL STOCK:
During the three months ended June 30, 1997, options for 5,000 shares were
exercised at $9.50 per share and Fuqua acquired 1,138 shares of common stock
for its treasury. During the three months ended June 30, 1996, options for 500
shares of common stock were exercised at $8.50 per share and Fuqua acquired no
shares of common stock for its treasury.
____________________
The unaudited condensed consolidated financial statements reflect all
adjustments (consisting of normal recurring accruals) which are, in the opinion
of management, necessary for a fair presentation of the results for the interim
periods. However, interim period results are not necessarily indicative of
results for the year, taken as a whole. It is suggested that these unaudited
condensed consolidated financial statements be read in conjunction with the
consolidated financial statements and notes thereto included in Fuqua's 1996
Annual Report on Form 10-K.
6
<PAGE> 9
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
RESULTS OF OPERATIONS AND FINANCIAL CONDITION
Acquisitions: On April 3, 1996, Fuqua acquired the medical products
operations of Lumex, Inc. (the "Lumex Division") from Cybex International, Inc.
(formerly Lumex, Inc., the "Seller"). The purchase price for the Lumex Division
was $40.7 million subject to a final adjustment as provided in the asset sale
agreement. The final purchase price adjustment is in dispute and is being
resolved through arbitration. Fuqua submitted its initial position statement to
the arbitrator in March 1997, which claimed that the net assets at the closing
date were overstated by $9.3 million. In March 1997, Fuqua gave notice to the
Seller to preserve Fuqua's indemnification rights provided in the asset sale
agreement. On April 18, 1997, the Seller obtained an interim stay of the
arbitration proceedings, pending a hearing on May 9, 1997. On May 9, 1997, the
New York County Supreme Court vacated its stay of the arbitration proceedings
and directed Fuqua and the Seller to proceed to arbitration forthwith. On June
10, 1997, the Seller filed a motion for a stay of arbitration pending the
hearing and determination of the Seller's appeal with the Appellate Division of
the New York County Supreme Court. On June 24, 1997, the Appellate Division
denied the Seller's motion to stay the arbitration proceedings pending appeal.
Accordingly, Fuqua and the Seller are continuing with the arbitration
proceedings. On August 4, 1997, the Seller filed its brief with the Appellate
Division in connection with the Seller's appeal of the May 9, 1997 order of the
New York County Supreme Court. Briefing of the Seller's appeal is expected to be
completed in September 1997.
On February 26, 1997, Fuqua acquired 100% of the outstanding common stock
and warrants of Prism Enterprises, Inc. ("Prism"). Prism, whose 1996 net
sales were $12.0 million, is a manufacturer of therapeutic heat and cold packs
for medical and consumer uses and vacuum systems for obstetrical and other
applications. Prism's operating facilities are located in San Antonio, Texas
and Rancho Cucamonga, California. The purchase price was $19.5 million and was
financed with borrowings under Fuqua's Revolving Credit Facility. Based on the
preliminary allocation of purchase price, the excess purchase price over the
net assets acquired of $16.2 million was assigned to goodwill and is being
amortized on a straight-line basis over 30 years.
Medical Products Operations: Net sales in the second quarter of 1997 were
$26,392,000 as compared to $20,143,000 in the second quarter of 1996. The
cost of sales increased from $14,455,000 in the second quarter of 1996 to
$17,846,000 in the second quarter of 1997. Selling, general and administrative
costs increased from $4,976,000 in the second quarter of 1996 to $6,473,000 in
the second quarter of 1997. Net sales during the six months ended June 30,
1997 were $50,795,000 as compared to $27,773,000 in the comparable period of
1996. The cost of sales during the six months ended June 30, 1997 were
$35,032,000 as compared to $19,953,000 in the six months ended June 30, 1996.
Selling, general and administrative costs increased from $6,394,000 in the six
months ended June 30, 1996 to $12,142,000 in the six months ended June 30,
1997. The increases in net sales, cost of sales and selling, general and
administrative costs are due principally to the acquisition of the Lumex
Division and Prism which are included in the periods presented for 1997, but
not in any (Prism) or only portions (Lumex Division) of the comparable periods
of 1996.
Inventories at June 30, 1997 were $16,090,000 as compared to $17,279,000 at
December 31, 1996 and accounts receivable at June 30, 1997 were $17,264,000 as
compared to $16,870,000 at December 31, 1996. The decrease in inventories
resulted from improvements in operational efficiencies at the Lumex Division
and Basic which more than offset the addition of Prism's inventories. The
increase in accounts receivable is due principally to the acquisition of Prism.
Capital expenditures for the Medical Products Operations were $339,000 in
the second quarter of 1997 as compared to $224,000 in the second quarter of
1996. Capital expenditures were $944,000 in the first six months of 1997 as
compared to $340,000 in the first six months of 1996. Capital expenditures are
expected to be $1,950,000 for the entire year of 1997. Depreciation and
amortization expense for the second quarter of 1997 was $1,042,000 as compared
to $665,000 in the second quarter of 1996. Depreciation and amortization
expense was $1,870,000 in the first six months of 1997 as compared to $799,000
in the first six months of 1996.
Leather Operations: Net sales of the Leather Operations increased
$9,561,000 or 35.7% in the second quarter of 1997 versus the comparable period
of 1996, principally as a result of increased quantities of leather sold. Net
sales of the Leather Operations increased $17,909,000 or 36.1% in the first six
months of 1997 as compared to the
7
<PAGE> 10
first six months of 1996. Sales to foreign customers represented 41.0% of net
sales in the second quarter of 1997 as compared to 28.0% of net sales in the
second quarter of 1996.
The profit margin decreased to 5.4% of sales in the second quarter of 1997
from 11.6% in the comparable period of 1996 and decreased to 5.6% of sales in
the first six months of 1997 from 11.1% in the comparable period of 1996,
primarily due to the liquidation of raw material hide inventories which were
acquired when prices were higher and a temporary reduction in shipments to a
significant customer in 1997.
Selling, general and administrative expenses increased $470,000 or 24.1% in
the second quarter of 1997 compared to the second quarter of 1996, representing
6.7% of net sales as compared to 7.3% a year ago. Selling, general and
administrative expenses in the first six months of 1997 were $4,423,000, which
represented an increase of $741,000 or 20.1% compared to the first six months
of 1996. The increase in selling, general and administrative expenses was
principally due to increased selling expenses associated with higher levels of
foreign sales.
Accounts receivable were higher, $27,609,000 at June 30, 1997, as compared
to $15,803,000 at December 31, 1996, due principally to seasonal factors.
During the first six months of 1997, inventories increased 14.9%, from
$24,780,000 at December 31, 1996 to $28,479,000 at June 30, 1997.
Capital expenditures for the Leather Operations were $562,000 in the second
quarter of 1997 and $842,000 in the first six months of 1997, and are expected
to be approximately $2,131,000 for the entire year of 1997. Depreciation
expense for the Leather Operations in the second quarter of 1997 was $450,000
as compared to $468,000 in the comparable period of 1996. Depreciation expense
was $849,000 in the first six months of 1997 as compared to $892,000 in the
comparable period of 1996.
Corporate Office Operations: Investment income in the second quarter of
1997 was $33,000 as compared to $597,000 in the comparable period of 1996.
Investment income in the first six months of 1997 was $83,000 as compared to
$1,267,000 in the first six months of 1996. The decrease in investment income
in 1997 reflects the lower levels of invested funds as a result of business
acquisitions.
Interest expense in the second quarter of 1997 was $938,000 as compared to
$761,000 in the comparable period of 1996 and was $1,531,000 in the first six
months of 1997 as compared to $1,094,000 in the first six months of 1996,
reflecting higher interest costs and fees associated with a larger amount of
outstanding debt arising from the acquisitions of the Lumex Division and Prism.
General and Administrative expenses for corporate office activities were
$675,000 in the second quarter of 1997 as compared to $873,000 in the
comparable period of 1996 and were $1,379,000 in the first six months of 1997
as compared to $1,725,000 in the first six months of 1996. The decrease
resulted mainly from costs and expenses associated with 1996 corporate
development activities as compared to such activities in the first quarter of
1997.
Recent Pronouncements: In February 1997, the Financial Accounting Standards
Board issued Statement No. 128, Earnings per Share, which is required to be
adopted on December 31, 1997. At that time, Fuqua will be required to change
the method currently used to compute earnings per share and to restate all
prior periods. Under the new requirements for calculating primary earnings per
share, the dilutive effect of stock options will be excluded. Since Fuqua does
not have a significant amount of common stock equivalents, the impact of
Statement No. 128 on the calculation of earnings per share for the quarter and
six month period ended June 30, 1997 is not material.
8
<PAGE> 11
LIQUIDITY AND CAPITAL RESOURCES:
At June 30, 1997, Fuqua had $4,535,000 in cash and cash equivalents and
$45,000,000 in borrowing capacity under Fuqua's Revolving Credit Facility.
Management believes that Fuqua has adequate resources and borrowing capacity to
meet its obligations when due and to pursue its corporate development
activities.
Certain matters included herein may constitute "forward-looking statements"
within the meaning of Federal securities laws. These forward looking
statements reflect management's current expectations and are based upon
currently available data. Actual results are subject to future events, risks
and uncertainties, such as competition, inflation, timing of capital
expenditures and other risk factors, which could materially impact performance
from that expressed or implied in these statements.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS:
On April 3, 1996, Fuqua acquired the medical products operations of Lumex,
Inc. (the "Lumex Division") from Cybex International, Inc. (formerly Lumex,
Inc., the "Seller"). The purchase price for the Lumex Division was $40.7
million, subject to a final purchase price adjustment as provided in the asset
sale agreement. The final purchase price adjustment is in dispute and is being
resolved through arbitration. Fuqua submitted its initial position statement to
the arbitrator in March 1977, which claimed that net assets at the closing date
were overstated by $9.3 million. In March 1997, Fuqua gave notice to the Seller
to preserve Fuqua's indemnification rights provided in the asset sale agreement.
On April 18, 1997, the Seller, obtained an interim stay of the arbitration
proceedings pending a hearing on May 9, 1997. On May 9, 1997, the New York
County Supreme Court vacated its stay of the arbitration proceedings and
directed Fuqua and the Seller to proceed to arbitration forthwith. On June 10,
1997, the Seller filed a motion for a stay of arbitration pending the hearing
and determination of the Seller's appeal with the Appellate Division of the New
York County Supreme Court. On June 24, 1997, the Appellate Division denied the
Seller's motion to stay the arbitration proceedings pending appeal.
Accordingly, Fuqua and the Seller are continuing with the arbitration
proceedings. On August 4, 1997, the Seller filed its brief with the Appellate
Division in connection with the Seller's appeal of the May 9, 1997 order of the
New York County Supreme Court. Briefing of the Seller's appeal is expected to
be completed in September 1997.
The nature of Fuqua's business results in claims or litigation which
management believes to be routine and incidental to Fuqua's business. Fuqua
maintains insurance in such amounts and with such coverages and deductibles as
management believes are reasonable and prudent, although in certain actions,
plaintiffs request damages that may not be covered by insurance. Management
does not believe that the outcome of any such pending claims and litigation
will have a material adverse effect upon Fuqua's results of operations or
financial condition, although no assurance can be given as to the ultimate
outcome of any such claim or litigation.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Listing of Exhibits
10(a) Employment Agreement dated July 1, 1997 between Fuqua and John
J. Huntz, Jr.
10(b) Employment Agreement dated July 1, 1997 between Fuqua and
Brady W. Mullinax, Jr.
10(c) Letter Agreement dated July 1, 1997, between Fuqua and
Lawrence P. Klamon
10(d) Lease Agreement dated May 20, 1997 between Alamo Fairgrounds,
Ltd. (Lessor) and Prism Technologies, Inc. (Lessee)
11 Statement of Computation of Earnings Per Share
27 Financial Data Schedule (for SEC use only) Article 5
(b) Reports on Form 8-K
None
9
<PAGE> 12
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.
FUQUA ENTERPRISES, INC.
REGISTRANT
/s/ Brady W. Mullinax, Jr.
----------------------------------------------
Brady W. Mullinax, Jr., Vice President-Finance,
Treasurer and Chief Financial Officer
(Principal Financial and Accounting Officer
and Executive Officer duly authorized to sign
on behalf of the registrant)
Date: August 14, 1997
10
<PAGE> 1
EXHIBIT 10(a)
EMPLOYMENT AGREEMENT
AGREEMENT by and between Fuqua Enterprises, Inc., a Delaware
corporation (the "Company") and John J. Huntz, Jr. (the "Executive"), dated as
of July 1, 1997.
The Board of Directors of the Company (the "Board"), has determined
that it is in the best interests of the Company and its shareholders to assure
that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change of Control
(as defined below) of the Company. The Board believes it is imperative to
diminish the inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control
and to encourage the Executive's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide the Executive with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits expectations
of the Executive will be satisfied and which are competitive with those of
other corporations. Therefore, in order to accomplish these objectives, the
Board has caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall mean the date of this
Agreement as set forth above, July 1, 1997.
(b) The "Employment Period" shall mean the period
commencing on the Effective Date and ending on the earlier of (i) the second
anniversary of the Effective Date, or (ii) the termination of the Executive's
employment pursuant to Section 5 of this Agreement; provided, however, that
commencing on the date one year after the Effective Date, and on each annual
anniversary of such date (such date and each annual anniversary thereof shall
be hereinafter referred to as the "Renewal Date"), unless previously
terminated, the Employment Period shall be automatically extended so as to
terminate two years from such Renewal Date, unless at least 60 days prior to
the Renewal Date the Company shall give written notice to the Executive that
the Employment Period shall not be so extended.
2. Change of Control. For the purposes of this Agreement, a
"Change of Control" shall mean:
(a) The acquisition, in one or more transactions, by any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of
<PAGE> 2
20% or more of either (i) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change of Control: (i) any
acquisition pursuant to a public offering of securities by the Company, (ii)
any acquisition if, immediately thereafter, members of the Fuqua family,
collectively, continue to own more of the Outstanding Company Common Stock or
the Outstanding Company Voting Securities than any other Person or (iii) any
acquisition by any corporation pursuant to a transaction which complies with
clauses (i), (ii), (iii) and (iv) of subsection (c) of this Section 2; or
(b) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(c) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock ("Outstanding Resulting Company Common Stock") and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors ("Outstanding Resulting Company Voting
Securities"), as the case may be, of the corporation resulting from such
Business Combination (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to
such Business Combination of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (ii) no Person
(excluding any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of
- 2 -
<PAGE> 3
such corporation except to the extent that such ownership existed prior to the
Business Combination, (iii) at least a majority of the members of the board of
directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of theexecution of the initial
agreement, or of the action of the Board, providing for such Business
Combination, and (iv) members of the Fuqua family, collectively, continue to
own more of the Outstanding Resulting Company Common Stock and the Outstanding
Resulting Company Voting Securities than any other Person; or
(d) A liquidation of the Company; or
(e) Any change in the Board, or in the board of directors of any
corporation resulting from a Business Combination, such that Fuqua Nominees (as
defined below) hold less than a majority of the board of director positions in
the Company or such corporation. For purposes of this subsection (e), "Fuqua
Nominees" shall mean any member of the Fuqua family and any other individual
whose election, or nomination for election, as a director of the Company or of
such corporation was approved by a member of the Fuqua family; provided,
however, that no individual other than a member of the Fuqua family shall be
deemed a Fuqua Nominee if that person's election, or nomination for election,
as a director of the Company or such corporation was also approved by, or at
the request of, another Person who owns beneficially the lesser of: (i) as many
or more shares of Outstanding Company Common Stock or Outstanding Company
Voting Securities as then owned beneficially by the Fuqua family, or (ii) 20%
of the Outstanding Company Common Stock or Outstanding Company Voting
Securities.
3. Employment. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in the
employ of the Company subject to the terms and conditions of this Agreement,
for the Employment Period.
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) the
Executive's position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 120-day period immediately
preceding the Effective Date and (B) the Executive's services shall be
performed at the principle executive offices of the Company, as the same may be
located from time to time; provided that this Agreement shall not prohibit the
assignment to Executive on a reasonable and temporary basis of duties at any
office or location other than such principle office location.
(ii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote
- 3 -
<PAGE> 4
reasonable attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge the
responsibilities assigned to the Executive hereunder, to use the Executive's
reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base Salary") of
$220,000, which shall be paid in accordance with the normal payroll policies of
the Company. During the Employment Period, the Annual Base Salary shall be
reviewed no more than 12 months after the last salary increase awarded to the
Executive prior to the Effective Date and thereafter at least annually. Any
increase in Annual Base Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Annual Base Salary shall not
be reduced after any such increase and the term Annual Base Salary as utilized
in this Agreement shall refer to Annual Base Salary as so increased. As used
in this Agreement, the term "affiliated companies" shall include any company
controlled by, controlling or under common control with the Company.
(ii) Annual Bonus. In addition to Annual Base
Salary, the Executive shall be awarded, for each fiscal year ending during the
Employment Period, an annual bonus (the "Annual Bonus") in cash at least equal
to the Executive's highest bonus from the Company for the last full fiscal year
prior to the Effective Date. Each such Annual Bonus shall be paid in the
fiscal year in which it is awarded or, at the Executive's option, no later than
the end of the third month of the fiscal year next following the fiscal year
for which the Annual Bonus is awarded, unless the Executive shall elect to
defer the receipt of such Annual Bonus.
(iii) Incentive, Savings and Retirement Plans.
During the Employment Period, the Executive shall be entitled to participate in
all incentive, savings and retirement plans, practices, policies and programs
applicable generally to other peer executives of the Company and its affiliated
companies, but in no event shall such plans, practices, policies and programs
provide the Executive with incentive opportunities (measured with respect to
both regular and special incentive opportunities, to the extent,
- 4 -
<PAGE> 5
if any, that such distinction is applicable), savings opportunities and
retirement benefit opportunities, in each case, less favorable, in the
aggregate, than those provided to Executive as of the Effective Date. It shall
not be a violation of this Section for the Company to provide, in lieu of the
grant of stock options, an incentive bonus program that is based on objective
performance goals established by the Board or a committee of the Board.
(iv) Welfare Benefit Plans. During the Employment
Period, the Executive and/or the Executive's family, as the case may be, shall
be eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Company and its
affiliated companies (including, without limitation, medical, prescription,
dental, disability, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
other peer executives of the Company and its affiliated companies, and in no
event shall such plans, practices, policies and programs provide the Executive
with benefits which are less favorable, in the aggregate, than those provided
to Executive as of the Effective Date.
(v) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the most favorable
policies, practices and procedures in effect for other peer executives of the
Company and its affiliated companies and in no event less favorable than those
policies, practices and procedures in effect as of the Effective Date.
(vi) Fringe Benefits. During the Employment Period,
the Executive shall be entitled to fringe benefits, including, without
limitation, payment of club dues and use of an automobile and payment of
related expenses, in accordance with the most favorable plans, practices,
programs and policies of the Company and its affiliated companies in effect for
other peer executives of the Company and its affiliated companies and in no
event less favorable than those benefits provided to Executive as of the
Effective Date.
(vii) Office and Support Staff. During the
Employment Period, the Executive shall be entitled to an office of a size and
with furnishings and other appointments, and secretarial and other assistance,
at least comparable to that provided to Executive as of the Effective Date.
(viii) Vacation. During the Employment Period, the
Executive shall be entitled to four weeks paid vacation per year.
5. Termination of Employment.
(a) Death or Disability. The Executive's employment
shall terminate
- 5 -
<PAGE> 6
automatically upon the Executive's death during the Employment Period. If the
Company determines in good faith that the Disability of the Executive has
occurred during the Employment Period (pursuant to the definition of Disability
set forth below), it may give to the Executive written notice in accordance
with Section 12(b) of this Agreement of its intention to terminate the
Executive's employment. In such event, the Executive's employment with the
Company shall terminate effective on the 30th day after receipt of such notice
by the Executive (the "Disability Effective Date"), provided that, within the
30 days after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's
duties with the Company on a full-time basis for 180 consecutive business days
as a result of incapacity due to mental or physical illness which is determined
to be total and permanent by a physician selected by the Company or its
insurers and acceptable to the Executive or the Executive's legal
representative.
(b) Cause. The Company may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean:
(i) the willful and continued failure of the
Executive to perform substantially the Executive's duties with the Company
(other than any such failure resulting from incapacity due to physical or
mental illness), for at least 30 days after a written demand for substantial
performance is delivered to the Executive by the Board or the Executive
Committee of the Company which specifically identifies the manner in which the
Board or the Executive Committee believes that the Executive has not
substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in
illegal conduct or gross misconduct which is materially and demonstrably
injurious to the Company.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board or upon the instructions of the Executive Committee,
the Chief Executive Officer or a senior officer of the Company or based upon
the advice of counsel for the Company shall be conclusively presumed to be
done, or omitted to be done, by the Executive in good faith and in the best
interests of the Company. The cessation of employment of the Executive shall
not be deemed to be for Cause unless and until there shall have been delivered
to the Executive a copy of a resolution duly adopted by the affirmative vote of
not less than three-quarters of the entire membership of the Board at a meeting
of the Board called and held for such purpose (after reasonable notice is
provided to the Executive and the Executive is given an opportunity, together
with counsel, to be heard before the Board), finding that, in the
- 6 -
<PAGE> 7
good faith opinion of the Board, the Executive is guilty of the conduct
described in subparagraph (i) or (ii) above, and specifying the particulars
thereof in detail.
(c) Good Reason. The Executive's employment may be
terminated by the Executive for Good Reason. For purposes of this Agreement,
"Good Reason" shall mean:
(i) the assignment to the Executive of any duties
materially inconsistent with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 4(a) of this Agreement, or any
other action by the Company which results in a material diminution in such
position, authority, duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice thereof given by
the Executive;
(ii) any failure by the Company to comply with any
of the provisions of Section 4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(iii) the Company's requiring the Executive to be
based at any office or location other than as provided in Section 4(a)(i)(B)
hereof or the Company's requiring the Executive to travel on Company business
to a substantially greater extent than required immediately prior to the
Effective Date;
(iv) any termination by the Company of the
Executive's employment otherwise than for Cause, Death or Disability; or
(v) any failure by the Company to comply with and
satisfy Section 11(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of
"Good Reason" made by the Executive shall be conclusive. Anything in this
Agreement to the contrary notwithstanding, a termination by the Executive for
any reason at least 90 but not more than 120 days following consummation of a
Change of Control or during the 30-day period immediately following the first
anniversary of a Change of Control shall be deemed to be a termination for Good
Reason for all purposes of this Agreement. If at any time prior to a Change of
Control, the Executive gives written notice of his probable intention to
terminate employment during the first such window period, there shall be
deposited into escrow immediately prior to the Change of Control the cash
amounts payable to the Executive pursuant to Section 6(a) of this Agreement.
If the Executive in fact terminates his employment during such window period,
the escrowed funds will be released to him at that time. If he does not
terminate his employment during such first window period, the escrowed funds
will be released to the Company at the end of such
- 7 -
<PAGE> 8
window period, without prejudice to the Company's obligation to pay such
amounts when and if they later become due under Section 6(a). Any interest
earned on the escrowed funds during escrow will be paid to the Company.
(d) Notice of Termination. Any termination by the
Company for Cause, or by the Executive for Good Reason, shall be communicated
by Notice of Termination to the other party hereto given in accordance with
Section 12(b) of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated and (iii) if the Date of Termination (as defined below)
is other than the date of receipt of such notice, specifies the termination
date (which date shall be not more than 30 days after the giving of such
notice). The failure by the Executive or the Company to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing
of Good Reason or Cause shall not waive any right of the Executive or the
Company, respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i)
if the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability, the
Date of Termination shall be the date on which the Company notifies the
Executive of such termination and (iii) if the Executive's employment is
terminated by reason of death or Disability, the Date of Termination shall be
the date of death of the Executive or the Disability Effective Date, as the
case may be.
6. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause, Death or
Disability. If, during the Employment Period, the Company shall terminate the
Executive's employment other than for Cause or Disability or the Executive
shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the aggregate of the
following amounts:
A. the sum of (1) the Executive's
Annual Base Salary through the Date of Termination to the extent not
theretofore paid, (2) the product of (x) the Annual Bonus paid or payable,
including any bonus or portion thereof which has been earned but deferred, for
the most recently completed fiscal year during or prior to the
- 8 -
<PAGE> 9
Employment Period and (y) a fraction, the numerator of which is the number of
days in the current fiscal year through the Date of Termination, and the
denominator of which is 365, and (3) any compensation previously deferred by
the Executive (together with any accrued interest or earnings thereon) and any
accrued vacation pay, in each case to the extent not theretofore paid (the sum
of the amounts described in clauses (1), (2), and (3) shall be hereinafter
referred to as the "Accrued Obligations"); and
B. the amount equal to the product of
(1) two and (2) the sum of (x) the Executive's Annual Base Salary and (y) the
Annual Bonus paid or payable to the Executive, including any bonus or portion
thereof which has been earned but deferred, for the most recently completed
fiscal year during or prior to the Employment Period; and
(ii) for two years after the Executive's Date of
Termination, or such longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, the Company shall continue
benefits to the Executive and/or the Executive's family at least equal to those
which would have been provided to them in accordance with the plans, programs,
practices and policies described in Section 4(b)(iv) of this Agreement if the
Executive's employment had not been terminated or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies and their families,
provided, however, that if the Executive becomes re-employed with another
employer and is eligible to receive medical or other welfare benefits under
another employer provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other plan
during such applicable period of eligibility. For purposes of determining
eligibility (but not the time of commencement of benefits) of the Executive for
retiree benefits pursuant to such plans, practices, programs and policies, the
Executive shall be considered to have remained employed until two years after
the Date of Termination and to have retired on the last day of such period;
(iii) the Company shall, at its sole expense as
incurred, provide the Executive with outplacement services the scope and
provider of which shall be selected by the Executive in his sole discretion;
(iv) the Company shall pay the balance necessary to
purchase the automobile then being leased for the Executive for his use and
shall transfer title of such automobile to the Executive;
(v) if such termination occurs within one year prior
to a Change in Control, the Company shall pay to the Executive in a lump sum in
cash on the date immediately prior to such Change in Control the amount
specified in Section 10(e) as compensation for the Restrictive Covenants set
forth in Section 10 of this Agreement; and
(vi) to the extent not theretofore paid or provided,
the Company
- 9 -
<PAGE> 10
shall timely pay or provide to the Executive any other amounts or benefits
required to be paid or provided or which the Executive is eligible to receive
under any plan, program, policy or practice or contract or agreement of the
Company and its affiliated companies (such other amounts and benefits shall be
hereinafter referred to as the "Other Benefits"), and, in this regard, in the
event of a Change in Control, all of the Executive's outstanding options to
acquire stock of the Company shall be treated consistently with all other
similar options held by other employees of the Company.
(b) Death. If the Executive's employment is terminated
by reason of the Executive's death during the Employment Period, this Agreement
shall terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
utilized in this Section 6(b) shall include without limitation, and the
Executive's estate and/or beneficiaries shall be entitled to receive, benefits
at least equal to the most favorable benefits provided by the Company and
affiliated companies to the estates and beneficiaries of peer executives of the
Company and such affiliated companies under such plans, programs, practices and
policies relating to death benefits, if any, as in effect with respect to other
peer executives and their beneficiaries at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the
Executive's estate and/or the Executive's beneficiaries, as in effect on the
date of the Executive's death with respect to other peer executives of the
Company and its affiliated companies and their beneficiaries.
(c) Disability. If the Executive's employment is
terminated by reason of the Executive's Disability during the Employment
Period, this Agreement shall terminate without further obligations to the
Executive, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. Accrued Obligations shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
utilized in this Section 6(c) shall include, and the Executive shall be
entitled after the Disability Effective Date to receive, disability and other
benefits at least equal to the most favorable of those generally provided by
the Company and its affiliated companies to disabled executives and/or their
families in accordance with such plans, programs, practices and policies
relating to disability, if any, as in effect generally with respect to other
peer executives and their families at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the Executive
and/or the Executive's family, as in effect at any time thereafter generally
with respect to other peer executives of the Company and its affiliated
companies and their families.
(d) Cause; Other than for Good Reason. If the
Executive's employment shall be terminated for Cause during the Employment
Period, this Agreement shall
- 10 -
<PAGE> 11
terminate without further obligations to the Executive other than the
obligation to pay to the Executive (x) his Annual Base Salary through the Date
of Termination, (y) the amount of any compensation previously deferred by the
Executive, and (z) Other Benefits, in each case to the extent theretofore
unpaid. If the Executive voluntarily terminates employment during the
Employment Period, excluding a termination for Good Reason, this Agreement
shall terminate without further obligations to the Executive, other than for
Accrued Obligations and the timely payment or provision of Other Benefits. In
such case, all Accrued Obligations shall be paid to the Executive in a lump sum
in cash within 30 days of the Date of Termination.
7. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
plan, program, policy or practice provided by the Company or any of its
affiliated companies and for which the Executive may qualify, nor, subject to
Section 12(f), shall anything herein limit or otherwise affect such rights as
the Executive may have under any contract or agreement with the Company or any
of its affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract
or agreement except as explicitly modified by this Agreement.
8. Full Settlement. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against the Executive or others. In no event shall the Executive be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement
and such amounts shall not be reduced whether or not the Executive obtains
other employment. The Company agrees to pay as incurred, to the full extent
permitted by law, all legal fees and expenses which the Executive may
reasonably incur (i) in connection with the review, negotiation and completion
of this Agreement and/or (ii) as a result of any contest (regardless of the
outcome thereof) by the Company, the Executive or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement), plus in
each case interest on any delayed payment at the applicable Federal rate
provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code").
9. Limitation of Benefits.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any benefit, payment
or distribution by the Company to or for the benefit of the Executive (whether
payable or distributable pursuant to the terms
- 11 -
<PAGE> 12
of this Agreement or otherwise) (a "Payment") would, if paid, be subject to the
excise tax imposed by Section 4999 of the Code (the "Excise Tax"), then the
Payment shall be reduced to the extent necessary of avoid the imposition of the
Excise Tax. The Executive may select the Payments to be limited or reduced.
(b) All determinations required to be made under this
Section 9, including whether an Excise Tax would otherwise be imposed and the
assumptions to be utilized in arriving at such determination, shall be made by
Ernst & Young LLP or such other certified public accounting firm as may be
designated by the Executive (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the Executive within
15 business days of the receipt of notice from the Executive that a Payment is
due to be made, or such earlier time as is requested by the Company. In the
event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, the Executive may
appoint another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall then be referred
to as the Accounting Firm hereunder). All fees and expenses of the Accounting
Firm shall be borne solely by the Company. Any determination by the Accounting
Firm shall be binding upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible that
Payments hereunder will have been unnecessarily limited by this Section 9
("Underpayment"), consistent with the calculations required to be made
hereunder. The Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
10. Restrictions on Conduct of the Executive.
(a) General. The Executive and the Company understand
and agree that the purpose of the provisions of this Section 10 is to protect
legitimate business interests of the Company, as more fully described below,
from and after a Change of Control and is not intended to impair or infringe
upon the Executive's right to work, earn a living, or acquire and possess
property from the fruits of his labor. The Executive hereby acknowledges that
the post-employment restrictions set forth in this Section 10 are reasonable
and that they do not, and will not, unduly impair his ability to earn a living
after the termination of this Agreement. Therefore, subject to the limitations
of reasonableness imposed by law upon the restrictions set forth herein, the
Executive shall be subject to the restrictions set forth in this Section 10.
(b) Definitions. The following capitalized terms used in
this Section 10 shall have the meanings assigned to them below, which
definitions shall apply to both the singular and the plural forms of such
terms:
"Competitive Services" means any of the following services
provided by
- 12 -
<PAGE> 13
the Company through its medical products and leather tannery businesses: (i)
the manufacture, marketing, import, sale and distribution of durable medical
equipment products for the acute, long-term and home health care markets,
including beds, patients aids, specialty seating, bathroom safety products,
mobility products, vacuum systems, therapeutic support systems and heat and
cold packs for medical and consumer use (the "Medical Products Services"), and
(ii) the tanning and finishing of leather from cowhide for manufacturers of
shoes, handbags, furniture and personal leather goods (the "Leather Business
Services").
"Confidential Information" means any confidential or
proprietary information possessed by the Company or its affiliated companies or
relating to its or their business, including without limitation, any
confidential "know-how", customer lists, details of client or consultant
contracts, current and anticipated customer requirements, pricing policies,
price lists, market studies, business plans, operational methods, marketing
plans or strategies, product development techniques or plans, computer software
programs (including object code and source code), data and documentation, data
base technologies, systems, structures and architectures, inventions and ideas,
past, current and planned research and development, compilations, devices,
methods, techniques, processes, financial information and data, business
acquisition plans, new personnel acquisition plans and any other information
that would constitute a trade secret under the common law or statutory law of
the State of Delaware.
"Determination Date" means the date of termination of the
Executive's employment with the Company for any reason whatsoever or any
earlier date (during the Restricted Period) of an alleged breach of the
Restrictive Covenants by the Executive.
"Person" means any individual or any corporation, partnership,
joint venture, association or other entity or enterprise.
"Principal or Representative" means a principal, owner,
partner, shareholder, joint venturer, investor, member, trustee, director,
officer, manager, employee, agent, representative or consultant.
"Protected Customer" means a customer of the Company or its
affiliated companies who or which obtained goods or services from the Company
or its affiliated companies within one (1) year prior to the Determination
Date.
"Protected Employees" means employees of the Company or its
affiliated companies who were employed by the Company or its affiliated
companies at any time within six (6) months prior to the Determination Date.
"Restricted Period" means that portion of the Employment
Period from and after a Change of Control plus a period extending two (2) years
from the Date of Termination.
- 13 -
<PAGE> 14
"Restricted Territory" means (i) with respect to the Medical
Products Services, the area within a 20-mile radius of the Company's current
corporate headquarters in Atlanta, Georgia, the areas within a 20-mile radius
of each of the Company's current medical products facilities in Atlanta,
Georgia, Bay Shore, New York, Fond du Lac, Wisconsin, and Rancho Cucumonga,
California, and the area within a 20-mile radius of the current medical
products facility of the Company's subsidiary, Prism Enterprises, Inc., in San
Antonio, Texas, and (ii) with respect to the Leather Business Services, the
area within a 20-mile radius of the Company's current corporate headquarters in
Atlanta, Georgia, and the areas within a 20-mile radius of the current leather
tannery and fabrication facilities of the Company's subsidiary, Irving Tanning
Company, in Hartland, Maine.
"Restrictive Covenants" means the restrictive covenants
contained in Section 10(c) hereof.
(c) Restrictive Covenants.
(i) Restriction on Disclosure and Use of
Confidential Information. The Executive understands and agrees that the
Confidential Information constitutes a valuable asset of the Company and its
affiliated entities, and may not be converted to the Executive's own use.
Accordingly, the Executive hereby agrees that the Executive shall not, directly
or indirectly, at any time during the Restricted Period reveal, divulge, or
disclose to any Person not expressly authorized by the Company any Confidential
Information, and the Executive shall not, directly or indirectly, at any time
during the Restricted Period use or make use of any Confidential Information in
connection with any business activity other than that of the Company. The
parties acknowledge and agree that this Agreement is not intended to, and does
not, alter either the Company's rights or the Executive's obligations under any
state or federal statutory or common law regarding trade secrets and unfair
trade practices.
(ii) Nonsolicitation of Protected Employees. The
Executive understands and agrees that the relationship between the Company and
each of its Protected Employees constitutes a valuable asset of the Company and
may not be converted to the Executive's own use. Accordingly, the Executive
hereby agrees that during the Restricted Period the Executive shall not
directly or indirectly on the Executive's own behalf or as a Principal or
Representative of any Person or otherwise solicit or induce any Protected
Employee to terminate his or her employment relationship with the Company.
(iii) Nonsolicitation of Protected Customers. The
Executive understands and agrees that the relationship between the Company and
each of its Protected Customers constitutes a valuable asset of the Company and
may not be converted to the Executive's own use. Accordingly, the Executive
hereby agrees that, during the Restricted Period, the Executive shall not,
without the prior written consent of
- 14 -
<PAGE> 15
the Company, directly or indirectly, on the Executive's own behalf or as a
Principal or Representative of any Person or otherwise, solicit a Protected
Customer for the purpose of providing or selling Competitive Services;
provided, however, that the prohibition of this covenant shall apply only to
Protected Customers with whom Executive had Material Contact on the Company's
behalf during the twelve (12) months immediately preceding the Date of
Termination. For purposes of this Agreement, Executive had "Material Contact"
with a Protected Customer if (a) he had business dealings with the Protected
Customer on Company's behalf; (b) he was responsible for supervising or
coordinating the dealings between the Company and the Protected Customer; or
(c) he obtained Confidential Information about the Protected Customer as a
result of his association with the Company.
(iv) Noncompetition with the Company. During the
Restricted Period and within the applicable Restricted Territory, the Executive
shall not, directly or indirectly, on his own or on behalf of any Person,
provide strategic planning, policy making or management services for any entity
which provides Competitive Services in competition with the Company or its
affiliated companies. Notwithstanding the above, it shall not be a violation
of this covenant for the Executive, after the Date of Termination, to join an
investment banking, venture capital, financial advisory or accounting firm that
represents, or engages in any business or investment activity with, an entity
that provides Competitive Services, as long as the Executive is not directly
involved in such representation, engagement or activity.
(d) Exceptions from Disclosure Restrictions. Anything
herein to the contrary notwithstanding, the Executive shall not be restricted
from disclosing or using Confidential Information that: (i) is or becomes
generally available to the public other than as a result of an unauthorized
disclosure by the Executive or his agent; (ii) becomes available to the
Executive in a manner that is not in contravention of applicable law from a
source (other than the Company or its affiliated entities or one of its or
their officers, employees, agents or representatives) that is not bound by a
confidential relationship with the Company or its affiliated entities or by a
confidentiality or other similar agreement; (iii) was known to the Executive on
a non-confidential basis and not in contravention of applicable law or a
confidentiality or other similar agreement before its disclosure to the
Executive by the Company or its affiliated entities or one of its or their
officers, employees, agents or representatives; or (iv) is required to be
disclosed by law, court order or other legal process; provided, however, that
in the event disclosure is required by law, the Executive shall provide the
Company with prompt notice of such requirement so that the Company may seek an
appropriate protective order prior to any such required disclosure by the
Executive.
(e) Consideration for the Restrictive Covenants. In
consideration for the Executive entering into the Restrictive Covenants, the
Company shall pay to the Executive the amount of $800,000, payable in a lump
sum on the date immediately prior to a Change of Control which occurs not later
than one year after the Employment Period.
- 15 -
<PAGE> 16
(f) Enforcement of the Restrictive Covenants.
(i) Rights and Remedies Upon Breach. In the
event the Executive breaches, or threatens to commit a breach of, any of the
provisions of the Restrictive Covenants, the Company shall have the following
rights and remedies, which shall be independent of any others and severally
enforceable, and shall be in addition to, and not in lieu of, any other rights
and remedies available to the Company at law or in equity:
A. the right and remedy to enjoin,
preliminarily and permanently, the Executive from violating or
threatening to violate the Restrictive Covenants and to have the
Restrictive Covenants specifically enforced by any court of competent
jurisdiction, it being agreed that any breach or threatened breach of
the Restrictive Covenants would cause irreparable injury to the
Company and that money damages would not provide an adequate remedy to
the Company; and
B. the right and remedy to require the
Executive to account for and pay over to the Company a prorata portion
of the consideration paid for the Restricted Covenants, based on the
number of days remaining in the Restricted Period; provided, that the
Company's right and remedy under this clause B shall not apply unless
the Company shall have given the Executive notice of the breach of the
Restrictive Covenants and the Executive shall not have cured such
breach, if curable, within 30 days after receipt of such notice.
(ii) Severability of Covenants. The Executive
acknowledges and agrees that the Restrictive Covenants are reasonable and valid
in time and scope and in all other respects. If any court determines that any
of the Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
11. Successors.
(a) This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
- 16 -
<PAGE> 17
(c) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may
not be amended or modified otherwise than-by a written agreement executed by
the parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall
be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
John J. Huntz, Jr.
1693 Noble Drive
Atlanta, Georgia 30306
If to the Company:
Fuqua Enterprises, Inc.
One Atlantic Center
1201 West Peachtree Street
Suite 5000
Atlanta, Georgia 30309
Attention: President
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
- 17 -
<PAGE> 18
(d) The Company may withhold from any amounts payable
under this Agreement such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist
upon strict compliance with any provision of this Agreement or the failure to
assert any right the Executive or the Company may have hereunder, including,
without limitation, the right of the Executive to terminate employment for Good
Reason pursuant to Section 5(c)(i)-(v) of this Agreement, shall not be deemed
to be a waiver of such provision or right or any other provision or right of
this Agreement.
(f) The Executive and the Company acknowledge that,
except as may otherwise be provided under any other written agreement between
the Executive and the Company, the employment of the Executive by the Company
is "at will." From and after the Effective Date, this Agreement shall
supersede any other agreement between the parties with respect to the subject
matter hereof.
(g) Sections 6, 7, 8, 9 and 10 of this Agreement shall
survive the termination of Executive's Employment under this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from its Board of Directors, the
Company has caused these presents to be executed in its name on its behalf, all
as of the day and year first above written.
/s/ John J. Huntz, Jr.
---------------------------
John J. Huntz, Jr.
FUQUA ENTERPRISES, INC.
By: /s/ J. Rex Fuqua
-----------------------
J. Rex Fuqua
- 18 -
<PAGE> 1
EXHIBIT 10(b)
EMPLOYMENT AGREEMENT
AGREEMENT by and between Fuqua Enterprises, Inc., a Delaware
corporation (the "Company") and Brady W. Mullinax, Jr. (the "Executive"), dated
as of July 1, 1997.
The Board of Directors of the Company (the "Board"), has determined
that it is in the best interests of the Company and its shareholders to assure
that the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change of Control
(as defined below) of the Company. The Board believes it is imperative to
diminish the inevitable distraction of the Executive by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control
and to encourage the Executive's full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide the Executive with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits expectations
of the Executive will be satisfied and which are competitive with those of
other corporations. Therefore, in order to accomplish these objectives, the
Board has caused the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Certain Definitions.
(a) The "Effective Date" shall mean the date of this
Agreement as set forth above, July 1, 1997.
(b) The "Employment Period" shall mean the period
commencing on the Effective Date and ending on the earlier of (i) the second
anniversary of the Effective Date, or (ii) the termination of the Executive's
employment pursuant to Section 5 of this Agreement; provided, however, that
commencing on the date one year after the Effective Date, and on each annual
anniversary of such date (such date and each annual anniversary thereof shall
be hereinafter referred to as the "Renewal Date"), unless previously
terminated, the Employment Period shall be automatically extended so as to
terminate two years from such Renewal Date, unless at least 60 days prior to
the Renewal Date the Company shall give written notice to the Executive that
the Employment Period shall not be so extended.
2. Change of Control. For the purposes of this Agreement, a
"Change of Control" shall mean:
(a) The acquisition, in one or more transactions, by any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of
<PAGE> 2
20% or more of either (i) the then outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change of Control: (i) any
acquisition pursuant to a public offering of securities by the Company, (ii)
any acquisition if, immediately thereafter, members of the Fuqua family,
collectively, continue to own more of the Outstanding Company Common Stock or
the Outstanding Company Voting Securities than any other Person or (iii) any
acquisition by any corporation pursuant to a transaction which complies with
clauses (i), (ii), (iii) and (iv) of subsection (c) of this Section 2; or
(b) Individuals who, as of the date hereof, constitute
the Board (the "Incumbent Board") cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Board; or
(c) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and outstanding Company Voting Securities
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock ("Outstanding Resulting Company Common Stock") and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors ("Outstanding Resulting Company Voting
Securities"), as the case may be, of the corporation resulting from such
Business Combination (including, without limitation, a corporation which as a
result of such transaction owns the Company or all or substantially all of the
Company's assets either directly or through one or more subsidiaries) in
substantially the same proportions as their ownership, immediately prior to
such Business Combination of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (ii) no Person
(excluding any corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such corporation
resulting from such Business Combination) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of such
corporation except to the extent that such ownership existed prior to the
Business
- 2 -
<PAGE> 3
Combination, (iii) at least a majority of the members of the board of directors
of the corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of
the action of the Board, providing for such Business Combination, and (iv)
members of the Fuqua family, collectively, continue to own more of the
Outstanding Resulting Company Common Stock and the Outstanding Resulting
Company Voting Securities than any other Person; or
(d) A liquidation of the Company; or
(e) Any change in the Board, or in the board of directors of any
corporation resulting from a Business Combination, such that Fuqua Nominees (as
defined below) hold less than a majority of the board of director positions in
the Company or such corporation. For purposes of this subsection (e), "Fuqua
Nominees" shall mean any member of the Fuqua family and any other individual
whose election, or nomination for election, as a director of the Company or of
such corporation was approved by a member of the Fuqua family; provided,
however, that no individual other than a member of the Fuqua family shall be
deemed a Fuqua Nominee if that person's election, or nomination for election,
as a director of the Company or such corporation was also approved by, or at
the request of, another Person who owns beneficially the lesser of: (i) as many
or more shares of Outstanding Company Common Stock or Outstanding Company
Voting Securities as then owned beneficially by the Fuqua family, or (ii) 20%
of the Outstanding Company Common Stock or Outstanding Company Voting
Securities.
3. Employment. The Company hereby agrees to continue the
Executive in its employ, and the Executive hereby agrees to remain in the
employ of the Company subject to the terms and conditions of this Agreement,
for the Employment Period.
4. Terms of Employment.
(a) Position and Duties.
(i) During the Employment Period, (A) the
Executive's position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at least
commensurate in all material respects with the most significant of those held,
exercised and assigned at any time during the 120-day period immediately
preceding the Effective Date and (B) the Executive's services shall be
performed at the principle executive offices of the Company, as the same may be
located from time to time; provided that this Agreement shall not prohibit the
assignment to Executive on a reasonable and temporary basis of duties at any
office or location other than such principle office location.
(ii) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote reasonable attention and time during normal business
hours to the business and affairs of the Company and, to the extent necessary
to discharge the responsibilities assigned to the
- 3 -
<PAGE> 4
Executive hereunder, to use the Executive's reasonable best efforts to perform
faithfully and efficiently such responsibilities. During the Employment Period
it shall not be a violation of this Agreement for the Executive to (A) serve on
corporate, civic or charitable boards or committees, (B) deliver lectures,
fulfill speaking engagements or teach at educational institutions and (C)
manage personal investments, so long as such activities do not significantly
interfere with the performance of the Executive's responsibilities as an
employee of the Company in accordance with this Agreement. It is expressly
understood and agreed that to the extent that any such activities have been
conducted by the Executive prior to the Effective Date, the continued conduct
of such activities (or the conduct of activities similar in nature and scope
thereto) subsequent to the Effective Date shall not thereafter be deemed to
interfere with the performance of the Executive's responsibilities to the
Company.
(b) Compensation.
(i) Base Salary. During the Employment Period, the
Executive shall receive an annual base salary ("Annual Base Salary") of
$200,000, which shall be paid in accordance with the normal payroll policies of
the Company. During the Employment Period, the Annual Base Salary shall be
reviewed no more than 12 months after the last salary increase awarded to the
Executive prior to the Effective Date and thereafter at least annually. Any
increase in Annual Base Salary shall not serve to limit or reduce any other
obligation to the Executive under this Agreement. Annual Base Salary shall not
be reduced after any such increase and the term Annual Base Salary as utilized
in this Agreement shall refer to Annual Base Salary as so increased. As used
in this Agreement, the term "affiliated companies" shall include any company
controlled by, controlling or under common control with the Company.
(ii) Annual Bonus. In addition to Annual Base
Salary, the Executive shall be awarded, for each fiscal year ending during the
Employment Period, an annual bonus (the "Annual Bonus") in cash at least equal
to the Executive's highest bonus from the Company for the last full fiscal year
prior to the Effective Date. Each such Annual Bonus shall be paid in the
fiscal year in which it is awarded or, at the Executive's option, no later than
the end of the third month of the fiscal year next following the fiscal year
for which the Annual Bonus is awarded, unless the Executive shall elect to
defer the receipt of such Annual Bonus.
(iii) Incentive, Savings and Retirement Plans.
During the Employment Period, the Executive shall be entitled to participate in
all incentive, savings and retirement plans, practices, policies and programs
applicable generally to other peer executives of the Company and its affiliated
companies, but in no event shall such plans, practices, policies and programs
provide the Executive with incentive opportunities (measured with respect to
both regular and special incentive opportunities, to the extent, if any, that
such distinction is applicable), savings opportunities and retirement benefit
opportunities, in each case, less favorable, in the aggregate, than those
provided to Executive as of the Effective Date. It shall not be a violation of
this Section for the
- 4 -
<PAGE> 5
Company to provide, in lieu of the grant of stock options, an incentive bonus
program that is based on objective performance goals established by the Board
or a committee of the Board.
(iv) Welfare Benefit Plans. During the Employment
Period, the Executive and/or the Executive's family, as the case may be, shall
be eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Company and its
affiliated companies (including, without limitation, medical, prescription,
dental, disability, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable generally to
other peer executives of the Company and its affiliated companies, and in no
event shall such plans, practices, policies and programs provide the Executive
with benefits which are less favorable, in the aggregate, than those provided
to Executive as of the Effective Date.
(v) Expenses. During the Employment Period, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by the Executive in accordance with the most favorable
policies, practices and procedures in effect for other peer executives of the
Company and its affiliated companies and in no event less favorable than those
policies, practices and procedures in effect as of the Effective Date.
(vi) Fringe Benefits. During the Employment Period,
the Executive shall be entitled to fringe benefits, including, without
limitation, payment of club dues, and use of an automobile and payment of
related expenses, in accordance with the most favorable plans, practices,
programs and policies of the Company and its affiliated companies in effect for
other peer executives of the Company and its affiliated companies and in no
event less favorable than those benefits provided to Executive as of the
Effective Date.
(vii) Office and Support Staff. During the
Employment Period, the Executive shall be entitled to an office of a size and
with furnishings and other appointments, and secretarial and other assistance,
at least comparable to that provided to Executive as of the Effective Date.
(viii) Vacation. During the Employment Period, the
Executive shall be entitled to four weeks paid vacation per year.
5. Termination of Employment.
(a) Death or Disability. The Executive's employment
shall terminate automatically upon the Executive's death during the Employment
Period. If the Company determines in good faith that the Disability of the
Executive has occurred during the Employment Period (pursuant to the definition
of Disability set forth below), it may give to the Executive written notice in
accordance with Section 12(b) of this Agreement of its
- 5 -
<PAGE> 6
intention to terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective on the 30th
day after receipt of such notice by the Executive (the "Disability Effective
Date"), provided that, within the 30 days after such receipt, the Executive
shall not have returned to full-time performance of the Executive's duties.
For purposes of this Agreement, "Disability" shall mean the absence of the
Executive from the Executive's duties with the Company on a full-time basis for
180 consecutive business days as a result of incapacity due to mental or
physical illness which is determined to be total and permanent by a physician
selected by the Company or its insurers and acceptable to the Executive or the
Executive's legal representative.
(b) Cause. The Company may terminate the Executive's
employment during the Employment Period for Cause. For purposes of this
Agreement, "Cause" shall mean:
(i) the willful and continued failure of the
Executive to perform substantially the Executive's duties with the Company
(other than any such failure resulting from incapacity due to physical or
mental illness), for at least 30 days after a written demand for substantial
performance is delivered to the Executive by the Board or the Executive
Committee of the Company which specifically identifies the manner in which the
Board or the Executive Committee believes that the Executive has not
substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in
illegal conduct or gross misconduct which is materially and demonstrably
injurious to the Company.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution
duly adopted by the Board or upon the instructions of the Executive Committee,
the Chief Executive Officer or a senior officer of the Company or based upon
the advice of counsel for the Company shall be conclusively presumed to be
done, or omitted to be done, by the Executive in good faith and in the best
interests of the Company. The cessation of employment of the Executive shall
not be deemed to be for Cause unless and until there shall have been delivered
to the Executive a copy of a resolution duly adopted by the affirmative vote of
not less than three-quarters of the entire membership of the Board at a meeting
of the Board called and held for such purpose (after reasonable notice is
provided to the Executive and the Executive is given an opportunity, together
with counsel, to be heard before the Board), finding that, in the good faith
opinion of the Board, the Executive is guilty of the conduct described in
subparagraph (i) or (ii) above, and specifying the particulars thereof in
detail.
(c) Good Reason. The Executive's employment may be
terminated by the Executive for Good Reason. For purposes of this Agreement,
"Good Reason" shall
- 6 -
<PAGE> 7
mean:
(i) the assignment to the Executive of any duties
materially inconsistent with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 4(a) of this Agreement, or any
other action by the Company which results in a material diminution in such
position, authority, duties or responsibilities, excluding for this purpose an
isolated, insubstantial and inadvertent action not taken in bad faith and which
is remedied by the Company promptly after receipt of notice thereof given by
the Executive;
(ii) any failure by the Company to comply with any
of the provisions of Section 4(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(iii) the Company's requiring the Executive to be
based at any office or location other than as provided in Section 4(a)(i)(B)
hereof or the Company's requiring the Executive to travel on Company business
to a substantially greater extent than required immediately prior to the
Effective Date;
(iv) any termination by the Company of the
Executive's employment otherwise than for Cause, Death or Disability; or
(v) any failure by the Company to comply with and
satisfy Section 11(c) of this Agreement.
For purposes of this Section 5(c), any good faith determination of
"Good Reason" made by the Executive shall be conclusive. Anything in this
Agreement to the contrary notwithstanding, a termination by the Executive for
any reason at least 90 but not more than 120 days following consummation of a
Change of Control or during the 30-day period immediately following the first
anniversary of a Change of Control shall be deemed to be a termination for Good
Reason for all purposes of this Agreement. If at any time prior to a Change of
Control, the Executive gives written notice of his probable intention to
terminate employment during the first such window period, there shall be
deposited into escrow immediately prior to the Change of Control the cash
amounts payable to the Executive pursuant to Section 6(a) of this Agreement.
If the Executive in fact terminates his employment during such window period,
the escrowed funds will be released to him at that time. If he does not
terminate his employment during such first window period, the escrowed funds
will be released to the Company at the end of such window period, without
prejudice to the Company's obligation to pay such amounts when and if they
later become due under Section 6(a). Any interest earned on the escrowed funds
during escrow will be paid to the Company.
(d) Notice of Termination. Any termination by the
Company for Cause, or by the Executive for Good Reason, shall be communicated
by Notice of Termination
- 7 -
<PAGE> 8
to the other party hereto given in accordance with Section 12(b) of this
Agreement. For purposes of this Agreement, a "Notice of Termination" means a
written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of the Executive's employment under the provision so indicated and (iii) if the
Date of Termination (as defined below) is other than the date of receipt of
such notice, specifies the termination date (which date shall be not more than
30 days after the giving of such notice). The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or circumstance
which contributes to a showing of Good Reason or Cause shall not waive any
right of the Executive or the Company, respectively, hereunder or preclude the
Executive or the Company, respectively, from asserting such fact or
circumstance in enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i)
if the Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than for Cause or Disability, the
Date of Termination shall be the date on which the Company notifies the
Executive of such termination and (iii) if the Executive's employment is
terminated by reason of death or Disability, the Date of Termination shall be
the date of death of the Executive or the Disability Effective Date, as the
case may be.
6. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause, Death or
Disability. If, during the Employment Period, the Company shall terminate the
Executive's employment other than for Cause or Disability or the Executive
shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the aggregate of the
following amounts:
A. the sum of (1) the Executive's
Annual Base Salary through the Date of Termination to the extent not
theretofore paid, (2) the product of (x) the Annual Bonus paid or payable,
including any bonus or portion thereof which has been earned but deferred, for
the most recently completed fiscal year during or prior to the Employment
Period and (y) a fraction, the numerator of which is the number of days in the
current fiscal year through the Date of Termination, and the denominator of
which is 365, and (3) any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon) and any accrued
vacation pay, in each case to the extent not theretofore paid (the sum of the
amounts described in clauses (1), (2), and (3) shall be hereinafter referred to
as the "Accrued Obligations"); and
- 8 -
<PAGE> 9
B. the amount equal to the product of
(1) two and (2) the sum of (x) the Executive's Annual Base Salary and (y) the
Annual Bonus paid or payable to the Executive, including any bonus or portion
thereof which has been earned but deferred, for the most recently completed
fiscal year during or prior to the Employment Period; and
(ii) for two years after the Executive's Date of
Termination, or such longer period as may be provided by the terms of the
appropriate plan, program, practice or policy, the Company shall continue
benefits to the Executive and/or the Executive's family at least equal to those
which would have been provided to them in accordance with the plans, programs,
practices and policies described in Section 4(b)(iv) of this Agreement if the
Executive's employment had not been terminated or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to other
peer executives of the Company and its affiliated companies and their families,
provided, however, that if the Executive becomes re-employed with another
employer and is eligible to receive medical or other welfare benefits under
another employer provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other plan
during such applicable period of eligibility. For purposes of determining
eligibility (but not the time of commencement of benefits) of the Executive for
retiree benefits pursuant to such plans, practices, programs and policies, the
Executive shall be considered to have remained employed until two years after
the Date of Termination and to have retired on the last day of such period;
(iii) the Company shall, at its sole expense as
incurred, provide the Executive with outplacement services the scope and
provider of which shall be selected by the Executive in his sole discretion;
(iv) the Company shall pay the balance necessary to
purchase the automobile then being leased for the Executive for his use and
shall transfer title of such automobile to the Executive;
(v) if such termination occurs within one year
prior to a Change in Control, the Company shall pay to the Executive in a lump
sum in cash on the date immediately prior to such Change in Control the amount
specified in Section 10(e) as compensation for the Restrictive Covenants set
forth in Section 10 of this Agreement; and
(vi) to the extent not theretofore paid or
provided, the Company shall timely pay or provide to the Executive any other
amounts or benefits required to be paid or provided or which the Executive is
eligible to receive under any plan, program, policy or practice or contract or
agreement of the Company and its affiliated companies (such other amounts and
benefits shall be hereinafter referred to as the "Other Benefits"), and, in
this regard, in the event of a Change in Control, all of the Executive's
outstanding options to acquire stock of the Company shall be treated
consistently with all other similar options held by other employees of the
Company.
- 9 -
<PAGE> 10
(b) Death. If the Executive's employment is terminated
by reason of the Executive's death during the Employment Period, this Agreement
shall terminate without further obligations to the Executive's legal
representatives under this Agreement, other than for payment of Accrued
Obligations and the timely payment or provision of Other Benefits. Accrued
Obligations shall be paid to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
utilized in this Section 6(b) shall include without limitation, and the
Executive's estate and/or beneficiaries shall be entitled to receive, benefits
at least equal to the most favorable benefits provided by the Company and
affiliated companies to the estates and beneficiaries of peer executives of the
Company and such affiliated companies under such plans, programs, practices and
policies relating to death benefits, if any, as in effect with respect to other
peer executives and their beneficiaries at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the
Executive's estate and/or the Executive's beneficiaries, as in effect on the
date of the Executive's death with respect to other peer executives of the
Company and its affiliated companies and their beneficiaries.
(c) Disability. If the Executive's employment is
terminated by reason of the Executive's Disability during the Employment
Period, this Agreement shall terminate without further obligations to the
Executive, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. Accrued Obligations shall be paid to the
Executive in a lump sum in cash within 30 days of the Date of Termination.
With respect to the provision of Other Benefits, the term Other Benefits as
utilized in this Section 6(c) shall include, and the Executive shall be
entitled after the Disability Effective Date to receive, disability and other
benefits at least equal to the most favorable of those generally provided by
the Company and its affiliated companies to disabled executives and/or their
families in accordance with such plans, programs, practices and policies
relating to disability, if any, as in effect generally with respect to other
peer executives and their families at any time during the 120-day period
immediately preceding the Effective Date or, if more favorable to the Executive
and/or the Executive's family, as in effect at any time thereafter generally
with respect to other peer executives of the Company and its affiliated
companies and their families.
(d) Cause; Other than for Good Reason. If the
Executive's employment shall be terminated for Cause during the Employment
Period, this Agreement shall terminate without further obligations to the
Executive other than the obligation to pay to the Executive (x) his Annual Base
Salary through the Date of Termination, (y) the amount of any compensation
previously deferred by the Executive, and (z) Other Benefits, in each case to
the extent theretofore unpaid. If the Executive voluntarily terminates
employment during the Employment Period, excluding a termination for Good
Reason, this Agreement shall terminate without further obligations to the
Executive, other than for Accrued Obligations and the timely payment or
provision of Other Benefits. In such case, all Accrued Obligations shall be
paid to the Executive in a lump sum in cash within 30 days of the Date of
Termination.
- 10 -
<PAGE> 11
7. Non-exclusivity of Rights. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
plan, program, policy or practice provided by the Company or any of its
affiliated companies and for which the Executive may qualify, nor, subject to
Section 12(f), shall anything herein limit or otherwise affect such rights as
the Executive may have under any contract or agreement with the Company or any
of its affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract
or agreement except as explicitly modified by this Agreement.
8. Full Settlement. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against the Executive or others. In no event shall the Executive be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to the Executive under any of the provisions of this Agreement
and such amounts shall not be reduced whether or not the Executive obtains
other employment. The Company agrees to pay as incurred, to the full extent
permitted by law, all legal fees and expenses which the Executive may
reasonably incur (i) in connection with the review, negotiation and completion
of this Agreement and/or (ii) as a result of any contest (regardless of the
outcome thereof) by the Company, the Executive or others of the validity or
enforceability of, or liability under, any provision of this Agreement or any
guarantee of performance thereof (including as a result of any contest by the
Executive about the amount of any payment pursuant to this Agreement), plus in
each case interest on any delayed payment at the applicable Federal rate
provided for in Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as
amended (the "Code").
9. Limitation of Benefits.
(a) Anything in this Agreement to the contrary
notwithstanding, in the event it shall be determined that any benefit, payment
or distribution by the Company to or for the benefit of the Executive (whether
payable or distributable pursuant to the terms of this Agreement or otherwise)
(a "Payment") would, if paid, be subject to the excise tax imposed by Section
4999 of the Code (the "Excise Tax"), then the Payment shall be reduced to the
extent necessary of avoid the imposition of the Excise Tax. The Executive may
select the Payments to be limited or reduced.
(b) All determinations required to be made under this
Section 9, including whether an Excise Tax would otherwise be imposed and the
assumptions to be utilized in arriving at such determination, shall be made by
Ernst & Young LLP or such other certified public accounting firm as may be
designated by the Executive (the "Accounting Firm") which shall provide
detailed supporting calculations both to the Company and the Executive within
15 business days of the receipt of notice from the
- 11 -
<PAGE> 12
Executive that a Payment is due to be made, or such earlier time as is
requested by the Company. In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the Change
of Control, the Executive may appoint another nationally recognized accounting
firm to make the determinations required hereunder (which accounting firm shall
then be referred to as the Accounting Firm hereunder). All fees and expenses
of the Accounting Firm shall be borne solely by the Company. Any determination
by the Accounting Firm shall be binding upon the Company and the Executive. As
a result of the uncertainty in the application of Section 4999 of the Code at
the time of the initial determination by the Accounting Firm hereunder, it is
possible that Payments hereunder will have been unnecessarily limited by this
Section 9 ("Underpayment"), consistent with the calculations required to be
made hereunder. The Accounting Firm shall determine the amount of the
Underpayment that has occurred and any such Underpayment shall be promptly paid
by the Company to or for the benefit of the Executive.
10. Restrictions on Conduct of the Executive.
(a) General. The Executive and the Company understand
and agree that the purpose of the provisions of this Section 10 is to protect
legitimate business interests of the Company, as more fully described below,
from and after a Change of Control and is not intended to impair or infringe
upon the Executive's right to work, earn a living, or acquire and possess
property from the fruits of his labor. The Executive hereby acknowledges that
the post-employment restrictions set forth in this Section 10 are reasonable
and that they do not, and will not, unduly impair his ability to earn a living
after the termination of this Agreement. Therefore, subject to the limitations
of reasonableness imposed by law upon the restrictions set forth herein, the
Executive shall be subject to the restrictions set forth in this Section 10.
(b) Definitions. The following capitalized terms used in
this Section 10 shall have the meanings assigned to them below, which
definitions shall apply to both the singular and the plural forms of such
terms:
"Competitive Services" means any of the following services
provided by the Company through its medical products and leather tannery
businesses: (i) the manufacture, marketing, import, sale and distribution of
durable medical equipment products for the acute, long-term and home health
care markets, including beds, patients aids, specialty seating, bathroom safety
products, mobility products, vacuum systems, therapeutic support systems and
heat and cold packs for medical and consumer use (the "Medical Products
Services"), and (ii) the tanning and finishing of leather from cowhide for
manufacturers of shoes, handbags, furniture and personal leather goods (the
"Leather Business Services").
"Confidential Information" means any confidential or
proprietary information possessed by the Company or its affiliated companies or
relating to its or their business, including without limitation, any
confidential "know-how", customer lists,
- 12 -
<PAGE> 13
details of client or consultant contracts, current and anticipated customer
requirements, pricing policies, price lists, market studies, business plans,
operational methods, marketing plans or strategies, product development
techniques or plans, computer software programs (including object code and
source code), data and documentation, data base technologies, systems,
structures and architectures, inventions and ideas, past, current and planned
research and development, compilations, devices, methods, techniques,
processes, financial information and data, business acquisition plans, new
personnel acquisition plans and any other information that would constitute a
trade secret under the common law or statutory law of the State of Delaware.
"Determination Date" means the date of termination of the
Executive's employment with the Company for any reason whatsoever or any
earlier date (during the Restricted Period) of an alleged breach of the
Restrictive Covenants by the Executive.
"Person" means any individual or any corporation, partnership,
joint venture, association or other entity or enterprise.
"Principal or Representative" means a principal, owner,
partner, shareholder, joint venturer, investor, member, trustee, director,
officer, manager, employee, agent, representative or consultant.
"Protected Customer" means a customer of the Company or its
affiliated companies who or which obtained goods or services from the Company
or its affiliated companies within one (1) year prior to the Determination
Date.
"Protected Employees" means employees of the Company or its
affiliated companies who were employed by the Company or its affiliated
companies at any time within six (6) months prior to the Determination Date.
"Restricted Period" means that portion of the Employment
Period from and after a Change of Control plus a period extending two (2) years
from the Date of Termination.
"Restricted Territory" means (i) with respect to the Medical
Products Services, the area within a 20-mile radius of the Company's current
corporate headquarters in Atlanta, Georgia, the areas within a 20-mile radius
of each of the Company's current medical products facilities in Atlanta,
Georgia, Bay Shore, New York, Fond du Lac, Wisconsin, and Rancho Cucumonga,
California, and the area within a 20-mile radius of the current medical
products facility of the Company's subsidiary, Prism Enterprises, Inc., in San
Antonio, Texas, and (ii) with respect to the Leather Business Services, the
area within a 20-mile radius of the Company's current corporate headquarters in
Atlanta, Georgia, and the areas within a 20-mile radius of the current leather
tannery and fabrication facilities of the Company's subsidiary, Irving Tanning
Company, in Hartland, Maine.
- 13 -
<PAGE> 14
"Restrictive Covenants" means the restrictive covenants
contained in Section 10(c) hereof.
(c) Restrictive Covenants.
(i) Restriction on Disclosure and Use of
Confidential Information. The Executive understands and agrees that the
Confidential Information constitutes a valuable asset of the Company and its
affiliated entities, and may not be converted to the Executive's own use.
Accordingly, the Executive hereby agrees that the Executive shall not, directly
or indirectly, at any time during the Restricted Period reveal, divulge, or
disclose to any Person not expressly authorized by the Company any Confidential
Information, and the Executive shall not, directly or indirectly, at any time
during the Restricted Period use or make use of any Confidential Information in
connection with any business activity other than that of the Company. The
parties acknowledge and agree that this Agreement is not intended to, and does
not, alter either the Company's rights or the Executive's obligations under any
state or federal statutory or common law regarding trade secrets and unfair
trade practices.
(ii) Nonsolicitation of Protected Employees. The
Executive understands and agrees that the relationship between the Company and
each of its Protected Employees constitutes a valuable asset of the Company and
may not be converted to the Executive's own use. Accordingly, the Executive
hereby agrees that during the Restricted Period the Executive shall not
directly or indirectly on the Executive's own behalf or as a Principal or
Representative of any Person or otherwise solicit or induce any Protected
Employee to terminate his or her employment relationship with the Company.
(iii) Nonsolicitation of Protected Customers. The
Executive understands and agrees that the relationship between the Company and
each of its Protected Customers constitutes a valuable asset of the Company and
may not be converted to the Executive's own use. Accordingly, the Executive
hereby agrees that, during the Restricted Period, the Executive shall not,
without the prior written consent of the Company, directly or indirectly, on
the Executive's own behalf or as a Principal or Representative of any Person or
otherwise, solicit a Protected Customer for the purpose of providing or selling
Competitive Services; provided, however, that the prohibition of this covenant
shall apply only to Protected Customers with whom Executive had Material
Contact on the Company's behalf during the twelve (12) months immediately
preceding the Date of Termination. For purposes of this Agreement, Executive
had "Material Contact" with a Protected Customer if (a) he had business
dealings with the Protected Customer on Company's behalf; (b) he was
responsible for supervising or coordinating the dealings between the Company
and the Protected Customer; or (c) he obtained Confidential Information about
the Protected Customer as a result of his association with the Company.
(iv) Noncompetition with the Company. During the
Restricted
- 14 -
<PAGE> 15
Period and within the applicable Restricted Territory, the Executive shall not,
directly or indirectly, on his own or on behalf of any Person, provide
strategic planning, policy making or management services for any entity which
provides Competitive Services in competition with the Company or its affiliated
companies. Notwithstanding the above, it shall not be a violation of this
covenant for the Executive, after the Date of Termination, to join an
investment banking, venture capital, financial advisory or accounting firm that
represents, or engages in any business or investment activity with, an entity
that provides Competitive Services, as long as the Executive is not directly
involved in such representation, engagement or activity.
(d) Exceptions from Disclosure Restrictions. Anything
herein to the contrary notwithstanding, the Executive shall not be restricted
from disclosing or using Confidential Information that: (i) is or becomes
generally available to the public other than as a result of an unauthorized
disclosure by the Executive or his agent; (ii) becomes available to the
Executive in a manner that is not in contravention of applicable law from a
source (other than the Company or its affiliated entities or one of its or
their officers, employees, agents or representatives) that is not bound by a
confidential relationship with the Company or its affiliated entities or by a
confidentiality or other similar agreement; (iii) was known to the Executive on
a non-confidential basis and not in contravention of applicable law or a
confidentiality or other similar agreement before its disclosure to the
Executive by the Company or its affiliated entities or one of its or their
officers, employees, agents or representatives; or (iv) is required to be
disclosed by law, court order or other legal process; provided, however, that
in the event disclosure is required by law, the Executive shall provide the
Company with prompt notice of such requirement so that the Company may seek an
appropriate protective order prior to any such required disclosure by the
Executive.
(e) Consideration for the Restrictive Covenants. In
consideration for the Executive entering into the Restrictive Covenants, the
Company shall pay to the Executive the amount of $555,000, payable in a lump
sum on the date immediately prior to a Change of Control which occurs not later
than one year after the Employment Period.
(f) Enforcement of the Restrictive Covenants.
(i) Rights and Remedies Upon Breach. In the
event the Executive breaches, or threatens to commit a breach of, any of the
provisions of the Restrictive Covenants, the Company shall have the following
rights and remedies, which shall be independent of any others and severally
enforceable, and shall be in addition to, and not in lieu of, any other rights
and remedies available to the Company at law or in equity:
A. the right and remedy to enjoin,
preliminarily and permanently, the Executive from violating or
threatening to violate the Restrictive Covenants and to have the
Restrictive Covenants specifically enforced by any
- 15 -
<PAGE> 16
court of competent jurisdiction, it being agreed that any breach or
threatened breach of the Restrictive Covenants would cause irreparable
injury to the Company and that money damages would not provide an
adequate remedy to the Company; and
B. the right and remedy to require the
Executive to account for and pay over to the Company a prorata portion
of the consideration paid for the Restricted Covenants, based on the
number of days remaining in the Restricted Period; provided, that the
Company's right and remedy under this clause B shall not apply unless
the Company shall have given the Executive notice of the breach of the
Restrictive Covenants and the Executive shall not have cured such
breach, if curable, within 30 days after receipt of such notice.
(ii) Severability of Covenants. The Executive
acknowledges and agrees that the Restrictive Covenants are reasonable and valid
in time and scope and in all other respects. If any court determines that any
of the Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full effect, without regard to the invalid portions.
11. Successors.
(a) This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be
binding upon the Company and its successors and assigns.
(c) The Company will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the
same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, or otherwise.
12. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may
not be amended or modified otherwise than-by a
- 16 -
<PAGE> 17
written agreement executed by the parties hereto or their respective successors
and legal representatives.
(b) All notices and other communications hereunder shall
be in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive:
Brady W. Mullinax, Jr.
116 Huntington Road
Atlanta, Georgia 30309
If to the Company:
Fuqua Enterprises, Inc.
One Atlantic Center
1201 West Peachtree Street
Suite 5000
Atlanta, Georgia 30309
Attention: President
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) The Company may withhold from any amounts payable
under this Agreement such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist
upon strict compliance with any provision of this Agreement or the failure to
assert any right the Executive or the Company may have hereunder, including,
without limitation, the right of the Executive to terminate employment for Good
Reason pursuant to Section 5(c)(i)-(v) of this Agreement, shall not be deemed
to be a waiver of such provision or right or any other provision or right of
this Agreement.
(f) The Executive and the Company acknowledge that,
except as may otherwise be provided under any other written agreement between
the Executive and the Company, the employment of the Executive by the Company
is "at will.". From and after the Effective Date, this Agreement shall
supersede any other agreement between the
- 17 -
<PAGE> 18
parties with respect to the subject matter hereof.
(g) Sections 6, 7, 8, 9 and 10 of this Agreement shall
survive the termination of Executive's Employment under this Agreement.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from its Board of Directors, the
Company has caused these presents to be executed in its name on its behalf, all
as of the day and year first above written.
/s/ Brady W. Mullinax, Jr.
----------------------------------
Brady W. Mullinax, Jr.
FUQUA ENTERPRISES, INC.
By: /s/ J. Rex Fuqua
----------------------------------
J. Rex Fuqua
- 18 -
<PAGE> 1
Exhibit 10(c)
FUQUA J. REX FUQUA
ENTERPRISES, INC. Vice Chairman of the Board
1201 W. Peachtree St.
Atlanta, GA 30309-3400
Suite 5000
404-815-2000 phone
404-815-4529 fax
July 1, 1997
Mr. Lawrence P. Klamon
2665 Dellwood Drive
Atlanta, Georgia 30305
Dear Larry:
This letter will confirm our agreement regarding your benefits in the
event there is a Change of Control of Fuqua Enterprises, Inc. (the "Company").
A Change of Control has the same meaning as defined in Section 2 of the
Employment Agreement dated July 1, 1997 between the Company and John J. Huntz,
Jr.
In the event there is a Change of Control of the Company during the
two years commencing June 12, 1997, whether or not you are continued to be
employed by the Company;
(a) The Company shall for a period of two years from the date of the
Change of Control, or such longer period as may be provided by the terms of
the appropriate plan, program, practice or policy, continue benefits to you
and/or your family at least equal to those which would have been provided to
you and your family under welfare benefit plans, practices, policies and
programs provided by the Company and its affiliated companies (including,
without limitation, medical, prescription, dental, disability, employee life,
group life, accidental death and travel accident insurance plans and programs)
to the extent applicable generally to other peer executives of the Company and
its affiliated companies, and in no event shall such plans, practices, policies
and programs provide you or your family with benefits which are less favorable,
in aggregate, than those provided to you and your family as of the date of the
Change of Control, provided, however, that if you become re-employed with
another employer and you are eligible to receive medical or other welfare
benefits under another employer provided plan, the medical and other welfare
benefits described herein shall be secondary to those provided under such other
plan during such applicable period of eligibility.
(b) The Company shall pay the balance necessary to purchase the automobile
then being leased for your use and shall transfer title of such automobile to
you.
Agreed: Very truly yours,
Fuqua Enterprises, Inc.
/s/ L. P. Klamon by: /s/ J. Rex Fuqua
- -------------------------------- ------------------------
Lawrence P. Klamon J. Rex Fuqua
Vice Chairman
<PAGE> 1
EXHIBIT 10(d)
STATE OF TEXAS
COUNTY OF BEXAR
R.L. WORTH & ASSOCIATES, LTD.
STANDARD LEASE
(OFFICE SERVICE & WAREHOUSE)
1. PARTIES
1.1. NAMES. This Agreement is made and entered into in duplicate
originals on this the 20th day of May, 1997 by and between ALAMO FAIRGROUNDS,
LTD., "LANDLORD" and PRISM TECHNOLOGIES, INC., "TENANT".
2. PREMISES
2.1 DESCRIPTION. In consideration of the obligation of Tenant to pay
rent as herein provided, and in consideration of the other terms, provisions,
and covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby takes from Landlord, certain premises situated with the County of Bexar,
State of Texas, being approximately 57,788 Net Rentable square feet of space
located at 6952 Fairgrounds Parkway, more particularly described in Exhibit "A"
attached hereto and made a part hereof for all purposes, together with all
rights, privileges, easements, appurtenances, and amenities belonging to or in
any way pertaining to the said premises (hereinafter sometimes called "the
Premises", the "Demised Premises", or the "Leased Premises"), located in San
Antonio, Bexar County, Texas on a tract of land more fully described on Exhibit
"B" attached hereto and incorporated herein by reference. The building
(including all parking and common areas) of which the Premises is a part is
referred to herein as the Project and is more particularly described as
follows:
ALAMO FAIRGROUNDS BUSINESS CENTER 1
3. TERM
3.1 PERIOD. The term of this lease shall be for a period of five (5)
years commencing on the 1st day of June 1997 ("Commencement Date") and ending
on the 31st day of May, 2002.
3.2 ACCEPTANCE OF THE PREMISES. Tenant acknowledges that it has fully
inspected the Demised Premises and hereby accepts the Demised Premises and the
appurtenant improvements thereto as suitable for Tenant's business purposes in
their present condition, subject only to the completion of Landlord's work
(Exhibit "C" hereto), hereinafter referred to as "Landlord's work".
3.3 ADJUSTMENT. Landlord agrees to use its best efforts to complete
Landlord's work on or before the commencement date as specified above. Tenant
hereby accepts Exhibit "C" as the final and complete description of Landlord's
work and Tenant further acknowledges that any changes in the plans which are
subsequently requested by Tenant, will be made at Tenant's expense. In the
event Landlord is unable to complete Landlord's work prior to the commencement
of the term, as specified in Section 3.1 above, the initial term of this lease
shall commence on the date when the Premises are ready for occupancy; provided,
however that if Tenant takes possession of or occupies any portion of the
Premises earlier than the date the Premises are ready for occupancy, then the
term of this lease shall commence upon the date Tenant first occupies the
Premises. The Premises shall be deemed "ready for occupancy" on the date that
Landlord has substantially completed all of Landlord's work. Tenant's failure
to occupy the Premises when Landlord has substantially completed all of
Landlord's work shall not delay the commencement of this lease. In the event
of any delay in the completion of Landlord's work, Landlord shall not be liable
for any damage caused thereby; however, if such completion is delayed for more
than ninety (90) days beyond the specified commencement date, then either
Tenant or Landlord may declare this lease to be null and void. The parties
agree to execute and deliver a written stipulation of Term of Lease prepared by
Landlord, specifying the commencement and termination dates of the initial term
hereof as determined above if such dates are different than those specifying
in Section 3.1 above.
3.4 OCCUPANCY PRIOR TO COMPLETION OF LANDLORD'S WORK. In the event that
Tenant takes occupancy prior to the completion of Landlord's work, Landlord
shall not be relieved of its duty to timely complete its work. Tenant shall
provide uninterrupted access to Landlord, its subcontractors, employees, agents
or representatives, and any and all inspectors from any governmental authority
or agency, between the hours of 7:30 A.M. and 5:00 P.M., Monday through Friday
of each week, until a Certificate of Occupancy has been issued by the City of
San Antonio and Landlord's work is completed. Landlord will be responsible for
applying for and obtaining a Certificate of Occupancy prior to the commencement
date.
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
1
<PAGE> 2
4. BASE RENTAL
4.1 AMOUNT AND PAYMENT. In consideration of this Lease, Tenant, through
the term of this lease, and without prior notice or demand, shall pay to
Landlord, in advance, at the address set out after the signature of Landlord or
at such place or places as Landlord may from time to time direct, as Base Rent,
the sum of Fourteen Thousand Four Hundred Forty Five Dollars ($14,445) per
month during years 1-3, Fifteen Thousand Six Hundred Dollars ($15,600) per
month during years 4-5 on the first day of each month commencing June 1, 1997
in lawful money of the United States of America. THE FIRST MONTH'S BASE RENT
(INCLUDING PASS THROUGHS) SHALL BE PAID IN ADVANCE TO LANDLORD TENANT UPON
OCCUPYING THE PREMISES. In the event the first day of the term does not
commence on the first day of the month, the prorated amount shall be paid on
the first day of the term. Monthly rent for any partial month shall be
prorated using the percentage which the number of days in such partial month
bears to the total number of days in said month. The covenant of Tenant to
pay rent hereunder is and shall be deemed a separate and individual covenant,
and Tenant shall have no right of deduction or setoff whatsoever except as may
be expressly set forth herein. In the event Tenant shall fail to pay the rent
within ten (10) days after the date that such installment is due hereunder,
Tenant shall be liable for and Landlord may collect a late charge of five
percent (5%) of any monthly installment of rent or other sums due hereunder,
such charge to be in addition to and not in lieu of any other remedy of
Landlord hereunder. All monies received from Tenant shall be credited first
to non-rent items and last to rent regardless of notations on checks.
THE AMOUNT(S) SET FORTH HEREIN FOR PAYMENT OF RENT (OR ADDITIONAL RENT) AS
MAY BE ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH THIS LEASE) SHALL BE
DEEMED FINAL AND CONCLUSIVE AS BETWEEN THE PARTIES HERETO. ACCORDINGLY, SUCH
AMOUNT(S) SHALL NOT BE SUBJECT TO CHANGE FOR REASONS RELATING TO THE ACTUAL
SIZE AND/OR DIMENSIONS OF THE PREMISES OR THE PROJECT, FOR ANY DIFFERENCE IN
THE ACTUAL SIZE RELATIVE TO THE PROPOSED SIZE OF THE PREMISES OR THE PROJECT, OR
FOR ANY REASON NOT SPECIFICALLY SET FORTH HEREIN.
4.2 PAYMENTS AND PERFORMANCE. Tenant agrees to pay all rents and all
other sums required to be paid to Landlord at the times and in the manner
provided by the lease. The obligation of Tenant to pay rent is an independent
covenant and under no circumstances shall Tenant be released from its
obligation to pay rent.
4.3 SECURITY DEPOSIT. Tenant has deposited with Landlord the sum of
Nineteen Thousand Five Hundred Eighty Dollars ($19,580.00) as security for the
full performance of all the provisions of this lease. If at any time during
the term hereof, or the term as it may be extended, Tenant shall be in default
in payment of rent or any other sum due Landlord as additional rent, Landlord
may apply all or a part of the security deposit for such payment. Landlord may
also apply all or a part of the deposit to clean or repair damages to the Lease
Premises. If Tenant is not in default, June 18, 1998, Landlord shall return
the remaining deposit to Tenant on such date. Landlord shall not be required
to keep this security deposit separate from its general funds, and Tenant shall
not be entitled to interest on such deposit.
4.4 ESCROW FOR PAYMENT OF TENANT'S SHARE OF COMMON AREA MAINTENANCE
EXPENSES, TAXES, AND INSURANCE. Tenant, upon the request of Landlord, shall
pay monthly during the term of this Lease, in addition to the monthly rental
set out in Section 4.1, an amount equal to one-twelfth (1/12) of Tenant's
estimated Common Area Maintenance Costs and the Tenant's portion of any taxes
and insurance on the Project of which the Premises are a part as reasonably
estimated by Landlord, such sums to be held by Landlord without bond or accrual
of accrual of interest thereon in the general funds of Landlord to pay such
Common Area Maintenance Costs and Tenant's portion of any taxes and insurance
on the Project as and when they are incurred or become due. The failure to pay
such sums upon demand shall be treated in the same manner as a default in the
payment of rent hereunder when due. Within sixty (60) days after the close of
each fiscal year, Landlord, upon written request of Tenant, shall furnish
Tenant a statement of all such expenses to Tenant for the year just ending,
such statement to include an allocation of such expenses to Tenant as herein
provided. If the expenses shall exceed the money collected, Tenant shall pay
within thirty (30) days demand the additional sums as provided herein, and if
an excess shall accumulate in such fund, then Landlord shall refund the excess
to within thirty (30) days.
5. USE, LAWS AND REGULATIONS
5.1 THE LEASED PREMISES. The Leased Premises may be used and occupied
only for office and light manufacturing of medical and sports related products
utilizing injection mold equipment and for no other purpose or purposes without
Landlord's prior written consent. Tenant will maintain the premises in a clean
and healthy condition, and Tenant shall promptly comply with all governmental
law, ordinances, orders and regulations and Landlord's rules affecting the
Leased Premises and their cleanliness, safety, occupation and use. Landlord
shall make and shall pay for any renovations to the Premises at the
Commencement Date of the Lease, which are required so to as cause Tenant's use
of the Premises to comply with the Americans with Disabilities Act (ADA) and
all regulations issued thereunder, and subsequent to the Commencement Date
Tenant shall be responsible for ADA compliance. After Tenant has accepted the
Premises, Tenant shall comply promptly with the requirements of the Board of
Fire Underwriters, the City of San Antonio Fire Code, and requirements of
Landlord's insurance carrier, as applicable to the Leased Premises. Landlord,
at its own expense, will obtain an occupancy permit prior to move in.
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
2
<PAGE> 3
Tenant, Tenant's employees and invited guests will not perform any act or carry
on any practices that may injure the building or disturb the rights, comforts
or conveniences of persons at adjoining premises. Tenant may not store any
trash, equipment, vehicles or merchandise on any outside parking areas or
loading areas, except in areas specifically designated and approved in writing
by Landlord for such purposes. Unless provided in Common Area Costs contained
herein in Section 8.2 of this lease, Tenant will provide sanitary
receptacles for any and all trash, rubbish or discarded merchandise. Such
receptacles will be emptied as required in order to maintain the Premises in a
clean and sanitary fashion. All such expenses of trash storage and removal
will be borne by Tenant. Vehicles owned or operated by or for Tenant, Tenant's
employees, agents or invitees may be parked only in those areas designated by
Landlord immediately in front of, behind, or to the side of the Premises.
5.2 INSURANCE. No use shall be made or permitted to be made of the
Premises by Tenant or acts done by Tenant which increase the costs of
Landlord's insurance as provided for in Section 14.2 of this lease or which
increase the cost of insurance as carried by any other tenant of the building
which contains the Leased Premises. In the event that any such use or act is
performed or permitted by Tenant, Tenant will pay to Landlord promptly upon
demand the amount of any such increase in Landlord's insurance cost, together
with the amounts of any such increases in other tenant's insurance costs as
Landlord shall have reasonably paid as reimbursement to such other tenants.
Tenant will not, in any event, permit or perform any use or act within the
Premises which will cause the cancellation of any insurance policy concerning
the Premises or the contents thereof and agrees to indemnify Landlord against
all claims or actions for loss which result from any such act of cancellation.
5.3 FIRE PROTECTION SYSTEM. Prior to the Commencement Date, Landlord
shall test the existing fire protection system and make any repairs necessary
to place same in good working order. Landlord hereby represents and warrants
that as of the commencement date, the fire protection system in the Premises
will be in good working order and repair and be functioning as designed.
Tenant hereby accepts any fire protection system (if any) for the Premises as
sufficient for Tenant's purposes and agrees to maintain same in good working
order at all times. Any modification to the water sprinkler fire protection
system within the Premises (if any) required by governmental authorities as a
result of Tenant's particular use shall be at Tenant's cost and expense.
5.4 COMBUSTIBLE MATERIAL. Tenant shall not use the Premises for storage
of polystyrene trays or any other highly flammable/combustible or otherwise
inherently dangerous materials or of any other material which is prohibited by
Landlord's insurance carrier.
6. UTILITIES
6.1 RESPONSIBILITY. Landlord's responsibility with respect to natural
gas (if any) and electrical utility services hereunder shall be limited to the
connection and maintenance of the service lines and meters to the Premises,
which are in place on the commencement date of this lease. Tenant shall have
the entire responsibility to contract for and maintain gas and electrical
utility services through such service lines and Tenant shall not in any event
be relieved of any of Tenant's obligations under this lease by reason of
Tenant's failure or inability to contract for or maintain any such service.
6.2 PAYMENT. Tenant shall pay, prior to delinquency, for all water, gas,
heat, electricity, telephone, sewage, air conditioning and ventilating,
janitorial and other materials and services which may be furnished to or used
in or about the Premises during the term of this lease. Common meter water and
sewer charges shall be apportioned pro rata among tenants on the basis of
relative floor areas. In the event that Tenant occupies the Premises prior to
the effective transfer of utility service charges into Tenant's own name, then
Tenant agrees to reimburse Landlord for Tenant's pro rata share of common meter
gas and electrical service charges, such share to be based upon the relative
floor areas of the tenants being served by such common meter. It is the
intention of the parties hereto that such apportionment of common meter
utility charges equitably represents relative tenant usage of such utilities.
In the event of significantly disproportionate use of common meter services by
Tenant, Landlord reserves the right to allocate the cost of same to Tenant on a
reasonable specific basis.
7. TAXES AND INSURANCE
7.1 PERSONAL PROPERTY TAXES. Tenant shall be liable for all taxes
levied against personal property and trade fixtures placed by Tenant in the
Demised Premises. If any such taxes are levied against Landlord or Landlord's
property and if Landlord elects to pay the same or if the assessed value of
Landlord's property is increased by inclusion of personal property and trade
fixtures placed by Tenant in the Demised Premises and Landlord elects to pay
the taxes based on such increase, Tenant shall pay to Landlord upon demand that
part of such taxes for which Tenant is primarily liable hereunder.
7.2 REAL PROPERTY TAXES.
(a) Tenant agrees to pay its proportionate share of all taxes,
assessments and governmental charges of any kind and nature whatsoever
(hereinafter collectively referred to as the "Taxes"), levied or assessed
against the project. Notwithstanding the foregoing, in no event shall Tenant's
share of taxes include any component for (i) interest on penalties due to the
failure of any party to remit any portion of taxes to the applicable authority
when due, (ii) improvements made to the project after the date hereof which
were not made for the Benefit of Tenant or all of the
INITIALS:
LANDLORD: /s/ RLW
---------------
TENANT: /s/ MS
-----------------
3
<PAGE> 4
Tenants of the project, or (iii) improvements made at any time for the benefit
of any Tenant other than the Tenant. During each month of the term of this
lease, Tenant shall make a monthly escrow deposit with Landlord equal to 1/12
of its proportionate share of the Taxes on the project which will be due and
payable for that particular year. Tenant authorizes Landlord to use the funds
deposited by him with Landlord under this Paragraph 7.2 to pay the Taxes levied
or assessed against the project. Each Tax Escrow Payment shall be due and
payable at the same time and in the same manner as the time and manner of the
payment of Base Rental as provided herein. THE AMOUNT OF THE INITIAL MONTHLY
TAX ESCROW PAYMENT SHALL BE $2,658.00. The initial monthly Tax Escrow Payment
is based upon Tenant's proportionate share of the estimated taxes on the
project for the year in question, and the monthly Tax Escrow Payment is subject
to increase or decrease as determined by Landlord to reflect an accurate escrow
of Tenant's estimated proportionate share of the Taxes. The Tax Escrow Payment
account of Tenant shall be reconciled annually. If the Tenant's total Tax
Escrow Payments are less than Tenant's actual pro rata share of the Taxes on
the project, Tenant shall pay to Landlord within thirty (30) days of its
receipt of written demand the difference. If the total Tax Escrow Payments of
Tenant are more than Tenant's actual pro rata share of the Taxes on the
project, Landlord shall refund such excess and credit it to Tenant's within
thirty (30) days. Tenant's proportionate share of the Taxes on the project
shall be computed by multiplying the Taxes by a fraction, the numerator of
which shall be the number of square feet of floor space in the Demised Premises
and the denominator of which shall be the number of gross leasable square feet
in the project. (Add Insert #1)
(b) If Tenant should fail to pay any taxes, assessments, or
governmental charges required to be paid by Tenant hereunder, in addition to
any other remedies provided herein, Landlord may, if it so elects, pay such
taxes, assessments, and governmental charges. Any sums so paid by Landlord
shall be deemed to be so much additional rental owing by Tenant to Landlord and
due and payable upon demand as additional rental plus interest at the rate of
fourteen percent (14%) per annum from the date of payment by Landlord until
repaid by Tenant.
(c) If at any time during the term of this lease, the present method
of taxation shall be changed so that in lieu of the whole or any part of any
taxes, assessments, levies, assessed or imposed on real estate and the
improvements thereon, there shall be levied, assessed or imposed on Landlord a
capital levy or other tax directly on the rents received therefrom and/or a
franchise tax, assessment, levy or charge measured by or based, in whole or in
part, upon such rents on the present or any future building or buildings on
the project, then all such taxes, assessments, levies or charges, or the part
thereof so measured or based, shall be deemed to be included within the term
"Taxes" for the purposes hereof.
(d) Any payment to be made pursuant to this Paragraph 7.2 with
respect to the real estate tax year in which this lease commences or terminates
shall bear the same ratio to the payment which would be required to be made for
the full tax year as that part of such tax year covered by the term of this
lease bears to a full tax year.
7.3 INSURANCE. Tenant agrees to pay its proportionate share of Landlord's
cost of carrying fire and extended coverage insurance ("Insurance") on the
project. Such insurance shall be in an amount equal to the full replacement
cost of the improvements at the project. In no event shall Tenant's
proportionate share of such costs ever include any component for debit
modifiers or any other adjustments due to any prior loss history of Landlord on
its other properties. During each month of the term of this lease, Tenant shall
make a monthly escrow deposit with landlord equal to 1/12 of its proportionate
share of the Insurance on the project which will be due and payable for that
particular year. Tenant authorizes Landlord to use the funds deposited by him
with Landlord under this Paragraph 7.3 to pay cost of such Insurance. Each
Insurance Escrow Payment shall be due and payable at the same time and manner
of the payment of Minimum Guaranteed Rental as provided herein. THE AMOUNT OF
THE INITIAL MONTHLY INSURANCE ESCROW PAYMENT SHALL BE $289.00. The initial
monthly Insurance Escrow Payment is based upon Tenant's proportionate share of
the Estimated Insurance on the project for the year in question, and the
monthly Insurance Escrow payment is subject to increase or decrease as
determined by Landlord to reflect an accurate monthly escrow of Tenant's
estimated proportionate share of the Insurance. The Insurance Escrow Payment
account of Tenant shall be reconciled annually. If the Tenant's total
Insurance Escrow Payments are less than Tenant's actual pro rata share of the
Insurance on the project, Tenant shall pay to Landlord within thirty (30)
demand the difference. If the total Insurance Escrow Payments are more than
Tenant's actual pro rata share of the insurance of the project, Landlord shall
retain such excess and credit it more than Tenant's actual pro rata share of
the insurance on the project, Landlord shall retain such excess and credit it to
Tenant's Insurance Escrow Payment account. Tenant's proportionate share of the
cost of insurance on the project shall be computed by multiplying the cost of
Insurance by a fraction, the numerator of which shall be the number of square
feet of floor space in the Demised Premises and the denominator of which shall
be the number of gross leasable square feet in the project.
7.4 RECORDS. Landlord, for a period of 90 days after its demand for
payment, shall make available to Tenant during reasonable business hours after
reasonable notice, for inspection and copying, all records of Landlord relating
to the Real Property Taxes or insurance payments made by Tenant.
8. MAINTENANCE AND REPAIRS
8.1 LANDLORD'S DUTIES. Landlord, at its sole cost and expense, shall
maintain in a good state of repair the exterior of the roof and exterior walls
and all structural portions of the roof, exterior walls, floors and foundations
of the Premises, except for any repairs caused by the negligent acts or
omissions of Tenant, Tenant's agents, employees or invitees and all repairs to
damage caused by the Landlord, its agents, employees or contractors. Landlord
shall maintain heating and air conditioning systems within the Leased Premises
for the first one hundred eighty (180) days of this lease term only and Tenant
shall maintain such systems, at Tenant's expense, at all times thereafter.
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
4
<PAGE> 5
8.2 COMMON FACILITIES.
(a) For the purposes hereof, "Common Facilities" is defined as those
areas of the building and/or project of which the Demised Premises are a part
other than tenant spaces on spaces held for rent, including, without
limitation, parking area open for use by the public, driveways, truckways,
delivery passages, common truck loading areas, walkways, concourses and
landscaped areas. Tenant, and its agents, employees, customers and licensees,
shall have the non-exclusive right to use the common facilities as constituted
from time to time, such use to be in common with Landlord, other lessees of
the project, and other persons entitled to use the same, and subject to such
reasonable rules and regulations governing use as Landlord may from time to
time prescribe, including the designation of specific areas in which
automobiles owned by Tenant, its agents, employees and licensees, shall be
parked. Landlord may temporarily close any part of the common facilities for
such periods of time as may be necessary to prevent the public from obtaining
prescriptive rights or to make repairs or alterations. Landlord also reserves
the right to dedicate portions of the common facilities for street, park,
utility and other public purposes.
(b) Landlord shall be responsible for the operation, management, and
maintenance of the Common Facilities, the manner of maintenance and the
expenditures therefore to be in the reasonable discretion of Landlord in
keeping with similar properties.
(c) As used in this lease, the term "Common Area Costs" shall mean the
reasonable total of all items of expense relating to operating, managing,
equipping, policing and protecting (if Landlord so elects), lighting,
repairing, replacing and maintaining the utility of the common facilities in the
same condition as when originally installed (normal wear and tear excepted and
excluding items of a capital nature). Such costs and expense shall include,
but not be limited to, removal of trash from common receptacles (if provided in
the Project), dirt, and debris: costs of planting, replanting, and replacing
flowers and landscaping, and supplies required therefor; costs of seasonal and
permanent decorating; costs of painting, repairing and striping the parking lot
and curbing; and all costs of utilities used in connection therewith,
including, but not limited to, all costs of maintaining lighting facilities,and
storm drainage systems; costs of consultants used to protest the property tax
value on the Project; and costs involving Landlord's portion of any maintenance
expenses and assessments for the business park or Owner's Association in which
the project is located. Common area maintenance costs are estimated to be
$.018 per square foot monthly or $1040.00, and such estimate shall be paid
monthly.
(d) Effective upon the date on which rental shall be determined to
commence under the provisions hereof, and as additional rent hereunder (payable
at the same time or times as Rent, Tenant shall pay to Landlord Tenant's
proportionate share of the Common Area Costs (based upon Landlord's estimates
made prior to or at the commencement date of this Lease and from time to time
thereafter, subject to adjustment as hereinafter provided in the next Section),
which share shall be computed to be the product which results by multiplying
such Common Area Costs by the percentage that the total number of square feet
of floor area in the Demised Premises bears to the total number of leasable
square footage of buildings located on the Property.
(e) Within sixty (60) days following the end of each calendar year,
Landlord shall furnish to Tenant a statement showing the total common area
costs for the calendar year under the preceding Section. If Tenant's share of
such common area costs for such calendar year shall exceed Tenant's payment so
made, Tenant shall pay to Landlord the deficiency within thirty (30) days after
receipt of said statement. If Tenant's payments shall exceed Tenant's share of
such common area costs as shown on such statement, Landlord shall refund the
excess payments to Tenant within thirty (30) days. The common area costs shall
be subject to reasonable audit by Tenant, at Tenant's expense, with in ninety
(90) days after Tenant's receipt of the above mentioned statement from
Landlord. Landlord shall use diligent efforts to minimize such costs of
operation and maintenance in a manner consistent with good service center
practices in the community where the Project is located.
8.3 TENANT'S DUTIES. Tenant, at its sole cost and expense, shall maintain
in a clean and sanitary condition and in a good state of repair all other
portions of the Demised Premises, including, but in no way limited to, all
plumbing, wiring, glazing, windows, doors, floors, ceilings, interior walls and
the interior surface of exterior walls, all fixtures, fire protection systems,
equipment, signs, except for repairs caused by the negligent acts or omissions
of Landlord and its agents. Tenant shall assume the responsibility for
maintenance and replacement of heating and air conditioning systems after the
first one hundred eighty (180) days of the lease term. To the extent Landlord
is party to or beneficiary of, any service contracts or warranties covering any
item for which Tenant is responsible hereunder Landlord shall assign same to
Tenant on the Commencement Date.
8.4 PARKING LOT DAMAGE. Tenant shall not be permitted to dump or drain
any garbage, waste water, refuse, liquids or any other materials directly on to
the parking lot surface within the Project without the prior consent of
Landlord. Tenant shall also be responsible for any damage to the parking lot
caused by vehicles and equipment utilized in connection with Tenant's use of
the Demised Premises.
8.5 FAILURE TO PERFORM. In the event Tenant fails to maintain the Demised
Premises pursuant to the above provisions, Landlord shall give Tenant notice to
do such acts as are reasonably required to so maintain the Premises. In the
event Tenant fails to promptly commence such work within thirty (30) days
after Tenants receipt of written notice from Landlord of the need for such and
diligently pursue it to completion, then Landlord shall have the right to do
such acts and expend such funds at the expense of Tenant as are reasonably
required to perform such work. Any amount so expended by Landlord shall be
paid by Tenant promptly after demand or deducted by
INITIALS:
LANDLORD: /s/ RLW
---------
TENANT: /s/ MS
---------
5
<PAGE> 6
Landlord from Tenant's finishout savings (if any) described in Exhibit "C" or
security deposit (if any). Landlord shall have no liability to Tenant for any
damage, inconvenience or interference with the use of the Premises by Tenant as
a result of performing such work.
8.6 CONDITION AT END OF TERM. Upon the termination of this lease
or upon the expiration of the term of this lease, Tenant shall surrender the
Premises in the same condition as received, normal wear and tear, damage which
is Landlord's responsibility hereunder and damage by earthquake, act of God or
the elements alone excepted. Specifically, Tenant will restore or replace any
portion of the floor, door or wall surfaces within the Demised Premises which
have been scratched, gouged, broken, or otherwise marred beyond normal wear and
tear by Tenant's operations within the Premises and agrees to reasonably clean
such surfaces of dirt, grease, paint, tire marks, or other discoloration
prior to surrendering the Premises to Landlord upon the termination of this
lease. Tenant's duties hereunder shall include the duty to clean the Premises
and to deliver the current keys to Landlord. Failure to do so shall constitute
a failure to perform under Section 8.5 above.
9. ALTERATIONS
9.1 TENANT'S RIGHT TO MAKE ALTERATIONS. Tenant shall not make or
permit to be made any alterations or changes in or additions to the exterior or
structural interior of the Demised Premises without the prior written consent
of Landlord, which consent shall not be unreasonably withheld. Tenant shall,
unless otherwise specifically waived in writing by Landlord (if not in default
hereunder), prior to the expiration of this lease, or any extension thereof,
remove all fixtures, equipment and improvements which Tenant has placed in
the Demised Premises, and repair all damages to the Demised Premises caused by
such removal. Notwithstanding the foregoing Landlord acknowledges that Tenant
will be installing its own air conditioners and water tower at the Premises and
agrees that Tenant shall be entitled to remove these items at any time provided
Tenant repairs all damage caused by such removal and return the effected area
to substantially the condition same were in before Tenants installation, normal
wear and tear excepted.
10. LIENS
10.1 TENANT'S OBLIGATION. Tenant shall keep the Premises, and any
building of which the Premises are a part free and clear of any liens arising
out of work performed or caused to be performed by Tenant and shall indemnify,
hold harmless and defend Landlord from any liens and encumbrances arising out
of any work performed or materials furnished by or at the direction of Tenant.
In the event any lien is filed, Tenant shall do all acts necessary to discharge
such lien within thirty (30) days of filing; or, if Tenant desires to contest
any lien, then Tenant shall deposit with Landlord such security as Landlord
shall reasonably demand to ensure the payment of the lien claim. In the event
Tenant shall fail to pay any lien claim when due or shall fail to deposit the
security with Landlord, then Landlord shall have the right to expend all sums
necessary to discharge the lien claim, and Tenant shall pay promptly after
demand all sums expended by Landlord in discharging any lien, including
attorney's fees and costs.
10.2 LANDLORD LIENS. Landlord shall have a lien upon, and security
interest in, all of the fixtures, furniture, equipment, stock, goods,
merchandise and other property placed on the Demised Premises during the term
of the Lease, to secure the payment of rentals and other sums due hereunder for
the entire term of the Lease. In addition to the remedies granted by law,
Landlord shall have and may exercise with respect to said collateral, all of
the rights, remedies and powers of a secured party under the Uniform Commercial
Code, including, without limitation, the right and power to sell, at a public
or private sale or sales, or otherwise dispose of, lease or utilize, the
collateral and any part or parts thereof in any matter authorized or permitted
under said Code upon default by Tenant. At Landlord's request, Tenant shall
execute and deliver to Landlord a financing statement appropriate for use under
the Uniform Commercial Code or a signed counterpart of this Agreement or the
short form thereof may be used as such financing statement. Landlord hereby
agrees to subordinate its liens for rent and other sums to any equipment
and/or inventory financing of Tenant.
11. ENTRY
11.1 RIGHTS OF LANDLORD. Landlord and its agents shall have the
right at any reasonable time and upon reasonable prior notice to enter upon the
Premises for the purposes of inspection, construction, serving or posting
notices, showing to a prospective purchaser or tenant, or making any changes or
alterations or repairs which Landlord shall deem necessary for the protection,
improvement or preservation of the premises or the building of which the
Premises are a part, or for any other lawful purpose; provided that any such
entry shall not unreasonably interfere with Tenant's on-going operations at the
Premises. At any time after ninety (90) days prior to the expiration of the
term of the lease, Landlord may place thereon any usual or ordinary "For Lease"
or "For Sale" signs.
12. ASSIGNMENT AND SUBLETTING
12.1 LIMITATION. Tenant shall not assign, pledge or encumber this
lease, or sublet the whole or any part of the Premises without the prior
written consent of Landlord, which consent will not be unreasonably withheld or
delayed. This prohibition against assigning or subletting shall be construed
to include a prohibition against any
INITIALS:
LANDLORD: /s/ RLW
--------
TENANT: /s/ MS
--------
6
<PAGE> 7
assignment or subletting by operation of law; provided, however, that a sale
of stock of Tenant shall not be deemed or construed as an assignment or
subletting by operation of law for purposes of this lease. In the event of any
assignment or subletting of this lease made with or without Landlord's consent,
Tenant shall nevertheless remain liable for the performance of all of the
terms, conditions and covenants of this lease. Landlord shall be entitled to,
and Tenant shall promptly remit to Landlord as addition rental hereunder, all
sums which Tenant receives as the result of any such subletting or assignment
in excess of the fixed rental payments to Landlord required hereunder, whether
or not such subletting or assignment is consented to by Landlord. Any such
assignment or subletting without the prior written consent of Landlord shall be
void and constitute a breach of the lease and shall, at the option of the
Landlord, terminate the lease. No consent to any assignment, voluntarily or by
operation of law, of this lease or any subletting of said premises shall be
deemed to be a consent to any subsequent assignment or subletting, except as to
the specific instance covered thereby. Notwithstanding any of the foregoing to
the contrary, Tenant shall be entitled to assign this Lease or sublet the
Premises to any affiliate of Tenant without Landlord's prior consent.
13. INDEMNIFICATION
13.1 TENANT'S OBLIGATIONS. TENANT SHALL HOLD HARMLESS, INDEMNIFY
AND DEFEND LANDLORD, ITS EMPLOYEES AND AGENTS, AGAINST ALL CLAIMS, DEMANDS AND
ACTIONS FOR LOSS, LIABILITY, DAMAGE, COST AND EXPENSE (INCLUDING ATTORNEY'S
FEES) RESULTING FROM INJURY OR DEATH TO ANY PERSON AND DAMAGE TO PROPERTY
CAUSED BY THE ACT OR OMISSION OF ANY PERSON, EXCEPT LANDLORD, ITS EMPLOYEES AND
AGENTS, WHILE IN, OR UPON THE PREMISES DURING THE TERM OF THIS LEASE OR ANY
OCCUPANCY HEREUNDER.
13.2 LANDLORD'S OBLIGATION. LANDLORD SHALL HOLD HARMLESS, INDEMNIFY
AND DEFEND TENANT AND ITS EMPLOYEES AND AGENTS AGAINST ALL CLAIMS, DEMANDS AND
ACTION FOR LOSS, LIABILITY, DAMAGE, COST AND EXPENSE (INCLUDING ATTORNEY'S
FEES) RESULTING FROM INJURY OR DEATH TO ANY PERSON AND DAMAGE TO PROPERTY
CAUSED BY THE ACTION OR OMISSION OF LANDLORD, ITS EMPLOYEES AND AGENTS, WHILE
IN, UPON OR CONNECTED IN ANY WAY WITH THE PREMISES OR THE PROJECT DURING THE
TERM OF THIS LEASE OR ANY OCCUPANCY HEREUNDER.
14. INSURANCE COVERAGE
14.1 PUBLIC LIABILITY. Tenant shall take out and keep in force
during the term of this lease, at Tenant's expense, comprehensive general
liability insurance protection in the limit of $1,000,000 bodily injury
liability protection per each occurrence and property damage liability
protection of $350,000 per each occurrence. Landlord shall maintain
comprehensive general liability insurance protection with a least equivalent
limits.
14.2 FIRE INSURANCE. Landlord shall take out and keep in force
during the term of this lease, at Landlord's expense, a Texas standard fire
insurance policy, including coverage for the perils enumerated under the policy
definition of fire, lightning and extended coverage, with six months' rent
insurance covering all of the buildings in the Project which contains the Lease
Premises as identified on Exhibit "A" attached hereto. The proceeds shall be
applied by Landlord pursuant to the provisions of Section 17. Tenant
acknowledges that Landlord's insurance will not cover Tenant's property.
14.3 WAIVER OF SUBROGATION. Landlord and Tenant hereby release each
other from any and all liability or responsibility to the other or anyone
claiming through or under them by way of subrogation or otherwise for any loss
or damage to property caused by fire or any of the extended coverage or
supplementary contract casualties, even if such fire or other casualty shall
have been caused by the fault or negligence of the other party or anyone for
whom such party may be responsible. All fire and extended coverage insurance
carried by either Landlord or Tenant covering losses arising out of the
destruction of or damage to the Demised Premises or its contents shall provide
for a waiver of rights of subrogation against Landlord and Tenant on the part
of the insurance carrier.
14.4 PROCEDURE. The policies required by Sections 14.1 and 14.2
shall be with a Best's A+, Class X company. A certificate as to such tenant
insurance shall be delivered to Landlord annually and all renewals thereof
shall be delivered to Landlord at least ten (10) days prior to the expiration
of the respective policy terms. Tenant and Landlord shall have the right to
provide such insurance coverage pursuant to blanket policies, provided such
blanket policies expressly afford coverage to the Premises and to Tenant and
Landlord as required by this lease. Tenant shall obtain a written obligation
on the part of any such insurance company to notify Landlord in writing of any
delinquency in premium payments and at least ten (10) days prior thereto of any
cancellation of any such policy. Tenant agrees that if Tenant does not take
out such insurance or keep the same in full force and effect, Landlord may take
out the necessary insurance and pay the premium therefor, and Tenant shall
promptly repay to Landlord the amount so paid, after demand, as additional
rental.
15. DEFAULT BY TENANT
INITIALS:
LANDLORD: /s/ RLW
---------
TENANT: /s/ MS
---------
7
<PAGE> 8
15.1 Tenant shall be deemed in default in the event any of the
following occurs:
(a) Default in the prompt payment of rent when the same is due
and continuance in such default for ten (10) days after such due date; or
(b) Violation of any other of the covenants performable by
Tenant hereunder after the expiration of twenty (20) days following the receipt
of notice of such violation or such longer period of time as may be reasonably
necessary to cure such violation provided Tenant completes the cure of same
within said twenty (20) day period and continues such efforts with reasonable
diligence until completed.; or
(c) Tenant or any guarantor of Tenant's obligations hereunder
files a voluntary petition in bankruptcy, be adjudged bankrupt, be placed in or
subjected to receivership, or make an assignment for benefit of creditors; or
Upon default, Landlord may immediately reenter the Demised Premises by
summary proceedings or by force or otherwise, provided that no breach of the
peace should occur, without further notice and without being liable for
prosecution, take possession of the Demised Premises and remove all persons
therefrom, and may pursue all legal remedies, including cancellation of this
Lease or subletting the Premises as agent for Tenant or otherwise, and receive
the rent therefor, applying the same first to the payment of such expenses as
the Landlord may incur in entering and letting, then to the payment of the rent
payable under this lease and the fulfillment of Tenant's covenants hereunder,
the balance, if any, to be paid to Tenant, who shall remain liable for any
deficiency. Upon the reentering of said Premises, Landlord may remove all or
any part of the personal property of Tenant remaining on the Premises and store
the same at Tenant's expense. If said personal property remaining on the
Premises is not claimed by Tenant or a Lienholder claiming an interest in
Tenant's property within sixty (60) days after such entry, title to the same
shall vest in Landlord. Add Insert #3.
15.2 BANKRUPTCY OF TENANT. If this lease is assigned to any person
or entity pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Section
101 et seq., any and all funds payable or otherwise to be delivered in
connection with such assignment shall be paid or delivered to Landlord, shall
be and remain the exclusive property of Landlord and shall not constitute
property of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any and all funds or other considerations constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and be promptly
paid or delivered to Landlord. Any person or entity to which this lease is
assigned pursuant to the provisions of the Bankruptcy code shall be deemed
without further act or deed to have assumed all of the obligations arising
under this lease on and after the date of such assignment. Any such assignee
shall upon demand execute and deliver to Landlord an instrument confirming such
assumption.
16. COST OF SUIT
16.1 RIGHT TO RECOVER. If legal action shall be brought by either
of the parties hereto for the unlawful detainer of the Premises, for the
recovery of any rent due under the provisions of this lease, or because of the
breach of any term, covenant or provision hereof, the party prevailing in said
action shall be entitled to recover costs of suit and reasonable attorney's
fees incurred by the prevailing party in the action.
17. DAMAGE TO PREMISES BY FIRE OR OTHER CASUALTY
17.1 RESTORATION OF THE PREMISES. In the event that the Leased
Premises are damaged by fire or other casualty, Tenant shall give immediate
written notice of such damage to Landlord and to any mortgage of the Premises
whose address shall have been furnished it, and Landlord shall proceed with all
reasonable diligence to commence and complete restoration of the Premises within
one hundred twenty (120) days from the date of such damage, during which
restoration period this lease shall remain in full force and effect, except
that rental shall be reduced in proportion to the percentage which the area of
the unusable portion of the Premises bears to the area of the entire Premises.
Landlord's obligation to restore the Premises shall be limited to the scope of
Landlord's original work, and Tenant shall be entirely responsible for the
restoration of improvements made by Tenant or Tenant's personal property. In
the event that the Leased Premises cannot be restored within one hundred twenty
(120) days of the date of such damage, then either Landlord or Tenant may
cancel this lease effective upon written notice of such cancellation given to
the other party.
17.2 NO RESTORATION. Notwithstanding anything contained hereinabove
to the contrary, in the event that the cost of restoration exceeds $350,000 and
any mortgagee of the Premises refuses to make the proceeds of Landlord's
insurance immediately available to Landlord for the restoration of the
Premises, or in the event that such damage is the result of any casualty other
than a casualty for which Landlord is required by Section 14.2 of this lease to
provide insurance, or in the event that the cost of such restoration is
estimated to exceed eighty percent (80%) of the replacement cost of the entire
Premises, then Landlord, at Landlord's option, shall be released from the
obligation to restore the Premises by giving notice of such event and of
Landlord's election not to so restore, which notice must be given to Tenant
within thirty (30) sixty (60) days of the date of the damage, provided,
however, that should Landlord elect to not restore the premises, Tenant may, at
its option, terminate this Lease by sending written notice of termination to
Landlord within forty-five (45) days of the date Tenant receives written notice
of Landlord's election. In the event that the Leased Premises cannot be
restored within one hundred twenty (120) days of the date of such damage, then
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
8
<PAGE> 9
either Landlord or Tenant may cancel this lease effective upon written notice
of such cancellation given to the other party.
18. EMINENT DOMAIN
18.1 PREMISES TAKEN. If the Premises or any portion thereof are
taken under the power of eminent domain or sold under the threat of the
exercise of said power (all of which are herein called "condemnation"), this
lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever first occurs. If more than ten
percent (10%) of the floor area of the Premises, or more than twenty-five
percent (25%) of the parking area of the Project is taken by condemnation,
Tenant may, at Tenant's option, to be exercised in writing only within ten (10)
days after Landlord shall have given Tenant written notice of such taking (or
in the absence of such notice, within ten (10) days after the condemning
authority shall have taken possession), terminate this lease as of the date the
condemning authority takes such possession.
18.2 PREMISES REMAINING. If Tenant does not terminate this lease in
accordance with the foregoing, Landlord, at its expense, shall restore the
improvements to an architectural whole, and this lease shall remain in full
force and effect as to the portion of the Premises remaining, except that the
rent shall be reduced in the proportion that the floor area of the Premises
taken bears to the total floor area of the original Premises. Any award for
the taking of all or any part of the Premises under the power of eminent
domain, or any payment made under threat of the exercise of such power, shall
be the property of Landlord, whether such award shall be made as compensation
for diminution in value of the leasehold or for the taking of the fee, or as
severance damages; provided, however, that Tenant shall be entitled to any
award for loss or damage to Tenant's trade fixtures, removable personal
property, and improvements which were made by Tenant.
19. HOLDING OVER
19.1 HOLDOVER. Should Tenant continue to occupy the Premises after
the expiration of the term hereof, whether with or against the consent of
Landlord, such tenancy shall be from month to month and under all the terms,
covenants and conditions of this lease, but at one hundred fifty percent (150%)
the Base Rental required herein.
20. SUBORDINATION AND STATEMENT OF CONDITION OF LEASE
20.1 SUBORDINATION. Tenant accepts this lease subject and
subordinate to any recorded mortgage or deed of trust lien presently existing
or hereafter created upon the Demised Premises or the Project and to all
existing recorded restrictions, covenants, easements and agreements with
respect to the Demised Premises or the Project. This subordination shall be
self-operative without the necessity of the execution of any further instruments
by Tenants, but upon the request of any present or future mortgage, Landlord is
hereby irrevocably vested with full power and authority, if it so elects, at
any time, to subordinate this lease to any mortgage hereafter placed upon the
Demised Premises or upon the entire premises by executing a written
subordination instrument as attorney-in-fact for Tenant, and Tenant further
agrees upon demand to execute any additional instruments subordinating this
lease as Landlord may request. If the interests of Landlord under this lease
shall be transferred by reason of foreclosure or other proceedings for
enforcement of any first mortgage or deed of trust lien on the Demised Premises,
Tenant shall be bound to the transferee (sometimes called the "Purchaser") at
the option of the Purchaser, under the terms, covenants and conditions of this
Lease for the balance of the term remaining, including any extensions or
renewals, with the same force and effect as if the Purchaser were Landlord
under this Lease, and, if requested by Purchaser, Tenant agrees to attorn to
the Purchaser. Notwithstanding the above, the subordination of this Lease to
any mortgage, deed of trust or other mortgage lien hereafter placed upon the
Demised Premises and/or the Land shall be contingent upon the holder of any
such lien ("Lienholder") entering into an agreement with Tenant in form and
substance acceptable to Tenant, which shall provide, inter alia, that so long
as there exists no default by Tenant under this Lease, Tenant's rights under
this Lease shall not be terminated or disturbed by Lienholder or any purchaser
or subsequent owner of the Project and/or the Land in the exercise of any of
such Lienholder's rights under Lienholder's mortgage, deed of trust or other
mortgage lien, nor in any other way under this Lease except in accordance with
its terms. Landlord will obtain a non-disturbance agreement signed by the
current lender within thirty (30) days of execution of this Lease, in a form
similar to Exhibit "F", attached.
20.2 CONDITION OF LEASE. Tenant shall execute, acknowledge and
deliver to Landlord, without any charge, at any time within ten (10) days
after request by Landlord, a written statement or estoppel certificate as may
be required by any mortgagee or purchaser of the premises to the effect that
this lease, as of said date, is unmodified and in full force and effect (or if
there have been modifications, that this lease is in full force and effect as
modified), the date of commencement of the lease, the date on which rental has
been last paid, and such other information as Landlord shall reasonably
request, any such statement by Tenant shall be used by Landlord for delivery to
and reliance upon by prospective purchasers and lenders whose security will
consist of liens upon the premises and buildings of which the premises are a
part and shall not affect Tenant's right to later assert any subsequent
default or modification.
21. SIGNS
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
9
<PAGE> 10
21.1 PREMISE SIGN. Tenant, at Tenant's expense, may affix one sign to the
exterior of the premises in a location previously designated by Landlord. Such
sign must meet Landlord's requirements with respect to size, shape,
construction, materials, design and color, and must be approved in writing by
Landlord prior to its installation by Tenant.
21.2 PYLON SIGN. If the Project has a pylon sign (tenant menu sign) at the
street, Landlord may place Tenant's name on such signage at Landlord's expense.
23. SECURITY
23.1 SECURITY. Tenant, at Tenant's own expense, shall provide whatever
security and/or alarm systems which Tenant deems necessary and appropriate for
the protection of the Demised Premises and of Tenant's fixtures, inventory and
equipment located therein. In no event shall Landlord be responsible for loss
of or damage to any of Tenant's fixtures, inventory and equipment situated in
the premises, even though Landlord may have provided general area security or
guard services. Tenant is expressly advised that if Tenant should place any
fixtures, inventory and equipment within the premises prior to the time the
premises are completed and delivered to Tenant, the risk of loss or damage to
the same will be greatly increased in view of the fact that numerous people
will, out of necessity, be permitted access to the premises for the purpose of
completing the same. Landlord may provide general area security or guard
services as required from time to time, in which event Tenant shall pay to
Landlord, promptly after demand, Tenant's pro rata share of the costs incurred
by Landlord in having such services performed, such pro rata share to be
determined by the percentage which the square footage of the leased premises
bears to the total square footage of the building(s) benefitting from such
services. Tenant is hereby notified that Landlord maintains no security with
respect to keys and that Tenant may (at Tenant's expense) change or re-key the
premises' locks as deemed necessary by Tenant without Landlord's consent. Upon
default per section 15.1 of this lease, Landlord may change or re-key the
premises' locks without Tenant's consent or notice to Tenant.
24. NOTICE
24.1 REQUIREMENT. All notices or demands of any kind required to be
given by Landlord or Tenant hereunder shall be in writing and shall be deemed
delivered (i) forty-eight (48) hours after depositing the notice or demand in
the United States mail, certified or registered, postage prepaid, or (ii) on
the first business day following the deposit of the notice with Fedex or any
similar overnight delivery service as a prepaid item for delivery the next
business day, at the following addresses, or such other address as shall be
designated by either party in compliance with the provisions of this paragraph,
to wit:
<TABLE>
<CAPTION>
Landlord: Tenant:
ALAMO FAIRGROUNDS, LTD. PRISM TECHNOLOGIES, INC.
- ----------------------- ------------------------
<S> <C>
R.L. Worth & Associates, Ltd. 6952 Fairgrounds Parkway
Managing Agent for Owner San Antonio, Texas 78238
4040 Broadway, Suite 522
San Antonio, Texas 78209
</TABLE>
25. WAIVER
25.1 EITHER PARTY. No covenant, term or condition or breach thereof shall
be deemed waived, except by written consent of the party against whom the waiver
is claimed, and any waiver or the breach of any covenant, term or condition
shall not be deemed to be a waiver of any preceding or succeeding breach of the
same or any other covenant, term or condition. Acceptance of all or any portion
of rent at any time shall not be deemed to be a waiver of any covenant, term or
condition as to the rent payment accepted.
26. MISCELLANEOUS
26.1 CAPTIONS. The captions of the paragraphs contained in this lease are
for convenience only and shall not be deemed to be relevant in resolving any
questions of interpretation or construction of any paragraph of this lease.
26.2 SUCCESSORS AND ASSIGNS. All of the terms, covenants and conditions of
this lease shall be binding upon and inure to the benefit of the parties hereto
and their heirs, executors, administrators, legal representatives, successors
and assigns, except that nothing in this provision shall be deemed to permit any
assignment, subletting or use of the premises other than as provided for herein.
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
10
<PAGE> 11
26.3 APPLICABLE LAW. This lease shall be governed and interpreted solely by
the laws of the State of Texas then in force. Each number, singular or plural,
as used in this lease, shall include all numbers, and each gender shall be
deemed to include all genders.
26.4 TIME AND JOINT AND SEVERAL LIABILITY. Time is of the essence in this
lease and each and every provision hereof, except as to the conditions relating
to the delivery of possession of the premises to Tenant. All the terms,
covenants and conditions contained in this lease to be performed by either
party, if such party shall consist of more than one person or organization,
shall be deemed to be joint and several, and all rights and remedies of the
parties shall be cumulative and nonexclusive of any other remedy.
26.5 JOINT VENTURE. Any intention to create a joint venture or partnership
relationship between Landlord and Tenant is hereby expressly disclaimed.
27. WITHHOLDING OF CONSENT
27.1 It is expressly understood with respect to Sections 9.1 of this lease
that Landlord shall not be liable for damages, even though withholding of the
Landlord's consent shall be found unreasonable, so that Tenant's remedy in such
event shall be limited to injunctive relief.
28. ENTIRETY CLAUSE
28.1 This lease contains and embraces the entire agreement between the
parties hereto and it or any part of it may not be changed, altered, modified,
limited, terminated, or extended orally or by any agreement between the parties
unless such agreement be expressed in writing, signed and acknowledged by the
parties hereto, their legal representatives, successors and assigns, except as
may be expressly otherwise provided herein.
29. NO REPRESENTATIONS
29.1 Landlord or Landlord's agent have made no representations or promises
with respect to the building, the land upon which the building is erected, or
the premises, except as herein expressly set forth, and no rights, easements or
licenses are acquired by Tenant, by implication or otherwise, except as
expressly set forth in the provisions of this lease.
30. QUIET ENJOYMENT
30.1 Tenant, subject to the terms and provisions of this lease on payment
of the rent and observing, keeping and performing all the terms or provisions
of this lease on its part to be observed, kept and performed shall lawfully,
peacefully and quietly have, hold and enjoy the Demised Premises during the
term hereof on and after the term commencement date without hindrance or
ejection by Landlord and any persons lawfully claiming under Landlord, subject,
nevertheless, to the terms and conditions of this lease and to any ground or
underlying lease and/or mortgage(s). It is understood and agreed, however, that
this covenant and any and all other covenants of Landlord contained in this
lease shall be binding upon Landlord and its successors only with respect to
breaches occurring during its and their respective ownership of Landlord's
interest hereunder.
31. RULES AND REGULATIONS
31.1 Tenant and Tenant's agents, employees and invitees will comply fully
with any reasonable rules and regulations governing the operation and use of
the premises or the common service drives, parking areas, and railroad spur
(if any) situated upon the project which are hereinafter imposed by Landlord
upon all tenants of the Project in order to preserve the rights and peaceful
occupancy of all tenant of the Project, described on Exhibit "D" attached
hereto; provided such rules do not discriminate against Tenant or require Tenant
to incur any cost in order to comply therewith. In the event any such rules
conflict with Tenant's rights hereunder, the terms of this Lease shall control.
31.2 (a) As used in this Lease, "Legal Requirements" shall mean any
applicable law, statute, ordinance, order, rule, regulation, decree or
requirement of a Governmental Authority, and "Governmental Authority" shall mean
the United States, the state, county, city and political subdivisions in which
the Project is located or which exercise jurisdiction over the Project, and
any agency, department, commission, board, bureau or instrumentality of any of
them which exercise jurisdiction over the Project. Tenant, at Tenant's sole
cost and expense, shall comply with, and shall cause its employees, contractors
and agents to comply with, and shall use its best efforts to cause its
customers, visitors and invitees to comply with, all Legal Requirements
relating to the use, condition or occupancy of the Demised Premises
(including, without limitation, all Legal Requirements applicable to Tenant's
business and operations in the Demised Premises and all orders and requirements
imposed by any health Officer, Fire marshal, Building Inspector or other
Governmental Authority) and with the rules of the Project adopted by Landlord
from time to time for the safety care and cleanliness of the Demised Premises
and the Project and for preservation of good order therein (the "Project
Rules"). Without limitation of the foregoing, Tenant agrees that it shall be
responsible, at Tenant's sole cost and expense, for complying with the Americans
With Disabilities Act, and the rules and regulations promulgated pursuant
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
11
<PAGE> 12
thereto, as such Act, regulations and rules are applicable to the use,
condition or occupancy of the Demised Premises. Notwithstanding the foregoing,
Landlord shall be responsible for compliance with all legal requirements as
same relate to the roof, exterior or structural elements of the building of
which the Demised Premises are a part. In the event of any conflict between
the provisions of this Lease and the Project Rules, the provisions of this
Lease shall control.
(b) Without limiting the provisions of subsection (a)
above, Tenant shall comply with all applicable legal requirements regarding
health, safety or the environment (the "Environmental Laws"), including without
limitation the application for and maintenance of all required permits, the
submittal of all notices and reports, proper labeling, training and
recordkeeping, and timely and appropriate response to any release or other
discharge of a substance under Environmental Laws. In no way limiting the
generality of the foregoing, Tenant shall not cause the use, generation,
storage or disposal in or about the Demised Premises, the Project or the
Complex of any substances, materials or wastes subject to regulation under
Legal Requirements from time to time in effect concerning hazardous, toxic or
radioactive materials (the "Hazardous Materials"), unless Tenant shall have
received Landlord's prior written consent, which consent Landlord may withhold
or revoke at any time in its sole discretion. Additionally, Tenant shall not
permit to be present upon the Demised Premises, or contained in any transformers
or other equipment thereon, any PCB's. "PCB" means any oil or other substance
containing polychlorinated biphenyl (as defined in 40 CFR 761.3). Tenant
shall not place any asbestos, or any structures, fixtures, equipment or other
objects or materials containing asbestos on the Demised Premises. Tenant shall
immediately notify Landlord of the presence of any Reportable Quantity (defined
below) of a hazardous substance, extremely hazardous substance or toxic
pollutant on or about the Demised Premises. As used in this Lease, "Reportable
Quantity" shall mean that amount defined in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Federal Water
Pollution Control Act, as amended, pertinent regulations thereunder or other
relevant Environmental Laws.
TENANT SHALL INDEMNIFY, PROTECT, DEFEND (WITH COUNSEL
REASONABLY APPROVED BY LANDLORD) AND HOLD LANDLORD AND ITS PARTNERS, AND THE
RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES AND AGENTS OF LANDLORD
AND ITS PARTNERS, HARMLESS FROM ANY AND ALL OBLIGATIONS, CLAIMS, ADMINISTRATIVE
PROCEEDINGS, JUDGEMENTS, DAMAGES, FINES, COSTS, AND LIABILITIES, INCLUDING
REASONABLE ATTORNEYS' FEES INCURRED IN ENFORCING THIS LEASE, PERFORMANCE ON
TENANT'S BEHALF, OR COLLECTING ANY SUMS DUE HEREUNDER, (COLLECTIVELY, THE
"COSTS") THAT ARISE DIRECTLY OR INDIRECTLY FROM OR IN CONNECTION WITH THE
PRESENCE, SUSPECTED PRESENCE, RELEASE (DEFINED BELOW), OR SUSPECTED RELEASE OF
HAZARDOUS MATERIALS ARISING OUT OF, IN CONNECTION WITH, OR BY REASON OF THE
ACTION OR INACTION OF TENANT, OR TENANT'S OFFICERS, DIRECTORS, PARTNERS,
AGENTS, EMPLOYEES, CONTRACTORS, SUBTENANTS, INVITEES AND VISITORS. As used in
this Lease, "Release" shall mean any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching, dumping, or
disposing into the environment (including the abandonment or discarding of
barrels, containers and other closed receptacles). If Landlord incurs any
Costs, Tenant shall pay to Landlord the amount thereof upon demand. Without
limiting the generality of the foregoing, there shall be included in Costs,
capital, operating, and maintenance costs incurred in connection with any
investigation or monitoring of site conditions, any clean up, containment,
remedial, removal or restoration work required or performed by any federal,
staff or local governmental agency or political subdivision or performed by any
nongovernmental entity or person.
33. ABANDONED PROPERTY
33.1 All of Tenant's furniture, movable trade fixtures and personal
property not removed from the premises within five (5) days of Landlord's
written request at the termination of this lease, whether such termination
occurs by lapse of time or otherwise, shall be conclusively presumed abandoned
by Tenant, and Landlord may declare such property to be the property of
Landlord or may dispose of the property by any method Landlord deems advisable,
at Tenant's expense. Landlord's rights under this paragraph shall be
cumulative of Landlord's rights under Section 15 above.
34. FORCE MAJEURE
34.1 In the event Landlord shall be delayed, hindered or prevented
from the performance of any act required under this lease by reason of acts of
God, acts of common enemies, fire, storm, flood, explosion or other casualty,
strikes, lockouts, labor disputes, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws of regulations,
riots, insurrection, war, settlement of losses with insurance carriers,
injunction, order of any court or governmental authority, or other cause not
within the reasonable control of Landlord, then the performance of such act
shall be excused for the period of the delay and the period for the performance
of such act shall be extended for a period equivalent to the period of such
delay.
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
12
<PAGE> 13
35. TRANSFER OF LANDLORD'S RIGHTS
35.1 Landlord shall have the right to transfer and assign, in whole
or in part, all and every feature of Landlord's rights and obligations under
this lease and in the building and property referred to in this lease. In such
event, Landlord shall be released from any further obligation under this lease,
and Tenant shall look solely to Landlord's successor for the performance of
such obligation.
36. PARKING
36.1 Tenant shall have the nonexclusive use in common with Landlord,
other tenants, their employees, guests and invitees, of parking areas, situated
in the Project subject to reasonable rules and regulations for the use thereof
as prescribed from time to time by Landlord. Landlord reserves the right to
designate parking areas for the use of tenants and their employees; and the
tenants and their employees shall not park in parking area not so designated.
37. REAL ESTATE COMMISSION
37.1 Landlord and Tenant represent that they have not contracted
with or dealt with any realtor, agent, broker or third party in connection with
this Lease other than R.L. Worth & Associates, Ltd. and Aequus Real Estate
Service; to each party's knowledge, no other person, firm or individual is
entitled to or has a claim for a commission or fee arising out of or in
connection with the execution of this Lease.
38. EXHIBITS
38.1 PART OF LEASE. Exhibits A (Site Plan), B (Legal Description),
C (Landlords's Work), C-1 (Construction Drawings), D (Building Rules &
Regulations), E (Prism Lease Inserts), & F (Non-Disturbance Agreement) attached
hereto have been added prior the execution hereof and by this reference are
deemed a part of this lease.
39. ADDITIONAL PARAGRAPHS
39.1 Option to Renew - Provided that Tenant is not in default
hereunder and has not assigned this Lease or sublet the premises or any part
thereof, Landlord hereby grants to Tenant separate and successive options to
extend this lease for two (2) additional five (5) year terms exercisable by
giving Landlord written notice at least one hundred eighty (180) days prior to
the expiration of the Lease term or the first option terms, as applicable.
During each option term, all provisions of the Lease shall fully apply, except
that during said option terms, the base rent shall be adjusted at the beginning
of the option term in accordance with the following provisions:
The annual base rent payable by Tenant during the option term
shall be adjusted in accordance with the increase, if any, in the cost of
living based upon "The Consumer Price Index for all urban consumers for all
items based upon the U.S. City average before seasonal adjustment (1982 - 84 =
100) (hereinafter called the "Index"), published by the Bureau of Labor
Statistics of the United States Department of Labor. For the "First Option
Term," the Index number for the month of January, 1997 shall be the "Base Index
Number," and the Index number for the month of January, 2002 shall be the
"Current Index Number." For the "Second Option Term," the Index number for the
month of January, 2002 shall be the "Base Index Number," and the Index number
for the month of January, 2007 shall be the "Current Index Number." The Current
Index Number shall be divided by the Base Index Number and any resulting
positive number shall be deemed to be the increase in the cost of living. Such
increase in the cost of living multiplied by the amount of the base rent paid
during the preceding year shall be the increase in Rent required to be
determined by this paragraph. Provided, however, in no event shall the base
rent payable during an option term be less than the rent payable for the year
prior to the year of rent adjustment, nor shall the base rent increase by more
than a three and one-half percent (3.5%) per year inflation rate for the period
between the applicable Base Index Number and the Applicable Current Index
Number.
If the CPI called for by this formula is no longer published,
or if the format of it has changed so that this calculation is no longer
possible, then another substantially comparable index shall be substituted in
the formula by agreement of the parties. If the parties cannot agree on the
substitute index, then the substitute index shall be selected by a committee
composed of three independent certified public accountants, one selected by
Landlord, one selected by Tenant, and one selected by the other two certified
public accountants.
39.2 Arbitration - LANDLORD and TENANT agree that if a dispute
arises between them relating to this lese, they will settle the dispute by the
alternative dispute resolution procedures (ADR) described in this paragraph
instead of pursuing any other available legal remedies. Either party may give
written notice to the other that a dispute exists and that such party desires
to pursue ADR. Such notice must identify a neutral person not affiliated with
either of the parties (the "Mediator") to negotiate a resolution of the
dispute. LANDLORD and TENANT shall have thirty (30) days after delivery of
such notice to agree upon a mediator and participate in good faith in the ADR
to its conclusion as determined by the mediator. If the parties are not
successful in resolving the dispute through ADR within such 30-day period,
then LANDLORD and TENANT agree that the dispute shall be settled by binding
arbitration in accordance with the
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
13
<PAGE> 14
Commercial Arbitration Rules of the American Arbitration Association (AAA).
The AAA shall select one arbitrator who shall be knowledgeable in the subject
matter of the dispute. The award of the arbitrator shall be final and judgment
upon the award rendered by the arbitrator may be entered in any court having
jurisdiction. Depositions may be taken and other discovery conducted in any
arbitration under this lease. The provisions of this paragraph shall survive
the termination or amendment of this lease unless the parties otherwise agree
in writing. LANDLORD and TENANT acknowledge that this lease evidences a
transaction involving interstate commerce. The Federal Arbitration Act shall
govern the interpretation and enforcement of this agreement to arbitrate and
any arbitration proceedings conducted pursuant to this agreement. The
arbitrator shall award attorney's fees and all arbitration costs and related
expenses to the prevailing party. Venue for any arbitration proceeding will
be in Bexar County, Texas.
EXECUTED THIS 20 day of May, 1997.
LANDLORD: TENANT:
ALAMO FAIRGROUNDS,LTD. PRISM TECHNOLOGIES INC.
By: /s/ Robert L. Worth, Jr. By: /s/ Merle Smith
- ------------------------------- --------------------------
Robert L. Worth, Jr., Manager Merle Smith, President
R.L. Worth & Associates, Ltd.
General Partner
ADDRESS: ADDRESS:
4040 Broadway, Suite 522
- -------------------------
San Antonio, Texas 78209 6952 Fairgrounds Pkwy.
- ------------------------- ----------------------
Office Telephone No. (210) 822-5220 Home Office Phone No. 520-8051
-------------- ----------
Tax I.D. No. Home Office Fax No. 520-8039
---------------------- ----------
Local Office phone No. 520-8051
---------
Tax I.D. No. 74-265-3689
--------------
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
<PAGE> 15
EXHIBIT "A"
[Diagram]
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
<PAGE> 16
EXHIBIT "B"
LEGAL DESCRIPTION:
Lot 3, Block 4, New City Block 17246, FAIRGROUNDS PARKWAY
EXTENSION, City of san Antonio, Bexar County, Texas, according to
plat recorded in Volume 9508, Page 102, Deed and Plat Records,
Bexar County, Texas.
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
15
<PAGE> 17
EXHIBIT "C"
Add Insert.
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
16
<PAGE> 18
EXHIBIT "D"
BUILDING RULES AND REGULATIONS
1. Tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any service on or to the premises
for Tenant, to Landlord for Landlord's approval and supervision before
performance of any contractual service. This provision shall apply to
all work performed in the Building including installations of
telephones, telegraph equipment, electrical devices and attachments and
installations of any nature affecting floors, walls, woodwork, trim,
windows, ceilings, equipment or any other physical portion of the
Building.
2. No Tenant shall at any time occupy any part of the Building as sleeping
or lodging quarters.
3. Tenant shall not place, install or operate on demised premises or in
any part of Building, any engine, stove or machinery or conduct
mechanical operations or cook thereon or therein, or place or use in or
about premises any explosives, gasoline, kerosene, oil, acids, caustics
or any other flammable, explosive or hazardous material without prior
written consent of Landlord.
4. Landlord will not be responsible for lost or stolen personal property,
equipment, money or jewelry from Tenant's area or public rooms
regardless of whether such loss occurs when area is locked against
entry or not.
5. No birds, fowl or animals shall be brought into or kept in or about the
building, except seeing eye dogs.
6. None of the entries, passages, doors, hallways or stairways shall be
blocked or obstructed or any rubbish, litter, trash or material of any
nature placed, emptied or thrown into these areas, or such areas be
used at any time except for access or egress by Tenant, Tenant's
agents, employees or invitees.
7. The water closets and other water fixtures shall not be used for any
purpose other than those for which they were constructed and any damage
resulting to them from misuse, or the defacing or injury of any part of
the Building shall be borne by the person who shall occasion it. No
person shall waste water by interfering with the faucets or otherwise.
8. No person shall disturb the occupants of the building by the use of any
musical instruments, the making of unseemly noises, the emission of
odors or other unreasonable use.
9. Nothing shall be thrown out of the windows of the Building, or down the
stairways or other passages.
10. Tenant shall not store any materials, equipment, products, etc. outside
the leased premises.
11. Tenant shall not erect any sign or other insignia upon any part of the
building or other portion of the leased premises without the prior
written consent of the Landlord.
12. Tenant shall comply with all local and federal codes and ordinances.
In the event of fire or code problems, Tenant shall comply with said
requirements.
13. Tenant shall at least on an annual basis have the heating, ventilation,
and/or air conditioning system(s) completely checked out and repaired if
necessary. Additionally, the Tenant shall have the filters on said
system(s) changed at least on a quarterly basis.
14. Landlord may provide for trash pick-up and removal. The cost for this
service is billed back as a common area maintenance expense.
15. Tenant agrees not to abuse the parking rights as provided by the
building. Additionally, the parking of cars of Tenant's personnel will
not interfere with the operation of the other tenants in this building.
16. The Landlord reserves the right to rescind any of these rules and make
such other and further rules and regulations as in the judgement of
Landlord shall from time to time be needed for the safety, protection,
care and cleanliness of the Building, the operation thereof, the
preservation of good order therein, and the protection and comfort of
its Tenants, their agents, employees and invitees, which rules when
made and notice thereof given to a Tenant shall be binding upon Tenant
in like manner as if originally herein prescribed. In the event of any
conflict, inconsistency, or other difference between the terms and
provisions of these Rules and Regulations, as now or hereafter in
effect and the terms and provisions of any lease now or hereafter
in effect
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
<PAGE> 19
between Landlord and Tenant, the Lease shall control.
INITIALS:
LANDLORD: /s/ RLW
--------------
TENANT: /s/ MS
--------------
<PAGE> 20
EXHIBIT "E"
PRISM LEASE INSERTS
This Exhibit "E" - "Prism Lease Inserts" is made a part of and attached to that
certain Standard Lease (Office Service and Warehouse) dated May ___, 1997, by
and between Alamo Fairgrounds, Ltd. ("Landlord") and Prism Technologies, Inc.
("Tenant") (the "Lease"). Each of the inserts set forth herein is incorporated
into the Lease in the place referenced in the Lease as if same were fully set
forth in the Lease itself.
Insert 1.
Landlord shall pay all Taxes as soon after receiving the tax bill from the
appropriate taxing authority as is possible so as to take full advantage of all
available discounts offered by taxing authorities for early payment. In
addition, Landlord shall, upon Tenant's reasonable request, contest the
assessed valuation of the Property for purposes of calculating the Taxes owed.
Any savings resulting from said contest shall be passed on to Tenant after
Landlord deducts the reasonable expenses incurred by it in connection with such
contest. If Landlord contests said valuation at Tenant's request and is
unsuccessful in obtaining any reduction therein, Tenant shall pay all
reasonable costs and expenses incurred by Landlord in connection with such
contest. If Landlord has not contested the taxes in a timely manner, then in
the alternative, Tenant may elect to contest the valuation of the Premises
itself and in such event Landlord shall cooperate fully with Tenant in such
contest.
Insert 2.
Common Area Costs shall not include (i) Landlord's debt service obligations
attributable to the common areas, (ii) any cost or expenses properly chargeable
to capital accounts under Generally Accepted Accounting Principles, (iii) any
portion of insurance costs which are attributable to any debit modifiers or
other penalties relating to the prior loss experience of Landlord at other
properties of Landlord, (iv) advertising and promotional expenses, (v) the cost
of any repairs which are customarily covered by any insurance policy either (a)
required to be maintained hereunder or (b) from which the proceeds are
recoverable by Landlord or by any warranty given by manufacturers, distributors
or service providers, (vi) ground rents, (vii) any costs to correct
construction defects, (viii) costs incurred in connection with hazardous waste
removal, (ix) any amounts paid for goods or services at greater than the
prevailing market rates for such goods or services at the time provided, and
(x) any fines or penalties incurred in connection with the ownership or
operation of the Project. Such excluded items shall be Landlord's sole
expense. Notwithstanding anything provided above, Tenant shall have the right
to demand that Landlord furnish it with certified statements regarding the
Common Area Costs, certified by Landlord's General Partner.
/s/ RLW /s/ MS
----------------- -----------------
Landlord's Tenant's
Initials Initials
1
<PAGE> 21
Insert 3.
In the event that Landlord shall default in the performance of any covenant,
condition or other provision of this Lease, and such default remains uncured
beyond any applicable cure period expressly provided herein or, if no such cure
period is provided, beyond thirty (30) days from and after the date Landlord
receives notice of such default (or such longer period as may be reasonably
required to cure such default with the exercise of due diligence and reasonable
efforts so long as Landlord promptly commences and diligently pursues such cure
without interruption) (except in the case of emergency, in which case Tenant
shall not be obligated to give Landlord notice and opportunity to cure), Tenant
may, at its option, without waiving any claim for breach of Landlord's
obligations, cure such default for Landlord at Landlord's expense. Landlord
shall reimburse Tenant upon Tenant's demand all reasonable costs and expenses
incurred by Tenant in curing Landlord's default. All such sums not reimbursed
to Tenant on demand shall accrue interest at the rate of ten percent (10%) per
annum, and may be offset by Tenant against rental payments due under this
Lease, but the offset will be limited to fifty percent (50%) of rental payments
as they come due, so long as sufficient time remains on the term of this Lease
for Tenant to fully recapture the amounts to which it is entitled hereunder on
such basis. If sufficient time does not so exist, the amounts to which Tenant
shall be entitled to offset shall equal the amount of the monthly payment which
would be due under an amortization of a promissory note having a principal
amount equal to the amount to which Tenant is entitled to offset, bearing
interest at the rate of ten percent (10%) per annum and having a maturity equal
to the period of time from the date Tenant's offset right vests until the then
scheduled expiration date of this Lease, absent any subsequent renewals to
which Tenant may be entitled. Notwithstanding the foregoing, if Landlord
disputes the validity of Tenant's claim, Landlord shall send Tenant written
notice of such dispute within twenty (20) days from and after the date of
Tenant's demand for reimbursement. If Tenant and Landlord cannot resolve their
differences on or before the date which is thirty (30) days from the date of
Tenant's demand, Landlord and Tenant agree that the question as to the validity
of the claim for reimbursement and offset shall be submitted to binding
arbitration under the commercial arbitration rules of the American Arbitration
Association then pertaining. The party who prevails in the arbitration
proceeding shall, in addition to the awards set forth by the arbitrator,
receive from the other all costs and expenses (including, without limitation
reasonable attorney's fees) incurred by it in connection with such proceedings
from the non-prevailing party. Also, the non-prevailing party will be
obligated to pay all of the costs and expenses of the arbitration.
Insert 5.
"Exhibit C" Landlord's Work.
1. Landlord shall, at its own expense, demolish a portion of the existing
party wall in the warehouse area of the Premises in accordance with Tenant's
directions.
/s/ RLW /s/ MS
------------ -----------
Landlord's Tenant's
Initials Initials
2
<PAGE> 22
2. Landlord, contemporaneously with the execution hereof, shall pay Tenant
the amount of $3,000.00 for architectural services previously incurred by
Tenant in connection with other properties.
3. Tenant shall prepare plans and specifications for the construction of such
improvements to the Premises as Tenant desires. The plans and specifications
(hereinafter referred to as the "Plans") shall be prepared by Landlord's
architect at Tenant's direction. Upon Tenant's approval of the Plans, they
will be attached hereto as Exhibit "C-1". Tenant's approval of the Plans shall
constitute only Tenant's approval of the general design and layout scheme
described in such Plans; it shall not, however, make Tenant responsible in any
way for the technical adequacy of such Plans, or for any liabilities arising
out of the construction of the Premises. Landlord acknowledges that the Plans
will call for construction in two (2) phases. Phase I shall consist of all
office areas and breakrooms , the "heat pack room", the "tank area", the
"shipping and receiving area" and all related systems and facilities to any of
the foregoing. Phase II of the construction shall include the remainder of the
Premises including, without limitation, the clean room, the mold making shop,
the injection mold area, the cooler, and installation of owner air-conditioning
units. Upon delivery of the Plans, Landlord shall obtain competitive bids from
three (3) qualified commercial contractors in the San Antonio, Texas area to
perform the work set forth on the Plans. Upon receipt of said bids, Landlord
and Tenant shall jointly select the best bid, which may not necessarily be the
lowest bid for such work. In the event Landlord and Tenant cannot agree on the
best bid, Tenant's selection shall control. Upon selection of the contractor
for the work, Landlord shall cause all work indicated on the Plans to be
constructed in a good and workmanlike manner in accordance with the Plans.
Phase I work must be finally completed by September 1, 1997. Landlord shall
provide a finish out allowance of $53,000.00 to be applied against the cost of
the work described in the Plans. All costs and expenses above $53,000.00 shall
be paid to Landlord by Tenant. Landlord and Tenant shall pay the finish-out
contractor on a pro-rata basis as monthly progress payments are approved by
Landlord's architect. Lien releases will be required for all draws.
4. Landlord shall, subject to contribution as set forth herein, at Landlord's
cost and expense, cause the electrical service to the Premises to be increased
from 220 volt service to 440 volt service and install all ancillary facilities
necessary to accommodate said increase in voltage, including, without
limitation, paying all expenses to the incurred by any contractor in connection
therewith. Tenant shall reimburse Landlord for a portion of the direct hard
costs incurred by Landlord in connection with such increase equal to the lessor
of (i) one-half (1/2) of the cost thereof or (ii) $5,000.00. Such upgrade must
be completed prior to June 15, 1997.
/s/ RLW /s/ MS
------------------- -----------------
Landlord's Initials Tenant's Initials
3
<PAGE> 23
NON-DISTURBANCE, ATTORNMENT AND
SUBORDINATION AGREEMENT
EXHIBIT "F"
THIS AGREEMENT is made this ____ day of June, 1997 by and between United
Services Life Insurance Company, a Virginia corporation ("Lender"), and
- --------------------------------------------------------------------------------
("Tenant")
WHEREAS, Tenant is the tenant under that certain lease dated May , 1997
("Lease"), with Alamo Fairgrounds, Ltd., a Texas limited partnership, as
landlord ("Landlord"); and
WHEREAS, by the Lease, Landlord leased and demised to Tenant certain
space within the office/warehouse project known as 6902 Fairgrounds Parkway,
situated upon certain real property in San Antonio, Bexar County, Texas more
particularly described in Exhibit A attached hereto and incorporated herein,
(said real property and improvements and all other related property being
hereinafter called the "Property"), at the rentals, for the term, and subject
to the provisions set forth in the Lease; and
WHEREAS, Lender has made or is about to make a first mortgage loan to
Landlord evidenced or to be evidenced by a note ("Note") and secured or to be
secured, among other things, by one or more deeds of trust and other security
documents (together, the "Deed of Trust"); and
WHEREAS, the Deed of Trust conveys or is to convey the Property and
certain other property to Harry F. Schwethelm, as trustee, in trust to secure
payment of the Note, the Deed of Trust being or to be recorded in the Official
Records of Real Property of Bexar County, Texas; and
WHEREAS, Lender and Tenant desire to establish between themselves
certain rights, obligations, and priorities, all as more fully hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises set forth herein, and other good valuable consideration acknowledged
by the parties hereto each to the other, receipt whereof being hereby
acknowledged, the parties hereto, intending to be legally bound hereby,
acknowledge, covenant, and agree as follows:
1. Tenant acknowledges the Deed of Trust as superior to the Lease in
estate, title and lien, as if the Deed of Trust had been executed and recorded
prior to execution or recordation of the Lease and prior to the Tenant's taking
possession of the Property.
2. In the event of foreclosure under the Deed of Trust, Tenant will
attorn to the purchaser at such foreclosure sale as its landlord.
<PAGE> 24
7. Nothing herein contained shall be deemed to alter or modify the
Note, the Deed of Trust, or the Lease.
8. Each of the parties hereto agrees, promptly upon the request of the
other, to execute such further assurances as may be necessary or requisite to
accomplish the purposes of this Agreement.
9. This Agreement shall be binding upon and inure to the benefit of
the parties hereto, and their respective successors and assigns.
IN WITNESS WHEREOF, Lender and Tenant have executed this Agreement in
their respective corporate names as of the date first hereinabove written.
TENANT:
PRISM TECHNOLOGIES, INC.
By:/s/ Merle Smith
----------------------------------
Merle Smith, President
LENDER:
United Service Life Insurance Company
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
-3-
<PAGE> 25
EXHIBIT "A"
Lot 3, Block 4, New City Block 17246, Fairground Parkway Extension, City of San
Antonio, Bexar County, Texas, according to plat recorded in Volume 9508, Pages
99-102, Deed and Plat Records of Bexar County, Texas;
Together with all right, title and interest in and to that certain Declaration
of Private Reciprocal Access Easement dated May 13, 1986, recorded in Volume
3695, Page 690, Official Public Records of Real Property of Bexar County,
Texas, executed by ADI Real Estate Joint Venture No. 2, a Texas joint venture.
<PAGE> 1
EXHIBIT 11
FUQUA ENTERPRISES, INC.
NUMBER OF SHARES USED IN COMPUTING EARNINGS PER SHARE
JUNE 30, 1997
PRIMARY EARNINGS PER SHARE:
TREASURY STOCK METHOD:
<TABLE>
<CAPTION>
NUMBER OF
TRADING TOTAL TOTAL
MONTH DAYS HIGH LOW
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
April 22 $ 476.875 $ 472.000
May 21 394.750 388.000
June 21 429.163 422.313
-- --------- ---------
64 $1,300.788 $1,282.313 $2,583.101
== ========= ========= =========
AVERAGE: $2,583.101 divided by 64 divided by 2 = $20.180
==========================================================================================================
</TABLE>
<TABLE>
<CAPTION>
OPTIONS OPTION
OUTSTANDING SHARES PRICE EXTENSION
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
4,000 $ 18.875 $ 75,500
121,400 21.250 2,579,750
25,000 20.375 509,375
5,000 21.000 105,000
15,000 20.625 309,375
4,000 18.625 74,500
150,000 20.500 3,075,000
100,000 18.375 1,837,500
75,500 22.125 1,670,438
------- ----------
Total 499,900 $10,236,438
======= ==========
- ----------------------------------------------------------------------------------------------------------
Second
Quarter
-------
Average Price (above) $ 20.180
----------
Total Option Extension Divided by Average Price 507,245
Options Outstanding 499,900
----------
Common Stock Equivalents - Dilutive (anti-dilutive) (7,345)
----------
Average Shares Outstanding (see page 2) 4,482,582
----------
Use for Primary Earnings Per Share 2nd Quarter 4,482,582
----------
(Note: Anti-dilutive; therefore use average shares outstanding for primary
earnings per share.)
- ----------------------------------------------------------------------------------------------------------
</TABLE>
-continued-
1
<PAGE> 2
FULLY DILUTED EARNINGS PER SHARE:
AVERAGE NUMBER OF SHARES OUTSTANDING:
<TABLE>
<CAPTION>
BEGINNING ENDING NUMBER SHARES
DATE OF DAYS OUTSTANDING EXTENSION
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
4-1-97 4-3-97 3 4,478,847 13,436,541
4-4-97 4-30-97 27 4,482,709 121,033,143
5-1-97 5-31-97 31 4,482,709 138,963,979
6-1-97 6-30-97 30 4,482,709 134,481,270
-- -----------
91 407,914,933
== ===========
Average Number of Shares Outstanding:
Second Quarter (Extension Divided by Number of Days) 4,482,582
</TABLE>
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------
SECOND
QUARTER
-------
<S> <C>
Closing Price - 6-30-97 $ 21.250
---------
Total Option Extension (from page 1) Divided by Closing Price 481,715
Options Outstanding 499,900
---------
Common Stock Equivalents 18,185
Average Shares Outstanding (from above) 4,482,582
---------
Fully Diluted Shares 4,500,767
Less Primary Shares (from page 1) 4,475,237
---------
Additional Shares 25,530
---------
Percentage .57%
(Note: Less than 3.0%; no fully diluted presentation required.)
- ------------------------------------------------------------------------------------------------------------
</TABLE>
2
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE JUNE 30,
1997 CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN FORM 10-Q AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
<CASH> 4,534
<SECURITIES> 0
<RECEIVABLES> 47,328
<ALLOWANCES> (600)
<INVENTORY> 44,569
<CURRENT-ASSETS> 103,077
<PP&E> 51,778
<DEPRECIATION> (17,694)
<TOTAL-ASSETS> 180,204
<CURRENT-LIABILITIES> 33,356
<BONDS> 54,579
0
0
<COMMON> 11,322
<OTHER-SE> 80,947
<TOTAL-LIABILITY-AND-EQUITY> 180,204
<SALES> 118,329
<TOTAL-REVENUES> 118,412
<CGS> 94,278
<TOTAL-COSTS> 112,292
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 106
<INTEREST-EXPENSE> 1,531
<INCOME-PRETAX> 4,589
<INCOME-TAX> 1,642
<INCOME-CONTINUING> 2,947
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,947
<EPS-PRIMARY> .65
<EPS-DILUTED> 0
</TABLE>
