<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended December 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission file number 0-19872
WALKER INTERACTIVE SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-2862954
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
303 SECOND STREET, SAN FRANCISCO, CALIFORNIA 94107
(Address of principal executive offices including zip code)
Registrant's telephone number, including area code: (415) 495-8811
Securities registered pursuant to Section 12(b) of the Act:
NONE
Securities registered pursuant to Section 12(g) of the Act:
COMMON STOCK, $.001 PAR VALUE
(Title of class)
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 by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of Registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [X]
The aggregate market value of voting stock held by non-affiliates of the
Registrant was approximately $267,559,000 based on the closing sale price as
reported by The Nasdaq National Market on March 12, 1998.
Number of shares of Common Stock outstanding as of March 12, 1998: 13,990,000
DOCUMENTS INCORPORATED BY REFERENCE
Part III of this Report on Form 10-K incorporates information by reference from
the Registrant's definitive Proxy Statement to be used in conjunction with its
1998 Annual Meeting of Stockholders.
<PAGE>
WALKER INTERACTIVE SYSTEMS, INC.
FORM 10-K
INDEX
PART I
<TABLE>
<S> <C> <C>
ITEM 1. BUSINESS..................................................... 2
ITEM 2. PROPERTIES................................................... 9
ITEM 3. LEGAL PROCEEDINGS............................................ 9
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.......... 9
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED
STOCKHOLDER MATTERS....................................... 10
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA......................... 11
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS....................... 12
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK... 22
ITEM 8. CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA..... 22
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE....................... 39
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT........... 39
ITEM 11. EXECUTIVE COMPENSATION....................................... 39
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT............................................ 39
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS............... 39
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS
ON FORM 8-K............................................... 40
SIGNATURES................................................... 43
</TABLE>
1
<PAGE>
PART I
ITEM 1. BUSINESS
The report on this Form 10-K contains forward-looking statements, including
statements related to industry trends and demand for mainframe products,
expected resolution of legal proceedings, cash commitments, working capital
requirements and possible expansion in international markets. Discussions
containing such forward-looking statements may be found in the material set
forth under "Legal Proceedings" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations", generally and specifically
therein under the captions "Other Significant Charges," "Liquidity and Capital
Resources" and "Additional Risk Factors" as well as elsewhere in this Annual
Report on Form 10-K. Actual events or results may differ materially from those
discussed herein. The Company disclaims any obligation to update these forward-
looking statements as a result of subsequent events. The risk factors on pages
1 through 1, among others, should be considered in evaluating the Company's
prospects and future financial performance.
OVERVIEW
- --------
Walker Interactive Systems, Inc. (hereinafter "Walker" or the "Company") was
incorporated in California in 1973 and reincorporated in Delaware in March 1992.
Walker designs, develops, markets and supports, on a worldwide basis, a family
of enterprise client/server financial application software products that enable
large and medium-sized organizations, higher education institutions, and
federal, state, and government agencies to accelerate time-to-benefit, lower
cost of ownership and reduce information systems risks stemming from changes in
information technology and/or business processes or structure.
Walker designs its software products specifically for the client/server and
network computing models and believes that its architecture is among the most
scalable and adaptable available for enterprise-level financial applications
software. The Company's strategy is to offer comprehensive enterprise financial
solutions to a variety of industries utilizing its best-of-breed software
products. Walker's internet/intranet-enabled applications support and enhance
enterprise-wide financial processes, including planning, budgeting, forecasting,
consolidation and performance management. The Company's software products
utilize the Microsoft Windows operating systems on the desktop, and industry-
leading relational database management systems ("RDBMS") including IBM's DB2,
Oracle and Microsoft SQL/Server.
The Tamaris product line represents the Company's core suite of business and
financial solutions utilizing the power of the enterprise server, while the
Aptos suite of financial applications provides a client/server architecture that
runs on UNIX and Windows NT servers. The Company also develops and markets
Horizon best-of-breed analytic applications which provide financial reporting,
budgeting and financial consolidation solutions for large and mid-sized
organizations. The Horizon analytic applications can be used with the Tamaris
and Aptos products or in conjunction with leading Enterprise Resource Planning
("ERP") applications. In addition, Walker's IMMPOWER product line provides
best-of-breed Enterprise Asset Management solutions for capital intensive
industries.
The Company's software products include productivity tools that allow the
Company's applications to be extensively customized to fit the customer's
particular requirements. The Company complements its software products by
providing specialized consulting services to assist customers with customization
and implementation.
The Company derives its revenues primarily from software licenses, software
maintenance and professional consulting services. The Company's Tamaris,
Horizon and IMMPOWER product lines are licensed to large and mid-size companies
and similarly sized business and governmental organizations worldwide. The
Company's Aptos products are marketed primarily in the United Kingdom and are
licensed to mid-sized organizations. The Company's products and services are
marketed primarily through its sales forces located in the United States,
2
<PAGE>
United Kingdom and Asia Pacific. The Company licenses software products directly
to customers and occasionally to distributors for resale.
INDUSTRY BACKGROUND
- -------------------
Large, geographically diverse organizations generate enormous amounts of
financial, sales, marketing and other data. The transaction-oriented information
systems used by these organizations are strategic resources that are critical to
their efficiency, productivity and competitiveness, providing the availability
of continuous and simultaneous information to employees, customers and
suppliers.
Historically, these transaction-oriented solutions have been host-centric,
operating on mainframe computers providing high levels of performance,
scalability and reliability. During the early 1990's, systems with more
distributed architectures were developed to allow users easier access to
information and distributed processing capabilities. These systems were
inherently more complex and often required more time-consuming and costly
implementation, training and support.
In the day-to-day operations of large organizations, transactional data needs to
be promptly and easily retrieved from a variety of financial and operational
systems, summarized and organized into meaningful business information that has
a consistent business context. The process of integrating the data is complex
because large organizations employ multiple accounting systems and transactional
databases, spread their business across many different geographies and have
different information requirements by function and across the organization.
Organizations have attempted to collect, summarize, organize and present
information from heterogeneous computer systems and transactional data sources
in various ways. Reports are assembled through manual entry of data into
spreadsheets and by using data from accounting systems and other operational
systems. Many organizations have tried to automate information systems through
the use of software developed internally. These internally developed systems are
becoming increasingly obsolete because they are rigid in structure, expensive
and time consuming to create and maintain, difficult to update when business
processes and requirements change, and often suffer from Year 2000 problems.
Moreover, growing competition has increased the demand for more timely business
information specific to each function within the organization.
MARKET OPPORTUNITIES
- --------------------
The following market dynamics are important factors shaping Walker's strategy
moving forward:
HIGH VOLUME TRANSACTIONS. Large, geographically diverse organizations generate
large volumes of transactions and data. As organizations extend their business
beyond traditional boundaries with electronic commerce, their transaction-
oriented systems will require increasing scalability to handle the increased
volume from additional users and ever-growing transaction volumes. The Company
believes that its solutions, operating in the native IBM S/390 environment,
provide cost-effective high transaction volume capabilities.
ANALYTICAL APPLICATIONS. The need for better business information has created a
growing need for analytic application software to help organizations gain
business knowledge from the large volumes of transactional data available from
daily operations. These software solutions work on a stand-alone basis, or in
conjunction with core financial systems to translate data into business insight
and thus to maximize the value of financial information. Walker's Horizon
products, by integrating financial applications and analytic solutions, deliver
a solution that links business goals to operational data so organizations have
the opportunity for deeper insight into their business operations.
NETWORK COMPUTING. In the last few years, technological developments have
supported the emergence of a new technology/business model called network
computing. Network computing enables companies to protect their existing
information technology investments while taking advantage of new technologies by
dynamically linking Internet, client/server and legacy systems. The Company
believes that the network computing model has created
3
<PAGE>
opportunities for competitive advantage for its customers through a combination
of enhanced services and lower transaction costs. Walker applications are
designed to support this integrated network architecture.
SHARED SERVICES. Large organizations can reduce the costs and complexity of
information systems by centralizing many administrative functions. These
centralized functions are now being combined with distributed operational
procedures. Walker's high-volume financial solutions support both models for
distributing information when and where it is needed within the extended
organization, significantly enhancing the availability of timely information.
SELF-SERVICE COMPUTING. The inherent cost of distributed computing
infrastructures has limited the ability of large organizations to fully deploy
information systems throughout their operations. Employing the network
computing architecture, these organizations now have the ability to extend the
reach of their business applications directly to employees, customers and
suppliers worldwide through the use of corporate intranets and the Internet.
Walker's core applications support this direct approach for procurement,
financial management and accounts receivable activities.
OPTIMIZE AND COMPLEMENT ERP SOLUTIONS. The Company believes that its focus on
best-of-breed financial software solutions provides high value for organizations
that need to preserve the business advantages contained within their financial
systems. Walker best-of-breed solutions work in a complementary manner with
leading ERP vendor solutions, allowing organizations that have implemented ERP
solutions to further optimize their resources and/or extend business
functionality.
WALKER STRATEGY
- ---------------
The Company's objective is to be a leading provider of network computing-enabled
best-of-breed financial and analytical solutions to large organizations
worldwide. The Company refers to this combination as "Smart Financials."
The Company's strategy to achieve its objective includes the following:
PROVIDE SOLUTIONS WITH INTEGRATED TRANSACTIONAL AND ANALYTIC APPLICATIONS.
Walker Smart Financials enable management insight by integrating analytic
solutions with the Tamaris and Aptos financial applications and IMMPOWER
Enterprise Asset Management applications. These solutions analyze the
transactional data within the applications to deliver information that allow
managers to be more predictive and corrective about their organization's
performance. Empowered by management insight, managers at all levels of the
organization have the opportunity to run their area of business better,
enhancing competitiveness and bottom-line profitability.
PROVIDE ANALYTIC APPLICATIONS WHICH COMPLEMENT AND EXTEND NON-WALKER
APPLICATIONS. Most organizations recognize the need to integrate enterprise-
wide financial and operational data to monitor performance company-wide. To
respond to this need, the Walker Horizon Series of analytic applications
integrates data from both Walker and non-Walker applications, including leading
ERP and best-of-breed applications vendors. The Company's solutions use Essbase
OnLine Analytical Processing ("OLAP") Server, developed by Arbor Software, Inc.
("Arbor"), to provide state-of-the-art planning, budgeting and consolidation
capabilities.
DELIVER HIGH VALUE TO SELECTED VERTICAL MARKETS THROUGH BEST PRACTICES
EXPERTISE. The Company has acquired significant vertical market experience and
expertise through
* developing, selling and deploying best-of-breed financial solutions
across various industries over the last 25 years,
* its acquisition of the IMMPOWER product line, senior executives, and
customer base, and
* employing skilled senior finance professionals from key vertical market
segments.
4
<PAGE>
The Company has customized its application suites for many industries including
utilities, retail, transportation, gas and oil, process manufacturing, paper and
finance.
EXPAND AND EXTEND LONG-TERM RELATIONSHIPS WITH STRATEGIC PARTNERS. The Company
has expanded its existing strategic relationships with leading hardware and
software suppliers such as IBM, Arbor Software, Inc. and Information Builders,
Inc., as well as with third-party providers including global accounting and
consulting firms. The Company believes that the development of its relationships
with these partners has contributed to its recent revenue growth.
DELIVER LOWER COST/HIGHER PERFORMANCE SOLUTIONS. Most other vendors of
financial solutions are focusing their technology efforts on supporting a
distributed client/server model, Walker intends to continue to build and enhance
financial applications for the mainframe as an enterprise network computing
server. This puts Walker in a position to support a high-volume network
computing environment which the Company believes, with the growth of Internet
bandwidth and functionality, will expand beyond the corporation itself,
supporting both shared and distributed service models, which are more cost
effectively than other distributed architectures.
RETAIN AND EXTEND LONG-TERM CUSTOMER RELATIONSHIPS. The Company generates
revenues from existing customers through software licenses, the introduction of
new products and warranty maintenance. In addition, providing consulting and
support services to existing customers represents a significant portion of the
Company's total revenues. Follow-on revenues create efficiencies for deployment
of sales and marketing resources and strengthen the Company's relationships with
its customers.
WALKER PRODUCTS
- ---------------
The Company's best-of-breed financial and operational applications are designed
to improve most organizations' core business processes and to provide
opportunities to create competitive advantage in an ever-changing global
marketplace. Walker achieves this by offering solutions that combine robust
financial applications, best-of-breed analytic technology and best practices
expertise.
The Walker family of products and services include:
* Tamaris/TM/ for Fortune-1000 class organizations
* Walker Horizon/TM/ Series of analytic applications for better managing
company performance
* Aptos/TM/ for mid-size companies or divisions of Fortune 1000 companies
* IMMPOWER/TM/ for managing capital assets
TAMARIS
The Tamaris suite of highly scalable financial applications are designed to
adapt quickly and easily to changing business conditions, technology innovations
and structural reorganizations. The Company also broadens the scope of Tamaris
with analytic solutions that work with transactional data to provide in-depth
insight into the enterprise. This combination of financial and analytic
applications allows Walker customers the opportunity to better manage company
performance.
The Tamaris application suite is organized into three key operational areas:
* Revenue Management - Billing and Accounts Receivable
* Financial Management - General Ledger, Fixed Assets, Project Cost
Management
* Procurement - Purchase Order Management, Accounts Payable, Inventory
Management
Tamaris is designed to support organizations with high transaction volumes, 24x7
continuous computing requirements and ever-increasing numbers of concurrent
users. Its network-centric architecture works within existing IT
infrastructures, while responding to the evolving needs of the extended
enterprise by supporting self-service, Web-enabled solutions.
5
<PAGE>
WALKER HORIZON SERIES OF ANALYTIC APPLICATIONS
Walker's Horizon solution provides a complete family of integrated, best-of-
breed analytic applications to help organizations better manage their
performance. Any combination of these applications complement Walker Smart
Financials as well as non-Walker financial and operational solutions.
The Horizon Series blends the flexibility and power of Online Analytic
Processing (OLAP) with accounting integrity and controls. As a result,
organizations can gain the ability to make fast, informed business decisions and
continually monitor performance improvement at all levels of the organization.
Walker Horizon addresses performance management needs with the following
applications:
* Performance Analyzer - A powerful reporting and analysis solution that
utilizes OLAP technology to analyze business performance from many
perspectives.
* Planning and Forecasting - Automates planning, forecasting, and budgeting
thereby reducing planning cycles and facilitating continuous planning.
* Financial Consolidation - Manages the collection, adjustment and reporting
of consolidated results for statutory, management and tax reporting across
the enterprise.
APTOS
For the mid-market, Walker offers Aptos, a powerful suite of financial
applications. Aptos is comprised of a comprehensive suite of NT- and UNIX-based
financial applications, designed for medium-sized companies or divisions of
Fortune 1000 class organizations.
The Aptos suite includes General Ledger, Purchasing, Accounts Payable, Accounts
Receivable and Asset Management. Aptos also delivers value-added analytic
solutions that help better manage company performance--both from the Horizon
Series as well as from the following applications:
* Management Information Desktop - An analytic solution that monitors KPIs
and company performance.
* Excel Add-in System - A powerful end-user query and reporting tool.
IMMPOWER
For companies that need to maximize the productivity of their capital assets at
minimum cost, Walker offers IMMPOWER Enterprise Asset Management. IMMPOWER helps
companies optimize the availability and cost of their capital assets by
combining advanced asset, materials and cost management.
IMMPOWER is designed to meet the needs of large capital intensive industries:
petro-chemical processing, power generation, paper, mining, metals and
transportation. IMMPOWER helps decrease costs, optimize resources, increase
manpower productivity and increase equipment reliability and uptime.
IMMPOWER consists of six key integrated application components: Equipment
Management, Materials Management, Procurement Management, Work Management,
Project Management and Cost Management.
PRODUCT DEVELOPMENT
- -------------------
The Company works closely with its customers and prospective customers to
determine their requirements and to define the functionality of the Company's
new products and enhancements to its existing products. Furthermore, the
Company continually enhances its existing products and develops new products in
order to meet these customer requirements and to expand its product base. The
Company's success will depend in part on its ability to develop product
enhancements and new products that keep pace with technological changes and
changes in customers' business practices. The Company has dedicated significant
development resources toward modifications and
6
<PAGE>
extensions of its Tamaris, Horizon, Aptos and IMMPOWER product lines. Research
and development expenditures were 26 percent of total revenues in 1997.
SERVICES
- --------
PROFESSIONAL SERVICES. The Company's professional services organization offers
implementation, customization, migration, training and related services to its
customers. Walker has suites of reusable tools and utilities that enable
customers to complete customizations faster and at less cost.
Some of the areas addressed by Walker professional services include:
* Performance Tuning - to increase computer throughput, reduce batch
processing time and otherwise improve performance.
* Migration - Assistance in making cost-effective migrations to a new
release or from one platform to another.
* Conversion and Integration - To integrate third-party applications into
the Walker framework or convert these products to Walker applications
through Walker's re-usable components and methodologies.
CUSTOMER SUPPORT AND MAINTENANCE. The Company's customer support and maintenance
program includes 24-hour hotline telephone support for problem determination and
resolution, account management, ongoing functional and technical enhancements
for installed products and membership in the Company's user group, which meets
annually and holds periodic regional conferences throughout the year.
INDUSTRY SEGMENTS
- -----------------
For the purposes of conforming with generally accepted accounting principles,
all of the Company's products and services are considered part of a single
industry segment. Information regarding domestic and international revenues and
assets are contained in Note 10 to the Consolidated Financial Statements.
During the past several years, the Company has derived an increasing percentage
of its total revenues from foreign operations and export sales. In 1997, such
revenues were 31 percent of total revenue.
SALES AND MARKETING
- -------------------
Walker sells its products primarily through its direct sales force in North
America, the United Kingdom and the Asia Pacific. In support of its sales
force, the Company conducts marketing programs which include direct mail, public
relations, advertising, seminars, trade shows and ongoing customer communication
programs. The sales cycle begins with the generation of a sales lead, or often
the receipt of a request for proposal ("RFP") from a prospect, which is followed
by qualification of the lead, an analysis of the customer's needs, response to
an RFP, one or more presentations to the customer, customer internal sign-off
activities and contract negotiation and finalization. While the sales cycle
varies by product and from customer to customer, the sales cycle has
historically required six to twelve months.
Walker markets its products primarily to large or complex organizations with
intensive data processing and information management requirements. In each of
the last three fiscal years, a substantial portion of the Company's product
revenue was from additional licensing by existing customers of either new
products or products for additional sites. The Company has introduced and
increased its financial commitments to the development and marketing of products
for the NT and UNIX client/server environment. A majority of the Company's
license revenues are derived from the Tamaris product suite, which depends upon
the continued use of IBM and IBM-compatible servers. This revenue has been
increasing steadily. However, as a percentage of the Company's total license
revenue, those derived from Tamaris have decreased due to the higher growth
rates of the Company's Horizon, Aptos and IMMPOWER license revenues.
7
<PAGE>
The Company regards its professional services and product development
organizations as integral parts of its marketing strategy because of the length
and technical nature of the sales process. Professional services and product
development employees participate directly in the sales cycle and educate
prospective customers on the advantages of using the Company's solutions rather
than those developed internally or by other third parties.
COMPETITION
- -----------
The business and financial applications software market for large complex
organizations is intensely competitive. The Company's principal competitors
with Tamaris solutions are SAP AG, Oracle Corporation and PeopleSoft, Inc. With
Aptos solutions, the Company competes with Coda Group plc, Oracle Corporation,
Lawson Software, Inc., Platinum Software, Inc., Systems Union Group Ltd and
Agresso AS. With the Horizon suite of products, the Company competes with
Hyperion Software Corporation, Longview, Inc. and Oracle Corporation. With the
IMMPOWER suite of products, the Company competes with Datastream Systems, Inc.,
Indus International, Inc., Marcam Solutions, Inc., Mincom Pty Ltd., Product
Software & Development, Inc. and SAP AG.
The Company also competes to a lesser extent with other independent software
application vendors. Some of the Company's current and potential competitors
have substantially greater financial, technical, marketing and sales resources
than the Company. Some of these competitors also offer business application
products not offered by the Company, primarily in the areas of human resources
and manufacturing. However, Walker remains one of the few companies committed
to providing and enhancing applications for the mainframe environment. Most of
the competitors listed above compete with Walker by offering UNIX-based
applications.
The Company encounters competition from a broader range of firms in the market
for professional services. These competitors include the consulting divisions
of the major accounting firms which possess greater resources than the Company
and small independent firms which compete primarily on the basis of price of
services provided.
The principal competitive factors in the market for business and financial
applications software and services include product functionality, scalability,
flexibility, portability, integration, reliability, performance, product
availability, speed of implementation, quality of customer support and user
documentation, vendor reputation, experience, financial stability, cost
effectiveness and price. The Company believes that it competes favorably with
respect to these factors. There can be no assurance, however, that the Company
will be able to compete successfully in the future.
For a description of certain competitive risks, see "Management's Discussion and
Analysis of Financial Condition and Results of Operations - Additional Risk
Factors."
PROPRIETARY RIGHTS
- ------------------
The Company regards its products as proprietary and attempts to protect them
with a combination of trade secret, copyright and trademark laws, its license
agreements with customers and its internal security systems, confidentiality
procedures and employee agreements. Although the Company takes steps to protect
its trade secrets, there can be no assurance that misappropriation will not
occur. In addition, the laws of some foreign countries do not protect the
Company's proprietary rights to the same extent as do the laws of the United
States.
The Company typically provides its products to users under non-exclusive, non-
transferable perpetual licenses. Under the general terms and conditions of the
Company's standard product license agreement, the licensed software may be used
only for internal operations on designated computers at specific sites. The
Company makes source code for some of its products available to its customers
under agreements which restrict access to and use of the source code.
The Company seeks to protect its software, documentation and other written
materials under copyright laws, which afford only limited protection. It also
asserts trademark rights in its product names. The Company has not sought to
protect its product under patent laws. The Company believes that the rapid pace
of technological change in the computer industry makes patent or copyright
protection of less significance than such factors as the knowledge and
8
<PAGE>
experience of management and personnel, name recognition, maintenance and
support of software products and the Company's ability to develop, enhance,
market and acquire software products and services.
Although the Company believes that its products do not infringe upon the
proprietary rights of third parties, there can be no assurance that third
parties will not assert infringement claims against the Company in the future
with respect to current or future products or that any such assertions may not
require the Company to enter into royalty arrangements or result in costly
litigation.
For a description of certain proprietary risks factors, see "Management's
Discussion and Analysis of Financial Condition and Results of Operations -
Additional Risk Factors."11
EMPLOYEES
- ---------
As of December 31, 1997, the Company employed 520 employees, of which 366 were
based in the United States and 154 were based internationally. Of the total, 93
of such employees were engaged in sales and marketing, 62 were in customer
support, 151 were in professional services, 141 were in product development and
73 were in data processing, administration and finance positions.
ITEM 2. PROPERTIES
The Company's corporate headquarters are located in San Francisco, California,
in a leased facility consisting of approximately 101,000 square feet of office
space. The Company occupies 74,000 square feet governed by a lease that expires
in September 2007. The lease and sublease on the remaining 27,000 square feet
expire in February 1999. Additionally, the Company leases office space
aggregating approximately 106,000 square feet in the metropolitan areas of
Atlanta, Georgia; Birmingham, Alabama; Boston, Massachusetts; Chicago, Illinois;
Houston, Texas; London, England; Sydney, Australia; Singapore, Republic of
Singapore; Salt Lake City, Utah; and Toronto, Ontario. The Company believes
that it has adequate facilities to accommodate the Company's operations in the
near term and that additional space will be available at commercially reasonable
terms as needed.
Approximately 66,000 square feet of office space in California, Illinois and
England is considered excess capacity. Of the excess, approximately 60,000
square feet are sublet. The difference of approximately $0.9 million between
the Company's total lease commitments for its excess capacity and the total
expected sublease income is included in accrued liabilities at December 31,
1997.
ITEM 3. LEGAL PROCEEDINGS
The Company is not party to any legal proceedings other than ordinary routine
litigation incidental to the Company's business. The following sentence is a
forward looking statement. The Company believes that the ultimate resolution of
these matters will not have a material adverse effect on the Company's
consolidated financial statements taken as a whole.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders during the quarter ended
December 31, 1997.
9
<PAGE>
PART II
ITEM 5. MARKET FOR THE REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER
MATTERS
Walker Interactive Systems common stock is traded on The Nasdaq National Stock
Market under the symbol "WALK." As of March 12, 1998, there were approximately
207 stockholders of record of the Company's common stock. The Company has not
paid any cash dividends and does not anticipate paying any cash dividends in the
foreseeable future. Furthermore, the Company has a line of credit with a
financial institution which restricts the Company's ability to pay dividends
while borrowings are outstanding under the line of credit.
The high and low closing prices per share, for the periods set forth below, are
as reported by The Nasdaq National Stock Market System.
<TABLE>
<CAPTION>
PRICE RANGE PER COMMON QUARTERLY MARCH JUNE SEPTEMBER DECEMBER
INFORMATION SHARE 31, 1997 30, 1997 30, 1997 31, 1997
- -------------------------------- ---------- ---------- ---------- ---------
Price range per common share:
<S> <C> <C> <C> <C>
High $14 1/2 $15 1/8 $18 1/8 $17 1/2
Low 12 3/16 10 11/16 12 7/8 12 1/8
PRICE RANGE PER COMMON QUARTERLY MARCH JUNE SEPTEMBER DECEMBER
INFORMATION SHARE 31, 1996 30, 1996 30, 1996 31, 1996
- -------------------------------- ---------- ---------- ---------- ---------
Price range per common share:
High $11 $12 5/8 $12 $15 1/2
Low 7 9 7/8 9 5/8 12 3/8
</TABLE>
On December 2, 1997, the Company completed its acquisition of all of the
outstanding capital stock of Revere, Inc., a Delaware corporation ("Revere"),
pursuant to an Agreement and Plan of Reorganization among the Company, Copper
Acquisition Corporation, a Delaware corporation and subsidiary of the Company
("Copper"), and Revere, dated as of October 29, 1997 (the "Reorganization
Agreement"). Pursuant to the Agreement, the Company issued 634,022 unregistered
shares of its common stock to: (a) former Revere stockholders, as partial
consideration for the acquisition of the Revere stock; and (b) Updata Capital,
Inc. ("Updata"), in full satisfaction of all obligations of Revere and its
stockholders to Updata incurred in connection with the acquisition. The
issuance of such shares was exempt from the registration requirements of the
Securities Act of 1933, as amended (the "Act"), pursuant to Section 4(2) of the
Act.
10
<PAGE>
ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA
<TABLE>
<CAPTION>
WALKER INTERACTIVE SYSTEMS, INC.
(In thousands, except per share amounts)
YEAR ENDED DECEMBER 31,
1997 (1) 1996 (2) 1995 1994 (3) 1993
-------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Income Statement Data:
Total revenues $ 71,409 $ 62,834 $ 58,566 $ 69,180 $ 64,483
Income (loss) before income taxes (2,179) 86 (10,198) (15,033) 4,890
Net income (loss) (3,477) (116) (9,357) (12,928) 3,912
Basic net income (loss) per share (4) (0.26) (0.01) (0.72) (1.01) 0.31
Shares utilized to compute basic net
income (loss) per share 13,291 13,223 12,998 12,750 12,510
Diluted net income (loss) per share (4) (0.26) (0.01) (0.72) (1.01) 0.30
Shares utilized to compute diluted net
income (loss) per share 13,291 13,223 12,998 12,750 12,991
Balance Sheet Data:
Cash, cash equivalents and investments $ 27,690 $ 38,170 $ 42,318 $ 44,036 $ 59,341
Total assets 91,334 82,319 82,498 89,834 102,948
Stockholders' equity 51,689 46,772 48,734 57,521 69,305
</TABLE>
(1) Includes a $4.6 million charge for the write-off of in-process
research and development from the acquisition of Revere, Inc. and a
$1.3 million charge for the termination of an exclusive distribution
agreement.
(2) Includes a $2.8 million charge for the write-off of in-process
research and development from the acquisition of Hunt Systems, Inc.
(3) Includes $23.2 million of charges, of which $12.8 million was the
write-off of in-process research and development from the acquisition
of The Solutions Group Limited and $10.4 million was for severance and
related costs and for the write-off of capitalized software
development costs.
(4) 1996 and prior years have been restated to conform to the requirements
of Statement of Financial Accounting Standards No. 128, "Earnings Per
Share."
11
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
The report on this Form 10-K contains forward-looking statements, including
statements related to industry trends and demand for mainframe products,
expected resolution of legal proceedings, cash commitments, working capital
requirements and possible expansion in international markets. Discussions
containing such forward-looking statements may be found in the material set
forth under "Legal Proceedings" and "Management's Discussion and Analysis of
Financial Condition and Results of Operations", generally and specifically
therein under the captions "Other Significant Charges," "Liquidity and Capital
Resources" and "Additional Risk Factors" as well as elsewhere in this Annual
Report on Form 10-K. Actual events or results may differ materially from those
discussed herein. The Company disclaims any obligation to update these forward-
looking statements as a result of subsequent events. The risk factors on pages
1 through 1, among others, should be considered in evaluating the Company's
prospects and future financial performance.
Walker Interactive Systems, Inc. (hereinafter "Walker" or the "Company") was
incorporated in California in 1973 and reincorporated in Delaware in March 1992.
Walker designs, develops, markets and supports, on a worldwide basis, a family
of enterprise client/server financial application software products that enable
large and medium-sized organizations, higher education institutions, and
federal, state, and government agencies to accelerate time-to-benefit, lower
cost of ownership and reduce information systems risks stemming from changes in
information technology and/or business processes or structure.
Walker designs its software products specifically for the client/server and
network computing models and believes that its architecture is among the most
scalable and adaptable available for enterprise-level financial applications
software. The Company's strategy is to offer comprehensive enterprise financial
solutions to a variety of industries utilizing its best-of-breed software
products. Walker's internet/intranet-enabled applications support and enhance
enterprise-wide financial processes, including planning, budgeting, forecasting,
consolidation and performance management. The Company's software products
utilize the Microsoft Windows operating systems on the desktop, and industry-
leading relational database management systems ("RDBMS") including IBM's DB2,
Oracle and Microsoft SQL/Server.
The Tamaris product line represents the Company's core suite of business and
financial solutions utilizing the power of the enterprise server, while the
Aptos suite of financial applications provides a client/server architecture that
runs on UNIX and Windows NT servers. The Company also develops and markets
Horizon best-of-breed analytic applications which provide financial reporting,
budgeting and financial consolidation solutions for large and mid-sized
organizations. The Horizon analytic applications can be used with the Tamaris
and Aptos products or in conjunction with leading Enterprise Resource Planning
("ERP") applications. In addition, Walker's IMMPOWER product line provides
best-of-breed Enterprise Asset Management solutions for capital intensive
industries.
The Company's software products include productivity tools that allow the
Company's applications to be extensively customized to fit the customer's
particular requirements. The Company complements its software products by
providing specialized consulting services to assist customers with customization
and implementation.
The Company derives its revenues primarily from software licenses, software
maintenance and professional consulting services. The Company's Tamaris,
Horizon and IMMPOWER product lines are licensed to large and mid-size companies
and similarly sized business and governmental organizations worldwide. The
Company's Aptos products are marketed primarily in the United Kingdom and are
licensed to mid-sized organizations. The Company's products and services are
marketed primarily through its sales forces located in the United States, United
Kingdom and Asia Pacific. The Company licenses software products directly to
customers and occasionally to distributors for resale.
12
<PAGE>
ACQUISITIONS
- ------------
On December 2, 1997, the Company acquired all the outstanding share capital of
Revere, Inc. ("Revere") in exchange for $7.7 million of the Company's common
stock (634,022 shares) and $0.6 million for various transaction related costs
and fees. An additional earnout of up to $2.0 million is payable based upon the
achievement of certain 1998 performance targets. Associated with the
transaction's closing total purchase price of $8.3 million, the Company
allocated $4.1 million to goodwill, $4.6 million was allocated to in-process
research and development and the remaining amounts allocated primarily to
working capital. The amount of the purchase price allocated to in-process
research and development was charged to the Company's operations, because
technological feasibility had not been established and no alternative future
uses existed at the acquisition date. The Company expects to spend
approximately $1.4 million over the next two years on additional research and
development on Revere technology in order to reach technological feasibility on
acquired technology. The acquisition was accounted for as a purchase
transaction. The goodwill will be ratably charged to operations over six years.
The results of operations of Revere, from the date of acquisition, are included
in the 1997 consolidated statement of operations.
On May 17, 1996, the Company acquired the business and net assets of Hunt
Systems Group, Inc. ("Hunt") for a total acquisition price of $3.8 million
comprised of a $2.1 million cash payment, $1.6 million payable based on
achievement of certain performance targets during the four year period following
closing and $0.1 million in transaction costs. Additional amounts will be paid
if further performance targets are reached during the same four year period. The
acquisition was accounted for as a purchase transaction. Of the purchase price,
$0.2 million was allocated to identifiable net tangible assets, $0.8 million was
allocated to capitalized software and $2.8 million was allocated to in-process
research and development. The amount of the purchase price allocated to in-
process research and development was charged to the Company's operations in
1996, because technological feasibility had not been established and no
alternative future uses existed at the acquisition date. The results of
operations of Hunt, from the date of acquisition, are included in the 1996
consolidated statement of operations and were not material to the results of
operations of the Company.
OTHER SIGNIFICANT CHARGES
- -------------------------
In 1997, the Company terminated an exclusive distributorship agreement in South
Africa which resulted in an expense of $1.3 million. The following sentence is
a forward looking statement. The Company does not expect further material
charges or obligations associated with the termination of this agreement.
In 1995, operating expenses included $9.7 million for office consolidations,
sales and use taxes, senior management changes, doubtful accounts receivable and
other miscellaneous matters. The Company also wrote-off $1.1 million of
capitalized software development costs which were considered unrealizable based
on anticipated future revenues. Of the total 1995 charges, $8.4 million was
general and administrative expense, $1.1 million was amortization of capitalized
software costs, $0.6 million was sales and marketing expense, $0.4 million was
product development expense and $0.3 million was costs of maintenance,
consulting and other services.
13
<PAGE>
RESULTS OF OPERATIONS FOR 1997, 1996 AND 1995
- ---------------------------------------------
The following results of operations include the operations of Revere, unless
otherwise specified, for the period from the date of acquisition, December 2,
1997 through December 31, 1997, only.
REVENUES. The Company recorded total revenues of $71.4 million, $62.8 million
and $58.6 million during the years ended December 31, 1997, 1996 and 1995,
respectively. Revenues increased 14 percent in 1997 and seven percent in 1996
primarily as a result of increases in license revenues. Excluding revenue
generated by Revere, which was acquired on December 2, 1997, revenues increased
12 percent for 1997. License revenues increased $7.1 million and $3.5 million
in 1997 and 1996, respectively, excluding license revenues from Revere. The
Company believes that the increase in license revenue in 1997 is attributable to
increased sales and marketing efforts, increased product offerings and greater
demand for the mainframe as a scalable, adaptable and cost effective enterprise
client/server solution. The Company believes that 1996 license revenues
increased because mainframe product demand increased as more customers decided
their requirements would be better served by a mainframe solution.
License revenues from the Company's Tamaris core financial applications
increased in absolute dollars during 1997 and 1996 and represented 62 percent,
72 percent and 85 percent of total license revenues for 1997, 1996 and 1995,
respectively (or, from the Tamaris product line, which also includes certain
client/server analytical and reporting tools, represented 79 percent, 80 percent
and 94 percent of total license revenues, respectively). The decline in Tamaris
license revenues as a percent of total license revenues is attributable to
increased license revenues generated by the Aptos product line and by the
Horizon product line, which was acquired in 1996. License revenue from Horizon
increase in 1997 over 1996, which the company believes resulted from product
feature and functionality enhancements and promotional activities. License
revenues from Aptos, in absolute dollars, were relatively constant from 1996 to
1997 and increased from 1995 to 1996.
Maintenance revenues were $27.7 million, $27.2 million and $28.4 million for
1997, 1996 and 1995, respectively. Maintenance revenues from operations acquired
from Revere during 1997 were not material to the Company's results of
operations.
Consulting revenues were $27.2 million, $27.0 million and $25.0 million for
1997, 1996 and 1995, respectively. Consulting revenues are generated from new
and existing customers for services related to training, implementation,
customization, migration, enhancement, Year 2000 compliance engagements and
other special projects. The Company historically generates a majority of its
consulting revenues from implementation related projects. In 1997, North
American and Asia Pacific consulting revenue from implementation related
projects decreased from 1996 due to the completion of several large on-going
implementation and post-implementation projects in 1996 and the first quarter of
1997 which were not subsequently replaced with projects of the same magnitude.
North American consulting revenues for 1997 were also adversely affected by a
fixed-fee consulting engagement. The decrease in 1997 North American and Asia
Pacific consulting revenue was offset by revenue from consulting engagements to
change non-Walker information systems to be Year 2000 compliant. These Year
2000 consulting engagements were not a source of revenue in prior years. The
Company's total consulting revenue would have been lower in 1997 than 1996 had
consulting revenue from Year 2000 related engagements been excluded from 1997
results of operations. Increases in 1997 United Kingdom consulting revenue
offset decreases in 1997 North American and Asia Pacific consulting revenue.
Consulting revenues from operations acquired from Revere during 1997 were not
material to the Company's results of operations.
14
<PAGE>
Total revenues generated in North America were 69 percent, 71 percent and 71
percent of the Company's total revenues for the fiscal years ended December 31,
1997, 1996 and 1995, respectively. During 1997 and 1996, the Company
experienced a revenue growth rate of nine percent for North America, primarily
attributable to increased license fee revenues. United Kingdom revenues
increased 34 percent and 12 percent during 1997 and 1996, respectively.
Increased license fee revenues contributed to the increases in total revenues
for the United Kingdom during 1997 and 1996. Further affecting United Kingdom
total revenues for 1997 were increases in consulting and maintenance revenue.
Total revenues for the Asia Pacific region have decreased in 1997 and 1996,
which is primarily attributable to decreases in regional consulting revenues.
COSTS OF LICENSES, MAINTENANCE AND CONSULTING. Costs of licenses, maintenance
and consulting represented 40 percent, 40 percent and 44 percent of the
respective revenues in 1997, 1996 and 1995, respectively. The percentage
decreases from 1995 was a result of increased efficiency in service delivery.
The costs of licenses in absolute dollars and as a percent of license revenue
increased in 1997 and 1996. The fluctuation is due to increased license revenues
and a greater proportion of those license revenues generated from the Company's
products which utilize technology licensed from third parties.
The costs of maintenance as a percentage of related revenue was relatively
unchanged for 1997 and 1996. During 1996, the cost of maintenance as a
percentage of related revenue decreased two percentage points from 1995. The
decrease in primarily attributable to increased efficiency in service delivery.
The costs of consulting as a percentage of total revenue has decreased in 1997
and 1996. The primary reason for the decrease in 1997 is due to the increase,
in absolute dollars, in license revenue. As a percentage of related revenue,
the costs of consulting has increased in 1997 compared to 1996. The increase is
primarily attributable to lower than expected consulting revenues, lower profit
margins in North America associated with a fixed fee consulting engagement and
an increase in the use of outside contractors. Further contributing to the 1997
increase was growth and turnover in the consulting organization. The growth in
the consulting organization was due to increased resources for implementation
consulting engagements and for the pursuit and execution of Year 2000 consulting
engagements.
The decline in North American profit margins was partially offset by increased
profit margins on consulting revenue in the United Kingdom and the Asia Pacific
regions compared to 1996 which is attributable to a greater number of consulting
engagements resulting from an increase in implementations associated with higher
1997 license revenues and increased utilization in the professional services
organizations.
SALES AND MARKETING. In absolute dollars, sales and marketing expenses
increased 31 percent and seven percent for 1997 and 1996, respectively. As a
percentage of total revenues, sales and marketing expenses were 24 percent, 21
percent and 21 percent in 1997, 1996 and 1995, respectively. In 1997 and 1996,
the sales and marketing expense increases were attributable to higher
commissions and travel expenses associated with the increase in license revenues
and increased costs associated with marketing promotions for existing customers.
Further increasing expenses in 1997, were marketing costs associated with a
major campaign in fourth quarter of 1997, to promote the Company, its multiple
product lines and its consulting services. The Company anticipates that sales
and marketing expenses to further promote the Company and its offerings will
continue to increase in the future.
15
<PAGE>
PRODUCT DEVELOPMENT. Product development related expenses, excluding
amortization of capitalized software, are detailed as follows (in thousands):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
1997 1996 1995
------ ------ ------
<S> <C> <C> <C>
Product development costs including additions
to capitalized software (gross) $18,259 $16,571 $16,879
Less:
Additions to capitalized software 7,497 5,201 4,230
------- ------- -------
Product development expenses $10,762 $11,370 $12,649
======= ======= =======
</TABLE>
The increase in 1997 gross product development expense is primarily due to the
Company's efforts to broaden its existing product offerings by further
developing acquired technologies, incorporating third party technologies in new
products and enhancing existing products. As a percentage of gross product
development expenses, additions to capitalized software were 41 percent, 31
percent and 25 percent in 1997, 1996 and 1995, respectively. The increases in
1997 and 1996 are attributable to increased efforts by internal and external
resources to develop enhanced releases of existing products. During 1995, the
Company refocused its product development efforts. As a result, the Company
capitalized a lower percentage of gross product development expenses in that
year. The Company expects product development expenses to grow in future
periods. Past additions to capitalized software, in absolute dollars and as a
percentage of gross product development costs, are not a reliable indicator of
additions to capitalized software in absolute dollars and as a percentage of
gross product development costs that will be recognized in the future.
AMORTIZATION OF CAPITALIZED SOFTWARE. Amortization of capitalized software
increased 22 percent from 1996 to 1997 and excluding a 1995 write-off of $1.1
million of capitalized software development costs which were considered
unrealizable, amortization of capitalized software decreased five percent from
1995 to 1996. The increase in 1997 is attributable to additional amortization
resulting from a major product release. The decrease in 1996 is primarily
attributable to products becoming fully amortized in early 1996, partially
offset by additional amortization for software releases.
GENERAL AND ADMINISTRATIVE. General and administrative expenses were $8.5
million, $9.0 million and $15.4 million in 1997, 1996 and 1995, respectively.
The decrease of $0.5 million in 1997 general and administrative expenses was
primarily due to 1996 charges for bad debt and increased labor charges
associated with the enhancement of infrastructure and business processes which
did not occur in 1997. In 1995, an $8.4 million provision was made for office
consolidations, additions to bad debt reserves, costs associated with senior
management changes, sales tax accruals and other reserves.
INCOME TAX EXPENSE (BENEFIT). Due to acquisitions in 1997 and 1996, the write-
off of in-process research and development and many other complex book and tax
items, the Company's effective income tax expense (benefit) has varied greatly
over 1997, 1996 and 1995. See Note 6 to the consolidated financial statements
for a more detailed discussion of income taxes, including the effective income
tax rate reconciliation.
LIQUIDITY AND CAPITAL RESOURCES
- -------------------------------
The Company's operating activities used cash of $1.4 million in 1997 and
provided cash of $7.9 million and $4.5 million 1996 and 1995, respectively.
Increases in accounts receivable balances reduced cash flows from operations in
1997. The increase in 1996 cash flows was due to increased license revenues and
the significant charges in 1995 that used cash (see "Other Significant
Charges").
Financing activities used $0.3 million in cash during 1997 and used $2.6 million
and $0.6 million in 1996 and 1995, respectively. In 1997, proceeds from the
issuance of stock under the Company's employee stock purchase plan and proceeds
from stock options exercised provided $2.3 million in cash, $0.3 million more
than cash used to repurchase common stock of the Company on the open market. In
1996, the Company used $5.2 million to
16
<PAGE>
repurchase its common stock, partially offset by $2.9 million of proceeds from
stock transactions associated with employee stock purchase and stock option
plans. All stock repurchases were made pursuant to a 1995 resolution of the
Company's Board of Directors authorizing the repurchase of up to 800,000 shares
of the Company's outstanding common stock, which was not to exceed a total cost
of $6.0 million. The Board of Directors subsequently authorized the Company to
spend up to an additional $4.0 million for repurchases, for a total cost of up
to $10.0 million. As of December 31, 1997, the Company had acquired 637,000
shares of its common stock at a cost of $7.6 million. As of December 31, 1997,
the Company had reissued 637,000 of the repurchased shares in connection with
the Company's employee stock purchase plan, one of its employee stock option
plans and the acquisition of Revere.
The Company has a line of credit in the amount of $3.0 million, secured by
marketable securities. The line of credit expires on August 31, 1998. The
Company has never borrowed against this line of credit. The credit agreement
provides that the Company shall maintain certain financial ratios and contains
restrictions related to various matters, including the Company's ability to
effect mergers or acquisitions without the bank's approval and the Company's
ability to pay dividends while borrowings are outstanding under the line of
credit.
In connection with the December 1997 acquisition of Revere, the Company assumed
a line of credit with an outstanding balance of $1.5 million. The outstanding
balance on the assumed line of credit was subsequently paid in full in January
1998.
As of December 31, 1997, the Company's principal sources of liquidity included
cash, cash equivalents and short- and long-term investments aggregating $27.7
million. The following sentence is a forward looking statement. The Company
believes that its principal sources of liquidity, together with funds expected
to be generated from operations, will satisfy the Company's currently
anticipated working capital and capital expenditure requirements for at least
the next twelve months.
ADDITIONAL RISK FACTORS
- -----------------------
The Company operates in a rapidly changing environment that involves numerous
risks and uncertainties which could have a material adverse effect on the
Company. The following discussion details some, but not all, of these risks and
uncertainties.
FLUCTUATION IN OPERATING RESULTS. The Company's operating results fluctuate as
a result of a variety of factors including: (i) the execution of new license
agreements; (ii) the shipment of software products; (iii) customer acceptance
criteria for services performed; (iv) completion of milestone or other
significant development requirements pursuant to the Company's license
agreements; (v) the financial terms of consulting agreements and the inclusion
of fixed as opposed to variable pricing; (vi) third-party royalty payments for
licensed software; (vii) the demand for the Company's products; (viii) changes
in the Company's product mix; (ix) the development and launch of new products,
and the life cycles of the Company's existing products; (x) research and
development expenditures required to update and expand the Company's product
portfolio and related third-party consulting costs; (xi) sales and marketing
expenses generally related to the entry into new markets with new or existing
products and maintenance of market share in existing markets; (xii) acquisitions
and the integration and development of acquired entities or products; (xiii)
competitive conditions in the industry and (xiv) general economic conditions.
As a result, the Company believes that period-to-period comparisons of its
operating results are not necessarily meaningful and should not be relied upon
as indications of future performance.
The Company's quarterly operating results are particularly dependent on the
number of license agreement bookings executed in each quarter. The amount of
quarterly bookings has varied substantially from quarter to quarter due to a
variety of reasons including: (i) a high proportion of license agreements are
negotiated during the latter part of each quarter which may not be completed
before the quarter end; (ii) the sales cycles for some of the Company's products
are relatively long due to the Company's focus on "enterprise solutions" as
opposed to individual products, which adds complexity to the customer's
selection, negotiation and approval process; (iii) the amount related to each
booking may vary significantly due to the need for different solutions for
different customers; (iv) procurement procedures may vary from customer to
customer, which may affect the timing of the bookings; (v) the period for a
customer to complete product evaluations and to complete any subsequent purchase
approval may be delayed due to
17
<PAGE>
resource limitations; and (vi) economic, political and industrial conditions can
adversely affect business opportunities without notice. In addition, bookings
that are executed during a particular quarter may not be recognized as revenue
during such quarter because such bookings may not have met the Company's revenue
recognition criteria. No assurance can be given that the Company will be able to
effect new bookings in accordance with historical results or management's
expectations, and the inability of the Company to do so could have a material
adverse effect on the Company's operating results.
While the Company typically sells its software under a standard license
agreement, license agreements associated with large enterprise solutions often
require the negotiation of terms and conditions that differ substantially from
the Company's standard license agreement terms. The negotiation of these
agreements may extend the sales cycle. In certain circumstances, the Company
may not obtain terms and conditions that permit the recognition of revenue upon
shipment of the licensed product or under the percentage of completion method of
contract accounting rules. Accordingly, revenue may not be recognized despite
the shipment of a product because specified milestones have not been met or
because applicable services have not been completed.
The Company in the past has and in the future expects to enter into fixed price
consulting agreements, particularly in response to increased competition in the
industry. The Company has recognized lower profit margins on certain fixed-
price service agreements when compared to variable agreements. No assurance can
be given that the Company will be able to conclude fixed-price agreements on
terms that will allow the Company to retain its historical operating margins.
The Company has historically generated a majority of its consulting revenue from
pre- and post-implementation services. During the second and third quarters of
1997, the Company provided services which include, but are not limited to, Year
2000 conversion engagements and other hardware and software solutions. The
Company intends to continue its pursuit of consulting engagements for which the
Company believes it is qualified. Such engagements may not be pre- or post-
implementation related. There can be no assurances that these engagements will
result in profit margins equal to or greater than those engagements that are
specific to a customer's product implementation. Furthermore, there can be no
assurances that consulting revenue generated from non-implementation related
projects will continue in the future.
Employee and facility related expenditures comprise a significant portion of the
Company's operating costs and expenses, and are therefore relatively fixed over
the short term. In addition, the Company's expense levels are based, in
significant part, on the Company's forecasted revenue. If revenue levels fall
below expectations, net income is likely to be adversely affected. There can be
no assurance that the Company will be able to maintain or to continue its
current level of profitability on a quarterly or annual basis in the future. Any
of the foregoing factors could cause the Company's future operating results to
fall below the expectations of public securities market analysts, which could
have an adverse effect on the trading price of the Company's common stock. See
"Volatility of Stock Price."
RELIANCE ON THIRD PARTY TECHNOLOGY. The Company generates revenue from
internally developed software products, some of which utilize technology
licensed from third parties. The Company expects to continue utilizing third
party technology and may enter into agreements with additional business
partners. If sales of software utilizing third party technology increase
disproportionately, gross margins may be below historical levels due to third
party royalty obligations. There can be no assurances that the third parties
will renew existing agreements with the Company or will not require financial
conditions which are unfavorable to the Company. Furthermore, there can be no
assurances that existing third party agreements will not be terminated.
INDUSTRY. Certain software companies, including the Company, have experienced
significant economic downturns as a result of technological shifts and
competitive pressures. These downturns are characterized by decreased product
demand, price erosion, work slowdowns and layoffs. The Company's operations
may, in the future, experience substantial fluctuations from period to period as
a consequence of such industry patterns and general economic and political
conditions which could affect the timing of orders from customers. There can be
no assurance that such factors will not have a materially adverse effect on the
Company's business, operating results or financial condition.
18
<PAGE>
INTERNATIONAL. The Company plans to increase its presence in international
markets including, but not limited to, marketing the Tamaris and Aptos product
lines in additional countries. Risks associated with such pursuits include, but
are not limited to, the following: changing market demands, economic and
political conditions in foreign markets, foreign exchange fluctuations, longer
collections cycles, difficulty in managing a geographically dispersed
organization, and changes in international tax laws. The recent downturn in the
Asia Pacific business climate will have an adverse effect on some market
opportunities. Operating results are likely to be adversely affected if the
Company's expansion into international markets is not successful.
COMPETITION. The business and financial applications software market for large
and complex organizations is intensely competitive. The Company's principal
competitors with Tamaris solutions are Dun & Bradstreet Software Services, Inc.
(mainframe applications now owned by Geac Computer Corporation Limited), SAP AG,
Oracle and PeopleSoft, Inc. With Aptos solutions, the Company faces competition
from Coda Group plc, Oracle Corporation, Lawson Software, Inc., Platinum
Software, Inc., Systems Union Group Ltd and Agresso AS. With the Horizon suite
of products, the Company faces competition from Hyperion Software, Longview and
Oracle Corporation. With the IMMPOWER suite of products, the Company faces
competition from Datastream Systems, Inc., Indus International, Inc., Marcam
Solutions, Inc., Mincom Pty Ltd., Product Software & Development, Inc. and SAP
AG.
The Company also competes to a lesser extent with other independent software
application vendors. Some of the Company's current and potential competitors
have substantially greater financial, technical, marketing and sales resources
than the Company. Some of these competitors also offer business application
products not offered by the Company, primarily in the areas of human resources
and manufacturing. However, Walker remains one of the few companies committed
to providing and enhancing applications for the mainframe environment. Many of
the competitors listed above compete with Walker by offering UNIX-based
applications.
The Company encounters competition from a broader range of firms in the market
for professional services. These competitors include the consulting divisions
of the major accounting firms which possess greater resources than the Company
and small independent firms which compete primarily on the basis of price of
services provided.
The principal competitive factors in the market for business and financial
applications software and services include product functionality, flexibility,
portability, integration, reliability, performance, product availability, speed
of implementation, quality of customer support and user documentation, vendor
reputation, experience, financial stability, cost effectiveness and price. The
Company believes that it competes favorably with respect to these factors.
There can be no assurance, however, that the Company will be able to compete
successfully in the future.
RAPID TECHNOLOGICAL CHANGE. The software industry is characterized by rapid
technological change. The pace of change has accelerated due to advances in
mainframe and client/server technology and the growth in internet, intranet and
extranet utilization. The Company expects to evaluate potential opportunities
and may invest in those which are compatible with the Company's strategic
direction. However, there can be no assurances that any such investments will
be profitable. Furthermore, the Company's products are designed primarily for
use with certain mainframe and client/server systems. The introduction of
products embodying new technologies and the emergence of new industry standards
can render existing products obsolete. Accordingly, the Company's future
success depends in part upon its ability to continue to enhance its current
products and to develop and introduce new products that respond to evolving
customer requirements and keep pace with technological development and emerging
industry standards, such as new operating systems, hardware platforms,
interfaces and third party applications software. There can be no assurances
that the Company will be successful in developing and marketing product
enhancements or new products that respond to technological change, changes in
customer requirements or emerging industry standards, that the Company will not
experience difficulties that could delay or prevent the successful development,
introduction and marketing of such products and enhancements or that any new
products or enhancements that it may introduce will achieve market acceptance.
PRODUCT DEVELOPMENT. The Company's continued success is dependent on its
continued ability to introduce, develop and market new and enhanced versions of
its software products, although there can be no assurance that such ability can
be maintained. The Company expects product development expenses to grow in
19
<PAGE>
future periods. However, there can be no assurances that revenues will be
sufficient to support the future product development which is required for the
Company to be competitive. Although the Company may be able to release new
products in addition to enhancements to existing products, there can be no
assurances that the Company's new or upgraded products will be accepted, will
not be delayed or canceled, or will not contain errors or "bugs" that could
affect the performance of the product or cause damage to users' data.
PROPRIETARY RIGHTS. The Company regards its products as proprietary. Through
its license agreements with customers and its internal security systems,
confidentiality procedures and employee agreements, the Company has taken steps
to maintain the trade secrecy of its products. However, there can be no
assurances that misappropriation will not occur. In addition, the laws of some
countries do not protect the Company's proprietary rights to the same extent as
do the laws of the United States. There can be no assurance that the
confidentiality of any proprietary information will provide any meaningful
competitive advantage. The Company has no patents relating to its products.
The Company believes that, because of the rapid pace of technological change in
the computer software industry, that trade secrets are less significant than
factors such as the knowledge, ability and experience of the Company's
employees, frequent product enhancements and the timeliness and quality of
support services. There can be no assurance that the current efforts to retain
its products as proprietary will be adequate.
Although the Company believes that its products do not infringe upon the
proprietary rights of third parties, there can be no assurance that third
parties will not assert infringement claims against the Company in the future
with respect to current or future products or that any such assertions may not
require the Company to enter into royalty arrangements or result in costly
litigation.
YEAR 2000 COMPLIANCE. The Company's internal business information systems
include some of the same commercial application software products generally
offered for license by the Company to end-user customers. The Company believes
these applications to be Year 2000 compliant; therefore the Company does not
expect any Year 2000 compliance issues to arise related to its primary internal
business information systems. However, the Company utilizes third party vendor
network equipment, telecommunication products and software products, some of
which may not be fully Year 2000 compliant. In general, the Company believes
that its key internal business information systems are Year 2000 compliant.
However, failure of any critical technology components to operate properly in
the Year 2000 may have an adverse impact on business operations or require the
Company to incur unanticipated expenses to remedy any problems.
PRODUCT LIABILITY. The Company's license agreements with its customers contain
provisions designed to limit the Company's exposure to potential product
liability claims. It is possible, however, that the limitation of liability
provisions contained in such license agreements may not be enforced as a result
of international, federal, state and local laws or ordinances or unfavorable
judicial decisions. The license and support of the Company's software for use in
mission critical applications creates the risk of product liability claims
against the Company. Damage liability or injunctive relief resulting from such a
claim could cause a materially adverse impact on the Company's business,
operating results and financial condition.
EMPLOYEES. The Company believes that its continued success will depend in large
part upon its ability to attract, train and retain highly-skilled technical,
sales and marketing and managerial personnel. The Company continues to hire a
significant number of sales, marketing, services and technical personnel.
Because of the high level of demand, competition for such personnel is intense
and the Company from time to time experiences difficulty in locating candidates
with appropriate qualifications or within desired geographic locations. Revenue
growth is dependent on the Company's ability to attract, train, retain and
productively manage such personnel.
EXPANSION OF FACILITIES. Recently, commercial building vacancy rates have
significantly dropped in San Francisco, California, where the Company has its
headquarters. Although the Company has renewed its lease in San Francisco,
which expires in 2007, the Company may experience difficulty obtaining
additional space if the Company's space requirements in San Francisco
significantly exceed the quantity of space the Company currently has under
lease. In addition, the increased demand for office space has caused commercial
rental rates to increase substantially. Failure to either obtain space, or
obtain it on reasonably attractive commercial terms, may inhibit the Company's
ability to grow or otherwise adversely affect the Company's operations and
financial results.
20
<PAGE>
ACQUISITION RELATED RISKS. The Company has and may continue to acquire
complimentary businesses, products or technology. The process of integrating an
acquired company's business into the Company's operations may result in
unforeseen operating difficulties and expenditures and may require significant
management attention that would otherwise be available for the ongoing
development of the Company's business. There can be no assurance that any
anticipated benefits of an acquisition will be realized. Future acquisitions by
the Company could result in potentially dilutive issuance's of equity
securities, the incurrance of debt and contingent liabilities and amortization
related to goodwill and other intangible assets, which could materially affect
the Company's operating results and financial condition. Acquisitions involve
numerous risks, including difficulties in the assimilation of operations,
technologies and products of the acquired company, risks associated with
entering markets in which the Company has no or limited direct prior experience
and the potential loss of key employees of the acquired company.
VOLATILITY OF STOCK PRICE. High technology companies, including the Company,
frequently experience volatility in their common stock prices. Factors such as
quarterly fluctuations in results of operations, announcements of technological
innovations by the Company or its competitors or the introduction of new
products by the Company or its competitors and macroeconomic conditions in the
computer hardware and software industries generally may have a significant
adverse impact on the market price of the Company's stock. If revenues or
earnings in any quarter fail to meet the expectations of the investment
community, there could be an immediate impact on the Company's stock price. In
addition, the Company has issued shares and stock options which if sold directly
or exercised and sold on the open market in large concentrations, could cause
the Company's stock price to decline in the short term. Recent tax legislation
which lowered tax rates on capital gains could potentially result in increased
sales of all U.S. equity securities including the Company's common stock. Such
sales, if material, could negatively impact the stock price. Furthermore, the
stock market has from time to time experienced extreme price and volume
fluctuations which have particularly affected the market price for many high
technology companies, in some cases unrelated to the operating performance of
those companies. These broad market fluctuations may materially adversely
affect the market price of the stock of the Company.
21
<PAGE>
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
ITEM 8. CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
<S> <C>
Independent Auditors' Report..................................... 23
Consolidated Balance Sheets as of December 31, 1997
and December 31, 1996.......................................... 24
Consolidated Statements of Operations for the years ended
December 31, 1997, 1996 and 1995............................... 25
Consolidated Statements of Stockholders' Equity for the years
ended December 31, 1997, 1996 and 1995......................... 26
Consolidated Statements of Cash Flows for the years
ended December 31, 1997, 1996 and 1995......................... 27
Notes to Consolidated Financial Statements....................... 28
</TABLE>
22
<PAGE>
INDEPENDENT AUDITORS' REPORT
To the Stockholders and Board of Directors of
Walker Interactive Systems, Inc.:
We have audited the accompanying consolidated balance sheets of Walker
Interactive Systems, Inc. and subsidiaries as of December 31, 1997 and 1996, and
the related consolidated statements of operations, stockholders' equity and cash
flows for each of the three years in the period ended December 31, 1997. Our
audit also included the consolidated financial statement schedule on page 45.
These financial statements and the consolidated financial statement schedule are
the responsibility of the Company's management. Our responsibility is to
express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in all
material respects, the financial position of Walker Interactive Systems, Inc.
and subsidiaries at December 31, 1997 and 1996, and the results of their
operations and their cash flows for each of the three years in the period ended
December 31, 1997 in conformity with generally accepted accounting principles.
Also, in our opinion, the consolidated financial statement schedule, when
considered in relation to the basic consolidated financial statements taken as a
whole, presents fairly in all material respects the information set forth
therein.
/s/ DELOITTE & TOUCHE LLP
- -------------------------
DELOITTE & TOUCHE LLP
San Francisco, California
February 2, 1998
23
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
WALKER INTERACTIVE SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
(In thousands, except share amounts)
DECEMBER DECEMBER
ASSETS 31, 1997 31, 1996
------------- -------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $7,646 $13,475
Short-term investments 13,693 17,615
Accounts receivable, net of allowance for doubtful
accounts of $1,376 in 1997 and $1,584 in 1996 22,090 11,316
Prepaid expenses 2,001 1,010
Other receivables 1,017 929
------------- -------------
Total current assets 46,447 44,345
Long-term investments 6,351 7,080
Property and equipment, net 4,599 4,332
Capitalized software, net of accumulated amortization
of $29,592 in 1997 and $25,114 in 1996 15,777 11,858
Deferred tax assets, net 13,632 14,060
Other assets 4,528 644
------------- -------------
TOTAL ASSETS $91,334 $82,319
============= =============
</TABLE>
LIABILITIES AND STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
<S> <C> <C>
Current liabilities:
Accounts payable $5,957 $3,160
Accrued liabilities 13,335 9,992
Deferred revenue 15,557 14,855
------------- -------------
Total current liabilities 34,849 28,007
Deferred revenue 1,190 2,441
Accrued rent 887 960
Other long-term obligations 2,719 4,139
------------- -------------
Total liabilities 39,645 35,547
------------- -------------
Commitments and Contingencies - -
Stockholders' equity:
Common stock, $.001 par value: 50,000,000 shares
authorized; issued 13,973,457 shares - December 31,
1997; 13,494,487 shares - December 31, 1996 14 13
Additional paid-in capital 73,622 70,008
Currency translation adjustments 238 253
Unrealized gain (loss) on investments 2 (39)
Accumulated deficit (22,187) (18,710)
Treasury stock at cost (zero shares - December 31,
1997; 397,194 shares - December 31, 1996) - (4,753)
------------- -------------
Total stockholders' equity 51,689 46,772
------------- -------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $91,334 $82,319
============= =============
</TABLE>
See notes to consolidated financial statements
24
<PAGE>
WALKER INTERACTIVE SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
<TABLE>
YEAR ENDED DECEMBER 31,
1997 1996 1995
----------- ----------- ------------
<S> <C> <C> <C>
REVENUES:
License $16,478 $8,647 $5,129
Maintenance 27,658 27,231 28,440
Consulting 27,273 26,956 24,997
----------- ----------- ------------
Total revenues 71,409 62,834 58,566
OPERATING EXPENSES:
Costs of revenues:
Costs of licenses, maintenance and consulting 28,856 25,070 25,577
Amortization of capitalized software 4,479 3,662 4,959
Sales and marketing 16,929 12,900 12,042
Product development 10,762 11,370 12,649
General and administrative 8,511 9,032 15,363
Write-off of purchased in-process
research and development 4,600 2,784 -
Distributor termination charge 1,291 - -
----------- ----------- ------------
Total operating expenses 75,428 64,818 70,590
Operating loss (4,019) (1,984) (12,024)
Interest income, net 1,840 2,070 1,826
----------- ----------- ------------
Income (loss) before income taxes (2,179) 86 (10,198)
Income tax expense (benefit) 1,298 202 (841)
----------- ----------- ------------
NET LOSS ($3,477) ($116) ($9,357)
=========== =========== ============
BASIC AND DILUTED NET LOSS PER SHARE ($0.26) ($0.01) ($0.72)
=========== =========== ============
Shares utilized to compute basic and diluted
net loss per share 13,291 13,223 12,998
=========== =========== ============
</TABLE>
See notes to consolidated financial statements.
25
<PAGE>
WALKER INTERACTIVE SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(In thousands, except share amounts)
<TABLE>
<CAPTION>
Additional Currency
Common Stock Treasury Stock Paid-in Translation
Shares Amount Shares Amount Capital Adjustments
---------- ----------- ----------- ----------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
BALANCE AT JANUARY 1, 1995 ......... 12,882,236 $ 13 -- $- $ 66,968 ($ 36)
Common stock issued by
exercise of stock options ..... 197,702 -- 126
Common stock issued under
employee stock purchase plan .. 40,167 -- 195
Treasury stock acquired ............ (55,143) (383)
Tax benefit from exercise
of stock options .............. 243
Other .............................. 159
Net loss ...........................
----------- ----------- ----------- ----------- ----------- -----------
BALANCE AT DECEMBER 31, 1995 ....... 13,120,105 $ 13 ($ 55,143) ($ 383) $ 67,532 $ 123
Common stock issued by
exercise of stock options ..... 342,628 -- 2,078
Common stock issued under
employee stock purchase plan .. 31,754 -- 197
Treasury stock acquired ............ (442,000) (5,245)
Treasury stock reissued under
employee stock purchase plan .. 99,949 875 (258)
Tax benefit from exercise
of stock options .............. 459
Other .............................. 130
Net loss ...........................
----------- ----------- ----------- ----------- ----------- -----------
BALANCE AT DECEMBER 31, 1996 ....... 13,494,487 $ 13 (397,194) ($ 4,753) $ 70,008 $ 253
Common stock issued by
exercise of stock options ..... 278,992 1 1,250
Common stock issued under
employee stock purchase plan .. 21,450 235
Common stock issued for
Revere acquisition ............ 178,528 2,176
Treasury stock acquired ............ (145,000) (1,988)
Treasury stock reissued under
employee stock purchase plan .. 58,262 666 (29)
Treasury stock reissued under
non-qualified stock option plan 28,438 327 (121)
Treasury stock reissued for
Revere acquisition ............ 455,494 5,748 (197)
Tax benefit from exercise
of stock options .............. 300
Other .............................. (15)
Net loss ...........................
=========== =========== =========== =========== =========== ===========
BALANCE AT DECEMBER 31, 1997 ....... 13,973,457 $ 14 -- $- $ 73,622 $ 238
=========== =========== =========== =========== =========== ===========
<CAPTION>
Unrealized Total
Gain (Loss) Accumulated Stockholders'
on Investments Deficit Equity
-------------- ------------ -------------
<S> <C> <C> <C>
BALANCE AT JANUARY 1, 1995 ......... ($ 187) ($ 9,237) $ 57,521
Common stock issued by
exercise of stock options ..... 126
Common stock issued under
employee stock purchase plan .. 195
Treasury stock acquired ............ (383)
Tax benefit from exercise
of stock options .............. 243
Other .............................. 230 389
Net loss ........................... (9,357) (9,357)
----------- ----------- -----------
BALANCE AT DECEMBER 31, 1995 ....... $ 43 ($ 18,594) $ 48,734
Common stock issued by
exercise of stock options ..... 2,078
Common stock issued under
employee stock purchase plan .. 197
Treasury stock acquired ............ (5,245)
Treasury stock reissued under
employee stock purchase plan .. 617
Tax benefit from exercise
of stock options .............. 459
Other .............................. (82) 48
Net loss ........................... (116) (116)
----------- ----------- -----------
BALANCE AT DECEMBER 31, 1996 ....... ($ 39) ($ 18,710) $ 46,772
Common stock issued by
exercise of stock options ..... 1,251
Common stock issued under
employee stock purchase plan .. 235
Common stock issued for
Revere acquisition ............ 2,176
Treasury stock acquired ............ (1,988)
Treasury stock reissued under
employee stock purchase plan .. 637
Treasury stock reissued under
non-qualified stock option plan 206
Treasury stock reissued for
Revere acquisition ............ 5,551
Tax benefit from exercise
of stock options .............. 300
Other .............................. 41 26
Net loss ........................... (3,477) (3,477)
=========== =========== ===========
BALANCE AT DECEMBER 31, 1997 ....... $ 2 ($ 22,187) $ 51,689
=========== =========== ===========
</TABLE>
26
<PAGE>
WALKER INTERACTIVE SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
1997 1996 1995
-------- -------- --------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss .......................................................... ($ 3,477) ($ 116) ($ 9,357)
Adjustments to reconcile net loss to net cash
provided (used) by operating activities:
Depreciation and amortization .................................. 6,922 6,851 9,130
Tax benefit of nonqualified stock options ...................... 300 459 243
(Gain) loss on property retirements and fixed assets write-downs -- (11) 1,366
Write-off of purchased in-process research and development ..... 4,600 2,784 --
Changes in operating assets and liabilities:
Accounts receivable, net ....................................... (8,566) (1,716) 2,568
Prepaid expenses ............................................... (691) 231 (190)
Accounts Payable ............................................... 2,129 (1,390) 50
Accrued liabilities ............................................ (2,236) 1,271 3,373
Deferred tax assets ............................................ 557 (879) (1,643)
Deferred revenue ............................................... (1,206) 467 (1,467)
Other .......................................................... 275 (88) 448
-------- -------- --------
Net cash provided (used) by operations ...................... (1,393) 7,863 4,521
-------- -------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from employee stock purchase plan
issuances and stock options exercised .......................... 2,329 2,892 321
Treasury stock acquired ........................................... (1,988) (5,245) (383)
Capital lease and loan payments ................................... (2) (236) (505)
-------- -------- --------
Net cash provided (used) by financing activities ............ 339 (2,589) (567)
-------- -------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of short- and long-term investments ..................... (29,444) (36,984) (28,518)
Maturities of short-term investments .............................. 12,916 7,400 27,791
Sales of short-term investments ................................... 21,125 21,713 13,500
Purchases of property ............................................. (2,192) (2,105) (1,442)
Additions to capitalized software ................................. (7,497) (5,201) (4,230)
Acquisition of Hunt Systems Group, Inc. ........................... -- (2,034) --
Cash acquired from Revere, Inc. ................................... 222 -- --
Other ............................................................. 95 -- --
-------- -------- --------
Net cash provided (used) by investing activities ............ (4,775) (17,211) 7,101
-------- -------- --------
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS ................... (5,829) (11,937) 11,055
CASH AND CASH EQUIVALENTS - BEGINNING OF PERIOD ........................ 13,475 25,412 14,357
-------- -------- --------
CASH AND CASH EQUIVALENTS - END OF PERIOD .............................. $ 7,646 $ 13,475 $ 25,412
======== ======== ========
- -------------------------------------------------------------------------------------------------------------
Supplemental Disclosure:
Cash paid for income taxes ........................................ $ 102 $ 5 $ 619
Non-cash activities:
Common stock issued for Revere, Inc. acquisition ............... $ 7,727 $ -- $ --
- -------------------------------------------------------------------------------------------------------------
</TABLE>
See notes to consolidated financial statements
27
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SIGNIFICANT ACCOUNTING POLICIES
DESCRIPTION OF THE COMPANY. Walker Interactive Systems, Inc.
(hereinafter "Walker" or the "Company") was incorporated in California
in 1973 and reincorporated in Delaware in March 1992. Walker designs,
develops, markets and supports, on a worldwide basis, a family of
enterprise client/server financial application software products that
enable large and medium-sized organizations, higher education
institutions, and federal, state, and government agencies to accelerate
time-to-benefit, lower cost of ownership and reduce information systems
risks stemming from changes in information technology and/or business
processes or structure. The Company derives its revenues primarily from
software licenses, software maintenance and professional consulting
services. The Company's Tamaris, Horizon and IMMPOWER product lines are
licensed to large and mid-size companies and similarly sized business
and governmental organizations worldwide. The Company's Aptos products
are marketed primarily in the United Kingdom and are licensed to
mid-sized organizations. The Company's products and services are
marketed primarily through its sales forces located in the United
States, United Kingdom and Asia Pacific. The Company licenses software
products directly to customers and occasionally to distributors for
resale.
PRINCIPLES OF CONSOLIDATION. The consolidated financial statements
include the accounts of Walker Interactive Systems, Inc. and its wholly
owned subsidiaries. All intercompany balances and transactions have
been eliminated.
ESTIMATES AND ASSUMPTIONS. The preparation of financial statements in
conformity with generally accepted accounting principles requires
management to make estimates and assumptions that affect the reported
amounts of assets and liabilities and disclosure of contingent assets
and liabilities at the date of the financial statements and the
reported amounts of revenues and expenses during the reporting period.
Actual amounts could differ from those estimates.
Significant estimates used in the consolidated financial statements
include the estimates of (i) anticipated future gross revenues from the
estimated economic life of the products for which development costs
have been capitalized, (ii) expense accruals associated with the
termination of exclusive distributor agreements, office consolidations
and sales and use taxes, (iii) the life of identifiable intangible
assets from acquisitions and (iv) realizability of deferred tax assets.
The amounts that the Company will ultimately incur or recover could
differ materially from the Company's current estimates. The underlying
assumptions and facts supporting these estimates could change in 1998
and thereafter.
CAPITALIZED SOFTWARE. Capitalized software includes certain costs of
purchased and internally developed software, and are stated at the
lower of cost or net realizable value. Capitalization of internally
developed software begins upon the establishment of technological
feasibility. Amortization of capitalized development costs begins when
the products are available for general release to customers, and is
computed as the greater of (a) the ratio of current gross revenues for
a product to the total of current and anticipated future gross revenues
for the product, or (b) the straight-line method over the remaining
estimated economic life of the product (not exceeding five years). It
is possible that these estimates of anticipated future gross revenues,
the remaining estimated economic life of the products, or both, could
be reduced significantly due to either competitive factors or the rate
of technological change.
PROPERTY AND EQUIPMENT. Property and equipment is stated at cost.
Depreciation is computed primarily utilizing the straight-line method
over the estimated useful lives which range from three to ten years.
Leasehold improvements are amortized utilizing the straight-line method
over the lesser of the estimated useful lives or remaining lease terms.
REVENUE RECOGNITION. Software license revenues are recognized when
software revenue recognition criteria have been met. The portion of
revenues from new license agreements which relate to the Company's
obligations to provide customer support are deferred and recognized
ratably over the contract
28
<PAGE>
support period, which is generally three to twelve months. Software
maintenance contracts are usually renewable on an annual basis,
although the Company may negotiate long-term contracts. Revenues from
maintenance contract renewals are deferred and recognized ratably over
the terms of the agreements. Revenues from consulting and other
services are recognized as the related services are provided or as the
milestones are completed.
CONCENTRATION OF CREDIT RISK. The Company's investment portfolio is
diversified and consists of short-and long-term investment grade
securities. The Company's accounts receivable are derived from sales to
customers located in the United States, United Kingdom and Asia
Pacific. The Company performs ongoing credit evaluations of its
customers' financial condition and maintains reserves for potential
credit losses.
TRANSLATION OF FOREIGN CURRENCIES. The U.S. dollar is the functional
currency for the Company's international operations. Gains and losses
from translation of foreign subsidiaries' financial statements are
reported as a separate component of stockholders' equity. Net gains and
losses from foreign currency transactions are included in the
determination of net income (loss).
SFAS NO. 128 EARNINGS PER SHARE. In December, 1997, the Company adopted
Statement of Financial Accounting Standards ("SFAS") No. 128, "Earnings
Per Share." SFAS No. 128 requires a dual presentation of basic and
diluted EPS on the face of the income statements. Basic EPS is computed
by dividing net income (loss) by the weighted-average number of common
shares outstanding for the period. Diluted EPS reflects the potential
dilution that could occur from common shares issuable through stock
options, warrants and other convertible securities.
RECENTLY ISSUED ACCOUNTING STANDARDS. In September 1997, the Financial
Accounting Standards Board issued Statements of Financial Standards
("SFAS") No. 130, "Reporting of Comprehensive Income," which requires
that an enterprise report, by major components and as a single total,
the change in net assets during the period from nonowner sources; and
No. 131, "Disclosures about Segments of an Enterprise and Related
Information," which establishes annual and interim reporting standards
for an enterprise's operating segments and related disclosures about
its products, services, geographical areas and major customers.
Adoption of these statements will not impact the Company's consolidated
financial position, results of operations or cash flows and any effect
will be limited to the form and content of its disclosures. Both
statements, SFAS No. 130 and SFAS No. 131, are effective for fiscal
years beginning after December 15, 1997.
STATEMENT OF POSITION 97-2 SOFTWARE REVENUE RECOGNITION. On October 27,
1997, the Accounting Standards Executive Committee issued Statement of
Position ("SOP") 97-2, "Software Revenue Recognition," which provides
guidance on applying generally accepted accounting principles in
recognizing revenue on software transactions. The Statement of Position
97-2 supersedes SOP 91-1, "Software Revenue Recognition," under which
the Company's license fee revenues were recognized. SOP 97-2 is
effective prospectively for transactions entered into in fiscal years
beginning after December 15, 1997. Certain provisions of SOP 97-2 may
be deferred until 1999. The Company is currently evaluating SOP 97-2 to
determine what effect, if any, SOP 97-2 may have on its revenue
recognition policies.
RECLASSIFICATIONS. Certain reclassifications have been made to prior
years' amounts in order to conform to the 1997 consolidated financial
statement presentation.
2. ACQUISITIONS
On December 2, 1997, the Company acquired all the outstanding share
capital of Revere, Inc. ("Revere") in exchange for $7,727,000 of the
Company's common stock (634,022 shares) and $587,000 for various
transaction related costs and fees. An additional earnout of up to
$2,000,000 is payable based upon the achievement of certain 1998
performance targets. Associated with the transaction's closing total
purchase price of $8,314,000, the Company allocated $4,091,000 to
goodwill, $4,600,000 million was allocated to
29
<PAGE>
in-process research and development and the remaining amounts allocated
primarily to working capital. The amount of the purchase price
allocated to in-process research and development was charged to the
Company's operations, because technological feasibility had not been
established and no alternative future uses existed at the acquisition
date. The Company expects to spend approximately $1,400,000 over the
next two years on additional research and development on Revere
technology in order to reach technological feasibility on acquired
technology. The acquisition was accounted for as a purchase
transaction. The goodwill will be ratably charged to operations over
six years. The results of operations of Revere, from the date of
acquisition, are included in the 1997 consolidated statement of
operations.
The following unaudited pro forma information has been presented as if
the Revere acquisition had occurred on January 1, 1996 (in thousands,
except per share amounts). The unaudited pro forma information is based
on historical results of operations adjusted for acquisition costs and,
in the opinion of management, is not necessarily indicative of what
results would have been if the Company had acquired Revere, Inc. on
January 1, 1996.
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
1997 1996
------- -------
<S> <C> <C>
Total revenues $79,869 $73,244
Net loss (6,517) (4,967)
Basic and diluted net loss per share (0.47) (0.36)
Shares utilized to compute basic and
diluted net loss per share 13,925 13,860
</TABLE>
On May 17, 1996, the Company acquired the business and net assets of
Hunt Systems Group, Inc. ("Hunt") for a total acquisition price of
$3,759,000 comprised of a $2,109,000 cash payment, $1,550,000 payable
based on achievement of certain performance targets during the four
year period following closing and $100,000 in transaction costs.
Additional amounts will be paid if further performance targets are
reached during the same four year period. The acquisition was accounted
for as a purchase transaction. Of the purchase price, $190,000 was
allocated to identifiable net tangible assets, $785,000 was allocated
to capitalized software and $2,784,000 was allocated to in-process
research and development. The amount of the purchase price allocated to
in-process research and development was charged to the Company's
operations in 1996, because technological feasibility had not been
established and no alternative future uses existed at the acquisition
date. The results of operations of Hunt, from the date of acquisition,
are included in the 1996 consolidated statement of operations and were
not material to the results of operations of the Company.
3. CASH AND CASH EQUIVALENTS AND SHORT- AND LONG-TERM INVESTMENTS
All liquid investments with original maturities of three months or less
are considered cash and cash equivalents. Cash equivalents are stated
at cost, which approximates fair value. The Company classifies those
investments which mature in less than one year as short-term
investments. The long-term marketable securities held at December 31,
1997 have contractual maturities of five years of less. The Company's
short- and long-term investments are classified as available-for-sale
and reported at fair value. Net unrealized gains and losses are
excluded from earnings and reported net of income taxes as a separate
component of stockholders' equity. There were no material gross
realized gains or losses from the sales of investments during 1997 or
1996.
30
<PAGE>
Short- and long-term investments available-for-sale are summarized as follows
(in thousands):
<TABLE>
<CAPTION>
Gross Gross
Amortized Unrealized Unrealized
December 31, 1997 Costs Gains Losses Fair Value
------------------------------------- --------- ---------- ----------- -------------
<S> <C> <C> <C> <C>
U.S. Government securities $1,490 $2 ($1) $1,491
Corporate debt 18,552 9 (8) 18,553
--------- ---------- ----------- -------------
Total investments 20,042 11 (9) 20,044
Long-term investments 6,346 7 (2) 6,351
--------- ---------- ----------- -------------
Short-term investments $13,696 $4 ($7) $13,693
========= ========== =========== =============
Gross Gross
Amortized Unrealized Unrealized
December 31, 1996 Costs Gains Losses Fair Value
------------------------------------- --------- ---------- ----------- -------------
U.S. Government securities $8,678 $4 ($18) $8,664
Corporate debt 16,056 5 (30) 16,031
--------- ---------- ----------- -------------
Total investments 24,734 9 (48) 24,695
Long-term investments 7,101 2 (23) 7,080
--------- ---------- ----------- -------------
Short-term investments $17,633 $7 ($25) $17,615
========= ========== =========== =============
</TABLE>
4. PROPERTY AND EQUIPMENT
----------------------
Property and equipment at December 31, 1997 and 1996 includes the
following (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
1997 1996
----------- -----------
<S> <C> <C>
Equipment $17,966
$14,498
Furniture and fixtures 2,519 2,461
Leasehold improvements 1,707
1,489
Property under capital leases:
Equipment 1,638
1,465
Furniture 1,760 1,760
----------- -----------
25,590 21,673
Less:
Accumulated depreciation
(20,991) (17,341)
----------- -----------
Property and equipment, net $4,599 $4,332
=========== ===========
</TABLE>
Depreciation expense totaled $2,444,000, $2,992,000 and $4,007,000 for
1997, 1996 and 1995, respectively.
5. LIABILITIES
-----------
Deferred revenue (current) is primarily comprised of deferred product
maintenance of $13,477,000 and $13,701,000 at December 31, 1997 and
1996, respectively. Accrued liabilities includes sales and use tax
accruals of $1,218,000 and $2,780,000 at December 31, 1997 and 1996,
respectively. As a result of the Company's acquisition of Revere (see
Note 2), $1,500,000 related to an outstanding line of credit balance
(subsequently paid in January 1998) is included in the accrued
liabilities balance as of December 31, 1997.
31
<PAGE>
6. INCOME TAXES
------------
The Company's deferred tax balances at December 31, 1997 and 1996 are
as follows (in thousands):
<TABLE>
<CAPTION>
DECEMBER 31,
1997 1996
--------- ---------
<S> <C> <C>
Deferred Tax Assets:
Deferred revenue recognized for tax $1,297 $2,081
Excess book depreciation over tax
depreciation 1,055 1,790
Accrued liabilities and reserves 2,998 3,228
Research and development credits 3,752 3,391
Alternative minimum tax credits carryover 475 481
Net operating loss carryover 4,411 4,935
Foreign tax credits carryover 2,349 2,556
Foreign losses 3,509 461
Other 540 290
--------- --------
20,386 19,213
Valuation Allowance (2,844) (2,844)
--------- --------
Total $17,542 $16,369
========= ========
Deferred Tax Liabilities:
Capitalized software development
costs expensed for tax purposes (3,910) (2,309)
--------- --------
Deferred Tax Assets - net $13,632 $14,060
========= ========
</TABLE>
At December 31, 1997 and 1996, the Company's valuation allowance
balance was $2,844,000 consisting of tax credits expected to expire
unused and foreign losses from which the Company does not expect to
derive any benefit. As of December 31, 1997, the Company's deferred tax
assets included approximately $10,512,000 of items which will expire
with the passage of time. Realization is dependent on generating
sufficient taxable income prior to the expiration of such benefits.
Although realization is not assured, management believes it is more
likely than not that the deferred tax assets, net of the valuation
allowance, will be realized. The deferred tax assets considered
realizable could be reduced if estimates of future taxable income
during the carry-forward periods are reduced.
At December 31, 1997, the Company has federal net operating loss
carryforwards of approximately $11,950,000 which expire in varying
amounts from 2007 through 2012, federal research tax credits of
$2,035,000 which expire in varying amounts from 1998 through 2012,
California state research tax credits of $1,717,000 and alternative
minimum tax credits of $475,000 which have no expiration date and
foreign tax credits of $2,349,000 which expire in varying amounts from
1998 through 2002.
32
<PAGE>
Income tax expense (benefit) consists of (in thousands):
<TABLE>
<CAPTION>
1997: Current Deferred Total
------------ ----------- ----------
<S> <C> <C> <C>
Federal $- $1,242 $1,242
State 46 (247) (201)
Foreign 451 (194) 257
------------ ----------- ----------
Total $497 $801 $1,298
============ =========== ==========
<CAPTION>
1996: Current Deferred Total
------------ ----------- ----------
<S> <C> <C> <C>
Federal $501 ($357) $144
State 45 (354) (309)
Foreign 535 (168) 367
------------ ----------- ----------
Total $1,081 ($879) $202
============ =========== ==========
<CAPTION>
1995: Current Deferred Total
<S> <C> <C> <C>
Federal $- ($70) ($70)
State 170 (745) (575)
Foreign 632 (828) (196)
------------ ----------- ----------
Total $802 ($1,643) ($841)
============ =========== ==========
</TABLE>
The effective income tax rate differs from the amount computed by
applying the federal statutory income tax rate as follows (in
thousands):
<TABLE>
<CAPTION>
1997 % 1996 % 1995 %
<S> <C> <C> <C> <C> <C> <C>
Provision (benefit) at statutory rate -
Federal ($742) (34%) $28 34% ($3,473) (34%)
State income and capital taxes 97 4% 3 4% (306) (3%)
Tax-exempt interest - - (77) (92%) (561) (5%)
Research and development credit, net of
expired credits (217) (10%) (255) (306%) (265) (3%)
Write-off of purchased in-process
research and development 1,564 72% - - - -
Decrease in tax credits resulting from
the true-up of assessments and changes
in tax accounting methods 493 22% - - 1,033 10%
Valuation allowance - - 557 668% 2,288 22%
Provision at statutory rates of
controlled foreign subsidiaries 166 7% 167 200% 176 2%
Foreign losses not benefited (442) (20%) (510) (611%) - -
Decrease in tax credits carried back as
net operating losses 441 20% - - - -
Other, net (62) (2%) 289 346% 267 3%
------ ------ ------ ------ -------- ------
Total income tax expense (benefit) $1,298 59% $202 243% ($841) (8%)
====== ====== ====== ====== ======== ======
</TABLE>
33
<PAGE>
7. STOCK OPTION AND OTHER EMPLOYEE BENEFIT PLANS
---------------------------------------------
401(k) Plan
-----------
The Company has a 401(k) tax-deferred savings plan covering all of its
employees. Company matching contributions, which are not required by
the plan, totaled $1,159,000, $1,077,000 and $1,204,000 in 1997, 1996
and 1995, respectively.
Stock Based Compensation Plans
------------------------------
At December 31, 1997, the Company had stock-based compensation plans,
which are detailed below. Under SFAS No. 123, the fair value based
accounting method would have increased the Company's net loss, basic
net loss per share and diluted net loss per share on a pro forma basis
(in thousands, except per share amounts):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
1997 1996 1995
------------ ------------ ------------
<S> <C> <C> <C>
Net loss:
As reported ($3,477) ($116) ($9,357)
Pro forma (5,763) (1,579) (10,079)
Basic and diluted net loss per share:
As reported ($0.26) ($0.01) ($0.72)
Pro forma (0.43) (0.12) (0.78)
</TABLE>
Stock Option Plans
Under the Company's statutory employee stock option plans, shares of
common stock have been made available for grant to certain employees.
The exercise price of each option granted is 100 percent of market
value on the date of the grant. Options granted under the plans
generally vest over a period of four years and generally expire ten
years from the date of grant. Options may be granted at prices not less
than 85 percent of fair market value at the date of grant. To date, all
options have been granted at fair market value at the date of grant. At
December 31, 1997, 1,170,000 shares of common stock were available for
future option grants.
The fair value of each option grant was estimated on the date of grant
using the Black-Scholes option pricing model with the following
weighted-average assumptions:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
1997 1996 1995
---------- ---------- ----------
<S> <C> <C> <C>
Dividend yield 0.0% 0.0% 0.0%
Volatility 45.1% 46.8% 46.8%
Risk free interest rate 5.7% 5.7% 6.6%
Expected term, in years 4.42 4.30 4.41
</TABLE>
The weighted average fair value at date of grant for options granted
during 1997, 1996 and 1995 was $6.02, $5.25 and $2.96, respectively.
34
<PAGE>
A summary of the Company's stock option activity follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
1997 1996 1995
----------------------- ----------------------- ----------------------
Weighted- Weighted- Weighted-
average average average
exercise exercise exercise
Optio price Options price Options price
---------- -------- ---------- -------- ---------- --------
<S> <C> <C> <C> <C> <C> <C>
Outstanding-beginning of period 2,590,093 $8.00 2,464,814 $6.98 1,654,390 $7.49
Granted 790,500 13.71 785,250 11.66 1,400,500 6.27
Exercised (305,179) 4.95 (342,628) 6.07 (197,702) 2.02
Canceled or expired (173,437) 9.54 (317,343) 11.22 (392,374) 8.98
---------- ---------- ----------
Outstanding-end of period 2,901,977 $9.78 2,590,093 $8.00 2,464,814 $6.98
========== ========== ==========
Exercisable-end of period 1,013,977 802,110 829,850
========== ========== ==========
</TABLE>
The following table summarizes information about stock options
outstanding at December 31, 1997:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
-------------------------------- ---------------------------------------
Weighted-
average Weighted- Weighted-
remaining avaerage average
Range of exercise Outstanding at contractural exercise Exersiable at exercise
price 12/31/97 life price 12/31/97 price
- ---------------------- -------------- -------------- --------- ------------- ---------
<S> <C> <C> <C> <C> <C>
$0.35 to $5.38 618,999 7.17 $5.05 307,499 $4.75
5.81 to 7.38 537,750 6.39 6.88 339,000 6.86
7.50 to 11.19 606,550 8.20 9.59 172,925 9.03
11.63 to 13.75 671,250 9.07 13.02 117,125 13.34
13.94 to 17.38 467,428 8.73 14.99 77,428 14.94
-------------- -------------
$0.35 to $17.38 2,901,977 7.93 $9.78 1,013,977 $7.95
========= ==== ===== ========= =====
</TABLE>
Stock Purchase Plan
The Company has an Employee Stock Purchase Plan, which provides for the
sale of up to 650,000 shares to eligible employees by means of payroll
deductions. Employees may designate up to 10 percent of their earnings,
as defined, to purchase shares at prices not less than 85 percent of
fair market value. From inception through December 31, 1997, 601,000
shares had been purchased at prices ranging from $4.89 to $12.75 per
share.
The fair value of the employee's purchase rights was estimated using
the Black-Scholes option pricing model with the following assumptions:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
1997 1996 1995
--------- ---------- ----------
<S> <C> <C> <C>
Dividend yield 0.0% 0.0% 0.0%
Volatility 45.1% 46.8% 46.8%
Risk free interest rate 5.4% 5.7% 6.2%
Expected term, in years 0.71 0.66 0.68
</TABLE>
The weighted average fair value for shares purchased through the
Company's Employee Stock Purchase Plan during 1997, 1996 and 1995 was
$3.97, $2.11 and $1.98, respectively.
35
<PAGE>
8. SIGNIFICANT CHARGES
-------------------
In 1997, the Company terminated an exclusive distributorship agreement
in South Africa which resulted in a charge of $1,291,000. The Company
does not expect further material charges or obligations associated with
the termination of this agreement.
In 1995, operating expenses included $9,703,000 for office
consolidations, sales and use taxes, senior management changes,
doubtful accounts receivable and other miscellaneous matters. The
Company also wrote-off $1,050,000 of capitalized software development
costs which were considered unrealizable based on anticipated future
revenues. Of the total 1995 significant charges, $8,444,000 was general
and administrative expense, $1,050,000 was amortization of capitalized
software costs, $617,000 was sales and marketing expense, $375,000 was
product development expense and $267,000 was costs of maintenance,
consulting and other services.
9. COMMITMENTS AND CONTINGENCIES
-----------------------------
The Company has operating leases for office space with varying
expiration dates through 2016, and for computer equipment with varying
expiration dates through 2001. The leases generally provide for minimum
annual rentals and payment of taxes, insurance and maintenance costs.
Rental expense for operating leases was $4,694,000 $4,009,000 and
$3,396,000 in 1997, 1996 and 1995, respectively.
At December 31, 1997, the Company had office space which was considered
excess capacity. The difference between the Company's total lease
commitments for its excess capacity and the total expected sublease
income was $930,000 and is included in short- and long-term accrued
liabilities.
Future minimum lease payments under noncancelable operating leases are
as follows (in thousands):
1998 $5,227
1999 4,824
2000 4,311
2001 3,125
2002 2,834
Thereafter 16,090
-------
Total $36,411
=======
The Company has a line of credit in the amount of $3.0 million, secured
by marketable securities. The line of credit expires on August 31,
1998. The Company has never borrowed against this line of credit. The
credit agreement provides that the Company shall maintain certain
financial ratios and contains restrictions related to various matters,
including the Company's ability to effect mergers or acquisitions
without the bank's approval and the Company's ability to pay dividends
while borrowings are outstanding under the line of credit.
In connection with the acquisition of Revere, Inc., the Company assumed
a line of credit with an outstanding balance of $1.5 million. The
outstanding balance on the assumed line of credit was subsequently paid
in full in January, 1998.
The Company is not party to any legal proceedings other than ordinary
routine litigation incidental to the Company's business. The Company
believes that the ultimate resolution of these matters will not have a
material adverse effect on the Company's consolidated financial
statements taken as a whole.
36
<PAGE>
10. FOREIGN OPERATIONS
------------------
The Company primarily operates in three geographic areas, North
America, Europe and Asia Pacific. Corporate assets consist of cash and
cash equivalents, short- and long-term investments, capitalized
software and deferred tax assets.
Geographical area data are as follows (in thousands):
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
Revenues: 1997 1996 1995
--------------------------------------------- ------- ------- -------
<S> <C> <C> <C>
North America $48,993 $44,811 $41,271
Europe 18,923 14,151 12,637
Asia Pacific 3,493 3,872 4,658
--------------------------------------------- ------- ------- -------
Total revenues $71,409 $62,834 $58,566
======= ======= =======
<CAPTION>
YEAR ENDED DECEMBER 31,
Operating income (loss): 1997 1996 1995
--------------------------------------------- ------- ------- -------
<S> <C> <C> <C>
North America ($129) ($920) ($9,399)
Europe 2,538 1,612 (3,329)
Asia Pacific (537) 108 704
Unusual charges (1) (5,891) (2,784) -
--------------------------------------------- ------- ------- -------
Total operating loss ($4,019) ($1,984) ($12,024)
======= ======= =======
<CAPTION>
DECEMBER 31,
Identifiable assets at: 1997 1996 1995
--------------------------------------------- ------- ------- -------
<S> <C> <C> <C>
North America $19,707 $8,655 $9,995
Europe 7,146 6,672 4,354
Asia Pacific 2,973 2,837 3,015
Corporate 61,508 64,155 65,134
--------------------------------------------- ------- ------- -------
Total assets $91,334 $82,319 $82,498
======= ======= =======
</TABLE>
(1) Unusual charges consists of $4,600,000 and $2,784,000 for the
write-off of purchased in-process research and development for
the years ended December 31, 1997 and 1996, respectively, and
$1,291,000 for the termination of a distributor agreement for
the year ended December 31, 1997.
11. TREASURY STOCK ACQUISITIONS
---------------------------
In 1995, the Board of Directors authorized the repurchase of 800,000
shares of the Company's outstanding common stock, not to exceed a total
cost of $6.0 million. The Board of Directors subsequently authorized
the Company to spend up to an additional $4.0 million for repurchases,
for a total cost of up to $10.0 million. As of December 31, 1997, the
Company had acquired 637,000 shares of its common stock at a cost of
$7.6 million. As of December 31, 1997, the Company had reissued 637,000
of the repurchased shares in connection with the Company's employee
stock purchase plan, one of its employee stock option plans and the
purchase acquisition of Revere, Inc.
37
<PAGE>
12. EARNINGS PER SHARE
------------------
The Company calculates basic earnings per share ("EPS") and diluted EPS
in accordance with Statement of Financial Accounting Standards ("SFAS")
No. 128, "Earnings per Share". Basic EPS is computed by dividing net
income (loss) by the weighted average number of common shares
outstanding for that period. Diluted EPS takes into account the effect
of dilutive instruments, such as stock options, and uses the average
share price for the period in determining the number of incremental
shares that are to be added to the weighted average number of shares
outstanding. Diluted EPS for 1997, 1996 and 1995 excludes any effect of
such instruments because their inclusion would be antidilutive.
The following is a summary of the calculation of the number of shares
used in calculating basic and diluted EPS:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
1997 1996 1995
------ ------ ------
<S> <C> <C> <C>
Shares used to compute basic EPS 13,291 13,223 12,998
Add: effect of dilutive securities - - -
------ ------ ------
Shares used to compute diluted EPS 13,291 13,223 12,998
====== ====== ======
</TABLE>
38
<PAGE>
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
Not applicable.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this Item is incorporated herein by reference to the
Company's Proxy Statement in connection with its 1998 Annual Meeting of
Stockholders under the captions "Proposal 1 - Election of Directors,"
"Additional Information - Management" and "Additional Information - Section
16(a) Beneficial Ownership Reporting Compliance."
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item is incorporated herein by reference to the
Company's Proxy Statement in connection with its 1998 Annual Meeting of
Stockholders under the caption "Executive Compensation."
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this Item is incorporated herein by reference to the
Company's Proxy Statement in connection with its 1998 Annual Meeting of
Stockholders under the caption "Security Ownership of Certain Beneficial Owners
and Management."
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item is incorporated herein by reference to the
Company's Proxy Statement in connection with its 1998 Annual Meeting of
Stockholders under the caption "Certain Transactions."
39
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) Documents filed as part of this report.
<TABLE>
<CAPTION>
1. Consolidated Financial Statements Page
----
<C> <S> <C>
Independent Auditors' Report........................................... 23
Consolidated Balance Sheets as of December 31, 1997
and December 31, 1996................................................. 24
Consolidated Statements of Operations for the years ended
December 31, 1997, 1996 and 1995...................................... 25
Consolidated Statements of Stockholders' Equity for the years
ended December 31, 1997, 1996 and 1995................................ 26
Consolidated Statements of Cash Flows for the years ended
December 31, 1997, 1996 and 1995...................................... 27
Notes to Consolidated Financial Statements............................. 28
2. Consolidated Financial Statement Schedule Page
----
Schedule II - Valuation and Qualifying Accounts........................ 45
</TABLE>
All other financial statement schedules not listed above are omitted
as the required information is not applicable or the information is
presented in the consolidated financial statements or related notes.
3. Exhibits
The following exhibits are filed herewith or incorporated by
reference:
Exhibit
Number Description of Document
------ -----------------------
2.1 Agreement and Plan of Reorganization dated as of October 29,
1997, amount the Registrant, Copper Acquisition Sub, and
Revere, Inc.(10)
3.1 The Company's Amended and Restated Certificate of
Incorporation.(3)
3.2 Bylaws of Registrant.(4)
10.1 Form of Indemnity Agreement entered into between the
Registrant and its directors and officers.(4)
10.2 1992 Employee Stock Purchase Plan, as amended to date.(7)
10.3 1989 Employee Stock Option Plan and related forms of Incentive
Stock Option Grant and Supplemental Stock Option Grant.(4)
40
<PAGE>
10.4 1986 Employee Stock Purchase Plan and related form of Employee
Stock Purchase Agreement.(4)
10.5 Purchase and Sale Agreement between Registrant and Global
Software, Inc., dated as of August 31, 1990.(4)
10.6 Lease between Registrant and Marathon U. S. Realties, Inc.,
dated October 20, 1988 and Amendment No. 1, dated as of
October 31, 1990.(4)
10.7 Lease between Registrant and Chicago Title and Trust Company,
dated as of December 3, 1990.(4)
10.8 Agreement for Lease between Registrant, Walker Interactive
Products International and Alton House Limited, dated as of
March 18, 1991.(4)
10.9 1993 Non-Employee Directors' Stock Option Plan, as amended to
date.(8)
10.10 1994 Equity Incentive Plan.(2)
10.11 Agreement for the Sale and Purchase of The Solutions Group
Limited by and among Walker Interactive Products
International, and Adrian J. Dixon and Nigel G. Heath,
dated as of June 30, 1995.(1)
10.12 Form of Executive Employment Agreement entered into between
Registrant and certain of its officers.(6)
10.13 1995 Executive Employment Agreement between the Registrant
and Leonard Y. Liu.(5)
10.14 1995 Non-Statutory Stock Option Plan for Non-Officer
Employees, as amended to date.(9)
10.15 Lease between Registrant and Equitable Assurance Society of
the United States, dated November 25, 1997.
21.1 Subsidiaries.
23.1 Independent Auditors' Consent.
24.1 Power of Attorney. Reference is made to the signature page.
27.1 Financial Data Schedule for fiscal year ended December 31,
1997 (electronic filing only)
27.2 Restated Financial Data Schedule for fiscal year ended
December 31, 1996 (electronic filing only)
List of Management Contracts and Compensatory Plans:
1992 Employee Stock Purchase Plan, as amended to date.(7)
1989 Employee Stock Option Plan and related form of Incentive
Stock Option Grant and Supplemental Stock Option Grant.(4)
1986 Employee Stock Purchase Plan and related form of Employee
Stock Purchase Agreement.(4)
1993 Non-Employee Directors' Stock Option Plan, as amended to
date.(8)
1994 Equity Incentive Plan.(2)
1995 Non-Statutory Stock Option Plan for Non-Officer Employees,
as amended to date.(9)
Form of Indemnity Agreement entered into between Registrant and
its directors and officers.(4)
41
<PAGE>
Form of Executive Employment Agreement entered into between
Registrant and certain of its officers.(6)
1995 Executive Employment Agreement between the Registrant and
Leonard Y. Liu.(5)
(b) Reports on Form 8-K
During the quarter ended December 31, 1997, the Company filed the
following report on
Form 8-K:
1. Report on Form 8-K dated December 2, 1997 and filed on December 11,
1997, announcing the acquisition of all the outstanding equity
interests of Revere, Inc., a Delaware corporation pursuant to an
Agreement and Plan of Reorganization dated as of October 29, 1997.
Upon consummation of such acquisition, Revere, Inc. became a wholly-
owned subsidiary of the Company.
_______________
(1) Incorporated by reference to the corresponding exhibit to the Current
Report on Form 8-K, filed July 13, 1995.
(2) Incorporated by reference to the corresponding exhibit to the Annual Report
on Form 10-K for the year ending December 31, 1993.
(3) Incorporated by reference to the corresponding exhibit to the Annual Report
on Form 10-K for the year ending December 31, 1992.
(4) Incorporated by reference to the corresponding exhibit to the Registration
Statement on Form S-1, as amended (Registration No. 33-45737).
(5) Incorporated by reference to the corresponding exhibit to the Quarterly
Report on Form 10-Q for the quarter ending September 30,1995.
(6) Incorporated by reference to the corresponding exhibit to the Annual Report
on Form 10-K for the year ending December 31, 1995.
(7) Incorporated by reference to the corresponding exhibit to the Registration
Statement on Form S-8, as amended (Registration No. 333-02942).
(8) Incorporated by reference to the corresponding exhibit to the Registration
Statement on Form S-8, as amended (Registration No. 333-08629).
(9) Incorporated by reference to the corresponding exhibit to the Registration
Statement on Form S-8, as amended (Registration No. 333-39913).
(10) Incorporated by reference to the corresponding exhibit to the Current
Report on Form 8-K, filed December 11, 1997.
42
<PAGE>
WALKER INTERACTIVE SYSTEMS, INC.
FORM 10-K
SIGNATURES
Pursuant to the requirements of Sections 13 or 15(d) 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.
WALKER INTERACTIVE SYSTEMS, INC.
--------------------------------
(Registrant)
Date: March 30, 1998 By: /s/ LEONARD Y. LIU
----------------------
Leonard Y. Liu
Chairman of the Board of Directors,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Leonard Y. Liu and Bruce C. Pollock, and each or
any one of them, his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments
to this Report, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisiste and
necessary to be done in connection therewith, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or his or
her substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this Report
has been signed below by the following persons on behalf of the Registrant and
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- ------------------------------ -------------------------------------- --------------
<S> <C> <C>
/s/ LEONARD Y. LIU Chairman of the Board of Directors. March 30, 1998
- ------------------------------ President and Chief Executive Officer
Leonard Y. Liu (Principal Executive Officer)
/s/ BRUCE C. POLLOCK Senior Vice President, Chief Financial March 30, 1998
- ------------------------------ Officer and Assistant Secretary
Bruce C. Pollock (Principal Financial Officer)
/s/ BARBARA M. HUBBARD Vice President, Corporate Controller March 30, 1998
- ------------------------------ (Principal Accounting Officer)
Barbara M. Hubbard
/s/ RICHARD C. ALBERDING Director March 30, 1998
- ------------------------------
Richard C. Alberding
/s/ TANIA AMOCHAEV Director March 30, 1998
- ------------------------------
Tania Amochaev
/s/ WILLIAM A. HASLER Director March 30, 1998
- ------------------------------
William A. Hasler
</TABLE>
43
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ JOHN M. LILLIE Director March 30, 1998
- ------------------------------
John M. Lillie
/s/ DAVID C. WETMORE Director March 30, 1998
- ------------------------------
David C. Wetmore
</TABLE>
44
<PAGE>
SCHEDULE II
WALKER INTERACTIVE SYSTEMS, INC.
FORM 10-K
VALUATION AND QUALIFYING ACCOUNTS
(In thousands)
<TABLE>
<CAPTION>
Additions
Balance at Charged to Amounts Balance at
Allowance for Doubtful Beginning of Costs and Written End of
Accounts: Period Expenses -Off Other (1) Period
- ---------------------- ------------ ---------- ------- --------- ----------
<S> <C> <C> <C> <C> <C>
Year Ended December 31, 1997 $1,584 $ 823 $1,381 $350 $1,376
Year Ended December 31, 1996 1,290 1,076 782 - 1,584
Year Ended December 31, 1995 703 1,353 766 - 1,290
</TABLE>
(1) Related to the Company's acquisition of Revere.
45
<PAGE>
WALKER INTERACTIVE SYSTEMS, INC.
FORM 10-K
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Numbered
Number Description of Document Page
------- ----------------------- ------------
<C> <S> <C>
10.15 Lease between Registrant
and Equitable Assurance
Society of the United 47
States, dated November 25, 1997
21.1 Subsidiaries 84
23.1 Independent Auditors' Consent 85
</TABLE>
46
<PAGE>
Exhibit 10.15
OFFICE LEASE
between
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES,
a New York corporation
as Landlord
and
WALKER INTERACTIVE SYSTEMS, INC.
as Tenant
47
<PAGE>
OFFICE LEASE
BASIC LEASE INFORMATION
<TABLE>
<CAPTION>
Article:
<C> <S>
A. Date: August 25, 1997
B. Landlord: THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES,
a New York corporation
C. Tenant: Walker Interactive Systems
D. Building (Paragraph 1(a)): 303 Second Street, San Francisco, CA
E. Premises (Paragraph 1(b)):
Approximately 72,299 rentable square feet consisting of Suites 300N, 375S, and 306S; and 1,800
rentable square feet of storage space known as Suite 304S.
F. Term Commencement (Paragraph 2): October 1, 1997
G. Term Expiration (Paragraph 2): September 30, 2007
H. Base Rent (Paragraph 3 (a)):
10/1/1997 - 9/30/1999 $150,622.92 per month, and $1,807,475 per year
10/1/1999 - 9/30/2002 $162,672.75 per month, and $1,952,073 per year
10/1/2002 - 9/30/2004 $180,747.50 per month, and $2,168,970 per year
10/1/2004 - 9/30/2007 $198,822.25 per month, and $2,385,867 per year
Storage Space 10/1/1997 - 9/30/2007 $2,250 per month, and $27,000 per year
-------------
I. Base Expense Year (Paragraph 1(c)): 1997
J. Base Tax Year (Paragraph 1(c)): 1997
K. Tenant's Expense Share (Paragraph 4(a)): 10.63%
L. Tenant's Tax Share (Paragraph 4(a)): 10.63%
M. Security Deposit (Paragraph 32): Existing Deposit of $70,699.34 on account
with Landlord to be transferred from lease dated October 20, 1998 to this lease.
N. Real Estate Broker (if any): See Q Below
</TABLE>
48
<PAGE>
<TABLE>
<CAPTION>
<C> <S>
O. Tenant's Address
for Notices (Paragraph 34):
Walker Interactive Systems, Inc.
303 Second Street, Suite 300N
San Francisco CA 94107
Attention: Chief Financial Officer
P. Landlord's Address
for Notices (Paragraph 34):
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
Vice President Asset Management
One Bush Street, Suite 1200
San Francisco, CA 94104
with a copy to:
COMPASS Management and Leasing, Inc.
303 2nd Street
San Francisco, CA 94107
Q. Brokers (Paragraph 49 ): Colliers Damner Pike
Two Embarcadero Center, Suite 1000
San Francisco, CA 94111
COMPASS Management and Leasing , Inc.
One Bush Street, Suite 1200
San Francisco, CA 94104
R. Exhibit(s) and Addendum (Paragraph 41):
First Addendum to Office Lease
Exhibit A: Floor Plan
Exhibit B: Rules and Regulations
Exhibit C: Work Letter
Exhibit D: Commencement of Term Agreement
Inserts to Lease
</TABLE>
The provisions of the Lease identified above in parentheses are those provisions
where references to particular Basic Lease Information appear. Each such
reference shall incorporate the applicable Basic Lease Information. In the
event of any conflict between any Basic Lease Information and the Lease, the
latter shall control.
TENANT LANDLORD
Walker Interactive Systems, Inc. THE EQUITABLE LIFE ASSURANCE
By: /s/ BARBARA M. HUBBARD By: /s/ DOUGLAS L. BROWN
-------------------------- -----------------------
Its: Vice President Its: Vice President
--------------- --------------
By: /s/ CHRISTINE A. CHERRY
--------------------------
Its: Asst. Secretary
---------------
49
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
CLAUSE CLAUSE HEADINGS
- ------------------- ---------------------------------------------------------
<C> <S>
1 DEFINITIONS
2 TERM; CONDITION OF PREMISES
3 RENTAL
4 ESCALATION RENT PAYMENTS
5 USE
6 SERVICES
7 IMPOSITIONS PAYABLE BY TENANT
8 ALTERATIONS
9 LIENS
10 REPAIRS
11 DESTRUCTION OR DAMAGE
12 INSURANCE
13 SUBROGATION
14 INDEMNIFICATION
15 COMPLIANCE WITH LEGAL REQUIREMENTS
16 ASSIGNMENT AND SUBLETTING
17 RULES; NO DISCRIMINATION
18 ENTRY BY LANDLORD
19 EVENTS OF DEFAULT
20 TERMINATION UPON DEFAULT
21 CONTINUATION AFTER DEFAULT
22 OTHER RELIEF
23 LANDLORD'S RIGHT TO CURE DEFAULTS
24 ATTORNEYS' FEES
25 EMINENT DOMAIN
26 SUBORDINATION
27 NO MERGER
28 SALE
29 ESTOPPEL CERTIFICATE
30 NO LIGHT, AIR, OR VIEW EASEMENT
31 HOLDING OVER
32 SECURITY DEPOSIT
33 WAIVER
34 NOTICES AND CONSENTS
35 COMPLETE AGREEMENT
36 CORPORATE AUTHORITY
37 PARTNERSHIP AUTHORITY
38 LIMITATION OF LIABILITY TO BUILDING
39 BROKERS
40 MISCELLANEOUS
41 ABANDONMENT
42 SUBSTITUTION OF PREMISES
43 AMERICANS WITH DISABILITIES ACT AND SIMILAR ACTS
44 EXHIBITS
45 LANDLORD'S LIABILITY; SALE OF BUILDING
46 LIGHT AND AIR
47 NAME OF BUILDING
48 HAZARDOUS SUBSTANCE DISCLOSURE
49 REAL ESTATE BROKERS
</TABLE>
50
<PAGE>
Exhibit A: Floor Plan (excluded for electronic filing)
Exhibit B: Rules and Regulations
Exhibit C: Work Letter
Exhibit D: Commencement of Term Agreement
51
<PAGE>
OFFICE LEASE
THIS LEASE, dated November 17, 1997, for purposes of reference only, is
made and entered into by and between The Equitable Life Assurance Society of the
United States ("Landlord") and Walker Interactive Systems, Inc. ("Tenant").
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord
the premises described in paragraph 1 (b) below for the term and subject to the
terms, covenants, agreements and conditions hereinafter set forth, to each and
all of which Landlord and Tenant hereby mutually agree.
1. Definitions. Unless the context otherwise specifies or requires, the
------------
following terms shall have the meanings herein specified:
(a) The term "Building" shall mean the land, building or buildings,
other improvements and other real property described in the Basic Lease
Information, as well as any property interest in the area of the streets
bounding the parcel described in the Basic Lease Information, and all other
improvements on or appurtenances to said parcel or said streets.
(b) The term "Premises" shall mean the portion of the Building located
on the floor(s) specified in the Basic Lease Information which is crosshatched
on the floor plan(s) attached to this Lease as Exhibit A.
---------
(c) The term "Base Expense Year" shall mean the calendar year
specified in the Basic Lease Information as the Base Expense Year.
(d) The term "Base Tax Year" shall mean the calendar year specified in
the Basic Lease Information as the Base Tax Year.
2. Term; Condition of Premises. The term of this Lease shall commence
----------------------------
and, unless sooner terminated as hereinafter provided, shall end on the dates
respectively specified in the Basic Lease Information. Unless otherwise agreed
by Landlord and Tenant in this Lease, Landlord shall deliver the Premises to
Tenant on the commencement of the term in their then existing condition with no
alterations being made by Landlord. If Landlord has undertaken in this Lease to
make any alterations to the Premises prior to commencement of the term and the
alterations are completed prior to the date set forth in the Basic Lease
Information for commencement of the term, if Tenant desires to take occupancy in
advance of such date and Landlord consents to such prior occupancy, Landlord
shall deliver the Premises to Tenant on such advance date as shall be mutually
approved by Landlord and Tenant and, notwithstanding anything to the contrary
contained herein, the term of this Lease shall commence upon such delivery. If
Landlord, for any reason whatsoever, cannot deliver the Premises to Tenant at
the commencement of the term, this Lease shall not be void or voidable, nor
shall Landlord be liable to Tenant for any loss or damage resulting therefrom,
but in that event rental shall be waived for the period between the commencement
of the term and the time when Landlord delivers the Premises to Tenant. No
delay in delivery of the Premises shall operate to extend the term hereof.
3. Rental.
-------
(a) Tenant shall pay to Landlord throughout the term of this Lease as
rental for the Premises the sum specified in the Basic Lease Information as the
Base Rent. As additional rental hereunder, Tenant shall pay to Landlord the
additional charges described in paragraph 4 below.
(b) Monthly rental shall be paid to Landlord on or before the first
day of the term hereof and on or before the first day of each and every
successive calendar month thereafter during the term hereof. In the
52
<PAGE>
event the term of this Lease commences on a day other than the first day of a
calendar month or ends on a day other than the last day of a calendar month, the
monthly rental for the first and last fractional months of the term hereof shall
be appropriately prorated.
(c) All sums of money due from Tenant hereunder not specifically
characterized as rental shall constitute additional rent, and if any such sum is
not paid when due it shall nonetheless be collectible as additional rent with
the next installment of rental thereafter falling due, but nothing contained
herein shall be deemed to suspend or delay the payment of any sum of money at
the time it becomes due and payable hereunder, or to limit any other remedy of
Landlord.
(d) Tenant hereby acknowledges that late payment by Tenant to Landlord
of rent and other sums due hereunder after the expiration of any applicable
grace period described in paragraph 19(a) will cause Landlord to incur costs not
contemplated by this Lease, the exact amounts of which will be difficult to
ascertain. Such costs include, but are not limited to, processing and
accounting charges, and late charges which may be imposed on Landlord by the
terms of any encumbrances covering the Building and the Premises. Accordingly,
if any installment of rent or any other sums due from Tenant shall not be
received by Landlord prior to the expiration of any applicable grace period
described in paragraph 19 (a), Tenant shall pay to Landlord a late charge equal
to (5%) of such overdue amount. The parties hereby agree that such late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant based on the circumstances existing as of the
date of this Lease. Acceptance of such late charge by Landlord shall in no
event constitute a waiver of Tenant's default with respect to such overdue
amount, nor prevent Landlord from exercising any of the other rights and
remedies granted hereunder.
(e) Any amount due from Tenant, if not paid when first due, shall bear
interest from the date due until paid at an annual rate equal to 4% over the
annual prime rate of interest announced publicly by Citibank, N.A. in New York,
New York from time to time (but in no event in excess of the maximum rate of
interest permitted by law), provided that interest shall not be payable on late
charges incurred by Tenant nor on any amounts upon which late charges are paid
by Tenant to the extent such interest would cause the total interest to be in
excess of that legally permitted. Payment of interest shall not excuse or cure
any default hereunder by Tenant.
(f) All payments due from Tenant shall be paid to Landlord, without
deduction or offset, in lawful money of the United States of America at
Landlord's address for notices hereunder, or to such other person or at such
other place as Landlord may from time to time designate by notice to Tenant.
4. Additional Charges for Expenses and Real Estate Taxes
(a) For purposes of this Paragraph 4, the following terms shall have
the meanings hereinafter set forth:
(i) "Tenant's Tax Share" and "Tenant's Expense Share" mean the
percentage figures so specified in the Basic Lease Information. Tenant's Tax
Share and/or Tenant's Expense Share may be adjusted by Landlord as a result of
any change in the rentable area of the Premises or the total rentable area of
the Building.
(ii) "Tax Year" means each twelve (12) consecutive month period
commencing January 1st of each year during the Term, including, without
limitation, any partial year during which the Lease may commence; provided that
Landlord, upon notice to Tenant, may change the Tax Year from time to time to
any other twelve (12) consecutive month period and, in the event of any such
change, Tenant's Tax Share of Real Estate Taxes shall be equitably adjusted for
the Tax Year involved in any such change.
(iii) "Real Estate Taxes" means all taxes, assessments and charges
of any kind whatsoever levied upon or with respect to the Building or any
personal property of Landlord used in the operation thereof, or Landlord's
interest in the Building or such personal property. Real Estate Taxes shall
include, without limitation: all general real property taxes and general and
special assessments, charges, fees, or assessments for transit, housing, police,
fire, or other governmental services or purported benefits to the Building or
the occupants
53
<PAGE>
thereof, service payments in lieu of taxes, business taxes, and any tax, fee, or
excise on the act of entering into this Lease or any other lease of space in the
Building, or on the use or occupancy of the Building or any part thereof, or on
the rent payable under any lease or in connection with the business of renting
space in the Building, that are now or hereafter levied or assessed against
Landlord by the United States of America, the State of California or any
political subdivision thereof, public corporation, district, or any other
political or public entity, and shall also include any other tax, fee, charge or
other excise, however described, that may be levied or assessed as a substitute
for, or as an addition to, in whole or in part, any other Real Estate Taxes,
whether or not now customary or in the contemplation of the parties on the date
of this Lease. Real Estate Taxes shall not include franchise, transfer,
inheritance, or capital stock taxes or income taxes measured by the net income
of Landlord from all sources unless, due to a change in the method of taxation,
any of such taxes is levied or assessed against Landlord as a substitute for, or
as an addition to, in whole or in part, any other tax that would otherwise
constitute a Real Estate Tax. Real Estate Taxes shall also include legal fees,
costs, and disbursements incurred in connection with proceedings to contest,
determine, or reduce Real Estate Taxes.
(iv) "Expense Year" means each twelve (12) consecutive month
period commencing January 1st of each year during the Term, including, without
any limitation, any partial year during which the Lease may commence; provided
that Landlord, upon notice to Tenant, may change the Expense Year from time to
time to any other twelve (12) consecutive month period and, in the event of any
such change, Tenant's Expense Share of Expenses shall be equitably adjusted for
the Expense Years involved in any such change.
(v) "Expenses" means the total costs and expenses paid or incurred
by Landlord in connection with the ownership, management, operation, maintenance
and repair of the Building, including, without limitation: (i) the cost of air
conditioning, electricity, steam, water, heating, mechanical, telephone,
ventilating, escalator and elevator systems and all other utilities; (ii) the
cost of repairs and replacements and all labor and material costs related
thereto, and the cost of general maintenance, cleaning and service contracts and
the cost of all supplies, tools and equipment required in connection thereof;
(iii) the cost of the Building delivery and messenger service; (iv) the cost
incurred by Landlord for all insurance carried on the Building or in connection
with the use and/or occupancy thereof and the amount of any deductible on
uninsured loss; (v) wages, salaries, payroll taxes and other labor costs and
employee benefits; (vi) management fees; (vii) fees, charges and other costs of
all independent contractors engaged by Landlord; (viii) accounting and legal
expenses; (ix) Landlord's share of any shared expenses under any reciprocal
easement agreement or similar document; (x) depreciation on personal property,
including, without limitation, carpeting in public corridor and common areas and
window coverings provided by Landlord; (xi) the rental paid for offices in the
Building for the property manager and related management and operations
personnel; (xii) the cost of any capital improvements made to the Building after
completion of its construction as a labor-saving or energy saving device or to
enhance the health and safety of the public (including tenants) or to effect
other economies in the operation or maintenance of the Building, or made to the
Building after the date of this Lease that are required under any governmental
law or regulation or insurance carrier that was not applicable to the Building
at the time that permits for the construction thereof were obtained, such cost
to be amortized over such period as Landlord shall determine (including, without
limitation, with respect to any improvements which result in cost savings with
respect to the Building, such period as would allow Landlord to amortize the
improvements to the extent of such cost savings in any year or to any greater
extent deemed appropriate to Landlord), together with interest on the
unamortized balance at the rate of ten percent (10%) per annum or such higher
rate as may have been paid by Landlord on funds borrowed for the purpose of
constructing such capital improvements; (xiii) the amortized cost of the Transit
Impact Development Fee of the City and County of San Francisco; (xiv) the cost
of contesting the validity or applicability of any governmental enactments which
may affect operating expenses; (xv) the costs of public art; and (xvi) any other
expenses and costs of any kind whatsoever incurred in connection with the
ownership, management, operation, maintenance and repair of the Building
including, without limitation, capital expenditures required to bring the
Building into compliance with laws enacted after the Building's temporary
certificate of occupancy or the equivalent is validly issued. Expenses shall not
include Real Estate Taxes, the cost of Tenant Improvements, real estate broker's
commissions, or interest or principal payments on loans which are secured by a
deed of trust or mortgage encumbering the Building.
Notwithstanding anything to the contrary contained herein, the following shall
not Expenses:
54
<PAGE>
1. Leasing commissions, attorneys' fees, costs, disbursements, and other
expenses incurred in connection with negotiations or disputes with
tenants, or in connection with leasing, renovating, or improving space for
tenants or prospective tenants of the Building.
2. The cost of any service sold directly to any tenant (including Tenant) for
which Landlord is fully reimbursed by such tenant as an additional charge
or rental over and above the basic rent and escalations under the lease
with that tenant.
3. Any depreciation on the structural shell of the Building (not including
the Building's operating systems).
4. All interest, loan fees and other carrying costs paid with respect to any
mortgage or deed of trust, and all rental and other payments due under any
ground or underlying lease.
5. Any compensation paid to clerks, attendants, or other persons in retail
concessions operated by Landlord (excluding the Building concierge).
6. Costs of repairs and other work occasioned by fire, windstorm, or other
casualty to the extent actually reimbursed by Landlord's insurance.
7. Wages, salaries, or other compensation paid to any executive employees
above the grade of Building manager, except that Landlord may include in
Expenses the allocable portion of wages, salaries and other compensation
paid to executive employees commensurate with the amount time spent by
such employees on Building matters as reasonably determined by Landlord.
8. Except to the extent involving the ADA, Title 24 or Other Disabilities
Laws (as such terms are defined in the Work Letter), any costs, fines, or
penalties incurred due to violations by Landlord of any applicable law;
9. The cost of correcting any building code or other violations of applicable
law which were violations prior to the Commencement Date, except for the
cost of correcting ADA, Title 24 or Other Disabilities Laws violations
which Landlord may include in Expenses.
10. The cost of removing (not including containment or other maintenance) any
contamination of the Building by any toxic or hazardous materials
(including, without limitation, asbestos and "PCB's") where such
contamination was not caused by Tenant, it being understood that Landlord
may include in Expenses the cost of containment and other maintenance of
toxic or hazardous materials in accordance with applicable law.
11. Expenditures for advertising individual tenant space for lease.
Actual Expenses for both the base Expense Year and each subsequent Expense Year
shall be adjusted to equal Landlord's reasonable estimate of the Expenses had
95% of the rentable area of the Building been occupied during any period in
which such space is less than 95% occupied.
Landlord and Tenant acknowledge and agree that certain costs of the ownership,
management, operation maintenance and repair of the Building may be allocated
exclusively to a single component of the Building (for example, and without
limitation, to an office area, a retail area or a parking facility) and certain
of such costs may be allocated among such components. The determination of such
costs and their allocation shall be made by Landlord in accordance with
accounting practices customarily applied by Landlord on consistent basis.
(b) Tenant shall pay to Landlord as additional rent one twelfth (1/12)
of Tenant's Tax Share of increases in the Real Estate Taxes for each Tax Year or
portion thereof during the Term after the Base Tax Year when compared to Real
Estate Taxes for the Base Tax Year (the "Tax Increases"), in advance, on or
before the first day of each month during such Tax Year, in an amount estimated
by Landlord in a writing delivered to Tenant. Landlord may revise such
estimates from time to time and Tenant will thereafter make payments on the
basis of such revised estimates.
(c) Tenant shall pay to Landlord as additional rent one twelfth (1/12)
of Tenant's Expense Share of increases in the Expenses for each Expense Year or
portion thereof during the Term after the Base Expense Year when compared to
Expenses for the Base Expense Year (the "Expense Increases"), in advance, on or
before the first day of each month during such Expense Year, in an amount
estimated by Landlord in a writing delivered to Tenant. Landlord may revise
such estimates from time to time and Tenant will thereafter make payments on the
basis of such revised estimates.
55
<PAGE>
(d) With reasonable promptness after the expiration of each Expense
Year and Tax Year after the Base Expense Year and Base Tax Year, including,
without limitation, the Expense Year and Tax Year during which this Lease
terminates, Landlord will furnish Tenant with a statement (herein called
"Landlord's Expense Statement" and "Landlord's Tax Statement"), prepared by
Landlord or its accountant, setting forth in reasonable detail the Expenses and
Real Estate Taxes for each such Expense Year and Tax Year and Tenant's Expense
Share of the Expense Increases and Tenant's Tax Share of the Tax Increases,
which statement shall be conclusive and binding upon Tenant, subject to Tenant's
audit right pursuant to Paragraph 4(g). If the total of Tenant's Expense Share
of the Expense Increases for such Expense Year as set forth in Landlord's
Expense Statement exceeds the total estimated payments for Expense Increases
paid by Tenant for such Expense Year, Tenant shall pay to Landlord (whether or
not this Lease has terminated) the difference between the total amount of
estimated payments paid by Tenant with respect to Expense Increases and the
total of Tenant's Expense Share of the actual Expense Increases within thirty
(30) days after the receipt of Landlord's Expense Statement. If the total
amount paid by Tenant for any such Expense Year shall exceed Tenant's Expense
Share of the actual Expense Increases for such Expense Year, such excess shall
be credited against the next installments of Expense Increases due from Tenant
to Landlord hereunder. If this Lease has terminated and no amounts are due or
to become due to Landlord from Tenant hereunder, any excess shall be paid to
Tenant by check within thirty (30) days after such final determination of the
actual Expenses. If the total of Tenant's Tax Share of the Tax Increases for
any Tax Year as set forth in Landlord's Tax Statement exceeds the total
estimated payments for Tax Increases paid by Tenant for such Tax Year, Tenant
shall pay to Landlord (whether or not this Lease has terminated) the difference
between the total amount of estimated payments paid by Tenant with respect to
Tax Increases and the total of Tenant's Tax Share of the actual Tax Increases
within thirty (30) days after the receipt of Landlord's Tax Statement. If the
total amount paid by Tenant for any such Tax Year shall exceed Tenant's Tax
Share of the actual Real Estate Taxes for such Tax Year, such excess shall be
credited against the next installments of Tax Increases due from Tenant to
Landlord hereunder. If this Lease has terminated and no amounts are due or to
become due to Landlord from Tenant hereunder, any excess shall be paid to Tenant
by check within a thirty (30) days after such final determination of the actual
Tax Increases. Notwithstanding anything to the contrary contained herein, in
the event that the Expenses for any subsequent Expense Year are less than
Expenses for the Base Expense Year or in the event that the Real Estate Taxes
for any Tax Year are less than the Real Estate Taxes for the Base Tax Year,
Tenant shall not be entitled to a credit against any Base Rent or other sums
payable by Tenant hereunder or to a payment from Landlord to Tenant with respect
thereto.
(e) If the commencement date or expiration date shall occur on a date
other than the first or last day, respectively, of a Tax Year and/or Expense
Year, Tenant's Tax Share of the Tax Increases and/or Tenant's Expense Share of
Expense Increases for which the commencement date or expiration date occurs
shall be prorated based on a 365-day year, but shall remain subject to
adjustment based on receipt of information after the expiration date.
(f) Without limiting Landlord's right to estimate Tenant's Expense
Share and Tenant's Tax Share even where such estimates may exceed the amounts
ultimately due from Tenant, and without liming Landlord's right in paragraph
4(a) of the Lease to adjust Expenses for 95% occupancy, in no event shall
Landlord have a right to collect from Tenant more than Tenant's Expense Share
of 100% of the applicable Expenses for any Expense year.
(g) Within one hundred twenty (120) days after receipt of Landlord's
Expense Statement, if the amount paid by Tenant during the applicable Expense
Year on account of Expense Increases has increased by more than ten percent
(10%) over the amount paid by Tenant on account of Expense Increases during the
immediately preceding Expense Year, Tenant shall have the right to audit the
books and records of Landlord applicable to the Expense Year in question.
Landlord shall make the books and records available at Landlord's office in the
Building or at such other reasonable location as Landlord shall designate,
during reasonable business hours on business days, commencing on such date as
Landlord shall designate. Such audit shall be completed within thirty (30) days
after commencement. If such audit discloses that adjustments to the Expense
Increase payable by Tenant are necessary, such adjustments shall be made in the
manner set forth in paragraph (d) above.
56
<PAGE>
Tenant's auditor shall be a certified public accountant paid on an hourly basis
and shall not be compensated on a contingency basis. Tenant shall be solely
responsible for the costs of any such audit.
5. Use.
----
(a.) The Premises shall be used for general office purposes and no
other without the prior written consent of Landlord, which may be granted or
denied in Landlord's absolute discretion. "General office purposes" shall
include reasonable software training, demonstration and development; provided
that the foregoing will in no way limit Tenant's obligation to use the Premises
in accordance with all applicable laws, statutes, ordinances and governmental
rules and regulations (including zoning ordinances).Tenant shall not do or
permit to be done in or about the Premises, nor bring or keep or permit to be
brought or kept therein, anything which is prohibited by or would in any way
conflict with any law, statute, ordinance or governmental rule or regulation now
in force or which may hereafter be enacted or promulgated, or which is
prohibited by the standard form of fire insurance policy, or would in any way
increase the existing rate of or affect any fire or other insurance upon the
Building or any of its contents, or cause a cancellation of any insurance policy
covering the Building or any part thereof or any of its contents. Tenant shall
not do or permit anything to be done in or about the Premises which would in any
way obstruct or interfere with the rights of other tenants of the Building, or
injure or annoy them, or use or allow the Premises to be used for any improper,
immoral, unlawful or objectionable purposes, nor shall Tenant cause, maintain or
permit any nuisance or waste in, on or about the Premises.
(b.) Tenant shall not cause or permit the storage, use, generation,
release, or disposal (collectively, "Handling") of any Hazardous Materials (as
defined below), in, on, or about the Premises or the Building by Tenant or any
agents, employees, contractors, licensees, subtenants, customers, guests or
invitees of Tenant (collectively with Tenant, "Tenant Parties"), except that
Tenant shall be permitted to use normal quantities of office supplies or
products (such as copier fluids or cleaning supplies) customarily used in the
conduct of general business office activities ("Common Office Chemicals"),
providing that the Handling of such Common Office Chemicals shall comply at all
times with all Hazardous Materials Laws (as defined below). Notwithstanding
anything to the contrary contained herein, however, in no event shall Tenant
permit any usage of Common Office Chemicals in a manner that may cause the
Premises or the Building to be contaminated by any Hazardous Materials or in
violation of any Hazardous Materials Laws. Tenant's obligations under this
Paragraph shall survive the expiration or other termination of this Lease. For
purposes of this Paragraph, "Hazardous Materials" means any explosive,
radioactive materials, hazardous wastes, or hazardous substances, including
without limitation, asbestos containing materials, PCB's, CFC's, or substances
defined or regulated as hazardous substances or hazardous materials in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601-9657; the Hazardous Materials Transportation Act
of 1975, 42 U.S.C. Section 1001-1012, the Resource Conservation and Recovery Act
of 1976, 42 U.S.C. Section 6901-6987; or any other Federal State or local law,
ordinance or regulation. "Hazardous Materials Laws" shall mean all Federal,
State, and local laws, ordinances and regulations defining, regulating,
restricting or otherwise governing the storage, use, generation, release or
disapproval of Hazardous Materials. Notwithstanding any of the foregoing,
Landlord hereby acknowledges and agrees that Tenant has installed in the
Premises, and shall be permitted to continue to maintain at Tenant's sole cost
and expense, a halon fire protection system in accordance with all applicable
laws and regulations (including, without limitation, all applicable
environmental laws) and any requirements reasonably imposed by Landlord with
respect thereto.
(c ) Landlord shall use reasonable efforts to keep the ambient sound
level in the Premises from exceeding 45 decibels (dBA) as a result of the
activities of another tenant in the Building; provided, however, that
"reasonable efforts" shall not include making alterations to the Premises or any
other part of the Building, nor shall Landlord have any obligation to pursue any
remedies against any other tenant of the Building. Tenant's obligations under
this Lease shall not be affected if the ambient sound level in the Premises
exceeds 45 decibels (dBA).
6. Services.
---------
57
<PAGE>
(a) Landlord shall maintain and repair the public and common areas of
the Building, including lobbies, stairs, elevators, corridors and restrooms,
windows, mechanical (including HVAC), plumbing and electrical equipment, and the
structure itself in reasonably good order and condition except for damage
occasioned by the acts of Tenant, its employees, agents, contractors or
invitees, which damage shall be repaired by Landlord at Tenant's expense.
(b) Landlord shall furnish the Premises with (1) electricity for
lighting and the operation of customary office machines, (2) heat and air
conditioning to the extent reasonably required for the comfortable occupancy by
Tenant in its use of the Premises during the period from 7 a.m. to 6 p.m. on
weekdays (except holidays), or such shorter period as may be prescribed by any
applicable policies or regulations adopted by any utility or governmental
agency, (3) elevator service, (4) lighting replacement (for building standard
lights), (5) restroom supplies, (6) window washing with reasonable frequency,
and (7) 24 hour lobby attendant services and janitor service during the times
and in the manner that such services described in clauses (4) through (7) are
customarily furnished in comparable office buildings in the area. Landlord may
establish reasonable measures to conserve energy, including but not limited to,
automatic switching of lights after hours, so long as such measures do not
unreasonably interfere with Tenant's use of the Premises. Landlord shall not be
in default hereunder or be liable for any damages directly or indirectly
resulting from, nor shall the rental herein reserved be abated, or this Lease
terminated by reason of (i) the installation, use or interruption of use of any
equipment in connection with the furnishing of any of the foregoing services,
(ii) failure to furnish or delay in furnishing any such services or by the
making of necessary repairs or improvements to the Premises or to the Building,
or (iii) the limitation, curtailment, rationing or restrictions on use of water,
electricity, gas or any other form of energy serving the Premises or the
Building imposed or requested by any governmental or quasi-governmental agency
or entity, or any other third party. Landlord shall use reasonable efforts
diligently to remedy any interruption in the furnishing of such services (except
that if an interruption in utilities or elevator service is due to Landlord's
gross negligence or willful misconduct, and such interruption continues for five
(5) consecutive business days, commencing on the sixth (6/th/) business day and
continuing until the date that such interruption ceases, rental shall abate in
an amount commensurate with the extent Tenant is prevented from conducting its
business at the Premises).
(c) Whenever heat-generating equipment or lighting other than building
standard lights are used in the Premises by Tenant which adversely affect the
temperature otherwise maintained by the air conditioning system, Landlord shall
have the right, after notice to Tenant, to install supplementary air
conditioning facilities in the Premises or otherwise modify the ventilating and
air conditioning system serving the Premises, and the reasonable cost of such
facilities and modifications shall be borne by Tenant. Tenant shall also pay
the reasonable cost of providing all cooling energy to the Premises in excess of
that required for normal office use or during hours requested by Tenant when air
conditioning is not otherwise furnished by Landlord. If there is installed in
the Premises lighting requiring power in excess of that required for normal
office use in the Building, or if there is installed in the Premises equipment
requiring power in excess of that required for normal desk-top office equipment
or normal copying equipment, Tenant shall pay for the cost of such excess power,
together with the cost of installing any additional risers or other facilities
that may be necessary to furnish such excess power to the Premises.
(d) In the event that Landlord, at Tenant's request, provides services
to Tenant that are not otherwise provided for in this Lease, Tenant shall pay
Landlord's reasonable charges for such services upon billing therefor,
including, without limitation, Landlord's then current administrative fee
therefor.
(e) In the event of any failure or interruption in performance of any
Building system, Landlord or its employees or agents shall use reasonable
efforts to notify Tenant of such failure or interruption promptly after their
knowledge of the same.
7. Impositions Payable by Tenant. In addition to the monthly rental and
------------------------------
other charges to be paid by Tenant hereunder, Tenant shall pay or reimburse
Landlord for any and all of the following items (hereinafter collectively
referred to as "Impositions"), whether or not now customary or in the
contemplation of the parties hereto: taxes (other than local, state and federal
personal or corporate income taxes measured by the net income of Landlord from
all sources), assessments (including, without limitation, all assessments for
public improvements, services or benefits, irrespective of when commenced or
completed), excises, levies, business taxes, license, permit,
58
<PAGE>
inspection and other authorization fees, transit development fees, assessments
or charges for housing funds, service payments in lieu of taxes and any other
fees or charges of any kind, which are levied, assessed, confirmed or imposed by
any public authority, but only to the extent the Impositions are: (a) upon,
measured by or reasonably attributable to the cost or value of Tenant's
equipment, furniture, fixtures and other personal property located in the
Premises, or the cost or value of any leasehold improvements made in or to the
Premises by or for Tenant, regardless of whether title to such improvements
shall be in Tenant or Landlord; (b) upon, with respect to or by reason of the
development, possession, leasing, operation, management, maintenance,
alteration, repair, use or occupancy by Tenant of the Premises or any portion
thereof; or (c) upon this transaction or any document to which Tenant is a party
creating or transferring an interest or an estate in the Premises. In the event
that it shall not be lawful for Tenant to reimburse Landlord for the Impositions
but it is lawful to increase the monthly rental to take into account Landlord's
payment of the Impositions, the monthly rental payable to Landlord shall be
revised to net Landlord the same net return without reimbursement of the
Impositions as would have been received by Landlord with reimbursement of the
Impositions.
8. Alterations.
------------
(a) Tenant shall make no alterations, additions or improvements to the
Premises or install fixtures in the Premises without first obtaining Landlord's
consent, which consent shall not be unreasonably withheld or delayed, provided
however, that Landlord may withhold its consent in its sole and absolute
discretion if there are any material modifications to any structural components
of the Building or any of the Building's operating systems, including, without
limitation, heating, ventilating, air conditioning, plumbing, electrical, and
other operating systems. Notwithstanding the foregoing, Tenant may, without
Landlord's prior consent, make alterations, additions or improvements to the
Premises or install fixtures in the Premises where ( i ) the cost of the
work will not exceed $10,000 in any calendar year, and (ii) such work does
involve any structural components of he Building or any of the Building's
operating systems, including, without limitation, heating, ventilating, air
conditioning, plumbing, electrical, and other operating systems. Tenant shall
give Landlord at least twenty (20) days prior written notice of any such work.
In connection with Tenant's request for Landlord's consent under this Lease,
Tenant shall pre-pay to Landlord a Two Hundred Fifty Dollar ($250.00) charge for
Landlord's review of applicable documents and plans, together with any third-
party costs and expenses incurred or to be incurred by Landlord related thereto.
In no event, however, may the Tenant make any alterations, additions or
improvements or install fixtures which, in Landlord's reasonable judgment, might
adversely affect the structural components of the Building or Building
mechanical, utility or life safety systems. At the time such consent is
requested, Tenant shall furnish to Landlord a description of the proposed work,
an estimate of the cost thereof and such information as shall reasonably be
requested by Landlord substantiating Tenant's ability to pay for such work.
Landlord, at its sole option, may require as a condition to the granting of such
consent to any work costing in excess of ($10,000), that Tenant provide to
Landlord, at Tenant's sole cost and expense, a lien and completion bond in an
amount equal to one and one-half (1 1/2) times any and all estimated costs of
the proposed work, to insure Landlord against any liability for mechanics' and
materialmen's liens and to insure completion of the work. Before commencing any
work (whether or not requiring Landlord's consent), Tenant shall give Landlord
at least twenty (20) days written notice of the proposed commencement of such
work in order to give Landlord an opportunity to prepare, post and record such
notice as may be permitted by law to protect Landlord's interest in the Premises
and the Building from mechanics' and materialmen's liens. Within a reasonable
period following completion of any work for which plans and specifications were
required to obtain a building permit for such work, Tenant shall furnish to
Landlord "as built" plans showing the changes made to the Premises.
(b) Any alterations, additions or improvements to the Premises shall
be made by Tenant at Tenant's sole cost and expense, and any contractor,
subcontractor or other person selected by Tenant to make the same shall be
selected from Landlord's approved bidder list. Tenant's contractor and its
subcontractors shall employ union labor to the extent necessary to insure, so
far as may be possible, the progress of the alterations, additions or
improvements and the performance of any other work or the provision of any
services in the Building without interruption on account of strikes, work
stoppage or similar causes of delay. All work performed by Tenant shall comply
with the laws, rules, orders, directions, regulations and requirements of all
governmental entities having jurisdiction over such work and shall comply with
the rules, orders, directions, regulations and requirements of any nationally
recognized board of insurance underwriters. All alterations, additions and
improvements shall
59
<PAGE>
immediately become Landlord's property and, at the end of the term hereof, shall
remain on the Premises without compensation to Tenant; provided, however, that
if required by Landlord prior to the end of the term of the Lease, Tenant shall,
prior to the end of the term, at its sole cost and expense, remove the
alterations, additions and improvements required to be removed by Landlord and
repair and restore the Premises substantially to their condition at the
commencement of the term. Notwithstanding any of the foregoing, but subject to
Tenant's obligation to repair any damage caused by the removal of such items,
all of Tenant's trade fixtures, furniture, furnishings, equipment and other
easily movable personal property not permanently affixed to the Premises shall,
subject to the provisions hereof, remain the property of Tenant. Upon Tenant's
written request, Landlord shall notify Tenant whether Landlord will require
Tenant to remove such alteration, addition or improvement when this lease
terminates.
9. Liens. Tenant shall keep the Premises and the Building free from any
------
liens (and claims thereof) arising out of any work performed, materials
furnished or obligations incurred by or for Tenant. Landlord shall have the
right to post and keep posted on the Premises any notices that may be provided
by law or which Landlord may deem to be proper for the protection of Landlord,
the Premises and the Building from such liens and claims.
10. Repairs. By entry hereunder, Tenant accepts the Premises as being in
--------
the condition in which Landlord is obligated to deliver the Premises. Tenant
shall, at all times during the term hereof and at Tenant's sole cost and
expense, keep the Premises in good condition and repair; ordinary wear and tear
and damage thereto by fire, earthquake, act of God or the elements excepted.
Tenant hereby waives all rights to make repairs at the expense of Landlord or in
lieu thereof to vacate the Premises, abate rent or terminate this Lease.
Subject to Landlord's rights to require the removal of alterations, additions
and improvements, Tenant shall at the end of the term hereof surrender to
Landlord the Premises and all Alterations thereto in substantially the same
condition as when received, ordinary wear and tear, repairs and replacements
required to be performed by Landlord under this Lease, and damage by fire,
earthquake, act of God or the elements excepted. Landlord has no obligation and
has made no promise to alter, remodel, improve, repair, decorate or paint the
Premises or any part thereof, except as specifically herein set forth. No
representations respecting the condition of the Premises or the Building have
been made by Landlord or Landlord's agents to Tenant, except as specifically
herein set forth.
11. Destruction or Damage.
-----------------------
(a) In the event the Premises or the portion of the Building necessary
for Tenant's use and enjoyment of the Premises are damaged by fire, earthquake,
act of God, the elements or other casualty, Landlord shall repair the same,
subject to the provisions of this paragraph hereinafter set forth, if (i) such
repairs can, in Landlord's opinion, be made within a period of twelve (12)
months after commencement of the repair work and (ii) the cost of repairing
damage for which Landlord is not insured shall be less than ten percent (10%) of
the then full insurable value of the Premises with respect to repairing any
damage to the Premises, or five percent (5%) of the then full insurable value of
the Building with respect to repairing any damage to other areas of the
Building. If the forgoing conditions are satisfied, This Lease shall remain in
full force and effect except that so long as the damage or destruction is not
caused by the fault or negligence of Tenant, its contractors, agents, employees
or invitees, an abatement of rental shall be allowed Tenant for such part of the
Premises as shall be rendered unusable by Tenant in the conduct of its business
during the time such part is so unusable.
(b) As soon as is reasonably possible following the occurrence of any
damage, Landlord shall notify Tenant of the estimated time and cost required for
the repair or restoration of the Premises or the portion of the Building
necessary for Tenant's occupancy. If, in Landlord's reasonable opinion, such
repairs cannot be made within twelve (12) months as set forth in subparagraph
(a) (i) above, Landlord or Tenant may elect by written notice to the other
within thirty (30) days after Landlord's notice of estimated time and cost is
given, to terminate this Lease effective as of the date of such damage or
destruction. If Landlord is not obligated to effect the repair based upon the
circumstance set forth in subparagraph (a) (ii) above, Landlord shall have the
right to terminate this Lease, by written notice to Tenant within thirty (30)
days after Landlord's notice of time and cost is given, effective as of the date
of such damage or destruction. If neither party so elects to terminate this
Lease, this Lease shall continue in
60
<PAGE>
full force and effect, but the rent shall be partially abated as herein above in
this paragraph provided, and Landlord shall proceed diligently to repair such
damage.
(c) A total destruction of the Building shall automatically terminate
this Lease. Tenant waives California Civil Code Sections 1932, 1933, 1941 and
1942 providing for (among other things) termination of hiring upon destruction
of the thing hired and the right to make repairs and to vacate the Premises
under certain conditions.
(d) In the event of a casualty damaging the Premises or the Building,
in no event shall Tenant be entitled to any compensation or damages from
Landlord, specifically including, but not limited to, any compensation or
damages for (i) loss of the use of the whole or any part of the Premises, (ii)
damage to Tenant's personal property in or improvements to the Premises, or
(iii) any inconvenience, annoyance or expense occasioned by such damage or
repair (including moving expenses and the expense of establishing and
maintaining any temporary facilities).
(e) Landlord, in repairing the Premises, shall not be required to
repair any injury or damage to the personal property of Tenant, or to make any
repairs to or replacement of any alterations, additions, improvements or
fixtures installed on the Premises by or for Tenant.
(f) In the event the Premises or the portion of the Building necessary
for Tenant's use and enjoyment of the Premises are damaged by fire, earthquake,
act of God, the elements or other casualty not involving any act or omission of
Tenant or Tenant's employees, agent, contractors or invitees, Tenant shall have
the right to terminate this Lease if (i) such damage occurs during the final
18 months of the term of this Lease (including any extension thereof pursuant
to any applicable extension option), (ii) Landlord notifies Tenant under
paragraph 11(b) that the cost of repairing the damage to the Premises or such
necessary portion of the Building will exceed $1,000,000, (iii) Landlord
notifies Tenant under paragraph 11(b) that such repairs will require more than 9
months to complete, (iv) Tenant gives Landlord written notice of its election to
terminate this Lease within 10 business days after Tenant receives Landlords
notice under paragraph 11(b), and (v) there exists no uncured Event of Default
at the time of such damage or at any time prior to the termination of this
Lease. This Lease shall terminate 30 days after Tenant elects termination
pursuant to this paragraph.
12. Insurance.
----------
(a) Tenant agrees to procure and maintain in force during the term
hereof, at Tenant's sole cost and expense, Commercial General Liability
insurance in an amount not less than Two Million Dollars ($2,000,000) combined
single limit for bodily injury and property damage for injuries to or death of
persons and property damage occurring in, on or about the Premises or the
Building. If the term of this Lease, including, without limitation, any option
terms, is for a period of more than five (5) years, then at the date which is
the fifth anniversary of the commencement of the term, the aforesaid amount of
Two Million Dollars ($2,000,000) shall be increased, which increase shall not
exceed $4,000,000 for the remainder or the initial term and $6,000,000 during
any extended term, as required by Landlord to reflect Landlord's then
requirements for the aforesaid insurance. Such policy shall name Landlord,
Landlord's managing agent and any other party designated by Landlord as
additional insureds, shall insure Landlord and Landlord's managing agent's
contingent liability as respects acts or omissions of Tenant, shall be issued by
a company licensed to do business in the State of California and otherwise
reasonably acceptable to Landlord, and shall provide that the policy may not be
canceled nor amended without thirty (30) days prior written notice to Landlord.
Tenant may carry said insurance under a blanket policy, provided however, said
insurance by Tenant shall include an endorsement confirming application to and
coverage of Landlord. Said insurance shall be primary insurance to any other
insurance that may be available to Landlord. Any other insurance available to
Landlord shall be non-contributing with and excess to this insurance.
(b) A copy of the certificate(s) of insurance shall be delivered to
Landlord by Tenant prior to commencement of the term of this Lease and upon each
renewal of such insurance.
61
<PAGE>
(c) Tenant shall, prior to and throughout the term of this Lease,
procure from each of its insurers under all policies of fire, theft, public
liability, workers' compensation and any other insurance policies of Tenant now
or hereafter existing, pertaining in any way to the Premises or the Building or
any operation therein, a waiver, as set forth in paragraph 13 of this Lease, of
all rights of subrogation which the insurer might otherwise, if at all, have
against the Landlord or any officer, agent or employee of Landlord (including,
without limitation, Landlord's managing agent).
(d) Landlord shall maintain at all times during the term of this
Lease: (i) "All-Risk" fire or other casualty insurance with extended coverage
endorsement, as Landlord deems reasonably necessary, and (ii) "Broad-Form"
comprehensive general liability insurance covering injuries occurring within the
Building, except when caused by the negligence or willful misconduct of Tenant,
its agents, employees, contractors or invitees, or Tenant's failure to perform
its obligations under this Lease. Landlord may, in its sole discretion, obtain
and maintain such other commercially reasonable coverage as a prudent landlord
similarly situated might deem necessary or desirable, including, without
limitation, earthquake coverage.
13. Waiver of Subrogation. Landlord and Tenant shall each have included
----------------------
in all policies of fire, extended coverage, business interruption and other
insurance respectively obtained by them covering the Demised Premises, the
Building and contents therein, a waiver by the insurer of all right of
subrogation against the other in connection with any loss or damage thereby
insured against. Any additional premium for such waiver shall be paid by the
primary insured. To the full extent permitted by law, Landlord and Tenant each
waives all right of recovery against the other for, and agrees to release the
other from liability for, loss or damage to the extent such loss or damage is
covered by valid and collectible insurance in effect at the time of such loss or
damage or would be covered by the insurance required to be maintained under this
Lease by the party seeking recovery.
14. Indemnification. Tenant hereby waives all claims against Landlord for
----------------
damage to any property or injury or death of any person in, upon or about the
Premises arising at any time during the term of this Lease (but such obligation
shall survive the expiration or other termination of this Lease) and from any
cause except to the extent arising by reason of gross negligence or willful act
of Landlord, its employees or contractors, or by reason of the breach of any
provision of this Lease by Landlord and Tenant shall defend Landlord against,
hold Landlord harmless from, and reimburse Landlord for any and all claims,
liabilities, damages, losses, costs and expenses, including without limitation,
reasonable attorneys' fees and costs arising out of or in any way connected with
(a) injury to or death of any person, and (b) damage to or destruction of any
property, to the extent that the events described in (a) and (b) are
attributable to or resulting from the condition, use or occupancy of the
Premises by Tenant or Tenant's failure to perform its obligations under this
Lease; except to the extent such is caused by gross negligence or willful act of
Landlord, its contractors or employees or by reason of the breach of any
provision of this Lease by Landlord. The foregoing indemnity obligation of
Tenant shall include reasonable attorneys' fees, investigation costs and all
other reasonable costs and expenses incurred by Landlord from the first notice
that injury, death or damage has occurred or that any claim or demand is to be
made or may be made. The provisions of this paragraph shall survive the
termination of this Lease with respect to any damage, injury or death occurring
prior to such termination.
15. Compliance with Legal Requirements. Tenant, at its sole cost and
-----------------------------------
expense, shall promptly comply with all laws, statutes, ordinances and
governmental rules, regulations or requirements now in force or which may
hereafter be in force; with the requirements of any board of fire underwriters
or other similar body now or hereafter constituted; with any direction or
occupancy certificate issued pursuant to any law by any public officer or
officers; as well as the provisions of all recorded documents affecting the
Premises (including, without limitation, any ground lease, mortgage or
covenants, conditions and restrictions), insofar as any thereof relate to or
affect the condition, use or occupancy of the Premises, including, without
limitation, structural, utility system and life safety system changes
necessitated by Tenant's acts, use of the Premises or by improvements made by or
for Tenant.
16. Assignment and Subletting.
--------------------------
62
<PAGE>
(a) Tenant shall not hypothecate or encumber this Lease or any
interest herein without the prior written consent of Landlord, which may be
granted or denied in Landlord's absolute discretion. Tenant shall not, without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld or delayed by Landlord, transfer or assign this Lease or any interest
herein, sublet the Premises or any part thereof, or permit the use of the
Premises by any party other than Tenant. This Lease shall not, nor shall any
interest herein, be assignable as to the interest of Tenant by operation of law
without the consent of Landlord, which consent shall not be unreasonably
withheld or delayed. Any of the foregoing acts without such consent shall be
void and shall, at the option of Landlord, terminate this Lease. In connection
with each consent requested by Tenant, Tenant shall submit to Landlord the terms
of the proposed transaction, the identity of the parties to the transaction, the
proposed documentation for the transaction, and all other information reasonably
requested by Landlord concerning the proposed transaction and the parties
involved.
(b) If the Tenant is a privately held corporation, or is an
unincorporated association or partnership, or any other entity, the transfer,
assignment, or hypothecation of any stock or interest in such corporation,
association, partnership or other entity in excess of fifty percent (50%) in the
aggregate from the Ownership existing as of the date of this Lease shall be
deemed an assignment or transfer within the meaning and provisions of this
paragraph 16. If Tenant is a publicly held corporation, the public trading of
stock in Tenant shall not be deemed an assignment or transfer within the meaning
of this paragraph.
(c) Without limiting the other instances in which it may be reasonable
for Landlord to withhold its consent to an assignment or subletting, Landlord
and Tenant acknowledge that it shall be reasonable for Landlord to withhold its
consent in the following instances:
(1) if at the time consent is requested, or at any time prior to
the granting of consent, Tenant is in default under this Lease or would be in
default under this Lease but for the pendency of any grace or cure period under
paragraph 19 below until such default or pre-default matter is cured;
(2) if the proposed assignee or sublessee is a governmental
agency;
(3) if, in Landlord's reasonable judgment, the use of the Premises
by the proposed assignee or sublessee violate the use restriction in section
5(a) would entail any alterations which would lessen the value of the leasehold
improvements in the Premises, or would conflict with any so-called "exclusive"
or percentage lease then in favor of another tenant of the Building;
(4) if, in Landlord's reasonable judgment, the financial worth of
the proposed assignee or sublessee does not meet the credit standards applied by
Landlord for other tenants under leases with comparable terms, or the character,
reputation, or business of the proposed assignee or sublessee is not consistent
with the quality of the other tenancies in the Building; and
(5) Omitted.
-------
(6) if the proposed assignee or sublessee is an existing tenant
of the Building.
(d) If, at any time during the term of this Lease, Tenant desires to
assign its interest in this Lease or sublet all or any part of the Premises,
Tenant shall give notice to Landlord setting forth the terms of the proposed
assignment or subletting ("Tenant's Notice"). Landlord shall have the option,
exercisable by notice given to Tenant within thirty (30) days after Tenant's
Notice is given ("Landlord's Option Period"), either (1) to consent to the
assignment, in which event the provisions of subparagraph (g) shall be
applicable, or to consent to the subletting in which event the provisions of
subparagraph (h) shall be applicable; (2) to become the assignee or sublessee of
Tenant (instead of the entity specified in Tenant's Notice) upon the terms set
forth in Tenant's Notice; (3) in the event of a proposed assignment, to
terminate this Lease and to retake possession of the Premises; (4) in the event
of a proposed subletting of the entire Premises, or a portion of the Premises
for all or substantially all of the remainder of the term, to terminate this
Lease with respect to, and to retake possession of, the space in question,
together with, if only a portion of the Premises is involved, such rights of
access to and from such portion as may be reasonably
63
<PAGE>
required for its use and enjoyment; or 5) to disapprove the proposed assignment
or subletting. Landlord shall not have the termination right set forth in clause
(4) of the preceding sentence if (i) the term of the sublease is less than three
years (including any extension options) and the term of such sublease is less
than three years (including any extension options) and the term of such sublease
will expire prior to the expiration of the term of the Lease, and (ii) such
sublease, together with all other subleases of the Premises, does not cover 25%
or more of the rentable square footage of the Premises.
(e) The provisions of subparagraphs (a) and (b) above notwithstanding,
Tenant may assign this Lease or sublet the Premises or any portion thereof, with
prior notice to Landlord but without the necessity of Landlord's consent and
without extending any option to Landlord pursuant to subparagraph (d) above, to
any corporation which controls, is controlled by or is under common control with
Tenant as of the date of this Lease.
(f) No sublessee (other than Landlord if it exercises its option
pursuant to subparagraph (d) above) shall have a right further to sublet without
Landlord's prior consent, which Tenant acknowledges may be withheld in
Landlord's absolute discretion, and any assignment by a sublessee of its
sublease shall be subject to Landlord's prior consent in the same manner as if
Tenant were entering into a new sublease. No sublease, once consented to by
Landlord, shall be modified or terminated by Tenant, except as provided therein,
without Landlord's prior consent, which consent shall not be unreasonably
withheld.
(g) In the case of an assignment to an entity other than Landlord,
(100%) of any sums above the rate paid by Tenant, or other economic
consideration received by Tenant as a result of such assignment, shall be paid
to Landlord after first deducting the unamortized cost of reasonable leasehold
improvements paid for by Tenant, the cost of any real estate commissions
incurred by Tenant in connection with such assignment, reasonable advertising
expenses and reasonable attorneys' fees.
(h) In the case of a subletting to an entity other than Landlord,
(100%) of any sums or economic consideration received by Tenant as a result of
such subletting shall be paid to Landlord after first deducting (1) the rental
due hereunder, prorated to reflect only rental allocable to the sublet portion
of the Premises, (2) the cost of leasehold improvements made to the sublet
portion of the Premises at Tenant's cost, amortized over the term of this Lease
(with interest at the prime rate, plus 2% per annum) except for leasehold
improvements made for the specific benefit of the sublessee, which shall be
amortized over the term of the sublease, and (3) the cost of any real estate
commissions incurred by Tenant in connection with such subletting, amortized
over the term of the sublease, (4) reasonable attorneys' fees, and (5)
reasonable advertising expenses.
(i) Regardless of Landlord's consent and regardless of whether
Landlord consent is required pursuant to the terms hereof, no subletting or
assignment shall release Tenant of Tenant's obligation or alter the primary
liability of Tenant to pay the rental and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of rental by Landlord from any
other person shall not be deemed to be a waiver by Landlord of any provision
hereof. Consent to one assignment or subletting shall not be deemed consent to
any subsequent assignment or subletting. In the event of default by any
assignee of Tenant or any successor of Tenant in the performance of any of the
terms hereof, Landlord may proceed directly against Tenant without the necessity
of exhausting remedies against such assignee or successor. Landlord may consent
to subsequent assignments or subletting of this Lease or amendments or
modifications to this Lease with assignees of Tenant, without notifying Tenant,
or any successor of Tenant, and without obtaining its or their consent thereto,
and such action shall not relieve Tenant of liability under this Lease.
(j) In the event Tenant shall assign this Lease or sublet the Premises
or request the consent of Landlord to any assignment, subletting, hypothecation
or other action requiring Landlord's consent hereunder, the Tenant shall pay
Landlord's reasonable and standard processing fee (which currently is Five
Hundred Dollars ($500.00) in each instance and Landlord's reasonable attorneys'
fees and costs incurred in connection therewith. In no event shall any of these
costs be reimbursable to Tenant.
64
<PAGE>
(k) Notwithstanding anything to the contrary contained herein, any and all
unexercised options to extend or renew the term of the Lease or to expand the
Premises and any and all rights of first refusal and similar rights are intended
by both Landlord and Tenant to be personal to
Walker Interactive Systems, Inc. and its assignees under Paragraph 16(e) above
and are not intended to benefit any other assignee or sublessee hereunder. Upon
any assignment or subletting of the Premises or any portion thereof, any such
options or rights shall automatically and without any further action by Landlord
terminate and be of no further force and effect. A sublease of a portion of the
Premises shall not terminate any unexercised options to extend or renew the term
of this Lease, provided that such sublease, together with all other subleases of
the Premises, does not cover 15,000 rentable square feet or more of the
Premises. The preceding sentence does not apply to expansion options, rights of
first refusal or similar rights.
17. Rules; No Discrimination. Tenant shall faithfully observe and
-------------------------
comply with the rules and regulations annexed to this Lease as Exhibit B, and
after notice thereof, all reasonable modifications thereof and additions thereto
from time to time promulgated in writing by Landlord, provided that any such
modifications and additions shall not materially interfere with Tenant's use of
the Premises. In the event of any conflict between the rules and regulations,
as the same may be amended from time to time, and this Lease, this Lease shall
prevail. Landlord shall not be responsible to Tenant for the nonperformance by
any other tenant or occupant of the Building of any of said rules and
regulations. Tenant specifically covenants and agrees that Tenant shall not
discriminate against or segregate any person or group of persons on account of
race, sex, creed, color, national origin, or ancestry in the occupancy, use,
sublease, tenure or enjoyment of the Premises.
18. Entry by Landlord. Landlord may enter the Premises at
------------------
reasonable hours upon prior telephonic notice to the Chief Financial Officer at
(415) 495-8811 or other notice in accordance with Paragraph 3.4 (except in the
case of an emergency) to (a) inspect the same; (b) exhibit the same to
prospective purchasers, lenders or tenants, provided, however, that Landlord
shall only exhibit the Premises to prospective tenants during the final ninety
(90) days of Tenant's occupancy of the Premises; (c) make repairs or perform
maintenance required of Landlord under the terms hereof or repairs to any
adjoining space or utility services or make repairs, alterations or improvements
to any other portion of the Building; (d) supply janitor service and any other
service to be provided by Landlord to Tenant under this Lease; and (e) post
notices of non-responsibility, provided, however, that all such work shall be
done as promptly as reasonably practical and so as to cause as little
interference to Tenant as reasonably practical. Landlord shall have no duty
beyond dialing the telephone number listed above (and leaving a voicemail
message if such a service answers the call) and Landlord shall have no
obligation to take any further action if there is no answer at the telephone
number listed above or if such number (or voicemail service) is not functioning
properly, or to confirm that Tenant's chief financial officer or any other
person may be reached at such telephone number. Tenant hereby waives any claim
for damages for any inconvenience to or interference with Tenant's business or
any loss of occupancy or quiet enjoyment of the Premises occasioned by such
entry. Landlord shall at all times have and retain a key with which to unlock
all of the doors in, on or about the Premises (excluding Tenant's vaults, safes
and similar areas designated in writing by Tenant in advance); and Landlord
shall have the right to use any and all means which Landlord may deem proper to
open Tenant's doors in an emergency in order to obtain entry to the Premises,
and any entry to the Premises obtained by Landlord in an emergency shall not be
construed or deemed to be a forcible or unlawful entry into or a detainer of the
Premises or an eviction, actual or construction, of Tenant from the Premises or
any portion thereof and Landlord shall have liability to Tenant as a result
thereof.
19. Events of Default. The following events shall constitute Events of
------------------
Default under this Lease:
(a) a default by Tenant in the payment when due of any rent or other
sum payable hereunder and the continuation of such default for a period of 5
days after receipt by Tenant of written notice from Landlord that the same is
due, unless Landlord shall have given such notice to Tenant within the preceding
twelve (12) months, in which case it shall be a Event of Default under this
Lease if Tenant shall default in the payment when due of any rent or other sum
payable hereunder and such default shall continue for a period of 5 days after
the same is due;
65
<PAGE>
(b) a default by Tenant in the performance of any of the other terms,
covenants, agreements or conditions contained herein and, if the default is
curable, the continuation of such default for a period of thirty (30) days after
notice by Landlord or beyond the time reasonably necessary for cure if the
default is of a nature to require more than thirty (30) days to remedy,
provided, however, in no event shall Tenant have more than a period of sixty
(60) days to remedy any such default;
(c) the bankruptcy or insolvency of Tenant, transfer by Tenant in
fraud of creditors, an assignment by Tenant for the benefit of creditors, or the
commencement of any proceedings of any kind by or against Tenant under any
provision of the Federal Bankruptcy Act or under any other insolvency,
bankruptcy or reorganization act unless, in the event any such proceedings are
involuntary, Tenant is discharged from the same within sixty (60) days
thereafter;
(d) the appointment of a receiver for a substantial part of the assets
of Tenant, if such appointment is not vacated within sixty (60) days thereafter;
(e) the abandonment of the Premises; and
(f) the levy upon this Lease or any estate of Tenant hereunder by any
attachment or execution and the failure to have such attachment or execution
vacated within thirty days (30) thereafter.
In no event shall this Lease be assigned or assignable by reason of any
voluntary or involuntary bankruptcy proceedings, nor shall any rights or
privileges hereunder be an asset of Tenant, the trustee, debtor-in-possession,
or the debtor's estate in any bankruptcy, insolvency or reorganization
proceedings.
20. Termination Upon Default. Upon the occurrence of any Event of Default
-------------------------
by Tenant hereunder, Landlord may, at its option and without any further notice
or demand, in addition to any other rights and remedies given hereunder or by
law, terminate this Lease and exercise its remedies relating thereto in
accordance with the following provisions:
(a) Landlord shall have the right, so long as the Event of Default
remains uncured, to give notice of termination to Tenant, and on the date
specified in such notice this Lease shall terminate.
(b) In the event of any such termination of this Lease, Landlord may
then or at any time thereafter by judicial process, re-enter the Premises and
remove therefrom all persons and property and again repossess and enjoy the
Premises, without prejudice to any other remedies that Landlord may have by
reason of Tenant's default or of such termination.
(c) In the event of any such termination of this Lease, and in
addition to any other rights and remedies Landlord may have, Landlord shall have
all of the rights and remedies of a landlord provided by Section 1951.2 of the
California Civil Code. The amount of damages which Landlord may recover in
event of such termination shall include, without limitation: (1) the worth at
the time of award (computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award plus one percent)
of the amount by which the unpaid rent for the balance of the term after the
time of award exceeds the amount of rental loss that Tenant proves could be
reasonably avoided; (2) all reasonable legal expenses and other related costs
incurred by Landlord following Tenant's default; (3) all reasonable costs
incurred by Landlord in restoring the Premises to good order and condition, or
in remodeling, renovating or otherwise preparing the Premises for reletting; (4)
all reasonable costs (including, without limitation, any brokerage commissions)
actually incurred by Landlord in reletting the Premises; and (5) any and all
other damages suffered by Landlord and proximately caused by Tenant's Event of
Default.
(d) After terminating this Lease, Landlord may remove any and all
personal property located in the Premises and place such property in a public or
private warehouse or elsewhere at the sole cost and expense of Tenant. In the
event that Tenant shall not immediately pay the cost of storage of such property
after the same has been stored for a period of thirty (30) days or more,
Landlord may sell any or all thereof at a public or
66
<PAGE>
private sale in such manner and at such times and places as Landlord in its sole
discretion may deem proper, without notice to or demand upon Tenant. Tenant
waives all claims for damages that may be caused by Landlord's removing or
storing or selling the property as herein provided, and Tenant shall indemnify
and hold Landlord free and harmless from and against any and all claims,
damages, liabilities, losses, costs and expenses, including, without limitation,
all costs of court and attorneys' fees of Landlord occasioned thereby.
(e) In the event of the occurrence of any of the events specified in
paragraph 19(c) of this Lease, if Landlord shall not choose to exercise, or by
law shall not be able to exercise, its rights hereunder to terminate this Lease,
then, in addition to any other rights of Landlord hereunder or by law, (1)
Landlord may discontinue the services provided pursuant to paragraph 6 of this
Lease, unless Landlord has received compensation in advance for such services in
the amount of Landlord's reasonable estimate of the compensation required with
respect to such services, and (2) neither Tenant, as debtor-in-possession, nor
any trustee or other person (collectively, the "Assuming Tenant") shall be
entitled to assume this Lease unless on or before the date of such assumption,
the Assuming Tenant (a) cures, or provides adequate assurance that the Assuming
Tenant will promptly cure, any existing default under this Lease, (b)
compensates, or provides adequate assurance that the Assuming Tenant will
promptly compensate Landlord for any pecuniary loss (including, without
limitation, reasonable attorneys' fees and disbursements) resulting from such
default, and (c) provides adequate assurance of future performance under this
Lease. For purposes of this subparagraph (e), "adequate assurance" of such
cure, compensation or future performance shall be effected by the establishment
of an escrow fund for the amount at issue or by bonding.
(f) In the event any governmental authority having jurisdiction over
the Real Property or the Building promulgates or revises any applicable law or
imposes mandatory or voluntary controls or guidelines on Landlord or the
Premises or the Building relating to the use or conservation of energy or
utilities or the reduction of automobiles or other emissions (collectively
"Controls") or in the event Landlord is required or elects to make alterations
to the Premises or the Building in order to comply with such mandatory or
voluntary Controls, Landlord may, in its sole discretion, comply with such
Controls or make such alterations to the Premises and/or Building related
thereto. Such compliance and the making of such alterations shall not entitle
Tenant to any abatement of rent, constitute an eviction of Tenant, constructive
or otherwise, or impose upon Landlord any liability whatsoever, including but no
limited to, liability for consequential damages or loss of business by Tenant.
In carrying out such compliance and alterations, Landlord shall use reasonable
efforts to minimize any disruptions to Tenant's business in the Premises.
Landlord may comply with voluntary Controls without obtaining Tenant's consent
only if such compliance shall not cause unreasonable interference with Tenant's
use and enjoyment of the Premises.
21. Continuation after Default. Landlord shall have the remedy described
---------------------------
in California Civil Code Section 1951.4 (i.e. Landlord may continue this Lease
in effect after Tenant's abandonment and recover rental as it becomes due,
because Tenant has the right to sublet or assign, subject only to reasonable
limitations). Even though Tenant has breached this Lease and abandoned the
Premises, this Lease shall continue in effect for so long as Landlord does not
terminate Tenant's right to possession, and Landlord may enforce all its rights
and remedies as it becomes due under this Lease. Acts of maintenance or
preservation or efforts to relet the Premises or the appointment of a receiver
upon initiative of Landlord to protect Landlord's interest under this Lease
shall not constitute a termination of Tenant's right to possession.
22. Other Relief. The remedies provided for in this Lease are in addition
-------------
to any other remedies available to Landlord at law or in equity, by statute or
otherwise.
23. Landlord's Right to Cure Defaults. All agreements and provisions to
----------------------------------
be performed by Tenant under any of the terms of this Lease shall be at its sole
cost and expense and without any abatement of rental. If Tenant shall fail to
pay any sum of money, other than rental, required to be paid by it hereunder or
shall fail to perform any other act on its part to be performed hereunder and
such failure shall continue for twenty (20) days after notice thereof by
Landlord, or such longer period as may be allowed hereunder, Landlord may, but
shall not be obligated so to do, and without waiving or releasing Tenant from
any obligations of Tenant, make any such payment or perform any such other act
on Tenant's part to be made or performed as in this Lease provided to the extent
Landlord may deem desirable. All sums so paid by Landlord (with interest at an
annual rate equal to four
67
<PAGE>
percent (4%) over the annual prime rate of interest announced publicly by
Citibank, N.A., in New York, New York from time to time, but in no event in
excess of the maximum interest rate permitted by law) and all necessary
incidental costs shall be payable to Landlord on demand.
24. Attorneys' Fees. If any action arising out of this Lease is brought
----------------
by either party hereto against the other, then and in that event the
unsuccessful party to such action shall pay to the prevailing party all costs
and expenses, including reasonable attorneys' fees, incurred by such prevailing
party, and if the prevailing party shall recover judgment in such action, such
costs expenses and attorneys' fees shall be included in and as part of such
judgment.
25. Eminent Domain. If all or any part of the Premises shall be taken as
---------------
a result of the exercise of the part of eminent domain, this Lease shall
terminate as to the part so taken as of the date of taking, and, in the case of
a partial taking, either Landlord or Tenant shall have the right to terminate
this Lease as to the balance of the Premises by notice to the other within 30
days after such date, provided, however, that a condition to the exercise by
Tenant of such right to terminate shall be that the portion of the Premises
taken shall be of such extent and nature as substantially to handicap, impede or
impair Tenant's use of the balance of the Premises. In the event of any taking,
Landlord shall be entitled to any and all compensation, damages, income, rent,
awards, or any interest therein whatsoever which may be paid or made in
connection therewith, and Tenant shall have no claim against Landlord for the
value of any unexpired term of this Lease or otherwise. In the event of a
partial taking of the Premises which does not result in a termination of this
Lease, the monthly rental thereafter to be paid shall be equitably reduced.
Notwithstanding the foregoing, Tenant shall have the right to receive any award
made to compensate Tenant for relocation expenses and for Tenant's loss of its
personal property, equipment or fixtures.
26. Subordination.
--------------
(a) This Lease shall be subject and subordinate to any ground lease,
mortgage, deed of trust, or any other hypothecation for security now or
hereafter placed upon the Building and to any and all advances made on the
security thereof or Landlord's interest therein, and to all renewals,
modifications, consolidations, replacements and extensions thereof. In the
event any mortgage or deed of trust to which this Lease is subordinate is
foreclosed or a deed in lieu of foreclosure is given to the mortgagee or
beneficiary, Tenant shall attorn to the purchaser at the foreclosure sale or to
the grantee under the deed in lieu of foreclosure; in the event any ground lease
to which this Lease is subordinate is terminated, Tenant shall attorn to the
ground lessor. Tenant agrees to execute within ten (10) business days any
documents reasonably required to effectuate such subordination, to make this
Lease prior to the lien of any mortgage or deed of trust or ground lease as may
be reasonably requested by the holder of any such mortgage or deed of trust or
by the ground lease under any such ground lease, or to evidence such attornment.
(b) In the event any mortgage or deed of trust which is entered into
by Landlord after the date hereof to which this Lease is subordinate is
foreclosed or a deed in lieu of foreclosure is given to the mortgagee or
beneficiary, or in the event any ground lease to which this Lease is subordinate
is terminated, this Lease shall not be barred, terminated, cut off or
foreclosed, nor shall the rights and possession of Tenant hereunder be disturbed
if Tenant shall not then be in default in the payment of rental and other sums
due hereunder or otherwise be in default under the terms of this Lease, and if
Tenant shall attorn to the purchaser, grantee, or ground lessor as provided in
subparagraph (a) above or, if requested, enter into a new lease for the balance
of the term hereof upon the same terms and provisions as are contained in this
Lease.
(c ) At Tenant's request, Landlord shall submit to any current
lienholder on the Property for execution Tenant's proposed subordination, non-
disturbance and attornment agreement, provided that this Lease shall continue in
full force and effect, and Landlord shall have no responsibility to Tenant, if
one or more of such lienholders is unwilling to execute such agreement.
27. No Merger. The voluntary or other surrender of this Lease by Tenant,
----------
or a mutual cancellation thereof, shall not work a merger, and shall, at the
option of Landlord, terminate all or any existing subleases or subtenancies, or
operate as an assignment to it of any or all such subleases or subtenancies.
68
<PAGE>
28. Sale. In the event the original Landlord hereunder, or any successor
-----
owner of the Building, shall sell or convey the Building, all liabilities and
obligations on the part of the original Landlord, or such successor owner, under
this Lease accruing thereafter shall terminate, and thereupon all such
liabilities and obligations shall be binding upon the new owner. Tenant agrees
to attorn to such new owner, provided that the new owner agrees in writing to
assume all prospective obligations of Landlord under the Lease.
29. Estoppel Certificate. At any time and from time to time but on not
---------------------
less than 10 business days prior notice by Landlord, Tenant shall execute,
acknowledge, and deliver to Landlord, promptly upon request, a certificate
certifying (a) that this Lease 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, and stating the date and nature of each modification), (b) the
date, if any, to which rental and other sums payable hereunder have been paid,
(c) that no notice has been received by Tenant of any default which has not been
cured, except as to defaults specified in the certificate, (d) whether there is
then, to Tenant's knowledge, existing any claim by Tenant of default hereunder
by Landlord, and, if so, specifying the nature thereof, and (e) such other
matters as may be requested by Landlord. Any such certificate may be relied
upon by any prospective purchaser, mortgagee or beneficiary under any deed of
trust on the Building or any part thereof. Upon at least ten (10) business
days' prior notice by Tenant, Landlord shall execute and deliver to Tenant a
certificate stating that, (a) this Lease 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, and stating the date and nature of each modification),
and (b) to the best of Landlord's actual knowledge, Tenant is not in default
under the terms of this Lease, or if Landlord has actual knowledge of any such
defaults, specifying such defaults.
30. Omitted.
-------
31. Holding Over. If Tenant holds possession of the Premises after
-------------
expiration of the term of this Lease, Tenant shall become a tenant from month to
month upon the terms herein specified but at a monthly rental equivalent to (i)
200% of the then prevailing monthly rental payable by Tenant at the expiration
of the term of this Lease, if Landlord has not consented in writing to such
holding over, or (ii) 150% of the then prevailing monthly rental payable by
tenant at the expiration of the term hereof if Landlord has consented in writing
to such holding over payable in advance on or before the first day of each
month, and shall indemnify Landlord and any replacement tenant for the Premises
for any damages or loss suffered by either Landlord or the replacement tenant
resulting from Tenant's failure timely to vacate the Premises.
32. Security Deposit. Tenant shall, upon execution of this Lease, deposit
-----------------
with Landlord the sum specified in the Basic Lease Information (the "deposit").
The deposit shall be held by Landlord as security for the faithful performance
by Tenant of all the provisions of this Lease to be performed or observed by
Tenant. If Tenant fails to pay rent or other sums due hereunder, or otherwise
defaults with respect to any provision of this Lease, Landlord may use, apply or
retain all or any portion of the deposit for the payment of any rent or other
sum in default or for the payment of any other sum to which Tenant compensates
Landlord for any loss or damage which Landlord may suffer thereby. If Landlord
so uses or applies all or any portion of the deposit, Tenant shall within ten 10
business days after demand therefor deposit cash with Landlord in an amount
sufficient to restore the deposit to the full amount thereof and Tenant's
failure to do so shall be a material breach of this Lease. Landlord shall not
be required to keep the deposit separate from its general accounts or to pay any
interest on the deposit.
33. Waiver. The waiver by either party of any agreement, condition or
-------
provision herein contained shall not be deemed to be a waiver of any subsequent
breach of the same or any other agreement, condition or provision herein
contained, nor shall any custom or practice which may grow up between the
parties in the administration of the terms hereof be construed to waive or to
lessen the right of such party to insist upon the performance by the other party
in strict accordance with such terms. The subsequent acceptance of rental
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any agreement, condition or provision of this Lease, other than the
failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of preceding breach at the time of acceptance of the
rental.
69
<PAGE>
34. Notices and Consents. All notices, consents, demands and other
---------------------
communications from one party to the other that are given pursuant to the terms
of this Lease shall be in writing and shall be deemed to have been fully given
when hand delivered, delivered by reputable overnight courier or deposited in
the United States mail, certified or registered, postage prepaid, and addressed
as follows: to Tenant at the address specified in the Basic Lease Information,
or to such other place as Tenant may from time to time designate in a notice to
Landlord; to Landlord at the address specified in the Basic Lease Information,
or to such other place as Landlord may from time to time designate in a notice
to Tenant.
35. Complete Agreement. There are no oral agreements between Landlord and
-------------------
Tenant affecting this Lease, and this Lease supersedes and cancels any and all
previous negotiations, arrangements, brochures, agreements, letters of intent
and understandings if any, between Landlord and Tenant or displayed by Landlord
to Tenant with respect to the subject matter of this Lease, the Building or
related facilities.
36. Corporate Authority. If either party signs as a corporation, each of
--------------------
the persons executing this Lease on behalf of such party warrants that such
party is a duly authorized and existing corporation, that such party has been
and is qualified to do business in California, that the corporation has full
right and authority to enter into this Lease, and that each and both of the
persons signing on behalf of the corporation were authorized to do so.
37. Partnership Authority. If either party is a partnership, joint
-----------------------
venture or other unincorporated association, each individual executing this
Lease, on behalf of such party warrants that this Lease is binding on such party
and that each and both of the persons signing on behalf of such party were
authorized to do so.
38. Omitted.
-------
39. Omitted.
-------
40. Miscellaneous. The words "Landlord" and "Tenant" as used herein shall
--------------
include the plural as well as the singular. If there be more than one Tenant,
the obligations hereunder imposed upon Tenant shall be joint and several. Time
is of the essence of this Lease and each and all of its provisions. Submission
of this instrument for examination or signature by Tenant does not constitute a
reservation of or option for lease, and it is not effective as a lease or
otherwise until execution and delivery by both Landlord and Tenant. The
agreements, conditions and provisions herein contained shall, subject to the
provisions as to assignment, apply to and bind the heirs, executors,
administrators, successors and assigns of the parties hereto. Upon the request
of Landlord, Tenant shall provide to Landlord from time to time, at no expense
to Landlord, copies of such financial statements with respect to Tenant as may
have been prepared by or for Tenant. Landlord's acceptance of a partial rent
payment shall not constitute a waiver of any rights of Tenant or Landlord (other
than with respect to the failure of Tenant to pay the particular rental
accepted), including, without limitation, any right Landlord may have to recover
possession of the Premises, in unlawful detainer, or otherwise. If any
provisions of this Lease shall be determined to be illegal or unenforceable,
such determination shall not affect any other provision of this Lease and all
such other provisions shall remain in full force and effect. This Lease shall
be governed by and construed pursuant to the laws of the State of California.
41. Abandonment. Tenant shall not vacate for more than fifteen (15)
------------
consecutive days (except in the event of any casualty which prevents Tenant from
occupying the Premises) or abandon the Premises or any part thereof at any time
during the term of this Lease. Tenant understands that if Tenant should leave
the Premises or any part thereof vacant for more than fifteen (15) consecutive
days (except in the event of any casualty which prevents Tenant from occupying
the Premises) or abandoned, the risk of fire, other casualty, and vandalism to
the Premises and the Building will be increased and that, therefore, such action
by Tenant shall constitute a material breach of this Lease, whether or not
Tenant continues to pay rent and additional rent under this Lease. If Tenant
shall vacate for more than fifteen (15) consecutive days (except in the event of
any casualty which prevents Tenant from occupying the Premises)
70
<PAGE>
abandon or surrender the Premises, or be dispossessed by process of law or
otherwise, any personal property belonging to Tenant and left on the Premises
shall be deemed to be abandoned, at the option of Landlord, and Landlord may
sell or otherwise dispose of such personal property in any commercially
reasonable manner.
42. Omitted.
-------
43. Americans with Disabilities Act and Similar Acts. Notwithstanding
-------------------------------------------------
anything to the contrary contained herein or in the Lease, Tenant, at its sole
cost and expense, shall (i) cause the Premises to comply with the provisions of
the Americans With Disabilities Act, 42. U.S.C. 12101 et seq. and any
governmental regulations with respect thereof (the "ADA"), Title 24 of the
California Administrative Code ("Title 24"), and other similar federal, state,
and local laws and regulations, including, without limitation, any alterations
required under ADA for the purposes of "public accommodations" (as that term is
used in the ADA), and (ii) reimburse Landlord upon demand for any and all costs
and expenses incurred by Landlord to comply with ADA, Title 24, or such similar
federal, state, or local laws and regulations in any other portion of the
Building in which the Premises are located, , to the extent that any compliance
requirement described in the immediately preceding clauses (i) and (ii) arises
out of Tenant's particular use of or construction in the Premises. Except as
provided above, Tenant shall have no responsibility to comply with such laws in
portions of the Building outside of the Premises.
44. Exhibits. The exhibit(s) and addendum, if any, specified in the Basic
---------
Lease Information are attached to this Lease and by this reference made a part
hereof.
45. Landlord's Liability; Sale of Building. The term "Landlord," as used
---------------------------------------
in this Lease, shall mean only the owner or owners (or lessee or lessees under
any ground lease) of the Building at the time in question. Tenant acknowledges
and agrees that the liability of Landlord with respect to its obligations under
this Lease or arising in connection with Landlord's operation, management,
leasing, repair, renovation, alteration, or any other matter relating to the
Building, or the Premises is limited to Landlord's interest in the Building, and
Tenant agrees to look solely to Landlord's interest in the Building to satisfy
any claim or judgment against or any liability or obligation of Landlord to
Tenant under this Lease. In no event shall any present or future partner,
officer, director, employee, trustee, beneficiary, advisor, investment manager,
manager, agent, member, advisor, or shareholder of Landlord have any personal
liability to Tenant with respect to any liability or obligation of Landlord to
Tenant, and no recourse shall be had by Tenant against any such parties or the
assets of any such parties to satisfy any claim or judgment of Tenant for
Landlord's breach of any of its obligations under this Lease. Wherever in this
Lease Tenant (a) releases Landlord from any claim or liability, (b) waives or
limits any right of Tenant to assert any claim against Landlord or to seek
recourse against any property of Landlord or (c) agrees to indemnify Landlord
against any matters, the relevant release, waiver, limitation or indemnity shall
run in favor of and apply to Landlord, the constituent shareholders, partners,
trustees, beneficiaries, members or other owners of Landlord, and the directors,
officers, employees and agents of Landlord and each such constituent
shareholder, partner or other owner.
46. Light and Air. Tenant agrees that no diminution of light, air or view
--------------
by any structure which may hereafter be erected (whether or not by Landlord)
shall entitle Tenant to any reduction of rent or any other sums payable
hereunder, result in any liability of Landlord to Tenant, or in any other way
affect this Lease.
47. Name of Building. Tenant shall not use the name of the Building for
-----------------
any purpose other than as the address of the business conducted by Tenant in the
Premises without the written consent of Landlord. Landlord reserves the right
to change the name of the Building and Landlord shall not be liable to Tenant
for any loss, cost or expense in account of any such change of name.
48. Hazardous Substance Disclosure. California law requires landlords to
-------------------------------
disclose to tenants the existence of certain Hazardous Materials. Accordingly,
the existence of gasoline and other automotive fluids, asbestos containing
materials, maintenance fluids, copying fluids and other office supplies and
equipment, certain construction and finish materials, tobacco smoke, cosmetics
and other personal items must be disclosed. Gasoline and other automotive
fluids are found in the garage area of the Building. Cleaning, lubricating and
hydraulic fluids used in the operation and maintenance of the Building are found
in the utility areas of the Building not generally accessible to Building
occupants or the public. Many Building occupants use copy machines and printers
with
71
<PAGE>
associated fluids and toners, and pens, markers, inks, and office equipment
that may contain Hazardous Materials. Certain adhesives, paints and other
construction materials and finishes used in portions of the Building may contain
Hazardous Materials. Although smoking is prohibited in the public areas or the
Building, these areas may from time to time be exposed to tobacco smoke.
Building occupants and other persons entering the Building from time to time may
use or carry prescription and non-prescription drugs, perfumes, cosmetics and
other toiletries, and foods and beverages, some of which may contain Hazardous
Materials.
49. Real Estate Brokers. Landlord and Tenant each represents and warrants
--------------------
to the other that such party has negotiated this Lease directly with the Real
Estate Broker(s), if any, identified in the Basic Lease Information and has not
authorized or employed, or acted by implication to authorize or to employ, any
other real estate broker or salesman to act for such party in connection with
this Lease. Each party shall indemnify, defend and hold the other harmless from
and against any and all claims by any real estate broker or salesman other than
the Real Estate Broker(s), if any, identified in the Basic Lease Information for
a commission, finder's fee or other compensation as a result of the inaccuracy
of such party's representation above. Landlord will pay any commission owing to
the Real Estate Brokers, if any, identified in the Basic Lease Information above
pursuant to a separate agreement.
50. Landlord's Representations. Landlord and persons executing this Lease
---------------------------
on behalf of landlord represent and warrant that the individuals executing this
Lease on Landlord's behalf are duly authorized to execute and deliver this Lease
on its behalf.
51. Tenant's Financing. Landlord agrees that Tenant shall have the
-------------------
right, at its discretion, to mortgage, hypothecate or convey a security interest
in Tenant's equipment and personal property within the Premises as security for
its obligations under any equipment and personal property within the Premises as
security for its obligations under any equipment lease or other financing
arrangement related to the conduct of tenant's business, provided that Landlord
is not required to execute any documentation or perform any act in connection
therewith and provided that Tenant shall not mortgage, hypothecate or convey a
security interest in its leasehold estate hereunder.
52. Counter Parts. This lease may be executed in multiple
--------------
counterparts, which shall collectively constitute one instrument.
IN WITNESS WHEREOF, the parties have executed this Lease on the
respective dates indicated below:
TENANT LANDLORD
Walker Interactive Systems, Inc. THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
a New York corporation
By: /s/ BARBARA M. HUBBARD By: /s/ DOUGLAS L. BROWN
-------------------------- -----------------------
Its: Vice President Its: Vice President
--------------- --------------
By: /s/ CHRISTINE A. CHERRY
--------------------------
Its: Asst. Secretary
---------------
Date of Execution Date of Execution
by Tenant: November 19, 1997 by Landlord: November 24, 1997
----------------- -----------------
72
<PAGE>
THE FIRST ADDENDUM TO OFFICE LEASE
----------------------------------
THIS FIRST ADDENDUM TO OFFICE LEASE (this "Addendum") is made by and between The
Equitable Life Assurance Society of the United States, ("Landlord"), and Walker
Interactive Systems, Inc., ("Tenant"), to be a part of that certain Lease
herewith between Landlord and Tenant (the "Lease") concerning approximately
72,299 rentable square feet of space, located at 303 Second Street, San
Francisco, California (the "Building"), commonly known as Suite 300N, 375S, 306S
and approximately 1,800 rentable square feet of storage space commonly know as
Suite 304S. Landlord and Tenant agree that, notwithstanding anything to the
contrary in the Lease, the Lease is hereby modified and supplemented as set
forth below.
1. EFFECT OF ADDENDUM. All terms with initial capital letters used herein as
---------------------
defined terms shall have the meaning ascribed to them in the Lease unless
specifically defined herein. In the event of any inconsistency between this
Addendum and the Lease , the terms of this Addendum shall prevail As used
herein, the term "Lease" shall mean" the Lease, this Addendum and all riders,
exhibits, rules, and regulations referred to in the Lease or this Addendum.
2. PARKING. Tenant shall have the ongoing right during the term and any
--------
subsequent renewal term to park up to 25 vehicles in the Building garage on a
non-reserved basis at the then prevailing rate.
3. OPTION TO RENEW.
----------------
(a) Tenant shall have one (1) option to extend the Lease for a period
of five (5) years (the "Option Period") with at least 180 days (but no
more than 365 days) prior written notice of its intention to extend the
Lease. Anything herein to the contrary notwithstanding, if there is any
uncured Event of Default under the Lease , whether at the time Tenant
gives Landlord notice of its exercise of the option granted hereunder, or
at any time thereafter prior to the commencement date of the extended
term of the Lease, the option shall automatically terminate and become
null and void.
(b) In the event the renewal option is timely exercised, the Lease
shall be extended for the term of the Option Period upon all of the terms
and conditions of the Lease, provided that (i) the Base Rent for the
Option Period shall be the "Fair Market Rent" for the Premises, (ii)
Tenant shall have no further right to extend the term of this Lease, and
(iii) the Premises shall be accepted by Tenant in its "AS IS" condition
with no tenant improvements to be built by Landlord or tenant improvement
allowance to be paid by Landlord. For purposes hereof, "Fair market
Rent" shall mean such base rent as constitutes the prevailing base rent
agreed to be paid generally by new and renewing tenant, which occupy a
minimum of 50,000 square feet in other class "A" buildings of comparable
quality in San Francisco financial district and which tenants are of
similar credit standing with Tenant at the time of renewal (collectively,
"Comparable Tenants"), for comparable space and for comparable terms
pursuant to leases entered into or renewed by such other tenants on or
about the commencement of the Option Period. Determination of prevailing
base rent shall take into consideration all relevant lease terms,
effective rental rates, rental escalations, the Additional Charges for
Real Estate Taxes and Expenses being paid by Tenant at the commencement
of the Option Period, Building identification and signage, the age of
tenant improvements and other economic factors being obtained by such
other Comparable Tenants (excluding, however, leasing commissions and
relocation allowances).
(c ) Within 60 days after receipt of Tenant's notice of exercise,
Landlord shall notify Tenant in writing of Landlord's estimate of the
Fair Market Rent and, thus, of the Base Rent for the Option Period, based
on the provisions of paragraph 3(b) above. Within 30 days after receipt
of such notice from Landlord, Tenant shall have the right either to (i)
accept Landlord's statement of Base rent as the Base Rent for the Option
Period; or (ii) elect to arbitrate Landlord's estimate of Fair Market
Rent, such arbitration to be conducted pursuant to the provisions hereof.
Failure on the part of Tenant to require arbitration of Fair Market Rent
within said 30-day period shall constitute acceptance of the Base Rent
73
<PAGE>
for the Option Period as calculated by Landlord. If Tenant elects
arbitration, the arbitration shall be concluded within 90 days after the
date of Tenant's election, subject to extension for an additional 30-
day period if a third arbitrator is required and does not act in a timely
manner. To the extent that arbitration has not been completed prior to
the expiration of any preceding period for which Base Rent has been
determined, Tenant shall continue to pay Base Rent at such rate, with any
appropriate adjustment to be made once Fair Market Rent is ultimately
determined by arbitration.
(d) In the event of arbitration, the judgment or the award rendered in
any such arbitration may be entered in any court having jurisdiction and
shall be final and binding between the parties. The arbitration shall be
conducted and determined as follows:
i. Tenant shall make demand for arbitration in writing
within 30 days after service of Landlord's determination of Fair
Market Rent given under paragraph 3(c ) above specifying therein the
name and address of the person to act as the arbitrator on its behalf.
The arbitrator shall be qualified as a real estate broker familiar
with the Fair Market Rent of first-class commercial office space in
the downtown San Francisco area with at least ten (10) years of
experience. Failure on the part of Tenant to make timely and proper
demand for such arbitration shall constitute a waiver of the right
thereto. Within 15 business days after the service of the demand for
arbitration, Landlord shall give notice to Tenant, specifying the name
and address of the person designated by Landlord to act as arbitrator
on its behalf who shall be similarly qualified.
ii. In the event that two arbitrators are chosen pursuant
to paragraph 3(d)(i) above, the arbitrators so chosen shall meet
within 10 business days after the second arbitrator is appointed and,
if within 10 business days after such first meeting the two
arbitrators shall be unable to agree promptly upon a determination of
Fair Market Rent, they, themselves, shall appoint a third arbitrator,
who shall be a competent and impartial person with qualifications
similar to those required of the first two arbitrators pursuant to
paragraph 3(d)(i). In the event they are unable to agree upon such
appointment within five business days after expiration of said 10
business day period, the third arbitrator shall be selected by the
parties themselves, if they can agree thereon, within a further period
of five business days. If the parties do not so agree, then either
party, on behalf of both, may request appointment of such a qualified
person by the then Senior Managing Director of the main San Francisco
office of Cushman & Wakefield Inc., and the other party shall not
raise any question as to such person's full power and jurisdiction to
entertain the application for and make the appointment, provided that
such person shall not be an employee of Cushman & Wakefield Inc. or
any of its affiliates, and shall not then be engaged by Landlord or
the property manager for the Building as the exclusive listing agent
for the Building or any other property. The three arbitrators shall
decide the dispute if it has not previously been resolved by following
the procedure set forth below.
iii. Where an issue cannot be resolved by agreement
between the two arbitrators selected by Landlord and Tenant or
settlement between the parties during the course of arbitration, the
issue shall be resolved by the three arbitrators in accordance with
the following procedure: The arbitrator selected by each of the
parties shall state in writing his or her determination of the Fair
Market Rent supported by the reasons therefor with counterpart copies
to each party. The arbitrators shall arrange for a simultaneous
exchange of such proposed resolutions. The role of the third
arbitrator shall be to select which of two proposed resolutions most
closely approximates his or her determination of Fair Market Rent. The
third arbitrator shall have no right to propose a middle ground or any
modification of either of the two proposed resolutions. The
resolution he or she chooses as most closely approximating his or her
determination shall constitute the decision of the arbitrators and be
final and binding upon the parties.
74
<PAGE>
iv. In the event of a failure, refusal or inability of any
arbitrator to act, his or her successor shall be appointed by the
party on whose behalf such arbitrator is to act, but in the case of
the third arbitrator, his or her successor shall be appointed in the
same manner as provided for appointment of the third arbitrator. The
arbitrators shall attempt to decide the issue within 10 business days
after the appointment of the third arbitrator. Any decision in which
the arbitrator appointed by Landlord and the arbitrator appointed by
Tenant concur shall be binding and conclusive upon the parties. Each
party shall pay the fee and expenses of its respective arbitrator and
both shall equally share the fee and expenses of the third arbitrator.
The attorneys' fees and expenses of counsel for the respective parties
and witnesses shall be paid by the respective party engaging such
counsel or calling such witnesses.
(e) In the event that Tenant shall exercise the renewal option,
landlord and Tenant shall execute an amendment to this Lease, setting
forth the lease terms to apply during the Option Period, within fifteen
(15) business days of the final determination of Fair Market Rent with
respect to the Option Period.
(f) The right contained in this Section is personal to Walker
Interactive Systems, Inc. and its assignees under paragraph 16(e) of the
Lease, and such right shall not inure to the benefit of any other
assignee or subtenant of Walker Interactive Systems, Inc.
4. 355S OPTION TO EXPAND. Tenant shall have an option to expand (the "355S
-----------------------
Expansion Option") into the additional 7,665 rentable square feet currently
occupied by Don Todd and designated on EXHIBIT A of the Lease as Suite 355S
( "Suite 355S") by providing Landlord with written notice of Tenant's
exercise of the 355S Expansion Option at least 180 days (but no more than 365
days ) prior to the current occupant's lease expiration date, which
expiration date Landlord represents as being November 30, 2000; provided
that Landlord shall have no liability to Tenant for delays in the delivery
of Suite 355S not due to Landlord's willful misconduct or gross negligence.
Anything herein to the contrary notwithstanding, if there is an uncured Event
of Default under the Lease, whether at the time Tenant gives landlord notice
of its exercise of the 355S Expansion Option, or at any time thereafter prior
to the commencement date of the term of the Lease with respect to Suite 355S,
the 355S Expansion Option shall automatically terminate and be null and void.
Any such expansion by Tenant into Suite 355S shall be upon all the terms and
conditions of the Lease, provide that (i) the Base Rent for Suite 355S shall
be "Fair Market Rent" as defined in paragraph 3(b) above, and (ii) Suite 355S
shall be accepted by Tenant in "as-is" condition with no tenant improvements
to be built by Landlord or Tenant improvement allowance to be paid by
landlord. Within 45 days after receipt of Tenant's notice of exercise of the
355S Expansion Option, Landlord shall notify Tenant in writing of Landlord's
estimate of the Fair Market Rent and thus, the Base Rent for Suite 355S.
Within 30 days after receipt of such notice from Landlord, Tenant shall have
the right either to (i) accept Landlord's statement of Base Rent as the Base
Rent for Suite 355S; or (ii) elect to arbitrate landlord's estimate of the
Fair market Rent, such arbitration to be conducted pursuant to paragraph
3(d) above. Failure on the part of Tenant to elect to arbitrate within said
30-day period shall constitute acceptance of the Base Rent for Suite 355S as
calculated by Landlord. In the event that Tenant shall exercise the 355S
Expansion Option, Landlord and Tenant shall execute a lease setting forth the
lease terms to apply to Suite 355S within fifteen (15) business days of
Tenant's acceptance of the Base Rent for 355S. Landlord shall be responsible
for all code upgrades in the restrooms on the third floor of the Building.
In the event that Tenant shall exercise the 355S Expansion Option, Tenant
shall be responsible for any and all upgrades in the common areas and
elevator lobby located on the third floor of the South Tower of the Building
necessitated as a result of any improvements or additions constructed by
Tenant in Suite 355S. The right contained in this Section is personal to
Walker Interactive Systems, Inc. and its assignees under paragraph 16(e) of
the Lease, and such right shall not inure to the benefit of any other
assignee or subtenant of Walker Interactive Systems, Inc.
5. 325S OPTION TO EXPAND. Tenant shall have an option to expand (the "325S
----------------------
Expansion Option") into the additional 15,945 rentable square feet currently
occupied by PacBell Internet and designated on EXHIBIT A of the Lease as
Suite 325S ("Suite 325S") by providing Landlord with written notice of
Tenant's exercise of the
75
<PAGE>
325S Expansion Option at least 180 days (but no more than 365 days) prior to
current occupant's lease expiration date, which expiration date Landlord
represents as being February 28, 2001; provided that Landlord shall have no
liability to Tenant for delays in the delivery of Suite 325S not due to
Landlord willful misconduct or gross negligence. Anything herein to the
contrary notwithstanding, if there is an uncured Event of Default under the
Lease, whether at the time Tenant gives landlord notice of its exercise of
the 325S Expansion Option, or at any time thereafter prior to the
commencement date of the term of the Lease with respect to Suite 325S, the
325S Expansion Option shall automatically terminate and be null and void. Any
such expansion by Tenant into Suite 325S shall be upon all of the terms and
conditions of the Lease, provided that (I) the Base Rent for Suite 325S shall
be "Fair Market Rent" as defined in paragraph 3(b) above, and (ii) Suite 325S
shall be accepted by Tenant in "As-Is" condition with no tenant improvements
to be built by Landlord or Tenant improvement allowance to be paid by
Landlord. Within 45 days after receipt of Tenant's notice of exercise of the
325S Expansion Option, Landlord shall notify Tenant in writing of Landlord's
estimate of the Fair Market Rent and, thus, the Base Rent for Suite 325S.
Within 30 days after receipt of such notice from landlord, Tenant shall have
the right to (i) accept Landlord's statement of Base Rent as the Base Rent
for Suite 325S; or (ii) elect to arbitrate Landlord's estimate of the Fair
Market Rent, such arbitration to be conducted pursuant to paragraph 3(d)
above. Failure on the part of Tenant to elect to arbitrate within said 30-day
period shall constitute acceptance of the Base Rent for Suite 325S as
calculated by Landlord. In the event that Tenant shall exercise the 325S
Expansion Option, Landlord and Tenant shall execute a lease setting forth the
lease terms to apply to Suite 325S within fifteen (15) business days of
Tenant's acceptance of the Base Rent for 325S. Landlord shall be responsible
for all code upgrade in the restrooms on the third floor of the Building. In
the event that Tenant shall exercise the 325S Expansion Option, Tenant shall
be responsible for any and all upgrades in the common areas and elevator
lobby located on the third floor of the South Tower of the Building
necessitated as a result of any improvements or additions constructed by
Tenant in Suite 325S. The right contained in this Section is personal to
Walker Interactive Systems, Inc. and its assignees under paragraph 16(e) of
the Lease, and such right shall not inure to the benefit of any other
assignee or subtenant of Walker Interactive Systems, Inc.
6. PRIOR LEASE. Landlord and Tenant are parties to an Office Lease dated as of
------------
October 20, 1988, as amended (the "Prior Lease"), applicable to the Premises
and other tenant space located on the sixth floor of the Building .
Concurrent with the execution and delivery of the Lease, Landlord and Tenant
shall enter into Lease Amendment Number Six to delete the Premises form the
Prior Lease and to make certain other changes connected with such deletion.
Notwithstanding anything to the contrary contained herein, the Lease shall in
no way modify or otherwise affect Tenant's obligations under the Prior Lease.
To the extent Tenant has paid rent due October 1, 1997 and November 1, 1997
applicable to the Premises under the Prior Lease, such amounts shall be
accounted for under the Lease and appropriate adjustments made with the rent
due December 1, 1997 so that at that time Tenant shall pay to Landlord all
sums which should have been paid under the Lease on October 1, 1997 and
November 1, 1997. Upon the execution and delivery of the Lease, the Lease
shall be considered effective as of October 1, 1997, for all purposes.
7. LIMITED RECOURSE. Notwithstanding anything to the contrary in the Lease or
-----------------
in any document delivered by Landlord in connection with the consummation of
the transaction contemplated hereby, it is expressly understood and agreed
that The Equitable Life Assurance Society of the United States is acting
solely on behalf and for the benefit of Separate Account No. S-16III and
Landlord's liability shall be limited to, and payable and collectible only
out of, assets allocated to, or held by Landlord for the benefit of, Separate
Account No. S-16III (including , without limitation, the Building) and no
other property or assets of Landlord or of any of Landlord's directors,
officers, employees, shareholders, contract holders or policyholders, shall
be subject to any lien, levy, execution, setoff or other enforcement
procedure for satisfaction of any right or remedy of Tenant in connection
with the Transaction contemplated hereby.
76
<PAGE>
TENANT Landlord:
Walker Interactive Systems, Inc. The Equitable Life Assurance Society
of the United States
By: /s/ BARBARA M. HUBBARD By: /s/ DOUGLAS L. BROWN
-------------------------- -----------------------
Its: Vice President Its: Vice President
--------------- --------------
EXHIBIT B
---------
RULES AND REGULATIONS
---------------------
1. The sidewalks, halls, passages, exits, entrances, shopping malls,
elevators, escalators and stairways of the Building shall not be obstructed by
any of the tenants or used by them for any purpose other than for ingress to and
egress from their respective premises. The halls, passages, exits, entrances,
shopping malls, elevators, escalators and stairways are not for the general
public, and Landlord shall in all cases retain the right to control and prevent
access thereto of all persons whose presence in the judgment of Landlord would
be prejudicial to the safety, character, reputation and interests of the
Building and its tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom any tenant normally deals
in the ordinary course of its business, unless such persons are engaged in
illegal activities. No tenant and no employee or invitee of any tenant shall go
upon the roof of the Building except such roof or portion thereof as may be
contiguous to the premises of a particular tenant and may be designated in
writing by Landlord as a roof deck or roof garden area.
2. No sign, placard, picture, name, advertisement or notice visible from
the exterior of any tenant's premises shall be inscribed, painted, affixed or
otherwise displayed by any tenant on any part of the Building without the
prior written consent of Landlord. Landlord will adopt and furnish to tenants
general guidelines relating to signs inside the Building on the office floors.
Each tenant shall conform to such guidelines, but may request approval of
Landlord for modifications, which approval will not be unreasonably withheld.
All approved signs or lettering on doors shall be printed, painted, affixed or
inscribed at the expense of the Tenant by a person approved by Landlord, which
approval will not be unreasonably withheld. Material visible from outside the
Building will not be permitted.
3. Their Premises shall not be used for the storage of merchandise held
for sale to the general public or for lodging. No cooking shall be done or
permitted by any tenant on the premises, except that use by the tenant of food
and beverage vending machines and Underwriters' Laboratory approved microwave
ovens and equipment for brewing coffee, tea, hot chocolate and similar beverages
shall be permitted, provided that such use is in accordance with all applicable
federal, state and city laws, codes, ordinances, rules and regulations.
4. No tenant shall employ any person or persons other than Landlord's
janitorial service for the purpose of cleaning the premises, unless otherwise
approved by Landlord. No person or persons other than those approved by
Landlord shall be permitted to enter the Building for the purpose of cleaning
the same. No tenant shall cause any unnecessary labor by reason of such
tenant's carelessness or indifference in the preservation of good order and
cleanliness. Janitor service will not be furnished on nights when rooms are
occupied after 9:30 P.M. unless, by prior arrangement with Landlord, service is
extended to a later hour for specifically designated rooms.
5. Landlord will furnish each tenant, free of charge, with two keys to
each door lock in its premises. Landlord may make a reasonable charge for any
additional keys. No tenant shall have any keys made. No tenant shall alter any
lock or install a new or additional lock or any bolt on any door of its premises
without the prior consent of Landlord. The tenant shall in each case furnish
Landlord with a key for any such lock. Each tenant, upon the termination of its
tenancy, shall deliver to Landlord all keys to doors in the Building which shall
have been furnished to the tenant.
6. The freight elevator shall be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord in its discretion
shall deem appropriate. The persons employed to move such equipment in or out
of the Building must be acceptable to Landlord. Landlord shall have the right
to prescribe the weight, size and position of all equipment, materials,
furniture or other property brought into the Building.
77
<PAGE>
Heavy objects shall, if considered necessary by Landlord, stand on wood strips
of such thickness as is necessary to properly distribute the weight. Landlord
will not be responsible for loss of or damage to any such property from any
cause, and all damage done to the Building by moving or maintaining such
property shall be repaired at the expense of the tenant.
7. No tenant shall use or keep in the premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material other than
limited quantities thereof reasonably necessary for the operation or maintenance
of office equipment, or, without Landlord's prior approval, use any method of
heating or air conditioning other than that supplied by Landlord.
No tenant shall use or keep or permit to be used or kept any foul or noxious gas
or substance in the premises, or permit or suffer the premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants of
the Building by reason of noise, odors or vibrations, or interfere in any way
with other tenants or those having business therein.
8. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and street address of the Building.
9. Landlord reserves the right to exclude from the Building between the
hours of 6 P.M. and 7 A.M. and at all hours on Saturdays, Sundays and legal
holidays all persons who do not present a pass signed by Landlord to the
Building. Landlord will furnish passes to persons for whom any tenant requests
the same in writing. Each tenant shall be responsible for all persons for whom
it requests passes and shall be liable to Landlord for all acts of such persons.
Landlord shall in no case be liable for damages for any error with regard to the
admission to or exclusion from the Building of any person. In the case of
invasion, mob, riot, public excitement or other circumstances rendering such
action advisable in Landlord's opinion, Landlord reserves the right to prevent
access to the Building during the continuance of the same by such action as
Landlord may deem appropriate.
10. The directory of the Building will be provided for the display of the
name and location of tenants and a reasonable number of the principal officers
and employees of tenants, and Landlord reserves the right to exclude any other
names therefrom. Any additional name which a tenant desires to have added to
the directory shall be subject to Landlord's approval and may be subject to a
charge therefor.
11. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, hangings or decorations shall be attached to, hung or placed in, or
used in connection with any exterior window in the Building without the prior
consent of Landlord. If consented to by Landlord, such items shall be installed
on the office side of the standard window covering and shall in no way be
visible from the exterior of the Building.
12. Messenger services and suppliers of bottled water, food, beverages,
and other products or services shall be subject to such reasonable regulations
as may be adopted by Landlord. Landlord may establish a central receiving
station in the Building for delivery and pick-up by all messenger services, and
may limit delivery and pick-up at tenant premises to Building personnel. If
Landlord establishes a central receiving station in the Building for messenger
pick-up and delivery, Landlord shall establish and implement a procedure for
prompt delivery of packages received.
13. Each tenant shall see that the doors of its premises are closed and
locked and that all water faucets or apparatus, cooking facilities and office
equipment (excluding office equipment required to be operative at all times) are
shut off before the tenant or its employees leave the premises at night, so as
to prevent waste or damage, and for any default or carelessness in this regard
the tenant shall be responsible for any damage sustained by other tenants or
occupants of the Building or Landlord. On multiple-tenancy floors, all tenants
shall keep the doors to the Building corridors closed at all times except for
ingress and egress.
14. The toilets, urinals, wash bowls and other restroom facilities shall
not be used for any purpose other than that for which they were constructed, no
foreign substance of any kind whatsoever shall be thrown therein and the expense
of any breakage, stoppage or damage resulting from the violation of this rule
shall be borne by the tenant who, or whose employees or invitees, shall have
caused it.
78
<PAGE>
15. Except with the prior consent of Landlord, no tenant shall sell, or
permit the sale at retail, of newspapers, magazines, periodicals, theater
tickets or any other goods or merchandise to the general public in or on the
premises, nor shall any tenant carry on, or permit or allow any employee or
other person to carry on, the business of stenography, typewriting or any
similar business or from the premises for the service or accommodation of
occupants of any other portion of the Building, nor shall the premise of any
tenant be used for manufacturing of any kind, or any business or activity other
than that specifically provided for in such tenant's lease.
16. No tenant shall install any antenna, loudspeaker, or other device on
the roof or exterior walls of the Building.
17. There shall not be used in any portion of the Building, by any tenant
or its invitees, any hand trucks or other material handling equipment except
those equipped with rubber tires and side guards unless otherwise approved by
Landlord.
18. Each tenant shall store its refuse within its premises. No material
shall be placed in the refuse boxes or receptacles if such material is of such
nature that it may not be disposed of in the ordinary and customary manner of
removing and disposing of refuse in the City and County of San Francisco without
being in violation of any law or ordinance governing such disposal. All refuse
disposal shall be made only through entryways and elevators provided for such
purposes and at such times as Landlord shall designate.
19. Canvassing, peddling, soliciting, and distribution of handbills or any
other written materials in the Building are prohibited, and each tenant shall
cooperate to prevent the same.
20. The requirements of the tenants will be attended to only upon
application by telephone or in person at the office of the Building. Employees
of Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord.
21. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular tenant or tenants, but no such waiver by Landlord
shall be construed as a wavier of such Rules and Regulations in favor of any
other tenant or tenants, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the tenants of the Building.
22. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of premises in the Building.
In the event of any conflict between these Rules and Regulations and the Lease,
the Lease shall prevail.
23. Landlord reserves the right to make such other and reasonable rules
and regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building, and for the preservation of good
order therein.
EXHIBIT C
---------
TENANT IMPROVEMENT WORK LETTER
------------------------------
The purpose of this Exhibit C is to delineate the responsibilities of Landlord
and Tenant with respect to the design and construction of the improvements in
the Premises. All capitalized terms used herein which have defined meanings in
the Lease to which this Exhibit is attached (the "Lease") shall have the same
meanings herein
1. TENANT ACCEPTS PREMISES IN "AS-IS" CONDITION. Tenant shall accept
---------------------------------------------
possession of the Premises in their "As Is" condition. Tenant acknowledges
and agrees that Tenant and its representatives have inspected the Premises
and all of its structural and mechanical elements and that Tenant is
satisfied with the condition thereof. Except
79
<PAGE>
as specifically provided below, landlord has no obligation and has made no
promise to alter, remodel, improve, repair, decorate or paint the Premises or
any part of the Premises, or to pay for any such work, and neither Landlord
nor Landlord's agent have made any representations to Tenant with respect to
the condition of the Premises.
2. CONSTRUCTION OF TENANT IMPROVEMENTS. Tenant shall substantially complete
------------------------------------
any and all alterations of, or improvements to, the Premises (the "Tenant
Improvements"), in accordance with the Final Plans (as defined below)
submitted to and approved by Landlord in its reasonable discretion. The
Tenant Improvements shall be made and performed in a safe and workmanlike
manner, using only first-class materials, in compliance with the minimum
Building Standard specification for interior tenant improvements developed by
Landlord for uniform application in the Building, and in accordance with the
provisions of the following provisions of this Exhibit:
(a) No work with respect to the Tenant Improvements shall proceed
without landlord's prior written approval, which shall not be unreasonably
withheld or delayed, of:
(1) Tenant's contractor(s) and subcontractor(s);
(2) certificates of insurance furnished to Landlord from a company
or companies approved by landlord in its reasonable discretion;
(A) by Tenant's general contractor, evidencing comprehensive
general liability insurance (with contractual liability and products and
completed operation coverage's) with a minimum combined single limit for bodily
injury and property damage in an amount not less than Two Million Five Hundred
Thousand Dollars ($2,500,000) per occurrence, endorsed to show a waiver of
subrogation by the insurer to any claims the insurer may have against the
Landlord,
(B) by any and all subcontractors, evidencing comprehensive
general liability insurance (with contractual liability and products and
completed operations coverages) with a minimum combined single limit for bodily
injury and property damage in an amount not less than One Million Dollars
($1,000,000) per occurrence, endorsed to show Landlord as an additional insured
and endorsed to show waiver of subrogation by the insurer to any claims the
insurer may have against the Landlord, and
(C) by Tenant evidencing builder's risk insurance with
respect to the Tenant Improvements, in such amounts as are deemed reasonable by
landlord in its reasonable discretion, and workers' compensation insurance, as
required by law; and
(3) detailed plans and specifications for such work, prepared by a
licensed architect approved in writing by Landlord in Landlord's reasonable
discretion (the "Tenant's Architect"), which indicate that such work will not
exceed the design load capacities and performance criteria of the Building,
including , without limitation, its electrical HVAC and weight capacities, and
construction means and methods.
(b) Except as otherwise expressly provided in paragraph 3 below, the
Tenant Improvements shall be undertaken at Tenant's sole cost and expense and in
strict conformance with any applicable laws, regulations, building codes and the
requirements of any building permit and any other applicable permits or licenses
issued with respect to such work. Tenant shall be solely responsible for
obtaining any such permits and licenses from the appropriate governmental
authorities, and any delay in obtaining such permits or licenses shall not be
deemed to extend the commencement date of the expiration date of the term of the
Lease or to waive or toll Tenant's and other obligations with respect to the
Premises. Copies of all permits and licenses shall be furnished to Landlord
before any work is commenced, and any work not acceptable to any governmental
authority or agency having or exercising jurisdiction over such work, or not
reasonably satisfactory to landlord, shall be promptly replaced and corrected at
Tenant's expense.
80
<PAGE>
(c) [Intentionally Deleted]
(d) Any work by Tenant shall be scheduled through Landlord and shall
be diligently and continuously pursued from the date of its commencement through
its completion. Landlord hereby agrees to use its reasonable efforts to
facilitate such work and to ensure access by Tenant to and availability to
Tenant of all freight elevators and any such similar facilities necessary to
facilitate such work, subject, however, to the rules and regulations established
by Landlord for construction work in the Building. All work shall be conducted
in a manner that maintains harmonious labor relations and does not unreasonably
interfere with or delay any other work or activities being carried out by
Landlord in the Building. Landlord or Landlord's agent shall have the right,
upon prior telephonic or other notice to Tenant (in accordance with and subject
to the limitations set forth in paragraph 18 of the Lease), to enter the
Premises and inspect the Premises and the Tenant Improvements at any reasonable
times during the construction of the Tenant Improvements.
(e) Tenant shall cause the Tenant's Architect to prepare and submit
to Landlord for its approval complete architectural plans, drawings and
specifications for all Tenant Improvements, including, without limitation,
complete engineered mechanical and electrical working drawings for the Premises,
showing the subdivision, layout, finish and decoration work desired by Tenant
therefor, and any internal or external communications or special utility
facilities which will require installation of conduits or other improvement
within common areas, all in such form and in such detail as may be reasonably
required by Landlord. Such complete plans, drawings and specifications are
referred to herein as "Final Plans." Tenant, at its cost, agrees to use only
contractors listed on the attached list of approved contractors (the "Approved
List") to (i) prepare the design and preparation of mechanical drawings for the
mechanical systems serving the Premises, (ii) prepare the design and preparation
of electrical drawings for the electrical systems serving the Premises, and
(iii) prepare the design and preparation of sprinkler drawings for the sprinkler
systems serving the Premises. Tenant shall submit the Final Plans for the
approval of Landlord, which approval shall not be unreasonably withheld or
delayed. Within five (5) business days after Landlord receives the Final Plans
for approval, Landlord shall give its written approval of the Final Plans, or
provide Tenant with specific written objections to the Final Plans. If Landlord
objects to the Final Plans, Landlord shall make itself available to meet with
Tenant and the Tenant's Architect within three (3) business days after said
objection to resolve the objections and to deliver to the Tenant's Architect
such information as may be necessary to enable the Tenant's Architect to cause
the Final Plans to be revised consistent with Landlord's objections. No delay in
the scheduling of completion of the Tenant Improvements resulting from
Landlord's review, revision and approval of the Final Plans shall be deemed to
extend the commencement date or expiration date of the term of the Lease or
waive or toll Tenant's rental obligations with respect to the Premises. In the
event that Tenant and/or its contractors and subcontractors desire to change the
Final Plans subsequent to approval by Landlord, Tenant shall provide notice of
such proposed change to Landlord for Landlord's written approval which approval
shall be required prior to the implementation of such proposed change and which
shall not be unreasonably withheld or delayed. Landlord shall approve or
disapprove the proposed change within three (3) business days after Landlord's
receipt of any final plans and specifications therefor or within such time
period after such three (3) business day period which is reasonably practical.
At the conclusion of construction, Tenant shall cause the Tenant's Architect to
provide two (2) complete sets of record drawings of the Tenant Improvements, as
constructed, which shall not materially deviate from the Final Plans, and Tenant
shall also cause to be provided a project close-out package, including, without
limitation, a punchlist sign-off, project team list, permit card, contractor's
payroll certification, unconditional lien releases and final construction costs
itemized by trade.
81
<PAGE>
(f) Landlord shall approve the list of bidding general contractors,
which shall include, without limitation, Pankow Construction. Landlord's
approval of such bidding general contractors shall not be unreasonably withheld
or delayed. Tenant, with the prior written consent of Landlord, shall enter into
a contract (the "General Contract") with one of the Bidding Contractors
("Tenant's Contractor",) for the construction of the Tenant Improvements.
(g) Tenant shall cause Tenant's Contractor to enter into a sub
contract with one of the contractors listed on the Approved List for the
sprinkler system work required under the General Contract. With respect to all
mechanical systems work required under the General Contract, Tenant shall cause
Tenant's Contractor to enter into a subcontract with one of the contractors
listed on the Approved List. With respect to all electrical systems work
required under the Gerneral Contract, Tenant shall cause Tenant's Contractor to
enter into a subcontract with one of the contractors listed on the Approved List
for the electrical systems work. To the extent Tenant's Contractor desires to
subcontract other work required under the General Contract, Tenant shall cause
Tenant's Contractor to solicit bids for such proposed subcontract (the "Other
Work Bidders"), at least one (1) of which, if Landlord so elects, shall be
subcontractor designated by Landlord, and, with the prior written consent of
Landlord (which consent shall not be unreasonably withheld or delayed), to enter
into such subcontract with one of the Other Work Bidders. Tenant's Contractor
may engage such laborers and suppliers as it deems appropriate, subject to the
provisions of subparagraph (d) above.
(h) All payments by Tenant for work done by a subcontractor in
connection with the Tenant Improvements shall be made by joint check issued to
Tenant's Contractor and such subcontractor and shall be conditioned upon
Tenant's and landlords receipt of (1) conditional lien waivers and releases upon
progress payments, executed by Tenant's Contractor and such subcontractor,
covering the full amount disbursed through the date of the disbursement, and (2)
a conditional lien waiver and release upon final payment covering the final
payment amount, executed by Tenant's Contractor and such subcontractor.
(i) Although landlord has the right to review, request revisions to
and approve the Final Plans, Landlord's sole interest in doing so is to protect
the Building and Landlord's interest in the Building. Accordingly, Tenant shall
not rely upon Landlord's approval for any purpose other than for the purpose of
acknowledging the consent of Landlord to proceed with the requested action, and
Landlord shall incur no liability of any kind by reason of the granting of such
approvals.
3. TENANT IMPROVEMENT ALLOWANCE. Subject to the terms and conditions of this
-----------------------------
paragraph below, Landlord shall reimburse Tenant up to a maximum amount of Six
hundred fourteen thousand, five hundred forty-one dollars and fifty cents
($614,541.50) (the "Tenant Improvement Allowance") for (i) hard and soft costs
of construction of the Tenant Improvements, including without limitation, all
architectural and engineering fees incurred in connection therewith, sums
payable to Landlord in connection therewith, and cabling and signange costs, and
(ii) the brokerage fee payable to Colliers Damner Pike as a result of the Lease.
Provided no Event of Default, or Potential Default, shall then exist under the
Lease from and after the date hereof, Landlord shall make advances to Tenant of
the Tenant Improvement Allowance upon presentation of invoices from Tenant or
the person performing the work or rendering the service and such reasonable
supporting documentation as Landlord may require, including, without limitation,
mechanics' lien releases and certificates of payment issued by the Tenant's
Architect and, if applicable, Tenant's designated representatives. Invoices that
are submitted and approved by Landlord shall be paid on or before the fifteenth
(15/th/) day of the following month. In addition, Tenant must provide Landlord
with valid invoices prior to June 30, 1999 to be available for reimbursement
under the Tenant Improvement Allowance, provided said date of June 30, 1999 may
be extended to a maximum outside date of December 31, 1999, if Tenant is delayed
on constructing its tenant improvement as a result of matters beyond Tenant's
reasonable control and Tenant promptly notifies Landlord of such delay. Except
as expressly provided above, Landlord shall have no further obligation to
disburse any
82
<PAGE>
additional monies to Tenant, with respect to the Tenant Improvement Allowance,
the Tenant Improvements or the reimbursement under this Paragraph 3.
4. AMERICANS WITH DISABILITIES ACT AND SIMILAR ACTS. Notwithstanding anything
-------------------------------------------------
to the contrary contained herein or in the Lease, Tenant, at its sole cost and
expense, shall (i) cause the Premises to comply with the provisions of the
Americans With Disabilities Act, 42 U.S.C. e 12101 et seq. And any governmental
regulations with respect thereto (the "ADA"), Title 24 of the California
Administrative Code ("Title 24") and other similar local , state or federal
laws, rules, ordinances or regulations ("Other Disabilities laws"), including,
without limitation, any alterations required under ADA for the purposes of
"public accommodations" ( as that term is used in the ADA), and (ii) reimburse
Landlord upon demand for any and all costs incurred by Landlord to comply with
the ADA, Title 24 or Other Disabilities Laws in any other portion of the floor
on which the Premises are located or any other portion of the Building, to the
extent that any compliance requirement described in the immediately preceding
clauses (i) and (ii) arises out of Tenant's particular use of or construction in
the Premises, or otherwise arising out of the Premises. Except as provided
above and as provided in the Prior Lease, Tenant shall have no responsibility
under the Lease (including the exhibits and attachments thereto) to comply with
such laws in portions of the Building outside of the Premises.
5. TENANT'S INDEMNITY. Tenant shall indemnify, defend and hold Landlord
---------------------
harmless from and against any and all claim, liens, expenses, costs, losses,
fines, liabilities and/or damages (including, without limitation, reasonable
attorneys' fees and costs) arising out of or in any way connected with the
construction by Tenant of the Tenant Improvements.
IN WITNESS WHEREOF, the undersigned have executed this Exhibit C concurrently
with the execution of the Lease.
WALKER INTERACTIVE SYSTEMS THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES,
a New York corporation
By: /s/ BARBARA M. HUBBARD By: /s/ DOUGLAS L. BROWN
-------------------------- -----------------------
Its: Vice President Its: Vice President
--------------- --------------
Date: November 17, 1997 Date: November 24, 1997
----------------- -----------------
83
<PAGE>
Exhibit 21.1
WALKER INTERACTIVE SYSTEMS, INC.
FORM 10-K
SUBSIDIARIES
Walker Interactive Systems Pty. Limited Australia
Walker Interactive Systems (Hong Kong) Limited Hong Kong
Walker Interactive (Singapore) Pte. Limited Singapore
Walker Interactive Products International, Inc. United States Business
Consulting Solutions, Inc. United States
Global Business Solutions Holdings, Inc. United States
Revere, Inc. United States
Walker Solutions Group, Limited United Kingdom
Walker Financial Solutions Limited United Kingdom
Global Business Consulting Solutions, Inc. United States
Revere International PLC United Kingdom
Revere International Limited Ireland
Revere Canada, Inc. Canada
84
<PAGE>
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the following Registration
Statements of Walker Interactive Systems, Inc. of our report dated February 2,
1998, appearing in this Annual Report on Form 10-K of Walker Interactive
Systems, Inc. for the year ended December 31, 1997:
Registration Statement No. 33-46721 on Form S-8
Registration Statement No. 33-64424 on Form S-8
Registration Statement No. 33-64426 on Form S-8
Registration Statement No. 333-02942 on Form S-8
Registration Statement No. 333-08629 on Form S-8
Registration Statement No. 333-39913 on Form S-8
Registration Statement No. 333-42031 on Form S-3
/s/ DELOITTE & TOUCHE LLP
- -------------------------
DELOITTE & TOUCHE LLP
San Francisco, California
March 25, 1998
85
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
Walker Interactive Systems, Inc. annual report on Form 10-K for the year ended
December 31, 1997.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<CASH> 7,646
<SECURITIES> 20,044
<RECEIVABLES> 24,483
<ALLOWANCES> 1,376
<INVENTORY> 0
<CURRENT-ASSETS> 46,447
<PP&E> 25,590
<DEPRECIATION> 20,991
<TOTAL-ASSETS> 91,334
<CURRENT-LIABILITIES> 34,849
<BONDS> 0
0
0
<COMMON> 14
<OTHER-SE> 51,675
<TOTAL-LIABILITY-AND-EQUITY> 91,334
<SALES> 71,409
<TOTAL-REVENUES> 71,409
<CGS> 33,335
<TOTAL-COSTS> 75,428
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (2,179)
<INCOME-TAX> 1,298
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,477)
<EPS-PRIMARY> (0.26)
<EPS-DILUTED> (0.26)
<FN>
<F1> Walker Interactive Systems, Inc. (the "Company") adopted Statement of
Financial Standards No. 128 ("Earnings per Share") in December, 1997. The
Company is reporting Basic Net Loss per Share under the Financial Data Schedule
description [EPS-PRIMARY] and Diluted Net Loss per Share under Financial Data
Schedule description [EPS-DILUTED]
</FN>
</TABLE>
WARNING: THE EDGAR SYSTEM ENCOUNTERED ERROR(S) WHILE PROCESSING THIS SCHEDULE.
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
Walker Interactive Systems, Inc. annual report on Form 10-K for the year ended
December 31, 1996.
</LEGEND>
<RESTATED>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 13,475
<SECURITIES> 24,695
<RECEIVABLES> 12,900
<ALLOWANCES> 1,584
<INVENTORY> 0
<CURRENT-ASSETS> 44,345
<PP&E> 21,673
<DEPRECIATION> 17,341
<TOTAL-ASSETS> 82,319
<CURRENT-LIABILITIES> 26,007
<BONDS> 0
0
0
<COMMON> 13
<OTHER-SE> 46,759
<TOTAL-LIABILITY-AND-EQUITY> 82,319
<SALES> 62,834
<TOTAL-REVENUES> 62,834
<CGS> 28,732
<TOTAL-COSTS> 64,818
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 86
<INCOME-TAX> 202
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (116)
<EPS-PRIMARY> (0.01)
<EPS-DILUTED> (0.01)
<FN>
<F1>Walker Interactive Systems, Inc. (the "Company") adopted Statement of
Financial Standards No. 128 ("Earning per Share") in December, 1997. The
Company is reporting Basic Net Loss per Share under the Financial Data
Schedule description [EPS-PRIMARY] and Diluted Net Loss per Share under
Financial Data Schedule description [EPS-DILUTED]
Certain reclassifications were made to this restated Financial Data Schedule in
order to conform to 1997 consolidated financial statement presentation.
</FN>
</TABLE>
