- --------------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended September 30, 1997
Commission File Number 1-12584
----------------------------
SHEFFIELD PHARMACEUTICALS, INC.
(EXACT NAME OF REGISTRANT IN ITS CHARTER)
DELAWARE 13-3808303
(State of Incorporation) (IRS Employer Identification No.)
425 SOUTH WOODSMILL ROAD, SUITE 270
ST. LOUIS, MISSOURI 63017-3441
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (314) 579-9899
Indicate by check 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 _____
The number of shares outstanding of the issuer's Common Stock is
12,511,875 shares of Common Stock as of September 30, 1997.
- --------------------------------------------------------------------------------
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE ENTERPRISE)
INDEX
Page
PART I. Financial Information
ITEM 1. Financial Statements.
Consolidated Balance Sheets - September 30,
1997 and December 31, 1996. 1
Consolidated Statements of Operations for the 2
three and nine months ended September 30, 1997
and 1996 and for the period from October 17, 1986
(inception) to September 30, 1997.
Consolidated Statements of Cash Flows for the 3
three and nine months ended September 30, 1997
and 1996 and for the period from October 17,
1986 (inception) to September 30, 1997.
Notes to Consolidated Financial Statements. 4
ITEM 2. Management's Discussion and Analysis 6
of Financial Condition and Results of Operations.
PART II. Other Information.
ITEM 2. Changes in Securities. 10
ITEM 6. Exhibits and Reports on Form 8-K. 11
SIGNATURES 12
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE ENTERPRISE)
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
September 30, December 31,
1997 1996
-------------------- ---------------------
Unaudited)
ASSETS
Current assets:
<S> <C> <C>
Cash and cash equivalents $ 1,005,106 $ 1,979,871
Marketable securities - 460,768
Prepaid expenses and other current assets 118,744 43,975
-------------------- ---------------------
Total current assets 1,123,850 2,484,614
-------------------- ---------------------
Property and equipment:
Laboratory equipment 185,852 185,852
Office equipment 84,044 89,019
Leasehold improvements 61,390 61,390
-------------------- ---------------------
331,286 336,261
Less accumulated depreciation and amortization 225,077 162,007
-------------------- ---------------------
Net property and equipment 106,209 174,254
-------------------- ---------------------
Segregated cash 50,000 75,000
Other assets 39,416 40,016
-------------------- ---------------------
Total assets $ 1,319,475 $ 2,773,884
==================== =====================
LIABILITIES AND STOCKHOLDER'S EQUITY (NET CAPITAL DEFICIENCY)
Current liabilities:
Accounts payable and accrued liabilities $ 797,001 $ 446,965
Sponsored research payable 135,037 580,157
Stock dividends payable 113,100 -
Capital lease obligation-current portion 19,597 23,719
-------------------- ---------------------
Total current liabilities 1,064,735 1,050,841
Capital lease obligation - non-current portion 11,790 27,206
Convertible debentures 1,750,000 -
Cumulative convertible redeemable preferred stock, $.01 par value. Authorized,
3,000,000 shares; issued and outstanding, 27,170 and 0 shares, at
September 30, 1997 and December 31, 1996, respectively. 272 -
Additional paid-in capital associated with cumulative convertible
redeemable preferred stock 2,444,164 -
Stockholders' equity (net capital deficiency):
Common stock, $.01 par value. Authorized, 50,000,000 shares;
issued and outstanding, 12,511,875 and 11,388,274
shares at September 30, 1997 and December 31, 1996, respectively 125,119 113,883
Notes receivable in connection with sale of stock (72,600) (110,000)
Additional paid-in capital 30,676,070 28,319,838
Unrealized loss on marketable securities - (39,232)
Deficit accumulated during development stage 34,680,075) (26,588,652)
-------------------- ---------------------
(3,951,486) 1,695,837
-------------------- ---------------------
Total liabilities and stockholders' equity $ 1,319,475 $ 2,773,884
(net capital deficiency) ==================== =====================
</TABLE>
1
See accompanying notes to unaudited consolidated financial statements.
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(a development stage enterprise)
Consolidated Statements of Operations
For the three and nine months ended September 30, 1997
and 1996 and for the period
from October 17, 1986 (inception) to September 30, 1997
(Unaudited)
<TABLE>
<CAPTION>
October 17, 1986
Three months ended Nine months ended (inception) to
September 30, September 30, September 30,
-------------------------- --------------------------- -----------------
1997 1996 1997 1996 1997
------------- ------------- ------------- ------------- --------------
<S> <C> <C> <C> <C> <C>
Revenues:
Sub-license revenue $ - $ 500,000 $ - $ 500,000 $ 510,000
Interest income 9,391 55,275 49,363 124,514 446,276
------------- ------------- ------------- ------------- --------------
Total revenue 9,391 555,275 49,363 624,514 956,276
Expenses:
Acquisition of R & D in-process
technology - - - 1,650,000 - 1,650,000
Research and development 570,170 693,875 3,283,632 2,858,105 18,806,830
General and administrative 1,325,874 1,435,513 3,087,103 2,649,736 14,981,795
Interest 2,183 2,183 6,951 6,579 127,413
------------- ------------- ------------- ------------- --------------
Total expenses 1,898,227 2,131,571 8,027,686 5,514,420 35,566,038
------------- ------------- ------------- ------------- --------------
Loss before extraordinary item (1,888,836) 1,576,296) (7,978,323) (4,889,906) (34,609,762)
Extraordinary item - - - - 42,787
------------- ------------- ------------- ------------- --------------
Net loss $ (1,888,836) $ (1,576,296) $ (7,978,323) $ (4,889,906) $ (34,566,975)
============= ============= ============= ============= ==============
Loss per share of common stock:
Loss before extraordinary item $ (0.16) $ (0.14) $ (0.68) $ (0.46) $ (7.26)
Extraordinary item - - - - 0.01
============= ============= ============= ============= ===============
Net loss $ (0.16) $ (0.14) $ (0.68) $ (0.46) $ (7.25)
============= ============= ============= ============= ===============
Weighted average common shares outstanding 12,077,667 1,150,397 11,765,653 10,562,173 4,770,312
==-========== ==-========== ============= =====-====== ===============
</TABLE>
2
See accompanying notes to unaudited consolidated financial statements.
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(a development stage enterprise)
Consolidated Statements of Cash Flows
For the three and nine months ended September 30, 1997 and 1996 and for the
period from October 17, 1986 (inception) to September 30, 1997
(Unaudited)
<TABLE>
<CAPTION>
Three months ended Nine months ended
September 30, September 30,
--------------------------- ---------------------------
1997 1996 1997 1996
----------- ------------ ------------ ------------
<S> <C> <C> <C> <C>
Cash outflows from development stage activities and
extraordinary gain:
Loss before extraordinary item $(1,888,836) $(1,576,296) $(7,978,323) $(4,889,906)
Extraordinary gain on extinguishment of debt -- -- -- --
------------ ------------ ------------ ------------
Net loss (1,888,836) (1,576,296) (7,978,323) (4,889,906)
Adjustments to reconcile net loss to net cash used by
development stage activities:
Issuance of common stock, stock options/warrants for services 118,750 562,912 118,750 562,912
Non-cash interest expense -- -- -- --
Issuance of common stock for license -- -- -- --
Loss on sale of marketable securities 300,259 -- 300,259 --
Non-cash acquisition of R & D in process technology -- -- 1,650,000 --
Transfer of securities for services -- -- 25,000 --
Securities acquired under sub-license agreement -- (453,569) -- (453,569)
Issuance of common stock for intellectual property rights -- -- -- --
Amortization of organizational and debt issuance costs -- -- -- --
Depreciation 12,894 17,835 38,677 54,207
Amortization 23,021 -- 33,253 --
Increase in debt issuance and organizational costs -- 1,050 -- 1,050
Decrease (increase) in prepaid expenses and other current assets (14,324) 18,458 (74,769) 87,876
Decrease (increase) in other assets -- 163,799 600 13,383
(Increase) in loans receivable -- (276,500) -- (276,500)
Increase (decrease) in accounts payable, accrued liabilities 292,130 183,621 350,036 230,005
Increase (decrease) in sponsored research payable (196,598) (195,000) (445,120) (7,402)
Increase in deferred license fee -- (100,000) -- --
------------ ------------ ------------ ------------
Net cash used by development stage activities (1,352,704) (1,653,690) (5,981,637) (4,677,944)
------------ ------------ ------------ ------------
Cash flows from investing activities:
Acquisition of laboratory and office equipment (1,801) -- (3,888) (47,816)
(Increase) decrease in segregated cash 25,000 -- 25,000 --
Proceeds from sale of marketable securities 174,407 -- 174,407 --
Increase in notes receivable in connection with sale of stock -- -- -- (240,000)
Payments of notes receivable 37,400 -- 37,400 --
Acquisition of Camelot Pharmacal, L.L.C. (net) (8,259)
------------ ------------ ------------ ------------
Net cash used by investing activities 235,006 -- 224,660 (47,816)
------------ ------------ ------------ ------------
Cash flows from financing activities:
Principal payments under capital lease (6,097) (5,836) (19,538) (18,876)
Conversion of convertible, subordinated notes -- -- -- --
Proceeds from issuance of debt -- -- -- --
Proceeds from issuance of common stock -- -- -- --
Proceeds from issuance of cumulative convertible redeemable
preferred stock -- -- 3,212,136 --
Proceeds from issuance of convertible debentures 1,589,614
Proceeds from exercise of stock options -- 36,500 -- 173,675
Proceeds from exercise of warrants -- -- -- 6,246,109
------------ ------------ ------------ ------------
Net cash and cash equivalents provided by financing activities 1,583,517 30,664 4,782,212 6,400,908
------------ ------------ ------------ ------------
Net increase in cash and cash equivalents 465,819 (1,623,026) (974,765) 1,675,148
Cash and cash equivalents at beginning of period 539,287 5,158,751 1,979,871 1,860,577
------------ ------------ ------------ ------------
Cash and cash equivalents at end of period $ 1,005,106 $ 3,535,725 $ 1,005,106 $ 3,535,725
============ ============ ============ ============
Noncash investing and financing activities:
Common stock, stock options and warrants issued for services $ 118,750 $ 562,912 $ 118,750 $ 562,912
Common stock issued for license -- -- -- --
Common stock issued for intellectual property rights -- -- -- --
Common stock issued to retire debt -- -- -- --
Securities acquired under sub-license agreement -- -- -- --
Transfer of securities for services -- -- 25,000 --
Acquisition of R & D in-process technology 1,650,000
Equipment acquired under capital lease -- -- -- 72,453
Notes payable converted to common stock -- -- -- --
============ ============ ============ ============
Supplemental disclosure of cash flow information:
Interest paid $ 2,183 $ 2,183 $ 6,951 $ 6,579
============ ============ ============ ============
</TABLE>
-3-
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(a development stage enterprise)
Consolidated Statements of Cash Flows
For the three and nine months ended September 30, 1997 and 1996 and for the
period from October 17, 1986 (inception) to September 30, 1997
(Unaudited)
<TABLE>
<CAPTION>
October 17, 1986
(inception) to
Semptember 30,
-------------
1997
-------------
<S> <C>
Cash outflows from development stage activities and
extraordinary gain:
Loss before extraordinary item $(34,609,762)
Extraordinary gain on extinguishment of debt 42,787
-------------
Net loss (34,566,975)
Adjustments to reconcile net loss to net cash used by
development stage activities:
Issuance of common stock, stock options/warrants for services 1,659,753
Non-cash interest expense 50,000
Issuance of common stock for license 5,216
Loss on sale of marketable securities 300,259
Non-cash acquisition of R & D in process technology 1,650,000
Transfer of securities for services 25,000
Securities acquired under sub-license agreement (500,000)
Issuance of common stock for intellectual property rights 866,250
Amortization of organizational and debt issuance costs 77,834
Depreciation 180,221
Amortization 53,716
Increase in debt issuance and organizational costs (77,834)
Decrease (increase) in prepaid expenses and other current assets (177,785)
Decrease (increase) in other assets 19,625
(Increase) in loans receivable --
Increase (decrease) in accounts payable, accrued liabilities 219,931
Increase (decrease) in sponsored research payable 712,107
Increase in deferred license fee --
-------------
Net cash used by development stage activities (29,502,682)
-------------
Cash flows from investing activities:
Acquisition of laboratory and office equipment (267,697)
(Increase) decrease in segregated cash (50,000)
Proceeds from sale of marketable securities 174,407
Increase in notes receivable in connection with sale of stock
Payments of notes receivable 167,400
Acquisition of Camelot Pharmacal, L.L.C. (net)
-------------
Net cash used by investing activities (224,149)
-------------
Cash flows from financing activities:
Principal payments under capital lease (41,066)
Conversion of convertible, subordinated notes 749,976
Proceeds from issuance of debt 550,000
Proceeds from issuance of common stock 13,268,035
Proceeds from issuance of cumulative convertible redeemable
preferred stock 3,212,136
Proceeds from issuance of convertible debentures
Proceeds from exercise of stock options 1,337,677
Proceeds from exercise of warrants 10,064,481
-------------
Net cash and cash equivalents provided by financing activities 30,730,853
-------------
Net increase in cash and cash equivalents 1,004,022
Cash and cash equivalents at beginning of period 1,084
-------------
Cash and cash equivalents at end of period $ 1,005,106
=============
Noncash investing and financing activities:
Common stock, stock options and warrants issued for services $ 1,659,753
Common stock issued for license 5,216
Common stock issued for intellectual property rights 866,250
Common stock issued to retire debt 600,000
Securities acquired under sub-license agreement 500,000
Transfer of securities for services 25,000
Acquisition of R & D in-process technology
Equipment acquired under capital lease 72,453
Notes payable converted to common stock 749,976
=============
Supplemental disclosure of cash flow information:
Interest paid $ 127,414
=============
</TABLE>
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
(UNAUDITED)
1. CONSOLIDATED FINANCIAL STATEMENTS
The accompanying consolidated balance sheets as of September 30, 1997
and December 31, 1996 and the accompanying consolidated statements of
operations and cash flows for the three and nine months ended September
30, 1997 and 1996 and for the period from October 17, 1986 (inception)
to September 30, 1997, have been prepared by Sheffield Pharmaceuticals,
Inc. (the "Company"), without audit. In the opinion of management, all
adjustments (consisting only of normal recurring accruals) necessary to
present fairly the financial position, results of operations, and cash
flows at September 30, 1997 and for all periods presented have been
made.
Certain information and footnote disclosures normally included in
financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted. It is suggested
that these consolidated financial statements be read in conjunction
with the financial statements and notes thereto included in the
Company's annual report on Form 10-KSB for the year ended December 31,
1996. The results of operations for the three and nine months ended
September 30, 1997 and 1996 are not necessarily indicative of the
operating results for the full years.
The Company was incorporated on October 17, 1986, under the Canada
Business Corporations Act. The Company's wholly-owned subsidiary,
U-Tech Medical Corporation ("U-Tech") was incorporated in the state of
Texas on January 13, 1992 and has been substantially inactive for two
years as of June 30, 1997. On July 30, 1997 U-Tech was dissolved. On
January 10, 1996, Ion Pharmaceuticals, Inc., a Delaware corporation
("Ion"), was formed as a wholly-owned subsidiary of the Company. At
that time, Ion acquired the Company's rights with respect to its
anti-proliferative technology. On April 17, 1997, CP Pharmaceuticals,
Inc. ("CP") was formed for the purpose of acquiring Camelot Pharmacal,
L.L.C., which acquisition was consummated on April 25, 1997. Unless the
context requires otherwise, Sheffield, U-Tech, Ion and CP are referred
to as "the Company". The Company commenced its biotechnology operations
in the United States in January 1992 and Sheffield became domesticated
as a Wyoming corporation in May 1992. At the Annual Meeting of
shareholders of the Company held on January 26, 1995, the Company's
shareholders approved the proposal to reincorporate the Company in
Delaware, which was effected on June 13, 1995. All significant
intercompany transactions are eliminated in consolidation. At the
Annual Meeting of shareholders of the Company held on June 26, 1997,
the Company's shareholders approved the proposal to change the name of
the Company from "Sheffield Medical Technologies Inc." to "Sheffield
Pharmaceuticals, Inc."
The Company is in the development stage and as such has been
principally engaged in licensing and research efforts. The Company has
generated minimal operating revenue and requires additional capital,
which the Company intends to obtain through equity and debt offerings
to continue to operate its business. The Company's ability to meet its
obligations as they become due and to continue as a going concern must
be considered in light of the expenses, difficulties and delays
frequently encountered in starting a new business, particularly since
the Company will focus on research, development and unproven technology
which may require a lengthy period of time and substantial expenditures
to complete. Even if the Company is able to successfully develop new
products or technologies, there can be no assurance the Company will
generate sufficient revenues from the sale or licensing of such
products and technologies to be profitable. Management believes that
the Company's ability to meet its obligations as they become due and to
continue as a going concern through the next 12 months are dependent
upon obtaining additional financing.
4
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1997
(UNAUDITED)
2. NET LOSS PER COMMON SHARE
Net loss per common share is based on net loss for the relevant period
divided by the weighted average number of shares issued and outstanding
during the period. Stock options, common stock issuable upon conversion
of warrants and common stock issuable upon the conversion of cumulative
convertible redeemable preferred stock are not reflected as their
effect would be antidilutive for both primary and fully diluted
earnings per share computations.
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, "EARNINGS PER SHARE," which is required to be
adopted on December 31, 1997. At that time, the Company will be
required to change the method currently used to compute earnings per
share and to restate all prior periods. The impact of Statement 128 on
the calculation of primary and fully diluted earnings per share is not
expected to be material.
3. SEGMENT DISCLOSURES
In June 1997, the Financial Accounting Standards Board issued Statement
issued SFAS No. 131, "DISCLOSURES ABOUT SEGMENTS OF AN ENTERPRISE AND
RELATED INFORMATION" ("SFAS No. 131"). SFAS No. 131 establishes
standards for the way that public business enterprises report
information about operating segments in annual financial statements and
requires that those enterprises report selected information about
operating segments in interim financial reports issued to shareholders.
It also establishes standards for related disclosures about products
and services, geographic areas, and major customers. SFAS No. 131 is
effective for financial statements for fiscal years beginning after
December 15, 1997. The adoption of SFAS 131 will have no impact on the
Company's consolidated results of operations, financial position or
cash flows.
4. SUPPLY AND LICENSE AGREEMENTS
In March 1997, the Company exercised its option and entered into
exclusive supply and license agreements for the world-wide rights to
the multi-dose solution inhaler technology (MSI) of Siemens A.G. The
agreements call for Siemens to be the exclusive supplier of the MSI
system, a hand-held, portable pulmonary delivery system. The Company
paid a licensing fee of $1.1 million in April 1997 to Siemens pursuant
to its agreements and is required to make additional payments to
Siemens of DM 2.0 million in January, 1998 and 1999.
5. CONVERTIBLE DEBENTURES
On September 22, 1997, the Company completed an interim financing by
issuing $1,750,000 of 6% Convertible Subordinated Debentures. The
debentures mature on September 22, 2000. The Company has the option to
redeem the debentures at a premium under certain circumstances. If not
redeemed, the holders have the right to convert the debentures to
shares of the Company's common stock at a discount.
5
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE ENTERPRISE)
ITEM 2:
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The Company, being a development stage enterprise, has incurred a net loss in
each of the fiscal years since its inception and has had to rely on outside
sources of funds to maintain its liquidity. Substantial operating losses are
expected to be incurred for the next several years as the Company expends its
resources for product acquisition, research and development and preclinical and
clinical testing.
As a development stage company without significant revenues, the Company has
financed its technology development activities and operations primarily through
public and private offerings of securities, from which it has raised an
aggregate of approximately $30.2 million through September 30, 1997. On February
28, 1997, the Company completed a private offering of 35,000 shares of its 7%
Series A Cumulative Convertible Redeemable Preferred Stock, which raised total
gross proceeds of $3.5 million. On September 22, 1997, the Company completed a
private placement of 6% Convertible Subordinated Debentures, which raised total
gross proceeds of $1.75 million. The proceeds of both offerings are to be used
to fund research and development, patent prosecution and for working capital and
general corporate purposes. Such proceeds may also be used for the possible
acquisition of rights in new technologies in the Company's ordinary course of
business. The Company's operating results have fluctuated significantly during
each quarter since its inception, and the Company anticipates that such
fluctuations, largely attributable to varying sponsored research and development
commitments and expenditures, will continue into the foreseeable future.
The Company continues to conduct scientific research, clinical trials,
development, and intellectual property protection. During the three months ended
September 30, 1997, the Company funded $570,170 for research and development on
its projects. During the succeeding 12-month period, approximately $7.8 million
in additional funding is projected to be incurred on clinical and laboratory
research and development. Of this estimated funding of $7.8 million,
approximately $7,500,000 is expected to be applied to the MSI, $100,000 to the
Ion Pharmaceuticals Technologies, $137,500 to the HIV/AIDS Vaccines, and $20,000
to the UGIF Technology-Prostate Cancer.
In addition to clinical and laboratory research development, the Company expects
to incur ongoing costs in connection with its intellectual property protection
and patent prosecution, which costs are expected to approximate $100,000 over
the next 12 months.
6
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE ENTERPRISE)
REVENUES AND EXPENSES
Revenues:
From inception through the period ended September 30, 1997, the Company has
earned sub-license revenue of $510,000 primarily from the sub-license agreement
for its liposome-CD4 technology.
From inception through the period ended September 30, 1997, the Company has
earned interest income of $446,276 and an extraordinary item from gain on early
extinguishment of debt of $42,787. The Company's ability to generate material
revenues is contingent on the successful commercialization of its technologies
and other technologies which it may acquire, followed by the successful
marketing and commercialization of such technologies through licenses, joint
ventures or other arrangements.
Interest income for the three months ended September 30, 1997 was $9,391
compared to $55,275 for the same period ended September 30, 1996. The decrease
in interest earned is attributable to a decrease of cash invested in short-term
investments Except for the sub-license revenue mentioned above, interest income
represented all of the Company's income in each of the prior periods.
Operating Expenses:
From inception through the period ended September 30, 1997, the Company incurred
$35,566,037 of operating expenses. Of the total operating expenses for that
period, $18,806,829 were costs of research and development for the Company's
technologies and $1,650,000 for the acquisition of R & D in-process technology.
The remainder of expenses for the same period were incurred principally as
consulting costs, costs of management, legal and other professional fees and
expenses relating to the Company's technologies, and for its completed and
proposed financing plans. Research and development costs are expected to remain
high as the Company implements later-stage research projects of its technologies
and such costs will continue to be expensed for financial reporting purposes.
Operating expenses for the three months ended September 30, 1997, were
$1,898,227 compared to $2,131,571 for the same period ended September 30, 1996.
The decrease in operating expenses was primarily due to reduced spending on both
research and development and general and administrative expenses. The major
items included in general and administrative expenses for the three months ended
September 30, 1997, were (i) salaries of $397,840 which increased by $187,054 as
compared to 1996, primarily due to the increase in management and staff, (ii)
professional fees of $153,977 or $5,328 lower than the same period in 1996,
(iii) consulting fees of $232,863 or $487,948 lower than 1996, primarily
resulting from the one-time cashless exercise of options and warrants by a
former employee of the Company, totaling $562,912, (iv) loss on sale of
marketable securities of $299,915 and (v) other expenses of $241,279.
The table below indicates (i) the Company's direct research and development
expenses by project for the nine months ended September 30, 1997 and from the
Company's inception to September 30, 1997, (ii) the Company's current estimate
by project of committed and/or anticipated funding requirements after September
30, 1997 and (iii) revenues received to date by project.
7
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE ENTERPRISE)
Direct Research and Development Expenses
(in dollars)
<TABLE>
<CAPTION>
Three months Committed and/or
ended Inception to anticipated R & D Revenue
R & D Projects 9/30/97 9/30/97 funding after 9/30/97 received
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Multi-Dose Solution Inhaler (MSI) 154,504 1,617,127 15,102,000 0
Ion Pharmaceuticals, Inc. 220,528 4,819,711 93,000 10,000
Technologies
RBC-CD4 Electroinsertion 0 6,254,185 0 0
Technology
Lipsome-CD4 Technology 0 2,322,322 0 500,000
HIV/AIDS Vaccine 12,500 1,211,618 137,500 0
UGIF Technology 20,018 223,437 20,000 0
Membrane Attack Complex 60,936 365,618 0 0
(MAC)/Complement
</TABLE>
LIQUIDITY AND CAPITAL RESOURCES
On February 28, 1997, the Company completed a private offering of 35,000 shares
of its 7% Series A Cumulative Convertible Redeemable Preferred Stock, which
raised total gross proceeds of $3.5 million. On September 22, 1997, the Company
completed a private placement of 6% Convertible Subordinated Debentures, which
raised total gross proceeds of $1.75 million. The proceeds from both of these
offerings are being used to fund research and development, patent prosecution
and for working capital and general corporate purposes. Such proceeds may also
be used for the possible acquisition of rights in new technologies in the
Company's ordinary course of business.
In March 1997, the Company exercised its option and entered into exclusive
supply and license agreements for the world-wide rights to Siemens' multi-dose
solution inhaler (MSI). The agreements call for Siemens to be the exclusive
supplier of the MSI system, a hand-held, portable pulmonary drug delivery
system. The Company paid Siemens a license fee of $1.1 million in April 1997
pursuant to the agreements and is required to make additional payments of DM 2.0
million in January, 1998 and 1999.
The Company has historically financed its operations through public offerings
and private placements of its securities. In addition to the potential
commercialization of its technologies, the Company plans to seek additional
funds through bridge loans, security financings, joint ventures or other
commercial arrangements to obtain necessary working capital. It is not uncommon,
for instance, for a third-party commercial partner to enter into a license
agreement with a technology development company, on the merits of successful
research relating to a given technology, which would yield up-front royalty
advances to such company before market-ready products are developed. It is also
not uncommon for a third-party commercial partner to enter into an agreement
with a development company whereby a third party will contribute funds in
support of the research and operating needs of such development companies in
consideration for rights related to the technologies.
The Company's ability to continue its operations as planned will be dependent on
the Company's ability to obtain additional funds, particularly through the
public offering and/or private placement of its securities. The Company is
currently involved in negotiations with interested parties over the terms of
proposed financings. However, there can be no assurance that any such financings
will actually be consummated. In the event that proposed financings are not
completed, there can be no assurance that other sources of capital may become
available in amounts and
8
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE ENTERPRISE)
upon terms acceptable to the Company. The failure by the Company to obtain such
funds will require the Company to significantly reduce or delay its funding of
current technology development projects (which may result in the Company's loss
of rights in the related technologies) and delay the making of commitments for
future projects.
THIS REPORT CONTAINS CERTAIN FORWARD-LOOKING STATEMENTS WITHIN THE MEANING OF
SECTION 27A OF THE SECURITIES ACT OF 1933, AS AMENDED, AND SECTION 21E OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, WHICH ARE INTENDED TO BE COVERED BY
THE SAFE HARBORS CREATED HEREBY. ALL FORWARD-LOOKING STATEMENTS INVOLVE RISKS
AND UNCERTAINTY, INCLUDING WITHOUT LIMITATION, THE SUCCESSFUL DEVELOPMENT AND
LICENSING OF THE COMPANY'S TECHNOLOGIES AND THE SUCCESSFUL COMPLETION OF PLANNED
FINANCINGS. ALTHOUGH THE COMPANY BELIEVES THAT THE ASSUMPTIONS UNDERLYING THE
FORWARD-LOOKING STATEMENTS CONTAINED HEREIN ARE REASONABLE, ANY OF THE
ASSUMPTIONS COULD BE INACCURATE, AND THEREFORE, THERE CAN BE NO ASSURANCE THAT
THE FORWARD-LOOKING STATEMENTS INCLUDED IN THIS REPORT WILL PROVE TO BE
ACCURATE. IN LIGHT OF THE SIGNIFICANT UNCERTAINTIES INHERENT IN THE
FORWARD-LOOKING STATEMENTS INCLUDED HEREIN, THE INCLUSION OF SUCH INFORMATION
SHOULD NOT BE REGARDED AS A REPRESENTATION BY THE COMPANY OR ANY OTHER PERSON
THAT THE OBJECTIVES AND PLANS OF THE COMPANY WILL BE ACHIEVED.
9
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE ENTERPRISE)
PART II: OTHER INFORMATION
Item 2. CHANGES IN SECURITIES.
The following unregistered securities were issued by the Company
during the quarter ended September 30, 1997:
<TABLE>
<CAPTION>
Number of
Shares
Sold/Issued
Description /Subject to
Date of of Securities Options or Offering/Exercise
Sale/Issuance Issued Warrants Price oer Share ($) Purchaser of Class
------------- ------ -------- ------------------- ------------------
<S> <C> <C> <C> <C>
August 1997 Common Stock 50,000 2.375 Advisor
August - Sept. Common Stock 473,601 1.79 - 2.02 Holders of Series A
1997 Preferred Stock
July - September, Common 160,000 2.80 - 3.00 Advisors
1997 Stock Options
</TABLE>
The issuance of these securities is claimed to be exempt from
registration pursuant to Section 4 (2) of the Securities Act of
1933, as amended, as transactions by an issuer not involving a
public offering. There were no underwriting discounts or commissions
paid in connection with the issuance of any of these securities.
10
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE ENTERPRISE)
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
EXHIBITS
NO. DESCRIPTION
10.1 Form of the Company's 6% Convertible Subordinated
Debentures due September 22, 2000 (incorporated by
reference to Exhibit 10.1 to the Company's Registration
Statement on Form S-3 filed with the Securities and
Exchange Commission on October 21, 1997).
10.2 Lease dated August 18, 1997 between Corporate Center,
L.L.C. and the Company relating to the lease of office
space in St. Louis, Missouri.
27 Financial Data Schedule.
No reports on Form 8-K were filed by the Company during the quarter
ended September 30, 1997.
11
<PAGE>
SHEFFIELD PHARMACEUTICALS, INC. AND SUBSIDIARIES
(A DEVELOPMENT STAGE ENTERPRISE)
In accordance with the requirements of the Exchange Act, the registrant caused
this report to be signed on its behalf by the undersigned, thereunto duly
authorized.
SHEFFIELD PHARMACEUTICALS, INC.
Dated: November 13, 1997 /S/ LOREN G. PETERSON
----------------------
Loren G. Peterson
Chief Executive Officer
Dated: November 13, 1997 /S/ GEORGE LOMBARDI
-------------------
George Lombardi
Vice President & Chief Financial Officer
(Principal Financial and Accounting Officer)
-12-
LEASE
THIS LEASE, made this 18th day of August, 1997, by and between
CORPORATE CENTER, L.L.C., a Missouri limited liability company, hereinafter
referred to as "Landlord", and SHEFFIELD PHARMACEUTICALS, INC., a Delaware
corporation, hereinafter referred to as "Tenant".
WITNESSETH:
1. LEASED PREMISES. In consideration of the rents, covenants and
agreements hereinafter reserved and contained on the part of Tenant to be
observed and performed, the Landlord demises and leases to Tenant and Tenant
rents from Landlord that certain space containing 4,521 square feet and known
and numbered as Suite 270, more fully described on Exhibit A, attached hereto
and made a part hereof (the "Leased Premises"), situated in the 40 Corporate
Center building (the "Building") on that tract of land in the County of St.
Louis, Missouri, the legal description of which is attached hereto as Exhibit B
and incorporated herein by reference.
2. COMMENCEMENT AND ENDING DATE OF TERM. The term of this Lease shall
be for a period of sixty (60) calendar months and shall commence on the 15th day
of September, 1997 (the "Commencement Date"), and shall end on the 14th day of
September, 2002 (the "Termination Date"), both inclusive; provided, however,
that if Tenant, with Landlord's consent, occupies the Leased Premises at any
time prior to the stated Commencement Date (other than for the purpose of
installation of its fixtures, equipment and furniture), then during such
pre-term period, Tenant shall pay rent as herein established on a prorate basis
and such occupancy shall be under all of the terms and conditions of this Lease,
but such pre-term occupancy shall not affect the lease term as herein otherwise
established. If Landlord is unable to give possession of the Leased Premises on
the Commencement Date, Landlord shall not be liable for failure to so give
possession and the validity of this Lease shall not be impaired thereby, nor
shall the term of this Lease be shortened, but the Commencement Date shall be
delayed until the date Landlord shall give possession of the Leased Premises to
Tenant and the Termination Date shall be extended accordingly and the rent
payable hereunder shall be abated (provided Tenant is not responsible for the
inability to obtain possession) until Landlord shall give possession of the
Leased Premises to Tenant. If the Commencement Date is delayed beyond November
1, 1997, Tenant shall have the right to terminate this Lease by written notice
to Landlord. In the event either the Commencement Date and Termination Date have
been determined as aforesaid, upon demand of either party, the parties hereto
agree to execute a written declaration expressing the specific Commencement Date
and Termination Date.
2B. TERMINATION BY TENANT. Provided that this Lease is in full force
and effect' Tenant is in possession of the Demised Premises, and Tenant is not
in default under this Lease, Tenant shall have the option to terminate this
Lease effective December 31, 2000 (the "Early Termination Date"). The option may
be exercised only by giving written notice of exercise to Landlord at least one
hundred twenty (120) days prior to the Early Termination Date. On the Early
Termination Date Tenant shall pay to Landlord the unamortized portion of
Landlord's original cost of Building Standard Improvements as set forth on
Exhibit C [amortized over the sixty (60) month term of this Lease] and the
unamortized portion of the commission paid by Landlord pursuant to Section 24 of
this Lease [amortized over the sixty (60) month term of this
<PAGE>
Lease]. After completion of construction of the Building Standard Improvements,
Landlord shall deliver to Tenant a statement certifying the cost thereof along
with supporting documentation.
3. CONSTRUCTION OF IMPROVEMENTS. Landlord shall, prior to the
Commencement Date, at its sole cost and expense, cause the construction of the
Building Standard Improvements as set forth on Exhibit C attached hereto and
incorporated herein by reference.
4. RENTAL.
(a) Base Rent - Tenant agrees to pay to Landlord at the office of
Landlord or at such other place designated by Landlord, without prior notice or
demand therefor and without abatement or set-off whatsoever, as annual Base Rent
("Base Rent") the sum of One Hundred Eight Thousand Five Hundred Four Dollars
($108,504.00) in twelve (12) equal monthly installments of Nine Thousand
Forty-Two Dollars ($9,042.00) each in advance, commencing on the Commencement
Date and on the first day of each month thereafter; the sum of One Hundred
Thirteen Thousand Twenty-Five Dollars ($113,025.00) in twelve (12) equal monthly
installments of Nine Thousand Four Hundred Eighteen Dollars and Seventy-Five
Cents ($9,418.75) each in advance, on the first day of each month commencing
September 1, 1999 through August 31, 2001; and the sum of One Hundred Seventeen
Thousand Five Hundred Forty-Six Dollars ($117,546.00) in twelve (12) equal
monthly installments of Nine Thousand Seven Hundred Ninety-Five Dollars and
Fifty Cents ($9,795.50) each in advance, on the first day of each month
commencing September 1, 2001 through August 31, 2002. If the Term shall commence
upon a day other than the first day of a calendar month or if the Term shall
terminate upon a day other than the last day of a calendar month, then the
monthly rent for such partial month shall be prorated on a per diem basis.
(b) Additional Rent - For the purposes of this Section 3(b), the
following terms shall have the definitions set out after such term:
ADDITIONAL RENT shall mean additional payments due to the Landlord from
the Tenant under this Section 4(b) as a result of increases in Taxes and
Operating Expenses.
BASE AMOUNT shall mean the combined total of Taxes and Operating
Expenses incurred in the Calendar Year 1997.
BUILDING COMMON AREAS shall mean all entrances, lobbies, corridors,
stairways, elevators, restrooms, and other facilities of the Building to be used
in common by two or more tenants.
CALENDAR YEAR shall mean each calendar year in which any part of the
term of this Lease falls, through and including the year in which the term
expires.
COMMON AREAS shall mean the Building Common Areas and the Exterior
Common Areas.
CURRENT YEAR shall mean the calendar year for which an adjustment to
Base Rent is to be made on account of increases in Taxes and Operating Expenses.
-2-
<PAGE>
EXTERIOR COMMON AREAS "Exterior Common Areas" (as initially constructed
or as the same may at any time thereafter be enlarged or reduced) shall mean all
areas, space, facilities, equipment, signs and special services (other than
Building Common Areas), made available by Landlord for the common and joint use
and benefit of Landlord, the Tenant and other tenants and occupants of the
Building, and their respective employees, agents, subtenants, concessionaires,
licensees, customers, and other invitees. They may include the sidewalks,
parking areas, access roads, driveways, curbs, landscaped areas, courts, and
ramps, not contained within any area exclusively appropriated for the use of any
occupant.
LEASE YEAR shall mean the twelve (12) consecutive months beginning with
the first full month of the term hereof as determined by Section 1 hereof, and
each consecutive twelve (12) month period thereafter.
OPERATING EXPENSES "Operating Expenses" shall mean total reasonable
costs and expenses incurred in operating, maintaining, and repairing the
Building and Common Areas, including, without limitation, the cost of all
materials, supplies and services purchased or hired therefor; the cost and
expense of landscaping, gardening and planting; general maintenance and repair
(exclusive of expense of alteration of premises for the accommodation of
specific tenant or tenants), cleaning, sweeping and janitorial services;
security services (including personnel and equipment); painting and decoration
(exclusive of such costs for the accommodation of a specific tenant or tenants);
paving; sanitary control; removal of snow, trash, garbage and other refuse; the
cost of heating, ventilation, air conditioning (other than electricity and gas
paid directly by Tenant or any other tenant), lighting, fire protection, water
and sewage charges; building management fees; legal and accounting fees;
reasonable expenses of Landlord in attempting to reduce or limit real estate
and/or personal property taxes (any refunds to be credited against taxes in the
year received); capital expenses which reduce any component cost of Operating
Expenses (such cost to be reasonably amortized over the useful life of the
capital improvement by Landlord and Operating Expenses to include only the cost
so amortized by Landlord during the calendar year for which such computation is
made); capital improvements to the extent necessary to comply with applicable
governmental rules and regulations; the cost and all insurance carried by
Landlord covering the Building and Common Areas, including, without limitation,
public liability, personal and bodily injury and property damage liability and
automobile coverage, fire and extended broad form coverage including vandalism
and malicious mischief, operation of loudspeakers and any other equipment
supplying music; maintenance, repair and replacement of utility systems,
including water, sanitary sewer and storm water lines and other utility lines,
pipes and conduits; maintenance, repair and cost of operating parking areas
(including the resurfacing thereof); the cost of maintenance and service
equipment owned and used for operation, maintenance and repair or the rental
charges for such machinery and equipment; and the reasonable cost of all
personnel (including without limitation, wages, salaries, applicable payroll
taxes, worker's compensation insurance, disability insurance, and any other
fringe benefits and labor union contributions) to implement all of the
foregoing; and administrative costs equal to ten percent (10%) of the total of
other Operating Expenses. Landlord may cause any or all of said services to be
provided by an independent contractor or contractors. Landlord agrees that
Operating Expenses as used herein shall be consistent with the determination of
Operating Expenses for other tenants in the building.
TAXES shall mean (i) all real estate taxes, assessments and other
governmental levies and charges of every kind and nature, general and special,
extraordinary and ordinary, and each
-3-
<PAGE>
and every installment thereof, which shall be levied, assessed, imposed or arise
in connection with the use, occupancy or possession of the Building, or any part
thereof, payable (adjusted after protest or litigation, if any) for any part of
the term of this Lease, exclusive of penalties; (ii) any taxes which shall be
levied on gross rentals of the Building in lieu of any of the foregoing taxes;
(iii) any special assessments against the Building which shall be required to be
paid during the calendar year in respect to which real estate taxes are being
determined; and (iv) all personal property taxes, license fees, and similar
government impositions and real estate taxes if separately assessed against the
Common Areas or any part thereof. The "Taxes" shall not include any franchise or
income taxes imposed on the Landlord.
TENANT'S SHARE shall mean a fraction, the numerator of which is the
square footage of the Leased Premises, as shown on Exhibit A hereof, and the
denominator of which is the total leasable area of the Building, which Landlord
and Tenant agree, for the purposes hereof, is 77,985 square feet.
Tenant shall pay to Landlord as Additional Rent an amount equal to
Tenant's Share of the amount by which the combined total of Taxes paid during
each Calendar Year and Operating Expenses incurred with respect to each Calendar
Year exceeds the Base Amount. If the Lease commences or terminates other than on
December 31 of any year, then the determination of the Additional Rent payable
for that year, or the reimbursement due to Tenant for that year shall be made at
the end of such Calendar Year by prorating the total Taxes and Operating
Expenses for the entire year based on the ratio of 365 days to the number of
days in the term of this Lease falling within such Calendar Year. Promptly after
determination by Landlord of any increases in Taxes or Operating Expenses, the
Landlord shall send written itemized notice to Tenant of such increases. Within
thirty (30) days after receipt of such notice by Tenant (which may be subsequent
to the expiration or termination of this Lease), Tenant shall pay Tenant's Share
of such increases in Taxes and Operating Expenses.
Beginning with the thirteenth monthly payment of Base Rent and
throughout the term hereof, Tenant shall pay to Landlord, as an advance
installment of Additional Rent, an amount equal to one-twelfth (1/12) of the
Tenant's Share of the increase in Taxes and Operating Expenses as estimated by
Landlord. If the aggregate monthly advance installments of Additional Rent
attributable to increases in Taxes and Operating Expenses for any Calendar Year
exceed the Tenant's Share of actual increases in Taxes and Operating Expenses
for that Calendar Year, then the excess shall be credited against all amounts
due hereunder or paid by Tenant. If the aggregate monthly advance installments
of Additional Rent attributable to increases in Taxes and Operating Expenses for
any Calendar Year are less than Tenant's Share of the actual increases in Taxes
and Operating Expenses for that Calendar Year, then the Tenant shall pay the
difference within thirty (30) days after receipt of notice thereof from
Landlord.
5. SERVICES. As long as Tenant is not in default under any of the
covenants or provisions of this Lease beyond any cure periods, Landlord shall
operate, maintain and repair the Common Areas, the structural members of the
Building and the equipment used to provide the services furnished by Landlord
hereunder, including, without limitation, the plumbing, elevator, roof, walls,
exterior glass, heating, sewage, air conditioning sufficient to provide a
reasonably comfortable working environment, ventilation system, lobbies, stairs,
atriums, landscaping, corridors and restrooms in good order and condition except
for damage occasioned by negligent act or omission of Tenant, its employees,
agents or invitees, in which event Tenant
-4-
<PAGE>
shall bear the cost of such repairs. Landlord shall also provide the following
services during the hours indicated, and, if none are indicated, during
reasonable and usual business hours of generally recognized business days for
the term of this Lease as follows:
(a) Electricity, elevator service, air conditioning and heat sufficient
to provide a reasonably comfortable working environment shall be provided for
normal purposes only, in Landlord's judgment, Monday through Friday (excluding
legal holidays) from 8:00 a.m. to 6:30 p.m., and Saturday from 8:00 a.m. to 1:00
p.m. Tenant shall not use any apparatus or devise in or upon the Leased Premises
which in any way may increase the amount of such services usually furnished or
supplied to tenants in the Building, and, without prior written consent from
Landlord, Tenant shall not connect any apparatus or device with the conduits or
pipes, or other means by which such services are supplied, for the purpose of
using additional or unusual amounts of such services. If Tenant uses such
services under this provision to excess, Landlord reserves the right to charge
Tenant for same as Additional Rent at a rate to be determined by Landlord's
independent engineer or a submeter to be furnished and installed at Tenant's
expense. If Tenant refuses to make such payment upon demand by Landlord, such
excess charge shall constitute a breach of the obligation to pay rent under this
Lease and shall entitle Landlord to the rights hereinafter granted for such
breach.
(b) Electric power for lighting and operation of office machines, air
conditioning and heating as may be required for comfortable occupancy of the
Leased Premises. Electric power furnished by Landlord is intended to be consumed
in normal office use for lighting, heating, ventilation, air conditioning, and
small office based on a one-shift use of the Leased Premises. Landlord reserves
the right, if consumption of electricity exceeds that required for normal office
use as specified, or if Tenant uses the Leased Premises in excess of one shift,
to include a charge for such electricity as an addition to the monthly rental
with such charge to be based upon the average cost per unit of electricity for
the Building applied to the excess use as determined by an independent engineer
selected by the Landlord or at Landlord's option, to be determined by a submeter
to be furnished at Tenant's expense. If Tenant refuses to pay upon demand of
Landlord such excess charge, such refusal shall constitute a breach of the
obligation to pay rent under this Lease and shall entitle Landlord to the rights
hereinafter granted for such breach.
(c) Water for drinking, lavatory and toilet purposes from the regular
Building supply (at the prevailing temperature) through fixtures installed by
Landlord (or by Tenant with Landlord's written consent) at locations designated
by Landlord.
(d) Public restroom supplies and exterior window washing.
(e) Tenant shall be assigned three (3) reserved parking spaces in the
parking garage at no additional cots to Tenant throughout the term of this
Lease.
(f) Janitorial services in the Leased Premises and in the Common Areas.
(g) Landlord reserves the right to designate the Building a "smoke-free
building".
Landlord shall make reasonable efforts to provide the foregoing
services, but in any event, shall not be liable for damages, nor shall the
rental herein reserved be abated for failure
-5-
<PAGE>
to furnish or any delay in furnishing any of the foregoing services when there
are disturbances or labor disputes of any character, or by inability to secure
electricity, fuel, supplies, machinery, equipment or labor, or by the making of
necessary repairs or improvements to the Leased Premises, or unavailability of
utilities due to governmental restrictions, nor shall the temporary failure to
furnish any of such services be construed as an eviction of Tenant or relieve
Tenant from the duty of observing and performing any of the provisions of this
Lease, provided Landlord uses reasonable efforts to cure such interruption.
Landlord reserves the right to make such changes to the Common Areas
which do not materially interfere with Tenant's use of the Leased Premises and
Common Areas nor materially affect Tenant's three (3) parking spaces in the
parking garage, and which in its opinion are deemed to be desirable and for the
best interests of all persons using said Common Areas, including the location
and relocation of driveways, entrances, exits, automobile parking spaces, the
direction and flow of traffic, landscaped areas, and all other facilities
thereof; to construct, maintain and operate lighting and other facilities,
equipment and signs on all of said Common Areas; to build multi-story parking
facilities; to restrict parking by tenants and other occupants of the Building
and their employees, agents, subtenants, concessionaires and licensees; to close
temporarily all or any portion of the Common Areas for the purpose of making
repairs or changes thereto and to discourage non-customer parking. Landlord
shall operate, manage, equip, light and maintain the Common Areas (or cause the
same to be done), and Landlord shall have sole right and exclusive authority to
employ and discharge all personnel with respect thereto. Tenant is hereby given
a license (in common with all others to whom Landlord has or may hereafter grant
rights) to use, during the term of this Lease, the Common Areas as they may now
or at any time during the term of this Lease exist; provided, however, that if
the size, location or arrangement of such Common Areas or the type of facilities
at any time forming a part thereof be changed or diminished, in accordance with
the foregoing, Landlord shall not be subject to any liability therefor, nor
shall Tenant be entitled to any compensation or diminution or abatement of rent
therefor, nor shall such change or diminution of such areas be deemed a
constructive or actual eviction.
Landlord shall also have the right to establish, and from time to time
change, alter and amend, and to enforce against the Tenant and other users of
the Common Areas such reasonable rules and regulations as may be deemed
necessary or advisable for the proper and efficient operation and maintenance of
said Common Areas. The rules and regulations herein provided may include,
without limitation, the hours during which the Common Areas shall be open for
use. The rights of the Tenant hereunder in and to the areas in this Article
referred to shall at all times be subject to the rights of the Landlord and the
other tenants of the Landlord to use the same in common with the Tenant, and it
shall be the-duty of the Tenant to keep all of said areas free and clear of any
obstructions created or permitted by Tenant or resulting from Tenant's operation
and to permit the use of any of said areas only for normal ingress and egress by
the said customers, patrons and service-suppliers to and from the Building and
other tenants of the Landlord.
6. DESTRUCTION. If the Leased Premises or the public areas of the
Building shall be damaged by fire or other casualty, Landlord shall proceed with
reasonable diligence to repair such damage; but Landlord shall not be required
to repair or replace any of Tenant's improvements or removable property whether
or not installed by Tenant. If the Leased Premises, or any part thereof, shall
be rendered unquestionably untenantable for a period of at least one
-6-
<PAGE>
hundred twenty (120) days by reason of such damage, the rent for that portion of
the Leased Premises which shall have been so rendered unquestionably
untenantable, shall be abated for the period of the untenantability. Landlord
shall not be liable for any inconvenience or injury or damage to Tenant's
business resulting in any way for such damage by fire or other casualty, or the
repair thereof, or for any reasonable delay which may arise by reason of
adjustments of insurance claims, labor disputes, unavailability of materials,
and other causes beyond Landlord's reasonable control unless caused by
Landlord's gross negligence or willful act. If the Building shall be so damaged
that demolition or substantial alterations or reconstruction thereof shall in
Landlord s opinion be advisable (whether or not the Leased Premises shall have
been so damaged), Landlord shall have the option to terminate this Lease by
written notice given to Tenant within ninety (90) days following the date of
such damage. Landlord shall, within sixty (60) days following the date of such
damage, furnish Tenant with an estimate of the time required to repair such
damage (which estimate, however, shall not Institute an undertaking on the part
of the Landlord to complete required repairs within the estimated period of
time). If the time estimated by Landlord for the repair thereof exceeds six (6)
months from the date of such damage, either Landlord or Tenant may terminate
this Lease upon written notice given to the other party within thirty (30) days
after Landlord notifies Tenant of the estimated time for repair.
Upon any termination of this Lease under the provisions of this
Section, the parties shall be released thereby without further obligation to the
other party coincident with the surrender of possession of the Leased Premises
to the Landlord, except for items which have theretofore accrued arm be then
unpaid, and except when the damage or destruction is caused by Tenant.
Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a first mortgage or deed of trust covering
the Building in which the Leased Premises are located requires that casualty
insurance proceeds be applied first to such indebtedness, then Landlord shall
have the right to terminate this Lease by delivering Written notice of
termination to Tenant, whereupon all rights and obligations hereunder shall
cease and determine.
7. USE AND OPERATION OF BUSINESS BY TENANT. Tenant shall use the Leased
Premises solely as a business office. In no event shall the Leased Premises be
used or occupied by Tenant in any manner contrary to law or zoning regulations,
if any.
Tenant shall, except as herein otherwise provided, from and after the
commencement of the term of this Lease comply with all ordinances, laws and
regulations of all governmental authorities having jurisdiction, including
without limitation, all environmental laws, rules and regulations' and apply
for, secure, maintain, and comply with all licenses or permits which may be
required for the conduct by Tenant of the business herein permitted to be
conducted in the Leased Premises and to pay, if, as and when due all license and
permit fees and charges of a similar nature in connection therewith.
The parties acknowledge that the Americans with Disabilities Act of
1990 (42 U.S.C. Section101 et seq.) and regulations and guidelines promulgated
thereunder, as all of the same may be amended and supplemented from time to time
(collectively referred to herein as the "ADA") establishes requirements for
business operations, accessibility and barrier removal, and that such
requirements may or may not apply to the Leased Premises in the building. The
parties hereby agree that (a) Landlord shall be responsible for ADA Title III
compliance in the common
-7-
<PAGE>
areas and in the Leased Premises to the extent any structural alterations are
required or result in permanent changes to the leasehold premises or to the
extent as would be necessary on the Commencement Date for the Leased Premises to
Imply with ADA Title III and (b) Tenant shall be responsible for ADA Title III
compliance with respect to Tenant's use of the Leased Premises and for personal
property in the Leased Premises. Tenant shall be solely responsible for
compliance under Title I of the ADA relating to Tenants employees.
Tenant shall not permit the Leased Premises, or any part thereof, to be
used in any manner which constitutes a nuisance or which may injure the
reputation, character, or appearance of the Building, or which may disturb,
inconvenience or cause complaints by occupants thereof. Tenant shall not use or
permit the Leased Premises to be used, or commit or permit to be committed any
act in or about the Leased Premises which is illegal, unlawful or which will
increase the existing rate of insurance or cause cancellation of insurance on
the Building and/or the Leased Premises.
8. ALTERATIONS AND REPAIRS. Tenant may, at its own expense, from time
to time during the term of this Lease, make alterations, additions, changes and
improvements in and to the interior of the Leased Premises (except those of a
structural nature), but only with Landlord's prior written consent which
Landlord shall not unreasonably withhold, delay or condition on the payment of
money. Landlord reserves the right to designate all sources of all services used
in the common areas of the Building, to designate all sources of all services
relating to moving in or out of the Building, repair and maintenance of the
Leased Premises, or any construction, alterations or improvements made therein.
Any alteration, addition, change or improvement made by Tenant after such
consent shall have been obtained, and any fixtures installed by Tenant
(including wall-to-wall carpeting and wall paneling), shall become the property
of Landlord upon the expiration or other sooner termination of this Lease, and
Tenant shall reimburse Landlord for additional taxes and cleaning or maintenance
expenses, if any, resulting from any such items. All such work shall be done in
a good and workmanlike manner, in accordance with all applicable laws and
building regulations and shall be diligently prosecuted so that the Leased
Premises shall at all times be a complete unit except during the period of work.
Landlord shall, at its owns cost and expense, except as may be provided
elsewhere herein, make all necessary repairs to the corridors, lobby and
structural members of the Building, and to the equipment used to provide the
services furnished by the Landlord hereunder, unless any such damage is caused
by acts or omissions of Tenant, its officers, agents, employees or invitees, in
which event Tenant shall bear the cost of such repairs. Tenant shall not injure
the Leased Premises or the building, but shall maintain the Leased Premises in a
clean, attractive condition and in good repair, except as to damage to be
repaired by Landlord as provided herein and except for the cleaning services to
be rendered by Landlord as provided herein. Tenant further consents not to do or
suffer any waste to the Leased Premises.
9. SUBLETTING AND ASSIGNING. Tenant shall not transfer, assign, sublet,
enter into license or concession agreements, encumber, change ownership of or
hypothecate this Lease of Tenant's interest in and to the Leased Premises
without the prior written consent of Landlord, which Landlord shall not
unreasonably withhold or delay. Landlord shall not be unreasonable in
withholding its consent to any assignment or subletting of the Leased Premises
by Tenant if its refusal to consent is based upon its judgment that either (1)
the quality of management of the assignee, (2) the ability of assignee to comply
with the terms of this Lease,
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or (3) financial soundness of assignee is materially worse than the Tenant at
the time of such proposed assignment or subletting. Any attempted transfer,
assignment, encumbrance, subletting, license or concession agreement, change of
ownership or hypothecation without Landlord's written consent shall be void and
confer no rights upon any third person and Landlord shall treat such third
person as a trespasser.
Any consent by Landlord to any assignment, subletting, license or
concession shall be upheld to apply only to the specific transaction thereby
authorized and shall not constitute a waiver of the necessity for such consent
of any subsequent assignment, subletting, license or concession. If this Lease
or any interest therein be assigned, or the Leased Premises or any part thereof
be sublet or occupied by anyone other than Tenant without the Landlord's prior
written consent having been obtained thereto, Landlord may nevertheless collect
rent from the assignee, sublessee or occupant and apply the net amount collected
to the rents herein reserved; but no assignment, subletting, occupancy or
collection shall be deemed a waiver of the covenant herein against the
assignment and subletting or the acceptance of the assignee, subtenant or
occupancy as tenant hereunder, or constitute a release of Tenant from the
further performance from the terms and provisions of this Lease. If this Lease
or any interest of Tenant therein be assigned or if the whole or any part of the
Leased Premises be sublet, after having obtained the Landlord's prior written
consent thereto, Tenant shall nevertheless remain fully liable for the full
performance of all obligations under this Lease to be performed by Tenant, and
Tenant shall not be released therefrom in any manner, and upon such assignment
or sublease the rent payable by Tenant set forth in Section 3 hereof shall be
increased to equal the amounts of such rent payable by Tenant's assignee or
subtenant, but shall in no event be decreased from the amount set forth herein.
10. DEFAULT OF TENANT. In the event of any failure of Tenant to pay
rental due hereunder within five (5) days after the same shall be due more than
twice in any twelve (12) month period, or any failure to perform any other of
the terms, conditions or covenants of this Lease to be observed or performed by
Tenant for more than thirty (30) days after written notice of such default shall
have been given to Tenant, or such larger period of time as is reasonable if
Tenant has commenced curing such default within thirty (30) days and is
diligently pursuing such cure, or if Tenant shall be finally adjudicated a
bankrupt and all appeal rights have been extinguished, or if Tenant, in any
court pursuant to any statute either of the United States or of any State, shall
file a petition in bankruptcy or insolvency, or for reorganization or for the
appointment of a receiver or trustee for all or a portion of Tenant's properly,
or shall make an assignment for the benefit of creditors, or if Tenant shall
abandon the Leased Premises and remove its furnishings and equipment therefrom,
or if Tenant shall abandon said premises and also be in default under the Lease,
or suffer this Lease to be taken under any writ of execution, then Landlord,
besides other rights or remedies it may have, shall have the immediate right of
re-entry and may remove all persons and property from the Leased Premises and
such property may be removed and stored in a public warehouse or elsewhere at
the cost, and for the account of Tenant, all without service of notice or resort
to legal process and without being deemed guilty of trespass, or becoming liable
for any loss or damage which may be occasioned thereby.
Should Landlord elect to reenter as herein provided, or should it take
possession pursuant to legal proceedings or pursuant to any notice provided for
by law it may either terminate this Lease or it may from time to time without
terminating this Lease, make such alterations and repairs as may be necessary to
relet the Premises, and relet said Premises or
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any part thereof for such term or terms (which may be for a term extending
beyond the term of this Lease) and at such rental or rentals and upon such other
terms and conditions as Landlord in its sole discretion may deem advisable; upon
each such reletting all rentals received by the Landlord from such reletting
shall be applied, first, to the payment of any indebtedness other than rent due
hereunder from Tenant to Landlord; second, to the payment of any costs and
expenses of such reletting, including brokerage and attorneys' fees and of costs
of alterations and repairs; third, to the payment of rent due and unpaid
hereunder, and the residue, if any, shall be held by the Landlord and applied in
payment of future rent as the same may become due and payable hereunder. If such
rentals received from such reletting during any month be less than that to be
paid during that month by Tenant hereunder, Tenant shall pay any such deficiency
to Landlord. No such re-entry or taking possession of the Leased Premises by
Landlord shall be construed as an election on its part to terminate this Lease
unless a written notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
Notwithstanding any such reletting without termination, Landlord may at any time
thereafter elect to terminate this Lease for such previous breach. Should
Landlord at any time terminate this Lease for any breach, in addition to any
other remedies it may have all remedies available to it at law or in equity.
In the event of any breach or threatened breach by Tenant or Landlord
of any of the terms and provisions of this Lease, either Tenant or Landlord
shall have the right to injunctive relief as if no other remedies were provided
herein for such breach.
The rights and remedies herein reserved by or granted to Landlord or
Tenant are distinct, separate and cumulative, and the exercise of any one of
them shall not be deemed to preclude, waive or prejudice Landlord's or Tenant's
right to exercise any or all others.
Tenant hereby expressly waives any right to assert a defense based on
merger and agrees that neither the commencement of any action or proceeding, nor
the settlement thereof, nor the entry of judgment therein shall bar Landlord
from bringing any subsequent actions or proceedings from time to time.
Wherever in this Lease the Landlord has reserved or is granted the
right of re-entry into the Leased Premises the use of such word is not intended,
nor shall it be construed, to be limited to its technical legal meaning.
If either party incurs any expenses, including court costs and
attorneys' fees (and the costs and expenses of such attorney), as a result of a
default by the other party under this Lease, whether or not litigation is
commenced or concluded, then such expenses shall be reimbursed by the
non-prevailing party, whether or not such default is subsequently cured.
Tenant hereby waives demand for rent, demand for possession, notice of
forfeiture, notice of termination and any and all other demands or notices
required by law.
11. BANKRUPTCY OR INSOLVENCY. Should Tenant or any guarantor of this
Lease file, or have filed against it, a petition under the Bankruptcy Code (11
U.S.C. Section 101 et. see, as from time to time amended), be adjudicated
insolvent, or make an assignment for the benefit of creditors or if a receiver
or trustee shall be appointed for all or substantially all of the assets of
Tenant and remains undismissed for a period of sixty (60) days, this Lease shall
be in Default,
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and Landlord shall be entitled to all rights and remedies herein and otherwise
applicable under State and Federal law. Upon such Default, Landlord shall be
entitled to possession of the Premises without further obligation to Tenant, or
Tenant's trustee, and this Lease shall terminate; but Landlord's right to be
compensated for damages (including, without limitation, liquidated damages
pursuant to this Lease or pursuant to any proceeding at law) shall survive.
12. CONDEMNATION. In the event that the Leased Premises shall be
appropriated or taken under the power of eminent domain, or under any similar
power, by any public or quasi-public authority to an extent that Tenant cannot
reasonably use the remaining portion for its intended use and/or twenty percent
(20%) or more of the building or the parking area serving the building shall be
appropriated or taken under the power of eminent domain or under any similar
power, by a public or quasi-public authority, then either party may terminate
this Lease as of the date of such appropriation or taking, and the unearned
portion of the rent theretofore paid shall forthwith be returned to Tenant, and
if not so terminated, there shall be an abatement of rent based upon the value
of the remainder of the Leased Premises not so appropriated or taken. In such
event Landlord will diligently repair or restore the Leased Premises and Tenant
will repair or restore Tenant's leasehold improvements and trade fixtures as
nearly similar in value and character to their condition immediately prior to
such taking as shall be practicable and reasonable, to the extent permitted by
damages awarded for such taking, and subject to building and zoning laws then in
existence. In such event, however, Landlord shall not be required to repair,
rebuild, or restore any additions, alterations or improvements made by or for
Tenant and not required by this Lease to be furnished by Landlord, nor any of
Tenant's trade fixtures, or Tenant's improvements.
If the Lease is terminated as above provided and a lump sum is awarded
as the result of any such taking, Tenant shall be entitled to that portion
thereof which represents compensation for unrecovered costs of leasehold
improvements installed by Tenant (exclusive of any air conditioning and heating
equipment) amortized over the original term of the Lease if installed during the
original term or over the extended term in which the taking occurs if installed
during such extended term, together with relocating expenses, if any are
awarded. Landlord shall be entitled to the entire balance of the award.
Landlord agrees that, after it receives notice of the intention of any
authority to appropriate or take the Leased Premises, or any portion thereof, it
will forthwith give to Tenant, in writing, notice thereof.
A voluntary sale by Landlord to any public body or agency having the
power of eminent domain, either under threat of condemnation or while
proceedings are pending, shall be deemed to be a taking under the power of
eminent domain for the purposes of this Lease.
Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a first mortgage or deed of trust covering
the Building in which the Leased Premises are located requires that the
condemnation proceeds be applied to such indebtedness, then Landlord shall have
the right to terminate this Lease by delivering written notice of termination to
Tenant, whereupon all rights and obligations hereunder shall cease and
determine.
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13. INSURANCE, INDEMNITY AND WAIVER OF SUBROGATION. Tenant hereby
agrees to defend, pay, indemnify and save free and harmless Landlord from and
against any and all claims, demands, fines, suits, actions, proceedings, orders,
decrees and judgments of any kind or nature, unless due to the intentional
misconduct of Landlord by or in favor of anyone whomsoever and from and against
any and all out-of-pocket costs and expenses, including attorneys' fees,
resulting from or in connection with loss of life, bodily or personal injury or
property damage arising, directly or indirectly, out of, from, or on account of
any occurrence on, upon, at or from the Leased Premises.
Except as provided above, Tenant and all those claiming by, through or
under Tenant shall store their property in and shall occupy and use the Leased
Premises and any improvements therein and appurtenances thereto solely at their
own risk and Tenant and all those claiming by, through or under Tenant hereby
release Landlord, to the full extent permitted by law, from all claims of every
kind, including loss of life, personal or bodily injury, damage to merchandise,
equipment, fixtures or other personal property, or damage to business or from
business interruption arising, directly or indirectly, out of, from or on
account of such occupancy and use or resulting from any present or future
condition or state or repair thereof unless any of the above are due to the sole
negligence of the Landlord and are insured under Landlord's liability insurance
policy.
Landlord shall not be responsible or liable at any time to Tenant for
any loss of life, bodily or personal injury or damage to the property or
business of Tenant or Tenant's invitees, agents or employees, or for the
interruption of Tenant's business.
Landlord hereby agrees to defend, pay, indemnify and save free and
harmless Tenant from and against any and all claims, demands, fines, suits,
actions, proceedings, orders, decrees and judgments of any kind or nature,
unless due to the intentional misconduct of Tenant by or in favor of anyone
whomsoever and from and against any and all out-of-pocket costs and expenses,
including attorney's fees, resulting from or in connection with loss of life,
liability or personal injury or property damage arising directly or indirectly,
out of, from, or on account of any occurrence on, upon, at or in the Common
Areas.
Landlord shall not be liable for loss of life or injury or damage to
any person or any business of Tenant, or those claiming by, through or under
Tenant, caused by or resulting from: the bursting, breaking, leaking, running,
seeping, overflowing or backing up of water, steam, gas, sewage, snow or ice in
any part of the Leased Premises; or any acts of God or the elements; or any
defect or negligence in the occupancy, construction, operation or use of the
Leased Premises by Tenant or the equipment, fixtures, machinery, appliances or
apparatus therein.
Tenant shall give prompt notice to Landlord in case of fire or other
casualty or accidents in the Leased Premises or of any defects therein or in any
of its fixtures, machinery or equipment.
Notwithstanding anything herein to the contrary, Landlord and Tenant,
and all parties claiming under them, hereby mutually release and discharge the
other from all claims arising from or caused by any hazard covered by insurance
on the Leased Premises, the Building in which the Leased Premises are located,
or the Common Areas, regardless of the cause of damage or loss. This release
shall apply only to the extent that such loss or damage is covered
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by insurance and only so long as the applicable insurance policies contain a
clause to the effect that this release shall not affect the right of the insured
to recover under such policy or policies.
Tenant further covenants and agrees that from and after the date of
delivery of the Leased Premises from Landlord to Tenant, Tenant will carry and
maintain, at its sole cost and expense, the following types of insurance, in the
amounts specified and in the form hereinafter provided for:
(i) PUBLIC LIABILITY AND PROPERTY DAMAGE. Commercial general liability
insurance with a single limit of not less than One Million and 00/100 Dollars
($1,000,000.00) insuring against any and all liability of the insured with
respect to injury or damage to person and property occurring on or about the
Leased Premises or arising out of the use or occupancy thereof. All such
liability insurance shall specifically include, in addition to the above, broad
form contractual liability insurance covering the insuring provisions of this
Lease, the performance by Tenant of the indemnity agreement as to liability for
injury to or death of persons and injury or damage to property in this Article
contained. The amount of such insurance shall be subject to increase from time
to time upon the reasonable request of Landlord.
(ii) FIRE AND EXTENDED COVERAGE INSURANCE. Landlord shall not be liable
to Tenant for any damage to Tenant's trade fixtures, furniture, and other items
of personal property, sprinkler leakage, vandalism and malicious mischief,
except as the same may result from Landlord's gross negligence or intentional
act.
The policies of insurance carried by Tenant shall name both Landlord
and Tenant as named insureds, and the interests of Landlord's mortgagees shall
be insured under a Standard Union Mortgage Clause. All such policies shall
further provide that they may not be canceled except upon ten (10) days' prior
written notice to Landlord and, in the case of fire and extended coverage
insurance, thirty (30) days' prior written notice to Landlord's mortgagees.
Tenant shall, at Landlord's request, furnish to Landlord a copy of such policies
or certificates of such insurance and of any renewals thereof.
Landlord (a) shall carry a combined single limit public liability
insurance for personal and bodily injury in the amount of Two Million Dollars
($2,000,000.00) and property damage and fire and extended coverage insurance on
the building; and (b) may carry other forms of insurance deemed necessary by
Landlord with respect to the Building and Common Areas, in limits usual and
customary for an office building in St. Louis County. The cost of insurance
shall be part of Operating Expenses.
14. ATTORNMENT AND SUBORDINATION. Tenant shall, in the event of a sale,
transfer, or assignment of Landlord's interest in the Building or any part
thereof, or in the event any proceedings are brought for the foreclosure of, or
in the event of exercise of the power of sale under any mortgage made by
Landlord encumbering the Leased Premises or any part thereof, at the request of
the purchaser at such sale, upon receipt of a nondisturbance agreement, attorn
to and recognize such transferee, purchaser or mortgagee as landlord under this
Lease.
This Lease and the estate of Tenant hereunder shall be subject and
subordinate to any existing mortgage, deed of trust or other method of financing
or refinancing now encumbering
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the Leased Premises, the land underlying the Leased Premises and/or the
Building, and any replacement, modification, consolidation, renewal or extension
thereof. Landlord agrees to make good faith efforts to obtain for Tenant a
non-disturbance agreement for the existing mortgagee. Any such mortgage, deed of
trust or other method of financing or refinancing shall, for the full amount of
principal at any time advance thereon or secured thereby, with interest, be
prior and paramount to this Lease and to the rights of Tenant hereunder and
persons claiming through or under Tenant, or otherwise, in the Leased Premises.
Tenant, on Tenant's behalf, and on behalf of all persons claiming through or
under Tenant, covenants and agrees that Tenant will, from time to time at the
request of Landlord, upon receipt of a non-disturbance agreement, execute and
deliver any necessary or proper instruments or certificates acknowledging
priority of the lien or charge of such mortgage to such lease and to
subordination of this Lease thereto.
15. ACCESS BY LANDLORD. Landlord or Landlord's agents shall have the
right to enter the Leased Premises at any reasonable times during Tenant's
business hours on reasonable notice to Tenant to examine the same and to show
them to prospective purchasers of the Building, and to make repairs or
improvements to the Leased Premises or other premises, as Landlord may deem
necessary, and Landlord shall be allowed to take all material into and upon said
premises so long as such activity does not interrupt Tenant's business that may
be required therefor without the same constituting an eviction of Tenant in
whole or in part, and the rent reserved shall in no manner abate while such
repairs are being made so long as there is no interruption of business of
Tenant. During the six (6) months prior to the expiration of the term of this
Lease or any renewal term, Landlord may exhibit the Leased Premises to
prospective tenants during Tenant's business hours.
16. MECHANICS' LIENS. Tenant shall not permit or allow any mechanics'
or materialmen's lien to be filed against the fee of the Leased Premises or
against Tenant's leasehold interest in the Leased Premises. Should any
mechanics' or materialmen's lien or other encumbrance (hereinafter referred to
as "Encumbrance") be filed against the Leased Premises or the Building, Tenant
shall dismiss or bond against same within fifteen (15) days after the filing of
any such Encumbrance. If Tenant fails to remove or bond over said Encumbrance
within said fifteen (15) days, Landlord shall have the absolute right to cause
same to be cured by whatever measures Landlord shall deem convenient, including
without limitation payment of such Encumbrance (in which case Tenant shall
reimburse Landlord for same as Additional Rent); and shall be afforded all
remedies at law or in equity available to either Landlord or Tenant.
17. GOVERNMENT REGULATIONS. Tenant shall, at Tenant's sole cost and
expense, conform with all laws and requirements of any Municipal, State or
Federal authorities now in force, or which may hereafter be in force, pertaining
to the Premises, except those which require structural alterations to the Leased
Premises. The judgment of any court, or an admission of Tenant in any action or
proceeding at law, whether Landlord by a part thereto or not, shall be
conclusive of the fact as between Landlord and Tenant.
18. NOTICES. All Rents which are required to be paid by Tenant shall be
delivered by the United States Mail, postage prepaid, addressed to the parties
hereto at their respective addresses below; and all notices that are required to
be given hereunder shall be in writing and delivered by United States certified
mail, return receipt requested, postage prepaid, addressed to the parties hereto
at their respective addresses below:
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LANDLORD: TENANT:
Corporate Center, L.L.C. Sheffield Pharmaceuticals, Inc.
c/o Berkshire Management 11960 Westline Industrial Drive, Suite 1
1000 Executive Parkway St. Louis, MO 63146
St. Louis, MO 63141 Attn: Loren G. Peterson
Either party may designate a different address by giving notice to the other
party of same at the address set forth above. Proof of such notice so addressed
with postage prepaid shall be by the addressed "return receipt" used for
certified mail duly signed and returned to sender.
19. OWNERSHIP. Notwithstanding anything in this Lease to the contrary,
the term "Landlord" as used in this Lease shall be defined as the current
owner(s) of the Property. In the event of any transfer of the Property, the
party conveying same shall thereafter be automatically relieved of all personal
liability with respect to Landlord's performance of any obligations thereafter
occurring or covenants thereafter to be performed, it being intended hereby that
all obligations under this Lease shall be binding upon the owner(s) of the
Property to the extent such obligations accrue during that owners(s)' respective
period(s) of ownership of said Property.
20. SECURITY DEPOSIT. Tenant has deposited with Landlord the sum of
Nine Thousand Forty-Two Dollars ($9,042.00) as security for the full and
faithful performance of Tenant's obligations under this Lease. If Tenant should
be in Default as set forth in Paragraph 9 of this Lease, Landlord may apply all
or a part of this security deposit for the payment of any sum in Default or for
the payment of any amount which Landlord expended reason of such Default. If any
portion of said deposit is so applied, Tenant shall, within five (5) days after
written demand therefor, deposit with Landlord an amount sufficient to restore
the security deposit to its original amount. In the event that the Tenant shall
comply with all of the terms of this Lease, the security deposit shall be
returned to the Tenant after the date Eked as the end of the Lease and after
delivery of possession of the Leased Premises to the Landlord. In the event of a
sale or lease of the Building, the Landlord shall have the right to transfer the
security deposit to the vendee or lessee and the Landlord shall thereupon be
released from all liability for the return of such security deposit. The Tenant
shall look solely to the new Landlord for the return of such security deposit.
The Tenant shall not assign or encumber the money deposited as security and
neither the Landlord nor its successors or assigns shall be bound by any such
assignment or encumbrance.
21. ESTOPPEL CERTIFICATES. Tenant agrees upon written request by any
party in interest to execute, and return within fifteen (15) days, a statement
in writing certifying that this Lease is unmodified and in full force and
effect, that Tenant has no defenses, offsets or counterclaims against its
obligations to pay the Rent and to perform its other covenants under this Lease,
that there are no uncured Defaults of Landlord or Tenant, and setting forth the
dates to which the Rent and other charges have been paid. In the event Tenant
fails to return such statement within said fifteen (15) days, setting forth the
above, or alternatively setting forth those lease modifications, defenses and/or
uncured Defaults, it shall be deemed that this Lease is in full force and effect
as set forth on Landlord's statement; and any such statement delivered pursuant
to this Paragraph may be relied upon by any prospective purchaser, mortgagee, or
assignee of any mortgagee of the Leased Premises.
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22. Intentionally Deleted.
23. SURRENDER OF PREMISES. Upon the expiration or sooner termination of
the term of this Lease, Tenant shall quit and surrender the Leased Premises, in
as good condition and repair as they were at the commencement of the term,
reasonable wear and tear expected, together with all keys and combinations to
locks, all improvements, alterations, and additions, except personal property
and other trade fixtures, furnishings and equipment that Tenant may remove
pursuant to the terms hereof, all of which shall thereupon become the property
of Landlord without any claim by Tenant therefor, but the surrender of such
property to Landlord shall not be deemed to be a payment of rent or in lieu of
any rent reserved hereunder; however, notwithstanding the generality of the
foregoing provisions, Landlord shall have the right to require Tenant, upon
written notice given any time during the term of within thirty (30) days
thereafter, to remove any improvements, alterations or additions made by or on
behalf of Tenant and to repair any damage to the Building caused by such
removal. Before surrendering the Leased Premises, Tenant shall remove all of
Tenant's said personal property and unattached movable trade fixtures,
furnishings and equipment and if Tenant fails to do so said property shall be
deemed abandoned and become the exclusive property of Landlord; but the
retention or disposition of such abandoned property by Landlord shall not act as
a release or satisfaction of any damage sustained by Landlord on account of
Tenant's failure to remove the same as required by this section. If the Leased
Premises be not surrendered as and when aforesaid, Tenant shall indemnify
Landlord against all loss or liability resulting from the delay by Tenant in so
surrendering the same, including, without limitation, any claims made by any
succeeding occupant founded on such delay. Tenant's obligations under this
Article shall survive the expiration or sooner termination of the term of this
Lease.
24. BROKERAGE. The parties warrant that they have dealt with no owner
Broker or person in connection with this transaction other than CB Commercial
Real Estate Group, to whom Landlord agrees to pay a commission of 2.25%, and BMC
Capital, L.L.C., to whom Landlord agrees to pay a commission of 2.75%. If a
broker relationship exists as to a party to this Lease, then Landlord and Tenant
each agrees to indemnify the other from and against all liabilities, including
reasonable attorneys' fees, arising from any claims for brokerage commissions or
finder's fees resulting from or arising out of any conversations or negotiations
had by such party with any broker. This provision shall survive the termination
of this Lease.
25. SEVERABILITY. Should any provision of this Lease be unenforceable,
it shall be severable from this Lease; and this Lease shall remain in full force
and effect and be binding upon the parties hereto as though said provision had
not been included.
26. PERSONAL PROPERTY TAXES. Tenant shall timely pay all taxes and
assessments levied or assessed during the term hereof on or against (a) all
furniture, fixtures, equipment and any other personal property installed or
located within the Leased Premises, and (b) all alterations, additions,
betterments or improvements of whatsoever kind or nature, made by Tenant to the
Leased Premises. If said personal property and improvements are assessed with
the property of Landlord, Tenant shall pay to Landlord Tenant's share of such
taxes within ten (10) days after receipt of Landlord's statement setting forth
the amount of such taxes.
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27. QUIET ENJOYMENT. Upon payment by the Tenant of the rents herein
provided, and upon the observance and performance of all the covenants, terms
and conditions on Tenant's part to be observed and performed, Tenant shall
peaceably and quietly hold and enjoy the Leased Premises for the term hereby
demised without hindrance or interruption by Landlord or other person or persons
lawfully or equitably claiming by, through or under the Landlord, subject,
nevertheless, to the terms and conditions of this Lease.
28. MISCELLANEOUS.
(a) All of the covenants of Tenant hereunder shall be deemed and
construed to be "conditions" as well as "covenants" as though both words were
used in each separate instance.
(b) This Lease shall not be recorded by Tenant without the prior
written consent of Landlord.
(c) The paragraph headings appearing in this Lease are inserted only as
a matter of convenience, and in no way define or limit the scope of any
paragraph.
(d) Submission of this Lease shall not be deemed to be an offer, or an
acceptance, or a reservation of the Premises; and Landlord shall not be bound
hereby until Landlord has delivered to Tenant a fully-executed copy of this
Lease, signed by the parties hereto on the last page of this Lease in the spaces
herein provided. Until such delivery, Landlord reserves the right to exhibit and
lease the Premises to other prospective tenants. Notwithstanding anything
contained herein to the contrary, Landlord may withhold possession of the
Premises from Tenant until such time as Tenant has paid to Landlord the security
deposit required by Paragraph 20 of this Lease, and the first month's Rent as
set forth in Subparagraph 3(a) of this Lease.
(e) This Lease demises real estate located in the State of Missouri,
and shall be governed by the laws of such State. Should either party institute
legal suit or action for enforcement of any obligation contained herein, it is
agreed that the venue of such suit or action shall be, at the option of
Landlord, in St. Louis County, Missouri, and Tenant expressly consents to
Landlord's designating the venue of any suit or action.
(f) All the terms of this Lease shall extend to and be binding upon the
parties hereto and their respective heirs, executors, administrators, successors
and assigns.
(g) Tenant shall comply with all rules and regulations pertaining to
the use and occupancy of the Building and the Common Areas from time to time
adopted by Landlord. A copy of the current rules and regulations adopted by
Landlord are attached hereto; however, Landlord shall have the right to make
revisions, amendments, deletions and additions thereto upon written notice to
Tenant provided that all such changes made by Landlord shall be
non-discriminatory and shall not unreasonably interfere with Tenant's use of the
Leased Premises or unreasonably increase Tenant's financial burdens hereunder.
(h) The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term,
covenant or condition or any subsequent breach of the same or any other term,
covenant or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any
-17-
<PAGE>
preceding breach by Tenant of any term, covenant or condition of the Lease,
other than the failure of Tenant to pay the particular rental so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent. No covenant, term or condition of this Lease shall be
deemed to have been waived by Landlord, unless such waiver be in writing by
Landlord.
(i) This Lease and the Exhibits attached hereto forming a part hereof
set forth all of the covenants, promises, agreements, conditions and
undertakings between Landlord and Tenant concerning the Leased Premises and
there are no covenants, promises, agreements, conditions or understandings,
either oral or written, between them other than herein set forth. Except as
herein provided, no subsequent alteration, amendment, change or addition to this
Lease shall be binding upon Landlord or Tenant unless reduced to writing and
signed by them.
(j) Any holding over after the expiration of the term hereof, with the
consent of Landlord, shall be construed to be a tenancy from month to month on
the terms and conditions herein specified, so far as applicable, except that
Tenant shall pay for each day that Tenant holds over rent at one hundred fifty
percent (150%) the rent herein provided to be paid.
If Tenant holds over after the expiration of the term hereof without
the consent of Landlord, Tenant shall pay Landlord rent at a rate equal to one
hundred fifty percent (150%) of the rent payable for the month immediately
preceding the commencement of said holding over computed on a per-month basis
for each month or part thereof (without reduction for any partial month) that
Tenant remains in possession; in addition thereto, Tenant shall pay Landlord all
damages, consequential as well as direct, sustained by reason of Tenant's
retention of possession. Such retention of possession shall constitute a tenancy
at sufferance and not a month to month lease. The provisions of this Section
shall not exclude Landlord's right of re-entry or any other right hereunder, and
nothing herein contained shall preclude Landlord from terminating such retention
of possession as provided by law. Acceptance by Landlord of any payment of rent
subsequent to the commencement of such retention of possession by Tenant shall
not be deemed to constitute a waiver by Landlord of any of the provisions of
this Section.
(k) Nothing contained in this Lease shall be deemed to constitute or be
construed to create the relationship of principal and agent, partnership, joint
venturers or other relationship between the parties hereto, other than the
relationship of landlord and tenant.
(l) It is agreed that if any provision of this Lease shall be
determined to be void or invalid by any court of competent jurisdiction, then
such determination shall not affect any other provision of this Lease and all
such other provisions shall remain in full force and effect; and it is the
intention of the parties hereto that if any provision of this Lease is capable
of two constructions, one of which would render the provision valid, then the
provision shall have the meaning which renders it valid.
(m) Landlord reserves the right to change the name of the Building from
time to time during the term of this Lease.
(n) Notwithstanding anything to the contrary contained in this Lease,
it is expressly understood and agreed that none of Landlord's covenants,
undertakings and agreements under this Lease are made or intended as personal
covenants, undertakings or agreements by
-18-
<PAGE>
Landlord, and any liability for damage or breach for non-performance by Landlord
shall be collectable only out of Landlord's interest in the Leased Premises, and
no personal liability is assumed by or shall at any time may be asserted against
Landlord or its agents.
29. ENVIRONMENTAL. Tenant shall (i) not cause or permit any Hazardous
Materials to be brought upon, kept or used in or about the Leased Premises by
Tenant, its agents, employees, contractors, subtenants or invitees without the
prior written consent of Landlord, which Landlord shall not unreasonably
withhold as long as Tenant demonstrates to Landlord's reasonable satisfaction
that such Hazardous Material is necessary or useful to Tenant's business and
will be used kept and stored in a manner that complies with all laws regulating
any such Hazardous Material so brought upon or used or kept in or about the
Leased Premises. If Tenant breaches the obligations stated in the preceding
sentence, or if the presence of Hazardous Materials on the Leased Premises
caused or permitted by Tenant results in contamination of the Leased Premises
caused or permitted by Tenant except as results from acts of Landlord, its
employees or agents, results in contamination of the Leased Premises, or if
contamination of the Leased Premises by Hazardous Materials otherwise occurs due
to a negligent or wilful act of Tenant and for which Tenant is legally liable to
Landlord for damage resulting therefrom, then Tenant shall indemnify, defend and
hold Landlord harmless from any and all claims, judgments, damages, penalties,
fines, costs, liabilities or losses (including, without limitation, diminution
in value of the Leased Premises, damages for the loss or restriction on use of
rentable or usable space or of any amenity of the Leased Premises, damages
arising from any adverse impact on marketing of space, and sums paid in
settlement of claims, attorneys' fees, consultant fees and expert fees) which
arise during or after the lease term as a result of such contamination. This
indemnification of Landlord by Tenant includes, without limitation, costs
incurred in connection with any investigation of site conditions or any
clean-up, remedial, removal or restoration work required by any federal, state
or local governmental agency or political subdivision. Without limiting the
foregoing, if the presence of any Hazardous Materials on the Leased Premises
caused by Tenant, its officers, employees, contractors, agents, licensees or
subtenants, results in any contamination of the Leased Premises, Tenant shall
promptly take all actions at its sole expense as are necessary to return the
Leased Premises to the condition existing prior to the introduction of any such
Hazardous Materials to the Leased Premises; provided that Landlord's approval of
such actions shall first be obtained, which approval shall not be unreasonably
withheld so long as such actions would not potentially have any material adverse
long-term or short-term effect on the Leased Premises. The foregoing indemnity
shall survive the expiration or earlier termination of this Lease.
As used herein, the term "Hazardous Materials" means any hazardous or
toxic substance, material or waste, including, but not limited to, those
substances, materials and wastes listed in the United States Department of
Transportation Hazardous Materials Table (49 CFR 172.101) or by the
Environmental Protection Agency as hazardous substances (40 CFR Part 302) and
amendments thereto, or such substances, materials and wastes that are or become
regulated under any applicable local, state or federal law.
At the commencement of this Lease, and on January 1 of each year
thereafter (each such date being hereafter called "Disclosure Dates"), including
January 1 of the year after the termination of this Lease, Tenant shall disclose
to Landlord the names and amounts of all Hazardous Materials, or any combination
thereof, which were stored, used or disposed of on the Leased Premises, or which
Tenant intends to store, use or dispose of on the Leased Premises.
-19-
<PAGE>
Landlord and its agents shall have the right, but not the duty, to
inspect the Leased Premises at any time to determine whether Tenant is complying
with the terms of this Lease. If Tenant is not in compliance with this Lease,
Landlord shall have the right to immediately enter upon the Leased Premises to
remedy any contamination caused by Tenant's failure to comply notwithstanding
any other provision of this Lease. Landlord shall use its best efforts to
minimize interference with Tenant's business but shall not be liable for any
interference caused thereby.
Any default under this Article shall be a material default enabling
Landlord to exercise any of the remedies set forth in this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed and
sealed this Lease the day and year first above written.
LANDLORD: CORPORATE CENTER, L.L.C.
By: /s/ James Welch
----------------------
Title: Manager
TENANT: SHEFFIELD PHARMACEUTICALS, INC.
By: /s/ Loren Peterson
-----------------------
Title: Chief Executive Officer
-20-
<PAGE>
RULES AND REGULATIONS
Tenant agrees to comply with the following rules and regulations which
Landlord may reasonably modify from time to time. Landlord shall not be liable
for the nonobservance of said rules and regulations by any other tenant.
(1) No sign or advertisement shall be displayed by Tenant on the
outside or the inside (and visible from the outside) of the Premises without the
prior written consent of Landlord. Tenant shall not use any picture or likeness
of the Property in any notices or advertisements without Landlord's prior
written consent, which consent shall not be unreasonably withheld.
(2) Tenant's interior signage on the office door and marquis shall be
provided by Landlord, and all such signage so placed shall be at Tenant's risk.
Tenant shall cause the removal of all such signage from the Property at the end
of Tenant's term, or Landlord may cause such removal at Tenant's expense.
(3) No additional locks shall be placed upon any door of the Premises.
(4) Landlord retains the power to prescribe the weight and proper
position of safes, mechanical equipment, and any other bulky or excessively
weighty objects. All such objects shall be moved into or out of the Premises
under the prior written consent and supervision of Landlord and at such times
and according to such regulations as may be designated from time to time by
Landlord. Notwithstanding such supervision, Tenant shall be responsible for all
damage to the Property caused by moving such objects.
(5) Tenant shall not install any additional lighting to the Premises
other than normal wall-socket lamps. Tenant shall not use any other fuel source
other than electricity to heat, cool or light the Premises. Tenant shall not
install any air conditioning apparatus in the Premises. Tenant shall not permit
any animals or any foul or noxious gas, noise, odors and/or vibrations in the
Premises which may obstruct or interfere with the rights of other tenant(s) in
the Property.
(6) Tenant shall not contract for any work or service to be performed
to or within the Premises which might involve the employment of labor
incompatible with Landlord's employees or the employees of contractors doing
work or performing services by or on behalf of Landlord.
(7) All sidewalks, corridors and common areas shall not be obstructed
by Tenant or used for any purpose other than for ingress and egress. Landlord
retains the right to control all public areas not designated as the Premises,
provided nothing herein shall be construed to prevent access to such areas by
persons entering the Property for Tenant's purposes herein stated.
(8) Tenant shall not install any window treatments other than existing
treatments or otherwise obstruct the windows of the Premises without Landlord's
prior written consent. The bathrooms shall not be used for any purpose other
than those for which they were constructed, and no rubbish shall be thrown
therein.
-21-
<PAGE>
(9) Upon leaving the Premises at the close of business, Tenant shall
lock doors and windows; and for any Default or carelessness in this respect,
Tenant shall be liable for all damages sustained by Landlord and other tenants
resulting therefrom.
(10) Any person(s), other than Landlord's selected janitorial service,
who shall be employed by Tenant for the purpose of cleaning the Premises, shall
be employed at Tenant's cost. Tenant shall report any lack of attention in the
service of the Property to Landlord.
(11) Tenant shall not store in the Premises any waste paper, sweepings,
rags, rubbish or other combustible matter, nor shall Tenant bring into the
Premises any kerosene, oil or other combustible material.
(12) Landlord reserves the right to exclude from the Property all
drunken and disorderly persons, idlers, peddlers, solicitors, and persons
entering in crowds or in such unusual numbers as to cause inconvenience to the
other tenants.
(13) The Building hours are: Monday through Friday from 8:00 a.m. to
6:00 p.m., and Saturday from 8:00 a.m. to 1:00 p.m., holidays excepted. After
such hours, Landlord may lock the entrances to the Building, and entrance to the
Building may be limited to persons having a key to the Building.
(14) Minimum one access card per 1,000 square feet of Leased Premises
to the Building will be furnished to Tenant without charge. Tenant shall pay
Landlord Twenty-Five Dollars ($25.00) for each additional access card. Tenant
shall not, under any circumstances, have any duplicate access cards made.
Tenants, and the termination of their lease of the Premises, shall return to
Landlord all access cards to doors in the Building.
(15) The water closets and other water apparatus shall not be used for
any other purpose other than those for which they were constructed, and no
sweepings, rubbish or other obstructing substances shall be thrown therein.
Nothing shall be thrown by tenants or their employees out of the windows or
doors or down the passages of the Building.
(16) No space in the Building shall be used for sleeping or living
quarters, whether temporary or permanent.
(17) No safes, furniture, or other bulky or heavy articles shall be
brought into the Building or removed except with the prior written consent of
the Landlord, and then only by means of the elevator, stairway or through a
window of the Building as the Landlord may direct, and at such times and in such
manner and by such persons as Landlord may direct. No object whose weight
exceeds the lawful load of the area upon which it would stand shall be brought
into or kept upon a tenant's premises. If, in the judgment of the Landlord, it
is necessary to distribute the concentrated weight of any heavy object, the work
involved in such distribution shall be done at the expense of the Tenant and in
such manner as Landlord determine.
(18) Machines and mechanical equipment to be installed and used in a
tenant's premises shall be so equipped, installed and maintained by the tenant
as to prevent any disturbing noise, vibration or electrical or other
interference from being transmitted from such premises to any other area of the
Building.
-22-
<PAGE>
(19) No noises, including the playing of any musical instruments, radio
or television, which in the judgment of the Landlord might disturb other tenants
in the Building, shall be made or permitted by any tenant, and no cooking shall
be done in the tenant's premises, except as expressly approved by the Landlord.
Nothing shall be done or permitted in any tenant's premises, and nothing shall
be brought into or kept in any tenant's premises, which would impair or
interfere with any of the Building services or the proper and economic heating,
cleaning or other servicing of the Building or the premises, or the use and
enjoyment by any other tenant of any other premises, nor shall there be
installed by any tenant any ventilating, air conditioning, electrical or other
equipment of any kind which, in the judgment of the Landlord, might cause any
such impairing or interference. No dangerous, inflammable, combustible or
explosive object or material shall be brought into the Building by any tenant or
with the permission of any tenant. No offensive gases or liquids will be
permitted.
(20) If tenants require wiring for a bell or buzz system, such wiring
shall be done by Landlord, at the expense of such tenant, and no outside wiring
men shall be allowed to do work of this kind unless by the written permission of
Landlord. If telegraphic or telephone service is desired, the wiring for same
shall be done as directed by the Landlord, and no boring or cutting for wiring
shall be done unless approved by Landlord. The electric current shall be used
for ordinary lighting and for small office machines and equipment purposes only,
unless written permission to do otherwise shall first have been obtained from
Landlord.
(21) No painting shall be done, nor shall any alterations be made to
any part of the Building by putting up or changing any partitions, doors or
windows, nor shall there be any nailing, boring or screwing into the woodwork or
plastering, nor shall any connection be made to the electric wires or gas or
electric fixtures, without the consent in writing on each occasion of Landlord.
Tenant shall not injure or deface the Building, the woodwork, the windows,
doors, locks or walls of the premises.
(22) Landlord will post on the directories of its building one name to
be designated by the tenant at no charge. All additional names which tenant
shall desire to be placed upon said directory must be first consented to by
Landlord, and if so approved, a charge will be made for such additional listing
as prescribed by Landlord to be paid to Landlord by tenant.
(23) If at tenant's request any work done by Landlord with respect to
the premises is done during other than ordinary business hours, tenant shall pay
for all overtime costs.
(24) Except as otherwise expressly permitted by the lease, no
advertisement, sign or other notice shall be displayed in or on the windows or
doors, or on the outside of any tenant's premises or on the outside or inside of
the Building, except that the name of the tenant may be displayed on the
entrance door of the tenant's premises and at such other places as may be
designated by Landlord, which signs or displays shall be subject to the written
approval of the Landlord as to the size, color, style and content of such
display. The cost of such signs shall be charged to and paid for by tenants.
(25) Each tenant shall be responsible for the observance of these rules
and regulations by tenant's employees, agents, customers and invitees.
-23-
<PAGE>
40 CORPORATE CENTER
EXHIBIT B
Part of Lot 6 of SAMUEL SMITH ESTATE in U.S. Survey 369, Township 45 North Range
4 East of the Fifth Principal Meridian in St. Louis county Missouri and being
more particularly described as: Beginning at the intersection of the northeast
right of way line of Missouri State Highway 40, as described by instrument
recorded in Book 5851 Page 127 of the St. Louis County Missouri Records, with
the northwest line of said Lot 6; thence North 57 degrees 29 minutes 10 seconds
East 1143.68 feet along said northwest line, to a point on the western line of
Missouri State Highway 141 (Woods Mill Road); thence southwardly along said
western line, being a curve to the left; whose radius point bears South 69
degrees 37 minutes 54 seconds East 1950.08 feet from the last described point, a
distance of 178.76 feet (the last described line being parallel to and 40 feet
west of the centerline of said Highway 141), to a point on the original 60 foot
Right of Way of Woods Mill Road (County Road); thence southwardly along said
original Right of Way line, being a curve to the left, whose radius point bears
South 69 degrees 49 minutes 49 seconds East 1462.56 feet from the last described
point a distance of 412.17 feet to a point, being the northern-most corner of a
parcel of land conveyed to the State of Missouri by deed recorded in Book 7771
Page 2087; thence along the northwest line of said parcel (77712087), South SO
degrees 37 minutes 25 seconds West 153.58 feet to the North Right of Way of the
northwest Outer Road; thence along said Outer Road South 86 degrees 52 minutes
17 seconds West 288.67 feet; North 87 degrees 42 minutes 22 seconds West 331.10
feet; and North 62 degrees 42 minutes 26 seconds West 81.37 feet back to the
point of beginning and containing 6.199 Acres, more or less, known as 425 Woods
Mill Road South.
-24-
<PAGE>
EXHIBIT C
BUILDING STANDARD IMPROVEMENTS
o Furnish and install 4,440 sq. ft. 26 oz. Atlantic carpet
o Furnish and install 744 lineal feet Cove Base
o Patch and seal drywall as necessary
o Apply one coat of Glidden's Best interior latex flat paint
-25-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONDENSED FINANCIAL STATEMENTS FOR THE QUARTER ENDED SEPTEMBER 30, 1997 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 1,005,106
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 1,123,850
<PP&E> 331,286
<DEPRECIATION> 225,077
<TOTAL-ASSETS> 1,319,475
<CURRENT-LIABILITIES> 1,064,735
<BONDS> 0
2,444,436
0
<COMMON> 125,119
<OTHER-SE> (4,076,605)
<TOTAL-LIABILITY-AND-EQUITY> 1,319,475
<SALES> 0
<TOTAL-REVENUES> 9,391
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 1,896,044
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2,183
<INCOME-PRETAX> (1,888,836)
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,888,836)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,888,836)
<EPS-PRIMARY> (.16)
<EPS-DILUTED> (.16)
</TABLE>
