<PAGE>
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE FISCAL QUARTER ENDED SEPTEMBER 30, 1996
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Transition period from _____ to _________.
Commission file number: 0-27596
CONCEPTUS, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 94-3170244
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1021 HOWARD AVENUE
SAN CARLOS, CA 94070
(Address of principal executive offices)
Registrant's telephone number, including area code: (415) 802-7240
___________________
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such
shorter period that the registrant was required to file such reports),
and (2) has been subject to such filing requirements for at least the
past 90 days.
Yes X No
--------- ----------
As of October 31, 1996, 9,157,284 shares of the Registrant's Common Stock
were outstanding.
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CONCEPTUS, INC.
FORM 10-Q For the Quarter Ended September 30, 1996
INDEX
Page
Facing sheet 1
Index 2
Part I. Financial Information
Item 1. a) Balance sheets at September 30, 1996 and December 31, 1995 3
b) Statements of operations for the three and nine month periods
ended September 30, 1996 and September 30, 1995 4
c) Statements of cash flows for the three and nine month periods
ended September 30, 1996 and September 30, 1995 5
d) Notes to financial statements 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 8
Part II. Other Information 12
Signature 13
Index to Exhibits 14
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PART I: FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
CONCEPTUS, INC.
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEETS
(IN THOUSANDS, EXCEPT SHARE AND PER SHARE AMOUNTS)
SEPTEMBER 30, DECEMBER 31,
1996 1995
----------- -----------
(UNAUDITED)
ASSETS
Current Assets:
Cash and cash equivalents $ 14,991 $ 2,848
Short-term investments 29,558 2,234
Accounts receivable 229 13
Inventories 199 54
Other current assets 379 450
---------- ---------
Total current assets 45,356 5,599
Property and equipment, net 532 468
Other assets 10 25
---------- ---------
$ 45,898 $ 6,092
---------- ---------
---------- ---------
LIABILITIES AND STOCKHOLDERS'
EQUITY (NET CAPITAL DEFICIENCY)
Current liabilities:
Accounts payable $ 508 $ 576
Accrued compensation 454 301
Other accrued liabilities 466 152
Current portion of debt and
capital lease obligations 141 163
---------- ---------
Total current liabilities 1,569 1,192
Long-term portion of debt and capital
lease obligations 54 153
Commitments
Redeemable convertible preferred stock at
amount paid in 3,853,957 shares issued
and outstanding at December 31,1995;
aggregate liquidation preference of $16,704
at December 31,1995 - 16,624
Stockholders' equity (net capital deficiency)
Preferred stock, $0.003 par value, 4,700,000
shares authorized, issuable in series - Series
B, Series C and Series D represent redeemable
convertible stock shown above:
Series A, 666,666 convertible shares
authorized, issued and outstanding;
aggregate liquidation preference of $500
at December 31, 1995 - -
Common stock, $0.003 par value, 25,000,000
shares authorized 196,248 and 9,148,045
shares issued and outstanding at December
31, 1995 and September 30, 1996,
respectively 61,736 931
Stockholder notes receivable (49) (49)
Deferred compensation (613) (778)
Deficit accumulated during the
development stage (16,799) (11,981)
---------- ---------
Total stockholders' equity
(net capital deficiency) 44,275 (11,877)
---------- ---------
$ 45,898 $ 6,092
---------- ---------
---------- ---------
See notes to financial statements.
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CONCEPTUS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF OPERATIONS
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
Period from
Inception
Three Months Ended Nine Months Ended (September 18,
September 30, September 30, 1992) to
------------------ ------------------ September 30,
1996 1995 1996 1995 1996
-------- -------- -------- -------- --------------
<S> <C> <C> <C> <C> <C>
Net sales $ 236 $ 67 $ 423 $ 193 $ 1,055
Cost of sales 374 278 768 714 2,507
-------- -------- -------- -------- --------------
Gross profit (138) (211) (345) (521) (1,452)
Operating expenses:
Research and development 965 675 2,668 1,830 8,272
Selling, general and administrative 1,232 825 3,424 2,005 9,204
-------- -------- -------- -------- --------------
Total operating costs and expenses 2,197 1,500 6,092 3,835 17,476
-------- -------- -------- -------- --------------
Operating loss (2,335) (1,711) (6,437) (4,356) (18,928)
Interest income and other, net 618 124 1,640 277 2,217
Interest expense (6) (10) (20) (32) (87)
-------- -------- -------- -------- --------------
Net loss $ (1,723) $(1,597) $(4,817) $(4,111) $(16,798)
-------- -------- -------- -------- --------------
Net loss per share $ (0.19) $ (1.01) $ (0.59) $ (2.60)
-------- -------- -------- --------
-------- -------- -------- --------
Shares used in computing
net loss per share 9,143 1,589 8,134 1,582
-------- -------- -------- --------
-------- -------- -------- --------
Supplemental net loss per share $ (0.19) $ (0.34) $ (0.56) $ (0.97)
-------- -------- -------- --------
-------- -------- -------- --------
Shares used in computing
supplemental net loss per share 9,143 4,707 8,636 4,239
-------- -------- -------- --------
-------- -------- -------- --------
</TABLE>
See notes to financial statements.
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CONCEPTUS, INC.
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF CASH FLOWS
(UNAUDITED)
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
(IN THOUSANDS)
<TABLE>
<CAPTION>
Period from
Inception
(September 18,
Three Months Ended Nine Months Ended 1992) to
September 30, September 30, September 30,
1996 1995 1996 1995 1996
--------- --------- --------- --------- -------------
<S> <C> <C> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $ (1,724) $ (1,306) $ (4,818) $ (2,514) $ (15,075)
Adjustments to reconcile net loss to
net cash from operating activities:
Depreciation and amortization 80 60 219 114 575
Amortization of deferred compensation 54 - 165 - 201
Changes in operating assets and
liabilities
Accounts receivable (160) 76 (216) 77 (69)
Inventory (104) (85) (145) (116) (95)
Other current assets (181) (10) 71 9 (198)
Accounts payable 160 105 (68) 66 348
Accrued compensation 165 10 153 36 289
Other accrued liabilities 0 19 314 (17) 466
--------- --------- --------- --------- -------------
Net cash from operating activities (1,710) (1,131) (4,325) (2,345) (13,558)
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of investments (6,117) - (29,414) - (37,119)
Maturities of investments 0 2,757 2,090 2,757 10,716
Sales of investments - (978) - - 2,962
Capital expenditures (95) (38) (283) (49) (751)
Increase in other assets 12 2 15 3 (37)
--------- --------- --------- --------- -------------
Net cash from investing activites (6,200) 1,743 (27,592) 2,711 (24,229)
CASH FLOWS FROM FINANCING ACTIVITIES
Net proceeds from issuance of
preferred stock - - - - 16,624
Proceeds from issuance of common stock 108 5,144 44,181 5,175 44,087
Proceeds from issuance of debt - - - - 209
Principal payments on debt and
capital lease obligations (41) (35) (121) (67) (299)
--------- --------- --------- --------- -------------
Net cash from financing activities 67 5,109 44,060 5,108 60,621
Net change in cash and cash
equivalents (7,843) 5,721 12,143 5,474 22,834
Cash and cash equivalents at
beginning of period 22,834 2,249 2,848 2,496 -
--------- --------- --------- --------- -------------
Cash and cash equivalents at
end of period $ 14,991 $ 7,970 14,991 7,970 $ 22,834
--------- --------- --------- --------- -------------
--------- --------- --------- --------- -------------
SUPPLEMENTAL DISCLOSURE OF CASH
FLOW INFORMATION
Cash paid for interest $ 6 $ 10 $ 20 $ 32 $ 87
--------- --------- --------- --------- -------------
--------- --------- --------- --------- -------------
SUPPLEMENTAL SCHEDULE OF NON CASH
FINANCING ACTIVITIES
Equipment acquired under capital
lease obligation $ - $ - $ - $ 67 $ 327
--------- --------- --------- --------- -------------
--------- --------- --------- --------- -------------
Issuance of common stock in exchange
for note receivable $ - $ - $ - $ 24 $ 49
--------- --------- --------- --------- -------------
--------- --------- --------- --------- -------------
Conversion of preferred stock to
common stock $ - $ - $ 16,624 $ - $ 16,624
--------- --------- --------- --------- -------------
--------- --------- --------- --------- -------------
</TABLE>
See notes to financial statements.
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NOTES TO FINANCIAL STATEMENTS
UNAUDITED
ITEM 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
METHOD OF PREPARATION
The accompanying balance sheet as of September 30, 1996 and the statements
of operations and cash flows for the three and nine months ended September 30,
1996 and 1995 have been prepared by Conceptus, Inc. ("Conceptus" or the
"Company"), without audit. In the opinion of management, all adjustments
necessary to present fairly the financial position, results of operations, and
cash flows at September 30, 1996, and for all periods presented, have been made.
Although the Company believes that the disclosures in these financial
statements are adequate to make the information presented not misleading,
certain information and footnote disclosures required by Generally Accepted
Accounting Principles for complete financial statements have been omitted
pursuant to the rules and regulations of the Securities and Exchange Commission
("SEC"). The accompanying financial data should be reviewed in conjunction with
the audited financial statements and notes thereto included in the Company's
Form 10-K for the year ended December 31, 1995. The results of operations for
the three and nine months ended September 30, 1996 may not necessarily be
indicative of the operating results for the full 1996 fiscal year.
COMPUTATION OF NET LOSS PER SHARE
Except as noted below, net loss per share is computed using the weighted
average number of common shares outstanding. Common equivalent shares are
excluded from the computation as their effect is antidilutive, except that,
pursuant to the SEC Staff Accounting Bulletins, common and common equivalent
shares (stock options and convertible preferred stock) issued during the
12-month period prior to the initial offering at prices below the public
offering price have been included in the calculation as if they were
outstanding for all periods through September 30, 1995 (using the treasury
stock method for stock options).
As described above, the antidilutive effect of certain stock options is
included in the calculation of loss per share for all periods through
September 30, 1995, but is excluded from the calculation after that date.
Supplemental loss per share data is provided to show the calculation on a
consistent basis for the periods presented. It has been computed as
described above, but excludes the antidilutive effect of common equivalent
shares from stock options issued at prices substantially below the public
offering price during the 12-month period prior to the public offering, and
gives retroactive effect from the date of issuance to the conversion of
preferred stock which automatically converted to common shares upon the
closing of the Company's initial public offering.
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ACCOUNTING PRONOUNCEMENTS
In March 1995, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards ("SFAS") No. 121, "Accounting for
the Impairment of Long-Lived Assets and for Long-Lived Assets to Be Disposed Of"
("SFAS 121"), which requires impairment losses to be recorded when indicators of
impairment are present and the undiscounted cash flows estimated to be generated
from those assets are less than the assets' carrying amount. SFAS 121 also
addresses the accounting for long-lived assets that are expected to be sold or
otherwise disposed of. The Company will adopt SFAS 121 and, based on current
circumstances, does not believe that the effect of such Statement will be
material.
In October 1995, FASB issued SFAS No. 123, "Accounting for Stock-Based
Compensation" ("SFAS 123"), which provides an alternative to APB Opinion No. 25,
"Accounting for Stock Issued to Employees", in accounting for stock-based
compensation issued to employees. The Statement allows for a fair value-based
method of accounting for employee stock options and similar equity instruments.
However, for companies that continue to account for stock-based compensation
arrangements under Opinion No. 25, SFAS 123 requires disclosure of the pro forma
effect on net income and earnings per share of its fair value- based accounting
for those arrangements. These disclosure requirements are effective for fiscal
years beginning after December 15, 1995, or upon initial adoption of the
Statement, if earlier. It is the Company's intention to continue to account for
employee stock options in accordance with APB Opinion No. 25 and to adopt the
"disclosure only" alternative described in SFAS No. 123. As a result, there has
been no impact on the Company's financial position following adoption of SFAS
No. 123.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The following discussion should be read in conjunction with the
unaudited financial statements and notes thereto included in Part I-Item 1 of
this Quarterly Report. In addition, except for the historical statements
contained therein, the following discussion consists of forward-looking
statements within the meaning of Section 21E of the Securities Exchange Act
of 1934, as amended. The Company wishes to alert readers that the factors
set forth in the Company's prospectus dated February 1, 1996 under the
heading "Risk Factors", as well as other factors, including those set forth
in the following discussion, could in the future affect, and in the past have
affected, the Company's actual results and could cause the Company's results
for future periods to differ materially from those expressed in any forward
looking statements made by or on behalf of the Company.
OVERVIEW
Since its inception on September 18, 1992, Conceptus has been primarily
engaged in the design, development and marketing of innovative medical
devices that provide minimally invasive access to the female reproductive
system. The Company's initial focus is on the development of systems to
improve the diagnosis and treatment of fallopian tube diseases and disorders,
a primary cause of infertility. The Company has a limited history of
operations and has experienced significant operating losses since inception.
Operating losses are expected to continue for at least the next several years
as the Company continues to expend substantial resources to fund clinical
trials in support of regulatory and reimbursement approvals, research and
development and expansion of marketing and sales activities.
The Company's primary near-term commercial products, the Transcervical
Falloposcopy System and the Transcervical Tubal Access Catheter ("TTAC")
system have generated limited sales to date. The Company commenced shipments
of its Transcervical Falloposcopy System in March 1994 in order to begin a
multicenter clinical study of its falloposcopy system in Europe and
Australia. Substantially all of the revenues in 1994 and approximately 16% of
revenues in 1995, were derived from the centers involved in this clinical
study. Sales in the United States of the Company's Transcervical
Falloposcopy system are paced by Food and Drug Administration ("FDA")
approval or clearance to market. As previously reported, the Company refiled
a 510(k) with the FDA seeking clearance of its falloposcopy system for a
limited fallopian tube diagnostic indication in June 1996. On September 5,
1996, the Company received notification from the FDA that falloposcopy
devices used to evaluate proximal tubal occlusion will be reviewed through
the 510(k) regulatory pathway. On September 25, 1996, the Company received
a request from the FDA for additional data regarding the refiled 510(k) and
the Company filed the additional data on November 1, 1996. Based on standard
FDA procedures, the Company expects the FDA to respond to the additional data
within 90 days from the date of filing. There can be no assurance, however,
that the FDA will not require additional information beyond that submitted.
The Company sells its TTAC products in international markets through a
limited number of distributors who resell to physicians and hospitals. Sales
to distributors are made on open credit terms. In June 1996, the Company
strengthened its distribution capabilities by entering into a marketing and
distribution agreement with Schering Health Care Limited ("Schering"), the
U.K. subsidiary of the pharmaceutical company, Schering A.G. Schering will
distribute the Company's TTAC and falloposcopy products in the U.K. Although
the Company began marketing components of its TTAC system in the United
States in April 1995, general marketing of the system in the
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United States commenced upon the receipt of a 510(k) clearance for diagnosis
of proximal tubal occlusion in August 1995. In July 1996, the Company entered
into a distribution agreement with Mallinckrodt Medical ("Mallinckrodt"), a
distributor of radiological products. Mallinckrodt will distribute the
Company's TTAC products to hospitals in North, Central and South America.
Shipments to Mallinckrodt under this agreement commenced in September 1996.
The Company's direct sales force will continue to sell TTAC products to
non-hospital based interventional gynecologists, in these regions.
On October 29, 1996, the Company entered into an agreement to acquire
Microgyn, Inc., a privately held medical device company based in Andover,
Massachusetts for a combination of cash and stock. Microgyn is focused on
developing products to increase the safety and performance of resectoscope
procedures, including therapeutic hysteroscopy. This acquisition will be
accounted for using the purchase method and is expected to be completed in
the fourth quarter of 1996, subject to certain closing conditions.
Certain of the Company's products are manufactured by contract
manufacturers while others are manufactured by Conceptus at its facility in
San Carlos, California. If the TTAC and Transcervical Falloposcopy systems
are commercially successful, the Company expects to increase its
manufacturing operations in order to reduce product costs and increase gross
margin. Future revenues and results of operations may fluctuate
significantly from quarter to quarter and will depend upon, among other
factors, actions relating to regulatory and reimbursement matters, the extent
to which the Company's products gain market acceptance, the rate at which the
Company establishes its international and domestic distributor networks, the
timing and size of distributor purchases, the progress of clinical trials,
and the introduction of competitive products for diagnosis and treatment of
the female reproductive system.
RESULTS OF OPERATIONS
Sales increased to $236,000 and $423,000 for the three and nine months
ended September 30, 1996, from $67,000 and $193,000 for the respective
periods in the prior year. The increase is primarily due to increased
shipments of the Company's TTAC products to new distributors in the U.S. and
U.K. Domestic sales comprised 81% and 70% of sales for the three and nine
month periods ended September 30, 1996, respectively, compared with 62% and
47% in the prior year periods.
Cost of sales increased to $374,000 and $768,000 for the three and nine
month periods ended September 30, 1996 from $278,000 and $714,000 for same
periods in the prior year. This increase is due to increased unit
shipments of the Company's TTAC products in the current year periods.
Research and development ("R&D") expenses, which include clinical and
regulatory expenses, increased to $965,000 and $2,668,000 for the three and
nine months ended September 30, 1996 from $675,000 and $1,830,000 for the
respective periods in the prior year. This increase is primarily due to the
increased R&D employees and related personnel expenses as well as increased
expenses associated with supporting various R&D efforts. The Company
believes that its investment in product development is an essential element
of its efforts to establish its competitive position and continue the
development of future products. Accordingly, the Company expects to continue
to make substantial expenditures on product development and to increase the
dollar amount expended for R&D.
Selling, general and administrative ("SG&A") expenses increased to
$1,232,000 and $3,424,000 for the three and nine months ended September 30,
1996 from $825,000 and $2,005,000 for the respective periods in the prior
year. This increase is primarily due to growth of
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the Company's direct sales force in the United States, increased costs
associated with marketing the Company's TTAC products in the United States,
and increased administrative costs associated with being a publicly held
company. The Company anticipates that the dollar amount expended for SG&A
will continue to increase, primarily due to expenses associated with
expanding domestic administrative functions, introducing and marketing the
Company's products, which will require increased physician training, and
sales support.
Net interest and other income increased to $618,000 and $1,640,000 for
the three and nine months ended September 30, 1996 from $124,000 and $277,000
for the respective periods in the prior year. The increase is due to a
higher average invested cash balance from the proceeds of the Company's
initial public offering of common stock on February 1, 1996. Interest
expense for the three and nine months ended September 30, 1996 and 1995 were
immaterial.
As a result of the items discussed above, net loss increased to
$1,723,000 and $4,817,000 for the three and nine months ended September 30,
1996 from $1,597,000 and $4,111,000 for the respective periods in 1995.
The Company has a limited history of operations. Since its inception in
September 1992, the Company has been engaged primarily in research and
development of its TTAC, Transcervical Falloposcopy, and tubal sterilization
products. The Company has generated only limited revenues, primarily from
sales in international markets for clinical trials and new distributors, and
does not have experience in manufacturing, marketing or selling its products
in commercial quantities. The Company has experienced significant operating
losses since inception and, as of September 30, 1996, had an accumulated
deficit of $16,799,000. The Company expects its operating losses to continue
for at least the next several years as limited product sales will continue to
be offset by the substantial resources in funding clinical trials in support
of regulatory and reimbursement approvals, expansion of manufacturing,
marketing and sales activities and research and product development or
acquisition. Due to the expense and unpredictable nature of these
activities, there can be no assurance that the Company will achieve or
sustain profitability in the future.
LIQUIDITY AND CAPITAL RESOURCES
Since inception, the Company's cash expenditures have significantly
exceeded its sales, resulting in an accumulated deficit of $16.8 million at
September 30, 1996. Prior to the Company's initial public offering, the
Company funded its operations primarily through the private placement of
$16.6 million of equity securities, as well as through interest income,
equipment financing and secured loan arrangements. On February 1, 1996, the
Company completed an initial public offering of 3,450,000 shares of its
common stock at $14.00 per share for net proceeds of approximately $44.0
million.
At September 30, 1996, Conceptus had cash, cash equivalents and
short-term investments of $44.5 million compared with $5.1 million at
December 31, 1995. The increase is due to approximately $44.0 million of net
proceeds from the Company's initial public offering, partially offset by
approximately $4.6 million used in operating and investing activities.
Capital expenditures in the first nine months of 1996 increased to $283,000
from $49,000 in the prior year period, largely due to expenditures necessary
to support the growth in employees and growth of operations.
Conceptus believes that the net proceeds from its initial public
offering, together with interest thereon and the Company's existing capital
resources, will be sufficient to fund its operations through 1997. However,
the Company's future liquidity and capital requirements will depend upon
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numerous factors, including the progress of the Company's clinical research
and product development programs, the receipt of and the time required to
obtain regulatory clearances and approvals, and the resources the Company
devotes to developing or acquiring, manufacturing and marketing its products.
The Company's capital requirements will also depend on, among other things,
the resources required to hire and develop a direct sales force in the United
States and internationally, the resources required to expand manufacturing
capacity and facility requirements and the extent to which the Company's
products generate market acceptance and demand. Accordingly, there can be no
assurance that the Company will not require additional financing within this
time frame and, therefore, may in the future seek to raise additional funds
through bank facilities, debt or equity offerings or other sources of
capital. Additional funding may not be available when needed or on terms
acceptable to the Company, which would have a material adverse effect on the
Company's business, financial condition and results of operations.
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PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
None.
ITEM 2. CHANGES IN SECURITIES
None.
ITEM 3. DEFAULTS IN SENIOR SECURITIES
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
None.
ITEM 5. OTHER INFORMATION
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.13 Lease agreement with Dani Investment Partners
11.1 Computation of net loss per share (see Note 1 to
Financial Information in Part I of this Form 10-Q).
27 Financial Data Schedule
(b) Reports on Form 8-K.
None.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this Report to be signed on its behalf by the
undersigned, thereunto duly authorized.
CONCEPTUS, INC.
By: /s/ SANFORD FITCH
------------------------------------
Sanford Fitch
Vice President, Finance and Operations
and Chief Financial Officer
(Duly Authorized and Principal Financial
and Accounting Officer)
Date: November 15, 1996
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- -----------
10.13 Lease agreement with Dani Investment Partners
11.1 Statement Re Computation of Net Loss Per Share
27 Financial data schedule
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STANDARD INDUSTRIAL LEASE
---------------------------------
BLICKMAN TURKUS
COMMERCIAL INDUSTRIAL REAL ESTATE
---------------------------------
An Affiliate of The Woodmont Companies
---------------------------------
1. PARTIES. This Lease, dated, for reference purposes only, November 8, 1994,
is made by and between DANI INVESTMENT PARTNERS (herein called "Lessor")
and Conceptus, Inc. (herein called "Lessee").
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from Lessor for
the term, at the rental, and upon all of the conditions set forth herein,
that certain real property situated in the County of San Mateo State of
California, commonly known as 1021 Howard Avenue, San Carlos, CA and
described as an approximate 20,000 square foot industrial building
("Building") and associated common areas which Lessee shall have, as
appurtenant to the Premises, the right to use ("Common Areas") whereby the
Lessee will lease an approximate 14,000 square foot portion.
Said real property including the land and all improvements thereon, is herein
called "the Premises".
3. TERM.
3.1 TERM. The term of this Lease shall be for twelve (12) months
commencing on September 1, 1995, and ending on August 31, 1996 unless sooner
terminated pursuant to any provision hereof.
3.2 DELAY IN COMMENCEMENT. Notwithstanding said commencement date, if for
any reason Lessor cannot deliver possession of the Premises to Lessee on said
date, Lessor shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease or the obligations of Lessee
hereunder or extend the term hereof, but in such case Lessee shall not be
obligated to pay rent until possession of the Premises is tendered to Lessee,
provided, however, that if Lessor shall not have delivered possession of the
Premises within sixty (60) days from said commencement date, Lessee may, at
Lessee's option, by notice in writing to Lessor within ten (10) days
thereafter, cancel this Lease, in which event the parties shall be discharged
from all obligations hereunder. If Lessee occupies the Premises prior to the
rental Commencement Date, such occupancy shall be subject to all provisions
hereof, such occupancy shall not advance the termination date, and Lessee
shall not be obligated to pay rent for such period at the initial monthly
rates set forth below.
4. RENT. Lessee shall pay to Lessor as rent for the Premises equal monthly
payments of $10,500, in advance, on the 1st day of each month of the term
hereof. Lessee shall pay Lessor upon the execution hereof $ _________ as rent
for __________________ .
See Addendums 1
Rent for any period during the term hereof which is for less than one month
shall be a pro rata portion of the monthly installment. Rent shall be payable
in lawful money of the United States to Lessor at the address stated herein
or to such other persons or at such other places as Lessor may designate in
writing.
5. SECURITY DEPOSIT. Lessee shall deposit with Lessor upon execution hereof
$10,500 as security for Lessee's faithful performance of Lessee's obligations
hereunder. If Lessee fails to pay rent or other charges due hereunder, or
otherwise defaults with respect to any material provision of this Lease,
Lessor may use, apply or retain all or any portion of said deposit for the
payment of any rent or other charge in default or for the payment of any
other reasonable sum to which Lessor may become obligated by reason of
Lessee's default, or to compensate Lessor for any loss or damage which Lessor
may suffer thereby. If Lessor so uses or applies all or any portion of said
deposit, Lessee shall within ten (10) business days after written demand
therefor deposit cash with Lessor in an amount sufficient to restore said
deposit to the full amount hereinabove stated and Lessee's failure to do so
shall be a material breach of this Lease. Lessor shall not be required to
keep said deposit separate from its general accounts. If Lessee performs all
of Lessee's obligations hereunder, said deposit, or so much thereof as has
not theretofore been applied by Lessor, shall promptly be returned without
payment of interest or other increment for its use, to Lessee (or, at
Lessor's option, to the last assignee, if any of Lessee's interest hereunder)
at the expiration of the term thereof, and after Lessee has vacated the
Premises. No trust relationship is created herein between Lessor and Lessee
with respect to said Security Deposit.
6. USE.
6.1 USE. The Premises shall be used and occupied only for Laboratory
research, development, manufacturing and administrative use and for other
legally related purpose.
See Addendum 2
6.2 COMPLIANCE WITH LAW.
(a) Lessor warrants to Lessee that the Premises, in its existing state,
but without regard to the use for which Lessee will use the Premises, does
not violate any applicable building code regulation or ordinance at the time
that this Lease is executed. In the event that it is determined that this
warranty has been violated, then it shall be the obligation of the Lessor,
after written notice from Lessee, to promptly, at Lessor's sole cost and
expense, to rectify any such violation. In the event that Lessee does not
give to Lessor written notice of the violation of this warranty within 1 year
from the commencement of the term of this Lease, it shall be conclusively
deemed that such violation did not exist and the correction of the same shall
be the obligation of the Lessee.
(b) Except as provided in paragraph 6.2(a), Lessee shall, at Lessee's
expense, not violate any applicable statutes, ordinances, rules, regulations,
orders, restrictions of record, and requirements in effect during the term or
any part of the term hereof regulating the use by Lessee of the Premises,
Lessee shall not use nor permit the use of the Premises in any manner that
will tend to create waste or a nuisance or, if there XXXXXXXXXXXXXXXXXXXXXXX.
6.3. CONDITION OF PREMISES. Except as provided in paragraph 6.2(a) Lessee
hereby accepts the Premises XXXXXXXXXXXXXXXXX date of the execution hereof,
subject to all applicable zoning, municipal, county and state laws,
ordinances and regulations governing and regulating the use of the Premises,
and accepts this Lease subject thereto and to all matters disclosed thereby
and by any exhibits attached hereto. Lessee acknowledges that neither Lessor
nor Lessor's agent has made any representation or warranty as to the
suitability of the Premises for the conduct of Lessee's business. Lessee
acknowledges that neither Lessor nor Lessor's agent has made any
representations or warranty as to the suitability of the Premises for the
conduct of Lessee's business.
See Addendum 3
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 LESSEE'S OBLIGATIONS. Lessee shall keep in good order, condition and
repair the Premises and every part thereof, structural and non-structural,
(whether or not such portion of the Premises requiring repair, or the means
of repairing the same are reasonably or readily accessible to Lessee, and
whether or not the need for such repairs occurs as a result of Lessee's use,
any prior use, the elements or the age of such portion of the Premises)
including, without limiting the generality of the foregoing, all plumbing,
heating, airconditioning, ventilating, electrical, lighting facilities and
equipment within the Premises, fixtures, walls (interior and exterior),
foundations, ceilings, roofs (interior and exterior), floors, windows, doors,
plate glass and skylights located within the Premises, and all landscaping,
driveways, parking lots, fences and signs located on the Premises and
sidewalks and parkways adjacent to the Premises.
7.2 SURRENDER. On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the same
condition as when received, broom clean, ordinary wear and tear, casualty,
acts of God and condemnation excepted. Lessee shall repair any damage to the
Premises directly occasioned by the removal of Lessee's trade fixtures,
furnishings and equipment pursuant to Paragraph 7.5(d), which repair shall
include the patching and filling of holes and repair of structural damage.
7.3 LESSOR'S RIGHTS. If Lessee fails to perform Lessee's obligations under
this Paragraph 7, Lessor may at its option (but shall not be required to)
enter upon the Premises, after ten (10) days' prior written notice to Lessee
and provided Lessee has continued to fail to perform such obligation, and put
the same in good order, condition and repair, and the cost thereof together
with interest thereon at the rate of 10% per annum shall become due and
payable as additional rental to Lessor together with Lessee's next rental
installment.
<PAGE>
7.5 ALTERATIONS AND ADDITIONS.
(a) Lessee shall not, without Lessor's prior written consent make any
alterations, improvements, additions, or Utility installations in, on or
about the Premises, except for nonstructural alterations not exceeding $1,000
in cost. As used in this Paragraph 7.5 the term "Utility installation"
shall mean bus ducting, power panels, wiring, fluorescent fixtures, space
heaters, conduits, air conditioning equipment and plumbing. Lessor may
require that Lessee remove any or all of said alterations, improvements,
additions or Utility installations at the expiration of the term, and restore
the Premises to their prior condition, reasonable wear and tear, casualty,
condemnation and acts of God excepted. Lessor may require Lessee to provide
Lessor, at Lessee's sole cost and expense, a lien and completion bond in an
amount equal to one and one-half times the estimated cost of such
improvements, to insure Lessor against any liability for mechanic's and
materialmen's liens and to insure completion of the work. Should Lessee make
any alterations, improvements, additions or Utility Installations without the
prior approval of Lessor which shall not be unreasonably withheld or delayed.
Lessor may require that Lessee remove any or all of the same.
(b) Any alterations, improvements, additions or Utility installations in
or about the Premises that Lessee shall desire to make and which requires the
consent of the Lessor shall be presented to Lessor in written form, with
proposed detailed plans. If Lessor shall give its consent the consent shall
be deemed conditioned upon Lessee acquiring a permit to do so from
appropriate governmental agencies, the furnishing of a copy thereof to Lessor
prior to the commencement of the work and the compliance by Lessee of all
conditions of said permit in a prompt and expeditious manner, subject to the
terms set forth in Section 7.5(a) above.
(c) Lessee shall pay, when due, all claims for labor or materials furnished
or alleged to have been furnished to or for Lessee at or for use in the
Premises, which claims are or may be secured by any mechanics' or
materialmen's lien against the Premises or any interest therein. Lessee shall
give Lessor not less than ten (10) days' notice prior to the commencement of
any work in the Premises, and Lessor shall have the right to post notices of
non-responsibility in or on the Premises as provided by law. If Lessee shall,
in good faith, contest the validity of any such lien, claim or demand, then
Lessee shall, at its sole expense defend itself and Lessor against the same
and shall pay and satisfy any such adverse judgment that may be rendered
thereon before the enforcement thereof against the Lessor or the Premises,
upon the condition that if Lessor shall require, Lessee shall furnish to
Lessor a surety bond satisfactory to Lessor in an amount equal to such
contested lien, claim or demand indemnifying Lessor against liability for the
same and holding the Premises free from the effect of such lien or claim. In
addition, Lessor may require Lessee to pay Lessor's attorneys fees and costs
in participating in such action if Lessor shall decide it is to its best
interest to do so.
(d) Unless Lessor requires their removal, as set forth in Paragraph
7.5(a), all alterations, improvements, additions and Utility Installations
(whether or not such Utility Installations constitute trade fixtures of
Lessee), which may be made on the Premises, shall become the property of
Lessor and remain upon and be surrendered with the Premises at the expiration
of the term. Notwithstanding the provisions of this Paragraph 7.5(d),
Lessee's machinery and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the
Premises, shall remain the property of Lessee and may be removed by Lessee
subject to the provisions of Paragraph 7.2.
8. INSURANCE INDEMNITY.
8.1 INSURING PARTY. As used in this Paragraph 8, the term "insuring
party" shall mean the party who has the obligation to obtain the Property
Insurance required hereunder. The insuring party shall be designated in
Paragraph 16.26 hereof. Whether the insuring party is the Lessor or the
Lessee, Lessee shall, as additional rent for the Premises, pay the cost of
all insurance required hereunder. If Lessor is the insuring party Lessee
shall, within ten (10) days following demand by Lessor, reimburse Lessor for
the cost of the insurance so obtained.
8.2 LIABILITY INSURANCE. Lessee shall, at Lessee's expense obtain and keep
in force during the term of this Lease a policy of Combined Single Limit,
Bodily Injury and Property Damage Insurance insuring Lessor and Lessee
against any liability arising out of the ownership, use, occupancy or
maintenance of the Premises and all areas appurtenant thereto. Such insurance
shall be a combined single limit policy in an amount not less than
$1,000,000. The policy shall contain cross liability endorsements and shall
insure performance by Lessee of the indemnity provisions of this Paragraph 8.
The limits of such insurance shall not, however, limit the liability of
Lessee hereunder. In the event that the Premises constitute a part of a
larger property said insurance shall have a Lessor's Protective Liability
endorsement attached thereto. If Lessee shall fail to procure and maintain
said insurance Lessor may, but shall not be required to procure and maintain
the same, but at the expense of Lessee. Not more frequently than each 5
years, if, in the reasonable opinion of Lessor, the amount of liability
insurance required hereunder is not adequate, Lessee shall increase said
insurance coverage as required by Lessor. Provided, however that in no event
shall the amount of the Liability insurance increase be more than fifty
percent greater than the amount thereof during the preceding five years of
the term of the lease. However, the failure of Lessor to require any
additional insurance coverage shall not be deemed to relieve Lessee from any
obligations under this Lease.
8.3 PROPERTY INSURANCE
(a) The Landlord shall obtain and keep in force during the term of this
Lease a policy of policies of insurance covering loss or damage to
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
$1,000,000, but in no event less than the total amount of promissory notes
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
within the classification of fire, extended coverage, vandalism, malicious
mischief, special extended perils (all risk) and sprinkler leakage XXXXXXXX
insurance shall provide for payment of loss thereunder to Lessor or to the
holders of mortgages or deeds of trust on the Premises. The insuring party
shall, in addition, obtain and keep in force during the term of this Lease a
policy of rental income insurance covering a period of six months, with loss
payable to Lessor, which insurance shall also cover all real estate taxes and
insurance costs for said period. If the insuring party shall fail to procure
and maintain said insurance the other party may, but shall not be required
to, procure and maintain the same, but at the expense of Lessee. If such
insurance coverage has a deductible clause, Lessee shall be liable for the
deductible amount.
(b) If the Premises are part of a larger building, or if the Premises
are part of a group of buildings owned by Lessor which are adjacent to the
Premises, then Lessee shall pay for any increase in the property insurance of
such other building or buildings if said increase is directly caused by
Lessee's acts, omissions, use or occupancy of the Premises.
(c) If the Lessor is the insuring party the Lessor will not insure
Lessee's fixtures, equipment or tenant improvements unless the tenant
improvements have become a part of the Premises under paragraph 7, hereof. But
if Lessee is the insuring party the Lessee shall insure its fixtures,
equipment and tenant improvements.
(d) Not more frequently than each three years, if, in the opinion of
Lessor, the amount of property insurance required hereunder is not adequate,
the insuring party shall increase said insurance coverage as required by
Lessor. However, such increase may be more frequent than each three years if
required by the insurance carrier in order to maintain insurance for the full
replacement value of the Premises.
8.4 INSURANCE POLICIES. Insurance required hereunder shall be in companies
holding a "General Policyholders Rating" of B plus or better as set forth in
the most current issue of "Best's Insurance Guide". The insuring party shall
deliver to the other party copies of policies of such insurance or
certificates evidencing the existence and amounts of such insurance with loss
payable clauses satisfactory to Lessor. No such policy shall be cancelable or
subject to reduction of coverage or other modification except after ten (10)
days' prior written notice to Lessor. If Lessee is the insuring party Lessee
shall, within ten (10) days prior to the expiration of such policies, furnish
Lessor with renewals or "binders" thereof, or Lessor may order such insurance
and charge the cost thereof to Lessee, which amount shall be payable by
Lessee upon demand. Lessee shall not do or permit to be done anything which
shall invalidate the insurance policies referred to in Paragraph 8.3. If
Lessee does or permits to be done anything which shall increase the cost of
the insurance policies referred to in Paragraph 8.3, then Lessee shall
forthwith upon Lessor's demand reimburse Lessor for any additional premiums
attributable to any act or omission or operation of Lessee causing such
increase in the cost of insurance. If Lessor is the insuring party, and if
the insurance policies maintained hereunder cover other improvements in
addition to the Premises, Lessor shall deliver to Lessee a written statement
setting forth the amount of any such insurance cost increase and showing in
reasonable detail the manner in which it has been computed.
8.5 WAIVER OF SUBROGATION. Lessee and Lessor each hereby waive any and all
rights of recovery against the other, or against the officers, employees,
agents and representatives of the other, for loss of or damage to such
waiving party or its property or the property of others under its control to
the extent that such loss or damage is insured against under any insurance
policy in force at the time of such loss or damages. The insuring party
shall, upon obtaining the policies of insurance required hereunder, give
notice to the insurance carrier or carriers that the foregoing mutual waiver
of subrogation is contained in this Lease.
See Addendum 4
8.7 EXEMPTION OF LESSOR FROM LIABILITY. Except to the extent caused by
Lessor's and Lessor's employess, agents, contractors and servants, Lessee
hereby agrees that Lessor shall not be liable for injury to Lessee's business
or any loss of income therefrom or for damage to the goods, wares,
merchandise or other property of Lessee, Lessee's employees, invitees,
customers in or about the Premises, nor shall Lessor be liable for injury to
the person of Lessee, Lessee's employees, agents or contractors whether such
damage or injury is caused by or results from fire, steam, electricity, gas,
water or rain, or from the breakage, leakage, obstruction or other defects of
pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting
fixtures, or from any other cause, whether the said damage or injury results
from conditions arising upon the Premises or upon other portions of the
building of which the Premises are a part, or from other sources or places
and regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Lessee. Lessor shall not be liable for
any damages arising from any act or neglect of any other tenant if any, of
the building in which the Premises are located.
See Addendum 5
9. DAMAGE OR DESTRUCTION.
9.1 PARTIAL DAMAGE -- INSURED. Subject to the provisions of Paragraph 9.3
and 9.4, if the Premises are damaged and such damage was caused by a casualty
covered under an insurance policy required to be maintained pursuant to
Paragraph 8.3, Lessor shall at Lessor's expense repair such damage but not
Lessee's fixtures, equipment or tenant improvements unless the same have
become a part of the Premises pursuant to Paragraph XXXXX hereof, as soon as
reasonably possible and this Lease shall continue in full force and effect.
Notwithstanding the above, if the Lessee is the insuring party, and if the
insurance proceeds received by Lessor are not sufficient to effect such
repair, Lessor shall give notice to Lessee of the amount required in addition
to the insurance proceeds to effect such repair. Lessee shall contribute the
required amount to Lessor within ten days after Lessee has received notice
from Lessor of the shortage in the insurance. When Lessee shall contribute
such amount to Lessor, Lessor shall make such repairs as soon as reasonably
possible and this Lessee shall continue in full force and effect. Lessee
shall in no event have any right to reimbursement for any such amount so
contributed.
<PAGE>
9.2 PARTIAL DAMAGE -- UNINSURED. Subject to the provisions of Paragraphs
9.3 and 9.4, if at any time during the term XXXXXXXXX damaged, except by a
negligent or willful act of Lessee, (in which event Lessee shall make the
repairs, at its expense) and such damage was caused by a casualty not covered
under an insurance policy required to be maintained pursuant to Paragraph
8.3, Lessor may at Lessor's option either(a) repair such damage as soon as
reasonably possible at Lessor's expense, in which event this Lease shall
continue in full force and effect, or(b) give written notice to Lessee within
thirty(30) days after the date of the occurrence of such damage of Lessor's
intention to cancel and terminate this Lease as of the date of the occurrence
of such damage. In the event Lessor elects to give such notice of Lessor's
intention to cancel and terminate this Lease, Lessee shall have the right
within ten (10) days after the receipt of such notice to give written notice
to Lessor of Lessee's intention to repair such damage at Lessee's expense,
without reimbursement from Lessor, in which event this Lease shall continue
in full force and effect and Lessee shall proceed to make such repairs as
soon as reasonably possible. If Lessee does not give such notice within such
10-day period this Lease shall be cancelled and terminated as of the date of
the occurrence of such damage.
9.3 TOTAL DESTRUCTION. If at any time during the term hereof the Premises
are totally destroyed from any cause whether or not covered by the insurance
required to be maintained pursuant to Paragraph 8.3 (including any total
destruction required by any authorized public authority) this Lease shall
automatically terminate as of the date of such total destruction.
9.4 DAMAGE NEAR END OF TERM. If the Premises are partially destroyed or
damaged during the last six months of the term of this Lease, Lessor may at
Lessor's option cancel and terminate this Lease as of the date of occurrence
of such damage by giving written notice to Lessee of Lessor's election to do
so within 30 days after the date of occurrence of such damage.
9.5 ABATEMENT OF RENT; LESSEE'S REMEDIES.
(a) If the Premises are partially destroyed or damaged and Lessor or
Lessee repairs or restores them pursuant to the provisions of this Paragraph
9, the rent payable hereunder for the period during which such damage, repair
or restoration continues shall be abated in proportion to the degree to which
Lessee's use of the Premises is impaired, provided, however, that the
aggregate amount of abatement hereunder shall not exceed the total of rent
payable under Paragraph 4 for a period of six months. Except for abatement of
rent, if any, Lessee shall have no claim against Lessor for any damage
suffered by reason of any such damage, destruction, repair or restoration.
(b) If Lessor shall be obligated to repair or restore the Premises under
the provisions of this Paragraph 9 and shall not commence such repair or
restoration within 90 days after such obligation shall accrue, Lessee may at
Lessee's option cancel and terminate this Lease by giving Lessor written
notice at Lessee's election to do so at any time prior to the commencement of
such repair or restoration. In such event this Lease shall terminate as of
the date of such notice.
9.6 TERMINATION -- ADVANCE PAYMENTS. Upon termination of this Lease
pursuant to this Paragraph 9, an equitable adjustment shall be made
concerning advance rent and any advance payments made by Lessee to Lessor.
Lessor shall, in addition, return to Lessee so much of Lessee's security
deposit as has not theretofore been applied by Lessor.
9.7 WAIVER. Lessee waives the provisions of California Civil Code Sections
1932(2) and 1933(4) which relate to termination of leases where the thing
being leased is destroyed and agrees that such event shall be governed by the
terms of this Lease.
10. REAL PROPERTY TAXES.
See Addendum 6
10.1 PAYMENT OF TAXES. Lessee shall pay all real property taxes applicable
to the Premises during the term of this Lease. All such payments shall be made
at least ten (10) days prior to the delinquency date of such payment. Lessee
shall promptly furnish Lessor with satisfactory evidence that such taxes have
been paid. If any such taxes paid by Lessee shall cover any period of time
prior to or after the expiration of the term hereof, Lessee's share of such
taxes shall be equitably prorated to cover only the period of time within the
tax fiscal year during which this Lease shall be in effect, and Lessor shall
reimburse Lessee to the extent required. If Lessee shall fail to pay any such
taxes, Lessor shall have the right to pay the same, in which case Lessee
shall repay such amount to Lessor with Lessee's next rent installment
together with interest at the rate of 10% per annum.
10.2 DEFINITION OF "REAL PROPERTY" TAX. As used herein, the term "real
property tax" shall include any form of assessment, license fee, commercial
rental tax, levy, penalty, or tax (other than inheritance or estate taxes),
imposed by any authority having the direct or indirect power to tax,
including any city, county, state or federal government, or any school,
agricultural, lighting, drainage or other improvement district thereof, as
against any legal or equitable interest of Lessor in the Premises or in the
real property of which the Premises are a part, as against Lessor's right to
rent or other income therefrom, or as against Lessor's business of leasing
the Premises or any tax imposed in substitution, partially or totally, of any
tax previously included within the definition of real property tax, or any
additional tax the nature of which was previously included within the
definition of real property tax.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed, Lessee's
liability shall be an equitable proportion of the real property taxes for all
of the land and improvements included within the tax parcel assessed, such
proportion to be determined by Lessor from the respective valuations assigned
in the assessor's work sheets or such other information as may be reasonably
available. Lessor's reasonable determination thereof, in good faith, shall be
conclusive.
10.4 PERSONAL PROPERTY TAXES.
(a) Lessee shall pay prior to delinquency all taxes assessed against and
levied upon trade fixtures, furnishings, equipment and all other personal
property of Lessee contained in the Premises or elsewhere. When possible,
Lessee shall cause said trade fixtures, furnishings, equipment and all other
personal property to be assessed and billed separately from the real property
of Lessor.
(b) If any of Lessee's said personal property shall be assessed with
Lessor's real property, Lessee shall pay Lessor the taxes attributable to
Lessee within 10 days business days after receipt of a written statement
setting forth the taxes applicable to Lessee's property.
11. UTILITIES.
Lessee shall pay for all water, gas, heat, light, power, telephone and
other utilities and services supplied to the Premises, together with any
taxes thereon. If any such services are not separately metered to Lessee,
Lessee shall pay a reasonable proportion to be determined by Lessor of all
charges jointly metered with other premises.
See Addendum 7
12. ASSIGNMENT AND SUBLETTING.
12.1 LESSOR'S CONSENT REQUIRED. Lessee shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all or any part of Lessee's interest in this Lease or in the
Premises, without Lessor's prior written consent, which Lessor shall not
unreasonably withhold or delay. Any attempted assignment, transfer, mortgage,
encumbrance or subletting without such consent shall be void, and shall
constitute a breach of this lease.
12.2 LESSEE AFFILIATE. Notwithstanding the provisions of paragraph 12.1
hereof, Lessee may assign or sublet the Premises, or any portion thereof,
without Lessor's consent, to any corporation which controls, is controlled by
or is under common control with Lessee, or to any corporation resulting from
the merger or consolidation with Lessee, or to any person or entity which
acquires all of the assets of Lessee as a going concern of the business that
is being conducted on the Premises, provided that said assignee assumes, in
full, the obligations of Lessee under this Lease. Any such assignment shall
not, in any way, affect or limit the liability of Lessee under the terms of
this Lease even if after such assignment or subletting the terms of this
Lease are materially changed or altered without the consent of Lessee, the
consent of whom shall not be necessary.
12.3 NO RELEASE OF LESSEE. Regardless of Lessor's consent, no subletting
or assignment shall release Lessee of Lessee's obligation or alter the
primary liability of Lessee to pay the rent and to perform all other
obligations to be performed by Lessee hereunder. The acceptance of rent by
Lessor from any other person shall not be deemed to be a waiver by Lessor of
any provision hereof. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In the event of
default by any assignee of Lessee or any successor of Lessee, in the
performance of any of the terms hereof, Lessor may proceed directly against
Lessee without the necessity of exhausting remedies against said assignee.
Lessor may consent to subsequent assignments or subletting of this Lease or
amendments or modifications to this Lease with assignees of Lessee, without
notifying Lessee, or any successor of Lessee, and without obtaining its or
their consent thereto and such action shall not relieve Lessee of liability
under this Lease.
12.4 ATTORNEY'S FEES. In the event Lessee shall assign or sublet the
Premises or request the consent of Lessor to any assignment or subletting or
if Lessee shall request the consent of Lessor for any act that Lessee
proposes to do then Lessee shall pay Lessor's reasonable attorneys fees
incurred in connection therewith, such attorneys fees not to exceed $250.00
for each such request.
13. DEFAULTS; REMEDIES.
13.1 DEFAULTS. The occurrence of any one or more of the following events
shall constitute a material default and breach of this Lease by Lessee ???
(a) XXXX
(b) XXXX where such failure shall continue for a period of three days
after written notice thereof from Lessor to Lessee.
(c) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Lessee,
other than described in paragraph (b) above, where such failure shall
continue for a period of 30 days after written notice hereof from Lessor to
Lessee; provided, however, that if the nature of Lessee's default is such
that more than 30 days are reasonably required for its cure, then Lessee
shall not be deemed to be in default if Lessee commenced such cure within
said 30-day period and thereafter diligently pursues such cure to completion.
(d) (i) The making by Lessee of any general assignment, or general
arrangement for the benefit of creditors; (ii) the filing by or against
Lessee of a petition to have Lessee adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless,
in the case of a petition filed against Lessee, the same is dismissed within
ninety (90) days; (iii) the appointment of a trustee or receiver to take
possession of substantially all of Lessee's assets located at the Premises or
of Lessee's interest in this Lease, where possession is not restored to
Lessee within sixty (60) days; or (iv) the attachment, execution or other
judicial seizure of substantially all of Lessee's assets located at the
Premises or of Lessee's interest in this Lease, where such seizure is not
discharged within sixty (60) days.
(e) The discovery by Lessor that any financial statement given to Lessor
by Lessee, any assignee of Lessee, any subtenant of Lessee, any successor in
interest of Lessee or any guarantor of Lessee's obligations hereunder,and any
of them, was materially false.
13.2 REMEDIES. In the event of any such material default or breach by
Lessee, Lessor may at any time thereafter, with or without notice or demand
and without limiting Lessor in the exercise of any right or remedy which
Lessor may have by reason of such default or breach;
(a) Terminate Lessee's right to possession of the Premises by any lawful
means, in which case this Lease shall terminate and Lessee shall immediately
surrender possession of the Premises to Lessor. In such event Lessor shall be
entitled to recover from Lessee all reasonable damages incurred by Lessor by
reason of Lessee's default including, but not limited to, the cost of
recovering possession of the Premises, reasonable expenses of reletting,
including necessary renovation and alteration of the Premises, reasonable
attorney's fees, and any real estate commission actually paid; the worth at
the time of award by the court having jurisdiction thereof of the amount by
which the unpaid rent for the balance of the term after the time of such
award exceeds the amount of such rental loss for the same period that Lessee
proves could be reasonably avoided; that portion of the leasing commission
paid by Lessor pursuant to Paragraph 15 applicable to the unexpired term of
this Lease.
- 3 -
<PAGE>
(b) Maintain Lessee's right to possession in which case this Lease shall
continue in effect whether or not Lessee shall have abandoned the Premises.
In such event Lessor shall be entitled to enforce all of Lessor's rights and
remedies under this Lease, including the right to recover the rent as it
becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor under the
laws or judicial decisions of the State in which the Premises are located.
13.3 DEFAULT BY LESSOR. Lessor shall not be in default unless Lessor fails
to perform obligations required of Lessor within a reasonable time, but in no
event later than thirty (30) days after written notice by Lessee to Lessor
and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished to
Lessee in writing, specifying wherein Lessor has failed to perform such
obligations, provided, however, that if the nature of Lessor's obligation is
such that more than thirty (30) days are required for performance then Lessor
shall not be in default if Lessor commences performance within such 30-day
period and thereafter diligently prosecutes the same to completion.
13.4 LATE CHARGES. Lessee hereby acknowledges that late payment by Lessee
to Lessor of rent and other sums due hereunder will cause Lessor to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Lessor by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Lessee
shall not be received by Lessor or Lessor's designee within ten (10) days
after such receipt of notice that amount shall be due, Lessee shall pay to
Lessor a late charge equal to 6% of such overdue amount. The parties hereby
agree that such late charge represents a fair and reasonable estimate of the
costs Lessor will incur by reason of late payment by Lessee. Acceptance of
such late charge by Lessor shall in no event constitute a waiver of Lessee's
default with respect to such overdue amount, nor prevent Lessor from
exercising any of the other rights and remedies granted hereunder.
14. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain, or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority
takes title or possession, whichever first occurs. If more than 10% of the
floor area of the improvements on the Premises, or more than 25% of the land
area of the Premises which is not occupied by any improvements, is taken by
condemnation, Lessee may, at Lessee's option to be exercised in writing only
within thirty (30) days after Lessor shall have given Lessee written notice
of such taking (or in the absence of such notice, within thirty (30) days
after the condemning authority shall have taken possession) terminate this
Lease as of the date the condemning authority takes such possession. If
Lessee does not terminate this Lease in accordance with the foregoing, this
Lease shall remain in full force and effect as to the portion of the Premises
remaining, except that the rent shall be reduced in the proportion that the
floor area taken bears to the total floor area of the building situated on
the Premises. Any award for the taking of all or any part of the Premises
under the power of eminent domain or any payment made under threat of the
exercise of such power shall be the property of Lessor, whether such award
shall be made as compensation for diminution in value of the leasehold or for
the taking of the fee, or as severance damages; provided, however that Lessee
shall be entitled to any award for loss of or damage to Lessee's trade
fixtures and removable personal property moving expenses and all other
provable damages. In the event that this Lease is not terminated by reason of
such condemnation, Lessor shall, to the extent of severance damages received
by Lessor in connection with such condemnation, repair any damage to the
Premises caused by such condemnation except to the extent that Lessee has
been reimbursed therefor by the condemning authority. Lessee shall pay any
amount in excess of such severance damages required to complete such repair.
15. BROKER'S FEE. Upon execution of this Lease by both parties, Lessor shall
pay to BT Commercial Brokerage and CB Commercial a licensed real estate
broker, a fee as set forth in a separate agreement between Lessor and said
broker, or in the event there is no separate agreement the sum of $7,560.00
for brokerage services rendered by said broker to Lessor in this transaction.
Lessor further agrees that if Lessee exercises any option granted herein or
any option substantially similar thereto, either to extend the term of this
Lease, to renew this Lease, to purchase said Premises or any part thereof
and/or any adjacent property which Lessor may own or in which Lessor has an
interest, or any other option granted herein, or if said broker is the
procuring cause of any other lease or sale entered into between the parties
pertaining to the Premises and/or any adjacent property in which Lessor has
an interest, then as to any of said transactions, Lessor shall pay said
broker a fee in accordance with the schedule of said broker in effect at the
time of execution of this Lease. Lessor agrees to pay said fee not only on
behalf of Lessor but also on behalf of any person, corporation, association,
or other entity having an ownership interest in said real property or any
part thereof, when such fee is due hereunder. Any transferee of Lessor's
interest in this Lease, by accepting an assignment of such interest, shall be
deemed to have assumed Lessor's obligation under this Paragraph 15. Said
broker shall be a third party beneficiary of the provisions of this Paragraph.
16. GENERAL PROVISIONS.
16.1 ESTOPPEL CERTIFICATE.
(a) Lessee shall at any time upon not less than ten (10) business days'
prior written notice from Lessor execute, acknowledge and deliver to Lessor a
statement in writing (i) certifying that to Lessee's actual knowledge, this
Lease is unmodified and in full force and effect (or, if modified, stating
the nature of such modification and certifying that this Lease, as so
modified, is in full force and effect) and the date to which the rent and
other charges are paid in advance, if any, and (ii) acknowledging that there
are not, to Lessee's actual knowledge, any uncured defaults on the part of
Lessor hereunder, or specifying such defaults if any are claimed. Any such
statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Premises.
(b) Lessee's failure to deliver such statement within such time shall be
conclusive upon Lessee (i) that this Lease is in full force and effect,
without modification except as may be represented by Lessor, (ii) that there
are no uncured defaults in Lessor's performance, and (iii) that not more than
one month's rent has been paid in advance or such failure may be considered
by Lessor as a default by Lessee under this Lease.
(c) If Lessor desires to finance or refinance the Premises, or any part
thereof, Lessee hereby agrees to deliver to any lender designated by Lessor
such financial statements of Lessee as may be reasonably required by such
lender. Such statements shall include the past three years' financial
statements of Lessee. All such financial statements shall be received in
confidence and shall be used only for the purposes herein set forth.
16.2 LESSOR'S LIABILITY. The term "Lessor" as used herein shall mean
only the owner or owners at the time in question of the fee title or a
lessee's interest in a ground lease of the Premises, and except as expressly
provided in Paragraph 15. In the event of any of such title or interest,
Lessor herein named (and in case of any subsequent transfers the then
grantor) shall be relieved from and after the date of such transfer of all
liability as respects Lessor's obligations thereafter to be performed,
provided that any funds in the hands of Lessor or the then grantor at the
time of such transfer, in which Lessee has an interest, shall be delivered to
the grantee and such grantee assumes all of Lessee's obligations under this
Lease. The obligations contained in this Lease to be performed by Lessor
shall, subject as aforesaid, be binding on Lessor's successors and assigns,
only during their respective periods of ownership.
16.3 SEVERABILITY. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
16.4 INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein
provided, any amount due Lessor not paid when due shall bear interest at 6%
per annum from the date due. Payment of such interest shall not excuse or
cure any default by Lessee under this Lease, provided, however, that interest
shall not be payable on late charges incurred by Lessee nor on any amounts
upon which late charges are paid by Lessee.
16.5 TIME OF ESSENCE. Time is of the essence.
16.6 CAPTIONS. Article and paragraph captions are not a part hereof.
16.7 INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains
all agreements of the parties with respect to any matter mentioned herein. No
prior agreement or understanding pertaining to any such matter shall be
effective. This Lease may be modified in writing only, signed by the parties
in interest at the time of the modification. Except as otherwise stated in
this Lease, Lessee hereby acknowledges that neither the real estate broker
listed in Paragraph 15 hereof nor any cooperating broker on this transaction
nor the Lessor or any employees or agents of any of said XXXX and the
compliance thereof to all applicable laws and regulations enforced during the
term of this Lease except as XXXX this Lease.
16.8 NOTICES. Any notice required or permitted to be given hereunder shall
be in writing and may be given by personal delivery or by certified mail, and
if given personally or by mail, shall be deemed sufficiently given if
addressed to Lessee or to Lessor at the address noted below the signature of
the respective parties, as the case may be. Either party may by notice to the
other specify a different address for notice purposes except that upon
Lessee's taking possession of the Premises, the Premises shall constitute
Lessee's address for notice purposes. A copy of all notices required or
permitted to be given to Lessor hereunder shall be concurrently transmitted
to such party or parties at such addresses as Lessor may from time to time
hereafter designate by notice to Lessee.
16.9 WAIVERS. No waiver by Lessor of any provision hereof shall be deemed
a waiver of any other provision hereof or of any subsequent breach by Lessee
of the same or any other provision. Lessor's consent to or approval of any act
shall not be deemed to render unnecessary the obtaining of Lessor's consent
to or approval of any subsequent act by Lessee. The acceptance of rent
hereunder by Lessor shall not be a waiver of any preceding breach by Lessee
of any provision hereof, other than the failure of Lessee to pay the
particular rent so accepted, regardless of Lessor's knowledge of such
preceding breach at the time of acceptance of such rent.
16.10 RECORDING. Lessee shall not record this Lease without Lessor's prior
written consent, and such recordation shall, at the option of Lessor,
constitute a non-curable default of Lessee hereunder. Either party shall,
upon request of the other, execute, acknowledge and deliver to the other a
"short form" memorandum of this Lease for recording purposes.
16.11 HOLDING OVER. If Lessee remains in possession of the Premises or any
part thereof after the expiration of the term hereof without the express
written consent of Lessor, such occupancy shall be a tenancy from month to
month at a rental in the amount of the last monthly rental plus all other
charges payable hereunder, and upon all the terms hereof applicable to a
month-to-month tenancy.
16.12 CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies
of law or in equity.
16.13 COVENANTS AND CONDITIONS. Each provision of this Lease performable by
Lessee shall be deemed both a covenant and a condition.
16.14 BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof
restricting assignment or subletting by Lessee and subject to the provisions
of Paragraph 16.2 this Lease shall bind the parties, their personal
representatives, successors and assigns. This Lease shall be governed by the
laws of the State in which the Premises are located.
16.15 SUBORDINATION.
(a) This Lease, at Lessor's option, shall be subordinate to any ground
lease, mortgage, deed of trust, or any other hypothecation for security now
or hereafter placed upon the real property of which the Premises are a part
and to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Lessee's right to quiet possession of the
Premises shall not be disturbed if Lessee is not in default and so long as
Lessee shall pay the rent and observe and perform all of the provisions of
this Lease unless this Lease is otherwise terminated pursuant to its terms
subject to Lessee's nondisturbance rights set forth in this Section 16.15(a),
if any mortgagee, trustee or ground lessor shall elect to have this Lease
prior to the lien of its mortgage, deed of trust or ground lease, and shall
give written notice thereof to Lessee, this Lease shall be deemed prior to
such mortgage, deed of trust, or ground lease, whether this Lease is dated
prior or subsequent to the date of said mortgage deed of trust or ground
lease or the date of recording thereof.
<PAGE>
(b) Subject to Lessee's nondisturbance rights set forth in Section
16.15(a) above, Lessee agrees to execute any reasonablle documents required
to effectuate such subordination or to make this Lease prior to the date of
any mortgage, deed of trust or ground lease, as the case may be, and failing
to do so within ten (10) days after written demand, does hereby XXXXXXXXXXXXX
constitute and irrevocably appoint Lessor as Lessee's attorney in fact and in
Lessee's name, place and stead, to do so.
16.16 ATTORNEY'S FEES. If either party or the broker named herein brings
an action to enforce the terms hereof or declare rights hereunder, the
prevailing party in any such action, on trial or appeal, shall be entitled to
his reasonable attorney's fees to be paid by the losing party as fixed by the
court. The provisions of this paragraph shall inure to the benefit of the
broker named herein who seeks to enforce a right hereunder.
16.17 LESSOR'S ACCESS. Lessor and Lessor's agents shall have the right to
enter the Premises at reasonable times upon 24 hours prior notice (except in
the case of emergency) for the purpose of inspecting the same, showing the
same to prospective purchasers, or lenders, or lessees, and making such
alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part as Lessor may deem necessary or
desirable. Lessor may at any time place on or about the Premises any ordinary
"For Sale" signs and Lessor may at any time during the last 120 days of the
term hereof place on or about the Premises any ordinary "For Lease" signs,
all without rebate of rent or liability to Lessee.
16.18 SIGNS AND AUCTIONS. Lessee shall not place any sign upon the
Premises or conduct any auction thereon without Lessor's prior written
consent except that Lessor shall have the right, without the prior permission
of Lessor to place ordinary and usual for rent or sublet signs thereon.
16.19 MERGER. The voluntary or other surrender of this Lease by Lessee, or
a mutual cancellation thereof, or a termination by Lessor shall not work a
merger, and shall, at the option of Lessor, terminate all or any existing
subtenancies or may, at the option of Lessor, operate as an assignment to
Lessor of any or all of such subtenancies.
16.20 CORPORATE AUTHORITY. If Lessee is a corporation, each individual
executing this Lease on behalf of said corporation represents and warrants
that he is duly authorized to execute and deliver this Lease on behalf of
said corporation, in accordance with a duly adopted resolution of the Board
of Directors of said corporation or in accordance with the Bylaws of said
corporation, and that this Lease is binding upon said corporation in
accordance with its terms. If Lessee is a corporation Lessee shall, within
thirty (30) days after execution of this Lease, deliver to Lessor a certified
copy of a resolution of the Board of Directors of said corporation
authorizing or ratifying the execution of this Lease.
16.21 CONSENTS. Wherever in this Lease the consent of one party is
required to an act of the other party such consent shall not be unreasonably
withheld or delayed.
16.22 GUARANTOR. In the event that there is a guarantor of this Lease,
said guarantor shall have the same obligations as Lessee under Paragraphs
16.1 and 16.20 of this Lease.
16.23 QUIET POSSESSION. Upon Lessee paying the fixed rent reserved
hereunder and observing and performing all of the covenants, conditions and
provisions on Lessee's part to be observed and performed hereunder, Lessee
shall have quiet possession of the Premises for the entire term hereof
subject to all of the provisions of this Lease.
16.24 OPTIONS. In the event that the Lessee, under the terms of this
Lease, has any option to extend the term of this Lease, or any option to
purchase the Premises or any right of first refusal to purchase the Premises
or other property of Lessor, then each of such options and rights are
personal to Lessee and may not be exercised or be assigned, voluntarily or
involuntarily, by or to any one other than Lessee except that it may be
exercised by or assigned to any of the entities described in paragraph 12.2
hereof for whom Lessee does not need the consent of Lessor to assign this
Lease. In the event that Lessee hereunder has any multiple options to extend
this Lease a later option to extend the Lease cannot be exercised unless the
prior option has been so exercised.
16.25 MULTIPLE TENANT BUILDING RULES AND REGULATIONS. In the event that
the Premises are part of a larger building or group of buildings then Lessee
agrees that it will abide by, keep and observe all reasonable rules and
regulations which Lessor may make from time to time for the management,
safety, care, and cleanliness of the building and grounds, the parking of
vehicles and the preservation of good order therein as well as for the
convenience of other occupants and tenants of the building. Further, Lessee
will promptly pay its prorata share, as reasonably determined by Lessor, of
any maintenance or repair of such portion of the Premises or such portion of
the property of which the Premises are a part, which are common areas or used
by Lessee and other occupants thereof. The violations of any such rules and
regulations, or the failure to pay such prorata share of costs, shall be
deemed a material breach of this Lease by Lessee.
16.26 INSURING PARTY. The insuring party under this Lease shall be the
Lessee and Landlord as applicable.
16.27 ADDITIONAL PROVISIONS. If there are no additional provisions draw a
line from this point to the next printed word after the space left here. If
there are additional provisions place the same here.
See Attached Addendum and by this reference made a part hereof.
The parties hereto have executed this Lease at the place and on the dates
specified immediately adjacent to their respective signatures.
If this Lease has been filled in it has been prepared for submission to your
attorney for his approval. No representation or recommendation is made by the
real estate broker or its agents or employees as to the legal sufficiency,
legal effect, or tax consequences of this Lease or the transactions relating
thereto.
Executed at Belmont Dani Investment Partners
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on 15 December, 1994 By /s/ XXXXXXXXXXXXXXXXXXXXXX
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Address 1355 Shoreway Rd By
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"LESSOR" (Corporate seal)
Executed at San Carlos, CA Conceptus, Inc.
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on 15 December, 1994 By /s/ XXXXXXXXXXXXXXXXXXXXX
--------------------------- -----------------------------
Address 1021 Howard Ave. By
---------------------- -----------------------------
"LESSEE" (Corporate seal)
<PAGE>
ADDENDUM TO LEASE
THIS ADDENDUM TO LEASE ("Addendum") is dated as of November 8, 1994
and is made between the 1981 FARREY TRUST ("Lessor") and CONCEPTUS, INC., a
Delaware Corporation ("Lessee") to be a part of that certain Standard
Industrial Lease with the same date between Lessor and Lessee ("Lease")
concerning the approximately 14,000 square foot premises ("Premises")
located within the building commonly known as 1021 Howard Avenue, San Carlos,
California ("Building"). Lessor and Lessee agree that the Lease is hereby
modified and supplemented as follows:
1. SHARE OF OPERATING EXPENSES. Notwithstanding anything to the contrary
in the Lease, the parties agree as follows:
1.1 OPERATING EXPENSES. Lessee shall pay to Lessor Lessee's
Percentage Share of Operating Expenses. "Lessee's Percentage Share of
Operating Expenses" is 70%. In addition, Landlord has attached hereto as
EXHIBIT C Landlord's latest months billing statements for Operating Expenses.
(a) DEFINITION. "Operating Expenses" shall include the following
reasonable and necessary actual expenses: (i) premiums for insurance
maintained by Lessor pursuant to Section 9 (but not premiums for earthquake
insurance); (ii) wages, salaries and related expenses and benefits of on-site
employees engaged in the operation and maintenance of the Building; (iii)
supplied and materials used in the operation of the Building; (iv)
maintenance and janitorial costs incurred on behalf of the Building; (v) the
cost of reasonable repairs and general maintenance as set forth in Section
4.1 below (excluding those paid for by proceeds of insurance or other parties
and alterations attributable solely to tenants of the Building other than
Lessee); (vi) Real Property Taxes and other assessments, fees or charges from
any government agency and any reassessments thereof (subject to the terms of
Section 6.1 below); (vii) reasonable charges for heat, water, gas,
electricity and other utilities used or consumed in the Building and Common
Areas, excluding the Premises; and (viii) capital improvements required by
law or which under generally accepted accounting principals and practices are
capital expenditures, in either of which case the cost thereof should be
divided by the number of years of the useful life of the improvement (but
only the portion of the useful life falling within the remainder of the Lease
term) and said annual amount shall be paid by Lessee during the applicable
year.
(b) EXCLUSIONS. Notwithstanding anything in this Section 1 to the
contrary, Operating Expenses should not include the following: (a)
advertising costs, brokerage commissions, or legal fees incurred in
connection with the leasing of the Building; (b) damage and repairs covered
under any insurance policy carried by Lessor in connection with the Building;
(c) maintenance, damage and repair necessitated by the gross negligence or
willful misconduct of Lessor or required to be done by Lessor pursuant to
Section 6; (d) general overhead expense not directly related to the Building;
and (e) any other expense which, under generally accepted accounting
principles and practice, would not be considered a normal maintenance and
operating expense.
(c) LIMITATIONS ON COLLECTION. Lessor shall not collect in excess of
one hundred percent (100%) of Operating Expenses, or any item of cost more
than once. There shall not be included in Operating Expenses any costs in
excess of those that would be reasonably incurred by prudent operators and
managers of similar first-class buildings, and any Operating Expense charged
Lessor by any of its affiliates for goods or services provided to the
Building shall not exceed the prevailing cost thereof that would be charged
to Lessor by nonaffiliated parties. All Operating Expenses shall be
determined in accordance with generally accepted accounting principles and
practices, consistently applied.
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<PAGE>
(d) AUDIT. Lessor shall keep at the Building for a period of at
least twelve (12) months after the expiration of each calendar year, full and
accurate books, records, and supporting documents in connection with Lessor's
annual statement of Operating Expenses and Real Property Taxes. Lessee shall
have the right to challenge the accuracy of any Operating Expenses or Real
Property Taxes, and if Lessee challenges any Operating Expenses or Real
Property Taxes, Lessor shall make Lessor's books and supporting documents
available to Lessee and Lessee may inspect the same. The Operating Expenses
and Real Property Taxes shall be appropriately adjusted on the basis of such
audit. Lessee shall pay the cost and expense of such audit, unless such audit
shows a discrepancy of at least five percent (5%) of Operating Expenses or,
as the case may be, Real Property Taxes, in which event Lessor shall pay the
cost and expenses of such audit.
2. USE AND COMPLIANCE WITH LAWS. Notwithstanding anything to the
contrary in the Lease, the parties agree as follows:
2.1 COMPLIANCE WITH LAWS. Lessee shall not violate any requirements of
municipal, county, state, federal and other applicable governmental
authorities, now in force, or which may hereafter be in force, pertaining to
the Premises. However, Lessee shall not be required to make but shall pay
for, through additional rental pursuant to Section 1.1(a), any structural
changes, capital expenditures or improvements or alterations on the Premises
or in the Building which will remain a part thereof for the benefit of Lessor
upon termination of this Lease in order to comply with any governmental law,
ordinance, rule or regulation or any recommendation of Lessor's insurance
rating organization, unless the same is specifically required by Lessee's
particular use of the Premises.
3. REPAIRS AND MAINTENANCE. Notwithstanding anything to the contrary in
the Lease, the parties agree as follow:
3.1 LESSOR'S REPAIRS. Lessor shall maintain in good condition and
repair in a prompt and diligent manner, subject to Lessee's reimbursement
obligations pursuant to Section 1.1 above: (i) all portions of the Building
which are not a part of the Premises, including but not limited to all
elevators, electrical, mechanical, plumbing, sewage, heating, ventilating and
air conditioning systems serving the Premises and the Building; (ii) all
portions of the roof, roof structures and supports (excluding the roof
membrane), and all structural portions of the Premises, including but not
limited to, the foundation and structural supports, exterior and load bearing
walls, subfloors and floors (but not floor coverings), gutters, downspouts
and exterior doors; (iii) all utilities to the Premises; (iv) all driveways,
sidewalks, parking areas and all other Common Areas and facilities thereof,
(v) latent defects in the Premises as well as any damage to the Premises
caused by the willful act or the gross negligence of the Lessor or its
agents; and (vii) the heating, ventilating and air conditioning system
serving the Premises.
Lessee shall give Lessor notice of any such repairs may be required
under the terms of this Lease and Lessor shall proceed forthwith to commence
the same with reasonable diligence, but in no event later than thirty (30)
days after having received such notice. In the event of an emergency Lessee
shall be empowered to undertake immediate repairs of such nature as would be
Lessor's responsibility and notify Lessor promptly after such repairs have
been undertaken. If Lessor fails to commence to repair or maintain the
Premises within the thirty (30) day period provided herein, or if Lessee
undertakes emergency repairs as above stated, Lessee may perform the repairs
or maintenance and Lessor shall promptly, upon demand, reimburse Lessee for
such reasonable costs.
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<PAGE>
3.2 LESSEE'S REPAIRS. Lessee shall keep the interior non-structural
portions of the Premises in good condition, order and repair. However, in no
event shall Lessee's obligation to repair under this subsection extend to (i)
damage and repairs covered under any insurance policy carried by Lessor in
connection with the Building, (ii) damage caused in whole or in part by the
gross negligence or willful misconduct of Lessor or Lessor's agents,
employees, invitees or licensees, (iii) repairs covered under Operating
Expenses, (iv) reasonable wear and tear; and (v) conditions covered under any
warranties of Lessor's contractors, damage by fire and other casualties, acts
of governmental authorities, or acts of God and the elements.
4. INDEMNITY. Notwithstanding anything to the contrary in the Lease,
Lessee shall indemnify and hold harmless Lessor of and from any loss,
attorney's fees, expenses or claims arising from the negligence or
intentional act of Lessee, or Lessee's agents, servants, employees, or
invitees (collectively, "Lessee's Parties"); provided, however, that the
indemnification provided in this sentence shall not apply to the extent that
any loss, expense or claim arises from the negligence, breach of contract or
intentional act of Lessor of Lessor's agents, servants, employees, or
invitees (collectively "Lessor's Parties"). Lessor shall indemnify and hold
harmless Lessee of and from any loss, attorneys' fees, expenses or claims
arising out of (i) the negligence or intentional act of Lessor or Lessor's
Parties, or (ii) the payment of the brokerage commission due to BT Commercial
pursuant to this transaction; provided, however, that the indemnification
provided in this sentence shall not apply to the extent that any loss,
expense or claim arises from the negligence, breach of contract or
intentional act of Lessee or Lessee's Parties.
5. DAMAGE AND DESTRUCTION. Notwithstanding anything to the contrary in
the Lease, if the Building or Premises is damaged or destroyed to the extent
that the Premises or Building, in Lessor's reasonable opinion based on the
finding of Lessor's architects or contractors, cannot, with reasonable
diligence, be fully repaired or restored by Lessor within one hundred eighty
(90) days after the date of the damage or destruction, Lessee may terminate
this Lease immediately upon notice thereof to Lessor and the obligation of
Lessee, if any, to pay rent and additional rental to Lessor shall terminate
as of the date of such notice. Lessor shall, within sixty (30) days of such
damage or destruction, determine whether the Building or Premises can be
fully repaired or restored within the one hundred eighty (90) day period,
and notify Lessee of such determination. If the Building can be fully
repaired or restored within the one hundred eighty (90) day period, this
Lease shall remain in full force and effect, except that rent and additional
rental shall abate as described in Section 3.2, and Lessor shall diligently
repair and restore the damage as soon as possible. If this Lease is not
terminated despite damage or destruction to the Premises or Building, and
Lessor fails to proceed with reasonable diligence to rebuild, or if the
Premises or Building are not rebuilt within one hundred eighty (90) days of
the event causing the damage or destruction, Lessee may, at its option,
terminate this Lease.
6. REAL PROPERTY TAXES. Notwithstanding anything to the contrary in the
Lease, the parties agree as follow:
6.1 EXCLUSIONS. The following shall not constitute Real Property
Taxes for the purposes of this Lease, and nothing contained herein shall be
deemed to require Lessee to pay any of the following: (i) any state, local,
federal, personal or corporate income tax measured by the income of Lessor;
(ii) any estate, inheritance taxes, or gross rental receipts tax; (iii) any
franchise, succession or transfer taxes; (iv) interest on taxes or penalties
resulting from Lessor's failure to pay taxes; or (v) any increases in taxes
attributable to additional improvements to the Building unless such
improvements are constructed for Lessee's sole benefit.
6.2 INSTALLMENT ELECTION. Upon Lessee's request, Lessor shall elect
to cause any Real Property Taxes which may be evidenced by improvement or
other bonds or which may be paid in annual or other periodic installments to
be paid in installments over the maximum period permitted by law.
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<PAGE>
7. BONUS RENT. Notwithstanding anything to the contrary in the Lease, in
the event that Lessee shall assign, sublease or otherwise transfer all or any
portion of the Premises to a party other than an affiliate of Lessee during
the initial term of the Lease, Lessor and Lessee shall evenly divide any rent
or other consideration paid to Lessee in connection with such assignment,
sublease or other transfer, after first deducting out for Lessee's account
the cost of (i) broker's commissions paid by Lessee with regard to the
transfer, (ii) reasonable legal fees, and (iii) the unamortized portions of
improvements made in the subleased area by Lessee for Lessee's use during the
original tenancy.
8. TEMPORARY CONDEMNATION. Notwithstanding anything to the contrary in
the Lease, in the event of a temporary condemnation of the Premises which
lasts for a period of one hundred eighty (60) days or more, and which Lessee
reasonably determines causes substantial interference with the operation of
Lessee's business in the Premises, Lessee may terminate this Lease upon
notice to Lessor. In the event of a partial termination of the Lease which
would not allow Lessee to terminate this Lease under the terms and conditions
of this section, this Lease shall continue in full force and effect, except
that rent and Lessee's additional rent shall be adjusted, for the period
Lessee is unable to use condemned area, on the basis of the square footage
condemned.
9. ENVIRONMENTAL MATTERS.
9.1 HAZARDOUS MATERIALS. Lessor represents and warrants as of the
date of the Lease that, to the best of Lessor's actual knowledge, there are
no Hazardous Materials present in, on or about the Premises, the Building or
the Common Areas. As used herein, "Hazardous Materials" shall include, but
not be limited to, any material or substance that, whether by its nature or
use, is not or hereafter defined as a hazardous waste, hazardous substance,
pollutant or contaminant under any present or future laws, statutes,
ordinances, rules, regulations, orders, codes, licenses, permits, decrees,
judgements, directives or the equivalent of or by any governmental authority
and relating to or addressing the protection of the environment or human
health ("Regulations"), including any material or substance which is toxic,
explosive, corrosive, flammable, infectious, radioactive, carcinogenic,
mutagenic or otherwise hazardous and which is now or hereafter regulated
under any Regulations, or which is or contains petroleum, gasoline, diesel
fuel or another petroleum hydrocarbon product.
9.2 LESSEE'S RIGHTS. To the extent such Hazardous Materials are
present, Lessor shall immediately provide Lessee with notice of such fact. In
addition, Lessor shall require all other tenants in the Building, including
Lessor, to comply with all Regulations regarding the use, storage, generation
or removal of Hazardous Material in, on or under the Premises. Lessee shall
have the right, if Lessee reasonably determines Hazardous Materials are
present on the Premises and informs Lessor of the basis for such belief, to
require Lessor to conduct tests and investigations to determine whether
Lessor is in compliance with the foregoing provisions.
9.3 INDEMNIFICATION.
(a) LESSOR'S INDEMNITY. Lessor shall indemnify, defend, protect and
hold Lessee and Lessee's Parties harmless from and against all liabilities,
losses, costs and expenses (including reasonable attorney's fees), demands,
cause of action, claims or judgements directly or indirectly arising out of
(i) the use, generation, storage or disposal of Hazardous Materials by Lessor
or any of Lessor's Parties; (ii) a breach of the representation and warranty
set forth in Section 9.1; or (iii) the presence of any Hazardous Materials
in, on, or about the Premises, Building or Common Areas on or prior to the
Rental Commencement Date. Lessor's obligations pursuant to the foregoing
indemnity shall be in addition to Lessor's obligations under Section 5 of
this Addendum and shall survive the termination of this Lease.
4
<PAGE>
(b) Lessee shall indemnify, defend, protect and hold Lessor and
Lessor's Parties harmless from and against all liabilities, losses, costs and
expenses (including reasonable attorney's fees), demands, causes of action,
claims or judgements directly or indirectly arising out of the use,
generation, storage or disposal of Hazardous Materials by Lessee or any of
Lessee's parties. Lessee's obligations pursuant to the foregoing indemnity
shall be in addition to Lessee's obligations under Section 5 of this Addendum
and shall survive the termination of the Lease.
10. EFFECT OF ADDENDUM. In the event of any inconsistency between the
terms of this Addendum and the terms of the Lease, the terms of this Addendum
shall control. As used herein, the term "Lease" shall mean the Lease, this
Addendum and all exhibits referred to in the Lease and this Addendum.
"LESSOR"
DANI INVESTMENT PARTNERS
By: /s/ illegible signature
------------------------------
Its: President
-----------------------------
"LESSEE"
CONCEPTUS, INC.,
a FTW Delaware Corporation
By: /s/ illegible signature
-----------------------------
Its: President and CEO
-----------------------------
5
<PAGE>
THIS SECOND ADDENDUM TO THE LEASE, DATED AUGUST 28, 1996, IS MADE BY AND
BETWEEN DANI INVESTMENT PARTNERS "LESSOR" AND CONCEPTUS, INC., A DELAWARE
CORPORATION "LESSEE", TO BE A PART OF THAT CERTAIN STANDARD INDUSTRIAL
LEASE DATED NOVEMBER 8, 1994 BETWEEN LESSOR AND LESSEE FOR THE PREMISES
COMMONLY KNOWN AS 1021 HOWARD AVENUE, SAN CARLOS, CA. (AS ATTACHED HERETO
AND TOGETHER WITH ITS FIRST ADDENDUM THE "LEASE").
Lessee and Lessor hereby agree the Lease is hereby modified and
supplemented as follows:
1. SECTION 3. TERM
The term of the Lease shall be extended to encompass the period
commencing on September 1, 1996 and ending on August 31, 1997 (the
"Extension Period").
2. SECTION 4. RENT
The rent during the Extension Period shall be $14,000.00 per month.
3. SECTION 5. SECURITY DEPOSIT
The Security Deposit under the lease shall be increased to an
aggregate of $14,000.00 which shall include amounts previously
deposited.
4. EFFECT OF ADDENDUM
Except as set forth above, the terms of the Lease shall continue to
govern he parties' relationship through the Extension Period. In the
event of any inconsistency between the terms of this Addendum and the
terms of the Lease, the terms of this Addendum shall control. As used
herein, the term "Lease" shall mean the Lease, this Addendum and all
exhibits referred to in the Lease and this Addendum.
5. SECTION 15: BROKER'S FEES
Each party warrants that it was not represented by a real estate
broker or agent in this transaction and that no broker's fees are due.
If any claim does arise it shall be the lessees obligation.
"LESSOR" "LESSEE"
DANI INVESTMENT PARTNERS CONCEPTUS, INC.
A FTW Delaware Corporation
BY:_______________________________ BY:________________________________
ITS:______________________________ ITS:_______________________________
<PAGE>
EXHIBIT 11.1
CONCEPTUS, INC.
STATEMENT RE COMPUTATION OF NET LOSS PER SHARE
<TABLE>
<CAPTION>
Three Months Nine Months
Ended September 30, Ended September 30,
1996 1995 1996 1995
----------- ----------- ----------- ----------
<S> <C> <C> <C> <C>
Net loss $ (1,723) $ (1,597) $ (4,817) $ (4,111)
Shares used in computing
net loss per share:
Weighted average shares
of common stock outstanding 9,143 186 8,134 179
Shares related to Staff Accounting
Bulletin Topic 4D - 1,403 - 1,403
----------- ----------- ----------- ----------
Total shares used in computing
net loss per share 9,143 1,589 8,134 1,582
----------- ----------- ----------- ----------
----------- ----------- ----------- ----------
Net loss per share $ (0.19) $ (1.01) $ (0.59) $ (2.60)
----------- ----------- ----------- ----------
----------- ----------- ----------- ----------
Shares used in computing
supplemental net loss per share:
Weighted average shares
of common stock outstanding 9,143 186 8,134 179
Weighted average shares
of the assumed conversion
of redeemable convertible
preferred stock - 4,521 502 4,060
----------- ----------- ----------- ----------
Total shares used in computing
supplemental net loss per share 9,143 4,707 8,636 4,239
----------- ----------- ----------- ----------
----------- ----------- ----------- ----------
Supplemental net loss per share $ (0.19) $ (0.34) $ (0.56) $ (0.97)
----------- ----------- ----------- ----------
----------- ----------- ----------- ----------
</TABLE>
- 15 -
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JUL-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 14,991
<SECURITIES> 29,558
<RECEIVABLES> 229
<ALLOWANCES> 42
<INVENTORY> 199
<CURRENT-ASSETS> 45,356
<PP&E> 1,172
<DEPRECIATION> 640
<TOTAL-ASSETS> 45,898
<CURRENT-LIABILITIES> 1,569
<BONDS> 0
0
0
<COMMON> 61,736
<OTHER-SE> (17,461)
<TOTAL-LIABILITY-AND-EQUITY> 45,898
<SALES> 236
<TOTAL-REVENUES> 236
<CGS> 374
<TOTAL-COSTS> 2,197
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6
<INCOME-PRETAX> (1,723)
<INCOME-TAX> 0
<INCOME-CONTINUING> (1,723)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,723)
<EPS-PRIMARY> (.19)
<EPS-DILUTED> (.19)
</TABLE>
