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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
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[X]ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Fiscal Year Ended December 31, 1999
[_]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Transition Period From to
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Commission File Number 0-21422
OPTi INC.
(Exact name of registrant as specified in its charter)
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CALIFORNIA 77-0220697
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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3393 Octavius Drive, Santa Clara, California 95054
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(Address of principal executive offices) (Zip Code)
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Registrant's telephone number, including area code (408) 486-8000
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock, no
par value
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes [_] No [_]
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.[X]
The aggregate market value of the voting stock held by non-affiliates of
the registrant, based upon the closing sale price of the Common Stock on March
22, 2000 as reported on the Nasdaq Stock Market, was approximately
$67,072,605. Shares of Common Stock held by each executive officer and
director and by each person who owns 5% or more of the outstanding Common
Stock have been excluded in that such persons may be deemed to be affiliates.
This determination of affiliate status is not necessarily a conclusive
determination for other purposes.
As of March 22, 2000, registrant had 11,508,683 shares of Common Stock
outstanding for non-affiliates.
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OPTi INC.
Form 10-K
For the Fiscal Year Ended December 31, 1999
INDEX
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Page
Number
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Part I
Item 1. Business................................................. 1
Item 2. Properties............................................... 10
Item 3. Legal Proceedings........................................ 10
Item 4. Submission of Matters to a Vote of Security Holders...... 12
Part II
Item 5. Market for Registrant's Common Stock and Related 13
Stockholder Matters.....................................
Item 6. Selected Consolidated Financial Data..................... 14
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations..................... 15
Item 7A. Quantitative and Qualitative Disclosures About Market 18
Risk....................................................
Item 8. Financial Statements and Supplementary Data.............. 18
Item 9. Changes in and Disagreement with Accountants on
Accounting and Financial Disclosures.................... 18
Part III
Item 10. Directors and Executive Officers of the Registrant....... 19
Item 11. Executive Compensation................................... 20
Item 12. Security Ownership of Certain Beneficial Owners and 21
Management..............................................
Item 13. Certain Relationships and Related Transactions........... 21
Part IV
Item 14. Exhibits, Financial Statement Schedules and Reports on 23
Form 8-K................................................
Signatures......................................................... 25
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PART I
Item 1. Business
Information set forth in this report constitutes and includes forward
looking information made within the meaning of Section 27A of the Securities
Act of 1933, as amended and Section 21E of the Securities and Exchange Act of
1934, as amended, that involve risks and uncertainties. The Company's actual
results may differ significantly from the results discussed in the forward
looking statements as a result of a number of factors, including product mix,
the Company's ability to obtain or maintain design wins, market conditions
generally and in the personal computer and semiconductor industries, product
development schedules, competition and other matters. Readers are encouraged
to refer to "Factors Affecting Earnings and Stock Price" found below.
Introduction
OPTi Inc., a California corporation ("OPTi" or the "Company"), founded in
1989, is an independent supplier of semiconductor products to the personal
computer ("PC") and embedded marketplaces. The Company's products provide in
one or a few semiconductor devices the core logic functions or universal
serial bus controller function of a PC or embedded product. During 1999, the
Company shipped over two million core logic and universal serial bus ("USB")
devices to more than 50 PC manufacturers, motherboard manufacturers, and add-
in board manufacturers located primarily in Asia and the U.S.
During the past year, the Company shifted its efforts away from its primary
focus on the design, development, marketing and sale of core logic products to
its peripheral products (primarily the USB device, USB) for use by OEM's in
the personal computer market. During the month of February 1999 the Company
stopped development of its core logic products completely. The Company
continues to ship its core logic products today, mainly into embedded designs
which historically have a much longer product life cycle than the PC market.
During 1999 the Company's revenue from core logic chipsets was approximately
56% of its revenue as compared to 74% in 1998. Peripheral products were 44%
and 26% of the Company's revenue during 1999 and 1998, respectively.
In addition, the Company has continued, and is continuing, its efforts to
maximize shareholder value through restructuring of the Company's business and
assets. As previously announced, the Company has retained the services of
Warburg Dillon Read, the investment banking division of USB, to advise the
Company on possible strategic alternatives, including the sale of the Company,
sale of divisions of the Company, or strategic licensing deals. During the
first quarter of 2000, with the assistance of Warburg Dillon Reed, the Company
announced the signing of a one-time full paid license on all of its patents
and pending patents.
The Company currently competes principally in the embedded and USB
controller marketplaces. From the Company's inception through 1995, the
Company's principal segment had been desktop core logic. However, with
increasingly aggressive competion in this area, primarily from Intel
Corporation, the Company revised its strategy and focus on market
opportunities where the Company had strategic advantages. This led the Company
to focus on the mobile core logic and embedded marketplaces where the Company
experienced some success in the past few years.
In the past the Company's sales have been primarily attributable to its
introduction of highly integrated chipsets. The Company continues to focus its
efforts on increasing the revenue it receives from licensing its core logic
technology and continueing to sale its USB and core logic products into
existing and new marketplaces. The Company sells, and will continue to sell,
its products to its customers and their suppliers directly or through a
network of independent sales representatives. In the first quarter of 2000 the
Company signed a one-time fully paid license agreement for $13,500,000.
The Company's strategy, at this time is to license its core logic
technology that its has developed during its history and to look for areas
where the Company can either develop or acquire technology for emerging
markets in the high performance PC segment, increase sales in existing global
markets and strengthen its industry relationships.
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Industry Background
During the last decade, the PC industry has grown rapidly as increased
functionality combined with lower pricing have made PCs valuable and
affordable tools for business and personal use.
The principal functions of a PC are provided by a circuit board known as
the motherboard, consisting of a microprocessor, bus circuits, various memory
devices and core logic circuits. The bus is the pathway through which the
microprocessor communicates with peripheral devices and adapter cards. Core
logic circuits perform five principal functions in the PC: system control,
memory control, bus control, bus buffering and peripherals control. System
control refers to the computing functions which enable the microprocessor to
manage the flow of data between the microprocessor, the system bus and memory.
Memory control consists of the control functions employed by the
microprocessors to efficiently manage the operations of memory devices. Bus
control enables the PC to implement the protocols necessary to achieve
compatibility with industry standard bus interfaces and protocols, such as
Industry Standard Architecture ("ISA"), Extended Industry Standard
Architecture ("EISA"), Video Enhancement Standard Architecture ("VESA") and
Peripheral Control Interconnect ("PCI"). Peripherals control facilitates the
operations of peripheral devices such as the disk drive, keyboard and display
device.
In personal computer designs employed in the early-1980's, the core logic
functions were performed by several large scale integrated ("LSI") circuits
and numerous discrete transistor ("TTL") circuits located on the motherboard.
Although these circuits were available to PC manufacturers from third party
semiconductor suppliers, the large number of discrete devices needed to
implement core logic functions resulted in high part counts, low production
yields and relatively high total system costs. Moreover, the qualifications
and integration of numerous discrete devices caused the development effort to
be complex and time consuming. The high development costs associated with this
effort greatly favored PC manufacturers who had the development resources and
expertise necessary to introduce complex computer systems in a timely fashion.
The trend to higher performance, lower cost personal computers has been
accompanied by a variety of changes in the market for personal computers and
the technologies used to address these emerging market requirements. The
consumer and home office sectors have become the fastest growing sectors of
the PC market, driven, in part, by the emergence of low-cost multimedia
computers and peripherals.
Industry studies indicate that an increasing percentage of personal
computers are now sold with multimedia functionality which typically involves
sound and support of full screen, full-motion video technologies. As the
personal computer industry has matured and become more consumer-oriented,
large OEM PC suppliers, including major competitors from the consumer
electronics arena, have captured market share from smaller PC vendors as
strength of brand name, customer support and distribution channels have become
more important competitive factors in the industry.
These changes in the personal computer market and technology directly
affect the market for core logic chipsets. The primary customer base for
chipsets has shifted significantly to major PC manufacturers and to the
suppliers to these leading OEM customers, in contrast to prior periods in
which motherboard manufacturers and system integrators represented the largest
portion of the market for core logic chipsets. Large OEMs require increasingly
higher levels of product integration, thus enabling them to reduce parts count
and control total product costs. The Company also expects that peripheral
functions historically provided by add-in boards, such as sound functionality,
may be provided by semiconductor circuits included on the personal computer
motherboard or incorporated in the core logic chipset.
During 1995 and 1996, almost a complete shift occurred in the personal
computer market to Pentium class products and away from 486 microprocessor-
based products. With this shift, the industry standard became a Pentium-based
system with a VESA local bus or PCI local bus structure. During the second
half of 1995, the market for 486-based computers and the related market for
chipsets and motherboards and licensing motherboards used in 486 computers
declined precipitously. Due to the speed of this shift, the personal computer
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industry has experienced excess inventories of 486-based computers and
motherboards and rapidly deteriorating pricing for these products.
The Company believes that the personal computer marketplace may be headed
for another such shift as the industry moves from the Pentium class
microprocessor to the Pentium III class microprocessor. The shift in the
desktop marketplace started to occur in late 1999, while the mobile market has
historically followed six to twelve months after the transition in the desktop
marketplace.
Concurrent with these shifts, the market for motherboards and chipsets
changed significantly as Intel captured an increasing percentage of the
motherboard market by selling completed motherboards and licensing motherboard
production in the Far East, employing the Intel Pentium microprocessor, Intel
chipsets and other circuitry. Intel's entry into the motherboard market has
had a direct adverse effect on the Taiwan motherboard market, and resulted in
a significant decline in demand for core logic chipsets from Taiwan
motherboard manufacturers.
Dramatic growth has continued in the PC market as computer and consumer
electronics industries have converged, combining increased multimedia and
communications capabilities. Today's systems increasingly offer more powerful
microprocessors, highly integrated chipsets, integrated video, stereo sound,
highspeed fax and modem communications and CD-ROM.
Like the PC market, the market for chipsets is seasonal. In general,
chipset suppliers experience higher sales in the second half of the calendar
year than they experience in the first half of the year.
Strategy
The Company's strategy incorporates the following elements:
License Opportunities for Chipset Technology
One of the Company's principal strategies is to pursue licensing
opportunities in the core logic area. During the first quarter of fiscal year
2000, the Company entered into a one-time licensing arrangement for
$13,500,000 on the core logic technology that the Company had developed during
its first twelve years in existence. We believe that there may be additional
companies that may have the need to license the technology that we have
developed. The Company is actively working to explore all of the possible
licensing arrangements.
Continue to Sale Products Which Address New Market Opportunities
The Company continues to expand its market opportunities outside core
logic, including USB controllers. The Company believes that its relationships
with major PC OEMs who used the Company's core logic chipsets may provide a
marketing opportunity in offering additional products outside of the core
logic area.
Address Both U.S. and Asia Markets
A significant aspect of the Company's market strategy for its peripheral
products, is to address both the U.S. market consisting of large PC OEMs and
the Asian market consisting primarily of subcontractors for U.S. OEMs,
motherboard manufacturers and add-in card manufacturers. The Company offers
manufacturers in these markets low cost solutions designed for the specific
needs of each market.
Achieve Low Costs and Maintain Product Quality Through Custom Owned Tooling
Design
An important aspect of the Company's manufacturing strategy is to
vigorously control production and operating costs through efficient product
designs. The Company does not maintain its own internal production
capabilities and relies on third-party foundries to produce its products. Over
the last several years, the Company
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has implemented full custom designs in substantially all areas of its core
logic chipsets and has established one or more than one foundry for each of
its principal products. Reliance on outside foundries has enabled the Company
to focus its development resources on circuit design and to avoid the capital
expenditures and overhead required to maintain semiconductor manufacturing
facilities.
Product Design Innovations and Technologies
The Company's products incorporate a variety of advanced technologies to
enable PC manufacturers to introduce high performance low cost systems. These
products, design innovations and technologies include:
Peripheral Products
USB Controller
The Company currently offers a USB Host Controller which brings USB support
to any PCI-based system. Its compact packaging allows it to be accommodated in
virtually any personal computer, consumer electronic devices, or other systems
requiring this functionality. The USB Controller is fully supported under
Windows 95, Windows 98, and Windows CE. The Company's implementation is unique
because it provides power management features not found in competitive
solutions.
Docking Station
The Company currently offers a docking solution within its mobile computer
product offerings. This solution supports either a 5 volt or 3.3 volt docking
interface running synchronously or asynchronously at speeds up to 33
Megahertz. By offloading the primary PCI bus, the docking solution can
increase its bandwidth.
Sales and Marketing
OPTi markets its products to PC suppliers, motherboard manufacturers, and
add-on board manufacturers directly and through independent sales
representatives. In North America, OPTi's sales organization from the
Company's headquarters in Santa Clara, California. In Asia, the Company
operates from a wholly owned subsidiary in Tokyo, Japan and through
independent sales representatives located in Korea.
The Company's products are used by a variety of major personal computer and
motherboard manufacturers. In 1999, personal computer suppliers who used the
Company's products included Compaq, , Siemens, Apple and NEC/Packard Bell. The
Company's sales to any single customer fluctuates significantly from period to
period based on order rates and design cycles. Any individual customer may or
may not continue purchasing products in any particular subsequent product
release or generation. It has been the Company's experience that its major
customers have changed from quarter to quarter and year to year, and the
Company expects these changes in its customer base will continue to occur
based on the individual customer requirements and strategies. Sales to the
Company's customers are typically made pursuant to specific purchase orders,
which are cancelable without significant penalties.
Sales to customers in Asia accounted for 82.2%, 86.0%, and 89.2% of net
sales in the years ended December 31, 1999, 1998 and 1997, respectively. Sales
to customers in Europe and other countries outside the U.S. and Asia accounted
for 0.5%, 0.4%, and 0.3% of net sales in the years ended December 31, 1999,
1998 and 1997, respectively. During these three years, billings to almost all
customers were made in US dollars. Approximately 16%, 15%, and 13% of sales
were billed in Japanese yen in 1999, 1998 and 1997, respectively. Due to its
export sales, the Company is subject to the risks of conducting business
internationally, including unexpected changes in regulatory requirements,
fluctuations in the U.S. dollar (which could increase the sales price in local
currencies of the Company's products in international markets or make it
difficult for the Company to obtain price reductions from its foundries),
delays in obtaining export licenses for certain technology, tariffs and other
barriers and restrictions.
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As is common in the semiconductor industry, the Company's business
relationships with its customers require it to acquire and maintain
inventories of its products based on forecast volumes from customers and in
amounts greater than that supported by firm backlog. The Company's customers
typically purchase products on a purchase order basis and do not become
obligated to purchase any quantity of products prior to the issuance of the
purchase order, even if the customer has previously forecast a substantially
higher volume of products. The Company typically places non-cancelable orders
to purchase its products from its foundries on an approximately twelve week
rolling basis, while its customers generally place purchase orders
approximately four weeks prior to delivery which may be canceled without
significant penalty. Consequently, if anticipated sales and shipments in any
quarter do not occur when expected, expense and inventory levels could be
disproportionately high, requiring significant working capital. The Company
has experienced cancellation and shortfalls in purchase orders in the past,
and in some instances such changes have resulted in inventory write-downs or
write-offs. The Company expects that it will continue to experience such
difficulties in the future.
The Company's payment terms to its customers typically require payment 30
to 60 days after shipments of products, which is the industry standard. The
Company sometimes obtains letters of credit in support of sales to customers
primarily located in Asia. International sales supported by letters of credit
are normally paid in a period of time which is shorter than the payment period
for sales for which no letter of credit is provided.
Customer Support and Service
The Company believes that customer service and technical support are
important competitive factors in the embedded and peripheral product markets.
The Company provides technical support for customers in the U.S. and Asia.
Manufacturers' representatives supplement the Company's efforts by providing
additional customer service and technical support for OPTi products.
Manufacturing, Quality Control and Design Methodology
The Company subcontracts its manufacturing to independent foundries which
allows OPTi to avoid the significant fixed overhead, staffing and capital
requirements associated with semiconductor fabrication facilities. As a
result, the Company is able to focus its resources on product design and
development, test, quality assurance, marketing and customer support.
The majority of the Company's products are currently manufactured using its
custom owned tooling process and procured wafers and die primarily from United
Microelectronics (UMC) in Taiwan, TSMC in Taiwan, Toshiba in Japan, and
packaging houses in Taiwan. The Company, in an effort to secure long term
capacity has developed strong relationships with its suppliers.
The Company is constantly engaged in cost reduction programs that need to
be successful in order to ensure the profitability for products that face
intense price competition in the marketplace.
Currently, the Company has been experiencing at time an inability to get
the amount of wafers that it requires to met some of its customer demand.
However, the semiconductor industry experiences cycles of under-capacity and
over-capacity which have resulted in temporary shortages of products in high
demand, as experienced in the industry at various times through 1999.
The Company has attempted to reduce inventory risks by improving its
forecasting capabilities. Despite the fact that the Company has taken measures
to avoid supply shortages, periods of under-capacity may develop, creating
possible shortages for the Company's products. In the event of lower demand
for the Company's products, the Company may still be required to purchase
wafers in excess of that demand. Any such shortage or delays that are caused
by under capacity or any excess inventory created by a lowering of the
Company's actual demand for wafers could have a material adverse effect on the
Company's operating results.
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Research and Development
In January 2000, the Company had a reduction in staff as it made the
decision to terminate all design efforts on its newer products, such as the
LCD product. As of March 22, 2000, the Company had a staff of one research and
development person, which conducts virtually all of the Company's product
development with the assistance of outside contractors. During 1999, 1998 and
1997, respectively, the Company spent approximately $5.6, $9.7, and $12.6
million on research and development. All research and development costs are
expensed as incurred. The Company has invested in technologies which, although
not currently productized, may be integrated into future products.
Competition
The market for the Company's products is intensely competitive. Important
competitive factors in the Company's markets are price, performance, time-to-
market, added features, degree of integration, technical support and cost. The
Company believes that it currently competes effectively with respect to these
factors, although there can be no assurance that the Company will be able to
compete effectively in the future.
The Company's competitors in both the core logic chipset market and the
peripheral products market include a large number of competitive companies,
several of which have achieved a substantial market share. Certain of the
Company's competitors in both of these markets have substantially greater
financial, marketing, technical distribution and other resources, greater name
recognition, lower cost structures and larger customer bases than the Company.
In addition, the Company faces competition from current and prospective
customers that evaluate the Company's capabilities against the merits of
manufacturing products internally. The Company also faces competition from new
and entering companies that have recently entered or may in the future enter
the markets in which the Company participates.
Competition in Mobile Core Logic Market/Embedded Marketplace
The Company's main competitor in this market is Intel. Although Intel has
not been as aggressive in this market as it has been in the desktop core logic
area, there can be no assurances that they will not develop a strategy to
attempt to control this market. The Company must continue to try to compete
with Intel based on product features and product compatibility, but there can
be no assurance that it will be successful in doing so.
The Company's other competitors in the core logic area include major
domestic and international semiconductor companies and established chipset
companies, including Acer Labs Inc., Silicon Integrated Systems, United
Microelectronics Corporation and VIA, Inc. Certain of these companies, in
addition to Intel, have substantially greater financial, technical, marketing
and other resources than the Company and several have their own internal
production capabilities. The Company must face the challenge of competing at
the high end of the marketplace, in the PC OEM area, based on features and at
the lower end of the marketplace, the motherboard market, based on price.
Competition in USB Market
The Company's main competitors in this marketplace include CMD, Lucent
Technologies and VIA, Inc. As in the core logic marketplace, certain of these
companies have substantially greater financial, technical, marketing and other
resources than the Company. The Company must continue to try and compete with
these companies based on product features and price.
Intellectual Property
The Company seeks to protect its proprietary technology by the filing of
patents. The Company currently has thirty patents based on certain aspects of
the Company's designs. The Company currently has seven patents pending for its
technologies, and there can be no assurance that the pending patents will be
issued or, if issued, will provide protection for the Company's competitive
position.
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The Company is currently being sued by one party. The party is alleging
that certain of the Company's products have infringed upon the party's
intellectual property rights. Moreover, the Company has been and may from time
to time continue to be notified of claims that it may be infringing patents,
copyrights or other intellectual property rights owned by other third parties.
There can be no assurance that these or other companies will not in the future
pursue claims against the Company with respect to the alleged infringement of
patents, copyrights or other intellectual property rights. In addition,
litigation may be necessary to protect the Company's intellectual property
rights and trade secrets, to determine the validity of and scope of the
proprietary rights of others or to defend against third party claims of
invalidity. The current litigation or any other litigation could result in
substantial costs and diversion of resources and could have a material adverse
effect on the Company's business, financial condition and results of
operations.
There can be no assurance that additional infringement, invalidity, right
to use or ownership claims by third parties or claims for indemnification
resulting from infringement claims will not be asserted in the future. The
Company has entered into license agreements in the past regarding certain
alleged infringement claims asserted by third parties. In response to the
current litigation or if any other claims or actions are asserted against the
Company, the Company may seek to obtain a license under a third party's
intellectual property rights. There can be no assurance, however, that a
license will be available under reasonable terms or at all. The failure to
obtain a license under a patent or intellectual property right from a third
party for technology used by the Company could cause the Company to incur
substantial liabilities and to suspend the manufacture of the products
utilizing the intellectual property. In addition, should the Company decide to
litigate the current claims or such other claims, such litigation could be
extremely expensive and time consuming and could materially and adversely
affect the Company's business, financial condition and results of operations,
regardless of the outcome of the litigation.
Backlog
Because the Company's customers typically expect quick deliveries, the
Company seeks to ship products within a few weeks of receipt of a purchase
order. A customer may reschedule delivery of products on a purchase order or
cancel the purchase order entirely without significant penalty. In addition,
the Company's actual shipments depend on the manufacturing capacity of the
Company's foundries, packaging houses, internal test facilities, and other
industry factors. In the past, the Company has experienced material order
cancellations and deferrals, and expects that it will experience these issues
in the future. As a result, the Company does not believe that backlog is a
reliable indicator of future sales. At December 31, 1999, the Company's
backlog scheduled for delivery within six months was approximately $3.4
million, all of which is expected to be filled during fiscal 2000 (subject to
rescheduling or cancellations). This amount compares to a backlog of
approximately $4.5 million as of December 31, 1998.
Factors Affecting Earnings and Stock Price
Fluctuations in Operating Results
The Company has experienced significant fluctuations in its quarterly
operating results in the past and expects that it will experience such
fluctuations in the future. In the past, these fluctuations have been caused
by a variety of factors including increased competition from Intel and other
suppliers, price competition, ongoing rapid price declines, changes in
customer demand, the timing of delivery of new products, inventory
adjustments, changes in the availability of foundry capacity and changes in
the mix of products sold. In the future, the Company's operating results in
any given period may be adversely affected by one or more of these factors.
Price Competition
The market for the Company's products are subject to severe price
competition and price declines. There can be no assurance that the Company
will succeed in reducing its product costs rapidly enough to maintain or
increase its' gross margin level or that further substantial reduction in
chipset prices will not result in lower profitability or losses.
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Changes in Customer Demand
The Company currently places non-cancelable orders to purchase products
from independent foundries, while its customers generally place purchase
orders with a significantly shorter lead time which may be canceled without
significant penalty. In the past, the Company has experienced order
cancellations and deferrals and expects that it will experience cancellations
in the future from time to time. Any such order cancellations, deferrals, or a
shortfall in a receipt of orders, as compared to order levels expected by the
Company, could have a significant adverse effect on the Company's operating
results in any given period.
Product Transitions and the Timing and Delivery of New Products
A substantial majority of the Company's net sales is derived from its
mobile core logic products. The market for mobile core logic products is
characterized by frequent transitions in which products rapidly incorporate
new features and performance standards. A failure to develop products with
required feature sets or performance standards or a delay as short as a few
months in bringing a new product to market could significantly reduce the
Company's net sales for a substantial period, which would have a material
adverse effect on the Company's business, financial condition and results of
operations.
Continued Sales of Current Products
The Company's ability to maintain or increase its sales levels and
profitability depends directly on its ability to continue to sale its existing
products at current volumes. The Company, after its decision to terminate all
new product development in January 2000, will have no new product
introductions for the foreseeable future. Any inability to continue sales at
the current level could have an immediate and very significant adverse effect
on the trading price of the Company's stock. Investors in the Company's
securities must be willing to bear the risks of such fluctuations.
Each of the product segments in which the Company offers new products are
intensely competitive and the Company must compete with entrenched competitors
who have established greater product breadth and distribution channels. The
introduction of new products can result in a greater than expected decline and
demand for existing products and create an imbalance between products ordered
by customers and products which the Company has in inventory. This imbalance
can result in surplus or obsolete inventory, leading to write-offs or other
unanticipated costs or disruptions.
Customer Concentration
The Company primarily sells to PC, motherboard, and add-in card
manufacturers. The Company performs ongoing credit evaluations of its
customers but does not require collateral. The Company maintains reserves for
potential credit losses, and such losses have been within management's
expectations. With the exception of sales to Compaq and its subcontractors and
Apple and its subcontractors no other single customer represented more than
10% of sales in fiscal 1999. The Company sold approximately $6 million of
mobile core logic to Compaq and its subcontractors, representing a combined
27% of net sales for fiscal 1999. Also in fiscal 1999 the Company sold to
Apple Computer and its subcontractors approximately $6 million in USB
products, representing a combined 27% of net sales for that period. In 1998,
the Company sold approximately $17 million of mobile core logic product to
Compaq and its subcontractors, representing a combined 43% of net sales for
that period. Also in fiscal 1998 the Company sold to Apple Computer and its
subcontractors approximately $4 million in USB products, representing a
combined 11% of net sales for that period. In 1997, the Company sold
approximately $27 million of chipsets to Compaq and its subcontractors,
representing a combined 40% of net sales in that period.. The Company expects
that sales of its products to a relatively small group of customers will
continue to account for a high percentage of its net sales in the foreseeable
future, although the Company's customers in any one period will continue to
change.
However, there can be no assurance that any of these customers or any of
the Company's other customers will continue to utilize the Company's products
at current levels, if it all. The Company has experienced
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significant changes in the composition of its major customer base and expects
that this variability will continue in the future. At this time the Company is
not shipping any products to either Compaq and its subcontractors or Apple and
its subcontractors. The loss of any major customer or any reduction in orders
by any such customer could have a material adverse effect on the Company's
business, financial condition and results of operations.
The Company has no long-term volume commitments from any of its major
customers and generally enters into individual purchase orders with its
customers. The Company has experienced cancellations of orders and
fluctuations in order levels from period to period and expects it will
continue to experience such cancellations and fluctuations in the future.
Customer purchase orders may be cancelled and order volume levels can be
changed or delayed with limited or no penalties. The replacement of cancelled,
delayed or reduced purchase orders with new business cannot be assured.
Moreover, the Company's business, financial condition and results of
operations will depend in significant part on its ability to obtain orders
from new customers, as well as on the financial condition and success of its
customers. Therefore, any adverse factors affecting any of the Company's
customers or their customers could have a material effect on the Company's
business, financial condition and results of operation.
Credit Risks
Many of the Company's customers, particularly the motherboard manufacturers
in Taiwan, operate at very low profit margins and undertake significant
inventory risks. To the extent the Company provides open terms of credit to
some of the larger of these customers, the Company is exposed to significant
credit risks if these customers are unable to remain profitable. Approximately
4% of the Company's receivables at December 31, 1999 were with these
customers.
Dependence on Foundries and Manufacturing Capacity
Almost all of the Company's products are manufactured by outside foundries
pursuant to designs provided by the Company. In most instances, the Company
provides foundries with a custom-tooled design ("Custom Production"), whereby
the Company receives a finished die from the foundry which it sends to a third
party for cutting and packaging. This process subjects the Company to the risk
of low production yields as the die moves through the production and packaging
process. The Company's reliance on independent foundries, packaging houses,
and test houses involves several risks, including the absence of adequate
capacity, the unavailability of or interruptions in access to certain process
technologies and reduced control over delivery schedules, manufacturing yields
and costs. At times during the second half of 1999, the Company was unable to
meet the demand for certain of its products due to limited foundry capacity
and the Company expects that it will experience other production shortfalls or
difficulties in the future.
Because the Company's purchase orders with its outside foundries are non-
cancelable by OPTi, the Company is subject to risks of, and has in the past
experienced, excess or obsolete inventory due to an unexpected reduction in
demand for a particular product. The manufacture of chipsets is a complex
process and the Company may experience short-term difficulties in obtaining
timely deliveries, which could affect the Company's ability to meet customer
demand for its products. Should any of its major suppliers be unable or
unwilling to continue to manufacture the Company's key products in required
volumes, the Company would have to identify and qualify acceptable additional
foundries. This qualification process could take up to six months or longer.
No assurances can be given that any additional sources of supply could be in a
position to satisfy any of the Company's requirements on a timely basis. The
semiconductor industry experiences cycles of under-capacity and over-capacity
which have resulted in temporary shortages of products in high demand. Any
such delivery problems in the future could materially and adversely affect the
Company's operating results.
The Company began using Custom Production in 1993. Custom Production
requires that the Company provide foundries with designs that differ from
those traditionally developed by the Company in its gate array production and
which are developed with specialized tools provided by the foundry. This type
of design process is inherently more complicated than gate array production
and there can be no assurance that the Company will
9
<PAGE>
not experience delays in developing designs for Custom Production or that such
designs will not contain bugs. To the extent bugs are found, correcting such
bugs is likely to be both expensive and time consuming. In addition, the use
of Custom Production requires the Company to purchase wafers from the foundry
instead of finished products. As a result, the Company is required to increase
its inventories and maintain inventories of unfinished products at packaging
houses. The Company is also dependent on these packaging houses and its own
internal test functions for adequate capacity.
Possible Volatility of Stock Price
There can be no assurances as to the Company's operating results in any
given period. The Company expects that the trading price of its common stock
will continue to be subject to significant volatility.
Employees
As of December 31, 1999, the Company had 45 full-time employees, including
14 in research and development, 14 in marketing, sales, and support and 17 in
finance, administration and operations. The Company's future success will
depend, in part, on its ability to continue to attract, retain and motivate
highly qualified technical, marketing, engineering and management personnel,
who are in great demand. The Company's employees are not represented by any
collective bargaining unit, and the Company has never experienced a work
stoppage. The Company's ability to retain key employees is a critical factor
to the Company's success. As of March 22, 2000, the Company employed 21 full-
time employees, due to the reduction in staff action that the Company took in
January 2000. The major reduction was in the research and development area as
the Company made the decision to discontinue all future new product
development. The Company will continue to make efforts to enhance features on
its existing products and/or look to acquire technology.
Item 2. Properties
The Company is headquartered in Santa Clara, California, where it leases
administrative, sales and marketing, product development, and distribution
facilities in one location consisting of an aggregate of approximately 12,000
square feet. The Company has an additional two buildings, approximately 52,000
square feet and 45,000 square feet, that it leases in Milpitas, California.
The 45,000 square foot facility is sub-leased through the life of the lease,
October 2002, while the 52,000 square foot facility is sub-leased through
December 2000. The Company believes that these facilities are adequate for its
needs in the foreseeable future.
The Company also leases office space in Tokyo, Japan to provide sales and
technical support to customers in this region. The Company believes that this
facility is adequate for its needs in the foreseeable future.
Item 3. Legal Proceedings
In January 1997, a patent infringement claim was brought against the
Company by Crystal Semiconductor, Inc. ("Crystal'), a subsidiary of Cirrus
Logic, in the United States District Court for the Western District of Texas.
The claim alleges that the Company and Tritech Microelectronics International,
Inc. and its Singapore parent company, Tritech Microelectronics Pte, Ltd.
(collectively "Tritech") infringe three patents owned by Crystal. These
patents relate to the analog-to-digital coder-decoder ("codec") module that
was designed by Tritech and incorporated into integrated PC audio chips
formerly sold by the Company. The suit seeks injunctive relief and damages.
A jury trial was held in this action from May 3-13, 1999. On May 17, 1999,
the jury returned a verdict that all of the asserted claims of the patents in
suit are valid and were infringed by the accused OPTi and TriTech products.
The jury further found that Tritech's infringement, but not OPTi's, was
willful and deliberate. The jury was asked to consider separately three
different damages allegations. The first was that Crystal lost profits because
sales that it would otherwise have made were in fact made by the defendants
("lost profits"). The second was that the defendants' conduct had caused
Crystal to reduce its selling prices from what they otherwise would
10
<PAGE>
have been during the period of infringement ("price erosion"). The third
allegation was for the statutory alternative to lost profits, a "reasonable
royalty". The jury was asked to consider these questions with respect to the
defendants as a group and, of that amount, to assign a specific portion to
OPTi. The jury's verdict was as follows; all defendants $48.5 million, OPTi's
portion of that total $19.4 million.
Following the jury's verdict, the parties have made various motions for
judgment. OPTi has moved for the entry of judgment, as a matter of law, that
Crystal did not prove its entitlement to price erosion damages, that the
amount of lost profits damages should be reduced, and that Crystal cannot
recover both lost profits and a reasonable royalty together. Crystal has moved
for entry of judgment in the amount found by the jury, plus prejudgment
interest, compounded quarterly (approximately $3.2 million is the OPTi
portion).
On July 23, 1999, the United States District Court for the Western District
of Texas entered an Order and Judgment in the patent infringement action
brought by Crystal Semiconductor Corporation against OPTi, Inc., Tritech
Microelectronics Pte Ltd., a Singapore company,and TriTech Microelectronics
International, Inc., its American marketing subsidiary. The Court's judgment
substantially reduced the amount of damages that a jury had awarded to Crystal
against OPTi, from $19.4 million to $4 million.
The Court's Judgment also includes a permanent injunction against further
infringement, OPTi, however, is no longer in the audio chip business, having
sold its audio division to Creative Technology in November 1997.
Following the entry of judgment, all three parties involved in the suit
appealed the judgment to the United States Court of Appeals for the Federal
Circuit. Crystal appealed the judges decision to deny lost profits damages and
price erosion damages as awarded by the jury and the denial of prejudgment
interest. OPTi appealed the courts ruling on one of the patents at issue and
the interpretation of that patent by the court. If Crystal prevails in its
appeal and Tritech is unable to reimburse the Company due to its filing for
Judicial Management the results would have a material adverse effect on Opti's
financial position, results of operations, and cash flow.
A March 1994 Development Agreement between the Company and TriTech
Microelectronics International PTE LTD states that Tritech shall "fully and
effectively indemnify, defend and save harmless" the Company against any claim
that the products at issue in this action infringe the intellectual property
rights of others. However, in May 1999, TriTech Microelectronics, Pte, Ltd.
filed a "Petition For Judicial Management Order" in the High Court of the
Republic of Singapore, on the grounds that TriTech is "unable to pay its
debts" including its obligations to indemnify OPTi from Crystal's claim for
damages. The Order for a Judicial Manager to be appointed for TriTech was
granted on July 2, 1999. OPTi is in the process of filing a claim with the
Judicial Managers in regards to the indemnification agreement.
In September 1998, Crystal Semiconductor filed a second suit against the
Company and Does 1 through 1050 in the Superior court of the State of
California. This suit is a complaint to set aside fraudulent transfers, the
sale of its audio business and the stock repurchase program that the Company
started and completed in the summer of 1998, and for preliminary and permanent
injunction, against the Company divesting itself of its assets. On May 21,
1999, the Court signed a Stipulation and Order entered into by OPTi and
Crystal vacating the Preliminary Injunction Hearing set for June 3, 1999. This
Stipulation and Order obligates OPTi to maintain and preserve liquid assets
available, in an amount not less then the verdict against OPTi, plus costs and
interest, in the underlying patent litigation between Crystal and OPTi. Based
on the judgment entered into the Texas court a new Stipulation and Order was
entered into by the party whereas the amount of liquid assets to be maintained
and preserved was reduced to the amount of the court judgment.
In response to the Company's announcement of its intention to pay a
dividend in cash to its shareholders of four dollars per share, Crystal
requested in the Santa Clara County Superior Court of California, that the
Company stipulate to preserve additional assets in order to pay a potential
judgment should Crystal prevail on appeal of the post-trial rulings in the
Texas litigation. On November 3, 1999, the Court entered a Stipulation and
Order Regarding Payment of Dividend obligating the Company to maintain and
preserve assets in an amount not less than $24,000,000, "until such time as
the judgment in the Texas litigation, after resolution of any appeals
11
<PAGE>
therein, is satisfied in full by the Company or until such time as Crystal's
claims against the Company in the Texas litigation are settled, released or
waived by Crystal."
On February 26, 1999, the Lemelson Medical, Education and Research
Foundation (the "Lemelson Foundation") filed a complaint in the United States
District Court for the district of Arizona against the Company and 87 other
defendant companies claiming patent infringement. No complaint has actually
been served against the Company.
In August 1999, the Company and the Lemelson Foundation reached an
agreement in regards to the patents at suit. Under terms of the license
agreement, the Lemelson Foundation agrees not to sue the Company on its
patents and pending applications and any subsequently filed applications
claiming inventions originally disclosed in any such existing patents or
pending applications.
In September and October 1995, the Company was served with multiple
shareholder class action lawsuits filed in the United States District Court
for the Northern California District of California. The lawsuits, which named
the Company and several of its officers and directors as defendants, alleged
violations of the federal securities laws in connection with the announcement
by OPTi Inc. of its financial results for the quarter ended September 30,
1995. In December 1997, the Company and its insurance carriers reached a
settlement with the plaintiffs in regards to this suit. The Company was
responsible for approximately $500,000 of the settlement amount, which was
paid in fiscal 1998. While, the Company claims no wrongdoing in regards to
this matter it believed that the expense and time spend to continue to defend
its position would have been more costly than the actual settlement.
The Company is also subject to commercial litigation which the Company
believes is not material to its financial condition or results of operations.
Item 4. Submission of Matters to a Vote of Security Holders
Not Applicable.
12
<PAGE>
PART II
Item 5. Market for Registrant's Common Stock and Related Stockholder Matters
The following required information is filed as a part of this Report:
On November 17, 1999, the Company paid a cash dividend of $4.00 per share
on each share of its common stock. The Board of Directors made the
determination of providing the cash dividend based upon the Company's then
existing excess cash position. The Company had not previously paid cash
dividends on its common stock, and currently intends to retain any future
earnings for use in the operation of its business. Accordingly, the Company
does not expect to pay further cash dividends in the foreseeable future. The
Company's common stock is traded over-the-counter and is quoted on the
National Market System under the symbol "OPTI". The following table sets forth
the range of high and low closing prices for the Common Stock:
<TABLE>
<CAPTION>
Quarterly Period Ended
------------------------------------
Dec. 31, Sept. 30, June 30, Mar. 31,
Common stock price per share: -------- --------- -------- --------
<S> <C> <C> <C> <C>
1999
High................................. $7.25 $7.44 $6.44 $6.25
Low.................................. 3.06 5.63 5.28 4.13
1998
High................................. $4.88 $6.94 $7.13 $7.31
Low.................................. 3.25 4.00 6.44 6.00
</TABLE>
As of March 22, 2000, there were approximately 185 holders of record of the
Company's common stock.
13
<PAGE>
Item 6. Selected Consolidated Financial Data
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------------------
1999 1998 1997 1996 1995
------- ------- -------- -------- --------
<S> <C> <C> <C> <C> <C>
Consolidated Statement of
Operations Data:
Net sales...................... $22,257 $40,003 $ 67,842 $118,725 $163,676
Cost of sales.................. 14,403 26,712 50,471 111,395 121,587
------- ------- -------- -------- --------
Gross margin................... 7,854 13,291 17,371 7,330 42,089
Operating expenses............. 16,776 20,623 27,836 31,000 27,458
------- ------- -------- -------- --------
Operating income (loss)........ (8,922) (7,332) (10,465) (23,670) 14,631
Other income (expenses):
Gain on sale of Audio line.... -- -- 12,391 -- --
Interest income and other..... 3,231 3,717 3,031 2,417 3,210
Interest expense.............. (261) (312) (473) (441) (306)
------- ------- -------- -------- --------
Income (loss) before provision
for income taxes.............. (5,952) (3,927) 4,484 (21,694) 17,535
Provision (benefit) for income
taxes......................... 59 285 9,872 (7,636) 6,285
------- ------- -------- -------- --------
Net Income (loss).............. $(6,011) $(4,212) $ (5,388) $(14,058) $ 11,250
------- ------- -------- -------- --------
Basic net income (loss) per
share......................... $ (0.54) $ (0.35) $ (0.42) $ (1.13) $ 1.02
======= ======= ======== ======== ========
Shares used in computing basic
per share amounts............. 11,059 12,196 12,838 12,443 11,033
======= ======= ======== ======== ========
Diluted net income (loss) per
share......................... $ (0.54) $ (0.35) $ (0.42) $ (1.13) $ 0.85
======= ======= ======== ======== ========
Shares used in computing
diluted per share amounts..... 11,059 12,196 12,838 12,443 13,171
======= ======= ======== ======== ========
Consolidated Balance Sheet
Data:
Cash, cash equivalents, and
short-term investments....... $23,722 $60,903 $ 72,508 $ 56,372 $ 50,302
Working capital............... 19,682 55,791 75,360 76,188 71,481
Total assets.................. 28,232 81,575 111,615 115,501 106,458
Long-term obligations,
excluding current portion.... 310 1,810 3,473 4,649 2,316
Shareholders' equity.......... 21,182 69,285 92,723 96,371 79,149
Cash dividends declared per
common share................. $ 4.00 $ -- $ -- $ -- $ --
</TABLE>
14
<PAGE>
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations
Information set forth in this report constitutes and includes forward
looking information made within the meaning of Section 27A of the Securities
Act of 1933, as amended and Section 21E of the Securities and Exchange Act of
1934, as amended, that involve risks and uncertainties. The Company's actual
results may differ significantly from the results discussed in the forward
looking statements as a result of a number of factors, including product mix,
the Company's ability to obtain or maintain design wins, market conditions
generally and in the personal computer and semiconductor industries, product
development schedules, competition and other matters. Readers are encouraged
to refer to "Factors Affecting Earnings and Stock Price" found below.
OPTi was founded in 1989 and is an independent volume supplier of
semiconductor products to the personal computer market.. During 1999, the
Company shipped more than two million core logic and peripheral products (such
as USB contollers and docking stations to over 50 PC and motherboard
manufacturers and add-on board manufacturers located primarily in Asia and the
U.S.
1999 Compared to 1998--Net sales for the year ended December 31, 1999
("1999") decreased 44% to $22.3 million, compared to net sales of $40.0
million for the year ended December 31, 1998 ("1998"). This decrease in sales
was attributable to decreased sales of chipsets supporting the Company's
mobile core logic products and decreased sales from audio products after the
Company sold its Audio assets to Creative Technology in November 1997, as well
as the loss of significant mobile core logic design wins in the second half of
1999
Revenue from core logic products were approximately 56% of net sales for
1999 as compared to approximately 74% in 1998. The remaining 44% of revenue in
1999 was from peripheral products (the vast majority from our USB product).
The mix of revenues within the Company shifted in the second half of 1999 to a
higher percentage of peripheral products, specifically the USB product, and a
lower percentage of core logic products. It is likely that the Company will
experience ongoing shifts in its revenue mix, as sales of core logic chipsets
continue to decline. No assurances can be given that future revenues will
reflect this product mix trend.
Gross margin for 1999 increased to approximately 35% of net sales as
compared to approximately 33% in 1998. This increase in gross margin for 1999
as compared to 1998 was primarily attributable to change in the Company's
product mix from core logic to peripheral products. The Company was also
sucessful in 1999 in obtaining a reduction in costs of wafers used in its core
logic products and a reduction in the cost of assembling its core logic and
peripheral products. The Company is likely to face potential inventory risks
and adjustments if anticipated sales and shipments do not occur when expected.
The markets for the Company's products are also subject to severe price
competition and price declines. There can be no assurance that the Company
will succeed in reducing its product costs rapidly enough to maintain its
gross margin level or that further substantial reductions in chipset prices
will not result in future losses.
Research and development ("R&D") expenses for 1999 decreased approximately
42% to $5.6 million, compared with $9.7 million for 1998. The decrease in
research and development expenses from 1998 to 1999 is primarily related to
the Company's decision to discontinue all development efforts related to
mobile core logic. During fiscal 1999 the Companys main focus for research and
development was on the peripheral products, USB controllers and LCD products.
The Company anticipates a decline in this spending area in 2000 due to the
reduction in headcount.
Selling, general and administrative ("SG&A") expenses for 1999 increased
approximately 2% to $11.2 million, compared with $10.9 million in 1998. This
increase in SG&A expenses from 1998 to 1999 was primarily attributable to the
litigation expenses that the Company incurred in regards to the award of a
judgment for $4.0 million plus costs in the Crystal litigation in Austin,
Texas. This increase was partially offset by, decreased costs related to
reduced net sales and reduced headcount related expnses in both the sales and
General & administrative areas. The Company anticipates a decline in this
spending area in 2000 due to the reduction in headcount.
15
<PAGE>
Net interest and other income for 1999 was $3.0 million as compared to $3.4
million for 1998. Interest and other income consists primarily of interest
income and has decreased primarily due to lower average interst rates during
1999 versus 1998 and lower cash balances in the fourth quarter of 1999,
following the Company's payment of dividends.
The Company's effective tax rate was 1% for 1999 and 7% for 1998. The
Company's effective tax rate differed from the federal statutory rate in 1999
due primarily to federal alternative minimum taxes and the limitations
controlling the timing for recognition of deferred tax assets established by
Statement of Financial Accounting Standards No. 109 ("FAS 109"), "Accounting
for Income Taxes" which will prevent a tax benefit for potential operating
losses.
1998 Compared to 1997--Net sales for the year ended December 31, 1998
("1998") decreased 41% to $40.0 million, compared to net sales of $67.8
million for the year ended December 31, 1997 ("1997"). This decrease in sales
was attributable to decreased sales of chipsets supporting the Company's
mobile core logic products and decreased sales from audio products after the
Company sold its Audio assets to Creative Technology in November 1997. In 1998
the Company shipped approximately 4.4 million chipsets and peripheral products
as compared to approximately 5.7 million in 1997.
Revenue from core logic products were approximately 74% of net sales for
1998 as compared to approximately 73% in 1997. The remaining 26% of revenue in
1998 was from peripheral products (USB, audio and graphics). The mix of
revenues within the Company shifted in the second half of 1998 to a higher
percentage of peripheral products, specifically the USB product, and a lower
percentage of core logic products.
Gross margin for 1998 increased to approximately 33% of net sales as
compared to approximately 26% in 1997. This increase in gross margin for 1998
as compared to 1997 was primarily attributable to change in the Company's
product mix from core logic to peripheral products. In 1997 the majority of
non core logic products was audio products which carried a lower gross margin
than the USB controller which was the majority of non core logic products in
1998. The Company was also sucessful in 1998 in obtaining a reduction in costs
of wafers used in its core logic products and a reduction in the cost of
assembling its core logic products.
Research and development ("R&D") expenses for 1998 decreased approximately
23% to $9.7 million, compared with $12.6 million for 1997. The decrease in
research and development expenses from 1997 to 1998 is primarily related to
the Company's shift in market focus over the last year as the Company has
focused more heavily on notebook directed technologies and has reduced
research and development spending in other areas resulting in a net reduction
in spending.
Selling, general and administrative ("SG&A") expenses for 1998 decreased
approximately 22% to $10.9 million, compared with $14.1 million in 1997. This
decrease in SG&A expenses from 1997 to 1998 was primarily attributable to
decreased net sales.
Net interest and other income for 1998 was $3.4 million as compared to $2.5
million for 1997. Interest and other income consists primarily of interest
income and has increased primarily due to higher average interst rates during
1998 versus 1997.
The Company's effective tax rate was (7%) for 1998 and 220% for 1997. The
Company's effective tax rate differed from the federal statutory rate in 1998
due primarily to federal alternative minimum taxes and the limitations
controlling the timing for recognition of deferred tax assets established by
Statement of Financial Accounting Standards No. 109 ("FAS 109"), "Accounting
for Income Taxes" which will prevent a tax benefit for potential operating
losses.
Liquidity and Capital Resources--The Company has financed its operations
through cash generated from operations and an initial public offering of
equity in 1993. In 1999, the Company used cash from operating activities of
$1.5 million primarily due to reductions in accounts payable and the Companys
net loss for the year.
16
<PAGE>
This was partially offset by decreases in accounts receivable, and inventories
as well as an increase in accrued expenses, relating to the litigation.. In
1998, the Company generated cash from operations of $9.4 million primarily due
to reductions in accounts receivable and inventory due to lower sales. This
was partially offset by a decrease in accounts payable and a net loss for the
year.
The Company's investing activities provided cash of approximately $14.0
million during 1999. The cash provided by investing activities was
attributable to the sale of the Company's investment in the UICC wafer fab and
the sale of its short- term investments. The Company's investing activities
provided cash of approximately $3.6 million in 1998. The cash provided by
investing activities was attributable to sale of its short-term investments of
approximately $4.4 million, offset, in part, by purcahses of property and
equipment. The Company's investing activities provided cash of $3.3 million in
fiscal 1997. This cash generated during 1997 was primarily due to proceeds of
$13.9 million from the sale of the Company's audio line, partially offset by,
an investment into short term investments of approximately $8.7 million and a
payment of approximately $1.6 million to United Microelectronics Corporation
("UMC") as partial payment under terms of the 1995 agreement that the Company
signed with UMC. As of December 31, 1997 the Company has no further
obligations under this agreement.
Financing activities used cash of approximately $45.4 million in 1999. This
use in cash for financing activitities during 1999 was mainly attributable to
a cash dividend paid in November 1999 and principal payments on the capital
lease obligations. This was partially offset by proceeds from the sale of the
Company's common stock. Financing activities used cash of approximately $20.2
million in 1998. This use in cash for fiscal 1998 was primarily due to the
Company repurchasing approximately $24.0 million of its common stock based on
a repurchase program announced in June 1998 and principal payments on capital
leases offset, in part, by proceeds from the sale of the Company's common
stock
The Company's manufacturing plans and expenditure levels are based
primarily upon sales forecasts. Typically, the Company orders products from
foundries pursuant to non-cancelable purchase orders on a rolling twelve week
basis while its customers generally place product orders approximately four
weeks prior to delivery, which orders may be canceled without significant
penalty. The Company anticipates that the rate of new orders will vary
significantly from month to month. As a result, backlog can fluctuate
significantly. Consequently, if anticipated sales and shipments do not occur
when expected, expense and inventory levels could be disproportionately high
and the Company's operating results could be materially and adversely
affected.
In January 2000, the Company entered into a non-exclusive license agreement
for all of its patents with a major semiconductor company. In return for the
one time fully paid up license fee of $13,500,000, OPTi releases this company
from any and all claims or liability for infringement of OPTi patents. OPTi is
also released of liability for any infringement of the other company's patents
that arose prior to the signing date.
As of December 31, 1999, the Company's principal sources of liquidity
included cash and cash equivalents and short term investments of approximately
$23.7 million and working capital of $19.7 million. The Company believes that
the existing sources of liquidity will satisfy the Company's projected working
capital and other cash requirements through at least the end of 2000.
In response to the Company's announcement of its intention to pay a
dividend in cash to its shareholders of four dollars per share, Crystal
requested in the Santa Clara County Superior Court of California, that the
Company stipulate to preserve additional assets in order to pay a potential
judgment should Crystal prevail on appeal of the post-trial rulings in the
Texas litigation. On November 3, 1999, the Court entered a Stipulation and
Order Regarding Payment of Dividend obligating the Company to maintain and
preserve assets in an amount not less than $24,000,000, "until such time as
the judgment in the Texas litigation, after resolution of any appeals therein,
is satisfied in full by the Company or until such time as Crystal's claims
against the Company in the Texas litigation are settled, released or waived by
Crystal."
17
<PAGE>
Year 2000
In prior years, the Company discussed the nature and progree of its plans
to become Year 2000 ready. In late 1999, the Company completed its remediation
and testing of systems. As a result of those planning and implementation
efforts, the Company experiernced no significant disruptions in mission
critical information technology and non-information technology systems and
believes those systems successfully responded to the Year 2000 date change.
The Company expensed approximately $100,000 during 1999 in connection with
remediating its systems. The Company is not aware of any material problems
resulting from Year 2000 issues, either with its products, its internal
systems, or the products and services of third parties. The Company will
continue to monitor its mission critical computer applications and those of
its suppliers and vendors throughout the year 2000 to ensure that any Year
2000 matters that may arise are addressed promptly.
Item 7a. Quantitative and Qualitative Disclosure About Market Risk
Interest Rate Sensitivity
We maintain our cash and cash equivalents primarily in money market funds.
We do not have any derivative financial instruments. As of December 31, 1999,
all of our investments mature in less than three months. Accordingly, we do
not believe that our investments have significant exposure to interest rate
risk.
Item 8. Financial Statements and Supplementary Data
The Company's financial statements and the report of the independent
auditors appear on pages F-1 through F-17 of this Report.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosures
None.
18
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Registrant
Directors and Executive Officers of the Registrant
The directors and executive officers of the Company as of March 26, 1999
were as follows:
<TABLE>
<CAPTION>
Name Age Position with the Company
- ---- --- -------------------------
<S> <C> <C>
Bernard Marren............... 64 Chief Executive Officer, Chairman of the Board
Douglas Gans................. 55 Chief Financial Officer and Secretary
Stephen A. Dukker(1)......... 47 Director
William Welling(1)(2)........ 63 Director
Kapil K. Nanda(1)(2)......... 54 Director
</TABLE>
- --------
(1) Member of the Audit Committee.
(2) Member of the Compensation Committee.
Bernard T. Marren has served as President and Chief Executive Officer of
the Company since May 1998. Mr. Marren was elected as a director in May 1996.
Mr. Marren founded Western Microtechnology Inc.,a distributor of electronic
systems and semiconductor devices. He served as its President from 1977 to
1994. From 1972 to 1976, Mr. Marren was President of American Microsystems. He
also founded and was the first President of SIA (the Semiconductor Industry
Association). Mr. Marren is also a director of several private companies.
Douglas Gans was appointed Chief Financial Officer of the Company in
January 2000. Mr. Gans has over 30 years of financial management experience.
He is a consultant to the Company working for the Brenner Group. From 1991 to
1999 he held the position of CFO at Asante Technologies, Inc, and Sunseeds
Corporation.
Stephen A. Dukker was elected as a director of the Company in January 1993.
He is currently President of E-machines where he has been employed since mid
1998. He was a Senior Vice President of Merchandising at Computer City from
October 1997 to August 1998. He served as President of OPTi Inc. from January
of 1996 to October 1997. From May 1994 to mid 1995, Mr. Dukker served as
President of VideoLogic, Inc., a supplier of video and graphics add-on boards.
From June 1991 through October 1993, he served as a Senior Vice President of
CompUSA, Inc., a chain of discount computer superstores. During that time he
was also a member of the Executive Committee of CompUSA and President of its
Compudyne Computer manufacturing and mail order subsidiaries. Prior to joining
CompUSA, Mr. Dukker was President of PC Brand, Inc., a manufacturer and mail
order distributor of PC products from January 1988 to May 1991.
William Welling was elected as a director in August 1998. He is currently
Chairman and CEO of Xiox Corporation, a telecommunications software company.
Since 1983 he has been Managing Partner of Venture Growth Associates, an
investment firm. Mr. Welling also serves as a director on the boards of
several private companies.
Kapil K. Nanda was elected as a director in May 1996. Mr. Nanda is
currently President of InfoGain Corporation, a software and development
consulting company, which he founded in 1990. Prior to 1990, Mr. Nanda held
various positions at Altos Computer Systems, a personal computer manufacturing
company, from 1981 to 1989. Serving as Vice President of Engineering from 1984
to 1988. From 1974 to 1981, Mr. Nanda was employed at Intel Corporation,
serving as Manager, Software Engineering from 1976 to 1981. Mr. Nanda holds a
B.S. in Engineering from the University of Punjab, India, an M.S. in
Engineering from the University of Kansas, and an M.B.A. from the University
of Southern California.
Compliance with Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934 requires the Company's
officers and directors, and persons who own more than 10% of a registered
class of the Company's equity securities, to file certain reports
19
<PAGE>
regarding ownership of, and transactions in, the Company's securities with the
Securities and Exchange Commission (the "SEC") and with Nasdaq. Such officers,
directors and 10% shareholders are also required by SEC rules to furnish the
Company with copies of all Section 16(a) forms that they file.
Based solely on its review of copies of Forms 3 and 4 and amendments
thereto furnished to the Company pursuant to Rule 16a-3(e) and Forms 5 and
amendments thereto furnished to the Company with respect to the Last Fiscal
Year, and any written representations referred to in Item 405(b)(2)(i) of
Regulation S-K stating that no Forms 5 were required, the Company believes
that, during the last Fiscal Year, all Section 16(a) filing requirements
applicable to the Company's officers, directors and 10% shareholders were
complied with
Item 11. Executive Compensation
Summary Compensation Table
The following table sets forth certain information with respect to the
compensation paid by the Company for services rendered during fiscal years
1999, 1998, and 1997 to Bernard Marren and Michael Mazzoni (the "Named
Officers"). The table lists the principal position held by each Named Officer
in the Last Fiscal Year.
<TABLE>
<CAPTION>
Long-Term
Annual Compensation Compensation
Fiscal -------------------- Awards All Other
Name Year Salary ($) Bonus ($) Otpions (#) Compensation
- ---- ------ ---------- --------- ------------ ------------
<S> <C> <C> <C> <C> <C>
Bernard Marren........... 1999 $251,250 $420,000 -- --
President and Chief
Executive Officer 1998 150,923 -- 100,000 --
1997 -- -- -- --
Michael Mazzoni(1)....... 1999 145,763 69,525 -- --
Chief Financial Officer 1998 136,475 50,000 45,000 --
1997 96,771 10,350 -- --
</TABLE>
- --------
(1) On January 31, 2000, Mr. Mazzoni resigned from his position as Chief
Financial Officer of the Company.
Option Grants in Last Fiscal Year
There were no options granted in the last fiscal year to the Named
Officers.
Aggregated Option Exercises in Last Fiscal Year and Fiscal Year End Option
Values
The following table provides information with respect to option exercises
in the Last Fiscal Year by the Named Officers and the value of such officer's
unexercised options at December 31, 1999
<TABLE>
<CAPTION>
Total Value of Total Number of Unexercised
Unexercised Options at In-the-Money Options at
Shares Fiscal Year End (#) Fiscal Year End ($)(1)
Acq. Value ------------------------- ---------------------------
Name Exer. Realized Exercisable Unexercisable Exercisable Unexercisable
- ---- ------ -------- ----------- ------------- ---------------------------
<S> <C> <C> <C> <C> <C> <C>
Bernard Marren.......... -- -- 100,000 -- $ 71,000 --
Michael Mazzoni......... 20,000 44,900 88,750 -- $ 7,100 --
</TABLE>
- --------
(1) Market value of underlying securities based on the closing price of the
Company's Common Stock on December 31, 1999 on the Nasdaq National Market,
minus the exercise price.
20
<PAGE>
Item 12. Security Ownership of Certain Beneficial Owners and Management
The following nominee table sets forth the beneficial ownership of Common
Stock of the Company as of March 22, 2000 by: (i) each present director of the
Company; (ii) each of the officers named in the table under the heading
"EXECUTIVE COMPENSATION--Summary Compensation Table"; (iii) all current
directors and executive officers as a group; and (iv) each person known to the
Company who beneficially owns 5% or more of the outstanding shares of its
Common Stock. The number and percentage of shares beneficially owned is
determined under the rules of the SEC, and the information is not necessarily
indicitive of beneficial ownership for any other purpose. Under such rules,
beneficial ownership includes shares as to which the individual has sole or
shares voting power or investment power and also any shares which the
individual has the right to acquire within sixty (60) days of March 22, 2000
through the exercise of any stock option or other right. Unless otherwise
indicated, each person has sole voting and investment power (one shares such
powers with his or her spouse) with respect to the shares, shown as
beneficially owned. Unless otherwise indicated, officers and directors can be
reached at the Company's principal executive offices. A total of 11,630,970
shares of the Company's Common Stock were issued and outstanding as of March
22, 2000.
<TABLE>
<CAPTION>
Shares Beneficially Owned
-----------------------------
Name Number Percent
- ---- --------------- -------------
<S> <C> <C>
Bernard Marren(1)............................... 127,788 1.4%
Michael Mazzoni(2).............................. 88,750 *
Stephen Dukker(3)............................... 89,166 *
Kapil Nanda(4).................................. 16,000 *
William Welling(5).............................. 13,333 *
Caxton International............................ 789,800 8.5%
315 Enterprise Drive
Plainsboro, NJ 08536
Cramer Rosenthal McGlynn........................ 899,900 11.4%
707 Westchester Avenue
White Plains, NY 10604
Dimension Fund Advisors......................... 713,800 5.5%
1299 Ocean Avenue, 11th Floor
Santa Monica, CA 90401
MG Capital Management LLC....................... 1,177,000 10.1%
1725 Kearny Street No. 1
San Francisco, CA 94133
All Directors and Executive Officers as a group
(5 persons)(6)................................. 335,037 2.9%
</TABLE>
- --------
* Represents less than one percent.
(1) Includes 12,000 shares subject to stock option exercisable as of March 22,
2000 or within sixty (60) days thereafter.
(2) Includes 0 shares subject to stock option exercisable as of March 22, 2000
or within sixty (60) days thereafter.
(3) Includes 0 shares subject to stock option exercisable as of March 22, 2000
or within sixty (60) days thereafter.
(4) Includes 12,000 shares subject to stock option exercisable as of March 22,
2000 or within sixty (60) days thereafter.
(5) Includes 0 shares subject to stock option exercisable as of March 22, 2000
or within sixty (60) days thereafter.
(6) Includes shares pursuant to notes (1), (2), (3), (4), and (5).
Item 13. Certain Relationships and Related Transactions
Compensation Committee Interlocks and Insider Participation
In February 1993, the Company established a compensation committee of the
Board of Directors which currently consists of Mr. Nanda and Mr. Welling.
21
<PAGE>
Certain Transactions
The Company's policy is that it will not make loans to, or enter into other
transactions with, directors, officers or affiliates unless such loans or
transactions are (i) approved by a majority of the Company's independent
disinterested directors, (ii) may reasonably be expected to benefit the
Company, and (iii) will be on terms no less favorable to the Company than
could be obtained in arm's length transactions with unaffiliated third
parties.
The Company has entered into indemnification agreements with each of its
directors and executive officers. Such agreements require the Company to
indemnify such individuals to the fullest extent permitted by California law.
22
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K
(a)(1)Financial Statements
The following financial statements are filed as part of this Report:
<TABLE>
<CAPTION>
Page
----
<S> <C>
Report of Ernst & Young LLP, Independent Auditors................... F-1
Consolidated Balance Sheets, December 31, 1999and 1998.............. F-2
Consolidated Statements of Operations for the years ended December
31, 1999, 1998
and 1997........................................................... F-3
Consolidated Statements of Shareholders' Equity for the years ended
December 31, 1999, 1998, and 1997.................................. F-4
Consolidated Statements of Cash Flows for the years ended December
31, 1999, 1998,
and 1997........................................................... F-5
Notes to Consolidated Financial Statements.......................... F-6
</TABLE>
(a)(2)Financial Statement Schedules
<TABLE>
<CAPTION>
Page
Schedule Number Description Number
--------------- ----------- ------
<C> <S> <C>
II Valuation and Qualifying Accounts.................. S-1
</TABLE>
All other schedules not applicable.
(a)(3)Exhibit Listing
<TABLE>
<CAPTION>
Exhibit
Number Description
------- -----------
<C> <S>
3.1 Registrant's Articles of Incorporation, as amended.(2)
3.2 Registrant's Bylaws.(2)
10.1 1993 Stock Option Plan, as amended.(2)
10.2 1993 Director Stock Option Plan.(2)
10.3 1993 Employee Stock Purchase Plan.(2)
10.4 Form of Indemnification Agreement between Registrant and its
officers and directors.(2)
10.6 OPTi Inc. 1993 Bonus Plan.(2)
10.10 Promissory Note between OPTi Inc. and Sumitomo Bank of California,
dated November 14, 1994.(3)
10.11 Credit Agreement dated as of November 14, 1994 by and among OPTi
Inc., certain banks therein named and Sumitomo Bank of California,
as Agent.(3)
10.14 Foundry Venture Investment Agreement between the Registrant and
United Microelectronics Corporation dated September 13, 1995.(4)
10.15 Foundry Capacity Agreement by and between the Registrant, FabVen
and United Microelectronics Corporation dated September 13,
1995.(4)
10.16 Lease between the Registrant and John Arrillaga and Richard T.
Peery as separate property trusts, dated April 26, 1995.(4)
10.17 OPTi Inc. 1995 Nonstatutory Stock Option Plan.(4)
10.18 1996 Employee Stock Purchase Plan.(5)
10.19 1995 Employee Stock Option Plan, as amended.(6)
10.20 Patent license agreement between Intel Corporation and OPTi Inc.
10.21 Lease Agreement between PVC.com Inc. and OPTi Inc.
21.1 Subsidiaries of Registrant.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (see page 25, signature page).
27 Financial Data Schedule.
</TABLE>
23
<PAGE>
- --------
(1) Incorporated by reference to the Annual Report on Form 10-K for the Fiscal
Year Ended December 31, 1993, of OPTi Inc.
(2) Incorporated by reference to Registration Statement on Form S-1 (File No.
33-59978) as declared effective by the Securities and Exchange Commission
on May 11, 1993.
(3) Incorporated by reference to the Annual Report on Form 10-K for the Fiscal
Year Ended December 31, 1994, of OPTi Inc.
(4) Incorporated by reference to the Annual Report on Form 10-K for the Fiscal
Year Ended December 31, 1995, of OPTi Inc.
(5) Incorporated by reference to Registration Statement on Form S-8 (File No.
333-15181) as filed with the Securities and Exchange Commission on October
31, 1996.
(6) Incorporated by reference to Registration Statement on Form S-8 (File No.
333-17299) as filed with the Securities and Exchange Commission on December
5, 1996.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the last quarter of 1998.
(c) Exhibits. See Item 14 (a)(3) above.
(d) Financial Statements Schedules. See Item 14(a)(2) above.
24
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this Form 10-K to be
signed on its behalf by the undersigned, thereunto duly authorized in the City
of Milpitas, State of California on the 30th day of March 2000.
OPTi Inc.
/s/ Bernie Marren
By:____________________________________
Bernard Marren
Chief Executive Officer and Chairman
of the Board
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Bernard Marren and Michael Mazzoni and
each of them, jointly and severally, his true and lawful attorney-in-fact,
each with full power of substitution and resubstitution, for him in any and
all capacities, to sign any and all amendments to this Annual Report on Form
10-K, and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that each said attorneys-in-fact and agents, or their
substitute or substitutes, or any of them, shall do or cause to be done by
virtue Hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Form 10-K has been signed below by the persons on behalf of the Registrant and
in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<C> <S> <C>
/s/ Bernie Marren Chief Executive Officer March 30, 2000
____________________________________ and Chairman of the
Bernard Marren Board (Principal
Executive Officer)
/s/ Douglas Gans Chief Financial Officer March 30, 2000
____________________________________ (Principal Financial and
Douglas Gans Accounting Officer)
____________________________________ Director March 30, 2000
Stephen A. Dukker
/s/ William Welling Director March 30,2000
____________________________________
William Welling
/s/ Kapil K. Nanda Director March 30, 2000
____________________________________
Kapil K. Nanda
</TABLE>
25
<PAGE>
REPORT OF INDEPENDENT AUDITORS
The Board of Directors and Shareholders
OPTi Inc.
We have audited the accompanying consolidated balance sheets of OPTi inc. as
of December 31, 1999 and 1998, and the related consolidated statements of
operations, shareholders' equity, and cash flows for each of the three years
in the period ended December 31, 1999. Our audits also included the financial
statement schedule listed in the Index at Item 14(a). These financial
statements and schedules are the responsibility of the Company's management.
Our responsibility is to express an opinion on these financial statements and
schedule based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on
a test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used
and significant estimates made by management, as well as evaluating the
overall financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of OPTi Inc. at
December 31, 1999 and 1998, and the consolidated results of its operations and
its cash flows for each of the three years in the period ended December 31,
1999, in conformity with accounting principles generally accepted in the
United States. Also, in our opinion, the related financial statement schedule,
when considered in relation to the basis financial statements taken as a
whole, presents fairly in all material respects the information set forth
therein.
/s/ ERNST &YOUNG LLP
San Jose, California
February 14, 2000
F-1
<PAGE>
OPTi Inc.
CONSOLIDATED BALANCE SHEETS
(In thousands, except share amounts)
<TABLE>
<CAPTION>
December 31,
------------------
1999 1998
-------- --------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents................................. $ 23,722 $ 56,653
Short term investments.................................... -- 4,250
Accounts receivable, net of allowance for doubtful
accounts of $151 in 1999 and $800 in 1998................ 1,459 3,232
Inventories............................................... 298 1,192
Prepaid expenses and other current assets................. 943 944
-------- --------
Total current assets.................................... 26,422 66,271
Property and equipment:
Machinery and equipment................................... 11,085 26,008
Furniture and fixtures.................................... 847 1,412
-------- --------
11,932 27,420
Accumulated depreciation.................................. (11,264) (21,738)
-------- --------
668 5,682
Other assets............................................... 1,142 9,622
-------- --------
Total assets............................................ $ 28,232 $ 81,575
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilites:
Accounts payable.......................................... $ 1,201 $ 5,991
Accrued expenses.......................................... 827 485
Accrued Litigation........................................ 4,200 1,100
Accrued employee compensation............................. 512 1,052
Current obligations under capital leases.................. -- 1,852
-------- --------
Total current liabilities............................... 6,740 10,480
Long-term obligations under capital leases................. -- 1,644
Other long-term liabilities................................ 310 166
Commitments and contingences
Shareholders' equity:
Preferred stock, no par value:
Authorized shares--5,000,000
No shares issued or outstanding.......................... -- --
Common stock, no par value:
Authorized shares--50,000,000
Issued and outstanding shares--11,620,970 in 1999,and
10,810,549 in 1998...................................... 22,494 39,397
Retained earnings/(Accumulated deficit)................... (1,312) 29,888
-------- --------
Total shareholders' equity.............................. 21,182 69,285
-------- --------
Total liabilities and shareholders' equity.............. $ 28,232 $ 81,575
======== ========
</TABLE>
See accompanying notes.
F-2
<PAGE>
OPTi Inc.
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
<TABLE>
<CAPTION>
Year Ended December 31,
--------------------------
1999 1998 1997
------- ------- --------
<S> <C> <C> <C>
Net Sales......................................... $22,257 $40,003 $ 67,842
Costs and expenses:
Cost of sales.................................... 14,403 26,712 50,471
Research and development......................... 5,611 9,681 12,565
Selling, general and administrative.............. 11,165 10,942 14,058
Restructuring.................................... -- -- 1,213
------- ------- --------
Total costs and expenses.......................... 31,179 47,335 78,307
------- ------- --------
Operating loss.................................... (8,922) (7,332) (10,465)
Gain on sale of Audio line........................ -- -- 12,391
Interest income and other......................... 3,231 3,717 3,031
Interest expense.................................. (261) (312) (473)
------- ------- --------
2,970 3,405 14,949
------- ------- --------
Income (loss) before provision for income taxes... (5,952) (3,927) 4,484
Provision for income taxes........................ 59 285 9,872
------- ------- --------
Net loss.......................................... $(6,011) $(4,212) $ (5,388)
======= ======= ========
Basic and diluted net loss per share.............. $ (0.54) $ (0.35) $ (0.42)
======= ======= ========
Shares used in computing basic and diluted per
share amounts.................................... 11,059 12,196 12,838
======= ======= ========
</TABLE>
See accompanying notes.
F-3
<PAGE>
OPTi Inc.
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(In thousands, except share amounts)
<TABLE>
<CAPTION>
Retained
Common Stock Earnings/ Total
-------------------- (Accumulated Shareholders'
Shares Amount Deficit) Equity
---------- -------- ------------ -------------
<S> <C> <C> <C> <C>
Balance at December 31, 1996.. 12,661,213 $ 56,883 $ 39,488 $ 96,371
Sale of common stock........ 465,295 1,740 -- 1,740
Net loss and comprehensive
loss....................... -- -- (5,388) (5,388)
---------- -------- -------- --------
Balance at December 31, 1997.. 13,126,508 58,623 34,100 92,723
Sale of common stock........ 1,264,416 4,769 -- 4,769
Stock repurchase............ (3,580,375) (23,995) -- (23,995)
Net loss and comprehensive
loss....................... -- -- (4,212) (4,212)
---------- -------- -------- --------
Balance at December 31, 1998.. 10,810,549 39,397 29,888 69,285
Sale of common stock........ 810,421 4,392 -- 4,392
Cash Dividend............... -- (21,295) (25,189) (46,484)
Net loss and comprehensive
loss....................... -- -- (6,011) (6,011)
---------- -------- -------- --------
Balance at December 31, 1999.. 11,620,970 $ 22,494 $ (1,312) $ 21,182
========== ======== ======== ========
</TABLE>
See accompanying notes.
F-4
<PAGE>
OPTi Inc.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------
1999 1998 1997
-------- -------- --------
<S> <C> <C> <C>
Operating activities
Net loss........................................ $ (6,011) $ (4,212) $ (5,388)
Adjustments to reconcile net loss to net cash
provided by (used in) operating activities:
Depreciation and amortization................. 3,717 6,629 5,213
Deferred taxes................................ -- -- 9,888
Gain on sale of audio line.................... -- -- (12,391)
Changes in operating assets and liabilities:
Accounts receivable......................... 1,773 8,550 6,168
Inventories................................. 894 3,825 (896)
Prepaid expenses and other current assets... 1 254 41
Accounts payable............................ (4,790) (5,180) 1,453
Accrued expenses............................ 3,442 (54) (398)
Accrued employee compensation............... (540) (315) (82)
Income taxes payable........................ -- (106) (5)
-------- -------- --------
Net cash provided by (used in) operating
activities..................................... (1,514) 9,391 3,603
Investing activities
Purchases of property and equipment............. (248) (830) (227)
Sale of Property and equipment.................. 1,545 -- --
Sale of Investment in UICC foundry.............. 8,495 -- --
Purchase of short term investments.............. (36,150) (57,750) (72,626)
Sale of short term investments.................. 40,400 62,176 63,950
Net proceeds from sale of Audio line............ -- -- 13,873
Increase in other assets........................ (15) 7 (1,647)
-------- -------- --------
Net cash provided by investing activities....... 14,027 3,603 3,323
Financing activities
Net proceeds from sale of common stock.......... 4,392 4,769 1,740
Repurchase of common stock...................... -- (23,995) --
Cash dividend................................... (46,484) -- --
Principal payments on capital lease
obligations.................................... (3,352) (947) (1,206)
-------- -------- --------
Net cash provided by (used in) financing
activites...................................... (45,444) (20,173) 534
Net increase (decrease) in cash and cash
equivalents.................................... (32,931) (7,179) 7,460
Cash and cash equivalents at beginning of year.. 56,653 63,832 56,372
-------- -------- --------
Cash and cash equivalents at end of year........ $ 23,722 $ 56,653 $ 63,832
======== ======== ========
Supplemental cash flow information
Cash paid for interest.......................... $ 261 $ 312 $ 473
Cash paid for income taxes...................... $ -- $ 210 $ --
</TABLE>
See accompanying notes.
F-5
<PAGE>
OPTi Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Note 1--Summary of Significant Accounting Policies
The Company. OPTi Inc., a California corporation, is engaged in marketing
semiconductor products for use principally by personal computer manufacturers,
add in card manufacturers and motherboard manufacturers.
The Company is no longer in the research and development business after it
terminated the design group in January 2000. The Company anticipates that it
will continue to sell its previously designed products at lower than
historical levels. The Company also intends to try and license its patent
portfolio. In the first quarter of 2000, the Company signed a license
agreement for $13,500,000 relating to the patents of the Company.
The Company is also involved in a patent litigation trial. The Company has
reserved $4 million on its balance sheet at this time. The outcome of the
appeal will not be known until later this year. For more information in
regards to the litigation please refer to Note 11 of this section.
Principles of Consolidation. The consolidated financial statements include
the Company and its majority and wholly owned subsidiaries. All significant
intercompany transactions and balances have been eliminated.
Cash and Cash Equivalents. The Company considers all highly liquid
investments purchased with an original maturity of three months or less to be
cash equivalents. Cash equivalents are carried at cost, which approximates
fair value. The Company is exposed to credit risk in the event of default by
the financial institutions or issuers of the investments only to the extent of
amounts recorded on the balance sheet.
Short-Term Investments. The Company invests from time to time its excess
cash in high quality,auction rate preferred securities. At December 31, 1998,
all short-term investments are designated as available for sale. Interest and
dividends on the investments are included in interest income. There were no
realized gains or losses on the Company's investments during 1999 as all
investments were held to maturity during the year. At December 31, 1999, the
company had no short-term investments.
Inventories. Inventories, comprised of finished goods and work in process,
are stated at the lower of cost (using the first-in, first-out method ) or
market. The market value is based upon estimated net realizable value.
Property and Equipment. Property and equipment, including machinery and
equipment under capital lease, are stated at cost, less accumulated
depreciation and amortization. Depreciation for non-leased property and
equipment is computed by the straight-line method over the estimated useful
lives of the assets, ranging from three to five years. Assets under capital
lease are amortized using the straight-line method over the shorter of the
remaining term of the lease or the estimated economic life of the asset. This
amortization for assets under capital lease are included in depreciation
expense.
Revenue Recognition. The Company records sales upon shipment and provides
an allowance for the estimated return of product.
Net Loss Per Share. The Company follows the provisions of Statement of
Financial Accounting Standards No. 128, "Earnings per Share." Basic and
diluted net loss per share are computed by dividing net loss by the weighted
average number of common shares outstanding during the period. The computation
of diluted net loss per share did not assume the impact of the conversion of
outstanding options or warrants for any of the periods presented because their
inclusion would have been antidilutive.
Accounting for Employee Stock Options. In October 1995, the Financial
Accounting Standards Board issued Statement of Financial Accounting Standards
No. 123, "Accounting for Stock-Based Compensation" (FAS 123). The Company has
elected to continue to account for employee stock options in accordance with
APB Opinion No. 25 and has adopted the "disclosure only" alternative described
in FAS 123.
Use of Estimates. The preparation of financial statements in conformity
with generally accepted accounting principles requires management to make
estimates and assumptions that affect the amounts reported in the financial
statements and accompanying notes. Actual results could differ from those
estimates.
F-6
<PAGE>
OPTi INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Recent Pronouncements. The company has adopted statement of Financial
Accounting Standards No. 130, Reporting Comprehensive Income. This statement
requires that all items required to be recognized under accounting standards
as components of comprehensive income be reported in a financial statement
that is displayed with the same prominence as other financial statements. The
Company's comprehensive net loss was the same as its net loss for the years
ended December 31, 1999, 1998 and 1997.
In June 1998, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 133, "Accounting for Derivative Instruments
and Hedging Activities" (FAS 133). FAS 133 provides a comprehensive and
consistent standard for the recognition and measurement of derivatives and
hedging activities. FAS 133 is effective for fiscal years beginning after June
15, 2000 and the Company believes that the adoption of FAS 133 will not have a
significant impact on the Company's operating results or cash flow.
In December 1999, the Securities and Exchange Commission issued Staff
Accounting Bulletin No. 101 "Revenue Recognition in Financial Statements." SAB
101 provides guidance on the recognition, presentation, and disclosure of
revenue in financial statements. All registrants are expected to apply the
accounting and disclosures described in SAB 101. SAB 101 is not expected to
have a significant effect on the Company's consolidated results of operations,
financial position, or cash flows.
Note 2--Inventories
A summary of inventories follows (in thousands):
<TABLE>
<CAPTION>
1999 1998
---- ------
<S> <C> <C>
Finished goods................................................. $240 $ 688
Work in process................................................ 58 504
---- ------
Total inventory.............................................. $298 $1,192
==== ======
</TABLE>
Note 3--Other Assets
A summary of other assets (in thousands):
<TABLE>
<CAPTION>
1999 1998
------ ------
<S> <C> <C>
Investment in UICC........................................... $ -- $8,521
Investment in Tripath........................................ 725 725
Deposits..................................................... 240 308
Other miscellaneous.......................................... 177 68
------ ------
Total Other Assets......................................... $1,142 $9,622
====== ======
</TABLE>
At December 31, 1999, the Company's investment in Tripath represents an
approximate 10% equity interest in the design company. The investment was
accounted for under the cost method of accounting.
Note 4--Obligations Under Capital Lease
Assets capitalized under leases totaled $6,656,000 at December 31, 1998
related and accumulated amortization on these leased assets was $4,386,000.
During 1999, the Company purchased all equipment being held under capital
lease arrangements.
Note 5--Shareholders' Equity
Preferred Stock
The Board of Directors has authority to issue up to 5,000,000 shares of
Preferred Stock in one or more series and to fix the rights, preferences,
privileges, qualifications, limitations and restrictions thereof, including
dividend rights, dividend rates, conversion rights, voting rights, terms of
redemption, redemption prices, liquidation preferences and the number of
shares constituting any series or the designation of such series, without any
further vote or action by the shareholders.
F-7
<PAGE>
OPTi INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Stock Option Plans
Pro forma information regarding net loss and net loss per share is required
by SFAS 123 which also requires that the information be determined as if the
Company has accounted for its employee stock options granted subsequent to
December 31, 1994 under the fair value method of that Statement. The fair
value for these options was estimated at the date of the grant using a Black-
Scholes option pricing model.
The fair value of the Company's stock based awards to employees was
estimated assuming no expected dividends and the following weighted-average
assumptions:
<TABLE>
<CAPTION>
1999 1998 1997
--------- --------- ---------
<S> <C> <C> <C>
Expected Life................................ 4.8 years 5.0 years 4.5 years
Expected volatility.......................... 0.95 0.57 0.62
Risk Free Interest Rate...................... 6.00% 5.40% 6.23%
</TABLE>
For purposes of pro forma disclosures, the estimated fair value of the
options is amortized over the options' vesting period. The Company's pro forma
information follows (in thousands except for earnings per share information):
<TABLE>
<CAPTION>
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Pro forma net loss............................ $(6,415) $(5,693) $(8,670)
Pro forma basic and diluted net loss per
share........................................ $ (0.58) $ (0.47) $ (0.68)
</TABLE>
Because Statement 123 is applicable only to options granted subsequent to
December 31, 1994, its pro forma effect was not fully reflected until 1999.
The weighted average fair value of options granted under all stock option
plans was $5.82, $5.13 and $3.49 for the years ending 1999, 1998 and 1997,
respectively
1993 Stock Option Plan
The Company's 1993 Stock Option Plan (the "1993 Plan"), which was adopted
in February 1993, provides for the granting of incentive stock options to
employees and for the granting of nonstatutory stock options to employees and
consultants of the Company. The Board of Directors determines the term of each
option, the option price and the condition under which the option becomes
exercisable. The options generally vest over four years from the date of grant
and expire ten years from the date of grant.
The activity under the 1993 Plan (including the Evergreen Plan) is as
follows:
<TABLE>
<CAPTION>
Outstanding
-------------------------
Weighted Ave.
Shares Exercise Price
--------- --------------
<S> <C> <C>
Outstanding at December 31, 1996................. 1,691,308 $4.49
Granted......................................... 130,000 $5.50
Exercised....................................... (214,161) $2.77
Canceled........................................ (191,714) $7.30
---------
Outstanding at December 31, 1997................. 1,415,433 $4.30
Granted......................................... 145,000 $5.13
Exercised....................................... (855,873) $3.02
Canceled........................................ (341,746) $6.83
---------
Outstanding at December 31, 1998................. 362,814 $5.20
Granted......................................... 45,000 $5.94
Exercised....................................... (24,877) $5.32
Canceled........................................ -- $ --
---------
Outstanding at December 31, 1999................. 191,937 $5.15
=========
</TABLE>
F-8
<PAGE>
OPTi INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Approximately 49,813, 425,795 and 666,432 options oustanding were
exercisable as of December 31, 1999, 1998 and 1997, respectively. The weighted
average exercise price for the exercisable shares as of December 31, 1999, was
$ 5.15.
1995 Stock Option Plan
The Company's 1995 Stock Option Plan (the "1995 Plan"), which was adopted
in August 1995, provides for the granting of up to 2,500,000 nonstatutory
stock options to employees and consultants of the Company. The Board of
Directors determines the term of each option, the option price and the
condition under which the option becomes exercisable. The options generally
vest over four years from the date of grant and expire ten years from the date
of grant.
The activity under the 1995 Plan is as follows:
<TABLE>
<CAPTION>
Outstanding
-------------------------
Weighted Ave.
Shares Exercise Price
--------- --------------
<S> <C> <C>
Outstanding at December 31, 1996................... 2,210,574 $5.17
Granted.......................................... 395,500 $5.24
Exercised........................................ (119,899) $5.11
Canceled......................................... (899,920) $5.25
--------- -----
Outstanding at December 31, 1997................... 1,586,255 $5.06
Granted.......................................... 189,000 $5.47
Exercised........................................ (347,188) $5.04
Canceled......................................... (614,299) $5.21
--------- -----
Outstanding at December 31, 1998................... 813,768 $5.06
Granted.......................................... 45,500 $5.69
Exercised........................................ (542,933) $5.04
Canceled......................................... (266,522) $5.19
--------- -----
Outstanding at December 31, 1999................... 49,813 $5.15
========= =====
</TABLE>
Approximately 49,813, 425,795 and 666,432 options outstanding were
exercisable as of December 31, 1999, 1998 and 1997, respectively. The weighted
average exercise price for the exercisable shares as of December 31, 1999, was
$5.15.
Stock Options Outstanding and Stock Options Exercisable:
The following table summarizes information about options outstanding at
December 31, 1999:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
--------------------------------------- ----------------------
Range of Number Weighted Average Weighted Number Weighted
Exercise of Contractual Life Average of Average
Prices Shares (in years) Exercise Price Shares Exercise Price
-------- ------- ---------------- -------------- ------- --------------
<S> <C> <C> <C> <C> <C>
$3.44 5,000 8.79 $3.44 5,000 $3.44
$4.63 115,835 8.72 $4.63 115,835 $4.63
$5.25 980 6.30 $5.25 980 $5.25
$5.32 40,380 5.20 $5.32 40,380 $5.32
$6.25 46,885 8.07 $6.25 46,885 $6.25
$8.88 1,670 5.31 $8.88 1,670 $8.88
$9.50 1,000 6.08 $9.50 1,000 $9.50
</TABLE>
F-9
<PAGE>
OPTi INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
1993 Director Stock Option Plan
In February 1993, the Company adopted the 1993 Director Stock Option Plan
(the "Director Plan") and reserved 50,000 shares of common stock for issuance
thereunder. Under this plan, non-employee directors are granted options to
purchase common stock at 100% of fair market value on dates specified in the
plan. The options generally vest over four years from the date of grant and
expire ten years from the date of grant. In May 1996, the Company's
shareholders authorized an additional 50,000 shares for grant under the plan.
The activity under the 1993 Director Plan is as follows:
<TABLE>
<CAPTION>
Outstanding
-----------------------
Weighted Ave.
Shares Exercise Price
------- --------------
<S> <C> <C>
Outstanding at December 31, 1996................... 81,943 $ 8.44
Granted........................................... 12,000 $ 5.31
Exercised......................................... -- $ --
Canceled.......................................... (8,000) $15.38
-------
Outstanding at December 31, 1997................... 85,943 $ 7.35
Granted........................................... 21,333 $ 3.44
Exercised......................................... (8,611) $ 5.25
Canceled.......................................... (42,666) $ 8.07
-------
Outstanding at December 31, 1998................... 55,999 $ 5.64
Granted........................................... -- $ --
Exercised......................................... (21,333) $ 3.44
Canceled.......................................... -- $ --
-------
Outstanding at December 31, 1999................... 34,666 $ 6.99
=======
</TABLE>
1993 Employee Stock Purchase Plan
In February 1993, the Company adopted the 1993 Employee Stock Purchase Plan
(the "Purchase Plan") under Section 423 of the Internal Revenue Code and
reserved 150,000 shares of common stock for issuance thereunder. Under the
Purchase Plan, qualified employees are entitled to purchase shares at 85% of
fair market value. As of December 31, 1999 and 1998, 149,399 shares had been
issued under the Purchase Plan.
1996 Employee Stock Purchase Plan
In October 1996, the Company adopted the 1996 Employee Stock Purchase Plan
(the "Purchase Plan") under Section 423 of the Internal Revenue Code and
reserved 250,000 shares of common stock for issuance thereunder. Under the
Purchase Plan, qualified employees are entitled to purchase shares at 85% of
fair market value. As of December 31, 1999 and 1998, 249,998 shares had been
issued under the Purchase Plan.
Common Stock Reserved
At December 31, 1999, the Company has reserved shares of common stock for
future issuance as follows:
<TABLE>
<S> <C>
1993 Employee Stock Purchase Plan.............................. 601
1996 Employee Stock Purchase Plan.............................. 2
1993 Directors Stock Option Plan............................... 65,334
Common Stock Warrants.......................................... 200,000
1993 Stock Option Plan (including the Evergreen Plan).......... 744,210
1995 Stock Option Plan......................................... 1,481,608
----------
Totals....................................................... 2,491,755
==========
</TABLE>
F-10
<PAGE>
OPTi INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Note 6--Commitments
The Company leases its facilities under noncancelable operating leases. At
December 31, 1999, future minimum commitments related to these leases are as
follows (in thousands):
<TABLE>
<S> <C>
2000................................................................ $1,804
2001................................................................ 1,474
2002................................................................ 1,141
------
Total............................................................. $4,419
======
</TABLE>
The Company has entered into an agreeement to sub-lease a facility that
will reduce its commitment above by approximately $648,000, $674,000, and
$523,000 for the years 2000 through 2002, respectively. This sub-lease is for
a facility that the Company has never occupied.
In January 1999, the Company entered into an agreement to sub-lease one
floor of its facility for the period of January 4, 1999 to December 31, 2000.
This sub-lease agreement will reduce the company's commitment on leased
facilities by $384,000 for the year 2000. In February 1999, the Company
entered into an additional sub-lease agreeement for the additional floor of
the same facility for the period of February 19, 1999 to December 31, 2000,
with a renewal provision for the period of January 1, 2001 to the end of the
lease at October 2002. The renewal provision has to be exercised 270 days
prior to December 31, 2000. If the renewal option is exercised the sublessor
has the ability to lease the existing floor space or the entire building. This
sublease agreement will reduce the Company's commitment above by $384,000 for
the year 2000.
Rental expense for operating leases amounted to $421,000, $1,402,000 and
$1,529,000 for the years ended December 31, 1999, 1998, and 1997,
respectively. The rental expense for the fiscal years 2000 will be reduced due
to the additional sublease agreements that the Company has entered into in
January and February 1999.
Note 7--Concentrations
Credit Risks and Major Customers
The Company primarily sells to PC, motherboard, and add-in card
manufacturers. The Company performs ongoing credit evaluations of its
customers but does not require collateral. The Company maintains reserves for
potential credit losses, and such losses have been within management's
expectations. With the exception of sales to Compaq and its subcontractors and
Apple and its subcontractors no other single customer represented more than
10% of sales in fiscal 1999. The Company sold approximately $6 million of
mobile core logic to Compaq and its subcontractors, representing a combined
27% of net sales for 1999. Also in fiscal 1999 the Company sold to Apple
Computer and its subcontractors approximately $6 million in USB products,
representing a combined 27% of net sales for that period. In 1998, the Company
sold approximately $17 million of mobile core logic product to Compaq and its
subcontractors, representing a combined 43% of net sales for that period. Also
in fiscal 1998, the Company sold to Apple Computer and its subcontractors
approximately $4 million in USB products, representing a combined 11% of net
sales for that period. In 1997, the Company sold approximately $27 million of
chipsets to Compaq and its subcontractors, representing a combined 40% of net
sales in that period. The Company expects that sales of its products to a
relatively small group of customers will continue to account for a high
percentage of its net sales in the foreseeable future, although the Company's
customers in any one period will continue to change.
Many of the Company's customers, particularly the motherboard manufacturers
in Taiwan, operate at very low profit margins and undertake significant
inventory risks. To the extent the Company provides open terms of credit to
some of the larger of these customers, the Company is exposed to significant
credit risks if these
F-11
<PAGE>
OPTi INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
customers are unable to remain profitable. Approximately 9% of the Company's
receivables at December 31, 1999 were with these customers.
Suppliers
The Company's reliance on independent foundries and packaging houses
involves several risks, including the absence of adequate capacity, the
unavailability of or interruptions in access to certain process technologies
and reduced control over delivery schedules, manufacturing yields and costs.
At times during the second half of 1999, the Company was unable to meet the
demand for certain of its products due to limited foundry capacity and the
Company expects that it will experience other production shortfalls or
difficulties in the future. Because the Company's purchase orders with its
outside foundries are non-cancelable by OPTi, the Company is subject to
inventory surpluses and has in the past experienced write-downs of inventories
due to an unexpected reduction in demand for a particular product.
Products
During fiscal year 2000 the Company will be highly dependent on continued
revenue contributions from its embedded product line and its USB controller.
Any significant shortfall in sales for the Company's current volume products
or problems with the manufacturing of these products will have a material
adverse effect upon the Company's financials.
Note 8--Geographic Segments
Net sales by the geographic location of the Companys customers, based on
shipped to location, are summarized by geographic areas as follows (in
thousands):
<TABLE>
<CAPTION>
Year Ended December 31,
-----------------------
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Taiwan............................................. $ 7,908 $22,761 $39,979
Japan.............................................. 3,610 6,085 8,773
USA................................................ 3,850 5,408 7,074
Singapore.......................................... 6,710 5,138 8,511
Other Far East..................................... 68 436 3,285
Europe/Other....................................... 111 175 220
------- ------- -------
Total Net Sales.................................. $22,257 $40,003 $67,842
======= ======= =======
</TABLE>
F-12
<PAGE>
OPTi INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Note 9--Taxes
The provision (benefit) for income taxes consists of the following (in
thousands):
<TABLE>
<CAPTION>
1999 1998 1997
----- ---- ------
<S> <C> <C> <C>
Federal:
Current................................................ $ -- $238 $ (137)
Deferred............................................... -- -- 9,888
----- ---- ------
-- 238 9,751
State:
Current................................................ -- -- --
Deferred............................................... -- -- --
----- ---- ------
-- -- --
Foreign:
Current................................................ 59 47 121
Deferred............................................... -- -- --
----- ---- ------
59 47 121
----- ---- ------
Total................................................. $ 59 $285 $9,872
===== ==== ======
</TABLE>
A reconciliation of the income tax provision (benefit) at the federal
statutory rate to the income tax provision (benefit) at the effective rate is
as follows (in thousands):
<TABLE>
<CAPTION>
1999 1998 1997
------- ------- -------
<S> <C> <C> <C>
Income taxes computed at the federal
statutory rate.............................. $(2,104) $(1,485) $ 1,502
Net operating losses not benefitted.......... 2,104 1,485 --
State taxes (net of federal benefit)......... -- -- --
Benefit of net operating income.............. -- -- (1,502)
Alternative minimum taxes.................... -- 238 93
Valuation reserve movement................... -- -- 9,888
Foreign Taxes................................ 59 47 121
Other individually immaterial items.......... -- -- (230)
------- ------- -------
$ 59 $ 285 $ 9,872
======= ======= =======
</TABLE>
F-13
<PAGE>
OPTi INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The components of deferred taxes consist of the following (in thousands):
<TABLE>
<CAPTION>
1999 1998
-------- --------
<S> <C> <C>
Deferred tax assets:
Inventory reserve..................................... $ 3,800 $ 3,801
Credit carryforwards.................................. 5,200 4,875
Capitalized research & development costs.............. 1,400 913
Accounts receivable reserve........................... 60 309
Reserve for sales return.............................. 20 154
Net operating losses.................................. 8,789 6,689
Amortization.......................................... 1,700 1,690
Other individually immaterial items................... 300 313
-------- --------
Total deferred tax assets........................... 21,269 18,744
Valuation Allowance................................. (19,469) (16,940)
-------- --------
1,800 1,804
-------- --------
Deferred tax liabilities:
Depreciation.......................................... (1,800) (1,804)
-------- --------
Net deferred tax assets............................. $ -- $ --
======== ========
</TABLE>
At December 31, 1999, the Company had federal and state net operating loss
carryforwards of approximately $24.0 million and $6.0 million, respectively,
expiring in the years 2001 through 2018. At December 31, 1999, the Company had
tax credit carryovers of approximately $3.0 million and $2.5 million for
federal and state purposes, expiring in the years 2007 through 2013. In
addition, the Company had federal alternative minimum tax credit carryforwards
of approximately $497,000 that will not expire.
The tax benefit associated with exercise of non-qualified stock options,
disqualifying dispositions of stock options and shares acquired under the
employee stock purchase plan created net operating losses of $1,798,000 in
1997. These benefits were fully reserved by a valuation allowance, and will be
credited to paid in capital when realized.
Note 10--Employee Benefit Plan
Savings Plan. The Company has a savings plan, which qualifies under Section
401(k) of the Internal Revenue Code. Under the plan, participating U.S.
employees may defer up to 15% of their pre-tax salary, but not more than the
statutory limits. The Company currently does not match employee contributions
made to the savings plan. Administrative costs of the plan are immaterial.
Note 11--Contingencies
In January 1997, a patent infringement claim was brought against the
Company by Crystal Semiconductor, Inc. ("Crystal"), a susidiary of Cirrus
Logic, in the United States District Court for the Western District of Texas.
The claim alleges that the Company and Tritech Microelectronics International,
Inc. and its Singapore parent company, Tritech Microelectronics Pte, Ltd.
(collectively "Tritech") infringe three patents owned by Crystal. These
patents relate to the analog-to-digital coder-decoder ("codec") module that
was designed by Tritech and incorporated into integrated PC audio chips
formerly sold by the Company. The suit seeks injunctive relief and damages.
F-14
<PAGE>
OPTi INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
A jury trial was held in this action from May 3-13, 1999. On May 17, 1999,
the jury returned a verdict that all of the asserted claims of the patents in
suit are valid and were infringed by the accused OPTi and TriTech products.
The jury further found that Tritech's infringement, but not OPTi's, was
willful and deliberate. The jury was asked to consider separately three
different damages allegations. The first was that Crystal lost profits because
sales that it would otherwise have made were in fact made by the defendants
("lost profits"). The second was that the defendants' conduct had caused
Crystal to reduce its selling prices from what they otherwise would have been
during the period of infringement ("price erosion"). The third allegation was
for the statutory alternative to lost profits, a "reasonable royalty". The
jury was asked to consider these questions with respect to the defendants as a
group and, of that amount, to assign a specific portion to OPTi. The jury's
verdict was as follows; all defendants $48.5 million, OPTi's portion of that
total $19.4 million.
Following the jury's verdict, the parties have made various motions for
judgment. OPTi has moved for the entry of judgment, as a matter of law, that
Crystal did not prove its entitlement to price erosion damages, that the
amount of lost profits damages should be reduced, and that Crystal cannot
recover both lost profits and a reasonable royalty together. Crystal has moved
for entry of judgment in the amount found by the jury, plus prejudgment
interest, compounded quarterly (approximately $3.2 million is the OPTi
portion).
On July 23, 1999, the United States District Court for the Western District
of Texas entered an Order and Judgment in the patent infringement action
brought by Crystal Semiconductor Corporation against OPTi, Inc., Tritech
Microelectronics Pte Ltd., a Singapore company,and TriTech Microelectronics
International, Inc., its American marketing subsidiary. The Court's judgment
substantially reduced the amount of damages that a jury had awarded to Crystal
against OPTi, from $19.4 million to $4 million. This $4 million has been
accrued in the Company's financial statements.
The Court's Judgment also includes a permanent injunction against further
infringement, OPTi, however, is no longer in the audio chip business, having
sold its audio division to Creative Technology in November 1997.
Following the entry of judgment, all three parties involved in the suit
appealed the judgment to the United States Court of Appeals for the Federal
Circuit. Crystal appealed the judges decision to deny lost profits damages and
price erosion damages as awarded by the jury and the denial of prejudgment
interest. OPTi appealed the courts ruling on one of the patents at issue and
the interpertation of that patent by the court.
If Crystal prevails in its appeal and Tritech is unable to reimburse the
Company due to its filing for Judicial Management the results would have a
material adverse effect on Opti's financial position, results of operations,
and cash flow.
A March 1994 Development Agreement between the Company and TriTech
Microelectronics International PTE LTD states that Tritech shall "fully and
effectively indemnify, defend and save harmless" the Company against any claim
that the products at issue in this action infringe the intellectual property
rights of others. However, in May 1999, TriTech Microelectronics, Pte, Ltd.
filed a "Petition For Judicial Management Order" in the High Court of the
Republic of Singapore, on the grounds that TriTech is "unable to pay its
debts" including its obligations to indemnify OPTi from Crystal's claim for
damages. The Order for a Judicial Manager to be appointed for TriTech was
granted on July 2, 1999. OPTi is in the process of filing a claim with the
Judicial Managers in regards to the imdemnification agreement.
In September 1998, Crystal Semiconductor filed a second suit against the
Company and Does 1 through 1050 in the Superior court of the State of
California. This suit is a complaint to set aside fraudulent transfers, the
sale of its audio business and the stock repurchase program that the Company
started and completed in the summer of 1998, and for preliminary and permanent
injunction, against the Company divesting itself of its assets. On May 21,
1999, the Court signed a Stipulation and Order entered into by OPTi and
Crystal vacating the Preliminary Injunction Hearing set for June 3, 1999. This
Stipulation and Order obligates OPTi to maintain and
F-15
<PAGE>
OPTi INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
preserve liquid assets available, in an amount not less then the verdict
against OPTi, plus costs and interest, in the underlying patent litigation
between Crystal and OPTi. Based on the judgment entered into the Texas court a
new Stipulation and Order was entered into by the party whereas the amount of
liquid assets to be maintained and preserved was reduced to the amount of the
court judgment.
On February 26, 1999, the Lemelson Medical, Education and Research
Foundation (the "Lemelson Foundation") filed a complaint in the United States
District Court for the district of Arizona against the Company and 87 other
defendant companies claiming patent infringement. No complaint has actually
been served against the Company
In August 1999, the Company and the Lemelson Foundation reached an
agreement in regards to the patents at suit. Under terms of the license
agreement, the Lemelson Foundation agrees not to sue the Company on its
patents and pending applications and any subsequently filed applications
claiming inventions originally disclosed in any such existing patents or
pending applications.
In September and October 1995, the Company was served with multiple
shareholder class action lawsuits filed in the United States District Court
for the Northern California District of California. The lawsuits, which named
the Company and several of its officers and directors as defendants, alleged
violations of the federal securities laws in connection with the announcement
by OPTi Inc. of its financial results for the quarter ended September 30,
1995. In December 1997, the Company and its insurance carriers reached a
settlement with the plaintiffs in regards to this suit. The Company was
responsible for approximately $500,000 of the settlement amount, which was
paid in fiscal 1998. While, the Company claims no wrongdoing in regards to
this matter it believed that the expense and time spend to continue to defend
its position would have been more costly than the actual settlement.
Note 12--Restructuring
During the second quarter ot 1997, the Company initiated a restructuring
program as a result of decisions by its Chief Executive Officer and Board of
Directors to adjust the Company's organizational structure in order to align
resources with a revised business model and to lower the Company's cost
structure. The restructuring actions resulted in a charge of $1,213,000
(approximately $600,000 of which related to non-cash activities) which
included approximately $140,000 associated with the termination of
approximately 30 employees primarily at the Company's headquarters in
Milpitas, CA, approximately $335,000 for costs associated with vacating leased
facilities, approximately $600,000 for the write-down of capital assets, and
approximately $138,000 in other charges. At December 31, 1997 all activities
had been completed and all liabilities had been paid.
Note 13--Sale of Audio line
On November 26, 1997, the Company sold certain assets associated with its
Audio line, under the terms of the Asset Purchase Agreement dated November 22,
1997, to Creative Technology Ltd., ("Creative"), an unaffiliated, Singapore
corporation.
Under the terms of the Asset Purchase Agreement, the Company transferred to
Creative all of the Audio line assets except for the related accounts
receivable and inventory. All liabilities of the audio line were retained by
the Company except for certian obligations relating to licensing agreements
and a supply contract. At the closing, Creative paid the Company $14,000,000
in cash and the Companyissued a warrant to purchase 200,000 Shares of OPTi's
Common Stock at a price of $10.00 per share. The warrant expires on November
25, 2002.
F-16
<PAGE>
OPTi INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The Company recognized a net gain of $12.4 million as a result of the sale
of the Audio line. This gain is derived from the cash proceeds of $14.0
million offset by expenses of $0.2 million for fixed assets, $0.8 million for
inventory write-down, $0.5 million for write-down of prepaid assets, and $0.1
million for legal costs related to the transaction.
The Company's revenues from the sale of its audio products represented
approximately 28% and 27% of the Company's revenues in 1996 and the first nine
months of 1997, respectively
Note 14--Subsequent Events
In January 2000, the Company entered into a non-exclusive license agreement
for all of its patents with a major semiconductor company. In return for the
one time fully paid up license fee of $13,500,000, OPTi releases this company
from any and all claims or liability for infringement of OPTi patents. OPTi is
also released of liability for any infringement of the other companys patents
that arose prior to the signing date.
On January 13, 2000, the Company announced the termination of approximately
twenty employees as part of a reduction in the Company's operations. The vast
majority of employees effected by this reduction were research and development
employees. The Company at this time has no research and development employees
to work on future development.
F-17
<PAGE>
OPTi Inc.
SCHEDULE II
VALUATION AND QUALIFYING ACCOUNTS
(In thousands)
<TABLE>
<CAPTION>
Additions
Balance Charged to Balance
Beginning Costs and at End
of Period Expenses Deductions of Period
--------- ---------- ---------- ---------
<S> <C> <C> <C> <C>
Year ended December 31, 1997
Allowance for doubtful accounts.... $1,275 $325 -- $1,600
Year ended December 31, 1998
Allowance for doubtful accounts.... $1,600 $421 $1,221(1) $ 800
Year ended December 31, 1999
Allowance for doubtful accounts.... $ 800 $ 50 $ 699(1) $ 151
</TABLE>
- --------
(1) Represents specific write-off of accounts.
S-1
<PAGE>
EXHIBIT 10.20
INTEL CONFIDENTIAL
------------------
PATENT LICENSE AGREEMENT
BETWEEN
OPTI CORPORATION
AND
INTEL CORPORATION
This Patent License Agreement ("Agreement") is entered into as of January
4, 2000 ("Effective Date") by and between Opti Corporation, a corporation,
having an office at 3393 Octavius Drive Santa Clara, CA 95054 ("Opti") and Intel
Corporation, a Delaware corporation, having an office at 2200 Mission College
Blvd., Santa Clara, California 95052, U.S.A. ("Intel").
IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES CONTAINED HEREIN, THE
PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
-----------
l.1. "Capture Period" shall mean any time between the Effective Date and
the fifth anniversary of the Effective Date.
1.2 "Intel Patents" means any Patents that are owned, controlled or
licensable by Intel or any of its Subsidiaries and that have a first effective
filing date prior to the Effective Date.
1.3 "Intel Compatible Processor" shall mean any processor that (a) can
perform substantially the same functions as an Intel Processor by compatibly
executing or otherwise processing (i) a substantially portion of the instruction
set of an Intel Processor or (ii) object code versions of applications or other
software targeted to run on or with an Intel Processor, in order to achieve
substantially the same result as an Intel Processor; or (b) is substantially
compatible with an Intel Processor Bus.
1.4 "Intel Processor" shall mean a Processor first developed by, for or
with substantial participation by Intel, including without limitation the Intel
8086, 80186, 80286, 80386, 80486, Pentium(R), Pentium Pro, Pentium(R) II,
StrongARM, Merced, Itanium(R) processor, 80860 and 80960 microprocessor
families, and the 8087, 80287, and 80387 math coprocessor families.
1.5 "Intel Processor Bus" shall mean a bus capable of connecting one or
more Intel Processors to each other, to associated core logic devices (chipsets)
which provide a bridge between the Intel Processor and other system resources,
or to a main memory or cache, together with the set of protocols defining the
electrical, physical, timing and functional characteristics, sequences and
control procedures of such bus.
1.6 "Opti Patents" means any Patents that are owned, controlled or
licensable by Opti or any of its Subsidiaries and that have a first effective
filing date prior to the Effective Date.
<PAGE>
INTEL CONFIDENTIAL
------------------
1.7 "Opti CNS Patents" means any Patents that are owned, controlled or
licensable by Opti or any of its Subsidiaries and that have a first effective
filing date during the Capture Period.
1.8 "Patents" shall mean all classes or types of patents, utility models
and design patents (including, without limitation, originals, divisions,
continuations, continuations-in-part, extensions or reissues), and applications
for these classes or types of patent rights in all countries of the world.
1.9 "Subsidiary" shall mean any corporation, partnership or other entity,
now or hereafter, (i) at least fifty percent (50%) of whose outstanding shares
or securities entitled to vote for the election of directors or similar managing
authority is directly or indirectly owned or controlled by the applicable party,
or (ii) that does not have outstanding shares or securities but at least fifty
percent (50%) of whose ownership interest representing the right to make the
decisions for such entity is directly or indirectly owned or controlled by the
applicable party.
2
<PAGE>
INTEL CONFIDENTIAL
------------------
2. PAYMENT
-------
In consideration for the license granted by Opti to Intel pursuant this
Agreement, Intel shall pay to Opti the sum of thirteen million and five hundred
thousand US dollars (US$13,500,000), which Intel shall pay within fifteen (15)
business days of the Effective Date. The licenses and releases granted to Intel
shall become effective upon the payment in full of this amount by Intel.
3. RELEASE
-------
3.1 Opti, on behalf of itself and its Subsidiaries, hereby releases,
acquits and forever discharges:
(a) Intel, its Subsidiaries, and its and their distributors and
customers, direct and indirect, from any and all claims or liability for (i)
infringement of any Opti Patents, to the extent such infringement would have
been licensed under the license granted to Intel hereunder if such license had
been in existence at the time of such infringing activity or (ii) inducement to
infringe any Opti Patents; provided, however, that if Opti sues a third party on
the Opti Patents that at the time of suit was not a Subsidiary of Intel but is
later acquired as a Subsidiary by Intel, the foregoing release shall not be
effective as to such party until such time as a judgment is obtained against
such party or a settlement is reached with Opti.
(b) Intel and its Subsidiaries from any and all statutory, regulatory
or common law claims or liability arising from antitrust, unfair competition,
interference with prospective advantage, other business tort law related to
competition and other laws regulating competition or trade.
3.2 Intel, on behalf of itself and its Subsidiaries, hereby releases,
acquits and forever discharges Opti, its Subsidiaries that are Subsidiaries as
of the Effective Date, and its and their distributors and customers, direct and
indirect, from any and all claims or liability for (i) infringement of any Intel
Patents that arose prior to the Effective Date of this Agreement or (ii)
inducement to infringe any Intel Patents that arose prior to the Effective Date
of this Agreement.
4. GRANT OF RIGHTS
---------------
4.1 License. Opti hereby grants to Intel a non-exclusive, perpetual,
-------
irrevocable, non-transferable, royalty-free, fully paid up, worldwide license,
without right to sublicense (except as expressly provided herein) under the Opti
Patents to make, have made (subject to 4.3 below), use, import, and directly or
indirectly sell, offer to sell and otherwise dispose of any product and practice
any method or process in the exercise of such rights. The parties intend and
agree that the license granted by Opti to Intel hereunder shall extend to any
third party acquiring licensed products from Intel for the combination of those
Intel products with other Intel licensed products and for the use of such
combination, even if such Intel products were acquired separately; provided that
it is agreed and understood that nothing herein grants any license to any such
third party for the combination of such Intel products with other products not
licensed by Opti or for the use of such combination of such Intel products and
such other products.
3
<PAGE>
INTEL CONFIDENTIAL
------------------
4.2 Licenses and Subsidiaries. The parties intend that the license granted
-------------------------
by Opti under this Agreement, without further act by any person, shall extend to
all of Intel's Subsidiaries. In the event that neither Opti nor any of its
Subsidiaries has the right to grant a license under any particular Opti Patent
of the scope set forth herein, then the license granted herein under such Opti
Patent shall be of the broadest scope that Opti or any of its Subsidiaries has
the right to grant; "provided, that, Opti shall not be obliged to sublicense
any Patent that requires Opti to pay royalties on account of the sublicense
grant to Intel unless Intel shall agree to pay all royalties due with respect to
its activities under such sublicense."
4.3 Have Made Rights. Any exercise of Intel's have made rights hereunder
----------------
are strictly conditioned upon the `have made' manufacturer manufacturing the
products in question exclusively on behalf of Intel or its Subsidiaries, and
based on a design are developed by or for, or otherwise owned and furnished to
the manufacturer by, Intel or its Subsidiaries.
4.4 Covenant Not to Sue.
-------------------
(a) Company agrees that Company shall not bring an action of any
nature before any legal, judicial, arbitration, administrative, executive or
other like body alleging that Intel, its subsidiaries or affiliates, or their
customers (direct or indirect), distributors (direct or indirect), agents
(direct or indirect) and contractors (direct or indirect) infringe any Opti CNS
Patents in the manufacture, use, import, offer for sale or sale of any Intel
products and practice any method or process in the exercise of such rights.
(b) The covenant not to sue in (a) above shall be suspended if Intel
brings an action of any nature before any legal, judicial, arbitration,
administrative, executive or other like body alleging that Opti, its
subsidiaries or affiliates, or their customers (direct or indirect),
distributors (direct or indirect), agents (direct or indirect) and contractors
(direct or indirect) infringe any Intel Patents in the manufacture, use, import,
offer for sale or sale of Opti's products or any method or process in the
exercise of those right; provided that there shall be no suspension in the event
Intel's bringing such an action is directed at Opti's infringement of such
Intel's patents in the manufacture, use or sale of Intel Compatible Processors.
4.5 Term. The licenses granted herein shall extend for the full terms of
----
each Opti Patent licensed hereunder and under no circumstances shall such
licenses sooner terminate.
4.6 No Implied Licenses. There are no other licenses granted hereunder
-------------------
except as expressly set forth herein, whether created by implication, estoppel
or otherwise.
5. DISCLAIMER
----------
Nothing contained in this Agreement shall be construed as: (a) an agreement
to bring or prosecute actions or suits against third parties for infringement or
conferring any right to bring or prosecute actions or suits against third
parties for infringement, (b) conferring any right to use in advertising,
publicity, or otherwise, any trademark, trade name or names, or any contraction,
4
<PAGE>
INTEL CONFIDENTIAL
------------------
abbreviation or simulation thereof, of either party, or (c) an obligation to
furnish any technical information or know-how.
6. MISCELLANEOUS PROVISIONS
------------------------
6.1 Authority. Opti represents and warrants that it has the right to grant
Intel the licenses and releases granted hereunder. Further, Opti warrants that
it has the right to grant the license under all of the applications, disclosures
and inventions identified in Exhibit A; provided, however, that the foregoing
warranty shall expire as to any of such applications, disclosures or inventions
in the event such applications, disclosure or inventions are assigned, conveyed
or otherwise transferred to third parties.
6.2 Notice. All notices required or permitted to be given hereunder shall
------
be in writing and shall be delivered by hand, or if dispatched by prepaid air
courier or by registered or certified airmail, postage prepaid, addressed as
follows:
If to Opti: If to Intel:
---------- -----------
Opti, Inc. General Counsel
3393 Octavius Drive Intel Corporation
Santa Clara, CA 95054 2200 Mission College Blvd.
Attn: President Santa Clara, CA 95052
United States of America
Such notices shall be deemed to have been served when received by addressee or,
if delivery is not accomplished by reason of some fault of the addressee, when
tendered for delivery. Either party may give written notice of a change of
address and, after notice of such change has been received, any notice or
request shall thereafter be given to such party as above provided at such
changed address.
6.3 No Rule of Strict Construction. Regardless of which party may have
------------------------------
drafted this Agreement, no rule of strict construction shall be applied against
either party. If any provision of this Agreement is determined by a court to be
unenforceable, the parties shall deem the provision to be modified to the extent
necessary to allow it to be enforced to the extent permitted by law, or if it
cannot be modified, the provision will be severed and deleted from this
Agreement, and the remainder of the Agreement will continue in effect.
6.4 Taxes. Each party shall be responsible for the payment of its own tax
-----
liability arising from this transaction.
6.5 Entire Agreement. This Agreement embodies the entire understanding of
----------------
the parties with respect to the subject matter hereof, and merges all prior
discussions between them, and neither of the parties shall be bound by any
conditions, definitions, warranties, understandings, or representations with
respect to the subject matter hereof other than as expressly provided herein. No
oral explanation or oral information by either party hereto shall
5
<PAGE>
INTEL CONFIDENTIAL
------------------
alter the meaning or interpretation of this Agreement.
6.6 Modification; Waiver. No modification or amendment to this Agreement,
--------------------
nor any waiver of any rights, will be effective unless assented to in writing by
the party to be charged, and the waiver of any breach or default will not
constitute a waiver of any other right hereunder or any subsequent breach or
default.
6.7 Governing Law. This Agreement and matters connected with the
-------------
performance thereof shall be construed, interpreted, applied and governed in all
respects in accordance with the laws of the United States of America and the
State of California, without reference to conflict of laws principles.
6.8 Jurisdiction. Intel and Opti agree that all disputes and litigation
------------
regarding this Agreement and matters connected with its performance shall be
subject to the exclusive jurisdiction of the courts of the Northern District of
California or of the Federal courts sitting therein. The parties agree that all
disputes shall be tried without a jury.
6.9 Confidentiality of Terms. The parties hereto shall keep the terms of
------------------------
this Agreement confidential and shall not now or hereafter divulge these terms
to any third party except:
(a) with the prior written consent of the other party; or
(b) to any governmental body having jurisdiction to call therefor; or
(c) subject to (d) below, as otherwise may be required by law or legal
process, including to legal and financial advisors in their capacity of advising
a party in such matters; or
(d) during the course of litigation so long as the disclosure of such
terms and conditions are restricted in the same manner as is the confidential
information of other litigating parties and so long as (a) the restrictions are
embodied in a court-entered Protective Order and (b) the disclosing party
informs the other party in writing at least ten (10) days in advance of the
disclosure; or
(e) in confidence to legal counsel, accountants, banks and financing
sources and their advisors solely in connection with complying with financial
transactions.
(f) in confidence to an acquirer or acquiree, and such other party's
legal counsel, accountants, banks and financing sources and their advisors
solely in connection with an anticipated merger or acquisition.
The parties shall cooperate in preparing and releasing an announcement, if any,
relating to this Agreement, provided that Opti shall not make any public
disclosure regarding this Agreement without Intel's prior written consent which
Intel may withhold at its sole discretion.
6.10 Compliance with Laws. Anything contained in this Agreement to the
--------------------
contrary notwithstanding, the obligations of the parties hereto and of the
Subsidiaries of the parties shall be
6
<PAGE>
INTEL CONFIDENTIAL
------------------
subject to all laws, present and future, of any government having jurisdiction
over the parties hereto or the Subsidiaries of the parties, and to orders,
regulations, directions or requests of any such government.
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the date below written.
INTEL CORPORATION OPTI CORPORATION
By: By: /s/ Bernard T. Marren
Printed Name Printed Name Bernard T. Marren
Title Title President/CEO
Date Date January 4, 2000
7
<PAGE>
EXHIBIT 10.21
LEASE AGREEMENT
BETWEEN
FVC.COM, INC.
as Landlord
and
OPTI, INC.
as Tenant
<PAGE>
<TABLE>
<S> <C> <C>
1. Subleased Premises. 1
2. Term. 2
3. Master Lease. 2
4. Voluntary Termination of Master Lease. 6
5. Insurance. 7
6. Brokerage. 7
7. Notices. 8
9. Successors And Assigns. 8
10. Entire Agreement. 9
11. Time of Essence. 9
12. Consent of Master Landlord. 9
</TABLE>
<PAGE>
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease Agreement" or "Lease") is dated as of the
Thirtieth day of November, 1999, by and between FVC.COM, INC., a Delaware
corporation, (hereinafter called "Landlord") and OPTI, INC., a California
corporation (hereinafter called "Tenant").
A. Landlord is the tenant of that certain building commonly known as 3393
Octavius, Santa Clara, California (the "Building"), pursuant to that certain
Lease Agreement dated July 19, 1995, and as amended, between Landlord and
FVC.COM (formerly known as First Virtual Corporation), as tenant, and John
Arrillaga, Trustee, or his Sucessor Trust UTA dated 7/20/77, of the John
Arrillaga Survivor's Trust (previously known as the "John Arrillaga Separate
Property Trust") and Richard T. Peery, Trustee, or his Successor Trustee UTA
7/20/77, the Richard T. Peery Separate Property Trust (Richard T. Perry Separate
Property Trust") (hereinafter called "Master Landlord"), as landlord, and
collectively amended by Amendment No. 1, Amendment No. 2, Amendment No. 3, and
Amendment No. 4. Said Lease Agreement, the redacted provisions of which are
attached hereto as Exhibit A, is hereinafter called the "Master Lease". All
capitalized terms not defined herein shall be as defined in the Master Lease.
B. The parties desire to set forth in this Lease the terms, conditions and
provisions based upon which Tenant shall lease the Subleased Premises
(hereinafter defined) from Landlord.
NOW, THEREFORE, Landlord and Tenant agree as follows:
1. Subleased Premises.
<PAGE>
Landlord hereby leases to Tenant and Tenant hereby hires from Landlord the
following described premises:
That portion of the Second Floor (Suite 102) of the Building,
consisting of approximately Twelve Thousand square feet (hereinafter
called the "Subleased Premises"), together with the nonexclusive right
of ingress and egress to and from the Subleased Premises in and over
the Common Areas of the Complex.
Landlord and Tenant agree that the Subleased Premises for all purposes of
this Lease Agreement comprise a total of 12,000 rentable square feet.
2. Term.
The term of this Lease shall commence on December 1, 1999 and end on
December 31, 2000.
3. Master Lease.
(a) Tenant hereby acknowledges that it has read those provisions of
the Master Lease attached as Exhibit A hereto and understands same. This Lease
is and shall be at all times subject and subordinate to all of the terms,
conditions and provisions of the Master Lease. Without limiting the generality
of the foregoing, it is understood that any termination of the Master Lease
prior to the end of the term of this Lease shall terminate this Lease without
further liability of Landlord. It is further expressly understood that this
Lease grants Tenant no options, whether to extend the term of this Lease or
otherwise, regardless of whether Landlord has been granted such options under
the Master Lease.
(b) All of the terms and provisions of the Master Lease, except (i) as
provided in
4
<PAGE>
subsections (d), (e) and (f) below or (ii) those set forth in any of the
provisions of the Master Lease which have been omitted from the redacted copy
of the Master Lease attached as Exhibit A hereto, are incorporated into and made
a part of this Lease, and the rights and obligations of the parties under the
Master Lease are hereby imposed upon the parties hereto with respect to the
Subleased Premises, Landlord being substituted for "Landlord" in the Master
Lease, and Tenant being substituted for "Tenant" in the Master Lease. It is
further understood that where reference is made in the Master Lease to the
"Premises," the same shall mean the Subleased Premises as defined herein; and
where reference is made to the "Lease," the same shall mean this Lease.
(c) Tenant hereby assumes and agrees to perform for Landlord's
benefit, during the term of this Lease, all of Landlord's obligations as the
tenant under the Master Lease with respect to the Subleased Premises, except as
otherwise provided in clause (ii) of Section 3(b) above. Tenant agrees to save,
defend and indemnify Landlord against and hold Landlord free and harmless from
all loss, liability, judgments, costs, damages, claims or demands, including
reasonable attorneys' fees arising out of Tenant's failure to comply with or
perform any of Tenant's obligations so assumed. Tenant shall not commit or
permit to be committed any act or omission which violates any term or condition
of the Master Lease.
(d) The following Sections of the Master Lease are not incorporated
into the Lease Agreement herein:
Lease Agreement: 2, 12, 19, 34, 41, 43, 44, 46 and 48.
Amendment NO. 1.
Amendment NO. 2 to Lease: l, 2, 3, 4, 5, 6, 7, 8, and 11
5
<PAGE>
Amendment NO. 3 to Lease: 1, 2, 3, 4, 5 and 6.
Amendment to NO. 4 to Lease: 1, 2, 3, 4 are not incorporated
herein.
(e) The following Sections of the Master Lease are incorporated, but
modified as follows:
4A. Commencing on the December 1, 1999 and continuing throughout the
term of this Lease, Tenant shall pay rent Basic Rent to Landlord. Tenant shall
pay to Landlord monthly base rent in the amount of Twenty-Six Thousand Four
Hundred and No/One-Hundredths Dollars ($26,400.00), provided that Basic Rent
shall be increased effective as of the (a) May 1, 2000 to Twenty-Eight Thousand
Three Hundred Twenty and No/One Hundredths Dollars ($28,320).
4D; 7; 11; 12. Tenant shall pay to Landlord its proportionate share
of any Additional Rent paid by Landlord to Master Landlord ("Proportionate
Share"). Tenant's Proportionate Share of Additional Rent is Six Thousand No/One-
Hundredths Dollars ($6,000.00) per month.
4E. All Basic Rent and all other payments hereunder for Additional
Rent shall paid to the Landlord at 3393 Octavius Drive, Santa Clara, California
95054.
4F. Upon execution of this Lease, Tenant shall deposit with Landlord
the Sum of Sixty Thousand Seven Hundred Twenty and No/One-Hundreths Dollars
($60,720.00) as the first and last months rent, plus the first's month
Additional Rent and the Sum of Twenty-Six Thousand Four Hundred and No/One-
Hundreths Dollars ($26,400.00) as a Security Deposit.
<PAGE>
6. Tenant shall have the right to use 45 unreserved Parking
Spaces.
16. Tenant indemnity shall include Master Landlord as well as
Landlord.
28. In the event of any holdover by Tenant, with the consent of
Landlord, the monthly Basic Rent shall be Twenty-Eight Thousand Three Hundred
Twenty and No/One Hundredths Dollars ($28,320) and the Additional Rent of Six
Thousand and No/One Hundredths Dollars ($6,000.00) per month.
(f) The provisions of the Master Lease set forth in Exhibit A include
express covenants made by Master Landlord and describe Master Landlord's duties
in connection with the operation of the premises within which the Subleased
Premises are located. Notwithstanding Section 3(b) above, Landlord is not
obligated to perform Master Landlord's obligations or duties under the Master
Lease with respect to services, maintenance, construction, repair, restoration,
or compliance with law relating to any part or all of the Premises, the Building
and/or the Project. In addition, Landlord shall not be liable for Master
Landlord's breach of any provision of the Master Lease or for any
misrepresentation by Master Landlord. If Master Landlord fails to perform,
Tenant shall notify Landlord, and Landlord will promptly notify Master Landlord
and demand performance. If Master Landlord continues to fail to perform,
Landlord will cooperate with Tenant in seeking any recourse from Master Landlord
which may be reasonably needed to enforce the obligations of Master Landlord
insofar as such obligations may pertain to the Subleased Premises, and Landlord
will provide such cooperation at Landlord's expense, subject in all events to
each the following limitations: (i) the term "cooperation" shall not require
Landlord to make any economic payments or concessions to Master Landlord or
alter in any way Landlord's rights or obligations
<PAGE>
as tenant under the Master Lease; (ii) "cooperation" shall not require Landlord
to initiate or prosecute any administrative or judicial action against Master
Landlord unless either (aa) Master Landlord's breach has caused or will cause
------
loss by Tenant of possession of the Subleased Premises or other circumstances
that substantially interfere or will likely substantially interfere with
Tenant's ability to carry on its business operations in the Subleased Premises,
or (bb) Tenant pays all costs and expenses actually incurred by Landlord in
- --
initiating and prosecuting such action, including without limitation all
attorney's fees and expenses, which costs and expenses shall be reimbursed by
Tenant within twenty (20) days after Landlord's invoice therefor.
(g) So long as Tenant performs and complies with its obligations
hereunder, Landlord will perform and comply with those of its obligations as
tenant under the Master Lease which Tenant has not agreed to perform hereunder.
Landlord agrees to defend and indemnify Tenant against and hold Tenant free and
harmless of and from all loss, liability, judgments, costs, damages, claims, or
demands, including reasonable attorneys fees, arising out of Landlord's breach
of its obligations as set forth in the preceding sentence.
* 4. Voluntary Termination of Master Lease.
If the Master Landlord and Tenant jointly and voluntarily elect, for any
reason whatsoever, to terminate the Master Lease prior to the scheduled Master
Lease termination date, then this Sublease (if then still in effect) shall
terminate concurrently with the termination of the Master Lease. Subtenant
expressly acknowledges and agrees that (1) the voluntary termination of the
Master Lease by Landlord and Tenant and the resulting termination of this
Sublease shall not give Subtenant any right or power to make any legal or
equitable claim against Landlord, including without limitation any claim for
interference with contract or
8
<PAGE>
interference with prospective economic advantage, and (2) Subtenant hereby
waives any and all rights it may have under law or at equity against Landlord to
challenge such an early termination of the Sublease, and unconditionally
releases and relieves Landlord, and its officers, directors, employees and
agents, from any and all claims, demands, and/or causes of action whatsoever
(collectively, "Claims"), whether such matters are known or unknown, latent or
apparent, suspected or unsuspected, foreseeable or unforeseeable, which
Subtenant may have arising out of or in connection with any such early
termination of this Sublease. Subtenant knowingly and intentionally waives any
and all protection which is or may be given by Section 1542 of the California
Civil Code which provides as follows: "A general release does not extend to
claims which the creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have materially
affected his settlement with debtor.
The term of this Sublease is therefore subject to early termination.
Subtenant's initials here below evidence (a) Subtenant's consideration of and
agreement to this early termination provision, (b) Subtenant's acknowledgement
that, in determining the net benefits to be derived by Subtenant under the terms
of this Sublease, Subtenant has anticipated the potential for early termination,
and (c) Subtenant's agreement to the general waiver and release of Claims above.
Initials: illegible^^ Initials: illegible^^
----------- -------------
Subtenant Tenant
5. Insurance.
(a) During the term of this Lease, Tenant shall maintain the insurance
specified in Article 13 and 14 of the Master Lease, and the Commercial General
Liability insurance therein provided
9
<PAGE>
shall name Landlord and Master Landlord as additional insureds.
(b) A certificate of each policy to be maintained by Tenant shall be
deposited with Landlord at the commencement of the term of this Lease and, on
renewal of the policy, not less than twenty (20) days before expiration of the
term of the policy.
6. Brokerage.
Each party warrants and represents to the other that such party has not
retained the services of any real estate broker, finder or any other person
whose services would form the basis for any claim for any commission or fee in
connection with this Lease or the transactions contemplated hereby. Each party
agrees to save, defend, indemnify and hold the other party free and harmless
from any breach of its warranty and representation as set forth in the preceding
sentence, including the other party's attorneys fees.
7. Notices.
All notices, approvals, consents, and other communications ("Notices")
to be given under this Lease must be in writing and may be given by any method
of delivery which provides evidence or confirmation of receipt including but not
limited to personal delivery, express courier (such as Federal Express), and
prepaid certified or registered mail with return receipt requested, but
excluding telecopy. Notices shall be deemed to have been given and received on
the earlier of actual receipt, refusal to accept delivery, or three (3) business
days after the day of deposit into prepaid registered or certified U.S. mail.
10
<PAGE>
Notices shall be given and/or addressed to the respective parties at the
following addresses:
If to Landlord: Mr. Truman Cole
FVC.COM, INC.
3393 Octavius Drive
Santa Clara, CA 95054
If to Tenant: OPTI, INC.
Mr. Mike Mazonni
3393 Octavius Drive,
Santa Clara, CA 95054 Suite #102
Either party may change the address of such party set forth above by
giving notice of such change to such other party in conformance with the
provisions of this Section 7.
8. Assignment and Subletting.
Tenant may assign or sublet the Premises so long as any assignment or
transfer is approved by the Master Landlord.
9. Successors And Assigns.
Subject in all events to Section 8, above, the provisions of this
Lease shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
10. Entire Agreement.
This Lease constitutes the final expression, and the complete and
exclusive statement of the terms, of the agreement between the parties
pertaining to the subject matter contained herein and supersede all prior and
contemporaneous agreements, representations and understandings of the parties.
<PAGE>
11. Time of Essence.
It is expressly understood and agreed that time is of the essence of
each and every provision of this Lease.
12. Consent of Master Landlord.
(a) If Tenant desires to take any action which requires the consent of
Master Landlord pursuant to the terms of the Master Lease, including, without
limitation, the making of any alterations, then notwithstanding anything to the
contrary herein, (a) Landlord, independently, shall have the same rights of
approval or disapproval as Master Landlord has under the Master Lease, (b)
Tenant shall not take any such action until it obtains the consent of both
Landlord and Master Landlord, and (c) Tenant shall request that Landlord obtain
Master Landlord's consent on Tenant's behalf, unless Landlord agrees that Tenant
may contact Master Landlord directly with respect to the specific action for
which Master Landlord's consent is required. Any consent required of Landlord
conclusively shall be deemed reasonably withheld, if consent also is required of
the Master Landlord, and Master Landlord withholds its consent.
(b) This Lease is subject to the consent of Master Landlord.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease effective
as of the date first hereinabove written.
LANDLORD: FVC.COM, INC.
a Delaware Corporation
By /s/ Truman Cole
---------------
10
<PAGE>
Truman Cole
Title: Chief Financial Officer
TENANT:
OPTI, INC.
a California Corporation
By /s/ Michael Mazonni
-------------------
Michael Mazonni
Title: Chief Financial Officer
<PAGE>
EXHIBIT A
Master Lease
<PAGE>
LEASE AGREEMENT
THIS LEASE, made this 19th day of July, 1996 between JOHN ARRILLAGA,
---- ---- ---------------
Trustee, or his Successor Trustee, UTA dated 7/20/77 (JOHN ARRILLAGA SEPARATE
- -------------------------
PROPERTY TRUST) as amended, and RICHARD T. PEERY, Trustee, or his Successor
----------------
Trustee,UTA dated 7/20/77 (RICHARD T. PEERY SEPARATE PROPERTY TRUST) as amended,
- --------------------------------------------------------------------
hereinafter called Landlord, and FIRST VIRTUAL CORPORATION, a California
---------------------------------------
corporation, hereinafter called Tenant.
- -----------
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby hires and takes from
Landlord those certain premises (the "Premises") outlined in red on Exhibit "A",
attached hereto and incorporated herein by this reference thereto more
particularly described as follows:
A portion of that certain 48,000+ or - square foot, two-story building
located at 3393 Octavius Drive, Suite 202, Santa Clara, California
95054, consisting of approximately 12,690+ or - square feet of space
on the second floor. Said Premises is more particularly shown within
the area outlined in Red on Exhibit A. The entire parcel, of which the
---------
Premises is a part, is shown within the area outlined in Green on
Exhibit A attached hereto. The Premises is leased on an "as-is" basis,
---------
in its present condition, and in the configuration as shown in Red on
Exhibit B attached hereto.
---------
As used herein the Complex shall mean and include all of the land outlined in
Green and described in Exhibit "A", attached hereto, and all of the buildings,
improvements, fixtures and equipment now or hereafter situated on said land.
Said letting and hiring is upon and subject to the terms, covenants and
conditions hereinafter set forth and Tenant covenants as a material part of the
consideration for this Lease to perform and observe each and all of said terms,
covenants and conditions. This Lease is made upon the conditions of such
performance and observance.
1. USE Tenant shall use the Premises only in conformance with applicable
governmental laws, regulations, rules and ordinances for the purpose of
general office, light manufacturing, research and development, and storage and
- ------------------------------------------------------------------------------
other uses necessary for Tenant to conduct Tenant's business, provided that such
- --------------------------------------------------------------------------------
uses shall be in accordance with all applicable governmental laws and
- ---------------------------------------------------------------------
ordinances and for no other purpose. Tenant shall not do or permit to be done in
- ----------
or about the Premises or the Complex nor bring or keep or permit to be brought
or kept in or about the Premises or the Complex anything which is prohibited by
or will in any way increase the existing rate or (or otherwise affect) fire or
any insurance covering the Complex or any part thereof, or any of its contents,
or will cause a cancellation of any insurance covering the Complex or any part
thereof, or any of its contents. Tenant shall not do or permit to be done
anything in, on or about the Premises or the Complex which will in any way
obstruct or interfere with the rights of other tenants or occupants of the
Complex or injure or annoy them, or use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose, nor shall Tenant cause,
maintain or permit any nuisance in, on or about the Premises or the Complex. No
sale by auction shall be permitted on the Premises. Tenant shall not place any
loads upon the floors, walls, or ceiling, which endanger the structure, or place
any harmful fluids or other materials in the drainage system of the building, or
overload existing electrical or other mechanical systems. No waste materials or
refuse shall be dumped upon or permitted to remain upon any part of the Premises
or outside of the building in which the Premises are a part, except in trash
containers placed inside exterior enclosures designated by Landlord for that
purpose or inside of the building proper where designated by Landlord. No
materials, supplies, equipment, finished products or semi-finished products, raw
materials or articles of any nature shall be stored upon or permitted to remain
outside the Premises or on any portion of common area of the Complex. No
loudspeaker or other device, system or apparatus which can be heard outside the
Premises shall be used in or at the Premises without the prior written consent
of Landlord. Tenant shall not commit or suffer to be committed any waste in or
upon the Premises. Tenant shall indemnify, defend and hold Landlord harmless
against any loss, expense, damage, attorneys' fees, or liability arising out of
failure of Tenant to comply with any applicable law. Tenant shall comply with
any covenant, condition, or restriction ("CC&R's") affecting the Premises. The
provisions of this paragraph are for the benefit of Landlord only and shall not
be construed to be for the benefit of any tenant or occupant of the Complex.
2. TERM
A. The term of this Lease shall be for a period of THREE (3) years
----- ---
SEVENTEEN (17) days (unless sooner terminated as hereinafter provided) and,
subject to Paragraphs 2(B) and 3, shall commence on the 15th day of August,
---- ------
1995 and end the 31st day August, of 1998.
- ---- ---- ------ --
B. Possession of the Premises shall be deemed tendered and the term of this
Lease shall commence when the first of the following occurs:
(a) One day after a Certificate of Occupancy is granted by the proper
governmental agency, or, if the governmental agency having jurisdiction over the
area in which the Premises are situated does not issue certificates of
occupancy, then the same number of days after certification by Landlord's
architect or contractor that Landlord's construction work has been completed; or
(b) Upon the occupancy of the Premises by any of Tenant's operating personnel;
or
(c) When the Tenant Improvements have been substantially completed for
------------------------------------------------------------------
Tenant's use and occupancy, in accordance and compliance with Exhibit B of this
- -------------------------------------------------------------------------------
Lease Agreement; or
- -------------------
(d) As otherwise agreed in writing.
3. POSSESSION If Landlord, for any reason whatsoever, cannot deliver possession
of said premises to Tenant at the commencement of the said term, as hereinbefore
specified, this Lease shall not be void or voidable; no obligation of Tenant
shall be affected thereby; nor shall Landlord or Landlord's agents be liable to
Tenant for any loss or damage resulting therefrom; but in that event the
commencement and termination dates of the Lease, and all other dates affected
thereby shall be revised to conform to the date of Landlord's delivery of
possession, as specified in Paragraph 2(b), above. The above is, however,
subject to the provision that the period of delay, of delivery of the premises
shall not exceed 30 days from the commencement date herein (except those delays
--
caused by Acts of God, strikes, war, utilities, governmental bodies, weather,
unavailable materials, and delays beyond Landlord's control shall be excluded in
calculating such period) in which instance Tenant, at his option, may, by
written notice to Landlord, terminate this Lease.
* It is agreed in the event said Lease commences on a date other than the first
day of the month the term of the Lease will be extended to account for the
number of days in the partial month. The Basic Rent during the resulting partial
month will be pro-rated (for the number of days in the partial month) at the
Basic Rent scheduled for the projected commencement date as shown in Paragraph
43.
page 1 of 8
<PAGE>
4. RENT
A. Basic Rent. Tenant agrees to pay to Landlord at such place as Landlord may
designate without deduction, offset, prior notice, or demand, and Landlord
agrees to accept as Basic Rent for the leased Premises the total sum of FOUR
-----
HUNDRED EIGHTY SIX THOUSAND SIX HUNDRED FORTY ONE AND 03/100-----------
- ------------------------------------------------------------------------
($486,641.03-----------------------) Dollars in lawful money of the United
---------------------------------
States of America, payable as follows:
See Paragraph 43 for Basic Rent Schedule
B. Time for Payment. In the event that the term of this Lease commences on a
date other than the first day of a calendar month, on the date of commencement
of the term hereof Tenant shall pay to Landlord as rent for the period from such
date of commencement to the first day of the next succeeding calendar month that
proportion of the monthly rent hereunder which the number of days between such
date of commencement and the first day of the next succeeding calendar month
bears to thirty (30). In the event that the term of this Lease for any reason
ends on a date other than the last day of a calendar month, on the first day of
the last calendar month of the term hereof Tenant shall pay to Landlord as rent
for the period from said first day of said last calendar month to and including
the last day of the term hereof that proportion of the monthly rent hereunder
which the number of days between said first day of said last calendar month and
the last day of the term hereof bears to thirty (30).
C. Late Charge. Notwithstanding any other provision of this Lease, if Tenant is
in default in the payment of rental as set forth in this Paragraph 4 when due,
or any part thereof, Tenant agrees to pay Landlord, in addition to the
delinquent rental due, a late charge for each rental payment in default ten (10)
days. Said late charge shall equal ten (10%) percent of each rental payment so
in default.
D. Additional Rent. Beginning with the commencement date of the term of this
Lease, Tenant shall pay to Landlord in addition to the Basic Rent and as
Additional Rent the following:
(a) Tenant's proportionate share of all Taxes relating to the Complex as set
forth in Paragraph 12, and
(b) Tenant's proportionate share of all insurance premiums relating to the
Complex, as set forth in Paragraph 15, and
(c) Tenant's proportionate share of expenses for the operation, management,
maintenance and repair of the Building (including common areas of the
Building) and Common Areas of the Complex in which the Premises are
located as set forth in Paragraph 7, and
(d) All charges, costs and expenses, which Tenant is required to pay
hereunder, together with all interest and penalties, costs and expenses
including attorneys' fees and legal expenses, that may accrue thereto in
the event of Tenant's failure to pay such amounts, and all damages,
reasonable costs and expenses which Landlord may incur by reason of
default of Tenant or failure on Tenant's part to comply with the terms of
this Lease. In the event of nonpayment by Tenant of Additional Rent,
Landlord shall have all the rights and remedies with respect thereto as
Landlord has for nonpayment of rent.
The Additional Rent due hereunder shall be paid to Landlord or Landlord's agent
(I) within five days for taxes and insurance and within thirty (30) days for all
other Additional Rent items after presentation of invoice from Landlord or
Landlord's agent setting forth such Additional Rent and/or (ii) at the option of
Landlord. Tenant shall pay to Landlord monthly, in advance, Tenant's prorata
share of an amount estimated by Landlord to be Landlord's approximate average
monthly expenditure for such Additional Rent items, which estimated amount shall
be reconciled within 120 days of the end of each calendar year or more
frequently if Landlord so elects to do so at Landlord's sole and absolute
discretion, as compared to Landlord's actual expenditure for said Additional
Rent items, with Tenant paying to Landlord, upon demand, any amount of actual
expenses expended by Landlord in excess of said estimated amount, or Landlord
refunding to Tenant (providing Tenant is not in default in the performance of
any of the terms, covenants and conditions of this Lease) any amount of
estimated payments made by Tenant in excess of Landlord's actual expenditures
for said Additional Rent items.
The respective obligations of Landlord and Tenant under this paragraph shall
survive the expiration or other termination of the term of this Lease, and if
the term hereof shall expire or shall otherwise terminate on a day other than
the last day of a calendar year, the actual Additional Rent incurred for the
calendar year in which the term hereof expires or otherwise terminates shall be
determined and settled on the basis of the statement of actual Additional Rent
for such calendar year and shall be prorated in the proportion which the number
of days in such calendar year preceding such expiration of termination bears to
365.
E. Place of Payment of Rent and Additional Rent. All basic Rent hereunder and
all payments hereunder for Additional Rent shall be paid to Landlord at the
office of Landlord at Peery/Arrillaga, File 1504, Box 60000, San Francisco, CA
--------------------------------------------------------
94160
- -----
or to such other person or to such other place as Landlord may from time to
time designate in writing.
F. Security Deposit. Concurrently with Tenant's execution of this Lease,
Tenant shall deposit with Landlord the sum or TWENTY SEVEN THOUSAND NINE HUNDRED
----------------------------------
EIGHTEEN AND NO/100 ($27,918.00) Dollars. Said sum shall be held by Landlord as
- ------------------- ---------
a Security Deposit for the faithful performance by Tenant of all of the terms,
covenants, and conditions of this Lease to be kept and performed by Tenant
during the term hereof. If Tenant defaults with respect to any provisions of
this Lease, including, but not limited to, the provisions relating to the
payment of rent and any of the monetary sums due herewith, Landlord may (but
shall not be required to) use, apply or retain all or any part of this Security
Deposit for the payment of any other amount which Landlord may spend by reason
of Tenant's default or to compensate Landlord for any other loss or damage which
Landlord may suffer by reason of Tenant's default. If any portion of said
Deposit is so used or applied, Tenant shall, within ten (10) days after written
demand therefor, deposit cash with Landlord in the amount sufficient to restore
the Security Deposit to its original amount. Tenant's failure to do so shall be
a material breach of this Lease. Landlord shall not be required to keep this
Security Deposit separate from its general funds, and Tenant shall not be
entitled to interest on such Deposit. If Tenant full and faithfully performs
every provision of this Lease to be performed by it, the Security Deposit or any
balance thereof shall be returned to Tenant (or at Landlord's option, to the
last assignee of Tenant's interest hereunder) at the expiration of this Lease
term and after Tenant has vacated the Premises. In the event of termination of
Landlord's interest in this Lease, Landlord shall transfer said Deposit to
Landlord's successor in interest whereupon Tenant agrees to release Landlord
from liability for the return of such deposit or the accounting therefor.
5. RULES AND REGULATIONS AND COMMON AREA Subject to the terms and conditions
of this Lease and such Rules and Regulations as Landlord may from time to time
prescribe, Tenant and Tenant's employees, invitees and customers shall, in
common with other occupants of the Complex in which the Premises are located,
and their respective employees, invitees and customers, and others entitled to
the use thereof, have the non-exclusive right to use the access roads, parking
areas, and facilities provided and designated by Landlord for the general use
and convenience of the occupants of the Complex in which the Premises are
located, which areas and facilities are referred to herein as "Common Area".
This right shall terminate upon the termination of this Lease. Landlord reserves
the right from time to time to make changes in the shape, size location, amount
and extent of Common Area. Landlord further reserves the right to promulgate
such reasonable rules and regulations relating to the use of the Common Area,
and any part or parts thereof, as Landlord may deem appropriate for the best
interests of the occupants of the Complex. The Rules and Regulations shall be
bringing upon Tenant upon delivery of a copy of them to Tenant, and Tenant shall
abide by them and cooperate in their observance. Such Rules and Regulations may
be amended by Landlord from time to time, with or without advance notice, and
all amendments shall be effective upon delivery of a copy to Tenant. Landlord
shall not be responsible to Tenant for the non-performance by any other tenant
or occupant of the Complex of any of said Rules and Regulations.
Landlord shall operate, manage and maintain the Common Area. The manner in
which the Common Area shall be maintained and the expenditures for such
maintenance shall be at the discretion of Landlord.
page 2 of 8
<PAGE>
6. PARKING Tenant shall have the right to use with other tenants or
occupants of the Complex 51 parking spaces in the common parking areas of the
--
Complex. Tenant agrees, that Tenant, Tenant's employees, agents, representatives
and/or invitees shall not use parking spaces in excess of said 51 spaces
--
allocated to Tenant hereunder. Landlord shall have the right, at Landlord's sole
discretion, to specifically designate the location of Tenant's parking spaces
within the common parking areas of the Complex in the event of a dispute among
the tenants occupying the building and/or Complex referred to herein, in which
event Tenant agrees that Tenant, Tenant's employees, agents, representatives
and/or invitees shall not use any parking spaces other than those parking spaces
specifically designated by Landlord for Tenant's use. Said parking spaces, if
specifically designated by Landlord to Tenant, may be relocated by Landlord at
any time, and from time to time. Landlord reserves the right, at Landlord's sole
discretion, to rescind any specific designation of parking spaces, thereby
returning Tenant's parking spaces to the common parking area. Landlord shall
give Tenant written notice of any change in Tenant's parking spaces. Tenant
shall not, at any time, park, or permit the parking of Tenant's trucks or other
vehicles adjacent to the loading areas so as to interfere in any way with the
use of such areas, nor shall Tenant at any time park, or permit the parking of
Tenant's trucks or other vehicles or the trucks and vehicles of Tenant's
suppliers or others, in any portion of the common area not designated by
Landlord for such use by Tenant. Tenant shall not park nor permit to be parked
any inoperative vehicles or equipment on any portion of the common parking area
or other common areas of the Complex. Tenant agrees to assume responsibility for
compliance by its employees with the parking provision contained herein. If
Tenant or its employees park in other than such designated parking areas, then
Landlord may charge Tenant, as an additional charge, and Tenant agrees to pay,
ten ($10.00) Dollars per day for each day or partial day each such vehicle is
parked in any area other than that designated. Tenant hereby authorizes Landlord
at Tenant's sole expense to tow away from the Complex any vehicle belonging to
Tenant or Tenant's employees parked in violation of these provisions, or to
attach violation stickers or notices to such vehicles. Tenant shall use the
parking areas for vehicle parking only, and shall not use the parking areas for
storage.
7. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON AREAS OF
THE COMPLEX AND BUILDING IN WHICH THE PREMISES ARE LOCATED. As Additional
Rent and in accordance with Paragraph 4D of this Lease, Tenant shall pay to
Landlord Tenant's proportionate share (calculated on a square footage or other
equitable basis as calculated by Landlord) of all expenses of operation,
management, maintenance and repair of the Common Areas of the Complex including,
but not limited to, license, permit and inspection fees; security; utility
charges associated with exterior landscaping and lighting (including water and
sewer charges); all charges incurred in the maintenance of landscaped areas,
lakes, parking lots, sidewalks, driveways; maintenance, repair and replacement
of all fixtures and electrical, mechanical, and plumbing systems; structural
elements and exterior surfaces of the buildings; salaries and employee benefits
of personnel and payroll taxes applicable thereto; supplies, materials,
equipment and tools; the amortized cost of capital expenditures which have the
effect of reducing operating expenses, provided, however, that in the event
Landlord makes such capital improvements, Landlord may amortize its investment
in said improvements (together with interest at the rate of fifteen (15%)
percent per annum on the unamortized balance) as an operating expense in
accordance with standard accounting practices, provided, that such amortization
is not at a rate greater than the reasonably anticipated savings in the
operating expenses.
"Additional Rent" as used herein shall not include Landlord's debt repayments;
interest on charges; expenses directly or indirectly incurred by Landlord for
the benefit of any other tenant; cost for the installation of partitioning or
any other tenant improvements; cost of attracting tenants; depreciation;
interest, or executive salaries.
As Additional Rent and in accordance with paragraph 4 D of this Lease, TENANT
shall pay its proportionate share (calculated on a square footage or other
equitable basis as calculated by Landlord) of the cost of operation (including
common utilities), management, maintenance, and repair of the building
(including common areas such as lobbies, restrooms, janitor's closets, hallways,
elevators, mechanical and telephone rooms, stairwells, entrances, spaces above
the ceilings and janitorization of said common areas) in which the Premises are
located. The maintenance items herein referred to include, but are not limited
to, all windows, window frames, plate glass, glazing, truck doors, main plumbing
systems of the building (such as water and drain lines, sinks, toilets, faucets,
drains, showers and water (fountains), main electrical systems (such as panels
and conduits), heating and airconditioning systems (such as compressors, fans,
air handlers, ducts, boilers, heaters), store fronts, roofs, downspouts,
building common area interiors (such as wall coverings, window coverings, floor
coverings and partitioning), ceilings, building exterior doors, skylights (if
any), automatic fire extinguishing systems, and elevators; license, permit, and
inspection fees; security; salaries and employee benefits of personnel and
payroll taxes applicable thereto; supplies, materials, equipment and tools; the
cost of capital expenditures which have the effect of reducing operating
expenses, provided, however, that in the event Landlord makes such capital
improvements, Landlord may amortize its investment in said improvements
(together with interest at the rate of fifteen (15%) percent per annum on the
unamortized balance) as an operating expense in accordance with standard
accounting practices, provided, that such amortization is not at a rate greater
than the anticipated savings in the operating expenses, Tenant hereby waives all
rights under, and benefits of, subsection 1 of Section 1932 and Sections 1941
and 1942 of the California Civil Code and under any similar law, statute or
ordinance now or hereafter in effect.
Initial: (illegible)
---------------
8. ACCEPTANCE AND SURRENDER OF PREMISES By entry hereunder, Tenant accepts
the Premises as being in good and sanitary order, condition and repair and
accepts the building and improvements included in the Premises in their present
condition and without representation or warranty by Landlord as to the condition
of such building or as the use or occupancy which may be made thereof. Any
exceptions to the foregoing must be by written agreement executed by Landlord
and Tenant. Tenant agrees on the last day of the Lease term, or on the sooner
termination of this Lease, to surrender the Premises promptly and peaceably to
Landlord in good condition and repair (damage by Acts of God, fire, normal wear
and tear excepted), with all interior walls painted, or cleaned so that they
appear freshly painted, and repaired and replaced, if damaged; all floors
cleaned and waxed; all carpets cleaned and shampooed; the airconditioning and
heating equipment serviced by a reputable and licensed service firm and in good
operating condition (providing the maintenance of such equipment has been
Tenant's responsibility during the term of the Lease) together with all
alterations, additions, and improvements which may have been made in, to or on
the Premises (except movable trade fixtures installed at the expense of Tenant)
except that Tenant shall ascertain from Landlord within thirty (30) days before
the end of the term of this Lease whether Landlord desires to have the Premises
or any part or parts thereof restored to their condition and configuration as
when the Premises were delivered to Tenant and if Landlord shall so desire, then
Tenant shall restore said Premises or such part or parts thereof before the end
of this Lease at Tenant's sole cost and expense. Tenant, on or before the end
of the term of sooner termination of this Lease, shall remove all of Tenant's
personal property and trade fixtures from the Premises, and all property not so
removed on or before the end of the term or sooner termination of this Lease
shall be deemed abandoned by Tenant and title to same shall thereupon pass to
Landlord without compensation to Tenant. Landlord may, upon termination of this
Lease, remove all movable furniture and equipment so abandoned by Tenant, at
Tenant's sole cost, and repair any damage caused by such removal at Tenant's
sole cost. If the Premises be not surrendered at the end of the term or sooner
termination of this Lease, Tenant shall indemnify Landlord against loss or
liability resulting from the delay by Tenant in so surrendering the Premises
including, without limitation, any claims made by any succeeding tenant found on
such delay. Nothing contained herein shall be construed as an extension of the
term hereof or as a consent of Landlord to any holding over by Tenant. The
voluntary or other surrender of this Lease or the Premises by Tenant or a mutual
cancellation of this Lease shall not work as a merger and, at the option of
Landlord, shall either terminate all or any existing subleases or subtenancies
or operate as an assignment to Landlord of any such subleases or subtenancies.
9. ALTERATIONS AND ADDITIONS Tenant shall not make, or suffer to be made, any
alteration or addition to the Premises, or any part thereof, without the written
consent of Landlord first had and obtained by Tenant, but at the cost of Tenant,
and any addition to, or alteration of, the Premises, except moveable furniture
and trade fixtures, shall at once become a part of the Premises and belong to
the Landlord. Landlord reserves the right to reasonably approve all contractors
and mechanics proposed by Tenant to make such alterations and additions. Tenant
shall retain title to all moveable furniture and trade fixtures placed on the
Premises. All heating, lighting, electrical, airconditioning, floor to ceiling
partitioning, drapery, carpeting, and floor installations made by Tenant,
together with all property that has become an integral part of the Premises,
shall not be deemed trade fixtures. Tenant agrees that it will not proceed to
make such alteration or additions, without having obtained consent from Landlord
to do so, and until five (5) days from the receipt of such consent, in order
that Landlord may post appropriate notices to avoid any liability to contractors
or material suppliers for payment for Tenant's improvements. Tenant will at all
times permit such notices to be posted and to remain posted until the completion
of work. Tenant shall, if required by Landlord, secure at Tenants own cost and
expense, a completion and lien indemnity bond, satisfactory to Landlord, for
such work. Tenant further covenants and agrees that any mechanics lien filed
against the Premises or against the Complex for work claimed to have been done
for, or materials claimed to have been furnished to Tenant, will be discharged
by Tenant, by bond or otherwise, within ten (10) days after the filing thereof,
at the cost and expense of Tenant. Any exceptions to the foregoing must be made
in writing and executed by both Landlord and Tenant.
10. TENANT MAINTENANCE Tenant shall, at its sole cost and expense, keep and
maintain the Premises (including appurtenances) and every part thereof in a high
standard of maintenance and repair, and in good and sanitary condition. Tenants
maintenance and repair responsibilities herein referred to include, but are not
limited to, janitorization, plumbing systems within the non-common areas of the
Premises (such as water and drain lines), electrical systems within the non-
common areas of the Premises (such as outlets, lighting fixtures, lamps, bulbs,
tubes, ballasts), heating and airconditioning controls within the non-common
areas of the Premises (such as mixing boxes, thermostats, time clocks, supply
and return grills), all interior improvements within the premises including but
not limited to: wall coverings, window coverings, acoustical ceilings, vinyl
tile, carpeting, partitioning, ceilings, doors (both interior and exterior,
including closing mechanisms, latches, locks) and all other interior
improvements of any nature whatsoever. Tenant agrees to provide carpet shields
under all rolling chairs or to otherwise be responsible for wear and tear of the
carpet caused by such rolling chairs if such wear and tear exceeds that caused
by normal foot traffic in surrounding areas. Areas of excessive wear shall be
replaced at Tenants sole expense upon Lease termination.
Initial: (illegible)
---------------
page 3 of 8
<PAGE>
11. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED. As Additional
Rent and in accordance with paragraph 4 D of this Lease, Tenant shall pay its
proportionate share (calculated on a square footage or other equitable basis as
calculated by Landlord) of the cost of all utility charges such as water, gas,
electricity, telephone, telex and other electronic communications service, sewer
service, waste pick-up and other utilities, materials or services furnished
directly to the building in which the Premises are located, including, without
limitation, any temporary or permanent utility surcharge or other exactions
whether or not herein after imposed.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of rent by reason of any interruption or failure of
utility services in the Premises when such interruption or failure is caused by
accident, breakage, repair, strikes, lockouts, or other labor disturbances or
labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord.
Provided that Tenant is not in default in the performance or observance of any
of the terms, covenants or conditions of this Lease to be performed or observed
by it, Landlord shall furnish to the Premises between the hours of 8:00AM and
6:00PM, Mondays through Fridays (holidays excepted) and subject to the rules and
regulations of the Complex hereinbefore referred to, reasonable quantities of
water, gas and electricity suitable for the intended use of the Premises and
heat and airconditioning required in Landlord's judgment for the comfortable use
and occupation of the Premises for such purposes. Tenant agrees that at all
times it will cooperate fully with Landlord and abide by all regulations and
requirements that Landlord may prescribe for the proper functioning and
protection of the building heating, ventilating and airconditioning systems.
Whenever heat generating machines, equipment, or any other devices (including
exhaust fans) are used in the Premises by TENANT which affect the temperature or
otherwise maintained by the airconditioning system, Landlord shall have the
right to install supplementary airconditioning units in the Premises and the
cost thereof, including the cost of installation and the cost of operation and
maintenance thereof, shall be paid by Tenant to Landlord upon demand by
Landlord. Tenant will not, without the written consent of Landlord, use any
apparatus or device in the Premises (including, without limitation), electronic
data processing machines or machines using current in excess of 110 Volts which
will in any way increase the amount of electricity, gas, water or
airconditioning usually furnished or supplied to premises being used as general
office space, or connect with electric current (except through existing
electrical outlets in the Premises), or with gas or water pipes any apparatus or
device for the purposes of using electric current, gas, or water. IF Tenant
shall require water, gas, or electric current in excess of that usually
furnished or supplied to premises being used as general office, space, Tenant
shall first obtain the written consent of Landlord, which consent shall not be
unreasonably withheld and Landlord may cause an electric current, gas, or water
meter to be installed in the Premises in order to measure the amount of electric
current, gas or water consumed for any such excess use. The cost of any such
meter and of the installation, maintenance and repair thereof, all charges for
such excess water, gas and electric current consumed (as shown by such meters
and at the rates then charged by the furnishing public utility); and any
additional expense incurred by Landlord in keeping account of electric current,
gas, or water so consumed shall be paid by Tenant, and Tenant agrees to pay
Landlord therefor promptly upon demand by Landlord.
12. TAXES A. As Additional Rent and in accordance with Paragraph 4 D of this
Lease, Tenant shall pay to Landlord Tenants proportionate share of all Real
Property Taxes, which prorata share shall be allocated to the leased Premises by
square footage or other equitable basis, as calculated by Landlord. The term
"Real Property Taxes", as used herein, shall mean (i) all taxes, assessments,
levies and other charges of any other kind or nature whatsoever, general and
special, foreseen and unforeseen (including all installments of principal and
interest required to pay any general or special assessments for public
improvements and any increases resulting from reassessments caused by any change
in ownership of the Complex) now or hereafter imposed by any governmental or
quasi-governmental authority or special district having the direct or indirect
power to tax or levy assessments, which are levied or assessed against, or with
respect to the value, occupancy or use of, all or any portion of the Complex (as
now constructed or as may at any time hereafter be constructed, altered or
otherwise changed) or Landlord's interest therein; any improvements located
within the Complex (regardless of ownership); the fixtures, equipment and other
property of Landlord, real or personal, that are an integral part of and located
in the Complex; or parking areas, public utilities, or energy within the
Complex; (ii) all charges, levies or fees imposed by reason of environmental
regulation or other governmental control of the Complex and (iii) all costs and
fees (including reasonable attorneys fees) incurred by Landlord in contesting
any Real Property Tax and in negotiating with public authorities as to any Real
Property Tax. If at any time during the term of this Lease the taxation or
assessment of the Complex prevailing as of the commencement date of this Lease
shall be altered so that in lieu of or in addition to any Real Property Tax
described above there shall be levied, assessed or imposed (whether by reason of
a change in the method of taxation or assessment, creation of a new tax or
charge, or any other cause) an alternate or additional tax or charge (i) on the
value, use or occupancy of the Complex or Landlord's interest therein or (ii) on
or measured by the gross receipts, income or rentals from the Complex, on
Landlord's business of leasing the Complex, or computed in any manner with
respect to the operation of the Complex, then any such tax or charge, however
designated, shall be included within the meaning of the term "Real Property
Taxes" for purposes of this Lease. If any Real Property Tax is based upon
property or rents unrelated to the Complex, then only that part of such real
Property Tax that is fairly allocable to the Complex shall be included within
the meaning of the term "Real Property Taxes". Notwithstanding the foregoing,
the term "Real Property Taxes" shall not include estate, inheritance, gift or
franchise taxes of Landlord or the federal or state net income tax imposed on
Landlord's income from all sources
B. Taxes on Tenant's Property
(a) Tenant shall be liable for and shall pay ten days before delinquency,
taxes levied against any personal property or trade fixtures placed by Tenant in
or about the Premises. If any such taxes on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property or if the assessed
value of the Premises is increased by the inclusion therein of a value placed
upon such personal property or trade fixtures of Tenant and if Landlord, after
written notice to Tenant, pays the taxes based on such increased assessment,
which Landlord shall have the right to do regardless of the validity thereof,
but only under proper protest if requested by Tenant, Tenant shall upon demand,
as the case may be, repay to Landlord the taxes so levied against Landlord, or
the proportion of such taxes resulting from such increase in the assessment;
provided that in any such event Tenant shall have the right, in the name of
Landlord and with Landlord's full cooperation, to bring suit in any court of
competent jurisdiction to recover the amount of any such taxes so paid under
protest, and any amount so recovered shall belong to Tenant.
(b) if the Tenant improvements in the Premises, whether installed, and/or paid
for by Landlord or Tenant and whether or not affixed to the real property so as
to become a part thereof, are assessed for real property tax purposes at a
valuation higher than the valuation at which standard office improvements in
other space in the Complex are assessed, then the real property taxes and
assessments levied against Landlord or the Complex by reason of such excess
assess valuation shall be deemed to be taxes levied against personal property of
Tenant and shall be governed by the provisions of 12Ba, above. If the records of
the County Assessor are available and sufficiently detailed to serve as a basis
for determining whether said Tenant improvements are assessed at higher
valuation than standard office improvements in other space in the Complex, such
records shall be binding on both the Landlord and the Tenant. If the records of
the County Assessor are not available or sufficiently detailed to serve as a
basis for making said determination, the actual cost of construction shall be
used.
13. LIABILITY INSURANCE Tenant at Tenant's expense, agrees to keep in force
during the term of the Lease a policy of commercial general liability insurance
with combined single limit coverage of not less than Two Million Dollars
($2,000,000) for injuries to or death of persons occurring in, on or about the
Premises or the Complex, and property damage. The policy or policies affecting
such insurance, certificates of insurance of which shall be furnished to
Landlord, shall name Landlord as additional insureds, and shall insure any
liability of Landlord, contingent or otherwise, as respects acts or omissions of
Tenant, its agents, employees or invitees or otherwise by any conduct or
transactions of any of said persons in or about or concerning the Premises,
including any failure of Tenant to observe or perform any of its obligations
hereunder, shall be issued by an insurance company admitted to transact business
in the State of California; and shall provide that the insurance effected
thereby shall not be canceled, expect upon thirty (30) days' prior written
notice to Landlord. If during the term of this Lease, in the considered opinion
of Landlord's Lender, or insurance advisor, or counsel, the amount of insurance
described in this paragraph 13 is not adequate, Tenant agrees to increase said
coverage of such reasonable amount as Landlord's Lender, insurance advisor, or
counsel shall deem adequate.
14. TENANT'S PERSONAL PROPERTY INSURANCE AND WORKMAN'S COMPENSATION INSURANCE
Tenant shall maintain a policy or policies of fire and property damage insurance
in "all risk" form with a sprinkler leakage endorsement insuring the personal
property, inventory, trade fixtures, and leasehold improvements within the
leased Premises for the full replacement value thereof. The proceeds from any
of such policies shall be used for the repair or replacement of such items so
insured.
Tenant shall also maintain a policy or policies of workman's compensation
insurance and any other employees benefit insurance sufficient to comply with
all laws.
15. PROPERTY INSURANCE Landlord shall purchase and keep in force and as
Additional Rent and in accordance with Paragraph 4D of Lease, Tenant shall pay
to Landlord (or Landlord's agent if so directed by Landlord) Tenant's
proportionate share (calculated on a square footage or other equitable basis as
calculated by Landlord) of the deductibles on insurance claims and the cost of
policy or policies of insurance covering loss or damage to the Premises and
Complex in the amount of the full replacement value thereof, providing
protection against those perils included within the classification of "all
risks" insurance and flood and/or earthquake insurance, if available, plus a
policy of rental income insurance in the amount of one hundred (100%) percent of
twelve (12) months Basic Rent, plus sums paid as Additional Rent. If such
insurance cost is increased due to Tenant's use of the Premises of the Complex,
Tenant agrees to pay to Landlord the full cost of such increase. Tenant shall
have no interest in nor any right to the proceeds of any insurance procured by
Landlord for the Complex.
Landlord and Tenant do each hereby respectively release the other, to the
extent of the insurance coverage of the releasing party, from any liability for
loss or damage caused by fire or any of the extended coverage casualties
included in the releasing party's insurance policies, irrespective of the cause
of such fire or casualty; provided, however, that if the insurance policy of
either releasing party prohibits such waiver, then this waiver shall not take
effect until consent to such waiver is obtained. If such waiver is so
prohibited, the insured party affected shall promptly notify the other party
thereof.
Initial: (Illegible)
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16. INDEMNIFICATION Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord for any injury to or death of any person or
damage to or destruction of property in or about the Premises or the Complex by
or from any cause whatsoever, including, without limitation, gas, fire, oil,
electricity or leakage of any character from the roof, walls, basement or other
portion of the Premises or the Complex but excluding, however, the willful
misconduct or negligence of Landlord, its agents, servants, employees, invitees,
or contractors of which negligence Landlord has knowledge and reasonable time to
correct. Except as to injury to persons or damage to property to the extent
arising from the willful misconduct or the negligence of Landlord, its agents,
servants, employees, invitees, or contractors. Tenant shall hold Landlord
harmless from and defend Landlord against any and all expenses, including
reasonable attorney's fees, in connection therewith, arising out of any injury
to or death of any person or damage to or destruction of property occurring in,
on or about the Premises, or any part thereof, from any cause whatsoever.
17. COMPLIANCE Tenant, at its sole cost and expense, shall promptly comply with
all laws, statutes, ordinances and governmental rules, regulations or
requirements now or hereafter in effect; with the requirements of any board of
fire underwriters or other similar body now or hereafter constituted; and with
any direction or occupancy certificate issued pursuant to law by any public
officer; provided, however, that no such failure shall be deemed a breach of the
provisions if Tenant, immediately upon notification, commences to remedy or
rectify said failure. The judgment of any court of competent jurisdiction or the
admission of Tenant in any action against Tenant, whether Landlord be a party
thereto or not, that Tenant has violated any such law, statute, ordinance or
governmental rule, regulation, requirement, direction or provision shall be
conclusive of that fact as between Landlord and Tenant. This paragraph shall not
be interpreted as requiring Tenant to make structural changes or improvements,
except to the extent such changes or improvements are required as a result of
Tenants use of the Premises. Tenant shall, at its sole cost and expense, comply
with any and all requirements pertaining to said Premises, of any insurance
organization or company, necessary for the maintenance of reasonable fire and
public liability insurance covering the Premises.
18. LIENS Tenant shall keep the Premises and the Complex free from any liens
arising out of any work performed, materials furnished or obligation incurred by
Tenant. In the event that Tenant shall not, within ten (10) days following the
imposition of such lien, cause the same to be released of record. Landlord shall
have, in addition to all other remedies provided herein and by law, the right,
but no obligation, to cause the same to be released by such means as it shall
deem proper, including payment of the claim giving rise to such lien. All sums
paid by Landlord for such purpose, and all expenses incurred by it in connection
therewith, shall be payable to Landlord by Tenant on demand with interest at the
prime rate of interest as quoted by the Bank of America.
19. ASSIGNMENT AND SUBLETTING Tenant shall not assign, transfer, or
hypothecate the leasehold estate under this Lease, or any interest therein, and
shall not sublet the Premises, or any part thereof, or any right or privilege
appurtenant thereto, or suffer any other person or entity to occupy or use the
Premises, or any portion thereof, without, in each case, the prior written
consent of Landlord which consent will not be unreasonably withheld. As a
condition for granting this consent to any assignment, transfer, or subletting,
Landlord may require that Tenant agrees to pay to Landlord, as additional rent,
all rents or additional consideration received by Tenant from its assignees,
transferees, or subtenants in excess of the rent payable by Tenant to Landlord
hereunder. Tenant shall, by thirty (30) days written notice, advise Landlord of
its intent to assign or transfer Tenant's interest in the Lease or sublet the
Premises or any portion thereof for any part of the term hereof. Within thirty
(30) days after receipt of said written notice, Landlord may, in its sole
discretion, elect to terminate this Lease as to the portion of the Premises
described in Tenant's notice on the date specified in Tenant's notice by giving
written notice of such election to terminate. If no such notice to terminate is
given to Tenant within said thirty (30) day period, Tenant may proceed to locate
an acceptable sublessee, assignee, or other transferee from presentment to
Landlord for Landlord's approval, all in accordance with the terms, covenants,
and conditions of this paragraph 19. If Tenant intends to sublet the entire
Premises and Landlord elects to terminate this Lease, this Lease shall be
terminated on the date specified in Tenant's notice. If, however, this Lease
shall terminate pursuant to the foregoing with respect to less than all the
Premises, the rent, as defined and reserved hereinabove shall be adjusted on a
pro rata basis to the number of square feet retained by Tenant, and this Lease
as so amended shall continue in full force and effect. In the event Tenant is
allowed to assign, transfer or sublet the whole or any part of the Premises,
with the prior written consent of Landlord, no assignee, transferee or subtenant
shall assign or transfer this Lease, either in whole or in part, or sublet the
whole or any part of the Premises, without also having obtained the prior
written consent of Landlord which consent shall not be unreasonably withheld. A
consent of Landlord to one assignment, transfer, hypothecation, subletting,
occupation or use by any other person shall not release TENANT from any of
Tenant's obligations hereunder or be deemed to be a consent to any subsequent
similar or dissimilar assignment, transfer, hypothecation, subletting,
occupation or use by any other person. Any such assignment, transfer,
hypothecation, subletting, occupation or use without such consent shall be void
and shall constitute a breach of this Lease by Tenant and shall, at the option
of Landlord exercised by written notice to Tenant, terminate this Lease. The
leasehold estate under this Lease shall not, nor shall any interest therein, be
assignable for any purpose by operation of law without the written consent of
Landlord which consent shall not be unreasonably withheld. As a condition to its
consent, Landlord may require Tenant to pay all expenses in connection with the
assignment, and Landlord may require Tenant's assignee or transferee (or other
assignees or transferees) to assume in writing all of the obligations under this
Lease and for Tenant to remain liable to Landlord under the Lease.
20. SUBORDINATION AND MORTGAGES In the event Landlord's title or leasehold
interest is now or hereafter encumbered by a deed of trust, upon the interest of
Landlord in the land and buildings in which the demised Premises are located, to
secure a loan from a lender (hereinafter referred to as "Lender") to Landlord,
Tenant shall, at the request of Landlord or Lender, execute in writing an
agreement subordinating its rights under this Lease to the lien of such deed of
trust, or, if so requested, agreeing that the lien of Lender's deed of trust
shall be or remain subject and subordinate to the rights of Tenant under this
Lease. Notwithstanding any such subordination, Tenant's possession under this
Lease shall not be disturbed if Tenant is not in default and so long as Tenant
shall pay all rent and observe and perform all of the provisions set forth in
this Lease.
21. ENTRY BY LANDLORD Landlord reserves, and shall at all reasonable times
after at least 24 hours notice (except in emergencies) have, the right to enter
the Premises to inspect them; to perform any services to be provided by Landlord
hereunder; to submit the Premises to prospective purchasers, mortgagers or
tenants; to post notices of nonresponsibility; and to alter, improve or repair
the Premises and any portion of the Complex, all without abatement of rent; and
may erect scaffolding and other necessary structures in or through the Premises
where reasonably required by the character of the work to be performed;
provided, however that the business of Tenant shall be interfered with to the
least extent that is reasonably practical. For each of the foregoing purposes,
any entry to the Premises obtained by Landlord by any of said means, or
otherwise, shall not under any circumstances be construed or deemed to be a
forcible or unlawful entry into or a detainer of the Premises or an eviction,
actual or constructive, of Tenant from the Premises or any portion thereof.
Landlord shall also have the right at any time to change the arrangement or
location of entrances or passageways, doors and doorways, and corridors,
elevators, stairs, toilets or other public parts of the Complex and to change
the name, number or designation by which the Complex is commonly known, and none
of the foregoing shall be deemed an actual or constructive eviction of Tenant,
or shall entitle Tenant to any reduction of rent hereunder.
22. BANKRUPTCY AND DEFAULT The commencement of a bankruptcy action or
liquidation action or reorganization action or insolvency action or an
assignment of or by Tenant for the benefit of creditors, or any similar action
undertaken by Tenant, or the insolvency of Tenant, shall, at Landlord's option,
constitute a breach of this Lease by Tenant. If the trustee or receiver
appointed to serve during a bankruptcy, liquidation, reorganization, insolvency
or similar action elects to reject Tenant's unexpired Lease, the trustee or
receiver shall notify Landlord in writing of its election within thirty (30)
days after an order for relief in a liquidation action or within thirty (30)
days after the commencement of any action.
Within thirty (30) days after court approval of the assumption of this Lease,
the trustee or receiver shall cure (or provide adequate assurance to the
reasonable satisfaction of Landlord that the trustee or receiver shall cure)any
and all previous defaults under the unexpired Lease and shall compensate
Landlord for all actual pecuniary loss and shall provide adequate assurance of
future performance under said Lease to the reasonable satisfaction of Landlord.
Adequate assurance of future performance, as used herein, includes, but shall
not be limited to: (i) assurance of source and payment of rent, and other
consideration due under this Lease; (ii) assurance that the assumption or
assignment of this Lease will not breach substantially any provision, such as
radius, location, use, or exclusivity provision, in any agreement relating to
the above described Premises.
Nothing contained in this section shall affect the existing right of Landlord
to refuse to accept an assignment upon commencement of or in connection with a
bankruptcy, liquidation, reorganization or insolvency action or an assignment of
Tenant for the benefit of creditors or other similar act. Nothing contained in
this Lease shall be construed as giving or granting or creating an equity in the
demised Premises to Tenant. In no event shall the leasehold estate under this
Lease or any interest therein, be assigned by voluntary or involuntary
bankruptcy proceeding without the prior written consent of Landlord. In no event
shall this Lease or any rights or privileges hereunder be an asset of Tenant
under any bankruptcy, insolvency or reorganization proceedings.
The failure to perform or honor any covenant, condition or representation made
under this Lease shall constitute a default hereunder by Tenant upon expiration
of the appropriate grace period hereinafter provided. Tenant shall have a period
of five (5) days from the date of written notice from Landlord within which to
cure any default in the payment of rental or adjustment thereto. Tenant shall
have a period of thirty (30) days from the date of written notice from Landlord
within which to cure any other default under this Lease; provided, however, that
if the nature of Tenant's failure is such that more than thirty (30) days is
reasonably required to cure the same, Tenant shall not be in default so long as
Tenant commences performance within such thirty (30) day period and thereafter
prosecutes the same to completion. Upon an uncured default of this Lease by
Tenant, Landlord shall have the following rights and remedies in addition to any
other rights or remedies available to Landlord at law or in equity.
(a). The rights and remedies provided for by California Civil Code Section
1951.2, including but not limited to, recovery of the worth at the time of award
of the amount by which the unpaid rent for the balance of the term after the
time of award exceeds the amount of rental loss for the same period that Tenant
proves could be reasonably avoided, as computed pursuant to subsection (b) of
said Section 1951.2. Any proof by Tenant under subparagraphs (2) and (3) of
Section 1951.2 of the California Civil Code of the amount of rental loss that
could be reasonably avoided shall be made in the following manner: Landlord and
Tenant shall each select a licensed real estate broker in the business of
renting property of the same type and use as the Premises and in the same
geographic vicinity. Such two real estate brokers shall select a third licensed
real estate
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broker, and the three licensed real estate brokers so selected shall determine
the amount of the rental loss that could be reasonably avoided from the balance
of the term of this Lease after the time of award. The decision of the majority
of said licensed real estate brokers shall be final and binding upon the parties
hereto.
(b) The rights and remedies provided by California Civil Code Section which
allows Landlord to continue the Lease in effect and to enforce all of its rights
and remedies under this Lease, including the right to recover rent as it becomes
due, for so long as Landlord does not terminate Tenant's right to possession;
acts of maintenance or preservation, efforts to relet the Premises, or the
appointment of a receiver upon Landlord's initiative to protect its interest
under this Lease shall not constitute a termination of Tenant's right to
possession.
(c) The right to terminate this Lease by giving notice to Tenant in accordance
with applicable law.
(d) The right and power; to the extent permitted by law, to enter the Premises
and remove all persons and property, to store such property in a public
warehouse or elsewhere at the cost of and for the account of Tenant and to sell
such property and apply such proceeds therefrom pursuant to applicable
California law. Landlord, may from time to time sublet the Premises or any part
thereof for such term or terms (which may extend beyond the term of this Lease)
and at such rent and such other terms as Landlord in its sole discretion may
deem advisable, with the right to make alterations and repairs to the Premises.
Upon each subletting, (i) Tenant shall be immediately liable to pay Landlord, in
addition to indebtedness other that rent due hereunder, the cost of such
subletting, including, but not limited to, reasonable attorney's fees, and any
real estate commissions actually paid, and the costs of such alterations and
repairs incurred by Landlord and the amount, if any, by which the rent hereunder
for the period of such subletting (to the extent such period does not exceed the
term hereof) exceeds the amount to be paid as rent for the Premises for such
period or (ii) at the options of Landlord, rents received from such subletting
shall be applied first to payment of indebtedness other than rent due hereunder
from Tenant to Landlord; second, to the payment of any costs of such alterations
and repairs; third to payment of rent due and unpaid hereunder; and the residue,
if any, shall be held by Landlord and applied in payment of future rent as the
same becomes due hereunder. If Tenant has been credited from such subletting
under option (ii) during any months be less than that to be paid during that
month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord.
Such deficiency shall be calculated and paid monthly. For all purposes set forth
in this subparagraph 4. No taking possession of the Premises by Landlord, shall
be construed as an election on its part to terminate this Lease unless a written
notice of such intention be given to Tenant. Notwithstanding any such subletting
without termination. Landlord may at any time hereafter elect to terminate this
Lease for such previous breach.
(e). The right to have a receiver appointed for Tenant upon application by
Landlord, to take possession of the Premises and to apply any rental collected
from the Premises and to exercise all other rights and remedies granted to
Landlord pursuant to subparagraph d, above.
23. ABANDONMENT Tenant shall not vacate or abandon the Premises at any time
during the term of this Lease (except that Tenant may vacate so long as it pays
rent, provides an on-site security guard during normal business hours from
Monday through Friday, and otherwise performs its obligations hereunder), and if
Tenant shall abandon, vacate or surrender said Premises, or be dispossessed by
the process of law, or otherwise, any personal property belonging to Tenant and
left on the Premises shall be deemed to be abandoned, at the option of Landlord,
except such property as may be mortgaged to Landlord.
24. DESTRUCTION In the event the Premises are destroyed in whole or in part from
any cause, except for routine maintenance and repairs and incidental damage and
destruction caused from vandalism and accidents for which Tenant is responsible
for under Paragraph 10, Landlord may, at its option:
(a) Rebuild or restore the Premises to their condition prior to the damage or
destruction, or
(b) Terminate this Lease. (providing that the Premises is damaged to the
extent of 33 1/3% of the replacement cost)
If Landlord does not give Tenant notice in writing within thirty (30) days
from the destruction of the Premises of its election to either rebuild and
restore them and the estimated time required to rebuild or restore or to
terminate this Lease, Landlord shall be deemed to have elected to rebuild or
restore them, in which event Landlord agrees, at its expense, promptly to
rebuild or restore the Premises to their condition prior to the damage or
destruction. Tenant shall be entitled to a reduction in rent while such repair
is being made in the proportion that the area of the Premises rendered
untenantable by such damage bears to the total area of the Premises. If Landlord
initially estimates that the rebuilding or restoration will exceed 180 days or
if Landlord does not complete the rebuilding or restoration within on hundred
eighty (180) days following the date of destruction (such period of time to be
extended for delays caused by the fault or neglect of Tenant or because of Acts
of God, acts of public agencies, labor disputes, strikes, fires, freight
embargoes, rainy or stormy weather, inability to obtain materials, supplies or
fuels, acts of contractors or subeontractors or delay of the contractors or
subeontractors due to such causes or other contingencies beyond the control of
Landlord), then Tenant shall have the right to terminate this Lease by giving
fifteen (15) days prior written notice to Landlord. Notwithstanding anything
herein to the contrary, Landlord's obligation to rebuild or restore shall be
limited to the building and interior improvements constructed by Landlord as
they existed as of the commencement date of the Lease and shall not include
restoration of Tenant's trade fixtures, equipment, merchandise, or any
improvements, alterations or additions made by Tenant to the Premises, which
Tenant shall forth replace or fully repair at Tenant's sole cost and expense
provided this Lease is not cancelled according to the provisions above.
Unless this Lease is terminated pursuant to the foregoing provisions, this
Lease shall remain in full force and effect. Tenant hereby expressly waives the
provisions Section 1932, Subdivision 2, in Section 1933, Subdivision 4 of the
California Civil Code.
In the event that the building in which the Premises are situated is damaged
or destroyed to the extent of not less than 33 1/3% of the replacement cost
thereof, Landlord may elect to terminate this Leas, whether the Premises be
injured or not.
25. EMINENT DOMAIN If all or any part of the Premises shall be taken by any
public or quasi-public authority under the power of eminent domain or conveyance
in lieu thereof, this Lease shall terminate as to any portion of the Premises so
taken or conveyed on the date when title vests in the condemnor, and Landlord
shall be entitled to any and all payment, income, rent, award, or any interest
therein whatsoever which may be paid or made in connection with such taking or
conveyance, and Tenant shall have no claim against Landlord or otherwise for the
value of any unexpired term of this Lease. Notwithstanding the foregoing
paragraph, any compensation specifically awarded to Tenant for loss of business,
Tenant's personal property, moving cost or loss of good will, shall be and
remain the property of Tenant.
If (i) any action or proceeding is commenced for such taking of the Premises
or any part thereof, or if Landlord is advised in writing by any entity or body
having the right or power of condemnation of its intention to condemn the
premises or any portion thereof, or (ii) any of the foregoing events occur with
respect to the taking of any space in the Complex not leased hereby, or if any
such spaces so taken or conveyed in lieu of such taking and Landlord shall
decide to discontinue the use and operation of the Complex, or decide to
demolish, alter or rebuild the Complex, then, in any of such events Landlord
shall have the right to terminate this Lease by giving Tenant written notice
thereof within sixty (60) days of the date of receipt of said written advice, or
commencement of said action or proceeding, or taking conveyance, which
termination shall take place as of first to occur of the last day of the
calendar month next following the month in which such notice is given or the
date on which title to the Premises shall vest in the condemnor.
In the event of such a partial taking or conveyance of the Premises, if the
portion of the Premises taken or conveyed is so substantial that the Tenant can
no longer reasonably conduct its business, Tenant shall have the privilege of
terminating this Lease within sixty (60) days from the date of such taking or
conveyance, upon written notice to Landlord of its intention so to do, and upon
giving of such notice this Lease shall terminate on the last day of the calendar
month next following the month in which such notice is given, upon payment by
Tenant of the rent from the date of such taking or conveyance to the date of
termination.
If a portion of the Premises be taken by condemnation or conveyance in lieu
thereof and neither Landlord nor Tenant shall terminate this Lease as provided
herein, this Lease shall continue in full force and effect as to the part of the
Premises not so taken or conveyed, and the rent herein shall be apportioned as
of the date of such taking or conveyance so that thereafter the rent to be paid
by Tenant shall be in the ratio that the area of the portion of the Premises not
so taken or conveyed bears to the total area of the Premises prior to such
taking.
26. SALE OR CONVEYANCE BY LANDLORD In the event of a sale or conveyance of the
Complex or any interest therein, by any owner of the reversion then constituting
Landlord, the transferor shall thereby be released from any further liability
upon any of the terms, covenants or conditions (express or implied) herein
contained in favor of Tenant, and in such event, insofar as such transfer is
concerned, Tenant agrees to look solely to the responsibility of the successor
in interest of such transferor in and to the Complex and this Lease. This Lease
shall not be affected by any such sale or conveyance, and Tenant agrees to
attorn to the successor in interest of such transferor.
27. ATTORNMENT TO LENDER OR THIRD PARTY In the event the interest of Landlord in
the land and buildings in which the leased Premises are located (whether such
interest of Landlord is a fee title interest or a leasehold interest) is
encumbered by deed of trust, and such interest is acquired by the lender or any
third party through judicial foreclosure or by exercise of a power of sale at
private trustee's foreclosure sale. Tenant hereby agrees to attorn to the
purchaser at any such foreclosure sale and to recognize such purchaser as the
Landlord under this Lease. In the event the lien of the deed of trust securing
the loan from a Lender to Landlord is prior and paramount to the Lease, this
Lease shall nonetheless continue in full force and effect for the remainder of
the unexpired term hereof, at the same rental herein reserved and upon all the
other terms, conditions and covenants herein contained.
28. HOLDING OVER Any holding over by Tenant after expiration or other
termination of the term of this Lease with the written consent of Landlord
delivered to Tenant shall not constitute a renewal or extension of the Lease or
give Tenant any rights in or to the leased Premises except as expressly provided
in this Lease. Any holding over after the expiration or other termination of the
term of this Lease, with the consent of Landlord, shall be construed to be a
tenancy from month to month, on the same terms and conditions herein specified
insofar as applicable except that the monthly Basic Rent shall be increased to
an amount equal to one hundred fifty (150%) percent of the monthly Basic Rent
required during the last month of the Lease term.
page 6 of 8
<PAGE>
29. CERTIFICATE OF ESTOPPEL Either party shall at any time upon not less than
ten (10) days' prior written notice from the other party execute, acknowledge
and deliver to the requesting party a statement in writing (i) certifying that
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 the
best of such party's knowledge, and any uncured defaults on the part of the
other party 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. A Tenant's failure to delivery such statement
within such time shall be conclusive upon Tenant that this Lease is in full
force and effect, without modification except as may be represented by Landlord;
that there are no uncured defaults in Landlord's performance, and that not more
than one month's rent has been paid in advance.
30. CONSTRUCTION CHANGES It is understood that the description of the Premises
and the location of ductwork, plumbing and other facilities therein are subject
to such minor changes as Landlord or Landlord's architect determines to be
desirable in the course of construction of the Premises, and no such changes, or
any changes in plans for any other portions of the Complex shall affect this
Lease or entitle Tenant to any reduction of rent hereunder or result in any
liability of Landlord to Tenant. Landlord does not guarantee the accuracy of any
drawings supplied to Tenant and verification of the accuracy of such drawings
rests with Tenant.
31. RIGHT OF LANDLORD TO PERFORM All terms, covenants and conditions of this
Lease to be performed or observed by Tenant shall be performed or observed by
Tenant at Tenant's sole cost and expense and without any reduction of rent. If
Tenant shall fail to pay any sum of money, or other rent, required to be paid by
it hereunder of shall fail to perform any other term or covenant hereunder on
its part to be performed, and such failure shall continue for five (5) days
after written notice thereof by Landlord. Landlord, without waiving or releasing
Tenant from any obligations of Tenant hereunder, may, but shall not be obligated
to, make any such payment or perform any such other term or covenant on Tenant's
part to be performed. All sums so paid by Landlord and all necessary costs of
such performance by Landlord together with interest thereon at the rate of the
prime rate of interest per annum as quoted by the Bank of America from the date
of such payment or performance by Landlord, shall be paid (and Tenant covenants
to make such payment) to Landlord on demand by Landlord, and Landlord shall have
(in addition to any other right or remedy of Landlord) the same rights and
remedies in the event of nonpayment by Tenant in the case of failure by Tenant
in the payment of rent hereunder.
32. ATTORNEY'S FEES.
(A) In the event that either Landlord or Tenant should bring suit for the
possession of the Premises, for the recovery of any sum due under this Lease, or
because of the breach of any provision of this Lease, or for any other relief
against the other party hereunder, then all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgement.
(B) Should Landlord be named as a defendant in any suit brought against Tenant
in connection with or arising out of Tenant's occupancy hereunder, Tenant shall
pay to Landlord its costs and expenses incurred in such suit, including a
reasonable attorney's fee.
33. WAIVER The waiver by either party of the other party's failure to perform
or observe any term, covenant or condition herein contained to be performed or
observed by such wavering party shall not be deemed to be a waiver of such term,
covenant or condition or of any subsequent failure of the party failing to
perform or observe the same or any other such term, covenant or condition
therein contained, and no custom or practice which may develop between the
parties hereto during the term hereof shall be deemed a waiver of, or in any way
affect, the right of either party to insist upon performance and observance by
the other party in strict accordance with the terms hereof.
34. NOTICES All notices, demands, requests, advices or designations which may
be or are required to be given by either party to the other hereunder shall be
in writing. All notices, demands, requests, advices or designations by Landlord
to Tenant shall be sufficiently given, made or delivered if personally served on
Tenant by leaving the same at the Premises or if sent by United States certified
or registered mail, postage prepaid, addressed to Tenant at the Premises. All
notices demands, requests, advices or designations by Tenant to Landlord shall
be sent by the United States certified or registered mail, postage prepaid,
addressed to Landlord at its offices at
Peery/Arrillaga, 2560 Mission College Blvd., Suite 101, Santa Clara, CA 95054.
- -----------------------------------------------------------------------------
Each notice, request, demand, advice or designation referred to in this
paragraph shall be deemed received on the date of the personal service or
mailing thereof in the manner herein provided, as the case may be.
35. EXAMINATION OF LEASE Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for a lease,
and this instrument is not effective as a lease or otherwise until its execution
and delivery by both Landlord and Tenant.
36. DEFAULT BY LANDLORD Landlord shall not be in default unless Landlord fails
to perform obligations required of Landlord within a reasonable time, but in no
event earlier than thirty (30) days after written notice by Tenant to Landlord
and to the holder of any first mortgage or deed of trust covering the Premises
whose name and address shall have heretofore been furnished to Tenant in
writing, specifying wherein Landlord has failed to perform such obligations;
provided, however, that if the nature of Landlord's obligations is such that
more than thirty (30) days are required for performance, then Landlord shall not
be in default if Landlord commences performance within such thirty (30) day
period and thereafter diligently prosecutes the same to completion.
37. CORPORATE AUTHORITY If Tenant is a corporation, (or a partnership) each
individual executing this Lease on behalf of said corporation (or partnership)
represents and warrants that he is duly authorized to execute and deliver this
Lease on behalf of said corporation (or partnership) in accordance with the by-
laws of said corporation (or partnership in accordance with the partnership
agreement) and that this Lease is binding upon said corporation (or partnership)
in accordance with its terms. If Tenant is a corporation, Tenant shall, within
thirty (30) days after execution of this Lease, deliver to Landlord a certified
copy of the resolution of the Board of Directors of said corporation authorizing
or ratifying the execution of this Lease.
39. LIMITATION OF LIABILITY In consideration of the benefits accruing
hereunder, Tenant and all successors and assigns covenant and agree that, in the
event of any actual or alleged failure, breach or default hereunder by Landlord:
(i) the sole and exclusive remedy shall be against Landlord's assets;
(ii) no partner of Landlord shall be sued or named as party in any suit or
action (except as may be necessary to secure jurisdiction of the
partnership)
(iii) no service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership)
(iv) no partner of Landlord shall be required to answer or otherwise plead to
any service of process:
(v) no judgement will be taken against any partner of Landlord;
(vi) any judgement taken against any partner of Landlord may be vacated and set
aside at any time without hearing:
(vii) no writ of execution will ever be levied against the assets of any
partner of Landlord;
(viii) these covenants and agreements are enforceable by both Landlord and also
by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall be
applicable to any covenant or agreement either expressly contained in this Lease
or imposed by statute or at common law.
page 7 of 8
<PAGE>
40. MISCELLANEOUS AND GENERAL PROVISIONS
a. Tenant shall not, without the written consent of Landlord, use the name of
the building for any purpose other than as the address of the business
conducted by Tenant in the Premises.
b. This Lease shall in all respects be governed by and construed in
accordance with the laws of the State of California. If any provision of this
Lease shall be invalid, unenforceable or ineffective for any reason
whatsoever, all other provisions hereof shall be and remain in full force and
effect.
c. The term "Premises" includes the space leased hereby and any improvements
now or hereafter installed therein or attached thereto. The term "Landlord"
or any pronoun used in place thereof includes the plural as well as the
singular and the successors and assigns of Landlord. The term "Tenant" or any
pronoun used in place thereof includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations, and their
and each of their respective heirs, executors, administrators, successors and
permitted assigns.
The term "person" includes the plural as well as the singular and
individuals, firms, associations, partnerships and corporations. Words used
in any gender include other genders. If there be more than one Tenant the
obligations of Tenant hereunder are joint and several. The paragraph headings
of this Lease are for convenience of reference only and shall have no effect
upon the construction or interpretation of any provisions hereof.
d. Time is of the essence of this Lease and of each and all of its
provisions.
e. At the expiration or earlier termination of this Lease, Tenant shall
execute, acknowledge and deliver to Landlord, within ten (10) days after
written demand from Landlord to Tenant, any quitclaim deed or other document
required by any reputable title company, licensed to operate in the State of
California, to remove the cloud or encumbrance created by this Lease from the
real property of which Tenant's Premises are a part.
f. This instrument along with any exhibit and attachments hereto constitutes
the agreement between Landlord and Tenant relative to the Premises and this
agreement and the exhibits and attachments may be altered, amended or revoked
only by an instrument in writing signed by both Landlord and Tenant. Landlord
and Tenant agree hereby that all prior or contemporaneous oral agreements
between and among themselves and their agents or representatives relative to
the leasing of the Premises are merged in or revoked by this agreement.
g. Neither Landlord nor Tenant shall record this Lease or a short form
memorandum hereof without the consent of the other.
h. Tenant further agrees to execute any amendments required by a lender to
enable Landlord to obtain financing, so long as Tenant's rights hereunder are
not substantially affected.
i. Paragraphs 43 through 48 are added hereto and are included as a
-- --
part of this Lease.
j. Clauses, plats and riders, if any, signed by Landlord and Tenant and
endorsed on or affixed to this Lease are a part hereof.
k. Tenant covenants and agrees that no diminution or shutting off of light,
air or view by any structure which may be hereafter erected (whether or not
by Landlord) shall in any way affect his Lease, entitle Tenant to any
reduction of rent hereunder or result in any liability of Landlord or Tenant.
41. BROKERS Tenant warrants that it had dealings with only the following real
estate brokers or agents in connection with the negotiation of this Lease: none
----
- -------------------------------------------------------------------------------
and that it knows of no other real estate broker or agent who is entitled to a
commission in connection with this Lease.
42. SIGNS No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed or printed or affixed on or to any part of the outside of
the Premises or any exterior windows of the Premises without the written consent
of Landlord first had and obtained and Landlord shall have the right to remove
any such sign, placard, picture, advertisement, name or notice to and at the
expense of Tenant. If Tenant is allowed to print or affix or in any way place a
sign in, on or about the Premises, upon expiration or other sooner termination
of this Lease, Tenant at Tenant's sole cost and expense shall both remove such
sign and repair all damage in such a manner as to restore all aspects of the
appearance of the Premises to the condition prior to the placement of said sign.
All approved signs or lettering on outside doors shall be printed, painted,
affixed or inscribed at the expense of Tenant by a person approved of by
Landlord.
Tenant shall not place anything or allow anything to be placed near the glass
of any window, door partition or wall which may appear unsightly from outside
the Premises.
IN WITNESS WHEREOF, Landlord and Tenant have executed and delivered this Lease
as of the day and year last written below.
LANDLORD: TENANT:
JOHN ARRILLAGA SEPARATE PROPERTY TRUST FIRST VIRTUAL CORPORATION
a California Corporation
By /s/ John Arrillaga By /s/ M. Rosetta
-------------------------- ---------------------------------
John Arrillaga, Trustee
Dated:(Illegible) Title Founding Partner
------------- ------------------------------
RICHARD T. PERRY SEPARATE PROPERTY TRUST
By /s/ Richard T. Perry Type or Print Name M. Rosetta
------------------------- -----------------
Richard T. Perry, Trustee
Dated:(Illegible) Dated: 7-20-95
------------- ---------------------
page 8 of 8
<PAGE>
Paragraphs 43 through 48 to Lease Agreement Dated July 19, 1995, By and Between
John Arrillaga and Richard T. Peery Separate Property Trusts, as Landlord, and
First Virtual Corporation, a California corporation, as Tenant for 12,690+
Square Feet of Space Located at 3393 Octavius Drive, Suite 202, Santa Clara,
California.
43. BASIC RENT: In accordance with Paragraph 4A herein, the total aggregate sum
----------
of FOUR HUNDRED EIGHTY SIX THOUSAND SIX HUNDRED FORTY ONE AND 03/100 DOLLARS
($486,641.03), shall be payable as follows:
On August 15, 1995, the sum of SIX THOUSAND NINE HUNDRED FIFTY NINE AND
03/100 DOLLARS ($6,959.03) shall be due, representing the rental for the period
August 15, 1995 through August 31, 1995.
On September 1, 1995, the sum of TWELVE THOUSAND SIX HUNDRED NINETY AND
NO/100 DOLLARS ($12,690.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including August 1, 1996.
On September 1, 1996, the sum of THIRTEEN THOUSAND THREE HUNDRED TWENTY
FOUR AND 50/100 DOLLARS ($13,324.50) shall be due, and a like sum due on the
first day of each month thereafter, through and including August 1, 1997.
On September 1, 1997, the sum of THIRTEEN THOUSAND NINE HUNDRED FIFTY NINE
AND NO/100 DOLLARS ($13,959.00) shall be due, and a like sum due on the first
day of each month thereafter, through and including August 1, 1998; or until the
entire aggregate sum of FOUR HUNDRED EIGHTY SIX THOUSAND SIX HUNDRED FORTY ONE
AND 03/100 DOLLARS ($486,641.03) has been paid.
44. EARLY ENTRY: Tenant and its agents and contractors shall be permitted to
-----------
enter the Premises prior to the Commencement Date for the purpose of Installing
at Tenant's sole cost and expense, Tenant's trade fixtures and equipment,
telephone equipment, security systems and cabling for computers. Such entry
shall be subject to all of the terms and conditions of this Lease, except that
Tenant shall not be required to pay any Rent on account thereof. Any entry or
installation work by Tenant and its agents in the Premises pursuant to this
Paragraph 44 shall (i) be undertaken at Tenant's sole risk, (ii) not interfere
---------
with or delay Landlord's work in the Premises (if any) and (iii) not be deemed
occupancy or possession of the Premises for purposes of the Lease. Tenant shall
indemnify, defend, and hold Landlord harmless from any and all loss, damage,
liability, expense (including reasonable attorney's fees), claim or demand of
whatsoever character, direct or consequential, including, but without limiting
thereby the generality of the foregoing, injury to or death of persons and
damage to or loss of property arising out of the exercise by Tenant of any early
entry right granted hereunder. In the event Tenant's work in said Premises
delays the completion of the interior improvements to be provided by Landlord,
if any, or in the event Tenant has not completed construction of it's interior
improvements by the scheduled Commencement Date, it is agreed between the
parties that this Lease will commence on the scheduled Commencement Date of
August 15, 1995 regardless of the construction status of said interior
improvements completed or to be completed by Tenant or Landlord.
45. "AS-IS" BASIS: It is hereby agreed that the Premises leased hereunder is
------------
leased strictly on an "as-is" basis and in its present condition, and in the
configuration as shown on Exhibit B attached hereto, and by reference made a
----------
part hereof. It is specifically agreed between the parties that Landlord shall
not be required to make, nor be responsible for any cost, in connection with any
repair, restoration, and/or improvement to the Premises in order for this Lease
to commence, or thereafter, throughout the Term of this Lease. Landlord makes no
warranty or representation of any kind or nature whatsoever as to the condition
or repair of the Premises, nor as to the use or occupancy which may be made
thereof.
46. CONSENT: Whenever the consent of one party to the other is required
-------
hereunder, such consent shall not be unreasonably withheld.
9 Initial: (illegible)
----------------
<PAGE>
Title 22 of the California Administrative Code, Division 4, Chapter 30 (ii)
"hazardous waste" pursuant to the Federal Resource Conservation and Recovery
Act, Section 42 U.S.C. Section 6901 et. seq., (iii) listed or defined as a
"hazardous substance" pursuant to the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et. seq. (42 U.S.C.
Section 9601), (iv) petroleum or any derivative of petroleum, or (v) asbestos.
Subject to the terms of this Paragraph 47, Tenant shall have no obligation to
"clean up", reimburse, release, indemnify, or defend Landlord with respect to
any Hazardous Materials or wastes which Tenant (prior to and during the term of
the Lease) or other parties on the Property or Complex, as described below,
(during the term of this Lease) did not store, dispose, or transport in, use, or
cause to be on the Property or which Tenant, its agents, employees, contractors,
invitees or its future subtenants and/or assignees (if any) (during the Term of
this Lease), did not store, dispose, or transport in, use or cause to be on the
Complex in violation of applicable law.
Tenant shall be 100 percent liable and responsible for: (i) any and all
"investigation and cleanup" of said Hazardous Materials contamination which
Tenant, its agents, employees, contractors, invitees or its future subtenants
and/or assignees (if any), or other parties on the Property, does store,
dispose, or transport in, use or cause to be on the Property, and which Tenant,
its agents, employees, contractors, invitees or its future subtenants and/or
assignees (if any) does store, dispose, or transport in, use or cause to be on
the Complex and (ii) any claims, including third party claims, resulting from
such Hazardous Materials contamination. Tenant shall indemnify Landlord and hold
Landlord harmless from any liabilities, demands, costs, expenses and damages,
including, without limitation, attorney fees incurred as a result of any claims
resulting from such Hazardous Materials contamination.
Tenant also agrees not to use or dispose of any Hazardous Materials on the
Property or the Complex without first obtaining Landlord's written consent.
Tenant agrees to complete compliance with governmental regulations regarding the
use or removal or remediation of Hazardous Materials used, stored, disposed of,
transported or caused to be on the Property or the Complex as stated above, and
prior to the termination of said Lease Tenant agrees to follow the proper
closure procedures and will obtain a clearance from the local fire department
and/or the appropriate governing agency. If Tenant uses Hazardous Materials,
Tenant also agrees to install, at Tenant's expense, such Hazardous Materials
monitoring devices as Landlord deems reasonably necessary. It is agreed that the
Tenant's responsibilities related to Hazardous Materials will survive the
termination date of the Lease and that Landlord may obtain specific performance
of Tenant's responsibilities under this Paragraph 47.
48. TERMINATION OF PREVIOUS LEASE UPON COMMENCEMENT OF THIS LEASE: It is
---------------------------------------------------------------
understood that Tenant is currently occupying approximately 4,852 (plus or
minus) square feet of space located at 3393 Octavius Drive, Suite 102, Santa
Clara, California, leased under separate Lease Agreement dated February 1, 1994
between Landlord and Tenant. It is therefore agreed that upon commencement of
this Lease Agreement, said February 1, 1994 Lease Agreement shall terminate and
this Lease Agreement shall be considered the only Lease Agreement between the
parties for the Premises leased hereunder. Tenant also agrees that, upon
termination of said 4,832 (plus or minus) square fact of space, Tenant shall, if
so requested by Landlord, restore all or part of the Premises, at Landlord's
sole discretion, pursuant to Paragraph 8 ("Acceptance and Surrender of
Premises") of said February 1, 1994 Lease Agreement.
Initial: illegible
-------------
<PAGE>
[MAP APPEARS HERE]
LEASE AGREEMENT DATED JULY 19, 1995 BY AND BETWEEN JOSH ARRILLAGA AND RICHARD T.
PEERY SEPARATE PROPERTY TRUSTS, AS LANDLORD, AND FIRST VIRTUAL CORPORATION, AS
TENANT.
<PAGE>
AMENDMENT NO. 1
TO LEASE
THIS AMENDMENT NO. 1 is made and entered into this 7th day of November, 1997,
by and between JOHN ARRILLAGA, Trustee, or his Successor Trustee UTA dated
7/20/77, of the John Arrillaga Survivor's Trust ("JOHN ARRILLAGA SURVIVOR'S
TRUST") (previously known as the "John Arrillaga Separate Property Trust") as
amended, and RICHARD T. PEERY, Trustee, or his Successor Trustee UTA dated
7/20/77, of the Richard T. Peery Separate Property Trust ("RICHARD T. PEERY
SEPARATE PROPERTY TRUST") as amended, collectively as LANDLORD, and FIRST
VIRTUAL CORPORATION, a Delaware corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated July 19, 1995 Landlord leased to Tenant
approximately 12,690+ square feet of that certain 48,000+ square foot building
located at 3393 Octavius Drive, Suite 202, Santa Clara, California, the details
of which are more particularly set forth in said July 19, 1995 Lease Agreement,
and
B. WHEREAS, said Lease was amended by Letter Agreement dated November 6,
1997, whereby Landlord consented to Tenant's assignment of said Lease from First
Virtual Corporation, a California corporation to First Virtual Corporation, a
Delaware corporation, and,
C. WHEREAS, it is now the desire of the parties hereto to amend the Lease by
adding a Co-terminous paragraph and a Cross Default paragraph to said Lease
Agreement as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
l. LEASE TERMS CO-TERMINOUS: It is acknowledged that (i) concurrently with the
------------------------
execution of this Amendment, Landlord and Tenant are also executing a separate
Lease Agreement dated November 7, 1997 (hereinafter referred to as the "New
Lease") affecting property located at 3233 Scott Blvd., Suite 103, Santa Clara,
California and (ii) it is the intention of the parties that the term of this
Lease be co-terminous with the term of the New Lease such that the terms of both
leases, expire on the same date; provided, however, the termination of this
Lease resulting from the terms and conditions stated under Paragraph 22
"Bankruptcy and Default" (subject to Landlord's option as stated in the
respective leases, "Cross Default" Paragraph) or Paragraph 24 "Destruction" or
Paragraph 25 "Eminent Domain" shall not result in a termination of the New Lease
unless Landlord elects, at its sole and absolute discretion, to terminate either
or both of the leases.
2. CROSS DEFAULT: As a material part of the consideration for the execution of
-------------
the New Lease by Landlord, it is agreed between Landlord and Tenant that a
default under this Lease, or a default under said New Lease may, at the option
of Landlord, be considered a default under both leases, in which event Landlord
shall be entitled (but in no event required) to apply all rights and remedies of
Landlord under the terms of one lease to both leases including, but not limited
to, the right to terminate one or both of said leases by reason of a
Initial: (Illegible)
-----------
<PAGE>
PSII-3
default under said New Lease or hereunder.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of said
July 19, 1995 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 1 to
Lease as of the day and year last written below.
LANDLORD: TENANT:
JOHN ARRILLAGA SURVIVOR'S FIRST VIRTUAL CORPORATION
TRUST a Delaware corporation
By /s/ John Arrillaga By /s/ Anita Neumann
------------------ ------------------------
John Arrillaga, Trustee
Date: 11/17/97 ANITA NEUMANN
-------- ----------------------------
Print or Type Name
RICHARD T. PEERY SEPARATE Title: Facilities Operations
----------------------
PROPERTY TRUST
By /s/ Richard T. Peery Date: November 13, 1997
-------------------- ---------------------
Richard T. Peery, Trustee
Date: 11/17/97
--------
Initial:
-----
<PAGE>
Park Sq. II-3
AMENDMENT NO. 2
TO LEASE
THIS AMENDMENT NO. 2 is made and entered into this 2nd day of April, 1998, by
and between JOHN ARRILLAGA, Trustee, or his Successor Trustee UTA dated 7/20/77
(JOHN ARRILLAGA SURVIVOR'S TRUST) (previously known as the "John Arrillaga
Separate Property Trust") as amended, and RICHARD T. PEERY, Trustee, or his
Successor Trustee UTA dated 7/20/77 (RICHARD T. PEERY SEPARATE PROPERTY TRUST)
as amended, collectively as LANDLORD, and FIRST VIRTUAL CORPORATION, a Delaware
corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated July 19, 1995 Landlord leased to
Tenant approximately 12,690+ square feet of that certain 48,000+ square foot
building located at 3393 Octavius Drive, Suite 202, Santa Clara, California, the
details of which are more particularly set forth in said July 19, 1995 Lease
Agreement, and
B. WHEREAS, said Lease was amended by Letter Agreement dated November 6,
1997, whereby Landlord consented to Tenant's assignment of said Lease from First
Virtual Corporation, a California corporation to First Virtual Corporation, a
Delaware corporation, and,
C. WHEREAS, said Lease was amended by Amendment No. 1 dated November 7,
1997 which added a Co-terminous paragraph and a Cross-default paragraph as
related to premises leased by Tenant from Landlord at 3233 Scott Blvd., Santa
Clara, California, and
D. WHEREAS, it is now the desire of the parties hereto to amend the Lease
by (i) increasing the square footage of the Leased Premises by 9,696+ square
feet effective May 1, 1998, (ii) increasing the square footage of the Leased
Premises by 2,561+ square feet effective December 1, 1998, (iii) extending the
Lease Term for a period of four years and eight months, (iv) amending the Basic
Rent schedule and Aggregate Rent accordingly, (v) increasing the Security
Deposit required under the Lease, (vi) increasing Tenant's non-exclusive parking
spaces, (vii) amending the Management Fee charged to Tenant, (viii) amending
Lease Paragraph 19 ("Assignment and Subletting"), (ix) replacing Lease
Paragraphs 39 ("Limitation of Liability") and 47 ("Hazardous Materials"), (x)
deleting Paragraphs 1 ("Lease Terms Co-terminous") and 2 ("Cross Default") to
Amendment No. 1 dated November 7, 1997, and (xi) adding a paragraph ("Authority
to Execute") to said Lease Agreement as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. INCREASED PREMISES.
------------------
A. Phase I Increased Premises. Effective May 1, 1998, the size of the Leased
--------------------------
Premises will be increased by 9,696+ square feet (the "Phase I Increased
Premises"), or from 12,690+ square feet to 22,386+ square feet of space. Total
said Premises are more particularly shown within the area outlined in Orange on
Exhibit A. The entire parcel, of which the Leased Premises is a part, is shown
- ---------
within the area outlined in Green on Exhibit A. The Phase I Increased Space is
---------
leased on an "as-is" basis, in its present condition and configuration, as set
forth in Blue on Exhibit B attached hereto, with the entire interior leased
---------
Premises shown in Orange on Exhibit B.
---------
B. Phase II Increased Premises. Effective December 1, 1998, the size of the
---------------------------
Leased Premises will be increased by 2,561+ square feet (the "Phase II Increased
Premises"), or from 22,386+ square feet to 24,947+ square feet of space. Total
said Premises are more particularly shown within the area outlined in Red on
Exhibit A. The entire parcel, of which the Leased Premises is a part, is shown
- ---------
within the area outlined in Green on Exhibit A. The Phase II Increased Space is
---------
leased on an "as-is" basis, in its present condition and configuration, as set
forth in Purple on Exhibit
-------
Initial: (illegible)
-------------
<PAGE>
Park Sq. II-3
AMENDMENT NO. 3
TO LEASE
THIS AMENDMENT NO. 3 is made and entered into this 27th day of May, 1998, by
and between JOHN ARRILLAGA, Trustee, or his Successor Trustee UTA dated 7/20/77
(JOHN ARRILLAGA SURVIVOR'S TRUST) (previously known as the "John Arrillaga
Separate Property Trust") as amended, and RICHARD T. PEERY, Trustee, or his
Successor Trustee UTA dated 7/20/77 (RICHARD T. PEERY SEPARATE PROPERTY TRUST)
as amended, collectively as LANDLORD, and FIRST VIRTUAL CORPORATION, a Delaware
corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated July 19, 1995 Landlord leased to Tenant
approximately 12,690+ square feet of that certain 48,000+ square foot building
located at 3393 Octavius Drive, Suite 202, Santa Clara, California, the details
of which are more particularly set forth in said July 19, 1995 Lease Agreement,
and
B. WHEREAS, said Lease was amended by Letter Agreement dated November 6,
1997, whereby Landlord consented to Tenant's assignment of said Lease from First
Virtual Corporation, a California corporation to First Virtual Corporation, a
Delaware corporation, and,
C. WHEREAS, said Lease was amended by Amendment No. 1 dated November 7, 1997
which added a Co-terminous paragraph and a Cross-default paragraph as related to
premises leased by Tenant from Landlord at 3233 Scott Blvd., Santa Clara,
California, and
D. WHEREAS, said Lease was amended by Amendment No. 2 dated April 2, 1998
which (i) increased the square footage of the Leased Premises by 9,696+ square
feet effective May 1, 1998 ("Phase I Increased Premises"), (ii) increased the
square footage of the Leased Premises by 2,561+ square feet effective December
1, 1998 ("Phase II Increased Premises"), (iii) extended the Lease Term for a
period of four years and eight months, (iv) amended the Basic Rent schedule and
Aggregate Rent accordingly, (v) increased the Security Deposit required under
the Lease, (vi) increased Tenant's non-exclusive parking spaces, (vii) amended
the Management Fee charged to Tenant, (viii) amended Lease Paragraph 19
("Assignment and Subletting"), (ix) replaced Lease Paragraphs 39 ("Limitation of
Liability") and 47 ("Hazardous Materials"), (x) deleted Paragraphs 1 ("Lease
Terms Co-terminous") and 2 ("Cross Default") to Amendment No. 1 dated November
7, 1997, and (xi) added a paragraph ("Authority to Execute") to said Lease, and
E. WHEREAS, it is now the desire of the parties hereto to amend the Lease by
(i) deleting Paragraph 1.B. of Amendment No. 2 and increasing the former "Phase
II Increased Premises" by increasing the square footage of the Leased Premises
by a total of 25,614+ square feet effective December l, 1998 to reflect Tenant
leasing one hundred percent of the Building, (ii) extending the Lease Term for a
period of two years and seven months, (iii) amending the Basic Rent schedule and
Aggregate Rent accordingly, (iv) increasing the Security Deposit required under
the Lease, (v) increasing Tenant's non-exclusive parking spaces, (vi) amending
Lease Paragraph 19 ("Assignment and Subletting"), and (vii) replacing Lease
Paragraphs 7 ("Expenses of Operation, Management, and Maintenance of the Common
Areas of the Complex and Building in which the Premises are Located"), 10
("Tenant Maintenance") and 11 ("Utilities of the Building in which the Premises
are Located") to said Lease Agreement as hereinafter set forth.
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. PHASE II INCREASED PREMISES: Paragraph 1.B. of Amendment No. 2 dated April
---------------------------
2, 1998 ("Phase II Increased Premises") shall be deleted in its entirety and
replaced with the following:
"Effective December 1, 1998, the size of the Leased Premises will be increased
by 25,614+
Initial:
-------
<PAGE>
Park Sq. II-3
square feet (the "Phase II Increased Premises"), or from 22,386+ square feet to
48,000+ square feet of space (one hundred percent of the Building). Total said
Premises are more particularly shown within the area outlined in Red on Exhibit
-------
A. The entire parcel, of which the Leased Premises is a part, is shown within
- -
the area outlined in Green on Exhibit A. The Phase II Increased Space is leased
---------
on an "as-is" basis, in its present condition and configuration, as set forth in
Purple on Exhibit B attached hereto, with the entire interior leased Premises
---------
shown in Red on Exhibit B.
---------
It is understood between the parties that the Commencement Date for the Phase
II Increased Premises is the day immediately following the scheduled termination
date of a lease agreement between Landlord and 3Com Corporation ("3Com"). In the
event (i) 3Com fails to timely vacate the Phase II Increased Premises and
surrender same to Landlord free and clear of its occupancy by November 30, 1998
or (ii) Landlord is unable to deliver the Phase II Increased Premises on
December 1, 1998, Tenant's occupancy date for the Phase II Increased Premises
shall commence on the date immediately following the actual termination date of
the 3Com Lease."
2. TERM OF LEASE: It is agreed between the parties that the Term of said
-------------
Lease Agreement shall be extended for an additional two (2) year seven (7) month
period, and the Lease Termination Date shall be changed from April 30, 2003 to
November 30, 2005.
3. BASIC RENT SCHEDULE: The Basic Rent schedule, as shown in Paragraph 4(A)
-------------------
of the Lease Agreement, shall be amended as follows:
On December 1, 1998, the sum of NINETY SIX THOUSAND AND NO/100 DOLLARS
($96,000.00) shall be due, and a like sum due on the first day of each month
thereafter, through and including April 1, 1999.
On May 1, 1999, the sum of ONE HUNDRED THOUSAND EIGHT HUNDRED AND NO/100
DOLLARS ($100,800.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including April 1, 2000.
On May 1,2000, the sum of ONE HUNDRED FIVE THOUSAND SIX HUNDRED AND NO/100
DOLLARS ($105,600.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including April 1, 2001.
On May 1, 2001, the sum of ONE HUNDRED TEN THOUSAND FOUR HUNDRED AND NO/100
DOLLARS ($110,400.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including April 1, 2002.
On May 1, 2002, the sum of ONE HUNDRED FIFTEEN THOUSAND TWO HUNDRED AND
NO/100 DOLLARS ($115,200.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2003.
On May 1, 2003, the sum of ONE HUNDRED TWENTY THOUSAND AND NO/100 DOLLARS
($120,000.00) shall be due, and a like sum due on the first day of each month
thereafter, through and including April 1, 2004.
On May 1, 2004, the sum of ONE HUNDRED TWENTY FOUR THOUSAND EIGHT HUNDRED
AND NO/100 DOLLARS ($124,800.00) shall be due, and a like sum due on the first
day of each month thereafter, through and including April 1, 2005.
On May 1, 2005, the sum of ONE HUNDRED TWENTY NINE THOUSAND SIX HUNDRED AND
NO/100 DOLLARS ($129,600.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including November 1, 2005.
As a result of the increase in square feet leased, the Aggregate Rental shall
be increased by $6,565,054.00, or from $3,642,271.03 to $10,207,325.03.
4. INCREASED PARKING: Effective December 1, 1998, Tenant's nonexclusive
-----------------
parking spaces shall be increased by 102 spaces or from 90 spaces to 192 spaces.
5. SECURITY DEPOSIT: Tenant's Security Deposit shall be increased by
----------------
$139,454.40, or from $119,745.60 to $259,200.00, due on December 1, 1998.
Initial:
-------
<PAGE>
Park Sq. II-3
6. ASSIGNMENT AND SUBLETTING: Lease Paragraph 19 ("Assignment and
-------------------------
Subletting") shall be amended to include the following language:
"Notwithstanding the foregoing, Landlord and Tenant agree that it shall not
be unreasonable for Landlord to refuse to consent to a proposed assignment,
sublease or other transfer ("Proposed Transfer") if the Premises or any other
portion of the Property would become subject to additional or different
Government Requirements as a direct or indirect consequence of the Proposed
Transfer and/or the Proposed Transferee's use and occupancy of the Premises and
the Property. However, Landlord may, in its sole discretion, consent to such a
Proposed Transfer where Landlord is indemnified by Tenant and (i) Subtenant or
(ii) Assignee, in form and substance satisfactory to Landlord's counsel, by
Tenant and/or the Proposed Transferee from and against any and all costs,
expenses, obligations and liability arising out of the Proposed Transfer and/or
the Proposed Transferee's use and occupancy of the Premises and the Property."
7. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON AREAS OF
--------------------------------------------------------------------------
THE COMPLEX AND BUILDING IN WHICH THE PREMISES ARE LOCATED: Effective December
- ----------------------------------------------------------
1, 1998, Lease Paragraph 7 ("Expenses of Operation, Management, and Maintenance
of the Common Areas of the Complex and Building in Which the Premises Are
Located") shall be deleted In its entirety and replaced with the following:
"7. EXPENSES OF OPERATION, MANAGEMENT, AND MAINTENANCE OF THE COMMON
AREAS OF THE COMPLEX. As Additional Rent and in accordance with Paragraph 4D
of this Lease, Tenant shall pay to Landlord Tenant's proportionate share
(calculated on a square footage or other equitable basis as calculated by
Landlord) of all expenses of operation, management, maintenance and repair of
the Common Areas of the Complex including, but not limited to, license,
permit, and inspection fees; security; utility charge associated with exterior
landscaping and lighting (including water and sewer charges); all charges
incurred in the maintenance and replacement of landscaped areas, lakes,
parking lots, sidewalks, driveways; maintenance, repair and replacement of all
fixtures and electrical, mechanical, and plumbing systems; structural elements
and exterior surfaces of the buildings; salaries and employee benefits of
personnel and payroll taxes applicable thereto; supplies, materials, equipment
and tools; the amortized cost of capital expenditures which have the effect of
reducing operating expenses, provided, however, that in the event Landlord
makes such capital improvements, Landlord shall amortize its investment in
said improvements over the useful life thereof (together with interest at the
rate of fifteen percent (15%) per annum on the unamortized balance) as an
operating expense in accordance with standard accounting practices, provided,
that such amortization is not at a rate greater than the reasonably
anticipated savings in the operating expenses.
"Additional Rent" as used herein shall not include Landlord's debt repayments;
interest on charges; expenses directly or indirectly incurred by Landlord for
the benefit of any other tenant; cost for the installation of partitioning or
any other tenant improvements; cost of attracting tenants; depreciation;
interest; or executive salaries."
8. TENANT MAINTENANCE: Effective December l, 1998, Lease Paragraph 10
------------------
("Tenant Maintenance") shall be deleted in its entirety and replaced with the
following:
"10. TENANT MAINTENANCE Tenant shall, at its sole cost and expense, keep
and maintain the Premises (including appurtenances) and every part thereof in
a high standard of maintenance and repair, and in good and sanitary condition.
Tenant's maintenance and repair responsibilities herein referred to include,
but are not limited to, all windows, window frames, plate glass, glazing,
truck doors, plumbing systems (such as water and drain lines, sinks, toilets,
faucets, drains, showers, and water fountains), electrical systems (such as
panels, conduits, outlets, lighting fixtures, lamps, bulbs, tubes, ballasts),
heating and air-conditioning systems (such as compressors, fans, air handlers,
ducts, mixing boxes, thermostats, time clocks, boilers, heaters, supply and
return grills), store fronts, roofs, downspouts, all interior improvements
within the Premises including, but not limited to wall coverings, window
coverings, carpet, floor coverings, partitioning, ceilings, doors (both
interior and exterior), including closing mechanisms, latches, locks,
skylights (if any), automatic fire extinguishing systems, and elevators and
all other interior improvements of any nature whatsoever. Tenant
Initial: (Illegible)
-------------
<PAGE>
Park Sq. II-3
agrees to provide carpet shields under all rolling chairs or to otherwise be
responsible for wear and tear of the carpet caused by such rolling chairs if
such wear and tear exceeds that caused by normal foot traffic in surrounding
areas. Areas of excessive wear shall be replaced at Tenant's sole expense upon
Lease termination. Tenant hereby waives all rights under, and benefits of,
subsection 1 of Section 1932 and Section 1941 and 1942 of the California Civil
Code and under any similar law, statute or ordinance now or hereafter in
effect."
9. UTILITIES OF THE BUILDING IN WHICH THE PREMISES ARE LOCATED: Effective
-----------------------------------------------------------
December 1, 1998, Lease Paragraph 11 ("Utilities of The Building in Which The
Premises Are Located") shall be deleted in its entirety and replaced with the
following:
"11. UTILITIES Tenant shall pay promptly, as the same become due, all
charges for water, gas, electricity, telephone, telex and other electronic
communications service, sewer service, waste pick-up and any other utilities,
materials or services furnished directly to or used by Tenant on or about the
Premises during the Term of this Lease, including, without limitation, any
temporary or permanent utility surcharge or other exactions whether or not
hereinafter imposed.
Landlord shall not be liable for and Tenant shall not be entitled to any
abatement or reduction of Rent by reason of any interruption or failure of
utility services to the Premises when such interruption or failure is caused
by accident, breakage, repair, strikes, lockouts, or other labor disturbances
or labor disputes of any nature, or by any other cause, similar or dissimilar,
beyond the reasonable control of Landlord."
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of said
July 19, 1995 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 3 to
Lease as of the day and year last written below.
LANDLORD: TENANT:
JOHN ARRILLAGA SURVIVOR'S FIRST VIRTUAL CORPORATION
TRUST a Delaware corporation
By /s/ John Arrillaga By /s/ Ralph Ungermann
----------------------- -------------------
John Arrillaga, Trustee
Date: 6/8/98 Ralph Ungermann
--------------------- -------------------
Print or Type Name
RICHARD T. PEERY SEPARATE Title: President and CEO
PROPERTY TRUST --------------------
By /s/ Richard T. Peery Date: June 3, 1998
-------------------- --------------------
Richard T. Peery
Date: 6/8/98
---------------------
Initial: R.U.
--------
<PAGE>
[MAP APPEARS HERE]
EXHIBIT A TO AMENDMENT NO. 3 DATED MAY 27, 1998 BY AND BETWEEN THE JOHN
- ---------
ARRILLAGA SURVIVOR'S TRUST AND THE RICHARD T. PEERY SEPARATE PROPERTY TRUST, AS
LANDLORD, AND FIRST VIRTUAL CORPORATION, AS TENANT.
[SITE PLAN]
<PAGE>
[MAP APPEARS HERE]
EXHIBIT B TO AMENDMENT NO. 3 DATED MAY 27, 1998 BY AND BETWEEN THE JOHN
- ---------
ARRILLAGA SURVIVOR'S TRUST AND THE RICHARD T. PEERY SEPARATE PROPERTY TRUST, AS
LANDLORD, AND FIRST VIRTUAL CORPORATION, AS TENANT.
<PAGE>
[MAP APPEARS HERE]
EXHIBIT B TO AMENDMENT NO. 3 DATED MAY 27, 1998 BY AND BETWEEN THE JOHN
- ---------
ARRILLAGA SURVIVOR'S TRUST AND THE RICHARD T. PEERY SEPARATE PROPERTY TRUST, AS
LANDLORD, AND FIRST VIRTUAL CORPORATION, AS TENANT.
<PAGE>
Park Sq. II-3
AMENDMENT NO. 4
TO LEASE
THIS AMENDMENT NO. 4 is made and entered into this 4th day of February, 1999,
by and between JOHN ARRILLAGA, Trustee, or his Successor Trustee UTA dated
7/20/77 (JOHN ARRILLAGA SURVIVOR'S TRUST) (previously known as the "John
Arrillaga Separate Property Trust") as amended, and RICHARD T. PEERY, Trustee,
or his Successor Trustee UTA dated 7/20/77 (RICHARD T. PEERY SEPARATE PROPERTY
TRUST) as amended, collectively as LANDLORD, and FVC.COM, Inc. a Delaware
corporation, as TENANT.
RECITALS
A. WHEREAS, by Lease Agreement dated July 19, 1995 Landlord leased to Tenant
approximately 12,690+ square feet of that certain 48,000+ square foot building
located at 3393 Octavius Drive, Suite 202, Santa Clara, California, the details
of which are more particularly set forth in said July 19, 1995 Lease Agreement,
and
B. WHEREAS, said Lease was amended by Letter Agreement dated November 6,
1997, whereby Landlord consented to Tenant's assignment of said Lease from First
Virtual Corporation, a California corporation to First Virtual Corporation, a
Delaware corporation, and
C. WHEREAS, said Lease was amended by Amendment No. 1 dated November 7, 1997
which added a Co-terminous paragraph and a Cross-default paragraph as related to
premises leased by Tenant from Landlord at 3233 Scott Blvd., Santa Clara,
California, and
D. WHEREAS, said Lease was amended by Amendment No. 2 dated April 2, 1998
which (i) increased the square footage of the Leased Premises by 9,696+ square
feet effective May 1, 1998 ("Phase I Increased Premises"), (ii) increased the
square footage of the Leased Premises by 2,561+ square feet effective December
1, 1998 ("Phase II Increased Premises"), (iii) extended the Lease Term for a
period of four years and eight months, (iv) amended the Basic Rent schedule and
Aggregate Rent accordingly, (v) increased the Security Deposit required under
the Lease, (vi) increased Tenant's non-exclusive parking spaces, (vii) amended
the Management Fee charged to Tenant, (viii) amended Lease Paragraph 19
("Assignment and Subletting"), (ix) replaced Lease Paragraphs 39 ("Limitation of
Liability") and 47 ("Hazardous Materials"), (x) deleted Paragraphs 1 ("Lease
Terms Co-terminous") and 2 ("Cross Default") to Amendment No. 1 dated November
7, 1997, and (xi) added a paragraph ("Authority to Execute") to said Lease, and
E. WHEREAS, said Lease was amended by Amendment No. 3 dated May 27, 1998
which (i) deleted Paragraph 1.B. of Amendment No. 2 and increased the former
"Phase II Increased Premises" by increased the square footage of the Leased
Premises by a total of 25,614 + square feet effective December 1, 1998 to
reflect Tenant leasing one hundred percent of the Building, (ii) extended the
Lease Term for a period of two years and seven months, (iii) amended the Basic
Rent schedule and Aggregate Rent accordingly, (iv) increased the Security
Deposit required under the Lease, (v) increased Tenant's non-exclusive parking
spaces, (vi) amended Lease Paragraph 19 ("Assignment and Subletting"), and (vii)
replaced Lease Paragraphs 7 ("Expenses of Operation, Management, and Maintenance
of the Common Areas of the Complex and Building in which the Premises are
Located"), 10 ("Tenant Maintenance") and 11 ("Utilities of the Building in which
the Premises are Located"), and
F. WHEREAS, it is now the desire of the parties hereto to amend the Lease by
(i) acknowledging Tenant's name change from First Virtual Corporation, a
Delaware corporation to FVC.COM, Inc., a Delaware corporation effective July 31,
1998, (ii) reducing the Basic Rent due under the Lease for a six month period
commencing January 1, 1999 and ending June 30, 1999, (iii) extending the Lease
Term by three years and seven months, and (iv) amending the Basic Rent Schedule
and Aggregate Rent under said Lease Agreement as hereinafter set forth.
Initial: (illegible)^^
---------------
<PAGE>
Park Sq. II-3
AGREEMENT
NOW THEREFORE, for valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the hereinafter mutual promises, the
parties hereto do agree as follows:
1. TENANT NAME CHANGE: Pursuant to information provided to Landlord by
------------------
Tenant, it is acknowledged by Landlord that effective on or about July 31, 1998,
Tenant, "First Virtual Corporation", a Delaware corporation, has changed its'
name by Corporate Resolution to "FVC.COM, Inc.", a Delaware corporation; the
change in name did not result in a change in ownership structure and for all
intents and purposes all the assets and liabilities of First Virtual Corporation
are now the assets and liabilities of FVC.COM, Inc., and FVC.COM, Inc. will be
responsible for the full performance of all terms, covenants, and conditions of
said Lease Agreement from the date of the Lease (July 19, 1995) through the
effective Termination Date of said Lease. In the event there was a change in
ownership or there is not a complete transfer of 100% of the assets and
liabilities from First Virtual Corporation to FVC.COM, Inc. both companies agree
to be jointly and severally liable for the full terms and conditions of the
Lease Agreement from through the Termination Date of said Lease.
2. TERM OF LEASE: It is agreed between the parties that the Term of said
-------------
Lease Agreement shall be extended for an additional three (3) year seven (7)
month period, and the Lease Termination Date shall be changed from November 30,
2005 to June 30, 2009.
3. BASIC RENT SCHEDULE: As an accommodation to Tenant and in consideration of
-------------------
Tenant extending the Term of the Lease, Landlord has agreed to reduce the Basic
Rent due under the Lease for the period of January 1, 1999 through June 30, 1999
by $40,000.00 per month. The Basic Rent schedule, as shown in Paragraph 4(A) of
the Lease Agreement, shall be amended as follows:
On January 1, 1999, the sum of FIFTY SIX THOUSAND AND NO/100 DOLLARS
($56,000.00) shall be due, and a like sum due on the first day of each month
thereafter, through and including April 1, 1999.
On May 1, 1999, the sum of SIXTY THOUSAND EIGHT HUNDRED AND NO/100 DOLLARS
($60,800.00) shall be due, and a like sum due on the first day of each month
thereafter, through and including June 1, 1999.
On July 1, 1999, the sum of ONE HUNDRED FIVE THOUSAND SIX HUNDRED AND NO/100
DOLLARS ($105,600.00) shall be due, and a like sum due on the first day of each
month thereafter, through and including April 1, 2000.
On May 1, 2000, the sum of ONE HUNDRED THIRTEEN THOUSAND TWO HUNDRED AND
NO/100 DOLLARS ($113,200.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2001.
On May 1, 2001, the sum of ONE HUNDRED TWENTY FOUR THOUSAND EIGHT HUNDRED AND
NO/100 DOLLARS ($124,800.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2003.
On May 1, 2003, the sum of ONE HUNDRED TWENTY SEVEN THOUSAND TWO HUNDRED AND
NO/100 DOLLARS ($127,200.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2004.
On May 1, 2004, the sum of ONE HUNDRED TWENTY NINE THOUSAND SIX HUNDRED AND
NO/100 DOLLARS ($129,600.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2005.
On May 1, 2005, the sum of ONE HUNDRED THIRTY TWO THOUSAND AND NO/100 DOLLARS
($132,000.00) shall be due, and a like sum due on the first day of each month
thereafter, through and including April 1, 2006.
Initial: (Illegible)^^
-------------
<PAGE>
Park Sq. II-3
On May 1, 2006, the sum of ONE HUNDRED THIRTY SIX THOUSAND EIGHT HUNDRED AND
NO/100 DOLLARS ($136,800.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April l, 2007.
On May 1, 2007, the sum of ONE HUNDRED FORTY ONE THOUSAND SIX HUNDRED AND
NO/100 DOLLARS ($141,600.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2008.
On May 1, 2008, the sum of ONE HUNDRED FORTY SIX THOUSAND FOUR HUNDRED AND
NO/100 DOLLARS ($146,400.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including April 1, 2009.
On May l, 2009, the sum of ONE HUNDRED FIFTY ONE THOUSAND TWO HUNDRED AND
NO/100 DOLLARS ($151,200.00) shall be due, and a like sum due on the first day
of each month thereafter, through and including June 1, 2009.
The Aggregate Rental shall be increased by $6,408,000.00, or from
$10,207,325.03 to $16,615,325.03.
4. SECURITY DEPOSIT: Tenant's Security Deposit shall remain $259,200.00.
----------------
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of said
July 19, 1995 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 4 to
Lease as of the day and year last written below.
LANDLORD: TENANT:
JOHN ARRILLAGA FVC.COM, INC.
SURVIVOR'S TRUST a Delaware corporation
By /s/ John Arrillaga By /s/ Ralph Ungermann
----------------------- ---------------------
John Arrillaga, Trustee
Date: 2/24/99 Ralph Ungermann
-------------------- ---------------------
Print or Type Name
RICHARD T. PEERY SEPARATE Title: Chairman
PROPERTY TRUST ---------------------
By /s/ Richard T. Peery Date: 2/23/99
---------------------- -------------
Richard T. Peery, Trustee
Date: 2/24/99 Initial: R.U. J.A.
-------- -----------
<PAGE>
Park Sq. II-3
B attached hereto, with the entire interior leased Premises shown in Red on
- -
Exhibit B.
- ---------
2. INCREASED PREMISES SUBJECT TO LANDLORD'S OBTAINING TERMINATION AGREEMENT
------------------------------------------------------------------------
WITH CURRENT TENANT FOR CURRENT TENANT'S SPACE: Tenant's Lease of the Phase I
- ----------------------------------------------
Increased Premises and the Phase II Increased Premises (collectively the
"Increased Premises") is subject to Landlord obtaining from 3Com Corporation
("3Com"), the current tenant occupying the Increased Premises, a Termination
Agreement satisfactory to Landlord on or before April 30, 1998. In the event
Landlord is unable to obtain said satisfactory Agreement on or before April 30,
1998, and/or in the event 3Com fails to timely vacate the Phase I Increased
Premises and surrender same to Landlord free and clear of its occupancy, this
Amendment shall, at Landlord's option: a) be rescinded as relates to both the
Phase I Increased Premises and the Phase II Increased Premises, or b) the
Commencement Date of the Phase I Increased Premises hereof shall be modified to
reflect the date Landlord so obtains said satisfactory Termination Agreement and
receives possession of the Phase I Increased Premises free and clear of 3Com's
occupancy; provided, however, that said period of delay caused by 3Com shall not
extend beyond June 30, 1998. In the event Landlord cannot deliver said Phase I
Increased Premises by June 30, 1998, Paragraphs 1, 5 and 6 of this Amendment No.
2 shall be automatically rescinded and Paragraph 4 shall be amended to reflect
the deletion of the Increased Premises.
In the event 3Com fails to timely vacate the Phase II Increased Premises and
surrender same to Landlord free and clear of its occupancy by November 30, 1998,
the Commencement Date of the Phase II Increased Premises hereof shall be
modified to reflect the date Landlord so obtains said satisfactory Termination
Agreement and receives possession of the Increased Premises free and clear of
3Com's occupancy and Paragraph 4 shall be amended to reflect the change in the
Commencement Date for the Phase II Increased Premises.
3. TERM OF LEASE: It is agreed between the parties that the Term of said
-------------
Lease Agreement shall be extended for an additional four (4) year eight (8)
month period, and the Lease Termination Date shall be changed from August 31,
1998 to April 30, 2003.
4. BASIC RENT SCHEDULE: The Basic Rent schedule, as shown in Paragraph 4(A)
-------------------
of the Lease Agreement, shall be amended as follows:
On May 1, 1998, the sum of THIRTY THREE THOUSAND THREE HUNDRED FIFTY ONE AND
NO/100 DOLLARS ($33,351.00) shall be due, and a like sum due on the first day of
each month thereafter, through and including August 1, 1998.
On September l, 1998, the sum of FORTY FOUR THOUSAND SEVEN HUNDRED SEVENTY TWO
AND NO/100 DOLLARS ($44,772.00) shall be due, and a like sum due on the first
day of each month thereafter, through and including November 1, 1998.
On December 1, 1998, the sum of FORTY NINE THOUSAND EIGHT HUNDRED NINETY FOUR
AND NO/100 DOLLARS ($49,894.00) shall be due, and a like sum due on the first
day of each month thereafter, through and including April 1, 1999.
On May 1, 1999, the sum of FIFTY TWO THOUSAND THREE HUNDRED EIGHTY EIGHT AND
70/100 DOLLARS ($52,388.70) shall be due, and a like sum due on the first day of
each month thereafter, through and including April 1, 2000.
On May 1, 2000, the sum of FIFTY FOUR THOUSAND EIGHT HUNDRED EIGHTY THREE AND
40/100 DOLLARS ($54,883.40) shall be due, and a like sum due on the first day of
each month thereafter, through and including April 1, 2001.
On May 1, 2001, the sum of FIFTY SEVEN THOUSAND THREE HUNDRED SEVENTY EIGHT
AND 10/100 DOLLARS ($57,378.10) shall be due, and a like sum due on the first
day of each month thereafter, through and excluding April 1, 2002.
On May 1, 2002, the sum of FIFTY NINE THOUSAND EIGHT HUNDRED SEVENTY TWO AND
80/100 DOLLARS ($59,872.80) shall be due, and a like sum due on the first day of
each month thereafter, through and including April 1, 2003.
Initial: (illegible)
---------------
<PAGE>
Park Sq. II-3
As a result of the increase in square feet leased, the Aggregate Rental shall
be increased by $3,155,630.00, or from $486,641.03 to $3,642,271.03.
5. INCREASED PARKING: Effective May 1, 1998, Tenant's nonexclusive parking
-----------------
spaces shall be increased by 39 spaces, or from 51 spaces to 90 spaces.
Effective December 1, 1998, Tenant's nonexclusive parking spaces shall be
increased by 10 spaces or from 90 spaces to 100 spaces.
6. SECURITY DEPOSIT: Tenant's Security Deposit shall be increased by
----------------
$91,827.60, or from $27,918.00 to $119,745.60, payable upon Tenant's execution
of this Amendment No. 2.
7. MANAGEMENT FEE: Beginning May 1, 1998, Tenant shall pay to Landlord, in
--------------
addition to the Basic Rent and Additional Rent, a fixed monthly management fee
("Management Fee") equal to three percent (3%) of the Basic Rent due for each
month throughout the remaining Lease Term. Tenant shall remain liable for the
five percent (5%) management fee previously charged against Additional Rent
through April 30, 1998.
8. ASSIGNMENT AND SUBLETTING: Lease Paragraph 19 ("Assignment and
-------------------------
Subletting") shall be amended to include the following language:
"Any and all sublease agreement(s) between Tenant and any and all subtenant(s)
(which agreements must be consented to by Landlord, pursuant to the requirements
of this Lease) shall contain the following language:
"If Landlord and Tenant jointly and voluntarily elect, for any reason
whatsoever, to terminate the Master Lease prior to the scheduled Master Lease
termination date, then this Sublease (if then still in effect) shall terminate
concurrently with the termination of the Master Lease. Subtenant expressly
acknowledges and agrees that (1) the voluntary termination of the Master Lease
by Landlord and Tenant and the resulting termination of this Sublease shall
not give Subtenant any right or power to make any legal or equitable claim
against Landlord, including without limitation any claim for interference with
contract or interference with prospective economic advantage, and (2)
Subtenant hereby waives any and all rights it may have under law or at equity
against Landlord to challenge such an early termination of the Sublease, and
unconditionally releases and relieves Landlord, and its officers, directors,
employees and agents, from any and all claims, demands, and/or causes of
action whatsoever (collectively, "Claims"), whether such matters are known or
unknown, latent or apparent, suspected or unsuspected, foreseeable or
unforeseeable, which Subtenant may have arising out of or in connection with
any such early termination of this Sublease. Subtenant knowingly and
intentionally waives any and all protection which is or may be given by
Section 1542 of the California Civil Code which provides as follows: "A
general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with debtor.
The term of this Sublease is therefore subject to early termination.
Subtenant's initials here below evidence (a) Subtenant's consideration of and
agreement to this early termination provision, (b) Subtenant's acknowledgment
that, in determining the net benefits to be derived by Subtenant under the
terms of this Sublease, Subtenant has anticipated the potential for early
termination, and (c) Subtenant's agreement to the general waiver and release
of Claims above.
Initials: Initials:
------------------- -----------------
Subtenant Tenant
In no event will Landlord consent to a sub-sublease of the Premises."
9. LIMITATION OF LIABILITY: Lease Paragraph 39 ("Limitation of Liability")
shall be
Initial: (illegible)
---------------
<PAGE>
Park Sq. II-3
deleted and replaced in its entirety by the following:
"39. LIMITATION OF LIABILITY In consideration of the benefits accruing
-----------------------
hereunder, Tenant and all successors and assigns covenant and agree that, in
the event of any actual or alleged failure, breach or default hereunder by
Landlord:
(i) the sole and exclusive remedy shall be against Landlord's interest in the
Premises leased herein;
(ii) no partner of Landlord shall be sued or named as a party in any suit or
action (except as may be necessary to secure jurisdiction of the partnership);
(iii) no service of process shall be made against any partner of Landlord
(except as may be necessary to secure jurisdiction of the partnership);
(iv) no partner of Landlord shall be required to answer or otherwise plead to
any service of process;
(v) no judgment will be taken against any partner of Landlord;
(vi) any judgment taken against any partner of Landlord may be vacated and set
aside at any time without hearing;
(vii) no writ of execution will ever be levied against the assets of any
partner of Landlord;
(viii) these covenants and agreements are enforceable both by Landlord and
also by any partner of Landlord.
Tenant agrees that each of the foregoing covenants and agreements shall be
applicable to any covenant or agreement either expressly contained in this
Lease or imposed by statute or at common law."
10. HAZARDOUS MATERIALS: Lease Paragraph 47 ("Hazardous Materials") shall
be deleted and replaced in its entirety by the following:
"47. HAZARDOUS MATERIALS: Landlord and Tenant agree as follows with respect
-------------------
to the existence or use of "Hazardous Materials" (as defined herein) on, in,
under or about the Premises and real property located beneath said Premises
and the common areas of the Complex (hereinafter collectively referred to as
the "Property"):
A. As used herein, the term "Hazardous Materials" shall mean any material,
waste, chemical, mixture or byproduct which is or hereafter is defined, listed
or designated under Environmental Laws (defined below) as a pollutant, or as a
contaminant, or as a toxic or hazardous substance, waste or material, or any
other unwholesome, hazardous, toxic, biohazardous, or radioactive material,
waste, chemical, mixture or byproduct, or which is listed, regulated or
restricted by any Environmental Law (including, without limitation, petroleum
hydrocarbons or any distillates or derivatives or fractions thereof,
polychlorinated biphenyls, or asbestos). As used herein, the term
"Environmental Laws" shall mean any applicable Federal, State of California or
local government law (including common law), statute, regulation, rule,
ordinance, permit, license, order, requirement, agreement, or approval, or any
determination, judgment, directive, or order of any executive or judicial
authority at any level of Federal, State of California or local government
(whether now existing or subsequently adopted or promulgated) relating to
pollution or the protection of the environment, ecology, natural resources,
or public health and safety.
B. Tenant shall obtain Landlord's written consent, which may be withheld
in Landlord's discretion prior to the occurrence of any Tenant's Hazardous
Materials Activities (defined below); provided, however, that Landlord's
consent shall not be required for normal use in compliance with applicable
Environmental Laws of customary household and office supplies (Tenant shall
first provide Landlord with a list of said materials use), such as mild
cleaners, lubricants and copier toner. As used herein, the term "Tenant's
Hazardous Materials Activities" shall mean any and all use, handling,
generation, storage, disposal, treatment, transportation, discharge, or
emission of any Hazardous Materials on, in, beneath, to, from, at or about the
Property, in connection with Tenant's use of the Property, or by Tenant or by
any of Tenant's agents, employees, contractors, vendors, invitees, visitors or
its future subtenants or assignees. Tenant agrees that any and all Tenant's
Hazardous Materials Activities shall be conducted in strict, full compliance
with applicable Environmental Laws at Tenant's expense,
Initial: (illegible)
---------------
<PAGE>
Park Sq. II-3
and shall not result in any contamination of the Property or the environment.
Tenant agrees to provide Landlord with prompt written notice of any spill or
release of Hazardous Materials at the Property during the term of the Lease of
which Tenant becomes aware, and further agrees to provide Landlord with prompt
written notice of any violation of Environmental Laws in connection with
Tenant's Hazardous Materials Activities of which Tenant becomes aware. If
Tenant's Hazardous Materials Activities involve Hazardous Materials other than
normal use of customary household and office supplies, Tenant also agrees at
Tenant's expense: (i) to install such Hazardous Materials monitoring, storage
and containment devices as Landlord reasonably deems necessary (Landlord shall
have no obligation to evaluate the need for any such installation or to
require any such installation); (ii) provide Landlord with a written inventory
of such Hazardous Materials, including an update of same each year upon the
anniversary date of the Commencement Date of the Lease ("Anniversary Date");
and (iii) on each Anniversary Date, to retain a qualified environmental
consultant, acceptable to Landlord, to evaluate whether Tenant is in
compliance with all applicable Environmental Laws with respect to Tenant's
Hazardous Materials Activities. Tenant, at its expense, shall submit to
Landlord a report from such environmental consultant which discusses the
environmental consultant's findings within two (2) months of each Anniversary
Date. Tenant, at its expense, shall promptly undertake and complete any and
all steps necessary, and in full compliance with applicable Environmental
Laws, to fully correct any and all problems or deficiencies identified by the
environmental consultant, and promptly provide Landlord with documentation of
all such corrections.
C. Prior to the termination or expiration of the Lease, Tenant, at its
expense, shall (i) properly remove from the Property all Hazardous Materials
which come to be located at the Property in connection with Tenant's Hazardous
Materials Activities, and (ii) fully comply with and complete all facility
closure requirements of applicable Environmental Laws regarding Tenant's
Hazardous Materials Activities, including but not limited to (x) properly
restoring and repairing the Property to the extent damaged by such closure
activities, and (y) obtaining from the local Fire Department or other
appropriate governmental authority with jurisdiction a written concurrence
that closure has been completed in compliance with applicable Environmental
Laws. Tenant shall promptly provide Landlord with copies of any claims,
notices, work plans, data and reports prepared, received or submitted in
connection with any such closure activities.
D. If Landlord, in its sole discretion, believes that the Property has
become contaminated as a result of Tenant's Hazardous Materials Activities,
Landlord in addition to any other rights it may have under this Lease or under
Environmental Laws or other laws, may enter upon the Property and conduct
inspection, sampling and analysis, including but not limited to obtaining and
analyzing samples of soil and groundwater, for the purpose of determining the
nature and extent of such contamination. Tenant shall promptly reimburse
Landlord for the costs of such an investigation, including but not limited to
reasonable attorney's fees Landlord incurs with respect to such investigation,
that discloses Hazardous Materials contamination for which Tenant is liable
under this Lease. Except as may be required of Tenant by applicable
Environmental Laws, Tenant shall not perform any sampling, testing, or
drilling to identify the presence of any Hazardous Materials at the Property,
without Landlord's prior written consent which may be withheld in Landlord's
discretion. Tenant shall promptly provide Landlord with copies of any claims,
notices, work plans, data and reports prepared, received, or submitted in
connection with any sampling, testing or drilling performed pursuant to the
preceding sentence.
E. Tenant shall indemnify, defend (with legal counsel acceptable to
Landlord, whose consent shall not unreasonably be withheld) and hold harmless
Landlord, its employees, assigns, successors, successors-in-interest, agents
and representatives from and against any and all claims (including but not
limited to third party claims from a private party or a government authority),
liabilities, obligations, losses, causes of action, demands, governmental
proceedings or directives, fines, penalties, expenses, costs (including but
not limited to reasonable attorneys', consultants' and other experts' fees and
costs), and damages, which arise from or relate to: (i) Tenant's Hazardous
Materials Activities; (ii) releases or discharges of Hazardous Materials at
the Property, which occur during the Term of this Lease, (iii) any Hazardous
Materials contamination caused by Tenant prior to the Commencement Date of the
Lease; or (iv) the breach of any obligation of Tenant under this Paragraph 47
(collectively, "Tenant's Environmental Indemnification"). Tenant's
Initial: (illegible)
---------------
<PAGE>
Park Sq. II-3
Environmental Indemnification shall include but is not limited to the
obligation to promptly and fully reimburse Landlord for losses in or
reductions to rental income, and diminution in fair market value of the
Property. Tenants Environmental Indemnification shall further include but is
not limited to the obligation to diligently and properly implement to
completion, at Tenant's expense, any and all environmental investigation,
removal, remediation, monitoring, reporting, closure activities, or other
environmental response action (collectively, "Response Actions"). Tenant shall
promptly provide Landlord with copies of any claims, notices, work plans, data
and reports prepared, received or submitted in connection with any Response
Actions.
It is agreed that the Tenant's responsibilities related to Hazardous Materials
will survive the expiration or termination of this Lease and that Landlord may
obtain specific performance of Tenant's responsibility under this Paragraph
47."
11. DELETE INAPPLICABLE PARAGRAPHS: Effective May 1, 1998, Paragraph 1
------------------------------
("Lease Terms Co-Terminous") and Paragraph 2 ("Cross Default") to Amendment No.
1 shall be null and void and of no further force or effect.
12. AUTHORITY TO EXECUTE: The parties executing this Agreement hereby warrant
--------------------
and represent that they are properly authorized to execute this Agreement and
bind the parties on behalf of whom they execute this Agreement and to all of the
terms, covenants and conditions of this Agreement as they relate to the
respective parties hereto.
EXCEPT AS MODIFIED HEREIN, all other terms, covenants, and conditions of said
July 19, 1995 Lease Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Amendment No. 2 to
Lease as of the day and year last written below.
LANDLORD: TENANT:
JOHN ARRILLAGA FIRST VIRTUAL CORPORATION
SURVIVOR'S TRUST a Delaware corporation
By /s/ John Arrillaga By /s/ Anita Neumann
----------------------- ---------------------
John Arrillaga, Trustee
Date: 5/1/98 Anita Neumann
-------------------- -----------------------
Print or Type Name
RICHARD T. PEERY SEPARATE Title: Facilities Operations
----------------------
PROPERTY TRUST
By /s/ Richard T. Peery Date: April 29, 1998
--------------------- ------------------
Richard T. Peery, Trustee
Date: 5/7/98
------
Initial: (illegible)^^
--------------
<PAGE>
Exhibit 21.1
Subsidiaries of Registrant
OPTi Inc.
OPTi Acquisition
OPTi Japan K.K.
Media Chips
OPTi International Inc.
<PAGE>
Exhibit 23.1
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statements
(Form S-8 Nos. 333-39215, 333-26153, 333-17299, 333-15181, 33-80706, and 33-
65756) pertaining to the 1996 Employee Stock Purchase Plan, the 1995
Nonstatutory Stock Option Plan, the 1993 Stock Option Plan, the 1993 Employee
Stock Purchase Plan and the 1993 Director Stock Option Plan of OPTi, Inc. of
our report dated February 14, 2000 with respect to the consolidated financial
statements and schedule of OPTi Inc. included in the Annual Report (Form 10-K)
for the year ended December 31, 1999.
/s/ KPMG
San Jose, California
March 30, 2000
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<PAGE>
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<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 12-MOS 12-MOS
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1998
<PERIOD-START> JAN-01-1999 JAN-01-1998
<PERIOD-END> DEC-31-1999 DEC-31-1998
<CASH> 23,722 56,653
<SECURITIES> 0 4,250
<RECEIVABLES> 1,610 4,032
<ALLOWANCES> 151 800
<INVENTORY> 298 1,192
<CURRENT-ASSETS> 26,422 66,271
<PP&E> 11,932 26,008
<DEPRECIATION> 11,264 21,738
<TOTAL-ASSETS> 28,232 81,575
<CURRENT-LIABILITIES> 6,740 10,480
<BONDS> 0 0
0 0
0 0
<COMMON> 22,494 39,397
<OTHER-SE> (1,312) 29,888
<TOTAL-LIABILITY-AND-EQUITY> 28,232 81,575
<SALES> 22,257 40,003
<TOTAL-REVENUES> 22,257 40,003
<CGS> 14,403 26,712
<TOTAL-COSTS> 39,033 47,335
<OTHER-EXPENSES> 0 0
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 261 312
<INCOME-PRETAX> (5,952) (3,297)
<INCOME-TAX> 59 285
<INCOME-CONTINUING> (6,011) (4,212)
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<CHANGES> 0 0
<NET-INCOME> (6,011) (4,212)
<EPS-BASIC> (0.54) (0.35)
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