<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended SEPTEMBER 30, 1996
--------------------------------------------------
Commission File Number: 033-302068
--------------------------------------------------------
AUTONOMOUS TECHNOLOGIES CORPORATION
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
FLORIDA 59-2554729
------------------------------- ------------------------------------
(State or other Jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
520 N. SEMORAN BLVD., SUITE 180, ORLANDO, FL 32807
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(Address of principal executive offices)
(407) 282-1262
- --------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
Indicated 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 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.
[X] Yes [ ] No
On November 7, 1996, there were 6,749,950 shares of the registrant's $.01
par value Common Stock outstanding.
<PAGE>
AUTONOMOUS TECHNOLOGIES CORPORATION
(A DEVELOPMENT STAGE COMPANY)
INDEX TO FORM 10-Q
<TABLE>
<CAPTION>
PAGE
---------------
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Balance Sheets as of September 30, 1996 and December 31, 1995 3
Statements of Operations for the three months ended September 30, 1996 and 1995,
for the nine months ended September 30, 1996 and 1995, and for the cumulative
period from inception to September 30, 1996 4
Statements of Cash Flows for the nine months ended September 30, 1996 and 1995,
and for the cumulative period from inception to September 30, 1996 5
Notes to Financial Statements 7
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 8
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 12
Item 2. Changes in Securities 12
Item 3. Defaults Upon Senior Securities 12
Item 4. Submission of Matters to a Vote of Security Holders 12
Item 5. Other Information 12
Item 6. Exhibits and Reports on Form 8-K 12
SIGNATURES 14
</TABLE>
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AUTONOMOUS TECHNOLOGIES CORPORATION
-----------------------------------
(A DEVELOPMENT STAGE COMPANY)
BALANCE SHEETS
--------------
<TABLE>
<CAPTION>
(UNAUDITED)
SEPTEMBER 30, DECEMBER 31,
1996 1995
---------------------------------
<S> <C> <C>
ASSETS
------
CURRENT ASSETS:
Cash and cash equivalents $ 1,864,864 $ 492,326
Investments ( Note 3 ) 12,644,080 -
Restricted investment ( Note 4 ) 162,000 -
Prepaid expenses and other assets 59,435 47,527
------------ -----------
Total current assets 14,730,379 539,853
PROPERTY AND EQUIPMENT, net 582,644 235,640
ADVANCE LICENSING FEES 750,000 -
OTHER ASSETS 161,447 24,000
------------ -----------
Total assets $ 16,224,470 $ 799,493
============ ===========
LIABILITIES AND STOCKHOLDERS' EQUITY (DEFICIT )
- -----------------------------------------------
CURRENT LIABILITIES:
Accounts payable $ 432,606 $ 326,527
Accrued expenses 398,975 230,281
Note payable (Note 4 ) 149,431 -
Current portion of obligation under
capital leases 54,834 4,469
Advance from shareholder - 1,000,000
------------ -----------
Total current liabilities 1,035,846 1,561,277
OBLIGATION UNDER CAPITAL LEASES, less
current portion 135,423 22,832
OBLIGATION UNDER STRATEGIC ALLIANCE AGREEMENT 825,000 375,000
CONVERTIBLE NOTE PAYABLE - 2,405,000
------------ -----------
Total liabilities 1,996,269 4,364,109
------------ -----------
STOCKHOLDERS' EQUITY (DEFICIT):
Convertible preferred stock, $1 par value:
Series A, 0 and 3,354 shares authorized; none and
3,354 issued and outstanding at September 30, 1996
and December 31, 1995, respectively - 3,354
Series B, 0 and 1,483 shares authorized;
none and 1,483 issued and outstanding at September
30, 1996 and December 31, 1995, respectively - 1,483
Series C, 0 and 2,927 shares authorized; none and
2,927 issued and outstanding at September 30, 1996
and December 31, 1995, respectively - 2,927
Series D, 0 and 6,819 shares authorized; none and
2,456 issued and outstanding at September 30, 1996
and December 31, 1995, respectively - 2,456
Undesignated series, 1,000,000 shares authorized;
none issued and outstanding - -
Common stock $.01 par value 15,000,000 shares authorized;
6,749,950 shares issued and outstanding at September 30,
1996 and 1,245,000 shares issued and outstanding at
December 31, 1995 67,500 12,450
Additional paid - in capital 28,590,646 4,673,362
Deficit accumulated during the development stage (14,429,945) (8,260,648)
------------ -----------
Total stockholders' equity (deficit) 14,228,201 (3,564,616)
------------ -----------
$ 16,224,470 $ 799,493
============ ===========
</TABLE>
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<PAGE>
AUTONOMOUS TECHNOLOGIES CORPORATION
-----------------------------------
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF OPERATIONS
------------------------
(UNAUDITED)
<TABLE>
<CAPTION>
Cumulative
Three Months Ended Nine Months Ended from Inception
----------------------- ----------------------- (July 23, 1985)
Sept. 30, Sept. 30, Sept. 30, Sept. 30, to Sept. 30,
1996 1995 1996 1995 1996
---------- ---------- ---------- ---------- ---------------
<S> <C> <C> <C> <C> <C>
REVENUES FROM RESEARCH GRANTS $ - $ - $ - $ - $ 3,450,517
OPERATING EXPENSES:
Costs of revenues from research grants - - - - 3,465,596
Clinical trials 477,282 80,227 1,153,525 425,269 2,327,990
Research and development 1,457,410 597,871 2,661,391 1,449,052 6,493,766
Selling and marketing 281,158 65,773 788,839 342,728 1,559,874
General and administrative 457,242 334,125 1,196,489 608,662 3,370,787
Other expenses 431,468 150,000 731,468 225,000 1,106,468
---------- ---------- ---------- ---------- -----------
OPERATING LOSS 3,104,560 1,227,996 6,531,712 3,050,711 14,873,964
OTHER INCOME (EXPENSE):
Interest income 224,693 12,837 379,152 41,758 502,789
Interest expense (11,513) - (16,737) - (53,998)
---------- ---------- ---------- ---------- -----------
LOSS BEFORE INCOME TAXES 2,891,380 1,215,159 6,169,297 3,008,953 14,425,173
INCOME TAXES - - - - (4,772)
---------- ---------- ---------- ---------- -----------
NET LOSS $2,891,380 $1,215,159 $6,169,297 $3,008,953 $14,429,945
========== ========== ========== =========== ===========
LOSS PER SHARE:
Net loss per share $ (0.43) $ (0.98) $ (1.19) $ (1.09)
========== ========== ========== ==========
Weighted average common and common
equivalent shares used in computing
net loss per share 6,749,950 1,245,000 5,164,668 2,770,900
========== ========== ========== ==========
</TABLE>
The accompanying notes are an integral part of these statements.
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<PAGE>
AUTONOMOUS TECHNOLOGIES CORPORATION
-----------------------------------
(A DEVELOPMENT STAGE COMPANY)
STATEMENTS OF CASH FLOWS
------------------------
(UNAUDITED)
<TABLE>
<CAPTION>
NINE MONTHS ENDED From Inception
(July 23, 1985)
September 30, September 30, to September 30,
1996 1995 1996
--------------- ------------- -----------------
<S> <C> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $ (6,169,297) $(3,008,953) $(14,429,945)
Adjustments to reconcile net loss to
net cash used in operating activities:
In-kind services provided by shareholder 312,636 132,089 532,784
Compensation expense related to
employee stock options 169,978 - 550,604
Compensation expense related to
common stock placed in escrow for
future services - 24,050 24,050
Convertible preferred stock issued
for services - - 162,500
Depreciation and amortization 113,265 28,392 318,346
Changes in assets and liabilities:
(Increase)decrease in prepaid
expenses and other assets (164,728) 8,744 (206,255)
Increase in advance licensing fees (750,000) - (750,000)
(Decrease)increase in accounts payable 106,079 231,608 432,606
(Decrease)increase in accrued expenses 168,694 168,806 398,975
Increase in obligation under
strategic alliance agreement 450,000 225,000 825,000
------------ ----------- ------------
Net cash used in operating (5,763,373) (2,190,264) (12,141,335)
activities ------------ ----------- ------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (268,251) (69,216) (680,658)
Restricted cash investment made (162,000) - (162,000)
Investments made (14,144,080) - (14,144,080)
Investment proceeds 1,500,000 - 1,500,000
------------ ----------- ------------
Net cash used in investing activities (13,074,331) (69,216) (13,486,738)
------------ ----------- ------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net proceeds from issuance of
convertible preferred stock 2,181,500 - 6,002,708
Proceeds from issuance of common
stock, net of issuance costs 17,893,000 - 17,980,500
Proceeds from note payable 162,000 - 162,000
Payment of obligations under capital
leases and note payable (28,131) - (29,144)
Advance from shareholder - 1,000,000 1,000,000
Proceeds from issuance of convertible
note payable - - 2,405,000
Proceeds from long-term debt - - 200,000
Repayment of long-term debt - - (200,000)
Stock issuance costs incurred - (69,082) -
Other, net 1,873 - (28,127)
------------ ----------- ------------
Net cash provided by financing
activities 20,210,242 930,918 27,492,937
------------ ----------- ------------
</TABLE>
-continued-
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<TABLE>
<CAPTION>
<S> <C> <C> <C>
NET INCREASE (DECREASE) IN CASH 1,372,538 (1,328,562) 1,864,864
---------- ----------- ----------
CASH, beginning of period 492,326 1,713,520 -
---------- ----------- ----------
CASH, end of period $1,864,864 $ 384,958 $1,864,864
========== =========== ==========
SUPPLEMENTAL DISCLOSURES OF CASH FLOW
INFORMATION:
Noncash transaction -
Equipment acquired under
capital leases $ 178,518 - $ 206,832
Interest paid $ 16,737 - $ 53,998
</TABLE>
The accompanying notes are an integral part of these statements.
-6-
<PAGE>
AUTONOMOUS TECHNOLOGIES CORPORATION
(A DEVELOPMENT STAGE COMPANY)
NOTES TO FINANCIAL STATEMENTS
(UNAUDITED)
SEPTEMBER 30, 1996
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accompanying unaudited financial statements have been prepared in
accordance with generally accepted accounting principles for interim financial
information and with the instructions to Form 10-Q and Article 10 of Regulation
S-X. Accordingly, they do not include all of the information and footnotes
required by generally accepted accounting principles for complete financial
statements. In the opinion of management, all adjustments (consisting of normal
recurring accruals and adjustments) considered necessary for a fair presentation
have been included. Operating results for the three month period ended September
30, 1996, are not necessarily indicative of the results that may be expected for
the year ended December 31, 1996.
Fully diluted loss per share is not presented due to the anti-dilutive effect
(i.e. the effect of reducing loss per share)of the Company's convertible
preferred stock, which converted to common stock upon the closing of the
Company's initial public offering, stock options and warrants.
2. INITIAL PUBLIC OFFERING
On May 7, 1996, the Company completed its initial public offering of common
stock. The Company sold 2,500,000 shares of common stock at $8.00 per share with
net proceeds to the Company of approximately $17,893,000, after underwriters'
discount of $1.4 million and related offering expenses of approximately
$707,000. Concurrent with this event, all of the outstanding convertible
preferred stock and certain debt of the Company were converted to common shares.
3. INVESTMENTS
The Company's investments consist of U.S. Treasury and Agency securities with
maturities beyond three months at the time of purchase. These investments are
being accounted for as "available-for-sale securities" under Statement of
Financial Accounting Standards No. 115. At September 30, 1996, the investments
are stated at approximately quoted market value.
4. RESTRICTED INVESTMENT
The Company has pledged a certificate of deposit (CD) as collateral for a
note payable to a bank. The CD is classified as a restricted investment in the
financial statements.
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<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
This Quarterly Report on Form 10-Q contains forward-looking statements within
the meaning of Section 27Q of the Securities Act of 1933 and Section 1E of the
Securities Exchange Act of 1934. Actual results could differ materially from
those projected in the forward-looking statements as a result of a number of
important factors. For a discussion of important factors that could affect the
Company's results, please refer to the Overview section and financial statement
line item discussions below. Readers are also encouraged to refer to the
Company's registration statement on Form S-1 filed with the Securities Exchange
Commission on May 1, 1996 and it's subsequent quarterly reports preceding this
one.
OVERVIEW
Autonomous Technologies Corporation ("Company") is engaged in the design
and development of the next generation of excimer laser instruments for
surgically correcting myopia and other refractive errors of the human eye, such
as hyperopia and astigmatism. The Company's T-PRK(R) System combines high speed,
laser radar eye tracking with precisely scanned narrow beam shaping, with the
objective of improving refractive surgical outcomes for these conditions over
those achieved with radial keratotomy and earlier generation photo refractive
keratectomy ("PRK") systems.
From its founding in 1985 until late in 1992, the Company worked under
various research grants from the Strategic Defense Initiative, or "Star Wars,"
and under a grant to develop laser radar tracking technology. The Company has
applied this technology to eye tracking and developed its LADARVision(R) eye
tracking capability which allows the T-PRK System to track and compensate for
any sudden involuntary eye movement (saccadic eye movement) during the PRK
procedure.
The Company is a development stage enterprise. Since inception, the Company
has experienced significant operating losses, and as of September 30, 1996, had
an accumulated deficit of approximately $14.4 million. To date, the Company has
had revenues relating only to research grants, which is an endeavor no longer
pursued by the Company. The Company anticipates that its operating losses will
continue for the foreseeable future because it plans to expend substantial
resources in funding clinical trials, sales and marketing activities, commercial
manufacturing, and research and development. The Company expects that research
and development expenses will remain at relatively high levels for the
foreseeable future due to continued development of the system and algorithms for
additional patient indications. Additionally, it expects that both clinical
trial costs and sales and marketing costs will escalate as those programs expand
to meet the Company's business goals. The foregoing forward looking statements
could be affected by certain risks and uncertainties, including: ongoing results
from clinical trials; foreign market acceptance of the T-PRK System; the ability
of the Company to ramp up production to adequate levels; and the outcome of
litigation the Company is pursuing in order to establish certain claims in the
U.S. and Canada.
-8-
<PAGE>
RESULTS OF OPERATIONS
Operating Expenses
Clinical trials expenses were $477,282 and $80,227 in the quarters ended
September 30, 1996 and 1995, respectively. Clinical trials expenses were
$1,153,525 and $425,269 in the nine months ended September 30, 1996 and 1995,
respectively. These increases of 495% and 171% in the quarter and nine months,
respectively, are due to the Company's addition of staff in the clinical
department and the expansion of clinical trials with the opening of its U.S.
clinical trials program (Phase II) in mid-March 1996. The Company's approval
from the FDA to proceed to Phase III clinical trials in the U.S. was granted in
mid-September and the Phase III clinical program commenced in October with the
first such surgeries. Clinical trial expenses are expected to continue to
increase.
Research and development expenses were $1,457,410 and $597,871 in the quarters
ended September 30, 1996 and 1995, respectively. Research and development
expenses were $2,661,391 and $1,449,052 in the nine months ended September 30,
1996 and 1995, respectively. The increase of 144% and 84% in the quarter and
nine months, respectively, primarily reflects both the recent growth of the
company's production organization and the beginning of parts and component
receipts for clinical system builds. Until the production organization begins
producing systems for commercial shipment, the cost of the production staff and
clinical system components will continue to be charged to research and
development. Production costs will continue to increase as the company prepares
for commercial production and customer support.
Selling and marketing expenses were $281,158 and $65,773 in the quarters ended
September 30, 1996 and 1995, respectively. Selling and marketing expenses were
$788,839 and $342,728 in the nine months ended September 30, 1996 and 1995,
respectively. The increase of 327% in the quarter is due primarily to increased
billings for "in-kind" services (non-cash) from CIBA Vision under the terms of
the Company's 1995 Strategic Alliance Agreement (in mid-1995, the company
received a commitment of $1,000,000 worth of contributed sales and marketing
services over three years as part of that Agreement). The increase of 130% in
the nine months represents both increased "in-kind" billings and compensation
expense, primarily to a consultant under a variable compensation plan. Selling
and marketing expenses will increase as the Company prepares to offer the T-
PRK(R) System commercially and increases trade show presence.
General and administrative expenses were $457,242 and $334,125 in the quarters
ended September 30, 1996 and 1995, respectively. General and administrative
expenses were $1,196,489 and $608,662 in the nine months ended September 30,
1996 and 1995, respectively. These increases of 37% and 97% in the quarter and
nine months, respectively, are due to increased staffing, including the hiring
of an Executive Vice President, Chief Operating Officer at the end of the 1995
quarter and a Vice President, Chief Financial Officer during the 1995 quarter.
Additionally the company has incurred other increased costs, such as legal,
accounting and insurance fees as the Company's business scope has expanded. G&A
costs are not anticipated to increase substantially in the near future.
Other expenses were $431,468 and $150,000 in the quarters ended September 30,
1996 and 1995, respectively. Other expenses were $731,468 and $225,000 in the
nine months ended September 30, 1996 and 1995, respectively. The increase in
the quarter is due primarily to patent related-legal costs that began in the
1996 quarter. Other expenses also includes an accrual that began in May 1995 for
the shares that may be issuable in May 1999 to CIBA Vision under the terms of
the 1995 Strategic Alliance Agreement. The shares are to be issued unless
certain requirements, relating to the accumulated 6% commission on revenues the
Company will pay to CIBA Vision, are satisfied.
-9-
<PAGE>
The aforementioned patent related legal costs are due to the fact that the
Company has filed actions against Pillar Point Partners in the U.S. and VISX,
Inc. in Canada seeking a declaratory judgment that the Company does not infringe
on certain patents held by the defendants. VISX has sued the Company in London,
England alleging that the Company infringed on certain European Community
patents held by VISX. The Company is aggressively defending the lawsuit brought
by VISX in London. As a result of these actions, the Company anticipates that
it will incur significant expenses consisting primarily of legal fees, expert
witness fees and related expenses. These expenses could amount to over $100,000
per month for the foreseeable future depending on whether or not these matters
can be settled or when the trials will be held concerning these matters. The
Company believes that it does not infringe on the VISX or Pillar Point Partners
apparatus patents and that it must aggressively assert this position in order to
bring its products to the commercial markets in the United States, Canada and
the European Community.
Interest income and interest expense
Interest income was $224,693 and $12,837 in the quarters ended September 30,
1996 and 1995, respectively. The large increase was due to interest income
earned since mid-May on the proceeds of the Company's initial public offering.
The Company expects to have interest income that will partially offset operating
losses for several fiscal quarters. Interest income for the nine months ended
September 30, 1996 and 1995, respectively, was $379,152 and $41,758. Interest
expense was $11,513 in the quarter ended September 30, 1996 compared with none
in the 1995 quarter. The majority of this new interest expense is due to new
capital lease obligations the Company has assumed since late 1995 to fund
capital expenditures.
Operating and Net Losses
The net effect of the foregoing expense items was that the Company's operating
loss increased to $2,891,380, or by 138%, in the quarter ended September 30,
1996, from $1,215,159 in the quarter ended September 30, 1995. The Company's net
loss increased to $6,169,297 or by 105%, in the nine months ended June 30, 1996,
from $3,008,953 in the nine months ended September 30, 1995.
LIQUIDITY AND CAPITAL RESOURCES
The Company's cash, cash equivalents and investments were approximately
$14,500,000 and $500,000 at September 30, 1996 and December 31, 1995,
respectively. The substantial increase was primarily due to the addition of the
net proceeds of slightly over $20,000,000 from the Company's initial public
offering and sales of preferred stock, offset by a continued use of cash for
operations of approximately $6,000,000. The Company's use of cash resources to
fund operations will continue into the foreseeable future.
As of September 30, 1996, the Company had commitments under blanket and/or long-
term purchase orders for material to build T-PRK Systems totaling over
$1,000,000. In July 1996, the Company executed a lease for a main office and
production facility of 25,000 square feet. The Company anticipates occupying the
facility in March 1997. The lease term is ten (10) years with two five year
renewal options and termination opportunities at years five and seven in the
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<PAGE>
lease. Base rent under this lease for the first year is $237,500, with annual 3%
increases in subsequent years. The lease payments will include rent on up to
$500,000 of tenant improvements, including certain outfitting of production
areas.
The Company's common stock is quoted on NASDAQ under the symbol "ATCI".
-11-
<PAGE>
PART II -- OTHER INFORMATION AUTONOMOUS TECHNOLOGIES CORPORATION
Item 1. Legal Proceedings
-----------------
On October 24, 1996, the Company filed suit in Federal Court of Canada,
Trial Division (Court File No. T-2358-96) against VISX, Inc. VISX, Inc.
is the holder of certain Canadian Letters patents (#1,243,732 and
1,271,813) relating to refractive laser surgery. The complaint seeks a
declaratory judgment of non-infringement or invalidity, or both, with
regard to the Company's T-PRK system.
On October 24, 1996, the Company filed suit in the United States
District Court for the District of Delaware (Civil Action No. 96-515)
against Pillar Point Partners, Summit Technologies, Inc., VISX, Inc.,
Summit Partner, Inc. and VISX Partner, Inc. The defendants hold a
portfolio of U.S. patents (including U.S. patent #4,718,418) relating to
refractive laser surgery. The complaint seeks a declaratory judgment of
non-infringement, invalidity, and/or unenforceability, with regard to
the Company's T-PRK system.
Reference is made to the Company's filing on Form 8-K dated October 25,
1996 for additional information regarding these complaints.
Item 2. Changes in Securities
---------------------
None.
Item 3. Defaults Upon Senior Securities
-------------------------------
Not Applicable
Item 4. Submission of Matters to a Vote of Security Holders
---------------------------------------------------
Not Applicable
Item 5. Other Information
-----------------
Not Applicable
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
(a) Exhibit 3 - Third Amended and Restated Articles of Incorporation
filed with the Florida Department of State on September 10, 1996.
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<PAGE>
(b) Exhibit 10 - Real property lease by and between Orlando TechCenter II and
the Company dated as of June 1, 1996 and made effective with the issuance
of building permits on October 14, 1996.
(c) Exhibit 11 - Statement re: computation of loss per share
(c) Exhibit 27 - Financial Data Schedule (for SEC use only).
(d) Exhibit 99
A current report on Form 8-K, dated July 19, 1996 and simultaneously
filed, was filed pursuant to Item 5. This filing was made in reference to
an announcement of the Company's election of a new director, Dr. Richard
H. Keates, and appointment of a new officer, George H. Pettit. No
financial statements or proforma financial information was filed with this
Form 8-K.
A current report on Form 8-K, dated October 25, 1996 and simultaneously
filed, was filed pursuant to Item 5. This filing was made in reference to
the announcement by the Company that it was commencing litigation against
VISX, Inc. in Canada and Pillar Point Partners in the U.S. regarding
claims of non-infringement and unenforceability of certain intellectual
property held by the respective defendants. No financial statements or
proforma financial information was filed with this Form 8-K.
-13-
<PAGE>
SIGNATURES
Pursuant to the requirement of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AUTONOMOUS TECHNOLOGIES CORPORATION
November 12, 1996
By: /s/ Monty K. Allen
---------------
Monty K. Allen
Vice President and Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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<PAGE>
EXHIBIT 3 TO FORM 10-Q, AUTONOMOUS TECHNOLOGIES CORPORATION
THIRD AMENDED AND RESTATED
--------------------------
ARTICLES OF INCORPORATION
-------------------------
OF
--
AUTONOMOUS TECHNOLOGIES CORPORATION
-----------------------------------
The undersigned, acting in his capacity as the Chairman of the Board of
Directors (the "BOARD") and President of Autonomous Technologies Corporation, a
Florida corporation (the "CORPORATION"), on behalf of the Corporation, has
executed these Third Amended and Restated Articles of Incorporation (these
"THIRD RESTATED ARTICLES"), as adopted by the Board on behalf of the Corporation
on August 14, 1996, without shareholder action, as authorized by Sections
607.1002 and 607.1007 of the Florida Statutes.
These Third Restated Articles amend, restate and supersede in the entirety the
Corporation's Second Amended and Restated Articles of Incorporation, as filed
with the Florida Department of State (the "DEPARTMENT") on March 8, 1996 (the
"SECOND RESTATED ARTICLES"). The Second Restated Articles amended, restated and
superseded in the entirety the Corporation's First Amended and Restated Articles
of Incorporation (the "FIRST RESTATED ARTICLES") as filed with the Department
also on March 8, 1996 immediately prior to the filing of the Second Restated
Articles. The First Restated Articles amended, restated and superseded in the
entirety the Corporation's Articles of Incorporation as filed with the
Department on July 30, 1985 and made effective July 23, 1985 (the "INITIAL
ARTICLES"), as such Initial Articles had been amended by Articles of Amendment
filed with the Department on March 5, 1993, October 1, 1993, May 27, 1994, and
October 5, 1995.
These Third Restated Articles (I) amend the provisions of Article IV of the
Second Restated Articles in order to delete the detailed provisions of the
rights, preferences, privileges, limitations and restrictions of four specified
series of preferred stock, as well as the specific series designations,
contained in the Second Restated Articles, since no shares of preferred stock of
the Corporation are issued and outstanding; (II) amend the current provisions of
Article IV of the Second Restated Articles in order to change the par value for
the authorized shares of the Corporation's preferred stock from $ 1.00 per share
to $ 0.01 per share; and (III) delete other information contained in the Second
restated Articles that is solely of historical interest.
ARTICLE I
NAME AND ADDRESS
The name of the Corporation and the street address of both its initial and
current principal office are:
Autonomous Technologies Corporation
520 North Semoran Boulevard
Orlando, Florida 32807
<PAGE>
ARTICLE II
DURATION
The Corporation began its existence on July 23, 1985, which was the
effective date of the Initial Articles; and the Corporation shall have perpetual
existence.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any activities or business
permitted under the laws of the United States and the State of Florida.
ARTICLE IV
CAPITAL STOCK
The maximum number of shares of its common stock that the Corporation is
authorized to have outstanding at any one time is 15,000,000 shares, $ 0.01 per
share par value (the "COMMON STOCK"). The maximum number of shares of its
preferred stock that the Corporation is authorized to have outstanding at any
time is 1,000,000 shares, $ 0.01 per share par value (the "PREFERRED STOCK").
The consideration to be paid for each share shall be fixed by the board and may
be paid in whole or in part in cash or other property, tangible or intangible,
or in labor or services actually performed or to be performed for the
Corporation, with a value, in the judgment of the directors, equivalent to or
greater than the full value of the shares.
COMMON STOCK. Subject to the rights of the Corporation's preferred stock
------------
and except as otherwise provided by the laws of the State of Florida, the
holders of record of Common Stock shall share ratably in all dividends, payable
in cash, stock or otherwise, and other distributions, whether in respect of
liquidation or dissolution (voluntary or involuntary) or otherwise. The holders
of Common Stock shall be entitled to one vote per share of Common Stock held,
with respect to all matters to be voted on by the shareholders of the
Corporation.
PREFERRED STOCK. The Board is authorized to determine and alter the
---------------
rights, preferences, privileges, limitations and restrictions granted to and
imposed upon the Preferred Stock and any series thereof, and to fix the number
of shares and designation of any series of Preferred Stock. The Board, within
the limits and restrictions stated in any resolutions of the Board originally
fixing the number of shares constituting any series of Preferred Stock, may
increase or decrease (but not below the number of shares of such series then
outstanding) the number of shares of any series subsequent to the issue of
shares of that series.
ARTICLE V
REGISTERED OFFICE AND AGENT
The name of the registered agent and the street address of the registered
office of the Corporation, as heretofore designated and reported to the Florida
Department of State, are:
William A. Grimm, Esq.
Akerman, Senterfitt & Eidson, P.A.
255 South Orange Avenue
Orlando, Florida 32801
<PAGE>
ARTICLE VI
BOARD OF DIRECTORS
The Corporation initially had one director, Rudolph William Frey, 574
Rosemont Street, Orlando, Florida 32807. The Corporation now has and may
continue to have as many directors as specified in the bylaws of the
Corporation, and the number of directors may be increased or decreased, from
time to time, by an amendment to the bylaws of the Corporation in the manner
provided by law, but shall never be less than one.
ARTICLE VII
INCORPORATOR
The name and address of the incorporator, who signed the Initial Articles, are:
Rudolph William Frey
574 Rosemont Street
Orlando, Florida 32807
ARTICLE VIII
DIRECTORS' AUTHORITY TO FIX COMPENSATION
The Board shall have authority to fix the compensation of the officers of
the Corporation.
ARTICLE IX
DIRECTOR CONFLICTS OF INTEREST
1. TRANSACTIONS INVOLVING DIRECTORS. No contract or other transaction
--------------------------------
between the Corporation and one or more of its directors, or between the
Corporation and any other corporation, firm, association, or other entity, in
which one or more of the directors of the Corporation are directors or officers,
or are financially interested, shall either be void or voidable for this reason
alone or by reason alone that such director or directors are present at the
meeting of the Board or of a committee thereof which approves such contract or
transaction, or that his or their votes are counted for such purpose, if:
(a) the fact of such common directorship, officership or financial
interest is disclosed or known to the Board or committee, and
the Board or committee approves such contract or transaction by
a vote sufficient for such purpose without counting the vote or
votes of such interested director or directors; or
(b) such common directorship, officership or financial interest is
disclosed or known to the shareholders entitled to vote thereon,
and such contract or transaction is approved by a vote of such
shareholders; or
(c) the contract or transaction is fair and reasonable as to the
Corporation at the time it is approved by the Board, a committee
thereof, or the shareholders.
2. QUORUM. Common or interested directors may be counted in determining
------
the presence of a quorum at a meeting of the Board or of a committee thereof
which approves such contract or transaction.
<PAGE>
ARTICLE X
INDEMNIFICATION
The Corporation is authorized to indemnify any director or officer, or any
former director or officer, in the manner set forth and provided for in the
bylaws of the Corporation, to the fullest extent permitted by the laws of the
State of Florida.
ARTICLE XI
SHAREHOLDER QUORUM AND VOTING
A majority of the shares entitled to vote, represented in person or in
proxy, shall constitute a quorum at a meeting of shareholders. If a quorum is
present, the affirmative vote of a majority of the shares represented at the
meeting and entitled to vote on the subject matter shall be the act of the
shareholders.
ARTICLE XII
REMOVAL OF DIRECTORS
At a meeting of shareholders called expressly for that purpose, any
director or the entire Board may be removed, with or without cause, by a vote of
the holders of a majority of the shares then entitled to vote at an election of
directors.
IN WITNESS WHEREOF, the undersigned has executed these Third Amended and
Restated Articles of Incorporation on this 26th day of August 1996.
----
/s/ Rudolph William Frey
----------------------------------
Rudolph William Frey
Chairman of the Board of Directors
and President
<PAGE>
EXHIBIT 10 TO FORM 10-Q, AUTONOMOUS TECHNOLOGIES CORPORATION
DISCOVERY TECHCENTER
LEASE
By and between
Orlando TechCenter II, L.L.C.,
as Landlord
and
Autonomous Technologies Corporation,
as Tenant
Date: June 1, 1996
<PAGE>
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Section 1 Fundamental Lease Provisions and Exhibits
1.1 Fundamental Lease Provisions 1
1.2 Effect of Reference to a Fundamental Lease Provision 2
1.3 Exhibits 2
Section 2 Premises and Term
2.1 Premises 2
2.2 Term 2
Section 3 Leasehold Improvements
3.1 Construction of Leasehold Improvements 3
3.2 Ownership of Improvements 4
Section 4 Rent and Other Payments
4.1 Payment 4
4.2 Annual Minimum Rent 4
4.3 Adjustment of Annual Minimum Rent 4
4.4 Additional Rent 4
4.5 (Intentionally Deleted) 5
4.6 Security Deposit 5
Section 5 Utility Services and Maintenance by Landlord 6
Section 6 Insurance
6.1 Insurance to be Maintained by Tenant 6
6.2 Insurance to be Maintained by Landlord 7
6.3 Waiver of Subrogation 7
Section 7 Additional Covenants of Tenant
7.1 Affirmative Covenants 7
7.2 Negative Covenants 10
Section 8 Prohibition Against Mechanic's Liens 10
Section 9 Assignment, Subletting and Encumbrances
9.1 Landlord's Consent Required 10
9.2 Tenant's Application for Consent 10
9.3 (Intentionally Deleted) 10
9.4 Assignment or Sublease Profit 11
9.5 Permission for Tenant to Assign or Sublease 11
Section 10 Assumption of Risk, Indemnification and Hold Harmless
Section 11 Landlord's Liabilities
Section 12 Environmental Provisions
12.1 (Intentionally Deleted) 11
12.2 Hazardous Materials Provisions 11
12.3 Radon Disclosure 14
Section 13 Americans with Disabilities Act 14
Section 14 Destruction and Condemnation
14.1 Fire or Other Casualty 15
14.2 Condemnation 15
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C> <C>
Section 15 Defaults and Remedies
15.1 Events of Default 16
15.2 Remedies 16
15.3 Abandonment of Premises 17
15.4 Waiver of Jury Trial 17
15.5 Holdover by Tenant 17
15.6 Landlord's Right to Cure Defaults 17
15.7 Waiver 18
Section 16 Miscellaneous Provisions
16.1 Notice 18
16.2 Estoppel Certificate 18
16.3 Applicable Law and Construction 18
16.4 Cancellation 18
16.5 Subordination 18
16.6 Landlord's Liability 19
16.7 No Oral Changes 19
16.8 No Representation by Landlord 19
16.9 Parking 19
16.10 Recording of Lease 19
16.11 Notice to Mortgagee and Opportunity to Cure 19
16.12 Recovery of Fees and Costs 20
16.13 Joint Obligation 20
16.14 Time 20
16.15 Brokerage Commission 20
16.16 Landlord's Lien 20
16.17 Quiet Possession 20
16.18 Right of First Refusal 20
16.19 Tenant's Options to Terminate 21
16.20 Options to Extend 21
16.21 Installation of Telecommunication Equipment 22
Exhibits
"A" Site Plan 24
"B" Space Plan 25
"C" Rules and Regulations 26
"D" Legal Description of Property 29
"E" Termination Payment Calculation 30
</TABLE>
<PAGE>
LEASE
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1. Fundamental Lease Provisions and Exhibits.
1.1 Fundamental Lease Provisions.
Date of Lease: June 1, 1996
Commencement Date
of term of Lease: March 1, 1997 [_]Definite [X]Estimated
Landlord: Orlando TechCenter II, L.L.C., a Florida Limited
Liability Company.
Landlord Address: c/o Taurus Investment Group, Inc., 1400 E. Newport
Center Drive, Suite 209, Deerfield Beach, FL 33442.
Tenant: Autonomous Technologies Corporation, a Florida
Tenant Address: corporation. 520 N. Semoran Blvd., Suite 180, Orlando
FL 32807 before occupancy, and thereafter at the
address for the Premises.
Property Name: Discovery TechCenter
Property Location: Lots 6 and 7, Block 20, Phase III of the Central Florida
Research Park. City of Orlando, County of Orange,
Florida
Property Description: See Exhibit "D" attached hereto and incorporated herein.
Suite Leased: Approximately 25,000 square feet (computed in accordance
with BOMA standards) within the Building to be
constructed on the Property, generally in the location
depicted on Exhibit "A" attached hereto.
Lease Term: Ten years.
Leased Area: Approximately 25,000 square feet computed in accordance
with BOMA standards, as computed and determined by
Landlord's architect responsible for the design of the
Building, with the final determination of the square
footage of the Premises to be confirmed by Landlord's
architect in writing (the "Architect's Size
Certification"), addressed to Tenant and Landlord,
prior to Tenant's occupancy of the Premises.
Initial Annual
Minimum Rent: $9.50 per square foot (estimated at $237,500), subject
to adjustment based upon the Architect's Size
Certification.
Security Deposit: $39,584, to be paid by Tenant to Landlord upon Tenant's
execution of the Lease. The Security Deposit shall
accrue interest at the rate of four percent (4%) per
year, for the account of the Tenant, to be disbursed to
or for the benefit of Tenant at the time the Security
Deposit is disbursed.
Tenant's Proportionate
Share: A percentage of the Operating Expenses equal to the
percentage that the Leased Aea bears to the total square
footage of the Building; estimated to e fifty percent
(50%) of Operating Expenses.
Permitted Uses: General office, light manufacturing relating to medical
devices, lasers and related technologies, and
distribution of products manufactured, and for no other
purpose.
1.2. Effect of Reference to a Fundamental Lease Provision.
Each reference in this lease to any of the Fundamental
se Provisions contained in Section 1.1. shall be
construed to incorporate all of the terms provided
under each such fundamental Lease Provision.
1.3. Exhibits. The Exhibits listed in this Section and
attached to this Lease are hereby incorporated in and
made a part this Lease:
<PAGE>
EXHIBIT "A" - Site Plan of the Property
EXHIBIT "B" - Space Plan for Premises
EXHIBIT "C" - Rules and Regulations for Property
2. Premises and Term.
2.1 Premises. The Landlord hereby leases to the Tenant and the Tenant
hires and takes from the Landlord the Suite Leased (hereinafter referred to as
the "Premises") shown on the Site Plan of the Property located in the improved
building(s) on the Property (the "Building"), subject to and with the benefits
of the terms, covenants, conditions and provisions of this Lease, together with
appurtenances specifically granted in this Lease, but reserving to the Landlord
(i) the use of (a) the exterior faces of all exterior walls and (b) the roof;
and (ii) the right (but not the obligation) to install, maintain, use, repair
and replace pipes, ducts, conduits and wire through the Premises and serving
the other parts of the Building. For the purposes of this Lease, the Premises
shall be conclusively deemed to consist of the number of square feet of Leased
Area as set forth in the Architect's Size Certification, provided that in no
event shall the Leased Area of the Premises vary from the approximated 25,000
square feet by more than five percent (5%) without the written consent of
Landlord and Tenant.
2.2 Term. If the Commencement Date of the Term is definite, the Term shall
commence on the Commencement Date, and shall end at Noon on the last day of the
Lease Term, unless sooner terminated as hereinafter provided. If the
Commencement Date of the Term is estimated, the Term of this Lease shall
commence on the earlier of (i) thirty (30) days after the issuance of a notice
(the "Final Notice") given by the Landlord to the Tenant informing the Tenant
that the improvements to the Premises as provided for in Section 3.1. hereof
have been substantially completed, or (ii) the day the Tenant commences its
operations in the Premises, and shall end at Noon on the last day of the Lease
Term, unless sooner terminated as hereinafter provided. Landlord shall use all
reasonable efforts to deliver possession of the Premises to the Tenant on or
before the estimated Commencement Date. Landlord represents to Tenant that the
Final Notice shall be issued not later than March 1, 1997 (the "Final Notice
Deadline"). However, if Landlord, due to causes not related to delays caused by
Tenant, cannot deliver possession of the Premises to Tenant by the Final Notice
Deadline, this Lease shall not be void or voidable, but Tenant shall receive a
credit against the earliest Rent due by Tenant hereunder in the amount of two
months for each one month delay, pro-rated for any partial month of delay (the
"Delay Penalty"). In the event completion of the Building or possession of the
Premises is delayed due to the acts or failure to act of the Tenant, the Delay
Penalty shall not apply to the delay or that portion which is caused by Tenant.
Tenant shall strictly comply with the requirements and timing specified in
Section 3.1 of this Lease, and the Final Notice Deadline shall be extended by
the number of days of delay caused by Tenant or during which Tenant is required
to respond or comply with the provisions of Section 3.1 of this Lease and fails
to do so. If the Commencement Date of the Term is estimated, when the
commencement and expiration dates of the Lease Term have been determined, the
Landlord and the Tenant shall execute, acknowledge and deliver a written
Estoppel Certificate in such form as Landlord shall provide to Tenant specifying
the commencement and expiration dates of the Lease Term, that the Tenant is in
possession of the Premises and is paying the Annual Minimum Rent and all other
charges hereunder, and that the Tenant has no claims, defenses, set-offs or
counter-claims against the Landlord (or, if so, specifying the nature and amount
thereof). Such statement, when so executed, acknowledged and delivered, will be
deemed to be incorporated in and become a part of this Lease.
3. Leasehold Improvements.
3.1. Construction of Leasehold Improvements. The Landlord shall, prior to
the Commencement Date, construct the Building. In addition, prior to the
Commencement Date, Landlord shall improve the Premises as set forth in Exhibit
"B" (Landlord's Work). The Landlord's Work shall consist of improvements to the
Premises to the limit of the Landlord's Cost Limit (hereafter defined) based
upon plans and specifications mutually agreed upon by Landlord and Tenant,
pursuant to which the Premises shall be improved between the unfinished floor
slab surface and the interior roof surface which improvements shall include,
without limitation, wall surfaces defining the confines of the Premises, wall
partitions within the Premises, mechanical systems, plumbing systems and
fixtures, electrical systems, lighting systems and fixtures, ceiling components,
and floor coverings, and which improvements shall exclude, without limitation,
movable furnishings and decorative items. Landlord shall pay for the actual
costs of the Landlord's Work for the construction of the Premises to the
cumulative limit of $20 per square foot of the Premises, plus fees for the
architect's services for the initial space plan and one revision based upon
comments from Tenant and construction documents (collectively, as computed, the
"Landlord's Cost Limit"). Not later than five (5) days after written demand
from Landlord to Tenant with a detailed statement showing amounts totaling the
Landlord's Cost Limit and costs exceeding the Landlord's Cost Limit, Tenant
shall pay to the order of Landlord that portion of the Landlord's work and the
amount of architect's fees and the cost of construction documents which exceeds
the Landlord's Cost Limit. Notwithstanding anything herein to the contrary, in
the event Landlord's budget for the Landlord's Work confirms, in advance of
construction, that the Landlord's Work shall exceed the Landlord's Cost Limit,
Tenant shall deposit with Landlord, prior to the commencement of construction,
the amount of such difference, which Landlord shall apply to the cost of the
Landlord's Work prior to the disbursement of any of Landlord's funds therefore.
Any improvements to the Premises other than those set forth in Exhibit "B" shall
be constructed by the Landlord at the sole cost and expense of the Tenant
("Tenant's Work"). No later than seventy-five (75) business days after the
execution of this Lease by the Tenant: (i) Tenant shall furnish Landlord with a
Preliminary Space Plan for the Premises, in form acceptable to Landlord, drawn
to a scale of one-eighth inch (1/8") equals one (1) food, or (ii) Landlord and
Tenant, or their representatives, shall meet for the purpose of preparing a
Preliminary Space Plan for the Premises. Within ten (10) business days from
Landlord's receipt of the Preliminary Space Plan, Landlord shall prepare and
<PAGE>
furnish to Tenant an estimated cost of construction of Landlord's Work and, if
applicable, Tenant's Work, including in the estimate separate entries for labor
and material. No later than five (5) business days after submission of
Landlord's estimate of construction costs to Tenant, as set forth above, Tenant
shall either agree to the estimate and authorize Landlord to proceed with the
Landlord's Work and Tenant's Work or furnish to Landlord specific objection to
the Preliminary Space Plan and/or the estimates. If Landlord and Tenant agree
to Landlord's estimated construction costs and to a final Space Plan, Landlord
and Tenant shall execute the form attached hereto as Exhibit "B", incorporating
the agreed-upon Space Plan for the Premises, and setting forth the agreed cost
of construction. If Landlord and Tenant are unable to agree upon a Space Plan
or construction cost for Landlord's Work and, if applicable for Tenant's Work
within thirty (30) days from the execution of this Lease by the Tenant, then
Landlord shall have the right to terminate this Lease upon three (3) days
written notice to Tenant and, thereupon, neither Landlord nor Tenant shall have
any further rights or obligations under this Lease. The agreed cost of
construction of Tenant's Work shall be paid by Tenant to Landlord during the
period of construction, pro-rata, comparing the cost of the Landlord's Work to
the cost of the Tenant's Work, provided that Tenant shall pay its share to
Landlord not later than five (5) business days after Landlord's requisition to
Tenant therefore. Landlord shall endeavor to contain the cost of the Landlord's
Work within the Landlord's cost Limit. The construction plans for the Building,
which shall be prepared by Farmer and Baker Architects of Orlando, Florida,
shall, when completed, be initialed as approved by Landlord and Tenant before
construction of the Building commences. Tenant shall fully and diligently
cooperate with Landlord in regard to the approvals and process required to
accomplish the Landlord's Work and, if applicable, the Tenant's Work.
3.2. Ownership of Improvements. All improvements to the Premises shall
remain the property of the Landlord. In no event shall Tenant make any
improvements or alterations to the Premises, including the installation and
removal of trade fixtures, without the prior written consent of Landlord.
4. Rent and Other Payments.
4.1. Payment. All Rent and other charges payable to the Landlord under any
provision of this Lease shall be paid to the Landlord, or as the Landlord may
otherwise designate, in lawful money of the United States at the address of the
Landlord or at such other place as the Landlord in writing may designate,
without any set-off or deduction whatsoever, and without any prior demand
therefor. In addition to the payment of the Rent and other charges, the Tenant
shall also pay to the Landlord, at the time of payment of such Rent and other
charges, all sales, use and/or occupancy taxes payable by virtue of any such
payments. Rent for any period beginning during the term hereof which is for
less than one (1) month shall be a prorated portion of the monthly installment.
4.2. Annual Minimum Rent. The Tenant shall pay the Annual Minimum Rent,
which is subject to adjustments as hereinafter set forth, in equal monthly
installments in advance on the first day of each calendar month included in the
Lease Term. The first monthly installment shall be paid within three (3) days
after the issuance of the Final Notice. Tenant acknowledges that late payment
by Tenant to Landlord of Rent or other sums due hereunder will cause Landlord to
incur costs not contemplated by this Lease, the exact amount of which would be
extremely difficult and impractical to ascertain. Such costs include, but are
not limited to, processing and account charges, and late charges which may be
imposed on Landlord by the terms of any Mortgage encumbering the Premises.
Therefore, in the event any installment of Rent or any sum due hereunder is not
paid within five (5) days after such amount is due, Tenant shall pay to Landlord
as Additional Rent, a late charge equal to five (5%) of each such installment or
other sum or Twenty Five ($25.00) Dollars per month, whichever is greater. A
sum of Fifteen ($15.00) Dollars shall also be due from and paid by Tenant to
Landlord for each returned check, and Tenant shall pay a charge of One Hundred
Fifty Dollars ($150.00) for preparation of a demand for delinquent rent in
addition to all other sums due by Tenant under this Lease. Notwithstanding
anything herein to the contrary, provided Tenant is not then in default
thereunder, Tenant shall be relieved of the obligation to pay the Annual Minimum
Rent during the second and third months of the Term of this Lease (the "Abated
Rent"), subject to the obligation of Tenant to pay the amount of the Abated Rent
in the event and at the time an Event of Default of Tenant occurs hereunder.
4.3. Adjustment of Annual Minimum Rent. The Annual Minimum Rent specified
in Section 1.1. hereof will be increased on each anniversary of the Commencement
Date during the Term by an amount equal to three percent (3%) of the Annual
Minimum Rent for the prior year of the Term.
4.4 Additional Rent. Landlord shall furnish to Tenant, prior to January
31st of each year, Landlord's estimate of Operating Expenses for the coming
year. The estimate shall be determined as though the Building were occupied at
the actual occupancy rate or at an occupancy rate of ninety (90%) percent,
whichever is higher. Tenant shall pay to Landlord, on the first day of each
month as Additional Rent, an amount equal to one-twelfth (1/12) of Tenant's
Proportionate Share of Landlord's estimate of Operating Expenses. Until
Landlord shall furnish such estimate to Tenant, Tenant shall pay to Landlord, on
the first day of each month, an amount equal to the Additional Rent payable
during the preceding month. If there shall be any increase or decrease in
Operating Expenses for any year, whether during or after such year, Landlord
shall furnish to Tenant a revised estimate and the Additional Rend shall be
adjusted and paid or refunded, as the case may be. If the calendar year for
which such estimate is furnished ends after the termination of this Lease, or
begins before the commencement of this Lease, the Additional Rent payable
hereunder shall be prorated to correspond to that portion of the calendar year
occurring within the Term of this Lease. Within one hundred twenty (120) days
after the end of each calendar year, Landlord shall furnish to Tenant an
Operating Statement showing actual Operating Expenses incurred for the preceding
year, adjusted where appropriate to a projected cost as though the Building were
90% occupied for any periods where actual occupancy was less than 90%. If the
Operating Statement
<PAGE>
shows that the sums paid by Tenant exceed Tenant's Proportionate Share of
Operating Expenses, Landlord shall promptly either refund to Tenant the amount
of such excess or credit the amount thereof against subsequent payments of
Additional Rent; and if the Operating Statement shows that the sums paid by
Tenant were less than Tenant's Proportionate Share of the same, Tenant shall pay
the amount of such deficiency within ten (10) days after demand therefor.
Failure or delay of Landlord to submit the written statement referred to herein
shall not waive any rights of Landlord. Notwithstanding the foregoing, the
Annual Minimum Rent shall never be decreased below that amount set forth in
Section 1.1. of this Lease. For purposes of this Lease, "Operating Expenses"
shall mean and include costs and disbursements (other than income taxes) of
every kind and nature which Landlord shall pay or become obligated to pay
because of or in connection with the management, maintenance, repair or
operation of the Building or the Property, including without limitation, real
property taxes, personal property taxes, electricity, steam, water, gas, fuel,
heating, lighting, air conditioning, HVAC system (heating, ventilation and air
conditioning system) replacement, repair and maintenance, window cleaning,
janitorial, insurance (including, without limitation, fire, extended coverage,
liability, workmen's compensation, elevator or any other insurance carried by
Landlord and applicable to the Building or the Property), parking lot
maintenance (including re-striping), landscaping, painting, uniforms, management
fees, supplies, sundries, sales or use taxes on supplies and services, costs of
wages and salaries of all persons engaged in the operation, administration,
maintenance and repair of the Building or the Property, and fringe benefits
(including, without limitation, social security taxes, pension, hospitalization,
welfare or retirement plans, or any other similar or like expenses incurred
under the provisions of any collective bargaining agreement, or any other cost
or expenses which Landlord pays or incurs to provide benefits for employees so
engaged in the operation, administration, maintenance and repair of the Building
or the Property), the charge of any independent contractor who, under contract
with Landlord or its representative, does any of the work of operating,
maintaining or repairing of the Building, legal and accounting expenses
(including, without limitation, such expenses or charges not hereinabove
mentioned which in accordance with generally accepted accounting and management
principles for properties in Florida similar to the Property. Tenant shall also
pay to Landlord, as Additional Rent, when and as billed by Landlord, Tenant's
Proportionate Share of the cost of capital improvements made to the Building by
Landlord after the Lease Date which are intended to result in a reduction of
Operating Expenses or to comply with any law or regulation that was not
applicable to the Building on the Lease Date, amortized over such reasonable
period as Landlord shall determine consistent with generally accepted accounting
principles, together with interest on the unamortized balance at the rate of
interest reasonable available to Landlord for the borrowing of funds for
construction of such capital improvements; provided that Tenant shall only be
responsible for such amortized amounts applicable to the Lease Term. In the case
of any capital improvement which is intended to result in a reduction in
Operating Expenses, the total cost of such capital improvement included in
Operating Expenses shall not exceed the reduction in Operating Expenses
resulting from such capital improvement as reasonable estimated, in accordance
with accepted engineering practices, by Landlord's engineer at the time of
installation.
4.5 (Intentionally deleted).
4.6 Security Deposit. Upon full execution of this lease by Landlord and
Tenant, Tenant shall pay to Landlord a Security Deposit in the amount set forth
in Section 1.1. hereinabove, to be held by Landlord for the faithful performance
by Tenant of Tenant's covenants and obligations hereunder, it being expressly
understood that the Security Deposit shall not be considered as an advance
payment of Rent or as a measure of Landlord's damages in the event of a default
by Tenant. If at any time during the Term hereof, or the Term as it may be
extended, the Tenant shall be in default in payment of Rent or any other sum due
the Landlord as Additional Rent, the Landlord may, but shall not be obligated
to, apply all or a part of the Security Deposit for such payment. The Landlord
may also apply all or part of the Deposit to repair damages to the Premises
during or upon the termination of the tenancy created by this Lease. In such
event, the Tenant shall, on demand, pay to the Landlord a like sum to replenish
the Security Deposit. If Tenant is not in default at the termination of this
Lease, Landlord shall return the Security Deposit to the Tenant. Landlord shall
not be required to keep the Security Deposit separate from its general funds.
Landlord and Tenant agree that Landlord shall be entitled to immediately endorse
and cash Tenant's Rent and Security Deposit check(s) accompanying this Lease.
It is further agreed and understood that such action shall not guarantee
acceptance of this Lease by Landlord, but in the event Landlord does not accept
this Lease, the Tenant's Rent and Security Deposit checks so delivered shall be
refunded in full to Tenant.
5. Utility Services and Maintenance by Landlord. The Landlord shall cause
the necessary mains, conduits and other facilities to be provided to supply
water, sanitary sewer facilities and electricity into the Premises. The Tenant
shall pay directly all charges for electric, telephone and any other utilities
used or consumed in the Premises which are separately metered to the Premises.
A dumpster will be provided for refuse collection and Tenant shall pay Landlord
on a monthly basis in advance Tenant's portion of the water, sewer and refuse
collection charges for the Building as may be estimated by the Landlord. This
charge shall constitute Additional Rent as described in Section 4.4.
hereinabove. In the event that Tenant shall fail or refuse to pay any utility
charges individually metered to Tenant, the Landlord may, but shall not be
obligated to, pay such charges, and Tenant shall reimburse the Landlord on
demand. If Tenant uses water or produces refuse in excess of normal use,
Landlord, in its discretion may allocate Tenant the increased cost for such
services as measured or estimated by Landlord, and Tenant shall pay Landlord, on
demand, any increased cost so measured or estimated. Landlord shall keep or
have kept in good repair and order the exterior of the Building, including
exterior walls, roof and roof deck, and the parking area, exterior lighting,
common areas, structural components and landscaping, and shall make replacements
thereto as Landlord, in its reasonable discretion, determines are necessary or
appropriate. Landlord shall make all repairs which are its responsibility under
this Lease with due diligence and due care in a good and workmanlike manner and
in compliance with all applicable local, state and federal regulations,
ordinances and laws and in making such repairs shall use reasonable efforts to
prevent unnecessary interference with Tenant's use of the Premises. Landlord
shall promptly repair any damage to the Premises caused by the gross negligence
or willful misconduct of Landlord, its agents, servants, employees or
contractors. The portion of the Building intended to be designated as the
exterior shall exclude those portions herein
<PAGE>
covenanted and agreed by Tenant to be kept in repair. For the purpose of this
paragraph, it is expressly understood that plate glass windows shall not be
considered a part of the exterior of the Building; if any plate glass window in
the Premises is damaged or broken Tenant shall be liable for its prompt repair
and replacement.
6. Insurance.
6.1 Insurance to be Maintained by Tenant. Tenant shall maintain, at
Tenant's expense, with companies acceptable to Landlord during the term of this
Lease (i) liability insurance in the form of a Combined Single Limit Bodily
Injury and Property Damage Insurance Policy insuring Landlord and Tenant against
any liability arising out of use, occupancy or maintenance of the Premises and
all other areas appurtenant thereto in an amount not less than One Million
($1,000,000) Dollars per occurrence; and (ii) a policy of all perils property
insurance covering loss or damage to all of Tenant's inventory, fixtures,
furniture and equipment located on the Premises to the extent of at least eighty
(80%) percent of their insurable value without deduction for depreciation.
During the term of this Lease, the proceeds from any such policy or policies of
insurance shall be used for the repair or replacement of the property and
equipment so insured. Landlord will not carry insurance on Tenant's property.
Tenant shall furnish Landlord with a certificate of all insurance policies
required by this Lease evidencing the existence and mounts of such insurance
with loss payable clauses satisfactory to Landlord no later that then (10) days
before the commencement of the Lease Term. Renewals of such policies shall be
deposited with the Landlord no later than ten (10) days prior to the expiration
of the terms of such coverage. If the Tenant fails to comply with such
requirement, the Landlord may, but shall not be obligated to, obtain such
insurance and keep the same in effect, and Tenant shall pay Landlord the premium
costs thereof upon demand.
6.2 Insurance to be Maintained by Landlord. Landlord may obtain and keep
in force, during the Lease Term, the following policies of insurance with loss
payable to Landlord: (i) a policy of Combined Single Limit Bodily Injury and
Property Damage Insurance, insuring Landlord against any liability arising out
of ownership, use, occupancy or maintenance of the Building and Property; (ii) a
policy or policies of insurance covering loss or damage to the Building and
Property, but not Tenant's inventory, fixtures, furniture and equipment, in an
amount not to exceed the full replacement value thereof, as the same exists from
time to time, providing all risk protection against all perils included within
the classifications of fire, extended coverage, vandalism, malicious mischief,
special extended perils ("all risk", as such term in the insurance industry) and
plate glass insurance; (iii) a policy of rental value insurance in an amount not
less than one (1) year's gross rentals for all tenants occupying any portion of
the Building: and (iv) any other insurance the Landlord deems necessary or
appropriate. The cost of the insurance procured by Landlord shall be considered
Additional Rent of which the Tenant shall pay its Proportionate Share pursuant
to Section 4.4. hereof. If Landlord's insurance premiums exceed the standard
premium rates because the nature of Tenant's operation and use of the Premises
results in extra hazardous exposure, then Tenant shall, upon receipt of
appropriate invoices form Landlord, reimburse Landlord for such increase in
premiums. It is understood and agreed between the parties hereto that any such
increase in premiums shall be considered as Annual Minimum Rent due and shall be
included in any lien for rent.
6.3 Waiver of Subrogation. As long as their respective insurers so permit,
Landlord and Tenant hereby mutually waive their respective rights of recovery
against each other for any loss insured by fire, extended coverage and other
property insurance policies existing for the benefit of the respective parties.
Each party shall obtain any special endorsements, if required by their insurer,
to evidence compliance with the aforementioned waiver.
7. Additional Covenants of Tenant.
7.1 Affirmative Covenants. The Tenant covenants, at its expense, at all
times during the Lease Term:
7.1.1. To perform promptly all of the obligations of the Tenant set forth in
this Lease and in the Exhibits and Addenda attached hereto, and to pay when due
the Rent, Additional Rent and all other charges and sums which are to be paid by
Tenant pursuant to this Lease.
7.1.2. To use the Premises only for the Permitted Use and to abide by and
conform to all use restrictions set forth in the certificate of occupancy issued
for the Premises, and in the Rules and Regulations (as the same may be
reasonably amended from time to time in Landlord's discretion), the mortgage(s),
if any, filed of record encumbering the Premises, and all other laws, orders,
permits, rules and regulations of any governmental authority claiming
jurisdiction over the Premises.
7.1.3. To keep the Premises, including equipment, doors, floors, walls and
windows, facilities and fixtures therein, clean, neat and in good order, repair
and condition, and Tenant will not suffer or permit any waste of the Premises.
Tenant shall, at Tenant's expense, keep in clean condition and good repair all
restroom fixtures and facilities within the Premises. If Tenant's acts or
operations other than ordinary use result in obstruction of sanitary sewer
lines, Tenant shall pay to Landlord the expense of Landlord's clearing or repair
of the sewer lines. Landlord represents to Tenant that, to Landlord's actual
knowledge , the heating, ventilation, and air conditioning systems serving the
Premises currently are in good working condition and no change in the condition
is expected to occur prior to the Commencement Date.
7.1.4 To keep the Premises equipped with all safety appliances required in
order to comply with any law, ordinance, order or regulation of any governmental
authority or board of fire underwriters having jurisdiction.
<PAGE>
7.1.5. To defend and hold the Landlord harmless and indemnified form all
injury, loss, claims and damage (including attorneys' fees, paralegals' fees and
disbursements) to any person or property arising from or related to, or
connected with the use or occupancy of the Premises, the conduct or operation of
the Tenant's business, or the Tenant's work at the Premises unless caused by or
resulting from the negligence of Landlord, its agents, servants or employees in
the operation or maintenance of the Premises or the Building. Should Landlord
be named as a defendant in any suit brought against Tenant in connection with or
arising out of Tenant's occupancy of the Premises, Tenant shall pay to Landlord
its costs and expenses incurred in such suit, including reasonable attorneys'
fees and paralegals' fees and costs.
7.1.6. To permit Landlord or the Landlords' agents to enter upon the Premises
at all reasonable times to examine and to make repairs, alterations,
improvements or additions to the Premises or the Building without the same
constituting an eviction of the Tenant, in whole or in part, and all rents shall
in no way abate while such repairs, alterations, improvements or additions are
being made by reason of loss or interruption of business of the Tenant because
of the prosecution of any such work. The Landlord or the Landlord's agents
shall also have the right to enter upon the Premises at reasonable times to show
them to prospective mortgagees or purchasers of the Building. During the ninety
(90) days prior to the expiration of the term of this Lease, the Landlord may
show the Premises to prospective tenants, and the Landlord may also place upon
the Premises the usual notices "For Rent", which notices the Tenant shall permit
to remain thereon without molestation. If, during the last month of the Term,
the Tenant shall have removed all or substantially all of the Tenant's property
from the Premises, the Landlord may immediately enter and alter, renovate and
redecorate the Premises without elimination or abatement of rent or additional
rent or other compensation, and such action shall have no effect upon this
Lease.
7.1.7. To pay on demand all of Landlord's expenses (including, without
limitation, the attorneys' fees, paralegals' fees and costs incurred by
Landlord, whether or not in litigation, including fees and costs incurred at
appellate levels and post-judgment proceedings in litigation) incurred by or on
behalf of Landlord in enforcing the obligations of the Tenant under this Lease,
pursuing any remedy of Landlord under this Lease, or in curing any default by
the Tenant under this Lease.
7.1.8. To forthwith cause to be discharged of record (by payment, bond, order
of a court of competent jurisdiction or otherwise) any mechanic's lien at any
time filed against the Premises, the Building or the Property for any work,
labor services or materials claimed to have been performed at or furnished to
the Premises and ordered by or on behalf of the Tenant (except for Landlord's
work), or anyone holding the Premises through or under the Tenant. If the
Tenant shall fail to cause such lien for work, labor, services or materials
ordered by or on behalf of the Tenant (or anyone holding the Premises through or
under the Tenant) to be discharged upon demand, then, in addition to any other
right or remedy of the Landlord, the Landlord may, but shall not be obligated
to, discharge the same by paying the amount claimed to be due, by bonding or by
any other proceeding deemed appropriate by the Landlord, and the amount paid by
the Landlord, and all costs and all expenses, including reasonable attorneys'
fees and paralegals' fees, incurred by the Landlord in procuring the discharge
of such lien shall be deemed to be an additional assessment. The Landlord's
estate in the Premises shall not be subject to any lien or liability under the
Lien Laws of the State of Florida.
7.1.9. To quit and surrender to the Landlord the Premises upon the expiration
of the Lease Term or other termination of the Lease, broom clean, in good order
and condition, ordinary wear and tear excepted, and at Tenant's expanse, to
remove all property of the Tenant, to repair all damages to the Premises caused
by such removal, and to restore the Premises to the condition in which they were
prior to the installation of the articles so removed. All property not so
removed shall be deemed to have been abandoned by the Tenant and may be retained
or disposed of by the Landlord, as the Landlord shall desire.
7.1.10. To remain fully obligated under this Lease, notwithstanding any
assignment or sublease or any indulgence by the Landlord to the Tenant or to any
assignee or sublessee.
7.1.11. To fully understand and agree that the Landlord shall have no
liability for any loss or damage to Tenant's business or personal property
arising out of, but not limited to, any of the following causes: hurricanes,
excessive rain, roofing defects, bursting of pipes, fire, windstorm, malfunction
of sewer or water system, interruption of utility services or any act or
omission of Landlord or any of Landlord's agents on or about the Premises.
7.1.12. To keep the Premises free from all rubbish, dirt, and debris and to
deposit all trash in trash receptacles to be furnished by Landlord at designated
locations within the common areas of the Property. The Tenant understands that
boxes and trash shall not be stacked outside of the Premises and/or on any
abutting roadway, driveway or parking area.
7.1.13. To provide Landlord with a financial statement of Tenant in form
satisfactory to Landlord upon execution of this Lease by Tenant, and to provide
additional financial statements of Tenant and/or individual financial statements
of shareholders or partners of Tenant, if Tenant is a corporation or
partnership, if so requested by Landlord. Additional financial statements in
form satisfactory to Landlord shall be furnished to Landlord within ten (10)
days of notification.
7.1.14. To furnish to the Landlord any documentation requested by Landlord to
show the status of this Lease or other financial condition of Tenant, provided
that so long as Tenant is a public company Landlord can only require Tenant to
deliver such financial information as is available to the general public.
<PAGE>
7.1.15. To maintain throughout the term of this Lease a sign with Tenant's
name thereon at or near the front entrance to the Premises at a place designated
by Landlord. Such sign shall be of a size, design, material and specification
as shall meet the standards and criteria of Landlord. The written consent and
approval of Landlord shall be obtained prior to the installation of any sign. A
sign for which the written approval of Landlord has not been obtained may be
removed by Landlord at Landlord's discretion.
7.1.16. To timely and directly pay the cost of all utilities, repair
services, maintenance services and replacement expenses relating to or serving
the Premises which are not included within the definition of Operating Expenses.
The costs and expenses which Tenant shall be responsible to timely and directly
pay shall include, without limitation, utilities separately metered for the
Premises, and janitorial services for the interior of the Premises (unless
Landlord determines, in its sole discretion, to include janitorial services for
the interior of the Premises in its annual budget of Operating Expenses, which
determination shall be made annually by Landlord, in which event the use of
janitorial services for that year shall be included as a part of the Operating
Expenses and Tenant shall not be directly responsible therefore).
7.2. Negative Covenants. Tenant covenants at all times during the Lease
Term and such further time as the Tenant occupies the Premises, or any part
thereof:
7.2.1. Not to injure, overload, deface or otherwise harm the Premises or any
part thereof or any equipment or installation therein; not commit any waste or
nuisance; not permit the emission of any objectionable noise or odor; not burn
any trash or refuse in or about the Premises; not make any use of the Premises,
or any part thereof or equipment therein, which is improper, offensive or
contrary to any law or ordinance or to reasonable rules or regulations of the
Landlord as such may be promulgated from time to time; nor park any vehicles so
as to interfere with the use of driveways, walks, roadways, highways, streets or
parking areas.
7.2.2. Not to make any alterations or additions to the Premises or to the
Building, not permit the making of any holes in the walls, ceilings or floors
thereof. All alterations or improvements to the Premises shall be made by
Landlord at Tenant's expense, unless Landlord and Tenant shall otherwise agree
in writing.
8. Prohibition Against Mechanic's Liens. Any liability of the Landlord
or of the Property for any work or improvements made upon the Premises by the
Tenant is hereby expressly prohibited. The interest of the Landlord in and to
the Premises, the Building and the Property shall not be subject to liens for
improvements made in or to the Premises by Tenant or by Tenant's employees,
contractors, subcontractors or agents. Tenant represents and warrants unto
Landlord that any construction contract which Tenant enters into for
construction of improvements in the Premises (which shall occur only following
Landlord's express written consent) shall expressly prohibit the filing of liens
against the Landlord's interest in the Premises, Building and Property.
9. Assignment, Subletting and Encumbrances.
9.1 Landlord's Consent Required. Tenant shall not assign, transfer,
mortgage, pledge, hypothecate or encumber this Lease or any interest therein,
without the prior written consent of Landlord, which consent may be withheld by
Landlord in its sole discretion, and any attempt to do so without such consent
being first obtained shall be voidable and, at Landlord's election, shall
constitute a default of Tenant under this Lease. Tenant shall not sublease all
or any portion of the Premises without the prior written consent of Landlord,
which consent shall not be unreasonable withheld nor delayed. Notwithstanding
anything herein to the contrary, in the event Tenant sells all of its corporate
stock or substantially all of its assets, upon the written request of Tenant to
Landlord to approve the assignment of the Tenant's interest under the Lease,
provided this Lease is in good standing and Tenant is not in default hereunder
as of the date of the request, Landlord shall approve the assignment of the
Tenant's interest under this Lease to the purchaser conditioned upon: (i) The
delivery to Landlord of a current financial statement of the purchaser showing a
net worth and cash flow at least as positive as the net worth and cash flow of
Tenant as disclosed in Tenant's most recent financial statement prior to the
sale to the purchaser; (ii) the delivery to Landlord of evidence, reasonable
acceptable to Landlord, of the sale of Tenant's stock or assets to the
purchaser; (iii) the delivery to Landlord of evidence, reasonable acceptable to
Landlord, of the organization, existence and good standing of the purchaser
entity; (iv) the execution by Tenant and the purchaser, and delivery of an
original to Landlord, of an assignment and assumption agreement inform and
content reasonable acceptable to Landlord pursuant to which the purchaser shall
assume the Tenant's interests under this Lease and be bound by all of the terms
hereof commencing as of the date of the assignment; and (v) the payment to or on
behalf of Landlord of Landlord's reasonable legal fees and costs, not to exceed
$3,500, associated with the consideration and approval of the assignment of the
Tenant's interest hereunder to the purchaser.
9.2. Tenant's Application for Consent. In the event that Tenant desires at
any time to assign this Lease or to sublet the Premises or any portion thereof,
Tenant shall submit to Landlord, in writing, at least sixty (60) days prior to
the proposed effective date of the assignment or sublease; (i) a Notice of
Intention to Assign or Sublease, setting forth the proposed effective date,
which shall be not less than sixty (60) not more than (90) days after the
sending of such notice; (ii) the name of the proposed subtenant of assignee;
(iii) the nature of the proposed subtenant's or assignee's business to be
carried on in the Premises; (iv) the terms and provisions of the proposed
sublease or assignment; (v) a current audited financial statement of the
proposed subtenant or assignee; and (vi) such additional information concerning
the proposed assignment or sublease and proposed assignee or sublessee as the
Landlord may reasonable request.
9.3. (Intentionally deleted.)
<PAGE>
9.4 Assignment or Sublease Profit. In the event of any assignment or
sublease of all or any portion of the Premises, having first been approved by
Landlord, where the rental reserved in the assignment or sublease exceeds the
rental or prorata portion of the rental, as the case may be, for such space
reserved in the Lease, Tenant shall pay Landlord monthly, as Additional Rent, at
the same time as the monthly installments of Rent required hereunder, the excess
of the rental reserved in the assignment or sublease over the rental reserved in
this Lease applicable to the assigned or subleased space.
9.5 Permission for Tenant to Assign or Sublease. The granting of permission
for Tenant to assign or sublease the Premises on any one or more occasions shall
not constitute ipso facto waiver of the requirement imposed hereby that the
written consent of the Landlord be obtained for any subsequent or other
assignment or subletting, and the acceptance of rent checks and the negotiation
of same, or the acceptance of rent payments in any other fashion, from any
assignee or sublessee, whether or not Landlord had knowledge of the assignment
or sublease under which such assignee or sublessee claims, shall not constitute
ipso facto consent by Landlord to such assignment or sublease or constitute a
waiver of the restrictions upon assignment and subletting imposed in this
section.
10. Assumption of Risk, Indemnification and Hold Harmless. Tenant shall
indemnify and hold harmless Landlord, its agents, servants and employees against
and from any and all claims arising from Tenant's use of or the condition of the
Premises or the conduct of its business or from any activity, work or thing
done, permitted or suffered by the Tenant in or about the Premises, and shall
further indemnify and hold harmless Landlord against and from any and all claims
arising form any breach or default in the performance of any obligations on
Tenant's part to be performed under the terms of this Lease, or arising from any
act, neglect, fault or omission of the Tenant, or of its agents or employees,
and from and against all costs, attorneys' fees, expenses and liabilities
incurred in or about such claim or any action or proceeding brought thereon.
Tenant upon notice from Landlord shall defend the same at Tenant's expanse by
counsel reasonably satisfactory to Landlord. Tenant hereby assumes all risk of
damage to property or injury to persons in, upon or about the Premises from any
cause whatsoever, except that which is caused by the failure of Landlord to
observe any of the terms and conditions of this Lease and such failure has
persisted for an unreasonable period of time after written notice from Tenant to
Landlord of such failure.
11. Landlord's Liabilities. Except in the event and to the extent the
Nonresidential Tenancies Part of the Florida Landlord and Tenant Statute
(Florida Statues Chapter 83) (the "Statute") may be superseded by the terms of
this Lease and this Lease is in conflict with the provisions of the Statute,
Tenant shall have the rights and remedies provided to a tenant of non-
residential premises under the Statute. Landlord shall indemnify and hold
Tenant harmless from and against injury, loss, claims and damage (including
attorneys' fees, paralegals' fees and disbursements) arising out of or due to
accidents or injuries in the portions of the Property exterior of the Premises
which are caused by or result from the gross negligence or willful misconduct of
Landlord, its agents, servants or employees in connection with the operation and
maintenance of the portions of the Building exterior of the Premises.
12. Environmental Provisions.
12.1 (Intentionally Deleted.)
12.2 Hazardous Materials Provisions.
12.2.1 Hazardous Materials Covenants. Tenant shall at all times during the
Lease Term comply with the following requirements: (a) Tenant shall not cause,
permit or suffer any Hazardous Material (as hereafter defined) to be brought
upon, treated, kept, stored, disposed of, discharged, released, produced,
manufactured, generated, refined or used upon, about or beneath the Premises or
the Property by Tenant, its commonly used in the day to day operation of the
Premises by Tenant in compliance with all Environmental Requirements (as
hereafter defined). (b) Tenant agrees that all operations or activities upon,
or any use or occupancy of the Premises, or any portion thereof, by Tenant or
any Tenant Parties shall be in all respects in compliance with all Environmental
Requirements then governing or in any way relating to the generation, handling,
manufacturing, treatment, storage, use, transportation, release, spillage,
leakage, dumping, discharge or disposal of any Hazardous Materials. (c) Tenant
shall, at its sole costs and expense, promptly take all actions required by any
federal, state or local governmental agency or political subdivision to mitigate
Environmental Damages (as hereafter defined) which arise directly or indirectly
from or in connection with the presence, suspected presence, release or
suspected release of any Hazardous Material in or into the air, soil, surface
water or groundwater at, on, about, under or within the Premises or Property, or
any portion thereof, by Tenant or Tenant Parties. Such actions shall include,
if required by any such governmental agency or political subdivision, but not be
limited to, the investigation of the environmental condition of the Premises,
the Building or any portion of the Property adversely affected by Tenant's
breach of any of the provisions of this paragraph (the "Affected Property"), and
the preparation of and performance of nay cleanup, remediation, containment,
operation, maintenance, monitoring or restoration work, whether on or off of the
Affected Property. Tenant shall take all actions required by any federal, state
or local governmental agency or political subdivision to restore the Affected
Property to the condition existing prior to the introduction of Hazardous
Material upon, about or beneath the Affected Property in accordance with the
standard of remediation imposed by Applicable Law. Tenant shall proceed
continuously and diligently with such investigatory and remedial actions,
provided that in all cases such actions shall be in accordance with all
applicable requirements of governmental entities. Any such actions shall be
performed in a good, safe and workmanlike manner by one or more contractors
selected by Tenant, and approved in advance in writing by Landlord, and under
the supervision of a Consulting engineer, selected by Tenant and approved in
advance in writing by Landlord, and shall minimize any impact on the business
conducted at the Property. Tenant shall pay all costs in connection with such
investigatory and remedial activities, including but
<PAGE>
not limited to the charges of such contractor(s) and consulting engineer, all
power and utility costs, any and all taxes or fees that may be applicable to
such activities, and Landlord's reasonable attorneys' fees, paralegals' fees and
costs incurred in connection with monitoring or review of such investigatory and
remedial activities. Tenant shall promptly provide to Landlord copies of testing
results and reports that are generated in connection with the above-mentioned
activities. Promptly upon completion of such investigation and remediation,
Tenant shall permanently seal or cap all monitoring wells and test holes to
industrial standards in compliance with Applicable Laws, remove all associated
equipment, and restore the Affected Property to the maximum extent possible,
which shall include, without limitation, the repair of any surface damage,
including paving, caused by such investigation or remediation hereunder. (d) If
Tenant shall become aware of or receive notice or other communication concerning
any actual, alleged, suspected or threatened violation of Environmental
Requirements, or liability of Tenant for Environmental Damages in connection
with the Premises or activities of any person thereon, then Tenant shall deliver
to Landlord, within ten (10) days of the receipt of such notice or communication
by Tenant, a written description of said violation, liability, correcting
information or actual or threatened event or condition, together with copies of
any documents evidencing same. Receipt of such notice shall not be deemed to
create any obligation on the part of Landlord to defend or otherwise respond to
any such notification. (e) Tenant shall promptly provide to landlord the results
of any tests and copies of all registration permits regarding any underground
storage tanks located on the Premises and Tenant shall comply with same. (f) In
the event of any default under this Lease, Landlord shall have the right in its
sole and absolute discretion, but not the duty, to enter upon the Premises at
any reasonable time, at the expense of Tenant, to conduct an inspection thereof,
including invasive tests, and the activities conducted thereon to determine
compliance with all Environmental Requirements and the existence of any
Environmental Damages as a result of the condition of the Premises or any
surrounding properties and activities thereon. Tenant hereby grants to Landlord,
and the agents, employees, consultants and contractors of Landlord, the right to
enter upon the Premises and to perform such tests thereon or therein as are
necessary to conduct such reviews and investigations in accordance with the
preceding sentence. Landlord shall use its best efforts to minimize interference
with the business of Tenant and to restore the Premises to its previous
condition, but Landlord shall not be liable for any interference caused thereby
or any failure to restore in Landlord reasonable determines that it is not
economically practicable.
12.2.2 Hazardous Materials Definitions. The following terms shall have the
meanings ascribed to them: (a) "Environmental Damages" means all claims,
judgments, damages (including, without limitation, punitive damages), losses,
penalties, fines, liabilities (including strict liability), encumbrances, liens,
costs, and expenses of investigation and defense of any claim, whether or not
such is ultimately defeated, and of any settlement or judgment, of whatever kind
or nature, contingent or otherwise, matured or unmatured, foreseeable or
unforeseeable, including without limitation, reasonable attorneys' fees and
paralegals' fees and disbursements and consultants' fees, any of which are
incurred at any time during or after the Lease Term directly or indirectly from
or in connection with the presence, suspected presence, release or suspected
release of any Hazardous Material in or into the air, soil, surface water or
groundwater at, on, about, under or within the Premises, Building or Property,
or any portion thereof, or any surrounding properties, by Tenant or Tenant
Parties and including, without limitation: (i) Damages for personal injury, or
injury to the Premises, Building or Property or natural resources occurring upon
or off of the Property, foreseeable or unforeseeable, including, without
limitation, lost profits, consequential damages, the cost of demolition and
rebuilding of any improvements on the Property, interest and penalties,
including but not limited to, claims brought by or on behalf of employees of
Tenant, with respect to which Tenant waives, for the benefit of Landlord only,
any immunity to which Tenant may be entitled under any industrial or worker's
compensation laws; (ii) diminution in the value of the Property or any part
thereof, and damages for the loss of or restriction on the use of or adverse
impact on the marketing of rentable or usable space or of any amenity of the
Property; (iii) fees incurred for the services of attorneys, consultants,
contractors, experts, laboratories and all other costs incurred in connection
with the investigation, cleanup or remediation of such Hazardous materials or
violation of Environmental Requirements including, but not limited to, the
performance of any cleanup, remedial, removal, abatement, containment, closure,
restoration or monitoring work required by any federal, state or local
governmental agency or political subdivision, or reasonable necessary to restore
the Affected Property in accordance with the standard of remediation imposed by
Applicable Law or otherwise expended in connection with such conditions, and
including, without limitation, any attorneys' fees, paralegals' fees and costs
incurred in enforcing this Lease or collecting any sums due hereunder; and (iv)
liability to any person or entity to indemnify such person or entity for costs
expended in connection with items described in subpart (iii) next above. (b)
"Environmental Requirements" means all applicable resent and future statutes,
regulations, rules, ordinances, codes, licenses, permits, orders, approvals,
plans, authorizations, concessions, franchises and similar items, of all
governmental agencies, departments, commissions, boards, bureaus or
instrumentalities of the United States, states and political subdivisions
thereof and all applicable judicial and administrative and regulatory decrees,
judgments and orders relating to the protection of human health or the
environment including, without limitation: (i) all requirements, including but
not limited to, those pertaining to reporting, licensing, permitting,
investigation and remediation of emissions, discharges, releases or threatened
releases of Hazardous Materials, or relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials; and (ii) all requirements pertaining to the protection of
the health and safety of employees or the public. (c) "Hazardous Materials"
means any substance: (i) the presence of which requires investigation or
remediation under any federal, state or local statute, regulation, rule, or
ordinance or amendments thereto including, without limitation, the Comprehensive
Environmental Response Compensation and Liability Act (42 U.S.C. Section 9601 et
seq.) or the Resource Conversation and Recovery Act (42 U.S.C. Section 6901 et
seq.); or (iii) which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic, or otherwise hazardous and is or becomes
regulated by any governmental authority, agency, department, commission, board,
agency or instrumentality of the United States, any State of the United States,
or any political subdivision thereof; or (iv) the presence of which on the
Property causes or threatens to cause a nuisance upon the Property or to
adjacent properties or poses or threatens to pose a hazard to the Property or
the health or safety of persons on or about the Property; of (v) which contains,
without limitation, gasoline, diesel fuel or other petroleum hydrocarbons or
volatile organic compounds; or (vi) which contains, without limitation,
polychlorinated biphenyls
<PAGE>
(PCB's) or asbestos or asbestos-containing materials or urea formaldehyde foam
insulation; or (vii) which contains or consists of, without limitation, radon
gas.
12.2.3 Tenant's Representations and Warranties in Regard to Hazardous
Materials. Tenant represents and warrants as follows: (a) Tenant shall obtain
any and all permits, licenses and other authorizations which may be required
under all Environmental Requirements, including laws relating to emissions,
discharges, release or threatened releases of Hazardous Materials into the
environment (including ambient air, surface water, ground water or land) or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Materials; (b) Tenant
shall not construct, place, deposit, store, dispose of nor locate on the
Premises or the Property, any PCB's, transformers, capacitors, ballasts, or
other equipment which contains dielectric fluid containing PCB's, or any
asbestos or asbestos-containing materials or any insulation material containing
urea formaldehyde or any radon gas.
12.2.4 Indemnification. Tenant agrees to indemnify, reimburse, defend,
exonerate, pay and hold harmless: (a) Landlord, its affiliates and any other
person or entity which holds or which may hereafter have an interest in this
Lease; and (b) the directors, officers, shareholders, partners, employees and
agents of Landlord and any other person or entity which has or which may
hereafter hold an interest in this Lease, form and against any and all
Environmental Damages arising in any manner whatsoever out of the violation of
or non-compliance with any Environmental Requirements, or the breach of any
warranty or covenant or the inaccuracy of any representation of Tenant contained
in this Lease.
12.2.5 Survival. Each of the covenants, representations and warranties of
Tenant contained in this Section 12 of this Lease shall survive the termination
or earlier expiration of this Lease.
12.2.6 Landlord's Environmental Disclosure. Based solely upon a Phase I
Environmental Site Assessment Report dated January 31, 1996 under Project No.
96-1012E prepared by Raad-Tannous Engineering Group, Inc. of Orlando, Florida,
Landlord discloses to Tenant that Landlord is not aware of the existence of any
Hazardous Materials on or in the Property.
12.3 Radon Disclosure. RADON GAS: Radon is a naturally occurring
radioactive gas that, when it has accumulated in a building in sufficient
quantities, may present health risks to persons who are exposed to it over time.
Levels of radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon testing
may be obtained from the Tenant's County Public Health Unit.
13. Americans with Disabilities Act. Landlord and Tenant acknowledge
that the Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et
seq.) and regulations and guidelines promulgated thereunder, as all of the same
may be amended from time to time (collectively referred to herein as the "ADA")
establish requirements under Title III of the ADA ("Title III") pertaining to
business operations, accessibility and barrier removal, and that such
requirements may be unclear and may or may not apply to the Premises, Building
or the Property depending upon, among other things: (i) whether Tenant's
business operations are deemed a "place of public accommodation" or a
"commercial facility", (ii) whether compliance with such requirements is
"readily achievable" or "technically infeasible", and (iii) whether a given
alternative affects a "primary function area" or triggers so-called "path of
travel" requirements. Landlord and Tenant acknowledge and agree that Tenant has
been or will be provided an opportunity to inspect the plans and specifications
for the Premises, the Building and Property sufficient to determine whether or
not the Premises, Building and Property will deviate in any manner from the ADA
Accessibility Guidelines ("ADAAG") or any other requirements under the ADA
pertaining to the accessibility of the Premises, Building or Property. Tenant
will be independently obligated to review the plans and specifications for the
Landlord's Work and to independently determine that such plans and
specifications are in conformance with ADAAG and any other requirements of the
ADA and all other laws, rules and regulations applicable to the Landlord's Work.
Tenant further acknowledges and agrees that to the extent that Landlord
prepares, reviews or approves any of those plans and specifications, such action
shall in no event be deemed any representation or warranty that the same comply
with any requirements of the ADA. Notwithstanding anything to the contrary in
this Lease, Landlord and Tenant agree to allocate responsibility for Title III
compliance as follows: (a) Tenant shall be responsible for all Title III
compliance (other than "path of travel" requirements which shall be addressed as
provided in (b) next below) and costs in connection with the Premises, including
structural work, if any, and including any leasehold improvements or other work
to be performed in the Premises under or in connection with this Lease, and (b)
Landlord shall perform, and Tenant shall be responsible for the cost of, any so-
called Title III "path-of-travel" requirements triggered by any construction
activities or alteration in the Premises. Except as set forth above with
respect to Landlord's Title III obligations, Tenant shall be solely responsible
for all other requirements under the ADA relating to the Tenant or any
affiliates or persons or entities related to the Tenant or the Premises,
including, without limitation, requirements under Title I of the ADA pertaining
to Tenant's employees.
14. Destruction and Condemnation.
14.1. Fire or Other Casualty. In the event of (i) a partial destruction of
the Premises or the Building during the Lease Term which requires repairs to
either the Premises or the Building, or (ii) the Premises or the Building being
declared unsafe or unfit for occupancy by any authorized public authority for
any reason other than Tenant's act, use or occupation, which declaration
requires repairs to either the Premises or Building, Landlord may elect to
commence repairs within sixty (60) days thereof, but such partial destruction
shall in no way serve to annul or void this Lease, except that Tenant shall be
entitled to a proportionate reduction of Rent while such repairs are being
<PAGE>
made if the Premises are rendered untenantable thereby. The proportionate
reduction is to be based upon the extent to which the making of repairs shall
interfere with the business carried on by Tenant in the Premises. In the event
that Landlord does not elect to commence repairs within sixty (60) days, or
repairs cannot be made under current laws and regulations, either party may
terminate this Lease upon ten (10) days written notice. A total destruction,
including any destruction required by any authorized governmental authority, of
either the Premises or the Building shall terminate this Lease. Landlord shall
not be required to repair any property installed in the Premises by Tenant not
to repair any portion of the Premises for which insurance proceeds are not paid
to Landlord. Tenant waives any right under applicable laws inconsistent with
this paragraph and, in the event of a destruction, agrees to accept any offer by
landlord to provide Tenant with comparable space within the parcel in which the
premises are located on the same terms as this Lease. Nothing herein shall
authorize abatement or reduction of rent because of total or partial destruction
arising out of the negligent or willful acts of omission or commission by
Tenant.
14.2. Condemnation. If any part of the Premises shall be taken or
condemned for a public or quasi-public use, and a part thereof remains which is
suitable for occupation hereunder, this Lease shall, as to the part so taken,
terminate as of the date title shall vest in a condemnor, and the Rent payable
hereunder shall be adjusted so that the Tenant shall be required to pay for the
remainder of the Term only such portion of such Rent as the number of square
feet in the part remaining after the condemnation bears to the number of square
feet in the entire Premises at the date of condemnation; but, in such event,
Landlord shall have the option to terminate this Lease as of the date when title
to the part so condemned vests in a condemnor. If all or any part of the
Premises shall be taken or condemned so that there does not remain a portion
suitable for occupation, this Lease shall thereupon terminate. If all or a part
of the Premises be taken or condemned, all compensation awarded upon such
condemnation or taking shall go to the Landlord and the Tenant shall have no
claim thereto, and the Tenant hereby irrevocable assigns and transfers to the
Landlord any right to compensation or damages to which the Tenant may be
entitled during the Term hereof by reason of the condemnation of all, or a part,
of the Premises.
15. Defaults and Remedies.
15.1. Events of Default. The following events shall be deemed to be events
of default by Tenant under this Lease: (i) Tenant shall fail to pay any rent or
any other sums of money due hereunder and such failure shall continue for a
period of seven (7) days after the date such sum is due (provided, however, that
the first time (and only the first time) each year during the Lease Term that
Tenant fails to pay rent when due, Landlord shall provide written notice to
Tenant of such failure (the "Delinquent Rent Notice"), and Tenant shall not be
in default due to its failure to timely pay rent the first time during each year
of the Term unless Tenant fails to pay the rent due within seven (7) days after
the date of the Delinquent Rent Notice); (ii) Tenant shall fail to cure any
breach or violation of any non-monetary obligation of Tenant hereunder within
seven (7) days after the date on which Landlord issues a notice detailing the
breach or violation of Tenant (the "Non-Monetary Breach Notice"), provided,
however, that if the cure of such breach or violation cannot reasonable be
accomplished within seven (7) days after the date of the Non-Monetary Breach
Notice, the time period for cure shall be extended to such time as shall
reasonable be required to cure the breach or violation conditioned upon Tenant
issuing a written notice to Landlord within seven (7) days after the date of the
Non-Monetary Breach Notice detailing what measures Tenant intends to undertake
to cure the breach or violation with Tenant accomplishing the cure of the breach
or violation within a reasonable period of time thereafter; (iii) the leasehold
hereunder demised shall be taken on execution or other process of law in any
action against Tenant; (iv) Tenant shall fail to promptly move into, take
possession of, and operate its business on the Premises when the Premises are
ready for occupancy or shall cease to do business in or abandon any substantial
portion of the Premises; (v) Tenant shall become insolvent or unable to pay its
debts as they become due, or Tenant notifies Landlord that it anticipates either
condition; (vi) Tenant takes any action to, or notifies Landlord that Tenant
intends to file a petition under any section or chapter of the United States
Bankruptcy Code and rules and regulations promulgated thereunder, as amended, or
under any similar law or statute of the United States or any state thereof, or a
petition shall be filed against Tenant under any such statute or Tenant or any
creditor of Tenant notifies Landlord that it knows such a petition will be filed
or Tenant notifies Landlord that it expects such a petition to be filed; (vii) a
receiver or trustee shall be appointed for Tenant's leasehold interest in the
Premises or for all or a substantial part of the assets of Tenant.
15.2. Remedies. In the event of any default or breach by Tenant, and if
such breach shall have continued for a period of three (3) days after the
Landlord shall have given written notice by certified or registered mail to the
Tenant at its office address set forth in Section 1.1. hereof, then, in such
event, Landlord shall have the option to pursue any one or more of the following
remedies:
15.2.1. Landlord shall have the right to cancel and terminate this Lease and
dispossess Tenant.
15.2.2. Landlord shall have the right without terminating or canceling this
Lease to declare all amounts and rents due under this Lease for the remainder of
the existing Lease Term (or any applicable extension or renewal thereof) to be
immediately due and payable, and thereupon all rents and other charges due
hereunder to the end of the initial term or any renewal term, if applicable,
shall be accelerated.
15.2.3. Landlord may elect to enter and repossess the Premises and relet the
Premises for Tenant's account, holding Tenant liable in damages for all expenses
incurred in any such reletting and for any difference between the amount of
rent received from such reletting and that due and payable under the terms of
this Lease.
<PAGE>
15.2.4. Landlord may enter upon the Premises and do whatever Tenant is
obligated to do under the terms of this Lease. Tenant agrees to reimburse
Landlord on demand for any expenses which Landlord may incur in effecting
compliance with Tenant's obligations under this Lease and Tenant further agrees
that Landlord shall not be liable for any damages resulting to the Tenant from
such action.
15.2.5. All such remedies of Landlord shall be cumulative, and, in addition,
Landlord may pursue any other remedies that may be permitted by law or in
equity. Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to be a
waiver of such default.
15.2.6. In addition to the specific remedy or remedies elected by Landlord in
the event of Tenant's default, Landlord shall be entitled to recover from Tenant
all damages incurred by Landlord by reason of Tenant's default, including but
not limited to, the cost of recovering possession of the Premises; expenses of
reletting, including necessary renovations and alterations of the Premises; all
court costs and reasonable attorneys' fees and paralegals' fees and other costs
and expenses; and that portion of the leasing commission paid by Landlord
applicable to the unexpired term of this Lease. Unpaid installments of rent or
other sums shall bear interest from the due date thereof at the maximum lawful
rate.
15.2.7. The remedies provided to Landlord shall be enforceable to the maximum
extent not prohibited by applicable law, and the unenforceability of any portion
hereof shall not thereby render unenforceable any other portion.
15.3. Abandonment of Premises. Landlord and Tenant agree that, for the
purposes of this Lease, abandonment of the Premises shall have occurred if (i)
the Landlord reasonably believes that the Tenant has been absent from the
demised premises for a period of thirty (30) consecutive days, and (ii) the Rent
is not current and (iii) ten (10) days have elapsed since service of a three (3)
day notice in writing by Landlord upon Tenant requiring payment of Rent or the
possession of the Premises.
15.4. Waiver of Jury Trial. Landlord and Tenant hereby waive trial by jury
in any action, proceeding or counter-claim brought by either of the parties
hereto against the other on any matter arising out of or in any way connected
with this Lease.
15.5. Holdover by Tenant. If Tenant should remain in possession of the
Premises after the expiration of the Lease Term, then such holding over shall be
construed as a tenancy at sufferance at an Annual Minimum Rent double that set
forth in Section 1.1. hereof, and subject to all other conditions, provisions
and obligations of this Lease insofar as the same are applicable to a tenancy at
sufferance.
15.6. Landlord's Right to Cure Defaults. The Landlord may, but shall not
be obligated to, cure at any time, without notice, any default by the Tenant
under this Lease; and, whenever the Landlord so elects, all costs and expenses
incurred by the Landlord in curing such default, including, without limitation,
reasonable attorney's fees, together with interest on the amount of costs and
expenses so incurred at the maximum lawful rate, shall be paid by the Tenant to
the Landlord on demand and shall be recoverable as Additional Rent.
15.7. Waiver. The waiver by Landlord of any breach of any term, covenant
or condition herein contained shall not be deemed to be a waiver of any other or
any subsequent or continuing breach of the same. The subsequent acceptance or
Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any term, covenant or condition of this Lease, other than
the failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
Rent.
16. Miscellaneous Provisions.
16.1. Notice. Any notice or demand from the Landlord to the Tenant or from
the Tenant to the Landlord shall be in writing and shall be deemed duly
delivered if mailed by certified mail, return receipt requested, addressed, if
to the Tenant, at the address of the Tenant or such other address as the Tenant
shall have last designated by written notice to the Landlord; if to the
Landlord, at the address of the Landlord or such other address as the Landlord
shall have last designated by written notice to the Tenant. Notices shall be
deemed delivered when mailed in the manner prescribed above.
16.2. Estoppel Certificate. The Tenant agrees that it will within ten (10)
days following written notice by the Landlord, execute, acknowledge and deliver
to the Landlord a statement in writing certifying that this Lease is unmodified
and in full force and effect, or setting forth any such modifications, and the
dates to which the Rent and all other payments due hereunder from the Tenant
have been paid, the amount of the Security Deposit then remaining and the amount
of any payments paid by Tenant in advance, and stating whether or not, to the
best knowledge of Tenant, the Landlord is in default in the performance of any
covenant, agreement or condition contained in this Lease and, if so, specifying
each such default. The failure of the Tenant to execute, acknowledge and
deliver to the Landlord a statement in accordance with the provisions of this
Section will constitute a breach of this Lease by the Tenant.
16.3. Applicable Law and Construction. The laws of the State of Florida
shall govern the validity, performance and enforcement of this Lease. The
covenants and undertakings contained herein are independent, not dependent
covenants, and the invalidity or unenforceability of any provision of this Lease
shall not affect or impair any other provision. All negotiations,
considerations,
<PAGE>
representations and understandings between the parties are incorporated into
this Lease. The headings of the several articles and sections contained herein
are for convenience and do not define, limit or construe the contents of such
articles or sections.
16.4. Cancellation. If the Landlord shall be unable, after diligent
efforts, to procure the necessary governmental approvals and building permits to
construct and complete the Landlord's Work and/or Tenant's Work, Landlord shall
notify Tenant of such fact, and upon such notice to Tenant, this Lease shall
cease and be deemed canceled as of the date of the notice. Upon any such
cancellation, this Lease shall be of no further force and effect and neither
party shall have any right or claim hereunder against the other, except that the
Landlord shall be required to return to the Tenant, upon such cancellation, the
Security Deposit to the extent then paid. Tenant shall not be entitled to
interest on such sum.
16.5. Subordination.
16.5.1. This Lease is subject and subordinate to any ground lease, mortgage,
deed of trust, or any other hypothecation for security now or hereafter placed
upon the Property, and to any and all advances on the security thereof, and to
all renewals, modifications, consolidations, replacements and extensions
thereof. In confirmation of such subordination, the Tenant shall promptly
execute any certificate that the Landlord may request. The Tenant hereby
constitutes and appoints the Landlord as the Tenant's attorney-in-fact to
execute any such certificate or certificates for and on behalf of the Tenant.
16.5.2. At the option of the Landlord, or any successor Landlord or the
holder of any mortgage affecting the Premises, the Tenant agrees that neither
the foreclosure of a mortgage affecting the Premises nor the institution of any
suit, action, summary or other proceeding against the Landlord herein, or any
successor Landlord, or any foreclosure proceeding brought by the holder of any
such mortgage to recover possession of the Property shall, by operation of law
or otherwise, result in the cancellation or termination of this Lease, and upon
the request of Landlord, any successor Landlord or the holder of such mortgage,
Tenant covenants and agrees to execute an instrument in writing satisfactory to
Landlord, successor Landlord, or to the holder of such mortgage, or to the
purchaser of the mortgaged premises in foreclosure, whereby Tenant attorns to
such successor in interest. No mortgagee or purchaser at foreclosure sale shall
be liable to Tenant or subject to off sets or defenses arising as a result of
acts or omissions of a prior Landlord.
16.6. Landlord's Liability. The liability under this Lease of Landlord
shall be limited to its interest in the Building of which the Premises are a
part; and Tenant, its successors and assigns, hereby waive all rights to proceed
individually against Landlord or any of Landlord's partners, officers, directors
or shareholders. The term "Landlord", as used in this Section, shall mean only
the owner or owners at the time in question of the fee simple title to the
Property, and in the event of any transfer of such title or interest Landlord
(and in case of any subsequent transfer, the then grantor) shall be relieved
from and after the date of such transfer of all liability with respect to
Landlord's obligations under this Lease, provided that any funds in the hands of
Landlord (or then grantor at the time of such transfer) in which Tenant has an
interest, shall be delivered to the grantee. The obligations to be performed by
Landlord shall, subject to the foregoing, be binding on Landlord's successors
and assigns only during their respective periods of ownership, and no successor
Landlord shall have liability to Tenant with respect to defaults hereunder
occasioned by the acts or omissions of any predecessor Landlord.
16.7. No Oral Changes. This Lease shall not be changed or terminated
orally, but only upon an agreement in writing signed by the parties hereto.
16.8. No Representation by Landlord. The Landlord and the Landlord's
agents have made no representations, warranties or promises with respect to the
Premises, Building or Property, except as herein expressly set forth. This
Lease specifically supersedes any prior written or oral communications between
Landlord and Tenant or any of their agents.
16.9. Parking. Parking, on an unreserved basis, shall be provided for the
benefit of Tenant, its employees, invitees and licensees, at the rate of four
parking spaces for each 1,000 square feet of Leasable Area. The Tenant shall be
entitled to park in common with other tenants of the Property. Tenant agrees
not to overburden the parking facilities and agrees to cooperate with Landlord
and other tenants in the use of the parking facilities. Landlord reserves the
right, in its absolute discretion, to allocate parking spaces among Tenant and
other tenants of the Property, or to assign parking.
16.10 Recording of Lease. Neither this Lease nor any memorandum or notice
hereof shall be recorded by Tenant. However, it may be recorded by Landlord and
Landlord's option. If this Lease, or any memorandum or notice hereof is
recorded by the Tenant, such recordation may be declared by Landlord as a
material event of default by Tenant hereunder.
16.11. Notice to Mortgagee and Opportunity to Cure. Tenant agrees to give
any mortgagee(s) of the Property, by certified mail, a copy of any Notice of
Default served upon the Landlord, provided that prior to such Notice, Tenant has
been notified in writing (by way of Notice of Assignment of Rents and Leases, or
otherwise), of the addresses of such mortgagee(s). Tenant further agrees that
if Landlord shall have failed to cure such default within the time provided for
in this Lease, then the mortgagee(s) shall have an additional thirty (30) days
within which to cure such default, or if such default cannot be cured within
that time, then such additional time as may be necessary if within such thirty
(30) days the mortgagee(s) has commenced and is diligently pursuing the remedies
necessary to cure such default (including, but
<PAGE>
not limited to, commencement of foreclosure proceedings, if necessary to effect
such cure), in which event this Lease shall not be terminated while such
remedies are being so diligently pursued.
16.12. Recovery of Fees and Costs. In the event of any litigation arising
out of terms of this Lease, the prevailing party shall be entitled to recover
reasonable attorneys' fees, paralegals' fees and costs from the losing party,
including at appellate levels and post-judgment proceedings.
16.13. Joint Obligation. If there is more than one party or person executing
this Lease as Tenant, the obligations hereunder imposed upon Tenant shall be
joint and several among all parties or persons executing this Lease as Tenant.
16.14. Time. Time is of the essence of this Lease and each and all of its
provisions in which performance is a factor.
16.15. Brokerage Commission. Tenant represents and warrants unto Landlord
that Tenant has had no dealings with any broker or agent in connection with this
Lease other than Landmarks Group Services Corporation and Dunhill Properties,
the brokers engaged by Landlord, and Tenant covenants to pay, hold harmless and
indemnify Landlord from and against any and all cost (including attorneys' fees,
paralegals' fees and costs including at appellate levels and post-judgment
proceedings), expense and liability for any compensation, commissions and
charges claimed by any other agent or broker with respect to this Lease or the
negotiation thereof.
16.16. Landlord's Lien. To secure the obligations to be performed by Tenant
under this Lease, Tenant grants to Landlord a continuing and unconditional
security interest (the "Security Interest") in all of the furniture, fixtures,
equipment and other property of Tenant, except for Tenant's inventory of goods
(as determined in accordance with the definition and designation of "inventory"
under generally accepted accounting principles applied in the United States,
provided that in all events inventory shall include, for purposes of this Lease,
raw materials used in Tenant's business, work in progress, finished goods and
consignment goods, but shall specifically exclude furniture and equipment which
are not regularly available for sale in the ordinary course of Tenant's
business), from time to time located within the Premises together with all
replacements and substitutions thereof and profits and proceeds therefrom. The
Security Interest is in addition to any lien provided to Landlord under
statutory or common law. Tenant agrees to execute at Landlord's request a UCC-1
Financing Statement so as to perfect the Security Interest. Landlord shall,
within thirty (30) days following Tenant's request, execute a document presented
to Landlord inform reasonable acceptable to Landlord to subordinate the lien of
the Security Interest to the security interest granted or to be granted by
Tenant to any commercial bank, savings and loan, finance company, insurance
company or similar institutional lender, to secure the proceeds of a loan to
Tenant used solely for the acquisition of the equipment and fixtures of Tenant
to be placed within the Premises.
16.17. Quiet Possession. Upon Tenant paying the Rent reserved hereunder and
observing and performing all of the covenants, conditions and provisions on
Tenant's part to be observed and performed hereunder, Tenant shall have quiet
possession of the Premises for the entire Lease Term.
16.18. Right of First Refusal. Landlord hereby grants to Tenant the right of
first refusal (the "Right") to lease premises in the Building other than the
Premises ("Vacant Space") upon the terms hereinafter set forth. In the event
Landlord receives a written offer or letter of intent (the "Lease Offer") from a
prospective tenant other than Tenant (the "Offeror") during the Term to lease
Vacant Space, Landlord shall not enter into a lease with Offeror for all or any
portion of the Vacant Space until Landlord has delivered a copy of the Lease
Offer to Tenant with notice of Landlord's desire to accept the Lease Offer (the
"Landlord Intent Notice"), whereupon Tenant may issue a written notice (the
"Vacant Space Notice") within fifteen (15) days of Landlord's submission of the
Lease Offer to Tenant, for the same portion of the Vacant Space and upon the
same terms, rent and conditions as the Lease Offer to Tenant, for the same
portion of the Vacant Space and upon the same terms, rent and conditions as the
Lease Offer, which Landlord shall be obligated to accept. In the event Tenant
issues the Vacant Space Notice, not later than five (5) days after Tenant's
issuance thereof, Landlord and Tenant shall execute Landlord's then standard
form of Lease incorporating the terms of the Lease Offer for the Vacant Space
subject to the Lease Offer (the "Tenant Vacant Space Lease"), failing which
Landlord shall be free to enter into a Lease with the Offeror for the Vacant
Space which is the subject of the Lease Offer, and Tenant shall no longer have
the Right to that portion of the Vacant Space. In the event Landlord issues a
Landlord Intent Notice and Tenant does not timely issue a Vacant Space Notice,
Landlord shall be free to enter into a lease with the Offeror for the Vacant
Space which is the subject of the Lease Offer, and Tenant shall no longer have
the Right to that portion of the Vacant Space. Notwithstanding anything herein
to the contrary, if the Lease Offer is for a lease term of less than five years,
the Tenant Vacant Space Lease shall be for a lease term of five years.
16.19. Tenant's Options to Terminate. Following the fifth anniversary of the
Commencement Date, Tenant may terminate this Lease upon the following terms and
conditions (collectively, the "Termination Conditions"): (i) Tenant shall have
provided Landlord with written notice (the "Additional Space Requirement
Notice") of Tenant's desire to additionally lease not less than 15,000 square
feet of the Vacant Space or other premises within the Central Florida Research
Park in Orlando, Florida (the "Additional Space Requirement") for a term of not
less than ten years; (ii) Landlord shall fail to notify Tenant within sixty (60)
days of the availability and identity of additional space (the "Additional Space
Advisement") in the Central Florida Research Park which fulfills the Additional
Space Requirement; (iii) Tenant shall have provided Landlord written notice (the
"Tenant Termination Notice") to terminate this Lease not later than three
hundred sixty days after the last date on which Landlord could have issued the
Additional Space Advisement; and (iv) Tenant shall have delivered a
<PAGE>
cashier's check issued by a National Association commercial bank that is a
member of the U.S. Federal Reserve System to the order of Landlord, as a
termination payment, with the Tenant Termination Notice, calculated in
accordance with the first calculation of the Termination Payment Calculation on
Exhibit "E" attached hereto relating to a cancellation following the fifth
anniversary. In the event the Termination Conditions are timely and fully
satisfied by Tenant, the Lease shall terminate on the termination date set forth
in the Tenant Termination Notice, and neither Landlord nor Tenant shall
thereafter have any further rights or obligations hereunder. In addition, Tenant
may terminate this Lease effective as of the seventh anniversary of the
Commencement Date upon the following terms and conditions (the "Seventh Year
Conditions"): (i) Tenant shall have provided Landlord written notice to
terminate this Lease (the "Seventh Year Termination Notice") not later than one
hundred eighty days prior to the seventh anniversary of the Commencement Date;
and (ii) Tenant shall have delivered a cashier's check issued by a National
Association commercial bank that is a member of the U.S. Federal Reserve Board
to the order of Landlord, as a termination payment, with the Seventh Year
Termination Notice, calculated in accordance with the second calculation of the
Termination Payment Calculation on Exhibit "E" attached hereto relating to a
cancellation following the seventh anniversary. In the event the Seventh Year
Conditions are timely and fully satisfied by Tenant, the Lease shall terminate
on the termination date set forth in the Seventh Year Termination Notice, and
neither Landlord nor Tenant shall thereafter have any further rights or
obligations hereunder.
16.20. Options to Extend. Tenant shall have two options to extend the Term
of this Lease for a period of five years each, which may be exercised by Tenant
by the issuance of a written notice (the "Option Notice") delivered by Tenant to
Landlord not later than one hundred-eighty (180) days prior to the expiration of
the initial Term, as to the first option period, and not later than one hundred-
eighty (180) days prior to the expiration of the first option period, as to the
second option period. In the event the Tenant fails to timely deliver the
Option Notice, Tenant shall no longer have the option rights contained in this
paragraph. This Lease, and all of the provisions hereof, shall remain in full
force and effect during the option periods, with adjustment of the Annual
Minimum Rent continuing pursuant to Section 4.3 of this Lease. In the event
Tenant exercises its option to extend the Term of the Lease, for purposes of
this Lease other than this Section 16.20, references to the Term of this Lease
shall include the option periods as well as the initial Term of this Lease.
16.21. Installation of Roof-top Telecommunication Equipment. Provided Tenant
complies with all applicable laws, rules, regulations and restrictive covenants
(including, without limitation, the Restrictive Covenants applicable to the
Central Florida Research Park), and first obtains, at its expense, all necessary
permits and approvals from all governing authorities, Tenant shall be permitted,
during the Term of this Lease, to install and maintain one telecommunications
satellite dish and related antennae and communications equipment (the "Satellite
Installation") on the roof of the Building immediately over the Premises (but
not otherwise), conditioned upon Tenant's compliance with the following: (i) The
Satellite Installation shall not penetrate the roof of the Building without the
prior written consent of Landlord, which consent shall not be unreasonable
withheld but if granted will be conditioned upon Tenant's agreement to reimburse
Landlord for the expense of repairing any damage to the roof caused by the
penetration of the roof by the Satellite Installation or the removal thereof;
(ii) the Satellite Installation shall be accomplished in a manner which causes
no harm or damage to the Building (and roof thereof), and no interference to
other communication facilities within the Building or on the roof thereof; (iii)
the Satellite Installation shall be removed by Tenant, at its expense, upon the
expiration of the Term, and Tenant shall immediately, upon removal of the
Satellite Installation, repair any damage to the roof due to the removal of the
Satellite Installation or, at Landlord's option, pay Landlord an amount which
Landlord reasonable determines shall be the cost to properly repair damage to
the roof due to the existence of the Satellite Installation and Tenant's removal
thereof; (iv) Tenant shall place the Satellite Installation on the roof in a
manner which is least apparent from the ground area of the Property surrounding
the Building; and (v) Tenant shall indemnify and hold Landlord harmless from and
against all loss, costs, damages and liabilities to person or property arising
out of the placement, existence and/or removal of the Satellite Installation on
the roof of the Building.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease as of the date
first above written. Individuals signing on behalf of an entity warrant that
they have the authority to bind that entity. This Lease shall be binding upon
the undersigned, and the successors, heirs, executors and administrators of the
undersigned, and shall inure to the benefit of the Landlord and Tenant, and
their respective successors and assigns.
Signed, sealed and delivered
in the presence of: LANDLORD:
-----------------------------------
Signature of Witness Orlando TechCenter II, L.L.C.,
a Florida Limited
Liability Company
- ------------------------------------
Printed Name of Witness
BY: /s/Ulrich K. Hahn
-----------------------------
Ulrich K. Hahn, President
- ------------------------------------
Signature of Witness
Date executed: 6/20/96
------------------
<PAGE>
- --------------------------------------
Printed Name of Witness
TENANT:
Autonomous Technologies Corporation,
- -------------------------------------- a Florida corporation
Signature of Witness
- --------------------------------------
Printed Name of Witness BY: /s/ Monty K. Allen
-----------------------------------------
Monty K. Allen, Vice President & Treasurer
- --------------------------------------
Signature of Witness (Print name and title)
- --------------------------------------
Printed Name of Witness Date executed: June 4, 1996
---------------------
<PAGE>
EXHIBIT "A"
Site Plan
<PAGE>
EXHIBIT "B"
Space Plan
(See attached form to be completed and executed upon completion and approval of
the plans, specifications and construction costs pursuant to Section 3.1 of this
Lease.)
<PAGE>
EXHIBIT "C"
Rules and Regulations
ACCIDENTS AND DAMAGES - In the event of accidental damage to the Premises,
Tenant should immediately notify the Landlord.
ADMITTANCE TO LEASED PREMISES - Property Management, maintenance, security,
janitorial and other service providers and agents authorized by the Landlord,
shall be allowed admittance to the Premises to accomplish their intended
assignments.
ADVERTISING MEDIUM - Tenant should not use any advertising medium, including
without limitation, flashing lights or search lights, which may be heard or
experienced outside of the Premises without the prior written consent of the
Landlord. Tenant is encouraged to use the name of the Property in all
advertising done within the geographical area in which the Property is located.
BICYCLES AND OTHER VEHICLES - Bicycles and other vehicles should not be
permitted inside the Building or on the sidewalk, and may only be permitted
outside in areas designated by Landlord.
CHAIR PADS - During the entire term of this Lease, Tenant should, at his
expense, install and maintain under all caster chairs a chair pad or carpet
casters to protect carpeting.
COMMON AREA - The sidewalks, entries, passages, corridors, halls, lobbies,
stairways, elevators, and other common facilities of the Property shall be
controlled by Landlord, and should not be obstructed by Tenant or used for any
purposes other than ingress or egress to and from the Premises. Tenant should
not place any item in any of such locations, whether or not any such item
constitutes an obstruction, without the prior written consent of Landlord.
Landlord will have the right to remove any obstruction or any such item without
notice to Tenant and at the expense of Tenant.
DELIVERIES - All deliveries shall be made to the rear of the Premises unless
otherwise directed or approved in writing by the Landlord. The Tenant should
never permit or suffer any truck to park in the parking areas of the Property
designated for customers' use. The Tenant should never permit any overnight
parking of any vehicle to occur on the Property.
EMERGENCY CONTACT PROCEDURES - Tenant should provide in a timely manner to
Landlord upon request name(s) of employees and/or agents to be contacted by
Landlord for emergency purposes whether during or after operating hours. Such
information should be kept current and accurate at all times by Tenant.
Emergency policies and procedures may be developed, issued and revised from time
to time by Landlord at Landlord's discretion, which shall become an integral
part of these Rules and Regulations and the Lease to which they refer.
EMPLOYEES AND VISITORS - Tenant will be responsible for all behavior and
adherence to all building Rules and Regulations by any of Tenant's employees,
visitors and agents. Tenant agrees to conduct Tenant's business consistent with
reputable business standards and practices.
EXCESSIVE NOISE AND ANIMALS - No animals, except seeing eye dogs, shall be
allowed in stores, offices, halls, corridors and elevators of the Property. No
person shall disturb the occupants of the Building or neighboring buildings by
the use of any radio or musical instrument or by making loud or improper noises.
Tenant will keep all mechanical apparatus free of vibration and noise which may
be transmitted beyond the confines of the Premises.
HAZARDOUS OPERATING AND ITEMS - Tenant shall not install or operate any steam or
gas engine or boiler, or carry on any mechanical business in the Premises
without Landlord's prior written consent. The use of oil, gas or flammable
liquids for heating, lighting or any other purpose is prohibited. Explosives or
other articles deemed hazardous shall not be brought into the Building.
HOUSEKEEPING - Unless otherwise stated, the interior of the Premises is the
responsibility of each Tenant to maintain in a safe and clean matter. All
carpeting and tiled areas are to be cleaned periodically. The perimeter area of
the Premises space, which includes front and rear entrances and adjacent areas
should be kept neat and clean.
KEYS - If the need arises for the Tenant to change the lock for the Premises,
the re-keying should be coordinated and handled by the Property Manager.
MOVE IN/MOVE OUT - At the termination of the Lease, Landlord will inspect the
Premises to see that everything is in satisfactory condition. Any deficiencies,
excepting normal wear and tear, will be addressed as provided in the Lease.
ODORS - Tenant should not cause or permit objectionable odors to emanate or be
dispelled from the Premises.
<PAGE>
OVERHEAD DOORS - All repairs, service and preventative maintenance are Tenant's
responsibility.
PARKING - If the Tenant has customers or visitors who create an overload problem
with parking, the Tenant's cooperation is expected in asking visitors to park in
specified areas.
RADIO AND TELEVISION - To aerials or satellite dishes shall be erected on the
roof of the Building or exterior walls of the Premises or Building, or on the
grounds of the Property without the prior written consent of the Landlord in
Landlord's sole and absolute discretion. Any aerials or satellite dishes so
installed without such written consent shall be subject to removal without
notice at any time at the expense of Tenant and may, in Landlord's discretion,
be deemed a material default of Tenant under the Lease.
REFUSE - Dumpsters are provided for normal amounts of trash and waste as
experience has shown the Building to require. If Tenant's business operation
generates excess trash, or a considerable amount of cardboard boxes, it will be
necessary for Tenant to arrange for an additional service or to pay the excess
cost if the arrangements are made by Landlord.
SECURITY - Security and maintenance personnel, as well as janitorial contractors
are not permitted to unlock premises for Tenant's employees. All individual
security/burglar alarm systems should have the written consent of the Landlord.
SOLICITATION - Lessor reserves the right to restrict, control or prohibit
canvassing, soliciting and peddling within the Property.
USE OF WATER FIXTURES - Water closets and other water fixtures should not be
used for any purpose other than that for which they are intended, and any damage
resulting to them from misuse on the part of Tenant shall be paid for by Tenant.
WINDOWS - Window treatments visible from the exterior of the Premises shall
require the prior written approval of the Landlord.
Tenant agrees that Landlord may amend, modify, delete or add new and additional
reasonable rules and regulations for the use and care of the Premises, the
Building, the common areas and the Property, and Tenant agrees to comply with
all such Rules and Regulations. Landlord shall promptly provide Tenant a copy
of any amendments or modifications to the Rules and Regulations.
<PAGE>
EXHIBIT "D"
Legal Description of Property
Lots 6 and 7, Block 20, Central Florida Research Park Section III, as recorded
in Plat Book 19, Pages 24 through 28, of the Public Records of Orange County,
Florida.
<PAGE>
EXHIBIT "E"
Termination Payment Calculation
-------------------------------
The following Termination Payment Calculations are based on the final size being
25,000 square fee. The final calculation is subject to change proportionately
based on the final size of the premises as described in Paragraph 2.1.
The following assumptions apply:
Commission Rate: Seven percent (7%)
Tenant Improvement
Allowance: $20.00 per square foot amortized on a simple interest basis over
lease term @ 12% APR and utilizing payoff amounts after years 5 and 7,
respectively.
Free Rent: Two (2) Months
If cancellation occurs following the fifth (5th) anniversary, the termination
payment shall be as follows:
Unamortized Commission: $131,180.00
Unamortized T.I. : $322,487.00
Unamortized Free Rent: $ 19,791.67
5 months Rent & Operating Expenses: $145,729.17
-----------
Total Due: $619,187.17
If cancellation occurs following the seventh (7th) anniversary, the
termination payment shall be as follows:
Unamortized Commission: $ 80,517.50
Unamortized T.I. : $215,978.00
Unamortized Free Rent: $ 11,875.00
3 months Rent & Operating Expenses: $ 91,500.00
-----------
Total Due: $399,870.50
<PAGE>
EXHIBIT 11
AUTONOMOUS TECHNOLOGIES CORPORATION
STATEMENT REGARDING COMPUTATION OF LOSS PER SHARE
(NOTE 1)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
-------------------------------- -------------------------------
PRIMARY LOSS PER SHARE SEPT. 30, 1996 SEPT. 30, 1995 SEPT. 30, 1996 SEPT. 30, 1995
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Net Loss $ 2,891,380 $ 1,215,159 $ 6,169,297 $ 3,008,953
-------------- -------------- -------------- --------------
Weighted average common shares
outstanding during the periods 6,749,950 1,245,000 5,164,668 2,770,900
-------------- -------------- -------------- --------------
Primary loss per share $ (0.43) $ (0.98) $ (1.19) $ (1.09)
============== ============== ============== ==============
Shares used in weighted average common
shares outstanding for:
Three months ended March 31, 1995 .............................................................. 3,669,153
Three months ended March 31, 1996 .............................................. 3,741,303
Three months ended June 30, 1995 ............................................................... 3,425,185
Three months ended June 30, 1996 ............................................... 4,985,331
Three months ended September 30, 1995 .......................................................... 1,245,000
Three months ended September 31, 1996 .......................................... 6,749,950
Daily weighted average for nine month period 5,164,668 2,770,900
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 1,864,864
<SECURITIES> 12,644,080
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 14,730,379
<PP&E> 887,490
<DEPRECIATION> 304,846
<TOTAL-ASSETS> 16,224,470
<CURRENT-LIABILITIES> 1,035,846
<BONDS> 0
0
0
<COMMON> 67,500
<OTHER-SE> 14,160,701
<TOTAL-LIABILITY-AND-EQUITY> 16,224,470
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 6,531,712
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 16,737
<INCOME-PRETAX> (6,169,297)
<INCOME-TAX> 0
<INCOME-CONTINUING> (6,169,297)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (6,169,297)
<EPS-PRIMARY> (1.19)
<EPS-DILUTED> (1.19)
</TABLE>
