<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
Form 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
----
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended December 31, 1999
or
____ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________ to ________
Commission File number 0-22114
ASYST TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
California 94-2942251
(State or other jurisdiction of (IRS Employer identification No.)
incorporation or organization)
48761 Kato Road, Fremont, California 94538
(Address of principal executive offices)
(510) 661-5000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes X No
----- _____
The number of shares of the registrant's Common Stock, no par value, outstanding
as of February 8, 2000 was 30,929,942.
<PAGE>
ASYST TECHNOLOGIES, INC.
INDEX
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
Part I. Financial Information
---------------------
Item 1. Financial Statements
Condensed Consolidated Balance Sheets --
December 31, 1999 and March 31, 1999 2
Condensed Consolidated Statements of Operations --
Three Months Ended December 31, 1999 and
December 31, 1998 and Nine Months Ended
December 31, 1999 and December 31, 1998 3
Condensed Consolidated Statements of Cash Flows --
Nine Months Ended December 31, 1999 and
December 31, 1998 4
Notes to Condensed Consolidated Financial
Statements 5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 13
Item 3. Quantitative and Qualitative Disclosures about Market Risk 17
Part II. Other Information
-----------------
Item 1. Legal Proceedings 18
Item 6. Exhibits and Reports on Form 8-K 18
Signatures 19
- ----------
Exhibit Index 20
- -------------
</TABLE>
1
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1 - Financial Statements
ASYST TECHNOLOGIES, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands)
<TABLE>
<CAPTION>
December 31, March 31,
1999 1999
-------------- ------------
(unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 95,291 $ 6,382
Short-term investments 11,960 29,380
Accounts receivable, net 44,911 14,511
Inventories 34,616 19,373
Deferred tax asset 16,238 19,142
Prepaid expenses and other current assets 7,063 3,474
------------- ------------
Total current assets 210,079 92,262
------------- ------------
Property and equipment, net 15,181 12,923
Other assets, net 20,117 19,103
------------- ------------
$ 245,377 $ 124,288
============= ============
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt $ -- $ 2,190
Accounts payable 22,554 5,055
Accrued liabilities and other current liabilities 13,260 10,051
Income taxes payable 685 676
Customer deposits 3,521 1,806
------------- ------------
Total current liabilities 40,020 19,778
------------- ------------
Long-term liabilities:
Redeemable convertible preferred stock -- 5,000
Long-term debt, net of current portion -- 2,876
------------- ------------
Total long-term liabilities -- 7,876
------------- ------------
Total liabilities 40,020 27,654
------------- ------------
Shareholders' equity:
Common stock 222,657 111,851
Accumulated deficit (17,300) (15,217)
------------- ------------
Total shareholders' equity 205,357 96,634
------------- ------------
$ 245,377 $ 124,288
============= ============
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
2
<PAGE>
ASYST TECHNOLOGIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited; In thousands, except share and per share amounts)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
December 31, December 31,
------------------------ ------------------------
1999 1998 1999 1998
----------- --------- --------- ----------
<S> <C> <C> <C> <C>
Net sales $ 63,816 $ 17,911 $ 131,598 $ 74,252
Cost of sales 34,505 11,577 72,672 46,751
---------- --------- --------- ----------
Gross profit 29,311 6,334 58,926 27,501
---------- --------- --------- ----------
Operating expenses:
Research and development 5,298 4,523 13,989 13,522
Selling, general and administrative 15,333 10,409 37,814 33,251
Goodwill amortization 676 -- 1,880 --
In-process research and development of acquired
businesses and product line -- -- 4,000 7,100
Restructuring charge -- -- -- 2,922
---------- --------- --------- ----------
Total operating expenses 21,307 14,932 57,683 56,795
Operating income (loss) 8,004 (8,598) 1,243 (29,294)
Other income, net 803 361 1,088 1,847
---------- --------- --------- ----------
Income (loss) before provision (benefit) for
income taxes 8,807 (8,237) 2,331 (27,447)
Provision (benefit) for income taxes 2,966 (2,042) 2,124 (8,013)
---------- --------- --------- ----------
Net income (loss) $ 5,841 $ (6,195) $ 207 $ (19,434)
========== ========= ========= ==========
Basic earnings (loss) per share $ 0.20 $ (0.27) $ 0.01 $ (0.82)
========== ========= ========= ==========
Diluted earnings (loss) per share: $ 0.18 $ (0.27) $ 0.01 $ (0.82)
========== ========= ========= ==========
Shares used in per share calculation of:
Basic earnings (loss) per share 28,964 22,910 26,358 23,566
========== ========= ========= ==========
Diluted earnings (loss) per share 32,722 22,910 29,312 23,566
========== ========= ========= ==========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
3
<PAGE>
ASYST TECHNOLOGIES, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited; In thousands)
<TABLE>
<CAPTION>
Nine Months Ended
December 31,
-----------------------------
1999 1998
---------- ------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (loss) $ 207 $ (19,434)
Adjustments to reconcile net income (loss) to net cash used by
operating activities:
Adjustment to conform year end of pooled company (2,290) --
Change in net assets/liabilities of discontinued operations -- 1,417
Depreciation and amortization 5,527 5,393
Change in provision for doubtful accounts (75) (622)
Non-cash restructuring expense -- 784
Write-down of inventories -- 1,837
Tax benefit associated with employee option plans -- 597
Purchased in-process research and development of acquired
businesses and product line 4,000 7,100
Changes in current assets and liabilities, net of acquisition of
FluoroTrac(R) product line, Hine Design Incorporated and Palo Alto
Technologies, Inc.:
Accounts receivable (30,325) 18,477
Inventories (15,233) 3,272
Prepaid expenses and other current assets (3,569) 1,274
Deferred tax asset 3,171 (9,457)
Other asset, net 263 --
Accounts payable 17,523 (7,410)
Accrued liabilities and other current
liabilities 3,276 (3,559)
Customer deposits 1,715 (140)
Income taxes payable 9 96
---------- ------------
Net cash used by operating activities (15,801) (375)
---------- ------------
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of short-term investments (120,388) (31,050)
Sale of short-term investments 138,586 65,684
Purchase of property, plant and equipment (6,615) (3,390)
Increase in other assets (2,974) (460)
Cash used in the acquisition of the FluoroTrac(R)product line -- (2,794)
Cash used in the acquisition of Hine Design Incorporated -- (12,433)
Cash used in the acquisition of Palo Alto Technologies, Inc. (4,639) --
---------- ------------
Net cash provided by investing activities 3,970 15,557
---------- ------------
CASH FLOWS FROM FINANCING ACTIVITIES
Cash used in the reduction of debt assumed in the acquisition of
Hine Design Incorporated -- (12,479)
Principal payments on current and long-term debt (10,066) (1,746)
Issuance of common stock 110,806 1,149
Cash used in the repurchase of common stock -- (11,472)
---------- ------------
Net cash provided by (used by) financing activities 100,740 (24,548)
---------- ------------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 88,909 (9,366)
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 6,382 15,006
---------- ------------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 95,291 $ 5,640
========== ============
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
4
<PAGE>
ASYST TECHNOLOGIES, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
BASIS OF PRESENTATION
The condensed consolidated financial statements include the accounts of Asyst
Technologies, Inc. the ("Company"), a California corporation, and its wholly
owned subsidiaries. Significant intercompany accounts and transactions have been
eliminated. On June 2, 1999 the Company acquired Progressive System
Technologies, Inc. ("PST") in a transaction accounted for using the pooling of
interests accounting method. Accordingly, the restated condensed consolidated
financial statements of the Company give retroactive effect to the merger with
PST and all material intercompany transactions have been eliminated.
While the financial information furnished is unaudited, the condensed
consolidated financial statements included in this report reflect all
adjustments (consisting only of normal recurring adjustments) which the Company
considers necessary for the fair presentation of the results of operations for
the interim periods covered and of the financial condition of the Company at the
date of the interim balance sheet. The Company closes its books on the last
Saturday of each quarter and thus the actual date of the quarter-end is usually
different from the month-end dates used throughout this 10-Q report. The results
for interim periods are not necessarily indicative of the results for the entire
year. The condensed consolidated financial statements should be read in
connection with the Asyst Technologies, Inc. consolidated financial statements
for the year ended March 31, 1999 included in its Annual Report on Form 10-K and
Current Report on Form 8-K/A, dated August 16, 1999.
Short-term Investments
As of December 31, 1999 and March 31, 1999, the Company's short-term
investments consisted of liquid debt investments with maturities, at the time of
purchase, of one year or less and will remain classified as such until such time
they are subsequently sold and converted to cash. All such investments have been
classified as "available-for-sale" and are carried at fair value, with
unrealized holding gains and losses (which have not been material to date), net
of taxes reported as a separate component of shareholders' equity. The cost of
the debt security is adjusted for amortization of premiums and accretion of
discounts to maturity. Such amortization, interest income, realized gains and
losses and declines in value that are considered to be other than temporary, are
included in other income (expense), net, on the accompanying condensed
consolidated statements of operations. There have been no declines in value that
are considered to be other than temporary for any of the nine months in the
period ended December 31, 1999. The cost of investments sold is based on
specific identification. The Company does not intend to hold any individual
securities for greater than one year.
Short-term investments by security type consist of the following (dollars in
thousands):
<TABLE>
<CAPTION>
Cost / Fair Value
--------------------------------
December 31, March 31,
1999 1999
-------------- -------------
(unaudited)
<S> <C> <C>
Debt securities issued by states of the United States
and political subdivisions of the states................. $ -- $ 12,780
Corporate debt securities.................................. 11,960 16,600
--------- ---------
Total $ 11,960 $ 29,380
========= =========
</TABLE>
5
<PAGE>
Supplemental Statements of Cash Flows Disclosure
Cash paid for interest and domestic and foreign income taxes was as follows
(dollars in thousands):
<TABLE>
<CAPTION>
Nine Months Ended
December 31,
----------------------------------
1999 1998
--------------- ---------------
(unaudited) (unaudited)
<S> <C> <C>
Interest........................................................... $ 167 $ 606
Income taxes....................................................... $ 35 $ 536
</TABLE>
Inventories
Inventories are stated at the lower of cost (first in, first out) or market
and include materials, labor and manufacturing overhead costs. Inventories
consist of the following (dollars in thousands):
<TABLE>
<CAPTION>
December 31, March 31,
1999 1999
--------------- ---------------
(unaudited)
<S> <C> <C>
Raw materials............................................. $ 25,933 $ 16,119
Work-in-process and finished goods........................ 8,683 3,254
-------- --------
Total $ 34,616 $ 19,373
======== ========
</TABLE>
Intangible Assets
The realizability of intangible assets, which are included in other assets,
net, in the accompanying condensed consolidated balance sheets, is evaluated
periodically as events or circumstances indicate a possible inability to recover
the net carrying amount. Such evaluation is based on various analyses, including
cash flow and profitability projections that incorporate, as applicable, the
impact on existing lines of business. The analyses involve a significant level
of management judgment in order to evaluate the ability of the Company to
perform within projections.
Provision (Benefit) for Income Taxes
The annual effective tax rate and benefit recorded for the three and nine
months ended December 31, 1998 does not recognize the full deferred benefit of
the utilization of the net operating loss of PST due to uncertainty as to the
ability of PST to generate future taxable income. Absent this, the effective tax
rate for the period then ended would have been 34.0 percent. The provision for
income taxes for the nine months ended December 31, 1999 reflects the impact of
the in-process research and development charge of $4.0 million which for tax
purposes is not deductible. Absent this, our effective tax rate for the period
then ended would have been 33.5 percent.
Earnings (Loss) Per Share
Earnings (loss) per share has been reported based upon Financial Accounting
Standards ("SFAS") No. 128, "Earnings Per Share", which requires presentation of
basic and diluted earnings per share. Basic earnings per share has been computed
using the weighted average number of actual common shares outstanding, while
diluted earnings per share has been computed using the weighted average number
of dilutive common equivalent shares outstanding. Dilutive common equivalent
shares used in the computation of diluted earnings per share result from the
assumed exercise of stock options, warrants and redeemable convertible preferred
stock, using the treasury stock method.
6
<PAGE>
The following table sets forth the calculation of basic and diluted
earnings (loss) per share (in thousands, except share and per share amounts):
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
December 31, December 31,
1999 1998 1999 1998
------------ ------------ ------------ ------------
(unaudited) (unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C>
Basic earnings (loss) per share:
Net income (loss)............................ $ 5,841 $ (6,195) $ 207 $ (19,434)
---------- ---------- ------------ ------------
Weighted average common shares............... 28,964 22,910 26,358 23,566
---------- ---------- ------------ ------------
Basic earnings (loss) per share......... $ 0.20 $ (0.27) $ 0.01 $ (0.82)
========== ========== ============ =============
Diluted earnings (loss) per share:
Net income (loss)............................ $ 5,841 $ (6,195) $ 207 $ (19,434)
---------- ---------- ------------ -------------
Weighted average common shares............... 28,964 22,910 26,358 23,566
Weighted average common share equivalents:
Options and warrants...................... 3,758 --- 2,954 ---
---------- ---------- ------------ -------------
Diluted weighted average common shares....... 32,722 22,910 29,312 23,566
---------- ---------- ------------ -------------
Diluted earnings (loss) per share....... $ 0.18 $ (0.27) $ 0.01 $ (0.82)
========== ========== ============ =============
</TABLE>
Comprehensive Income
In 1999, the Company adopted SFAS No. 130 "Reporting Comprehensive Income,"
which establishes standards for reporting and presentation of comprehensive
income. SFAS No. 130, which was adopted by the Company in the first quarter of
1999, requires companies to report a new measure of income (loss). Comprehensive
income is defined as the change in equity of a company during a period from
transactions and other events and circumstances excluding transactions resulting
from investments by owners and distributions to owners and is to include
unrealized gains and losses that have historically been excluded from net income
(loss) and reflected instead in equity. The Company has not had any such
material transactions or events during the periods and therefore comprehensive
income (loss) is the same as the net income (loss) reported in the condensed
consolidated financial statements.
New Accounting Pronouncement
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities." SFAS No. 133
establishes accounting and reporting standards requiring that every derivative
instrument be recorded in the balance sheet as either an asset or liability
measured at its fair value. It requires that changes in the derivative's fair
value be recognized currently in earnings unless specific hedge accounting
criteria are met and that a company must formally document, designate and assess
the effectiveness of transactions that receive hedge accounting. SFAS No. 133 is
effective for fiscal years beginning after June 15, 2000 and cannot be applied
retroactively. The Company has not yet determined the effect SFAS No. 133 will
have on its financial position, results of operations or cash flows.
RESTRUCTURING ACTIVITY
During the year ended March 31, 1999 the Company underwent restructuring of its
operations to reduce its costs structure in response to the reduction in net
sales activities. The Company also restructured activities in Japan and Europe
to reposition its businesses to compete more effectively. In addition, the
Company repositioned its product offerings to eliminate low margin products, or
software services that have high risks of failure. During the fiscal year ended
March 31, 1999, the Company recorded a restructuring charge of approximately
$5.5 million.
7
<PAGE>
The following table summarizes restructuring charges and amounts incurred by
geographic region as of December 31, 1999 (dollars in thousands):
<TABLE>
<CAPTION>
Expensed Cash outlays Ending
as of as of Accrual
March 31, December 31, December 31,
1999 1999 1999
--------- ------------- ------------
(unaudited) (unaudited)
<S> <C> <C> <C>
Europe:
Severance........................................... $ 1,732 $ 1,136 $ 596
Facilities.......................................... 336 235 101
Other............................................... 437 182 255
Japan:
Severance........................................... 150 75 75
Other............................................... 35 1 34
US:
Severance........................................... 700 700 --
Facilities.......................................... 550 320 230
Other............................................... 1,002 1,350 (348)
Non-cash................................................ 600 N/A N/A
--------- --------- ---------
Total $ 5,542 $ 3,999 $ 943
========= ========= =========
</TABLE>
As of December 31, 1999, the Company has severed all employees targeted in
connection with the restructuring. The Company expects all cash payments to
severed employees to be disbursed by March 31, 2000. Certain facilities and
other restructuring costs may not be fully disbursed before the end of fiscal
year ended March 31, 2000.
REPORTABLE SEGMENTS
In 1999, the Company adopted SFAS 131, "Disclosures about Segments of an
Enterprise and Related Information." SFAS 131 supersedes SFAS 14, "Financial
Reporting for Segments of a Business Enterprise", replacing the "industry
segment" approach with the "management" approach. SFAS 131 designates the
internal organization that is used by management for making decisions,
evaluating performance and allocating resources of the enterprise as the source
of the Company's reportable segments. SFAS 131 also requires disclosures about
products and services, geographic areas and major customers. The adoption of
SFAS 131 did not impact the results of operations or financial position but did
affect the disclosures of segment information.
The Company offers a family of products and related services to provide a front-
end automation and isolation system for wafer handling in semiconductor
manufacturing facilities. All of the Company's activities are aggregated into a
single operating segment. As a result, no operating segment information is
required.
Net sales by geography were as follows (dollars in millions):
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
December 31, December 31,
1999 1998 1999 1998
------------- ----------- ----------- -----------
(unaudited) (unaudited) (unaudited) (unaudited)
<S> <C> <C> <C> <C>
United States..................................... $ 25.2 $ 10.2 $ 54.8 $ 40.1
Taiwan............................................ 23.3 5.4 44.2 23.1
Singapore......................................... 5.3 0.2 9.6 1.5
Japan............................................. 7.4 1.7 18.2 6.6
Korea............................................. 0.4 -- 0.4 --
Europe............................................ 2.2 0.4 4.4 3.0
------- ------- -------- -------
Total......................................... $ 63.8 $ 17.9 $ 131.6 $ 74.3
======= ======= ======== =======
</TABLE>
8
<PAGE>
The net sales by product or service categories comprising the Company's net
sales were as follows (dollars in thousands):
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
December 31, December 31,
1999 1998 1999 1998
----------- ----------- ----------- -----------
(unaudited) (unaudited) (unaudited) (unaudited)
<S> <S> <C> <C> <C>
SMIF Systems...................................... $ 50,519 $ 11,565 $ 97,245 $ 51,557
Non-SMIF Systems.................................. 2,926 1,475 8,623 6,943
SMART Traveler Systems............................ 4,333 786 8,749 4,823
Robotics.......................................... 3,481 2,489 10,084 3,858
Services & other.................................. 2,557 1,596 6,897 7,071
---------- ---------- --------- ---------
Total......................................... $ 63,816 $ 17,911 $ 131,598 $ 74,252
========== ========== ========= =========
</TABLE>
ACQUISITION OF THE FLUOROTRAC(R)PRODUCT LINE
In April 1998, the Company entered into an agreement with Fluoroware, Inc.
("Fluoroware"), a supplier of materials management solutions, to acquire
Fluoroware's FluoroTrac(R) automated radio frequency identification ("RFID")
technology for automated work-in-progress tracking in semiconductor factories.
Under the terms of the agreement, the Company acquired all of the FluoroTrac
intellectual property including RFID tracking solutions, inventory and
installed-base opportunities from Fluoroware in consideration for approximately
$2.8 million in cash and liabilities assumed by the Company.
In connection with the acquisition, approximately $1.2 million of the intangible
assets acquired consisted of in-process research and development. Because there
can be no assurance that the Company will be able to successfully complete the
development of FluoroTrac products or that the technology has any alternative
future use, such in-process research and development was charged to expense in
the nine-month period ended December 31, 1998. As a result of the purchase price
allocation, approximately $0.3 million was assigned to intangible assets related
to existing product technology, the assembled workforce and the excess purchase
price over the net assets acquired. These intangibles are being amortized over a
three to five year period. The Company believes that the unamortized balance of
these assets, which is included in other assets, net, in the accompanying
condensed consolidated balance sheets, is recoverable.
ACQUISITION OF HINE DESIGN INCORPORATED
On July 31, 1998, the Company completed its acquisition of Hine Design
Incorporated ("Hine"). The acquisition, originally announced on July 6, 1998,
was structured as a purchase of all of the outstanding capital stock of Hine for
approximately $12.4 million in cash. In addition, the Company granted options to
purchase the Company's common stock in substitution for outstanding, vested
options to purchase capital stock of Hine worth approximately $1.0 million and
assumed certain liabilities of Hine of approximately $12.5 million. Hine, a
supplier of wafer-handling robots for semiconductor process tools, is now a
wholly owned subsidiary of the Company.
In connection with the acquisition, approximately $18.4 million of the purchase
price in excess of the value of net liabilities assumed were allocated to
various intangible assets, which are being amortized over periods of four to
fourteen years (dollar average life of ten years). The Company believes that the
unamortized balance of these assets, which is included in other assets, net, in
the accompanying condensed consolidated balance sheets, is recoverable. During
the current quarter, a charge for amortization relating to these intangibles of
approximately $0.6 million was reported in the accompanying condensed
consolidated financial statements.
9
<PAGE>
ACQUISITION OF PROGRESSIVE SYSTEM TECHNOLOGIES, INC.
On June 2, 1999, the Company completed its acquisition of 100 percent of the
common stock of Progressive System Technology, Inc., a Texas corporation, in
exchange for 274,810 shares of common stock of the Company. In addition to the
exchange of common stock in the merger, 225,190 shares of common stock of the
Company ("PST") were issued in exchange for $4.9 million of PST debt. PST
manufactures wafer-sorting equipment used by semiconductor manufacturers. The
acquisition has been accounted for using the pooling of interests method of
accounting. Accordingly, the accompanying condensed consolidated financial
statements have been restated for all periods prior to the business
combination. All material inter-company transactions between the Company and
PST have been eliminated. Costs associated with the PST merger, which consist
primarily of transaction costs amounted to approximately $0.1 million and were
expensed during the current fiscal period ended. PST's fiscal year end was
December 31. In accordance with Securities and Exchange Commission Rules, the
condensed consolidated statements of operations and cash flows for the three
months ended June 30, 1998 have been restated to reflect the statement of
operations and cash flows of PST. The condensed consolidated balance sheet, as
of March 31, 1999, has also been restated to reflect the financial position of
PST. PST's results of operations for the three-month period ended March 31,
1999 have been excluded from the reported results of operations and,
therefore, have been added to the Company's accumulated deficit as of April 1,
1999. PST's net sales and net loss for the three month period ended March 31,
1999 were $1.5 million and $2.3 million, respectively.
Conforming the Company's and PST's accounting practices resulted in adjustments
to net income (loss) or shareholders' equity of $0.1 million. Net sales and net
income (loss) for the individual companies reported prior to the merger were as
follows (dollars in thousands):
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
December 31, December 31,
1998 1998
(unaudited) (unaudited)
------------------ ----------------
<S> <C> <C>
Net sales:
Asyst Technologies, Inc.............. $ 16,711 $ 66,072
PST.................................. 1,200 8,180
---------- -----------
Total..................................... $ 17,911 $ 74,252
========== ===========
Net income (loss):
Asyst Technologies, Inc.............. $ (3,924) $ (15,613)
PST.................................. (2,271) (3,821)
---------- -----------
Total..................................... $ (6,195) $ (19,434)
========== ===========
</TABLE>
In conjunction with the PST acquisition, the Company also completed a sale of
625,000 shares of its common stock to eight institutional investors. The shares
issued in this transaction, which closed in May 1999, were priced at $18.00 per
share, for aggregate proceeds of approximately $11.3 million. The purpose of
this transaction was to remove the taint on shares of common stock to obtain
pooling of interests accounting treatment for the acquisition of PST. The
proceeds were used for general corporate purposes.
ACQUISITION OF PALO ALTO TECHNOLOGIES, INC.
On August 27, 1999, the Company acquired all of the equity of Palo Alto
Technologies, Inc., a California corporation formed in 1997 to develop and
market a new concept wafer transport system for use in semiconductor
manufacturing facilities ("PAT"), for $4.6 million consisting primarily of cash
and the Company's common stock. Approximately $4.6 million of the purchase price
in excess of the value of the net liabilities assumed was allocated to various
intangible assets including $4.0 million allocated to in-process research and
development which was expensed in the three month period ended September 30,
1999. The remaining $0.6 million was assigned to goodwill which will be
amortized over 5 years. During the current quarter, a charge for amortization
relating to these intangibles of approximately $10,000 was reported. Dr. Mihir
Parikh, the Company's Chairman and Chief Executive Officer, and Mr. Anthony
Bonora, the Company's Senior Vice President and Chief Technology Officer, were
shareholders of PAT and Dr. Mihir Parikh was Chairman of the Board of Directors
of PAT. See "Related Party Transactions".
10
<PAGE>
INVESTMENT IN MECS CORPORATION
On October 21, 1999, the Company purchased approximately 9.9 percent
of the common stock of MECS Corporation, a Japanese engineering and robotics
company, for approximately $1.5 million dollars. The investment in MECS is
currently being accounted for at costs. The Company also has an option to
purchase at least an additional 56.8 percent of the common stock of MECS, once
MECS meets various operating performance levels and disposes of its non-core
subsidiaries. If the Company were to acquire the remaining 56.8 percent of the
common stock of MECS, then the Company would spend approximately $9.9 million.
If the Company were to acquire 100 percent of the common stock of MECS, then the
Company would spend approximately $14.9 million. As of March 31, 1999, MECS had
long-term debt and bonds totaling approximately $34.0 million with interest
rates ranging between 1.4 percent to 1.8 percent per annum.
SHAREHOLDERS' RIGHTS PLAN
The Company has adopted a Shareholders' Rights Plan under which all shareholders
of record, as of July 10, 1998 (the "Record Date"), received a dividend of one
preferred share purchase right (a "Right") for each outstanding share of common
stock, without par value per share, (the "Common Shares") of the Company. The
Rights will also attach to new Common Shares issued after the Record Date. Each
Right entitles the registered holder to purchase from the Company one one-
hundredth of a share of Series A Junior Participating Preferred Stock, without
par value per share, (the "Preferred Shares") of the Company at a price of $140
per one one-hundredth of a Preferred Share (the "Purchase Price"), subject to
adjustment. Each Preferred Share is designed to be the economic equivalent of
100 Common Shares.
STOCK REPURCHASE PROGRAM
On June 22, 1998, the Board of Directors of the Company authorized a stock
repurchase program whereby authorizing the Company to repurchase of up to
2,000,000 shares of its Common Stock. Repurchases would be made utilizing
existing cash from time to time, at market prices and as market and business
conditions warrant, in the open market, or in negotiated transactions. The
Company used the remaining portion of the reacquired shares for re-issuance in
connection with certain employee stock programs. On June 3, 1999, in connection
with the acquisition of PST, the Company rescinded the stock purchase program
and reissued the remaining portion of the reacquired shares in May 1999.
SECONDARY OFFERING
In November 1999, the Company completed a secondary public offering of 2,229,000
shares of Common Stock at an offering price of $40.50 per share, net of $2.43
per share underwriting discount, or $38.07 per share. Of the 2,229,000 shares
offered, 229,000 shares were issued and sold by the Company pursuant to
underwriters' over-allotment provision. Proceeds from the offering, net of
issuance costs of $0.5 million amounted to $84.9 million. Net proceeds will be
used for capital expenditures, working capital and other general corporate
purposes.
SUBSEQUENT EVENT
On January 3, 2000, the Board of Directors of the Company declared a two-for-one
stock split of the Company's common stock effected in the form of a 100 percent
stock dividend. The stock dividend was paid on February 4, 2000 to the
shareholders of record as of January 7, 2000. Share and per share data have been
adjusted to give effect to the split.
11
<PAGE>
RELATED PARTY TRANSACTIONS
In September 1997, the Company entered into an asset purchase agreement with PAT
pursuant to which the Company sold to PAT intellectual property rights and
office equipment which were owned or licensed by Asyst Automation, Inc., a
discontinued operation, in consideration for quarterly earn-out payments, up to
an aggregate of $2.0 million. In addition, PAT granted the Company the non-
exclusive, worldwide right to distribute and sell any of PAT's products on PAT's
most favorable distributor terms and conditions; except PAT could grant
exclusive distribution rights to particular markets so long as such rights were
first offered to Asyst and we did not accept the offer. The Company agreed that
Mihir Parikh, our Chairman of the Board and Chief Executive Officer, and Anthony
Bonora, our Senior Vice President, Research and Development and Chief Technology
Officer, could serve as the Chairman of PAT and an advisor to PAT, respectively,
provided that they continued to meet their obligations as full time employees of
Asyst. In August 1999, the Company acquired all of the equity of PAT in a stock
purchase transaction for approximately $3.7 million, the repayment of $0.8
million of debt and earn-out payments to certain PAT security holders based on
future transport automation product revenue in excess of certain defined
threshold amounts. Dr. Mihir Parikh received approximately $1.4 million in
proceeds from the sale of his shares of PAT for which he had paid approximately
$0.7 million. In addition Dr. Mihir Parikh received approximately $0.8 million
for the repayment of a loan he had made to PAT. Mr. Anthony Bonora received
approximately $0.2 million in proceeds from the sale of his shares of PAT for
which he had paid approximately $0.1 million. Neither Dr. Mihir Parikh nor Mr.
Anthony Bonora participated in the negotiation of this transaction by the
Company, nor are they eligible to participate in the earn-out payments to PAT
shareholders.
As of December 31, 1999 and March 31, 1999, the Company held four notes
receivable from two executive officers of the Company with balances totaling
$1.2 million. The notes resulted from advances made to the officers to assist in
their relocation to California. The notes bear interest that ranges from 4.0
percent to 6.4 percent per annum and are fully secured by second deeds of trust
on certain real property, as well as, other pledged securities of the Company
owned by the officers, respectively. The notes, which are included in prepaid
expenses and other current assets and other assets, net in the accompanying
condensed consolidated balance sheets, mature at various dates between September
1, 2002 and January 31, 2004.
12
<PAGE>
Item 2 - Management's Discussion and Analysis of Results of Financial Condition
and Results of Operations
The following discussion of our financial condition and results of operations
should be read in conjunction with our consolidated financial statements and the
related notes included elsewhere in this prospectus. This discussion contains
forward-looking statements which involve risks and uncertainties. Our actual
results could differ materially from those anticipated in the forward-looking
statements as a result of certain factors, including but not limited to those
discussed in "Risk Factors" in our Annual Report on Form 10-K and in our
registration statement on Form S-3.
Overview
Our sales are tied to capital expenditures at wafer fabrication
facilities. The majority of our revenues in any single quarter are typically
derived from relatively few large customers, and our revenues will therefore
fluctuate based on a number of factors, including:
. the timing of significant customer orders;
. the timing of product shipments;
. variations in the mix of products sold;
. the introduction of new products;
. changes in customer buying patterns;
. fluctuations in the semiconductor equipment market;
. the availability of key components; and
. general trends in the economy.
In addition, due to production cycles and customer requirements, we
often ship significant quantities of products in the last month of the quarter.
This factor increases the risk of unplanned fluctuations in net sales since we
have limited opportunity to take corrective actions should a customer reschedule
a shipment or otherwise delay an order during the last month of the quarter.
Fiscal year 1999 was significantly and adversely impacted by the
worldwide drop in demand for semiconductor devices. The drop in demand resulted
from a slowdown in the Asian economies and over-capacity of memory chip
manufacturing. In response, many of our customers slashed capital expenditure
budgets by 40 percent or more. Net sales decreased 49.0 percent from $182.3
million for the year ended March 31, 1998 to $92.9 million for the year ended
March 31, 1999. In addition, in fiscal year 1999, we acquired the FluoroTrac
Auto-ID product line from Flouroware, Inc. and Hine, enhancing our wafer
tracking and robotics capabilities. The significant decline in net sales and the
new acquisitions required us to undertake substantial restructuring activities
to reduce costs and eliminate low margin products. Nevertheless, we experienced
a net loss in fiscal year 1999 of $26.9 million compared to a net income of
$15.4 million in fiscal year 1998.
In contrast, net sales for each of the quarters ended June 30, 1999,
September 30, 1999 and December 31,1999 have increased sequentially by over 45
percent over the prior quarter. Whereas for most of the year ended March 31,
1999 we were dependent upon orders received and shipped during the same quarter,
our backlog of orders for the quarter ending March 31, 2000, exceeds our planned
shipments.
In June 1999, we acquired all of the shares of PST, which manufactures
wafer-sorting equipment used by semiconductor manufacturers. The acquisition was
accounted for as a pooling of interests. Accordingly, our consolidated financial
statements for all periods presented have been restated to include the financial
statements of PST.
13
<PAGE>
In August 1999, we acquired all of the shares of PAT, which is in the
process of developing a continuous flow transport system for use in
semiconductor manufacturing facilities. The transaction was accounted for as a
purchase.
On October 21, 1999, the Company purchased approximately 9.9 percent of
the common stock of MECS Corporation, a Japanese engineering and robotics
company, for approximately $1.5 million dollars. The investment in MECS is
currently being accounted for at cost. The Company also has an option to
purchase at least an additional 56.8 percent of the common stock of MECS, once
MECS meets various operating performance levels and disposes of its non-core
subsidiaries. If the Company were to acquire the remaining 56.8 percent of the
common stock of MECS, then the Company would spend approximately $9.9 million.
If the Company were to acquire 100 percent of the common stock of MECS, then the
Company would spend approximately $14.9 million. As of March 31, 1999, MECS had
long-term debt and bonds totaling approximately $34.0 million with interest
rates ranging between 1.4 percent to 1.8 percent per annum.
Three and Nine Months Ended December 31, 1998 and 1999
The following table sets forth the percentage of net sales represented
by consolidated statements of operations data for the periods indicated:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
December 31, December 31,
-------------------- --------------------
(Unaudited) (Unaudited)
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net sales................................................. 100.0% 100.0 % 100.0% 100.0%
Cost of sales............................................. 54.1 64.6 55.2 63.0
----- ----- ----- -----
Gross profit.......................................... 45.9 35.4 44.8 37.0
----- ----- ----- -----
Operating expenses:
Research and development................................ 8.3 25.3 10.6 18.2
Selling, general and administrative..................... 24.0 58.1 28.8 44.8
Goodwill amortization................................... 1.1 -- 1.4 --
In-process research and development of acquired
businesses and product line.......................... -- -- 3.0 9.6
Restructuring charge.................................... -- -- -- 3.9
----- ----- ----- -----
Total operating expenses.............................. 33.4 83.4 43.8 76.5
----- ----- ----- -----
Operating income (loss)............................... 12.5 (48.0) 1.0 (39.5)
Other income, net......................................... 1.3 2.0 0.8 2.5
----- ----- ----- -----
Income (loss) before provision (benefit) for
income taxes............................................ 13.8 (46.0) 1.8 (37.0)
Provision (benefit) for income taxes...................... 4.6 (11.4) 1.6 (10.8)
----- ----- ----- -----
Net Income (loss)......................................... 9.2% (34.6)% 0.2% (26.2)%
===== ===== ===== =====
</TABLE>
Results of Operations
Net Sales. Net sales increased 256.3 percent from $17.9 million for the
three months ended December 31, 1998, to $63.8 million for the three months
ended December 31, 1999. Net sales increased 77.2 percent from $74.3 million for
the nine months ended December 31, 1998 to $131.6 million for the nine months
ended December 31, 1999. The increase in net sales for the three and nine months
ended December 31, 1999 is due to increased demand for our products as capital
expenditures of semiconductor manufacturers have increased to add capacity.
14
<PAGE>
International sales have increased in terms of dollars of net sales and as
a percent of net sales for the nine months ended December 31, 1999 compared to
the nine months ended December 31, 1998. International sales by region for the
nine months ended December 31, 1998 and 1999, are summarized as follows (dollars
in millions):
<TABLE>
<CAPTION>
Nine Months Ended Nine Months Ended
December 31, 1999 December 31, 1998
(unaudited) (unaudited)
--------------------------------- --------------------------------
Percentage Percentage
Geographic of of
Region Net Sales Net Sales Net Sales Net Sales
------------------ ---------------- ------------- -------------- --------------
<S> <C> <C> <C> <C>
Taiwan $ 44.2 33.6% $ 23.1 31.1%
Japan 18.2 13.9 6.6 8.9
Singapore 9.6 7.3 1.5 2.0
Europe 4.4 3.3 3.0 4.0
Korea 0.4 0.3 -- --
---------------- ------------- -------------- --------------
$ 76.8 58.4% $ 34.2 46.0%
================ ============= ============== ==============
</TABLE>
Our results of operations have not been adversely affected by currency exchange
rates because we have invoiced substantially all of our international sales in
United States dollars. However, there can be no assurance that our results of
operations will not be adversely affected by such fluctuations in the future.
We have experienced cancellations and delays of orders in the past,
particularly during fiscal year 1999, while the industry was undergoing a
significant downturn. During the nine months ended December 31, 1999,
cancellation and delays were not significant. Given the cyclical nature of the
semiconductor industry, we can give no assurance that there will not be future
cancellations or delays in orders.
Gross Margin. Gross margin increased from 35.4 percent of net sales for the
three months ended December 31, 1998, to 45.9 percent of net sales for the three
months ended December 31, 1999. Gross margin increased from 37.0 percent of net
sales for the nine months ended December 31, 1998 to 44.8 percent of net sales
for the nine months ended December 31, 1999. The primary contributor to the
increase in the gross margin for the three and nine months ended December 31,
1999 was that net sales increased at a rate faster than indirect manufacturing
costs. As a result of the increase in net sales, we have increased our direct
labor resources. Gross margin also improved as a result of the impact of cost
reduction efforts we undertook during the past year, offset somewhat by lower
gross margins in our robotics products which were acquired as part of our
acquisition of Hine in August 1998. It remains our goal to improve gross margins
as a percentage of net sales in the future through reduction of direct
manufacturing costs and increased leverage of the indirect manufacturing costs
through higher net sales.
Research and Development. Research and development expenses were $4.5
million and $5.3 million for the three months ended December 31, 1998 and 1999
respectively. Research and development expenses increased 3.5 percent from $13.5
million for the nine months ended December 31, 1998, to $14.0 million for the
nine months ended December 31, 1999. Research and development expenses decreased
as a percentage of net sales from 25.3 percent for the three months ended
December 31, 1998 to 8.3 percent for the three months ended December 31, 1999
and decreased as a percentage of net sales from 18.2 percent for the nine months
ended December 31, 1998 to 10.6 percent for the nine months ended December 31,
1999. The decrease in research and development expenses as a percentage of net
sales for the comparative three and nine month periods is due primarily to our
net sales increasing at a higher rate than the increase in spending for research
and development activities. We expect that our research and development expenses
may increase in future periods, but will fluctuate as a percentage of net sales.
Selling, General and Administrative. Selling, general and administrative
expenses were $10.4 million and $15.3 million for the three months ended
December 31, 1998 and 1999 respectively. Selling, general, and
15
<PAGE>
administrative expenses increased 13.7 percent from $33.3 million for the nine
months ended December 31, 1998, to $37.8 million for the nine months ended
December 31, 1999. Selling, general and administrative expenses have increased
because of acquisitions of Hine in August 1998 and PAT in August 1999,
additional general, administrative and sales staff additions in response to the
increase in our sales and higher commission expenses related to the increase in
our net sales. During the nine months ending December 31, 1999, headcount
related to selling, general and administrative increased by 221 employees
including 91 employees hired during the three month period ended December 31,
1999. We expect further increases in our selling, general and administrative
headcount to support additional increases in our net sales. However, the
increase in headcount as a percentage of the increase in net sales is expected
to be lower than that which we experienced in the three month and nine month
period ended December 31, 1999. The decrease in selling, general and
administrative expenses as a percentage of net sales is due primarily to net
sales increasing at a higher rater than the increase in spending in selling,
general and administrative activities in both the three and nine month
comparative periods. We expect that selling, general and administrative expenses
may increase in future periods due to expected growth in net sales and new
acquisitions, although the spending may vary as a percentage of net sales.
In-process Research and Development of Acquired Businesses and Product
Line. In April 1998, we completed the acquisition of the FluoroTrac product line
from Fluoroware. The transaction was completed in the three months ended June
30, 1998. In connection with the acquisition of FluoroTrac, we recorded a write-
off of $1.2 million of in-process research and development for the three months
ended June 30, 1998. The remaining excess cost of purchase price over net assets
acquired, approximately $0.3 million, is being amortized over periods of three
to five years.
In July 1998, we acquired HDI using the purchase method of accounting. In
connection with the acquisition of HDI, we recorded a write-off of $5.9 million
of purchased in-process research and development costs for the three months
ended December 31, 1998. In addition, approximately $18.4 million of the
purchase price in excess of the value of net liabilities we assumed were
allocated to various intangible assets, which are being amortized over periods
of four to fourteen years, with a dollar average life of ten years. For the
three months ended December 31, 1999, a charge for amortization relating to
these intangibles, approximately $0.6 million, was included in our selling,
general and administrative expenses.
In August 1999, we acquired PAT using the purchase method of accounting. In
connection with the acquisition of PAT, we recorded a write off of $4.0 million
of purchased in-process research and development costs for the three months
ended December 31, 1999. In addition, approximately $0.6 million of the purchase
price in excess of the value of the net liabilities we assumed were allocated to
goodwill, which is being amortized over five years. During the nine months ended
December 31, 1999, the amount of goodwill amortized was $0.1 million. The
purchased in-process research and development and goodwill do not result in a
tax benefit.
Restructuring Charge. For the three months ended December 31, 1998, in
response to the reductions in capital spending by semiconductor manufacturers,
we undertook a formal plan to lower our cost structure and reorganize to more
effectively manufacture, market and sell our portfolio of products and value
added services. The restructuring effort consisted of the closure of two of our
facilities in the United States during the three months ended December 31, 1998
and the closure and downsizing of certain facilities in Europe for the three
months ended March 31, 1999. In addition, management of the software product
line was streamlined eliminating one level of management and administrative
activities, which were deemed redundant.
Other Income, Net. Other income, net, includes interest income, interest
expense, foreign exchange gain and loss, which has not been material, and
royalty income. Other income, net, increased from $0.4 million for the three
months ended December 31, 1998 to $0.8 million for the three months ended
December 31, 1999. Other income, net, decreased from $1.8 million for the nine
months ended December 31, 1998 to $1.1 million for the nine months ended
December 31, 1999. Other income was lower during the nine months ended December
31, 1999 due to a lower weighted average investment balance. Our average cash,
cash equivalents and short-term investments balance for the nine months ended
December 31, 1998 was approximately $41.2 million compared to $71.5 million for
the nine months ended December 31, 1999. Our average current and long-term debt
balance was $5.8 million for the nine months ended December 31, 1998, while we
had no debt outstanding for the nine months ended December 31, 1999.
16
<PAGE>
Provision (Benefit) for Income Taxes. We reported a benefit for income
taxes of $2.0 million and a provision for income taxes of $3.0 million for the
three months ended December 31, 1998 and 1999, respectively. For the nine months
ended December 31, 1998 and 1999, we reported a benefit for income taxes of $8.0
million and provision for income taxes of $2.1 million, respectively. The
effective income tax rates for the three and nine month periods in 1998 were
impacted by the acquisition of PST. The annual effective tax rates and benefits
recorded for the three and nine months ended December 31, 1998 do not recognize
the full deferred benefits of the utilization of net operating losses of PST
because there was uncertainty as to PST's ability to generate future taxable
income. Absent the restatement of earnings to reflect the pooling of interests
related to PST for the three and nine months ended December 31, 1998, our
effective tax rate would have been 34 percent. The annual estimated effective
tax rate and benefit recorded for the nine months ended December 31, 1999,
reflect the non-deductible charge of $4.0 million related to the acquisition of
PAT in August 1999. Additionally, the benefit for income taxes was impacted by
foreign income and withholding taxes in excess of the statutory rates, the lack
of Foreign Sales Corporation benefit due to net operating losses for the nine
months ended December 31, 1999 and limitations on state net operating loss
carryforwards. Absent of these considerations the effective tax rate for the
three and nine months ended December 31, 1999, would have been 33.5 percent.
Year 2000 Compliance. We have not experienced any interruption to our
business activities or incurred any impairment to our financial condition or
results of operations as a result of passing into calendar year 2000. There have
been no material changes to prior estimates of costs related to our remediation
efforts. We will continue to monitor internal systems and products to determine
the impact, if any, of problems associated with the year 2000.
Item 3 - Quantitative and Qualitative Disclosures About Market Risk
Although we operate and sell products in various global markets,
substantially all sales are denominated in the U.S. dollar therefore reducing
the foreign currency risk. To date, the foreign currency transactions and
exposure to exchange rate volatility have not been significant. We cannot
anticipate with certainty the effect of inflation on our operations. To date,
inflation has not had a material impact on our net sales or results of
operations, however, with the industry's upturn currently underway; labor
markets are tightening thus putting upward pressure on current labor costs. Our
exposure to market risk for changes in interest rates relate primarily to the
investment portfolio. Our investment portfolio consists of short-term, fixed
income securities and by policy is limited by the amount of credit exposure to
any one issuer. Fixed rate securities have their fair market value adversely
affected due to rise in interest rates. To date, the change in interest rate
markets has not had a material impact on our results of operations or the market
value of our investments. There can be no assurance that foreign currency risk,
inflation or interest rate risk will not have a material impact on our financial
position, results of operations or cash flow in the future.
17
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
In October 1996, we filed a lawsuit against a number of defendants
including Jenoptik-Infab, Inc. alleging infringement of two patents
related to our SMART Traveler System. The suit later included claims
against defendants alleging breach of fiduciary duty, misappropriation
of trade secrets and unfair business practices. The defendants filed
counter claims alleging the patents invalid, unenforceable and not
infringed and alleging that we had violated federal antitrust laws and
engaged in unfair competition. In November 1998, the court granted
defendants motion for partial summary judgment as to most of the
patent infringement claims. In January 1999, the court granted our
motion for leave to seek reconsideration of the November 1998 summary
judgment order and also, pursuant to a stipulation of the parties,
dismissed without prejudice two of the three antitrust counter claims
brought by the defendants. Since then, the parties stipulated to the
dismissal with prejudice of the defendants' unfair competition and
remaining antitrust counter claim, and our breach of fiduciary duty,
misappropriation of trade secrets and unfair business practices
claims. In June 1999, the court granted our motion for reconsideration
in the sense that it considered the merits of our arguments, but did
not change its prior summary judgment ruling and also granted summary
judgment for defendants on the remaining patent infringement claim. We
intend to take an appeal.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
10.22 Lease Agreement between Exar Corporation and
Asyst Technologies, Inc., dated October 18,
1999.
27.1 Financial Data Schedule
(b) Reports on Form 8-K
None
18
<PAGE>
SIGNATURES
Pursuant to the requirements of the securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ASYST TECHNOLOGIES, INC.
Date: February 11, 2000 By: /s/ Douglas J. McCutcheon
-------------------- --------------------------
Douglas J. McCutcheon
Senior Vice President
Chief Financial Officer
Signing on behalf of the registrant
and as the principal accounting and
financial officer
19
<PAGE>
EXHIBIT INDEX
Exhibit Number Description of Exhibit
- -------------- ----------------------
10.22 Lease Agreement between Exar Corporation and Asyst
Technologies, Inc., dated October 18, 1999.
27.1 Financial Data Schedule
<PAGE>
EXHIBIT 10.22
- --------------------------------------------------------------------------------
LEASE AGREEMENT
between
ASYST TECHNOLOGIES, INC.
a California corporation,
and
EXAR CORPORATION,
a Delaware corporation
Dated as of October 18, 1999
- -------------------------------------------------------------------------------
<PAGE>
LEASE AGREEMENT
This Lease Agreement ("Lease") is entered into as of October 18, 1999,
by and between Asyst Technologies, Inc., a California corporation ("Tenant") and
Exar Corporation, a Delaware corporation ("Landlord").
Agreement
In consideration of the mutual promises contained herein, Landlord and
Tenant agree as follows:
SECTION 1. Summary Of Lease Provisions
1.1 Tenant: Asyst Technologies, Inc. ("Tenant").
1.2 Landlord: Exar Corporation ("Landlord").
1.3 Premises: Approximately twenty-two thousand six hundred twenty
(22,620) square feet of space consisting of certain portions (office,
laboratory, and other light industrial areas) of a building located at 48760
Kato Road in the City of Fremont, County of Alameda, State of California as
shown cross-hatched on the site plan attached hereto as Exhibit A, together with
certain rights appurtenant thereto, as more specifically described herein. Upon
the Commencement Date, Tenant shall be entitled to use approximately eighteen
thousand thirty-two (18,032) square feet of the Premises as shown cross-hatched
on Exhibit A-l, attached hereto and incorporated herein. Within six (6) months
of the Commencement Date, on a date to be designated by Tenant, but in no event
later than May 1,2000, Tenant shall take possession of the remaining area of the
Premises, consisting of approximately four thousand five hundred eighty-eight
(4,588) square feet as shown cross-hatched on Exhibit A2, attached hereto and
incorporated herein.
1.4 Term: Three (3) years and as the same may be extended pursuant to
Section 3.3.
1.5 Commencement Date: November 1, 1999, subject to the provisions of
Section 3 below.
1.6 Ending Date: October 31,2002, unless sooner terminated or extended
pursuant to the terms of this Lease.
1.7 Monthly Rent for Lease Term: Prior to occupying the area indicated
in Exhibit A-2, monthly Rent shall be Twenty-one Thousand Six Hundred Thirty-
eight Dollars and Forty Cents ($21,638.40). Upon occupying the area indicated in
Exhibit A-2 or May 1,2000, whichever shall first occur, monthly Rent payable by
Tenant shall be increased to Twenty-seven Thousand One Hundred Forty-four
Dollars and Zero Cents ($27,144.00). Monthly Rent shall be increased to Twenty-
eight Thousand Two Hundred Seventy-five Dollars and Zero Cents ($28,275.00) for
the period of November 1, 2000 through October 31, 2001, and again increased to
Twenty-nine Thousand Four Hundred Six Dollars and Zero Cents ($29,406.00) for
the period November 1,2001 through October 31,2002. Monthly Rent for Extended
Term is subject to the
1.
<PAGE>
terms of Sections 3.3 and 3.4. Receipt of the first month's Rent is hereby
acknowledged by Landlord. Rent will be paid in advance on the first day of each
month.
1.8 Security Deposit: Twenty-one Thousand Six Hundred Thirty-eight
Dollars and Forty Cents ($21,638.40), which shall automatically be increased to
Twenty-seven Thousand One Hundred Forty-four Dollars and Zero Cents ($27,144.00)
immediately prior to Tenant occupying the area noted in Exhibit A-2. The
Security Deposit shall be automatically adjusted to be equal to increases in the
monthly Rent.
1.9 Use of Premises: Administrative, engineering, research and
development, sales and marketing, and directly related activities. Light
industrial manufacturing shall also be permitted, but only after Landlord's
prior written approval of the exact type of manufacturing which is intended, and
only if there is no use of Hazardous Materials.
1.10 Parking Spaces: Tenant shall have the non-exclusive right to use
3.24/1000 parking spaces. Included within this number of permitted spaces and
as set forth on the attached Exhibit A-3, Landlord shall label six (6) stalls in
front of Premises as "Visitors Only," but Landlord shall have no obligation to
ensure that only vehicles belonging to Tenant's employees and guests are parked
at these six (6) stalls.
1.11 Addresses for Notices:
To Landlord: Exar Corporation
48720 Kato Road Fremont,
California 94538
Attn: Legal Department
To Tenant: Asyst Technologies, Inc.
48761 Kato Road
Fremont, California 94538
Attn: Mr. Terry Moshier
President and Chief Operating Officer
SECTION 2. Property Leased
2.1 Premises. Landlord hereby Leases to Tenant and Tenant hereby Leases
from Landlord, upon the terms and conditions set forth herein, certain areas of
that certain building ("Premises") referred to in Section 1.3 above, and as
shown cross-hatched on the Site Plan attached hereto as Exhibits A, A-1 and A-2.
As set forth in Section 1.3, Tenant shall take occupancy of the areas identified
in Exhibit A-1 upon the Commencement Date, and the areas identified in Exhibit
A-2 within six (6) months thereafter, on a date to be specified by Tenant, but
in no event later than, May 1,2000. In addition, Tenant shall have the
following rights with respect to the real property, more particularly described
in the legal description attached as Exhibit B hereto and the property indicated
by the shaded area on Exhibit A-3 ("Parking Area"): (i) the non-exclusive right
to use no more than the number of parking spaces set forth in Section 1.10
above, the location of which may be designated from time to time by Landlord
subject to the consent of Tenant, which consent shall not be unreasonably
withheld; and (ii) such other non-exclusive rights as are necessary and
convenient to Tenant's possession of the Premises or
2.
<PAGE>
performance of Tenant's obligations under this Lease. Landlord reserves the
right to grant to any user authorized by Landlord, the non-exclusive right to
use the Parking Area for pedestrian and vehicular ingress and egress and
vehicular parking. Landlord also retains the right to freely and without cost
use the front door to the Premises. Prior to taking occupancy of the areas
identified in Exhibit A-2, Tenant shall have the right to walk through said area
for the limited purpose of accessing areas identified in Exhibit A-1.
2.2 Representations. Landlord represents that, as of the Commencement
Date of the Lease, to the best of its knowledge, (i) the Premises, including any
tenant improvements thereto made by Landlord under the Lease, shall be in
compliance with all laws and regulations and built in a good and workmanlike
manner with good materials in accordance with plans therefore, and (ii) the
equipment and building systems serving the Premises are in good working order.
Landlord also represents that to the best of its knowledge, there are no
Hazardous Materials on the Premises.
2.3 Acceptance of Premises. By taking occupancy, Tenant shall be deemed
to have accepted the Premises as being in good and sanitary order, condition and
repair and takes possession of the Premises, subject to (i) all applicable laws,
covenants, conditions, restrictions, easements and other matters of public
record and (ii) the rules and regulations as may be from time to time
promulgated by Landlord governing the use of the Premises, subject to the
consent of Tenant, which consent shall not be unreasonably withheld, and
further, to have accepted as functional all improvements. Tenant acknowledges
that it has conducted or had the opportunity to conduct all investigations,
tests and studies concerning the Premises and the Parking Area that Tenant deems
appropriate and material to its decision to Lease the Premises. In regard to
Hazardous Materials, Landlord shall be responsible for, and bear any clean-up
costs related to, problems affecting the Premises that are attributable to
occurrences taking place before the Commencement Date of the term of the Lease,
and Tenant shall be responsible for, and bear any costs or damages related to,
any problems affecting the Premises that Tenant causes during the term of the
Lease. Tenant acknowledges that (i) neither Landlord nor Landlord's agents have
made any representation or warranty as to the suitability of the Premises for
the conduct of Tenant's business, the condition of the Premises (except as
otherwise provided in Section 2.2), or the use or occupancy which may be made
thereof and (ii) Tenant has independently investigated and is satisfied that the
Premises are suitable for Tenant's intended use as set forth in Section 1.9
above. It has been orally represented to Tenant that certain manufacturing
areas may have a "moisture" problem with the floor, and Tenant enters this Lease
with a full and complete knowledge of this condition, and assumes full
responsibility for any damage to its business or operations related to this
condition, provided, however, that (i) Landlord shall repair any damage that
this condition has caused or may cause to the Premises, and (ii) Tenant shall
not bear any responsibility or costs associated with repairing any damage to the
Premises (flooring) occurring after the Commencement Date related to the
"moisture" problem unless Tenant desires to repair same in Tenant's sole
discretion.
SECTION 3. Term
3.1 Commencement Date. The term of this Lease ("Lease Term") shall be
for the period specified in Section 1.4 above, subject to extension pursuant to
the terms of Section 3.3 below, commencing on the date set forth in Section 1.5
("Commencement Date") and
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terminating on the date set forth in Section 1.6 ("Ending Date"). The expiration
of the Lease Term or sooner termination of this Lease is referred to herein
sometimes as the "Lease Termination".
3.2 Delay of Commencement Date. Landlord shall not be liable for any
damage or loss incurred by Tenant for Landlord's failure for whatever cause to
deliver possession of the Premises by any particular date (including the
Commencement Date), nor shall this Lease be void or voidable on account of such
failure to deliver possession of the Premises; provided that if Landlord does
not deliver possession of the Premises to Tenant by the date which is five (5)
days from the date as set forth in Section 1.5 above with respect to the area
indicated in Exhibit A-l, and sixty (60) days from the date as set forth in
Section 1.5 above with respect to the area indicated in Exhibit A-2, Tenant
shall have the right to terminate this Lease by written notice delivered to
Landlord within five (5) days thereafter, and Landlord and Tenant shall be
relieved of their respective obligations hereunder; provided further that said
five (5) day period shall be extended by the number of days work (if any) on the
Premises is delayed due to fault or neglect of Tenant, acts of Tenant or
Tenant's agents or due to acts of God, labor disputes, strikes, fires, rainy or
stormy weather, acts or failure sot act of public agencies, inability to obtain
labor or materials, earthquake, war, insurrection, riots and other causes beyond
Landlord's reasonable control.
3.3 Lease Term Extension. Provided Landlord does not and/or will not
have an internal requirement for the Premises, Tenant shall have an opportunity
to extend this Lease for an additional one (1) year period ( "Extended Term") on
the following terms and conditions:
(a) Tenant and Landlord sign an amendment extending the Lease Term,
and such amendment shall specify the Rent for the Extended Term as provided for
in 3,4 below, and such other terms as the parties may agree to,
(b) The Lease Term may not be extended pursuant to this Section 3.3
if Tenant is in default in the performance of any of the terms and conditions of
this Lease.
(c) Except as otherwise modified by the amendment entered into in
accordance with the terms set forth herein, all terms and conditions of this
Lease shall apply during each Extended Term.
(d) Upon the extension of the Lease Term pursuant to this Section
3.3, the term "Lease Term" as used in this Lease shall thereafter include the
applicable Extended Term and the Lease Termination date shall be the expiration
date of the Extended Term.
3.4 Rent During any Extended Term shall be at least fair market value
for comparable space in the immediate area, but in no event shall such monthly
Rent be lower than that being paid for the immediately prior month.
SECTION 4. Use Of Premises
4.1 Permitted Uses. Tenant shall use the Premises only in conformance
with applicable governmental laws, regulations, rules and ordinances for the
purposes set forth in Section 1.9 above, and for no other purpose without the
prior written consent of Landlord, which
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consent Landlord may withhold in its sole discretion. Any change in use of the
Premises without the prior written consent of Landlord shall be a Default by
Tenant.
Subject to the terms and conditions of this Lease and such rules and
regulations as Landlord may from time to time prescribe, Tenant and Tenant's
agents shall have the non-exclusive right to use during the Lease Term the
access roads, sidewalks, landscaped areas and other facilities on the Parking
Area subject to Landlord's rights pursuant to this Section 4.1, Section 4.2
below and Section 9 below. Landlord reserves the right to grant to any user
authorized by Landlord, the non-exclusive right to use the Parking Area for
pedestrian and vehicular ingress and egress and vehicular parking. Tenant's use
rights shall terminate upon Lease Termination. Subject to Tenant's consent,
which shall not be unreasonably withheld, Landlord further reserves the right to
promulgate such reasonable rules and regulations relating to the use of such
portions of the Parking Area and to amend such rules and regulations from time
to time as Landlord may deem appropriate. Subject to Tenant's rights of consent
referred to in the preceding sentence, any amendments to the rules and
regulations shall be effective as to Tenant, and binding on Tenant, upon
delivery of a copy of such rules and regulations to Tenant. Tenant and Tenant's
agents shall observe such rules and regulations and any failure by Tenant or
Tenant's agents to observe and comply with the rules and regulations shall be a
Default by Tenant.
4.2 Tenant to Comply with Legal and Applicable Requirements. Tenant
shall, at its sole cost, promptly comply with all laws, statutes, ordinances,
rules, regulations, orders or requirements of all municipal, county, state and
federal authorities and all quasi-governmental authorities relating to or
affecting the use, occupational safety, occupancy or condition of the Premises
now in force, or which may hereafter be in force. Tenant and Landlord shall, in
proportion to the number of parking spaces allocated to them, share the cost of
complying with all laws, statutes, ordinances, rules, regulations, orders or
requirements of all municipal, county, state and federal authorities and all
quasi-governmental authorities relating to or affecting the use, occupational
safety, occupancy or condition of the Parking Area now in force, or which may
hereafter be in force. Tenant shall be solely responsible for costs related to
the signage as indicated in Exhibit C. Tenant's obligations pursuant to this
Section 4.2 shall include without limitation maintaining or restoring the
Premises and making non-structural alterations and additions in compliance and
conformity with all laws and Applicable Requirements as that term is defined in
Section 24.3, and recorded documents relating to the use, occupational safety,
occupancy or condition of the Premises and/or Parking Area during the Lease
Term; provided, however, that Landlord shall, at its expense, make any
alteration or addition required to bring the Premises and/or Parking Area into
compliance with legal and Applicable Requirements in effect at the time the
Premises, any improvements installed therein by Landlord, or the Parking Area,
respectively, were originally constructed. At Landlord's option, Landlord may
make the required alteration, addition or change, and Tenant shall pay the cost
thereof as Additional Rent, except as otherwise provided herein. Immediately
after taking possession of the Premises, Tenant shall obtain or file any
application for permits, licenses or other authorizations required for the
lawful operation of its business at the Premises. The judgment of any court of
competent jurisdiction or the admission of Tenant in any action or proceeding
against Tenant, regardless of whether Landlord be a party thereto or not, that
Tenant has violated such ordinance, regulation, rule, requirement, recorded
document or statue relating to the use, occupational safety, occupancy or
condition of the Premises or Parking Area shall be conclusive of the fact of
such
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violation by Tenant. Any alterations or additions undertaken by Tenant pursuant
to this Section 4.2 shall be subject to the requirements of Section 10.1 below.
4.3 Prohibited Uses. Tenant and Tenant's agents shall not commit or
suffer to be committed any waste upon the Premises. Tenant and Tenant's agents
shall not do or permit anything to be done in or about the Premises or Parking
Area which will in any way obstruct or interfere with the rights of Landlord, or
injure or annoy Landlord or its employees. Tenant and Tenant's agents shall not
use or allow the Premises to be used for any unlawful, immoral or any purpose
not permitted by this Lease, nor shall Tenant or Tenant's agents cause,
maintain, or permit any nuisance in, on or about the Premises. Tenant and
Tenant's agents shall not do or permit anything to be done in or about the
Premises or Parking Area nor bring or keep anything in the Premises or Parking
Area which will in any way increase the rate of any insurance upon the Premises
or Parking Area or any part thereof or any of its contents, or cause a
cancellation of any insurance policy covering the Premises or Parking Area or
any part thereof or any of its contents, nor shall Tenant or Tenant's agents
keep, use or sell or permit to be kept, used or sold in or about the Premises or
Parking Area any articles which may be prohibited by a standard form policy of
fire insurance. In the event the rate of any insurance upon the Premises or
Parking Area or any part thereof or any of its contents is increased because of
the acts or omissions of Tenant or Tenant's agents, Tenant shall pay, as
Additional Rent, the full cost of such increase; provided however this provision
shall in no event be deemed to constitute a waiver of Landlord's right to
declare a Default hereunder by reason of such increase or of any other rights or
remedies of Landlord in connection with such increase. Tenant and Tenant's
agents shall not place any loads upon the floor, walls, or ceiling of the
Premises which would endanger the Premises or the structural elements thereof,
nor place any harmful liquids in the drainage system of the Premises. No waste
materials or refuse shall be dumped upon or permitted to remain upon any part of
the Premises or Parking Area except in enclosed trash containers. No materials,
supplies, equipment, finished products (or semi-finished products), raw
materials, or other articles of any nature shall be stored upon, or be permitted
to remain on, any portion of the Parking Area. Tenant shall not use, store on,
dispose or allow the use, storage or disposal, of any Hazardous Materials, as
that term is defined in Section 24.2, on any portion of the Premises. Tenant
shall indemnify, and hold Landlord, and its officers, directors, employees and
agents harmless from and against any and all claims, losses, damages,
liabilities or expenses (including, without limitation, attorneys' fees) arising
in connection with a breach of the obligations set forth herein. Tenant's
obligation to defend, hold harmless and indemnify pursuant to this Section shall
survive Lease Termination or expiration.
SECTION 5. Rent
5.1 Rent. Tenant shall pay to Landlord as Rent for the Premises
("Rent"), in advance, on the first day of each calendar month, commencing on the
date specified in Section 1.5 and continuing throughout the Lease Term and any
extension thereof, the Rent set forth in Section 1.7 or 3.4 above, as the case
may be. Rent shall be prorated for any partial month during the Lease Term. Rent
shall be payable without deduction, offset, prior notice or demand in lawful
money of the United States to Landlord at the address herein specified for
purposes of notice or to such other persons or such other places as Landlord may
designate in writing.
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5.2 Additional Rent. Ail charges, costs and expenses and other sums
which Tenant is required to pay hereunder, including but not limited to the
service fee specified in Section 6 (together with all interest and charges that
may accrue thereon in the event of Tenant's failure to promptly pay the same),
and all damages, costs and expenses which Landlord may incur by reason of any
Default by Tenant shall be deemed to be additional rent hereunder ("Additional
Rent"). In the event of nonpayment by Tenant of any Additional Rent, Landlord
shall have all the rights and remedies with respect thereto as Landlord has for
the nonpayment of Rent. The term "Rent" as used in the Lease shall mean Rent and
Additional Rent.
5.3 Security Deposit. Prior to the Commencement Date, Tenant shall
deposit with Landlord additional monies in the amount and at the times set forth
in Section 1.8 as security for Tenant's faithful performance of Tenant's
obligations hereunder. If Tenant fails to pay Rent or Additional Rent due
hereunder, Landlord may use, apply or retain all or any portion of said Security
Deposit for the payment of such Rent or Additional Rent in default. If Landlord
so uses or applies all or any portion of said Security Deposit, Tenant shall,
within ten (10) working days after receipt of written demand therefor, deposit
cash in such account in an amount sufficient to restore said Security Deposit to
the full amount hereinabove stated. Said Security Deposit, or so much thereof
as has not theretofore been applied by Landlord in accordance with this Section,
shall be returned to Tenant within thirty (30) days after termination or
expiration of the Lease.
SECTION 6. Services. Provided that Tenant is not in Default, Landlord shall,
for a monthly fee (the "Service Fee") of Nine Thousand Nine Hundred Seventeen
Dollars and Sixty Cents ($9,917.60) until Tenant takes possession of the 4,588
square feet shown as cross-hatched on Exhibit A-2 and Twelve Thousand Four
Hundred Forty-one Dollars and Zero Cents ($12,441.00) thereafter, payable in
advance on the first day of each calendar month, furnish and maintain (if
applicable) throughout the term of this Lease ' and any Extended Term, the
following Services in connection with Tenant's use of the Premises, Parking
Areas and common areas:
(a) Janitorial and cleaning services five (5) nights per week, as is
customary at the site;
(b) Electricity, hot and cold water, gas, if any, and all other
utilities, including operating maintenance repairs;
(c) Heating, ventilation and air conditioning;
(d) Pest extermination as required;
(e) Twenty-four (24) hour access to and security for the Premises;
(f) Rubbish removal as is customary at the site;
(g) Utilization of existing telephone connection and data lines (does not
include actual usage, which will be billed directly to Tenant by the
selected service provider);
(h) High pressure air and vacuum;
(i) Landscape as is customary at the site;
(j) Parking area maintenance;
(k) Real property taxes;
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(l) Cafeteria use;
(m) Exterior window cleaning (twice annually); and
(n) Building insurance.
SECTION 7. Taxes.
7.1 Personal Property Taxes. Tenant shall cause Tenant's trade fixtures,
equipment, furnishings, furniture, merchandise, inventory, machinery, appliance
and other personal property installed or located on the Premises (collectively
the "Personal Property") to be assessed and billed separately from the Premises.
Tenant shall pay before delinquency any and all taxes, assessments and public
charges levied, assessed or imposed upon or against Tenant's personal property.
If any of Tenant's personal property shall be assessed with the real property
comprising the Premises, Tenant shall pay to Landlord, as Additional Rent, the
amounts attributable to Tenant's personal property, subject to Tenant's review
of the communications from the taxing authorities to Landlord and to Tenant's
reasonable consent to the methodology used to calculate Tenant's share of any
taxes due. Any such payment by Tenant to Landlord shall be due ten (10) days
before the payment of the taxes in question are due to the taxing authorities.
Tenant shall comply with the provisions of any law, ordinance, rule or
regulation of taxing authorities which require Tenant to file a report of
Tenant's personal property located on the Premises.
SECTION 8. Insurance; Indemnity; Waiver
8.1 Insurance by Tenant. Tenant shall, during the Lease Term, at
Tenant's sole cost and expense, procure and keep in force the following
insurance:
(a) Personal Property Insurance. "All risk" property insurance,
including, without limitation, coverage for boiler and machinery (if
applicable); sprinkler damage; vandalism; malicious mischief; and demolition,
increased cost of construction and contingent liability from changes in building
laws on all Leasehold improvements installed in the Premises by Tenant at its
expense (if any) and on all equipment, trade fixtures, inventory, fixtures and
personal property located on or in the Premises, including improvements or
fixtures hereinafter constructed or installed on the Premises. Such insurance
shall be in an amount equal to the full replacement cost of the aggregate of the
foregoing and shall provide coverage comparable to the coverage in the standard
ISO all risk form, when such form is supplemented with the coverages required
above.
(b) Liability Insurance. Comprehensive general liability insurance
for the mutual benefit of Landlord and Tenant, against any and all claims for
personal injury, death or property damage occurring in, or about the Premises
and Parking Area (and Tenant's operations on the Premises), or arising out of
Tenant's or Tenant's agents' use of the Parking Area or use or occupancy of the
Premises. Such insurance shall have a combined single limit of not less than Two
Million Dollars ($2,000,000). Such insurance shall contain a cross-liability
(severability of interests) clause and an extended ("broad form") liability
endorsement, including blanket contractual coverage. Such liability insurance
shall be primary and not contributing to any insurance available to Landlord,
and Landlord's insurance (if any) shall be in excess thereto.
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(c) Other. Such other insurance as required by law, including,
without limitation, workers' compensation insurance.
(d) Form of the Policies. The policies required to be maintained by
Tenant pursuant to Sections 8.1(a), (b) and (c) above shall be with companies,
on forms, with deductible amounts (if any), and loss payable clauses
satisfactory to Landlord, shall including Landlord as additional insureds.
Certificates of insurance shall be delivered to Landlord prior to the
Commencement Date; a new certificate shall be delivered to Landlord within
thirty (30) days after the renewal of a policy on its expiration. Tenant shall
have the right to provide insurance coverage which it is obligated to carry
pursuant to the terms hereof in a blanket policy, provided such blanket policy
expressly affords coverage to the Premises and to Tenant as required by this
Lease. Tenant shall obtain a written obligation on the part of Tenant's
insurer(s) to notify Landlord in writing of any delinquency in premium payments
and at least thirty (30) days prior to any cancellation of any policy.
8.2 Failure by Tenant to Obtain Insurance. If Tenant does not take out
the insurance required pursuant to Section 8.1 or keep the same in full force
and effect, Landlord may, but shall not be obligated to, take out the necessary
insurance and pay the premium therefor, the Tenant shall repay to Landlord, as
Additional Rent, the amount so paid promptly upon demand. In addition, Landlord
may recover from Tenant and Tenant agrees to pay, as Additional Rent, any and
all reasonable expenses (including attorneys' fees) and damages which Landlord
may sustain by reason of the' failure of Tenant to obtain and maintain such
insurance, it being expressly declared that the expenses and damages of Landlord
shall not be limited to the amount of the premiums thereon.
8.3 Tenant Indemnification. Tenant shall indemnify, hold harmless, and
defend Landlord (except for Landlord's gross negligence or willful misconduct)
against all claims, losses or liabilities for injury or death to any person or
for damage to or loss of use of any property arising out of any occurrence in,
on or about the Premises or Parking Area, if caused or contributed to by Tenant
or Tenant's agents, or arising out of any occurrence in, upon or at the Premises
or on account of the use, condition, occupational safety or occupancy of the
Premises during the term of the Lease. It is the intent of the parties hereto
that the indemnity contained in this Section 8.3 shall not be limited or barred
by reason of any passive negligence on the part of Landlord or Landlord's agents
except as expressly provided herein. Such indemnification shall include and
apply to attorneys' fees, investigation costs, and other costs actually incurred
by Landlord. Tenant shall further indemnify, defend and hold harmless Landlord
from and against any and all claims arising from any breach or default in the
performance of any obligation on Tenant's' part performed under the terms of
this Lease. The provisions of this Section 8.3 shall survive Lease Termination
with respect to any damage, injury, death, breach or Default occurring prior to
such termination.
8.4 Landlord Indemnification. Landlord shall indemnify, hold harmless,
and defend Tenant (except for Tenant's gross negligence or willful misconduct)
against all claims, losses or liabilities for injury or death to any person or
for damage to or loss of use of any property arising out of any occurrence in,
on or about the Premises or Parking Area, if caused or contributed to by
Landlord or Landlord's agents, or arising out of any occurrence in, upon or at
the Premises or on account of the use, condition, occupational safety or
occupancy of the
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Premises. It is the intent of the parties hereto that the indemnity contained in
this Section 8.4 shall not be limited or barred by reason of any passive
negligence on the part of Tenant or Tenant's agents except as expressly provided
herein. Such indemnification shall include and apply to attorneys' fees,
investigation costs, and other costs actually incurred by Tenant. The provisions
of this Section 8.4 shall survive Lease Termination with respect to any damage,
injury or death occurring prior to such termination
8.5 Claims by Tenant. Except as otherwise provided herein, Landlord
shall not be liable to Tenant, and Tenant waives all claims against Landlord,
for injury or death to any person, damage to any property, or loss of use of any
property in the Premises or Parking Area, by and from all causes, including
without limitation, any defect in the Premises or Parking Area, the presence of
any Hazardous Materials in or about the Premises or Parking Area, and/or any
damage or injury resulting from fire, steam, electricity, gas water or rain,
which may leak or flow form or into any part of the Premises, or from breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting, fixtures, whether the damage or injury
results from conditions arising upon the Premises or Parking Area or from other
sources. Tenant or Tenant's agents shall immediately notify Landlord in writing
of any known defect in the Premises or Parking Area. The provisions of this
Section 8.4 shall not apply to any damage or injury caused by Landlord's willful
misconduct or gross negligence.
8.6 Mutual Waiver of Subrogation. Landlord hereby releases Tenant, and
Tenant hereby releases Landlord, and their respective officers, agents,
employees and servants, from any and all claims or demands of damages, loss,
expense or injury to the Premises or to the furnishings, fixtures, equipment,
inventory or other property of either Landlord or Tenant in, about or upon the
Premises, which is caused by or results from perils, events, or happenings which
are the subject of insurance carried by the respective parties pursuant to this
Section 8 and in force at the time of any such loss, whether due to the
negligence of the other party or its agents and regardless of cause or origin;
provided, however, that such waiver shall be effective only to the extent
permitted by the insurance covering such loss and to the extent such insurance
is not prejudiced thereby.
SECTION 9. Repairs And Maintenance
9.1 Landlord's Responsibilities. Subject to the provisions of Section 12
below, Landlord shall maintain in reasonably good order and repair the
structural roof and roof surface, structural and exterior walls (including
painting thereof), HVAC systems other than Tenant alteration, the plumbing
systems, the electrical systems, and the foundations of the Premises, except for
any repairs required because of the wrongful or negligent act of Tenant or
Tenant's agents, which repairs shall be made at the expense of Tenant and as
Additional Rent. Tenant shall give prompt written notice to Landlord of any
known maintenance work required to be made by Landlord pursuant to this Section
9.1
9.2 Tenant's Responsibilities. Except as expressly provided in Section
9.1 above, Tenant shall use and maintain in the entire Premises and every part
thereof in good order, condition and repair. Tenant will be responsible for all
damages resulting from its negligence or willful misconduct. Tenant's repairs
and maintenance responsibilities under this Section include clean-up and removal
of all Hazardous Materials from the Premises and/or the Parking Area and
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all contamination caused or contributed to by such Hazardous Material, but only
to the extent those Hazardous Materials and that contamination have been caused
or contributed to by Tenant. Tenant's clean-up and removal obligations under
this Section of the Lease shall survive the expiration or sooner termination of
this Lease. If Tenant fails to make repairs or perform maintenance work required
of Tenant hereunder within three (3) days after notice from Landlord specifying
the need for such repairs or maintenance work, Landlord or Landlord's agents
may, in addition to all other rights and remedies available hereunder or by law
and without waiving any alternative remedies, enter into the Premises and make
such repairs and/or perform such maintenance work. If Landlord makes such
repairs and/or performs such maintenance work, Tenant shall reimburse Landlord
upon demand and as Additional Rent, for all costs associated with such repairs
and/or maintenance work. Landlord shall have no liability to Tenant for any
damage, inconvenience or interference with the use of the Premises by Tenant or
Tenant's agents as a result of Landlord performing any such repairs or
maintenance. Tenant shall reimburse Landlord, on demand and as Additional Rent,
for the cost of damage to the Premises caused by Tenant or Tenant's agents.
Tenant expressly waives the benefits of any statute now or hereafter in effect
(including without limitation the Section 1942 of the California Civil Code and
any similar law, statute or ordinance now or hereafter in effect) which would
otherwise afford Tenant the right to make repairs at Landlord's expense (or to
deduct the cost of such repairs from Rent due hereunder) or to terminate this
Lease because of Landlord's failure to keep the Premises in good and sanitary
order.
SECTION 10. Alterations And Improvements
10.1 In General. Except as otherwise detailed in the attached Exhibits A-
l, A-2, and A-3, Tenant shall not make, or permit to be made, any alterations,
changes, enlargements, improvements or additions (collectively "alterations")
in, on, about or to the Premises, or any part thereof, including alterations
required pursuant to Section 4.2, without the prior written consent of Landlord
and without acquiring and complying with the conditions of all permits required
for such alterations by any governmental authority having jurisdiction thereof.
The initial improvement responsibilities and costs shall be divided as follows:
Demising as indicated in Exhibit A, installation of security doors, and
provision at its present location of 200 pair copper feeder cable (without
warranty or representation as to condition or suitability for Tenant's
requirements) shall be performed by Landlord, and all other improvements shall
be installed by Tenant at its expense and risk. The term "alterations" as used
in this Section 10 shall also include all heating, lighting, electrical
(including all wiring, conduit, outlets, drops, buss ducts, main and subpanels),
air conditioning, and partitioning in the Premises made by Tenant, regardless of
how affixed to the Premises. As a condition to the giving of its consent,
Landlord may impose such requirements as Landlord may deem necessary in its sole
discretion, including without limitation, the manner and time in which the work
is done; a right of approval of the contractor by whom the work is to be
performed; the requirement that Tenant post a completion bond in an amount and
form satisfactory to Landlord; and the requirement that Tenant reimburse
Landlord, as Additional Rent, for Landlord's actual costs incurred in reviewing
any proposed alteration, whether or not Landlord's consent is granted. In the
event Landlord consents to the making of any alterations by Tenant, the same
shall be made by Tenant at Tenant's sole cost and expense, in accordance with
the plans and specifications approved in writing by Landlord. Tenant shall
provide written notice to Landlord at least ten (10) working days prior to
employing any laborer or contractor to perform services related to, or receiving
materials for use upon the
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Premises, and prior to the commencement of any work of improvements on the
Premises. Any alterations to the Premises made by Tenant shall be made in
accordance with applicable law, ordinances, regulations and codes and in a
first-class workmanlike manner. In making any such alterations, Tenant shall, at
Tenant's sole cost and expense, file for and secure and comply with any and all
permits or approvals required by any governmental departments or authorities
having jurisdiction thereof and any utility company having an interest therein.
In no event shall Tenant make any structural changes to the Premises or make any
changes to the Premises which would weaken or impair the structural integrity of
the Premises.
10.2 Removal Upon Lease Termination. At the time Tenant requests
Landlord's consent, Tenant shall request a decision from Landlord in writing as
to whether Landlord will require Tenant, at Tenant's expense, to remove any such
alterations and restore the Premises to their prior condition at Lease
Termination. Landlord may defer such decision until prior to the expiration of
the Lease Term as described below. The initial improvements as outlined in
Exhibits A-l, A-2, and A-3 are specifically excepted from this Section, and
Tenant shall have no obligation to remove those improvements. In the event
Tenant failed to earlier obtain Landlord's written decision as to whether Tenant
will be required to remove any alteration or in the event Landlord elected to
defer such decision, then no less than five (5) nor more than thirty (30) days
prior to the expiration of the Lease Term, Tenant by written notice to Landlord
shall request Landlord to inform Tenant whether or not Landlord desires to have
any alterations made to the Premises by Tenant removed at Lease Termination.
Following receipt of such notice, Landlord may elect to have all or a portion of
Tenant's alterations removed from the Premises at Lease Termination, and Tenant
shall, at its sole cost and expense, remove at Lease Termination such
alterations designated by Landlord for removal and repair all damage to the
Premises arising from such removal. In the event Tenant fails to so request
Landlord's decision or fails to remove any alterations designated by Landlord
for removal, Landlord may remove any alterations made to the Premises by Tenant
and repair all damage to the Premises arising from such removal, and may recover
from Tenant all costs and expenses incurred thereby as Additional Rent. Tenant's
obligation to pay such costs and expenses to Landlord shall survive Lease
Termination. Unless Landlord elects to have Tenant remove (or, upon Tenant's
failure to obtain Landlord's decision, Landlord removes) any such alterations,
all such alterations, except for moveable furniture and trade fixtures of Tenant
not affixed to the Premises, shall become the property of Landlord upon Lease
Termination (without any payment therefor) and remain upon and be surrendered
with the Premises at Lease Termination.
10.3 Landlord's Improvements. All fixtures, improvements or equipment
which are installed, constructed on or attached to the Premises by Landlord
shall be a part of the realty and belong to Landlord.
SECTION 11. Default And Remedies
11.1 Events of Default. The term "Default" or "Default by Tenant" as used
in this Lease shall mean the occurrence of any of the following events:
(a) Tenant's failure to immediately pay Rent or Additional Rent when
and as due;
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(b) Tenant's vacation or abandonment of the Premises;
(c) Commencement and continuation for at least ten (10) days (in the
case of a voluntary proceeding) or forty-five (45) days (in the case of an
involuntary proceeding) of any case, action or proceeding by, against or
concerning Tenant under any federal or state bankruptcy, insolvency or other
debtor's relief law, including without limitation, (i) a case under Title 11 of
the United States Code concerning Tenant, whether under Chapter 7, 11, or 13 of
such Title or under any other chapter, or (ii) a case, action or proceeding
seeking Tenant's financial reorganization or an arrangement with any of Tenant's
creditors;
(d) Voluntary or involuntary appointment of a receiver, trustee,
keeper, or other person who take possession for more than twenty (20) days of
substantially all of Tenant's assets or of any asset used in Tenant's business
on the Premises, regardless of whether such appointment is as a result of
insolvency or any other cause;
(e) Execution of an assignment for the benefit of creditors of
substantially all assets of Tenant available by law for the satisfaction of
judgment creditors;
(f) Commencement of proceedings for winding up or dissolving
(whether voluntary or involuntary) the entity of Tenant;
(g) Levy of a writ of attachment or execution on Tenant's interest
under this Lease, if such writ continues for a period ten (10) days;
(h) Transfer or attempted Transfer of this Lease or the Premises by
Tenant contrary to the provisions of Section 19 below; or
(i) Breach by Tenant of any term, covenant, condition, warranty, or
other provision contained in this Lease or of any other obligation owing or due
to Landlord hereunder.
11.2 Remedies. Upon any Default by Tenant, Landlord shall have the
following remedies, in addition to all other rights and remedies provided by
law, to which Landlord may resort cumulatively, or in the alternative:
11.2.1. Termination. Upon any Default by Tenant, Landlord shall
have the right (but not the obligation) to give written notice to Tenant of such
default and terminate this Lease and Tenant's right to possession of the
Premises if (i) such default is in the payment of Rent or Additional Rent and is
not cured within three (3) days after any such notice, or, (ii) with respect to
the defaults referred to in Sections 11.1 (b), (e), (f), (h), and (i), such
default is not cured within ten (10) days after any such notice (or if a default
under Sections 11 .l(b) or (i) cannot be reasonably cured within ten (10) days,
if Tenant does not commence to cure the default within the ten (10) day period
or does not diligently and in good faith prosecute the cure to completion), or,
(iii) with respect to the defaults specified in Sections 11.1(c), (d) and (g)
such default is not cured within the respective time periods specified in those
subsections. The parties agree that any written notice given by Landlord to
Tenant pursuant to this Section 11.2.1 shall be sufficient notice for purposes
of California Code of Civil Procedure Section 1161 and Landlord shall not be
required to given any additional notice in order to be entitled to commence an
unlawful
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detainer proceeding. Upon termination of this Lease and Tenant's right to
possession of the Premises, Landlord shall have the right to recover from
Tenant:
(a) The worth at the time of award of the unpaid Rent and
Additional Rent which had been earned at the time of termination;
(b) The worth at the time of award of the amount by which the
Rent and Additional Rent which would have been earned after termination until
the time of award exceeds the amount of such Rent and Additional Rent loss that
Tenant proves could have been reasonably avoided;
(c) The worth at the time of award (computed by discounting at
the discount rate of the Federal Reserve Bank of San Francisco at the time of
award plus one percent) of the amount by which the Rent and Additional Rent for
the balance of the Lease Term after the time of award exceed the amount of such
Rent and Additional Rent loss that Tenant proves could be reasonably avoided;
(d) Any other amounts necessary to compensate Landlord for all
detriment proximately caused by the Default by Tenant or which in the ordinary
course of events would likely result, including without limitation the
following:
(1) Expenses in retaking possession of the Premises;
(2) Expenses for cleaning, repairing or restoring the
Premises (including, without limitation, expenses incurred in connection with
the clean-up and removal of Hazardous Materials from the Premises and/or Parking
Area if caused or contributed to by Tenant);
(3) Expenses for removing, transporting and storing any of
Tenant's property left at the Premises (although Landlord shall have no
obligation to remove, transport, or store any such property);
(4) Expenses of reletting the Premises, including without
limitation, brokerage commissions and attorney' fees;
(5) Attorneys' fees and related court and litigation costs;
(6) Costs of carrying the Premises such as repairs,
maintenance, taxes and insurance premiums, utilities and security precautions
(if any); and
(7) Diminution in value of the Premises and Parking Areas.
11.2.2 Continuance of Lease. Upon any Default by Tenant and unless
and until Landlord elects to terminate this Lease pursuant to Section 11.2.1
above, this Lease shall continue in effect after the Default by Tenant and
Landlord may enforce all its rights and remedies under this Lease, including
without limitation, the right to recover payment of Rent and Additional Rent as
they become due. Neither efforts by Landlord to mitigate damages caused by a
Default by Tenant nor the acceptance of any Rent and Additional Rent shall
constitute a waiver
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by Landlord of any of Landlord's rights or remedies, including the right to said
remedies specified in Section 11.2.1 above.
SECTION 12. Damage Or Destruction
12.1 Damage or Destruction Near End of Lease Term. In the event the
Premises are materially damaged or destroyed in whole or in part from any cause
during the Lease Term or Extended Term, either party may, at its sole option,
terminate this Lease as of the date of the event of damage or destruction by
giving written notice to the other party of the noticing party's election to do
so within fifteen (15) days after the event of such damage or destruction.
12.2 Termination of Lease. If the Lease is terminated pursuant to this
Section 12, Landlord shall receive no further Rent and Additional Rent and will
be obligated to return Rent or Additional Rent on a pro rata basis.
12.3 Liability for Personal Property. In no event shall Landlord have any
liability for, nor shall it be required to repair or restore, any injury or
damage to any improvements, alterations or additions to the Premises made by
Tenant, trade fixtures, equipment, merchandise, furniture, or any other property
installed by Tenant or at the expense of Tenant. If Landlord or Tenant do not
elect to terminate this Lease pursuant to this Section 12, Tenant shall be
obligated to promptly rebuild or restore the same to the condition existing
immediately prior to the damage or destruction in accordance with the provisions
of Section 10.1.
12.4 Waiver of Civil Code Remedies. Landlord and Tenant acknowledge that
the rights and obligations of the parties upon damage or destruction of the
Premises are as set forth herein; therefore Tenant hereby expressly waives any
rights to terminate this Lease upon damage or destruction of the Premises,
except as specifically provided by this Lease, including without limitation any
rights pursuant to the provisions of Subdivision 2 of Section 1932 and
Subdivision 4 of Section 1933 of the California Civil Code, as amended from time
to time, and the provisions of any similar law hereinafter enacted, which
provisions relate to the termination of the hiring of a thing upon its
substantial damage or destruction.
SECTION 13. Liens
13.1 Premises to Be Free of Liens. Tenant shall pay for all labor and
services performed for, and all materials used by or furnished to Tenant,
Tenant's agents, or any contractor employed by Tenant with respect to the
Premises. Tenant shall indemnify and hold Landlord harmless from and keep the
Premises and Parking Area free from any liens, claims, demands, encumbrances, or
judgments, including all costs, liabilities and attorneys' fees with respect
thereto, created or suffered by reason of any labor or services performed for,
or materials used by or furnished to Tenant or Tenant's agents or any contractor
employed by Tenant with respect to the Premises. Landlord shall have the right,
at all times, to post and keep posted on the Premises any notices permitted or
required by law, or which Landlord shall deem proper, for the protection of
Landlord and the Premises and Parking Area, and any other party having an
interest therein, from mechanics; and materialmen's liens, including without
limitation a notice of nonresponsibility. In the event Tenant is required to
post an improvement bond with a public
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agency in connection with any work performed by Tenant on or to the Premises,
Tenant shall include Landlord as an additional obligee.
Tenant shall not cause or suffer any lien to be recorded against the
Premises and/or the Parking Area as a consequence of, or in any way related to,
the presence, use, storage, clean-up or disposal of Hazardous Materials in or
about the Premises and/or the Parking Area, including any so-called state,
federal or local "super fund" lien relating to the clean-up and removal of
Hazardous Materials in or about the Premises and/or the Parking Area.
13.2 Notice of Lien; Bond. Should any claim of lien be filed against, or
any action be commenced affecting, the Premises, Tenant's interest in the
Premises or the Parking Area, Tenant shall give Landlord notice of such lien or
action within three (3) days after Tenant receives notice of the filing of the
lien or the commencement of the action. In the event that Tenant shall not,
within twenty (20) days following the imposition of any such lien, cause such
lien to be released of record by payment or posting of a proper bond, released
or record by payment or posting of a proper bond, Landlord shall have, in
addition to all other remedies provided herein and by law, the right, but not
the obligation, to cause the same to be released by such means as Landlord shall
deem proper, including payment of the claim giving rise to such lien or posting
or a proper bond. All such sums paid by Landlord and all expenses incurred by
Landlord in connection therewith, including attorneys' fees and costs, shall be
payable to Landlord by Tenant as Additional Rent on demand.
SECTION 14. Landlord's Right Of Access To Premises. Landlord reserves and shall
have the right and Tenant and Tenant's agents shall permit Landlord and
Landlord's agents to enter the Premises at any reasonable time, and with
reasonable notice, for the purpose of (i) inspecting the Premises, (ii)
performing Landlord's maintenance and repair responsibilities set forth herein,
or (iii) posting notices of non-responsibility or at any time Tenant is in
default hereunder, or at such other times as agreed to by Landlord and Tenant,
and without notice for protecting the Premises in the event of an emergency. In
the event of an emergency, Landlord shall have the right to use any and all
means which Landlord may deem proper to gain access to the Premises. Any entry
to the Premises by Landlord or Landlord's agents in accordance with this Section
14 or any other provision of this Lease shall not under any circumstances be
construed or deemed to be a forcible or unlawful entry into, or a detainer of
the Premises, or an eviction of Tenant from the Premises or any portion thereof
nor give Tenant the right to abate the Rentals payable under this Lease. Tenant
hereby waives any claims for damages for any injury or inconvenience to or
interference with Tenant's business, any loss of occupancy or quiet enjoyment of
the Premises, and any other loss occasioned by Landlord's or Landlord's agents'
entry into the Premises as permitted by this Section 14 or any other provision
of this Lease.
SECTION 15. Landlord's Right To Perform Tenant's Covenants. Except as otherwise
expressly provided herein, if Tenant shall at any time fail to make any payment
or perform any other act required to be made or performed by Tenant under this
Lease, Landlord may upon ten (10) days written notice to Tenant, but shall not
be obligated to and without waiving or releasing Tenant from any obligation
under this Lease, make such payment or perform such other act to the extent that
Landlord may deem desirable, and in connection therewith, pay expenses and
employ counsel. All sums so paid by Landlord and all penalties,
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interest and costs in connection therewith shall be due and payable by Tenant as
Additional Rent upon demand.
SECTION 16. Holding Over. This Lease shall terminate without further notice at
the expiration of the Lease Term, unless the Lease is extended in accordance
with the terms specified in Section 3. If the Lease is not extended pursuant to
Section 3, it is the desire of Landlord to have Tenant vacate the Premises
pursuant to Section 24.14 below. Therefore, any holding over by Tenant after
Lease Termination shall not constitute a renewal or extension of the Lease Term,
nor give Tenant any rights in or to the Premises except as expressly provided in
this Lease. Any holding over after Lease termination without the written
consent of Landlord shall be construed to be a tenancy from month to month, at
200% of the monthly Rent for the month preceding Lease Termination in addition
to all Additional Rent payable hereunder, and shall otherwise be on the terms
and conditions herein specified insofar as applicable. If Tenant remains in
possession of the Premises after Lease Termination without Landlord's consent,
Tenant shall indemnify Landlord against any loss or liability resulting from
Tenant's failure to surrender the Premises. If at any time during or after the
Lease Term, Tenant is required under the terms of this Lease or by any
governmental authority, to place any structure in or about the Premises and/or
the Parking Area, or perform any clean-up or submit any closure plan or
monitoring procedure in or about the Premises and/or the Parking Area, as the
consequence of a Hazardous Materials in or about, the Premises and/or the
Parking Area, and the structure is not removed and the procedures or plans are
not completed prior to Lease Termination, Landlord shall be entitled to all
damages directly or indirectly incurred.
SECTION 17. Notices. Any notices required or desired to be given under this
Lease shall be in writing. Any such notice shall be deemed to have been given
seventy-two hours have elapsed from the time such notice was deposited in the
United States mail, certified or registered mail and postage prepaid, addressed
as set forth in Section 1.11 above.
SECTION 18. Attorneys' Fees. In the event either party hereto shall bring any
action or legal proceeding for damages for an alleged breach of any provision of
this Lease, to recover Rent or Additional Rent, to enforce an indemnity
obligation, to terminate the tenancy of the Premises, or to enforce, protect,
interpret, or establish any term, condition, or covenant of this Lease or right
or remedy of either party, the prevailing party shall be entitled to recover, as
a part of such action or proceeding, reasonable attorneys' fees and court costs,
including attorneys' fees and costs for appeal, as may be fixed by the court or
jury.
SECTION 19. Assignment, Subletting And Hypothecation
19.1 Assignment. Tenant shall not voluntarily sell, assign or transfer
all or any part of Tenant's interest in this Lease or in the Premises or any
part thereof, sublease all or any part of the Premises, or permit all or any
part of the Premises to be used by any person or entity other than Tenant or
Tenant's employees.
19.2 No Bonus Value. It is the intent of the parties hereto that this
Lease shall confer upon Tenant only the right to use and occupy the Premises,
and to exercise such other rights as are conferred upon Tenant by this Lease.
The parties agree that this Lease is not intended to have a bonus value, nor to
serve as a vehicle whereby Tenant may profit by a future assignment
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or sublease of this Lease or the right to use or occupy the Premises as a result
of any favorable terms contained herein or any future changes in the market for
leased space. It is the intent of the parties that any such bonus value that may
attach to this Lease shall be and remain the exclusive property of Landlord.
19.3 Corporations. Any dissolution, merger, consolidation or other
reorganization of Tenant, any sale or transfer (or cumulative sales or
transfers) of the capital stock of Tenant in excess of fifty percent (50%), or
any sale (or cumulative sales) of all of the assets of Tenant shall be deemed an
assignment of this Lease requiring the prior written consent of Landlord, which
consent shall not be unreasonably withheld. Any such sale of stock or assets of
Tenant without the prior written consent of Landlord shall be a Default by
Tenant hereunder. The foregoing notwithstanding, (i) the sale or transfer of
any or all of the capital stock of a corporation, the capital stock of which is
now or hereafter becomes publicly traded, shall not be deemed an assignment of
this Lease, and (ii) any merger, consolidation, or other reorganization of
Tenant in which shareholders who hold shares of Tenant immediately before the
transaction own 50% or more of the surviving entity immediately after the
transaction shall not be deemed an assignment of this Lease.
19.4 Reasonable Provisions. Tenant expressly agrees that the provisions
of this Section 19 are not unreasonable standards or conditions for purposes of
Section 1951.4(b)(2) of the California civil Code, as amended from time to time.
19.5 Attorneys' Fees. Tenant shall pay, as Additional Rent, Landlord's
actual attorneys' fees for reviewing investigating, processing and/or
documenting any requested assignment or sublease, whether or not Landlord's
consent is granted.
19.6 Involuntary Transfer. No interest of Tenant in this Lease shall be
assignable by operation of law, including, without limitation, the transfer of
this Lease by testacy or intestacy. Each of the following acts shall be
considered an involuntary assignment:
(a) If Tenant is or becomes bankrupt or insolvent, makes an
assignment for the benefit of creditors, or a proceeding under the Bankruptcy
Act is instituted in which Tenant is the bankrupt;
(b) Levy of a writ of attachment or execution on this Lease;
(c) Appointment of a receiver with authority to take possession of
the Premises in any proceeding or action to which Tenant is a party; or
(d) Foreclosure of any lien affecting Tenant's interest in the
Premises, which lien was not consented to by Landlord pursuant to Section 19.7.
An involuntary assignment shall constitute a Default by Tenant and Landlord
shall have the right to terminate this Lease, in which case this Lease shall not
be treated as an asset of Tenant.
19.7 Hypothecation. Tenant shall not hypothecate, mortgage or encumber
Tenant's interest in this Lease or in the Premises or otherwise use this Lease
as a security device in any manner without the consent of Landlord, which
consent Landlord may withhold in its absolute discretion. Consent by Landlord
to any such hypothecation or creation of a lien or mortgage
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shall not constitute consent to an assignment or other transfer of this Lease
following foreclosure of any permitted lien or mortgage.
SECTION 20. Successors. Subject to the provisions of Section 19 above, the
covenants, conditions, and agreements contained in this Lease shall be binding
on the parties hereto and on their respective heirs, successors, transferees and
assigns.
SECTION 21. Exhibits. All Exhibits attached to this Lease shall be deemed to be
incorporated herein by the individual reference to each such Exhibit, and all
such Exhibits shall be deemed to be a part of this Lease as though set forth in
full in the body of the Lease
SECTION 22. Mutual Waiver. The waiver by Landlord or Tenant of any breach of
any term, covenant or condition herein contained (or the acceptance by either
party of any performance by the other party after the time the same shall become
due) shall not be deemed to be a waiver of such term, covenant or condition or
any subsequent breach thereof or of any other term, covenant or condition herein
contained, unless otherwise expressly agreed to by the waiving or accepting
party in writing. The acceptance by Landlord of any sum less than that which is
required to be paid by Tenant shall be deemed to have been received only on
account of the obligation for which it is paid (or for which it is allocated by
Landlord, in Landlord's absolute discretion, if Tenant does not designate the
obligation as to which the payment should be credited), and shall not be deemed
an accord and satisfaction notwithstanding any provisions to the contrary
written on any check or contained in any letter of transmittal. The acceptance
by Landlord or any sum tendered by a purported assignee or transferee of Tenant
shall not be deemed a consent by Landlord to any assignment or transfer of
Tenant's interest herein. No custom or practice which may arise between the
parties hereto in the administration of the terms of this Lease shall be
construed as a waiver or diminution of either party's right to demand
performance by the other party in strict accordance with the terms of this
Lease.
SECTION 23. Payment To Real Estate Brokers. Upon the execution of this Lease by
both parties, Landlord shall pay to CPS, the Commercial Property Services
Company, a fee as set forth in a separate written agreement between Landlord and
CPS for brokerage services rendered by said Brokers in connection with this
transaction.
Landlord and Tenant each represent and warrant to the other that it has had
no dealings with any person, firm, broker or finder other than as named above in
connection with the negotiation of this Lease and/or the consummation of the
transaction contemplated hereby, and that no broker or other person, firm or
entity other than said named Broker is entitled to any commission or finder's
fee in connection with said transaction. Landlord and Tenant do each hereby
agree to indemnify, protect, defend and hold the other harmless from and against
liability for compensation or charges which may be claimed by such unnamed
broker, finder or other similar party by reason of any dealings or actions of
the indemnifying party, including any costs, expenses, and/or attorneys' fees
incurred with respect thereto.
SECTION 24. General
24.1 Captions and Headings. The captions and Section headings used in
this Lease are for convenience of reference only. They shall not be construed to
limit or extend the
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meaning of any part of this Lease, and shall not be deemed relevant in resolving
any question of interpretation or construction of any Section of this Lease.
24.2 Hazardous Materials. "Hazardous Materials" as used in this Lease
shall mean any product, substance, chemical, material or waste whose presence,
nature, quantity and/or intensity of existence, use, manufacture, disposal,
transportation, spill, release or effect, either by itself or in combination
with other material expected to be on the Premises, is either: (i) potentially
injuries to the public health, safety or welfare, the environment, or the
Premises; (ii) regulated or monitored by any governmental authority; or (iii) a
basis for potential liability of Landlord to any governmental agency or third
party under any applicable statute or common law theory. "Hazardous Materials"
shall include, but not be limited to, hydrocarbons, petroleum, asbestos,
radioactive materials, polychlorinated biphenyls, gasoline, crude oil or any
products or by-products thereof.
24.3 Applicable Requirements. "Applicable Requirements" shall mean all
laws, rules, regulations, ordinances, directives, covenants, easements and
restrictions of record, permits, and the requirements of any applicable fire
insurance underwriter or rating bureau, relating in any manner to the Premises
(including but not limited to mattes pertaining to (i) industrial hygiene, (ii)
environmental conditions on, in, under or about the Premises, including soil and
groundwater conditions, and (iii) the use, generation, manufacture, production,
installation, maintenance, removal, transportation, storage, spill, or release
or any Hazardous Materials), now in effect or which may hereafter come into
effect. Tenant shall, within five (5) days after receipt of Landlord's written
request, provide Landlord with copies of all documents and information,
including but not limited to permits, registrations, manifests, applications,
reports and certificates, evidencing Tenant's compliance with any Applicable
Requirements specified by Landlord, and shall immediately upon receipt, notify
Landlord in writing (with copies of any documents involved) of any threatened or
actual claim, notice, citation, warning, complaint or report pertaining to or
involving failure by Tenant or the Premises to comply with any Application
Requirements.
24.4 Copies. Any executed copy of this Lease shall be deemed an original
for all purposes.
24.5 Time of Essence. Time is of the essence as to each and every
provision in this Lease requiring performance within a specific time, except as
to the conditions relating to the delivery of possession of the Premises to
Tenant.
24.6 Severability. In case any one or more of the provisions contained
herein shall for any reason be held to be invalid, illegal or unenforceable in
any respect, such invalidity, illegality or unenforceability shall not affect
any other provision of this Lease, but this Lease shall be construed as if such
invalid, illegal or unenforceable provision had not been contained herein.
However, if Tenant's obligation to pay the Rental is determined to be invalid or
unenforceable, this Lease at the option of Landlord shall terminate.
24.7 Governing Law. This Lease shall be construed and enforced in
accordance with the laws of the State of California.
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24.8 Jurisdiction. The parties hereto subject themselves to the
jurisdiction of, and agree that venue shall be, the State Courts of California
in the County of Alameda.
24.9 Construction of Lease Provisions. Although printed provisions of
this Lease were prepared by Landlord, this Lease shall not be construed either
for or against Tenant or Landlord, but shall be construed in accordance with the
general tenor of the language to reach a fair and equitable result.
24.10 Tenant's Financial Statements. Tenant hereby warrants that all
financial statements delivered by Tenant to Landlord are true, correct, and
complete, and prepared in accordance with generally accepted accounting
principles. Tenant acknowledges and agrees that Landlord is relying on such
financial statements in accepting this Lease, and that a breach of Tenant's
warranty as to such financial statements shall constitute a Default by Tenant.
24.11 Withholding of Landlord's Consent. Notwithstanding any other
provision of this Lease, where Tenant is required to obtain the consent (whether
written or oral) of Landlord to do any act, or to refrain from the performance
of any act, Tenant agrees that if Tenant is in default with respect to any term,
condition, covenant or provision of this Lease, then Landlord shall be deemed to
have acted reasonably in withholding its consent if said consent is, in fact,
withheld.
24.12 Signs. Tenant shall not place or permit to be placed, any sign or
decoration in the Parking Areas or the exterior of the Premises, without the
prior written consent of Landlord, which consent may be withheld in Landlord's
absolute discretion, except that Tenant shall be permitted a monument sign and
signage on the front glass doors as outlined on Exhibit C.
24.13 Surrender of Premises. On the last day of the Lease Term or upon
the sooner termination of this Lease, Tenant shall, to the reasonable
satisfaction of Landlord, surrender the Premises to Landlord in good condition
(reasonable wear and tear excepted), free of Hazardous Materials as required by
Applicable Requirements except as otherwise agreed by the parties. Tenants shall
remove all of Tenant's personal property and trade fixtures from the Premises,
and all property not so removed shall be deemed abandoned by Tenant.
Furthermore, Tenant shall immediately repair all damage to the Premises and
Parking Area caused by any such removal. If the Premises are not so surrendered
at Lease Termination, Tenant shall indemnify Landlord against any loss or
liability resulting from the failure or delay by Tenant in so surrendering the
Premises.
24.14 Quiet Possession. Landlord covenants and agrees that Tenant, upon
the payment of Rent when and as due, and performing all its covenants and
conditions under the Lease, Tenant shall and may peaceably and quietly have,
hold and enjoy the Premises for the Lease Term, subject, however, to the terms
of this Lease, and of any mortgages or deeds of trust affecting the Premises,
and the rights reserved by Landlord hereunder. Any purchaser upon any
foreclosure or exercise of the power of sale under any mortgage or deed of trust
made by Landlord and covering the Premises to whom Tenant attorns shall be bound
by the terms of this Section 24.15.
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SECTION 25. Option To Negotiate. If at any time during the Term of tills Lease,
including any Extended Term, Landlord decides to offer for lease additional
space at the present site to unrelated third parties, Landlord shall notify
Tenant of its decision and of the terms, covenants and conditions under which
Landlord is willing to lease such additional space. Tenant shall have the right
of first negotiation to lease the additional space under such disclosed terms,
covenants and conditions; provided, however, if Tenant and Landlord fail to
reach agreement to lease such additional space within thirty (30) days after
receiving Landlord's written notice, Landlord shall be free to lease such
additional space to any third person or entity under substantially similar
terms, covenants and conditions set forth in Landlord's written notice.
SECTION 26. No Partnership Or Joint Venture. Nothing in this Lease shall be
construed as creating a partnership or joint venture between Landlord, Tenant,
or any other party, or cause Landlord to be responsible for the debts or
obligations of Tenant or any other party.
SECTION 27. Standards Of Performance. Tenant acknowledges and agrees with
respect to the Services to be provided by Landlord pursuant to Section 6, and
Landlord's maintenance obligations pursuant to Section 9.1 (collectively
"Services and Maintenance Obligations") that certain events beyond the
reasonable control of Landlord (each a "Force Majeure") may occur (including, by
way of illustration only, acts of God, labor disputes, unavoidable casualties,
and governmental orders or decrees), and that Landlord shall be excused from
performance to the extent that a Force Majeure interrupts, delays, or otherwise
prevents such performance. Tenant acknowledges that Landlord does not warrant
that the Services and Maintenance Obligations will be free from interruption.
An interruption of Services due to a Force Majeure shall not be deemed an
eviction or disturbance of Tenant's use and possession of the Premises, or any
part thereof, or render Landlord liable to Tenant for damages by abatement of
Rent or otherwise, direct or consequential damages, nor shall any such
interruption relieve Tenant from performance by Tenant of its obligations under
this Lease, except as otherwise provided herein.
SECTION 28. Entire Agreement. Any agreements, warranties, or representations
not expressly contained herein shall in no way bind either Landlord or Tenant,
and Landlord and Tenant expressly waive all claims for damages by reason of any
statement, representation, warranty, promise or agreement, if any, cancels any
and all previous negotiations, arrangements, brochures, agreements and
understandings, whether written or oral, between Landlord and its agents and
Tenant and its agents with respect to the Premises or this Lease. This Lease
constitutes the entire agreement between the parties hereto and no addition to,
or modification of, any term or provision of this Lease shall be effective until
and unless set forth in a written instrument signed by both Landlord and Tenant.
SECTION 29. Authority. The undersigned parties hereby represents and warrants
that they have proper authority and are empowered to execute this Lease on
behalf of the Landlord and Tenant, respectively.
22.
<PAGE>
In Witness Whereof, the parties have executed this Lease effective as of
the date set forth below.
Exar Corporation Asyst Technologies, Inc,
("Landlord") ("Tenant")
By: /s/ Ronald W. Guire By: /s/ Douglas J. McCutcheon
----------------------------- ---------------------------------
Ronald W. Guire Douglas J. McCutcheon
Title: Executive VP & CFO Title: Senior Vice President Chief
-------------------------- -----------------------------
Financial Officer
-----------------------------
Date: 10/18/99 Date: 10/18/99
--------------------------- -----------------------------
23.
<PAGE>
Exhibit A through Exhibit A-3
[graphics attachment]
<PAGE>
EXHIBIT B
Legal Description
Real property located in the City of Fremont, Alameda County, described as
follows:
Descriptions of individual parcels before merger:
Parcel 1: Lot 9, Tract 4642 filed March 10, 198l in Map Book 126 at page 30,
Alameda County Records, being more particularly described as
follows:
Beginning at the northwest corner of said Lot 9, Tract 4642,
hereinabove described, said point being on the easterly line of
Kato Road as shown on said map; thence along said easterly line,
South 21(degrees)45'17" East 70.60 feet to the beginning of a
curve concave to the northeast having a radius of 356.02 feet;
thence southeasterly a length of 556.91 feet along said curve
through a central angle of 89(degrees)37'33"; thence North
68(degrees)37'10" East 259.34 feet to the beginning of a curve
concave to the northwest having a radius of 40.00 feet; thence
northeasterly along said curve a length of 62.83 feet through a
central angle of 90(degrees)00'00" to the westerly line of Milmont
Drive; thence along said westerly line, North 21(degrees)22'50"
West 160.47 feet to the beginning of a curve concave to the east
having a radius of 532.00 feet; thence northerly along said curve
a length of 220.656 feet through a central angle of
23(degrees)45'52" to the northerly line of said Lot g; thence
along said northerly line, South 6923'28" West 700.99 feet to the
said point of beginning of this description, containing 5.76 acres
of land, more or less.
Parcel 2: Lot 10, Tract 4642 filed March 10, 1981 in Book 126 at page 30,
Alameda County Records, being more particularly described as
follows:
Beginning at the southwest corner of said Lot 10, Tract 4642,
hereinabove described; thence along the southerly line Of said Lot
10, North 69(degrees)23'28" East 241.44 feet to a point on a curve
concave to the east having a radius of 532.00 feet to which a
radial line bears North 87(degrees)36'58" West in the westerly
line of Milmont Drive, as shown on said map; thence northerly
along said curve a length of 38.257 feet through a central angle
of 4(degrees)07'13"; thence North 6(degrees)30'15" East 183.35
feet to the beginning of a curve concave to the west having a
radius of 468.00 feet; thence northerly along said curve a length
of 215.65 feet through a central angle of 26(degrees)24'03" to the
northerly line of said Lot 10; thence along said northerly line,
South 68(degrees)37'10" West 398.01 feet to the westerly line of
said Lot 10; thence along said westerly line. South
21(degrees)22'50" East 400.00 feet to the said point of beginning
of this description, containing 3.11 acres of land, more or less.
Asyst: ______
Exar: _______
<PAGE>
Parcel 3: Lot 17, Tract 4642 filed March 10, 198l in Book 126 at page 30,
Alameda County Records, being more particularly described as
follows:
Beginning at the northwest corner of said Lot 17, Tract 4642,
hereinabove described, said point being on the easterly line of Kato
Road as shown on said map; thence along said easterly line, South
20(degrees)36'32" East 29.68 feet to the beginning of a curve
concave to the east having a radius of 3960.23 feet; thence
southerly along said curve a length of 79.20 feet through a central
angle of 1(degrees)08'45"; thence South: 21(degrees)45'17" East
291.15 feet to the southerly line of said Lot 17; thence along said
southerly line, North 69(degrees)23'28" East 459.55 feet to the
easterly line of said Lot 17; thence along said easterly line; North
21(degrees)22'50" West 400.00 feet to the said northerly line of
said Lot 17; thence along said northerly line, South
69(degrees)23'28'' West 460.78 feet to the said point of beginning
of this description, containing 4.23 acres of land, more or less.
Description of parcels as merged under this document:
Parcel I
Real property located in the City of Fremont, Alameda County, described as
follows:
Lots 9, 10 and 17, Tract 4642, filed March 10, 1981, Map Book 126, page 30,
Alameda County Records, being more particularly described as follows:
Beginning at the northwest corner of said Lot 9, Tract 4642, hereinabove
described, said point being on the easterly line of Kato Road as shown on said
map; thence along said easterly line, South 21'45'17" East 70.60 feet to the
beginning of a curve concave to the northeast having a radius of 356.02 feet;
thence southeasterly a length of 556.91 feet along said curve through a central
angle of 89(degrees)37'33"; thence North 68(degrees)37'10" East 259.34 feet to
the beginning of a curve concave to the northwest having a radius of 40.00 feet;
thence northeasterly along said curve a length of 62.83 feet through a central
angle of 90(degrees)00'00" to the westerly line of Milmont Drive; thence along
said westerly line, North 21(degrees)22'50" West 160.47 feet to the beginning of
a curve concave to the east having a radius of 532.00 feet; thence northerly
along said curve a length of 258.91 feet; thence North 6(degrees)30'15" East
183.35 feet to the beginning of a curve concave to the west having a radius of
468.00 feet; thence northerly along said curve a length of 215.65 feet through a
central angle of 26(degrees)24'03" to the northerly line of said Lot 10; thence
along said northerly line, South 68(degrees)37'10" West 398.01 feet; thence
along the northerly line of said Lot 17, South 69(degrees)23'28" West 460.78
feet to the easterly line of Kato Road; thence along said easterly line, South
20(degrees)36'32" East 29.68 feet to the beginning of a curve concave to the
east having a radius of 3960.23 feet; thence southerly along said curve a length
of 79.20 feet through a central angle of 1(degrees)08'45"; thence South
21(degrees)45'17" East 291.15 feet to the said point of beginning of this
description. containing 13.1 acres of land, more or less.
Asyst: _______
Exar: ________
<PAGE>
Exhibit C
[graphics attachment]
Asyst: ______
Exar: _______
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FINANCIAL
STATEMENTS FOR THE NINE MONTHS ENDED DECEMBER 31, 1999 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> MAR-31-2000
<PERIOD-START> APR-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 95,291
<SECURITIES> 11,960
<RECEIVABLES> 46,934
<ALLOWANCES> (2,023)
<INVENTORY> 34,616
<CURRENT-ASSETS> 210,079
<PP&E> 37,475
<DEPRECIATION> (22,294)
<TOTAL-ASSETS> 245,377
<CURRENT-LIABILITIES> 40,020
<BONDS> 0
0
0
<COMMON> 222,657
<OTHER-SE> (17,300)
<TOTAL-LIABILITY-AND-EQUITY> 245,377
<SALES> 131,598
<TOTAL-REVENUES> 131,598
<CGS> 72,672
<TOTAL-COSTS> 57,683
<OTHER-EXPENSES> (1,088)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 144
<INCOME-PRETAX> 2,331
<INCOME-TAX> 2,124
<INCOME-CONTINUING> 207
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 207
<EPS-BASIC> 0.01
<EPS-DILUTED> 0.01
</TABLE>
