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U.S SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
--- EXCHANGE ACT OF 1934
For the quarterly period ending September 30, 1996
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 33-4142
Infoseek Corporation
(Exact name of registrant as specified in its charter)
CALIFORNIA 77-0353450
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
2620 AUGUSTINE DRIVE, SUITE 250
SANTA CLARA, CA 95054
(Address of principal executive offices)
408-567-2700
(Registrant's telephone number, including area code)
Check whether the registrant: (1) filed all reports required to be filed by
Section 13 or 15 (d) of the Exchange Act during the past 12 months (or for such
shorter period that the registrant was required to file such reports), and (2)
has been subject to such filing requirements for the past 90 days.
Yes No X
--- ---
As of November 4, 1996, there were 25,940,000 shares of the Registrant's common
stock outstanding.
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PAGE
PART I FINANCIAL INFORMATION NUMBER
ITEM 1: Financial Statements
Condensed Balance Sheets as of September 30, 1996
and December 31, 1995 ............................. 3
Condensed Statements of Operations for the Three
and Nine Months Ended September 30, 1996 and 1995.. 4
Condensed Statements of Cash Flows for the Nine
Months Ended September 30, 1996 and 1995 .......... 5
Notes to Condensed Financial Statements .................... 6
ITEM 2: Management's Discussion and Analysis of Financial Conditions
and Results of Operations .................................. 7
PART II OTHER INFORMATION ........................................... 15
Signatures ............................................................ 16
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PART I: FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
INFOSEEK CORPORATION
CONDENSED BALANCE SHEETS
(IN THOUSANDS)
<TABLE>
<CAPTION>
SEPTEMBER 30,
1996 DECEMBER 31,
ASSETS (UNAUDITED) 1995
----------- -----------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 3,085 $ 1,128
Short-term investments 47,495 497
Accounts receivable, net 1,515 499
Other current assets 499 111
-------- -------
Total current assets 52,594 2,235
Property and equipment, net 6,385 2,813
Deposits and other assets 702 75
-------- -------
Total assets $ 59,681 $ 5,123
======== =======
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 1,275 $ 1,222
Accrued payroll and payroll related expenses 1,083 71
Accrued royalties 347 36
Other accrued liabilities 1,086 576
Short-term obligations 488 238
-------- -------
Total current liabilities 4,279 2,143
Long-term obligations 2,639 837
Shareholders' equity:
Preferred stock -- --
Convertible preferred stock -- 6,695
Common stock 74,306 2,411
Accumulated deficit (16,819) (4,833)
Deferred compensation (4,127) (2,080)
Notes receivable from shareholders (597) (50)
-------- -------
Total shareholders' equity 52,763 2,143
-------- -------
Total liabilities and shareholders' equity $ 59,681 $ 5,123
======== =======
</TABLE>
See notes to condensed financial statements.
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INFOSEEK CORPORATION
CONDENSED STATEMENTS OF OPERATIONS
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE AND SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
---------------------- -----------------------
1996 1995 1996 1995
------- ------- -------- -------
<S> <C> <C> <C> <C>
Total revenues $ 4,007 $ 278 $ 9,025 $ 337
Cost of revenues 827 179 2,211 371
------- ------- -------- -------
Gross profit (loss) 3,180 99 6,814 (34)
Operating expenses:
Research and development 1,218 238 2,795 609
Sales and marketing 5,219 387 14,003 709
General and administrative 1,091 186 2,751 438
------- ------- -------- -------
Total operating expenses 7,528 811 19,549 1,756
------- ------- -------- -------
Operating loss (4,348) (712) (12,735) (1,790)
Interest income, net 652 45 749 80
------- ------- -------- -------
Net loss $(3,696) $ (667) $(11,986) $(1,710)
======= ======= ======== =======
Net loss per share $ (0.14) $ (0.03) $ (0.59) $ (0.07)
Shares used in computing net
loss per share 25,931 25,811 20,337 25,880
</TABLE>
See notes to condensed financial statements.
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INFOSEEK CORPORATION
CONDENSED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
-------------------
1996 1995
---- ----
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net loss $(11,986) $(l,710)
Adjustments to reconcile net loss to net cash used in operating activities:
Depreciation and amortization 1,311 262
Amortization of unearned compensation related to stock options 1,085 --
Fair value assigned to services provided by Netscape -- 134
Changes in assets and liabilities:
Accounts receivable (1,016) (142)
Other current assets (388) (279)
Accounts payable 53 60
Accrued payroll and payroll related expenses 1,012 25
Accrued royalties 311 35
Other accrued liabilities 510 (10)
-------- - ----
Net cash used in operating activities $ (9,108) $ (1,625)
INVESTING ACTIVITIES
Purchase of short term investments (91,358) (2,811)
Proceeds from sales and maturities of available-
for-sale investments 44,360 223
Purchases of property and equipment (4,838) (205)
-------- - ----
Net cash used in investing activities (51,836) (2,793)
FINANCING ACTIVITIES
Term loan 2,573 --
Repayments of term loan (521) (40)
Payments of deposit on term loan (675) --
Proceeds from sale of common stock, net 61,524 4,827
-------- - ----
Net cash provided by financing activities 62,901 4,787
-------- - ----
Net increase in cash and cash equivalents 1,957 369
Cash and cash equivalents at beginning of period 1,128 568
-------- --------
Cash and cash equivalents at end of period $ 3,085 $ 937
======== ========
</TABLE>
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING AND FINANCING ACTIVITIES
Unearned compensation related to stock options amounted to $3,102,000 for
the nine months ended September 30, 1996.
See notes to condensed financial statements.
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INFOSEEK CORPORATION
NOTES TO CONDENSED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The financial information included herein, except for the December
31,1995 balance sheet, which was derived from audited financial statements, have
been prepared by the Company in accordance with generally accepted accounting
principles and reflect all adjustments, consisting only of normal recurring
accruals which in the opinion of management are necessary to fairly state the
Company's financial position, results of operations, and cash flows for the
periods presented. These financial statements should be read in conjunction with
the Company's audited financial statements included in the Company's
Registration Statement on Form S-1 as declared effective by the Securities and
Exchange Commission on June 11, 1996. The results of operations for the three
and nine months ended September 30, 1996 are not necessarily indicative of the
results to be expected for any future periods.
2. INITIAL PUBLIC OFFERING
In June 1996, the Company completed its initial public offering and
issued 3,972,675 shares of its common stock to the public at a price of $12.00
per share. The Company received proceeds from the offering of approximately
$43.4 million net of underwriting discounts, commissions and other offering
costs. Simultaneously upon the closing of the initial public offering, all
outstanding shares of its redeemable convertible preferred and convertible
preferred stock were automatically converted into shares of common stock.
3. NET LOSS PER SHARE
Net loss per share is computed using the weighted average number of
shares of common stock outstanding. Pursuant to the Securities and Exchange
Commission Staff Accounting Bulletins, convertible preferred stock, redeemable
convertible preferred stock, common stock and common equivalent shares (options
and warrants) issued by the Company at prices below the assumed public offering
price during the twelve-month period prior to the offering have been included in
the calculation through March 31, 1996 as if they were outstanding for all
periods presented regardless of whether they are antidilutive (using the
treasury stock method at the public offering price).
Pro forma net loss per share for the three and nine months ended
September 30, 1995 also gives effect, even if antidilutive, to common equivalent
shares from preferred stock that automatically converted upon the closing of the
Company's initial public offering (using the as-if-converted method).
Supplemental pro forma loss per share would have been $.48 for the nine months
ended September 30, 1996, assuming the convertible preferred stock was converted
at the beginning of the second quarter.
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ITEM 2: MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
This Discussion and Analysis contains certain forward-looking
statements within the meaning of Section 27A of the Securities Act of 1993 and
Section 21E of the Securities Exchange Act of 1934. Actual results and the
timing of certain events could differ materially from those projected in the
forward-looking statements as a result of the risk factors set forth in "Risk
Factors That May Affect Future Results" and other factors discussed elsewhere in
this Report.
RESULTS OF OPERATIONS
Total Revenues
For the three months ended September 30, 1996 and 1995, total revenues were
$4,007,000 and $278,000, respectively. For the nine months ended September 30,
1996 and 1995, total revenues were $9,025,000 and $337,000, respectively.
For the three months ended September 30, 1996 and 1995, advertising
revenues were $3,798,000 and $201,000, respectively, representing 95% and 73% of
total revenues in such periods. For the nine months ended September 30, 1996 and
1995, advertising revenues were $8,508,000 and $217,000, respectively,
representing 94% and 65% of total revenues in such periods. The balance of total
revenues during these periods was derived from subscription fees for a premium
service offered to business and professional users. Revenues from this service
are recognized over the period the service is provided and have been
insignificant to date. During the third quarter of 1996 the Company discontinued
this service. During 1995 and for the first nine months of 1996, the Company
derived its revenues substantially from the sale of advertisements on its Web
pages. The Company expects to continue to derive substantially all of its
revenues for the foreseeable future from selling advertising space on its Web
sites. Advertising revenues are derived principally from short-term advertising
contracts in which the Company guarantees a minimum number of impressions
(displays of an advertisement to the user) for a fixed fee. Advertising revenues
are recognized ratably over the term of the contract during which services are
provided and are stated net of customer discounts.
Also included in advertising revenues is the exchange by the Company of
advertising space on the Company's Web sites for reciprocal advertising space in
other media publications or other Web sites or receipt of applicable goods and
services. Revenues from these exchange transactions are recorded as advertising
revenues at the estimated fair value of the goods and services received and are
recognized when both the Company's advertisements and reciprocal advertisements
are run or applicable goods or services are received. Although such revenues
have been insignificant to date, the Company believes these exchange
transactions are of value, particularly in the marketing of the Infoseek brand,
and expects to continue to engage in these transactions in the future.
The Company's current business model to generate revenues through the sale
of advertising on the Internet is unproven. There can be no assurance that
current advertisers will continue to purchase advertising space and services
from the Company or that the Company will be able to successfully attract
additional advertisers.
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In March 1996, the Company and NYNEX Information Technologies Company
("NYNEX") entered into a one year agreement, which provides for the Company's
display of the BigYellow logo, which represents NYNEX's interactive shopping
directory, as the exclusive comprehensive shopping directory within Infoseek
Guide. In exchange for such exclusivity, NYNEX agreed to pay to the Company up
to an aggregate of $4.6 million in monthly payments, which amount will be
decreased proportionately if the number of impressions of the BigYellow logo is
below a specified number. NYNEX may extend the term of the agreement for
additional one year periods, with the fee to be determined based upon Infoseek's
then current advertising rate structure. In addition, NYNEX has the right to
cancel or renegotiate the agreement based upon certain relative traffic volumes
on the BigYellow and Infoseek Guide sites. The Company recognized revenue of
$672,000 and $992,000 in connection with this agreement during the three and
nine months ended September 30, 1996, respectively. There can be no assurance
that the NYNEX arrangement will prove to be mutually beneficial, that it will be
continued after its initial term or that the Company will be able to produce the
levels of traffic that NYNEX has negotiated.
Cost of Revenues
For the three months ended September 30, 1996 and 1995, cost of revenues
were $827,000 and $179,000, respectively. For the nine months ended September
30, 1996 and 1995, cost of revenues were $2,211,000 and $371,000, respectively.
Cost of revenues consist primarily of expenses associated with the enhancement,
maintenance and support of the Company's Web sites, including telecommunications
costs and equipment depreciation.
Cost of revenues also includes expenses associated with the licensing of
certain third-party technologies, consisting in 1995 and for the nine months
ended September 30, 1996 primarily of amortization of the fee for the search
engine technology licensed from Applied Computing Systems Institute of
Massachusetts, Inc. ("ACSIOM"), as well as ongoing royalties based on usage of
the product. The initial license fee was amortized at a rate of $37,000 per
quarter, commencing with the first quarter of 1995 and ended in the second
quarter of 1996. Royalty fees to ACSIOM were paid commencing in the first
quarter of 1995 and will continue as long as the Company utilizes the
technology.
Operating Expenses
The Company's operating expenses have increased in each quarter of 1995 and
1996, as the Company has transitioned from the product development stage to the
marketing of its services and products and expansion its business. The Company
expects operating expenses to continue to increase in dollar amount in the
future as the Company continues to expand its business.
The Company recorded aggregate deferred compensation of $5,226,000 during
the fourth quarter of 1995 and first quarter of 1996 in connection with certain
stock options granted during those periods. The amortization of such deferred
compensation is being charged to operations over the vesting periods of the
options, which are typically four years. For the three and nine months ended
September 30, 1996, the Company amortized $301,000 and $1,030,000, respectively,
related to stock options. The amortization of this deferred compensation will
continue to have an adverse effect on the Company's results of operations.
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Research and Development
For the three months ended September 30, 1996 and 1995, research and
development expenses were $1,218,000 and $238,000, respectively. For the nine
months ended September 30, 1996 and 1995, research and development expenses were
$2,795,000 and $609,000, respectively. Research and development expenses consist
principally of personnel costs, consulting and equipment depreciation. Costs
related to research, design and development of products and services have been
charged to research and development expense as incurred.
The increase in research and development expenses for the third quarter of
1996 and for the nine months ended September 30, 1996 over the corresponding
periods of 1995 were primarily the result of continued product enhancements of
the Infoseek Guide product and the development of the Company's next generation
search engine, Ultraseek. The Company believes that a significant level of
product development expenses is required to remain competitive. Accordingly, the
Company anticipates that it will continue to devote substantial resources to
product development and that these costs may substantially increase in dollar
amount in future periods.
Sales and Marketing
For the three months ended September 30, 1996 and 1995, sales and marketing
expenses were $5,219,000 and $387,000 respectively. For the nine months ended
September 30, 1996 and 1995, sales and marketing expenses were $14,003,000 and
$709,000, respectively. Sales and marketing expenses consist primarily of
compensation of sales and marketing personnel, advertising and promotional
expenses.
Sales and marketing expenses for the three and nine months ended September
30, 1996 included payments made to Netscape Communications Corporation
("Netscape") pursuant to an arrangement for the listing of the Company's product
on the Netscape Web page. This agreement with Netscape provides for payments of
up to an aggregate of $5.0 million over the course of the one year term of the
agreement. While the Company intends to renew the contract when it expires in
March 1997, there can be no assurance that it will be renewed on commercially
reasonable terms if at all. During the three and nine months ended September 30,
1996, the Company recognized $1.25 million and $2.5 million of the $5.0 million
payment to Netscape as expense, respectively.
In addition, the increase in sales and marketing expenses for the third
quarter of 1996 and for the nine months ended 1996 over the corresponding
periods of 1995 were also the result of hiring additional sales and marketing
personnel and an increase in promotional and advertising activity. The Company
expects to continue hiring additional sales and marketing personnel and to
increase promotional and advertising expenses, and anticipates that these costs
will continue to increase in dollar amount in future periods.
General and Administrative
For the three months ended September 30, 1996 and 1995, general and
administrative expenses were $1,091,000 and $186,000 respectively. For the nine
months ended September 30,
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1996 and 1995, general and administrative expenses were $2,751,000 and $438,000
respectively. General and administrative expenses consist primarily of
compensation of administrative and executive personnel, occupancy costs and fees
for professional services.
The increase in general and administrative expenses for the third quarter
of 1996 and for the nine months ended 1996 over the corresponding periods of
1995 was the result of hiring additional administrative and executive staff and
adding infrastructure to manage the expansion of the business. The Company
anticipates that its general and administrative expenses will continue to
increase in dollar amount as the Company continues to expand its administrative
and executive staff, relocates to larger facilities, adds infrastructure and
incurs additional costs related to being a public company, such as expenses
related to directors' and officers' insurance, investor relations programs and
increased professional fees.
Income Taxes
Due to the Company's loss position, there was no provision for income taxes
for any of the periods presented. At December 31, 1995, the Company had federal
and state net operating loss carryforwards of approximately $4.0 million and
$600,000, respectively. The federal net operating loss carryforwards will expire
beginning in 2008 through 2010, if not utilized, and the state net operating
loss carryforwards will expire in the years 1998 through 2000. Certain future
changes in the share ownership of the Company, as defined in the Tax Reform Act
of 1986 and similar state provisions, may restrict the utilization of
carryforwards. A valuation allowance has been recorded for the entire deferred
tax asset as a result of uncertainties regarding the realization of the asset
due to the lack of earnings history of the Company.
Liquidity and Capital Resources
From inception through April 1996, the Company financed its operations and
met its capital expenditure requirements primarily through cash proceeds from
private sales of stock totaling $23.9 million. In June 1996, the Company
completed its initial public offering and received proceeds from the offering of
approximately $43.4 million net of underwriting discounts, commissions and other
offering costs. Concurrent with the closing of the initial public offering, all
outstanding shares of its redeemable convertible preferred and convertible
preferred stock were automatically converted into shares of common stock.
For the first nine months of 1996 and 1995, operating activities used cash
of $9.1 million and $1.6 million, respectively. The net cash used during these
periods was primarily due to net losses and increases in accounts receivable and
other current assets, partially offset by increases in accounts payable and
accrued liabilities. For the first nine months of 1996 and 1995, investing
activities used net cash of $51.8 million and $2.8 million, respectively,
primarily associated with the purchase of net short-term investments and
property and equipment. Financing activities generated cash of $62.9 million and
$4.8 million in the first nine months of 1996 and 1995 and, respectively,
primarily from preferred stock sales, the initial public offering in June 1996
and equipment loans.
The Company expects to continue to incur significant capital expenditures
to support expan-
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sion of the Company's business. Furthermore, from time to time the Company
expects to evaluate the acquisition of products, businesses and technologies
that complement the Company's business. The Company does not, however, currently
have any understandings, commitments or agreements with respect to any such
acquisitions.
The Company had $50.6 million in cash, cash equivalents and short-term
investments at September 30, 1996. The Company believes that its existing funds
will satisfy the Company's anticipated working capital and other cash
requirements through at least the next 12 months. Thereafter, the Company may
need to raise additional funds. The Company may need to raise additional funds
sooner, however, in order to fund more rapid expansion, to develop new or
enhance existing services or products, to respond to competitive pressures or to
acquire complementary products, businesses or technologies. If additional funds
are raised through the issuance of equity or convertible debt securities, the
percentage ownership of the shareholders of the Company will be reduced,
shareholders may experience additional dilution and such securities may have
rights, preferences or privileges senior to those of the holders of the
Company's Common Stock. There can be no assurance that additional financing will
be available on terms favorable to the Company, or at all. If adequate funds are
not available or are not available on acceptable terms, the Company's ability to
fund expansion, take advantage of acquisition opportunities, develop or enhance
services or products or respond to competitive pressures would be significantly
limited. Such limitation could have a material adverse effect on the Company's
business, results of operations and financial condition.
Risk Factors That May Affect Future Results
In addition to the other information contained in this Report, the
following risk factors should be considered.
Limited Operating History; Anticipation of Continued Losses. The
Company has a limited operating history, which makes it difficult to manage
future operations or predict future operating results. The Company was formed in
August 1993, did not commence generating revenues until January 1995 and has
generated limited revenues to date. The Company has incurred significant net
losses since inception and expects to continue to incur significant losses on a
quarterly and annual basis for the foreseeable future. As of September 30, 1996,
the Company had an accumulated deficit of $16.8 million. The Company and its
prospects must be considered in light of the risks, costs and difficulties
frequently encountered by companies in their early stage of development,
particularly companies in the new and rapidly evolving Internet market. The
Company has achieved only limited revenues to date, and its ability to generate
significant revenues is subject to substantial uncertainty. There can be no
assurance that the Company will be able to address any of these challenges or
will be able to sustain revenue growth or achieve profitability.
Potential Fluctuations in Future Results. As a result of the Company's
limited operating history as well as the very recent emergence of the market
addressed by the Company, the Company has neither internal nor industry-based
historical financial data for any significant period of time upon which to base
planned operating expenses.
The Company expects that its results of operations may also fluctuate
significantly in the
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future as a result of a variety of factors, including; the continued rate of
growth, usage and acceptance of the Internet; the rate of acceptance of the
Internet as an advertising medium; demand for the Company's products and
services; the advertising budgeting cycles of individual advertisers; the
introduction and acceptance of new or enhanced products or services by the
Company or by its competitors; the Company's ability to anticipate and
effectively adapt to a developing market and to rapidly changing technologies;
the Company's ability to attract, retain and motivate qualified personnel;
initiation, renewal or expiration of significant contracts with NYNEX or
Netscape; pricing changes by the Company or its competitors; specific economic
conditions in the Internet market; general economic conditions and other
factors. In addition, the Company may elect from time to time to make certain
pricing, service or marketing decisions or acquisitions that could have a
short-term material adverse effect on the Company's business, results of
operations and financial condition and may not generate the long-term benefits
intended. Due to all of the foregoing factors, it is likely that in some future
period, the Company's operating results may be below the expectations of public
market analysts and investors. In such event, the price of the Company's Common
Stock would likely be materially adversely affected.
The Company's revenues are also dependent on it's relationship with
Nynex. In March 1996, the Company and NYNEX entered into a one year agreement,
which provides for the Company's display of the BigYellow logo, which represents
NYNEX's interactive shopping directory, as the exclusive comprehensive shopping
directory within Infoseek Guide. In exchange for such exclusivity, NYNEX agreed
to pay to the Company up to an aggregate of $4.6 million in monthly payments,
which amount will be decreased proportionately if the number of impressions of
the BigYellow logo is below a specified number. NYNEX may extend the term of the
agreement for additional one year periods, with the fee to be determined based
upon Infoseek's then current advertising rate structure. In addition, NYNEX has
the right to cancel or renegotiate the agreement based upon certain relative
traffic volumes on the BigYellow and Infoseek Guide sites. There can be no
assurance that the NYNEX arrangement will prove to be mutually beneficial, that
it will be continued after its initial term or that the Company will be able to
produce the levels of traffic that NYNEX has negotiated.
Developing Market; Unproven Acceptance of Internet Advertising and of
the Company's Products and Services. The market for the Company's products and
services has only recently begun to develop, is rapidly evolving and is
characterized by an increasing number of market entrants with products and
services for use on the Internet. The Company's future success is highly
dependent upon the increased use of the Internet for information publication,
distribution and commerce. In particular, because the Company expects to derive
substantially all of its revenues in the foreseeable future from sales of
Internet advertising, the future success of the Company is highly dependent on
the development of the Internet as an advertising medium.
The Company is in a new and rapidly evolving industry, with demand for
and market acceptance of recently introduced products and services being subject
to a high level of uncertainty. Accordingly, it is difficult to predict its
size, stability and the extent of its growth, if any. There can be no assurance
that the market for the Company's products and services will develop or that
demand for the Company's products or services by Internet users or by
advertisers will emerge or become sustainable. If the market fails to develop,
develops more slowly than expected or becomes saturated with competitors, or if
the Company's products and services do not achieve
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or sustain acceptance by the Internet users or advertisers, the Company's
business, results of operations and financial condition will be materially
adversely affected.
Reliance on Advertising Revenues. The Company has derived substantially
all of its revenues to date from the sale of advertisements, and expects such
dependence of advertising revenue to continue. The Company's current business
model to generate revenues through the sale of advertising on the Internet is
unproven. In addition, the Company's advertising revenues to date have been
derived from a limited number of advertising customers. There can be no
assurance that current advertisers will continue to purchase advertising space
and services from the Company or that sufficient impressions will be achieved or
available, or that the Company will be able to successfully attract additional
advertisers. Furthermore, there is intense competition among sellers of
advertising space on the Internet, and a variety of pricing models offered by
different vendors for a range of advertising services, making it difficult to
project future levels of advertising revenues and pricing models that will be
adopted by the industry or individual companies. Accordingly, there can be no
assurance that the Company will be successful in generating significant future
advertising revenues and failure to do so will have a material adverse effect on
the Company's business, results of operations and financial condition.
Change in Netscape Relationship. From March 1995 through March 1996,
the Company's service was listed as the sole premier navigational service on the
Netscape Web page accessible via the "Net Search" button. In March 1996,
Infoseek entered into a new agreement with Netscape, which provides that
Infoseek will be listed as a non-exclusive premier provider of navigational
services on Netscape's Web page for the period April 10, 1996 to March 31, 1997.
Currently, Netscape's Web page displays four additional premier providers. There
can be no assurance that the Company will be able to maintain or increase its
current level of traffic and any failure to do so could materially and adversely
impact advertising revenues. In addition, the Company cannot anticipate the
impact on Infoseek traffic of any changes Netscape may make to this service, to
its Web page or its other services, or the effect on advertising revenues that
may be generated from such traffic. Infoseek's agreement with Netscape provides
for payments of up to an aggregate of $5.0 million to Netscape over the term of
the agreement. While the Company intends to renew the contract when it expires
in March 1997 there can be no assurance that it can be renewed on commercially
reasonable terms if at all. Furthermore, if traffic is decreased significantly
as a result of these or other changes in the Netscape relationship and the
Company is unable to develop alternative viable distribution channels,
advertising revenues would be adversely affected, while the remaining $2.5
million Netscape obligation would not be reduced, the result being that the
Company's business, results of operations and financial condition would be
materially and adversely affected.
Technological Changes and New Products and Services. The market for
Internet products and services is characterized by rapid technological change,
changing customer needs, frequent new product introductions and evolving
industry standards. These market characteristics are exacerbated by the emerging
nature of this market and the fact that many companies are expected to introduce
new Internet products and services in the near future. The Company's future
success will depend in significant part on its ability to continually and on a
timely basis introduce new products, services and technologies and to continue
to improve the performance, features and reliability of the Company's products
and services in response to both evolving demands of the mar-
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ketplace and competitive product offerings.
There can be no assurance that any new or proposed product or service
will attain market acceptance. Failure of the Company to successfully design,
develop, test, market and introduce new and enhanced technologies and services,
in particular, Ultraseek or any enhancements of the Company's current search
technology, or the failure of the Company's recently introduced products and
services to achieve market acceptance could have a material adverse effect upon
the Company's business, operating results and financial condition. There can be
no assurance that the Company will not experience difficulties that could delay
or prevent the successful development, introduction or marketing of new or
enhanced technologies, products and services, or that the Company's new or
recently introduced products and services will adequately meet the requirements
of the marketplace and achieve significant market acceptance. Due to certain
market characteristics, including technological change, changing customer needs,
frequent new product and service introductions and evolving industry standards,
timeliness of introduction of these new products and services is critical.
Delays in the introduction of new products and services may result in customer
dissatisfaction and may delay or cause a loss of advertising revenue. There can
be no assurance that the Company will be successful in developing new products
or services or improving existing products and services that respond to
technological changes or evolving industry standards, that the Company will not
experience difficulties that could delay or prevent the successful development,
introduction and marketing of new or improved products and services, or that its
new products and services will adequately meet the requirements of the
marketplace and achieve market acceptance. In addition, new or enhanced products
and services introduced by the Company may contain undetected errors that
require significant design modifications. This could result in a loss of
customer confidence and user support, thus adversely affecting the use of the
Company's products and services, which in turn would have a material adverse
effect upon the Company's business, results of operations or financial
condition. If the Company is unable to develop and introduce new or improved
products or services in a timely manner in response to changing market
conditions or customer requirements, the Company's business, operating results
and financial condition will be materially adversely affected.
Intense Competition. The market for Internet products and services is
highly competitive, with no substantial barriers to entry, and the Company
expects that competition will continue to intensify. In addition, the market for
the Company's products and services has only recently begun to develop, is
rapidly evolving and is characterized by an increasing number of market entrants
with competing products and services. The Company does not believe this market
will support the increasing number of competitors and their products and
services. Although the Company believes that the diverse segments of the
Internet market may provide opportunities for more than one supplier of products
and services similar to those of the Company, it is possible that a single
supplier may dominate one or more market segments. Accordingly, any failure of
the Company to provide product and service offerings that achieve success in the
short-term could result in an insurmountable loss in market and brand
acceptance, and could, therefore, have a material adverse and long-term effect
upon the Company's business, results of operations and financial condition.
14
<PAGE> 15
PART II: OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
a) Exhibits
10.1 Lease extension agreement dated September 11, 1996 and
September 17, 1996 between Registrant and Spieker
Properties, L.P.
10.2 Lease agreement dated September 11, 1996 and
September 17, 1996 between Registrant and Spieker
Properties, L.P.
11.1 Statement re: Computation of Earnings Per Share
27.1 Financial Data Schedule
b) Reports on Form 8-K
The Company did not file any reports on Form 8-K during the quarter
ended September 30, 1996.
15
<PAGE> 16
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.
INFOSEEK CORPORATION
BY /s/ Leonard LeBlanc
Leonard LeBlanc
Executive Vice President, Finance and
Chief Financial Officer
Dated: November 14, 1996
16
<PAGE> 17
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
10.1 Lease extension agreement dated September 11, 1996 and
September 17, 1996 between Registrant and Spieker
Properties, L.P.
10.2 Lease agreement dated September 11, 1996 and
September 17, 1996 between Registrant and Spieker
Properties, L.P.
11.1 Statement re: Computation of Earnings Per Share
27.1 Financial Data Schedule
<PAGE> 1
EXHIBIT 10.1
EXTENSION AGREEMENT to be attached to and form a part of lease (which together
with any amendments, modifications and extensions thereof is hereinafter called
the Lease), made the 13th day of December 1993
Between Spieker Properties, L.P., a California limited partnership,
as Landlord
and
Infoseek Corporation, a California corporation,
as Tenant
covering the premises known as 2620 Augustine Drive, Suite 250,
Santa Clara, California
Witnesseth that the Lease is hereby renewed and extended for a further term of
seventeen (17) months to commence on the first day of April 1997, and to end on
the thirty first day of August 1998, on condition that Landlord and Tenant
comply with all the provisions of the covenants and agreements contained in the
Lease, except:
1) PARAGRAPH #4 - RENT Rental for the premises shall be:
$4,196.00 (Four Thousand One Hundred Ninety Six Dollars and no/100ths)
per month plus basic operating costs and taxes per paragraph 29 of this
Lease Agreement. Basic operating costs and taxes are estimated a year in
advance and collected on a monthly basis. Any adjustment necessary (up
or down) will be made at the end of the operating year.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this Extension
Agreement.
Landlord: Spieker Properties, L.P., a California limited partnership
By: Spieker Properties, Inc., a Maryland corporation
Its: General Partner
By: /s/ John A. Foster Dated: 9/17/96
------------------------- ----------------
John A. Foster (CW)
Title: Senior Vice President
---------------------
Tenant: Infoseek Corporation, a
California corporation
By: /s/ Andrew E. Newton Dated: 9/11/96
------------------------- -----------------
Andrew E. Newton
Title: Vice President
---------------------
<PAGE> 1
EXHIBIT 10-2
BASIC LEASE INFORMATION
OFFICE LEASE
LEASE DATE: August 29, 1996
LANDLORD: Spieker Properties, L.P., a California limited
partnership
ADDRESS OF LANDLORD: 3333 Bowers Avenue, Suite 153
Santa Clara, CA 95054
TENANT: Infoseek Corporation, a California corporation
ADDRESS OF TENANT: 2620 Augustine Drive, Suite 250
Santa Clara, CA 95054
CONTACT: Vickie J. Blakeslee TELEPHONE: (408) 982-4460
PARAGRAPH 1 PREMISES: Approximately 4,211 square feet of rentable area
(which includes a portion of the common area) on the
second floor of the building commonly known as 2620
Augustine Drive, Santa Clara, California. The
demised Premises is approximately as shown outlined
in red on the attached Exhibit "E" -- Suite 260.
PARAGRAPH 2 PERMITTED USE: General office use.
PARAGRAPH 2 OCCUPANCY DENSITY: 1/200 (One person per 200 square feet)
PARAGRAPH 3 SCHEDULED TERM COMMENCEMENT DATE: April 1, 1997
PARAGRAPH 3 SCHEDULED LENGTH OF TERM: Seventeen (17) months
PARAGRAPH 3 SCHEDULED TERM EXPIRATION DATE: August 31, 1998
PARAGRAPH 4 RENT: See Addendum 2
PARAGRAPH 15 SECURITY DEPOSIT: $8,000.00
PARAGRAPH 29 TENANT'S PROPORTIONATE SHARE: 9.0%
The foregoing Basic Lease Information is incorporated into and
made a part of this Lease. Each reference in this Lease to any
of the Basic Lease information shall mean the respective
information above set forth and shall be construed to
incorporate all of the terms provided under the particular
Lease paragraph pertaining to such information. In the event of
any conflict between the Basic Lease Information and the Lease,
the latter shall control.
LANDLORD: TENANT:
Spieker Properties, L.P. Infoseek Corporation,
-------------------------------- ---------------------------
a California limited partnership a California corporation
BY Spieker Properties, Inc., BY /s/ Andrew E. Newton
------------------------------ ---------------------------
a Maryland corporation Andrew E. Newton
ITS General Partner ITS Vice President
----------------------------- --------------------
BY /s/ John A. Foster
-----------------------------
John A. Foster
ITS Senior Vice President
-----------------------------
<PAGE> 2
LEASE
TABLE OF CONTENTS
PAGE
----
Basic Lease Information ....................................... 1
1. Premises ...................................................... 3
2. Occupancy ..................................................... 3
3. Term and Possession ........................................... 3
4. Rent .......................................................... 3
5. Restrictions On Use ........................................... 3
6. Compliance With Laws .......................................... 3
7. Alterations ................................................... 3
8. Repairs ....................................................... 3
9. Liens ......................................................... 4
10. Assignment And Subletting ..................................... 4
11. Insurance And Indemnification ................................. 4
12. Waiver Of Subrogation ......................................... 5
13. Service And Utilities ......................................... 5
14. Estoppel Certificate .......................................... 5
15. Security Deposit .............................................. 6
16. Substitution .................................................. 6
17. Holding Over .................................................. 6
18. Subordination ................................................. 6
19. Rules And Regulations ......................................... 6
20. Re-Entry By Landlord .......................................... 6
21. Default By Tenant ............................................. 6
22. Damage By Fire, Etc. .......................................... 7
23. Eminent Domain ................................................ 8
24. Sale By Landlord And Tenant's Remedies ........................ 8
25. Right Of Landlord To Perform .................................. 8
26. Surrender Of Premises ......................................... 8
27. Waiver ........................................................ 8
28. Notices ....................................................... 8
29. Rental Adjustments ............................................ 9
30. Taxes Payable By Tenant ....................................... 10
31. Successors And Assigns ........................................ 10
32. Attorneys' Fees ............................................... 10
33. Light And Air ................................................. 10
34. Public Transportation Information ............................. 10
35. Miscellaneous ................................................. 10
36. Lease Effective Date .......................................... 10
Signatures .................................................... 10
EXHIBIT "A" ......................................... Rules and Regulations
EXHIBIT "B" ........................................... Outline of Premises
EXHIBIT "D" .................................... Form of Tenant Certificate
EXHIBIT "E" .................................................... Floor Plan
EXHIBIT "F" ............................. Conditional Termination Agreement
<PAGE> 3
LEASE
THIS LEASE is made as of this 29th day of August, 1996, between Spieker
Properties, L.P., a California limited partnership (hereinafter called
"Landlord") and Infoseek Corporation, a California corporation (hereinafter
called "Tenant").
PREMISES 1. Landlord leases to Tenant and Tenant leases from
Landlord those premises (hereinafter called "Premises")
outlined in red on Exhibit B attached hereto and made a
* See Addendum 1 part hereof, specified in the Basic Lease Information
attached hereto (the "Building").*
OCCUPANCY 2. Tenant shall use the Premises for the Permitted
Use and for no other use or purpose without the prior
written consent of Landlord. No increase in occupant
density of the Leased Premises shall be made which shall
add to the burden of such use of the Building as
determined by Landlord without the prior written consent
of Landlord.
TERM AND POSSESSION 3. (a) The parties project that the term shall
commence on the Scheduled Term Commencement Date and,
except as otherwise provided herein or in any exhibit or
addendum hereto, shall continue in full force until the
Term Expiration Date.
RENT 4. Tenant shall pay to Landlord throughout the Term
Rent as specified in the Basic Lease Information,**
payable in monthly installments in advance on the first
day of each calendar month during every year of the
** See Addendum 2 Term-in lawful money of the United States, without
deduction or offset whatsoever, to Landlord at the
address specified in the Basic Lease Information or to
such other firm or to such other place as Landlord may
from time to time designate in writing by notice given
as herein provided. Rent for the first month of the Term
shall be paid by Tenant upon execution of this Lease. If
the obligation for payment of Rent commences on other
than the first day of a month as provided in paragraph
3(a), then Rent provided for such partial month shall be
prorated and the prorated installment shall be paid on
the first day of the calendar month next succeeding the
Term Commencement Date. If the Term terminates on other
than the last day of a calendar month, then the Rent
provided for such partial month shall be prorated and
the prorated installment shall be paid on the first day
of the calendar month next preceding the date of
termination.
RESTRICTIONS ON USE 5. Tenant shall not do or permit anything to be
done in or about the Premises which will in any way
obstruct or interfere with the rights of other tenants
or occupants of the Building or injure or annoy them,
nor use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose,
nor shall Tenant cause or maintain or permit any
nuisance in, on or about the Premises. Tenant shall not
commit or suffer the commission of any waste in, on or
about the Premises.
COMPLIANCE WITH LAWS 6. Tenant shall not use the Premises or permit
anything to be done in or about the Premises which will
in any way conflict with any law, statute, ordinance or
governmental rule or regulation now in force or which
may hereafter be enacted or promulgated. Tenant shall
not do or permit anything to be done on or about the
Premises or bring or keep anything therein which will in
any way increase the rate of any insurance upon the
Building or any of its contents or cause a cancellation
of said insurance or otherwise affect said insurance in
any manner, and Tenant shall at its sole cost and
expense promptly comply with all laws, statutes,
ordinances and governmental rules, regulations or
requirements now in force or which may hereafter be in
force and with the requirements of which Tenant has
received notification of, of any board of fire
underwriters or other similar body now or hereafter
constituted relating to or affecting the condition, use
or occupancy of the Premises, excluding structural
changes not related to or affected by alterations or
improvements made by or for Tenant or Tenant's acts. The
judgment of any court of competent jurisdiction or the
admission of Tenant in any actions against Tenant,
whether Landlord be a party thereto or not, that Tenant
*** See Addendum 3 has so violated any such law, statute, ordinance, rule,
regulation or requirement, shall be conclusive of such
violation as between Landlord and Tenant.***
ALTERATIONS 7. Tenant shall not make or suffer to be made any
alterations, additions or improvements in, on or to the
Premises or any part thereof without the prior written
consent of Landlord; and any such alterations, additions
or improvements in, on or to said Premises, except for
Tenant's movable furniture and equipment, shall
immediately become Landlord's property and, at the end
of the Term, shall remain on the Premises without
compensation to Tenant. In the event Landlord consents
to the making of any such alteration, addition or
improvement by Tenant, the same shall be made by Tenant,
at Tenant's sole cost and expense, in accordance with
plans and specifications approved by Landlord, and any
contractor or person selected by Tenant to make the same
must first be approved in writing by Landlord.
Notwithstanding the foregoing, at Landlord's option, all
or any portion of the alteration, addition or
improvement work shall be performed by Landlord for
Tenant's account and Tenant shall pay Landlord's
estimate of the cost thereof (including a reasonable
charge for Landlord's overhead and profit) prior to
commencement of the work. Overhead and profit allowances
shall total fifteen percent (15%). Upon the expiration
or sooner termination of the Term, Tenant shall upon
demand be Landlord, at Tenant's sole cost and expense,
with all due diligence remove all those alterations,
additions or improvements made by or for the account of
Tenant, designated by Landlord to be removed, and Tenant
shall with all due diligence, at its sole cost and
expense, repair and restore the Premises to their
original condition, normal wear and tear excepted. At
Landlord's election and notwithstanding the foregoing,
however, Tenant shall pay to Landlord the cost of
removing any such alterations, additions or improvements
and restoring the Premises to their original condition,
normal wear and tear excepted, such cost to include a
reasonable charge for Landlord's overhead and profit as
provided above, and such amount may be deducted from the
Security Deposit or any other sums or amounts held by
Landlord under this Lease.
REPAIRS 8. By taking possession of the Premises, Tenant
accepts the Premises as being in the condition in which
Landlord is obligated to deliver them and otherwise in
good order, condition and repair. At all times during
the
-3-
<PAGE> 4
Term Tenant shall, at Tenant's sole cost and expense,
keep the Premises and every part thereof in good order,
condition and repair, excepting damage thereto by fire,
earthquake, act of God or the elements. Tenant waives
all rights it may have under Section 1942 of the Civil
Code of the State of California and any similar law,
statute or ordinance now or hereafter in effect (to the
full extent that such waiver may lawfully be given)
authorizing or purporting to authorize Tenant to make
repairs to or for the account of Landlord. Tenant shall
upon the expiration or sooner termination of the Term
hereof, unless Landlord demands otherwise pursuant to
paragraph 7 hereof, surrender to Landlord the Premises
and all repairs, changes, alterations, additions and
improvements thereto in the same condition as when
received or when first installed, damage by fire,
earthquake, act of God or the elements excepted.
Landlord has no obligation to alter, remodel, improve,
repair, decorate or paint the Premises or any part
thereof, except as specified in the Office Lease
Improvement Agreement and no representations respecting
the condition of the Premises or the Building have been
made by Landlord to Tenant, except as specifically set
forth herein or in the Office Lease Improvement
Agreement.
LIENS 9. Tenant shall keep the Premises free from liens
arising out of or related to work performed, materials
or supplies furnished or obligations incurred by Tenant
or in connection with work made, suffered or done by
Tenant in Premises or Building. In the event that Tenant
shall not, within ten (10) days following the imposition
of any such lien, cause the same to be released of
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 no obligation, to
cause the same to be released by such means as it shall
deem proper, including payment of the claim giving rise
to such lien. Landlord shall have the right at all times
to post and keep posted on the Premises any notices
permitted or requited by law, or which Landlord shall
deem proper, for the protection of landlord, the
Premises, the Building and any other party having an
interest therein, from mechanics' and materialmen's
liens, and Tenant shall give Landlord not less than ten
(10) business days prior written notice of the
commencement of any work in the Building or Premises
which could lawfully give rise to a claim for mechanics'
or materialmen's lien.
ASSIGNMENT AND 10. Tenant shall not sell, assign, encumber or
SUBLETTING otherwise transfer this Lease or any interest therein
(by operation of law or otherwise), sublet the Premises
or any part thereof or suffer any other person to occupy
or use the Premises or any portion thereof, nor shall
Tenant permit any lien to be placed on Tenant's interest
under this Lease by operation of law except in
accordance with the provisions of this paragraph 10. For
purposes hereof, sales, transfers or assignments of (i)
a controlling interest in the stock of Tenant, if Tenant
is a corporation, or of (ii) the general partnership
interests sufficient to control management decisions if
Tenant is a partnership or of (iii) the majority or
controlling underlying beneficial interest, if Tenant is
any other form of business entity, shall constitute an
assignment subject to the terms of this paragraph
10****.
**** See Addendum 4 (a) In the event that Tenant should desire to sublet the
Premises or any part thereof, Tenant shall provide
Landlord with written notice of such desire at least
ninety (90) days in advance of the date on which Tenant
desires to make such sublease. Landlord shall then have
a period of thirty (30) days following receipt of such
notice within which to notify Tenant in writing that
Landlord elects either (i) to terminate this Lease as to
the space so affected as of the date so specified by
Tenant, in which event Tenant shall be relieved of all
further obligations hereunder as to such space from and
after that date, or (ii) to permit Tenant to sublet such
space, subject, however, to the prior written approval
of the proposed sublessee by Landlord which said consent
shall not be unreasonably withheld. If Landlord should
fail to notify Tenant in writing of its election within
said thirty (30) day period, Landlord shall be deemed to
have waived option (i) above, but written approval of
the proposed sublessee shall still be required. Refusal
by Landlord to approve a proposed sublessee shall not
constitute a termination of this Lease. In exercising
its right of consent to a sublessee it shall be
reasonable for Landlord to withhold consent to any
sublessee who (aa) does not agree to assume the
obligations of the Lease with respect to the space to be
so sublet, (bb) does not agree to utilize the space so
sublet for the Permitted Use, (cc) is of unsound
financial condition as determined by Landlord, or (dd)
will, in Landlord's opinion increase the occupant
density in the Leased Premises. If Tenant proposes to
sublease less than all of the Premises, election by
Landlord of termination of this Lease with respect to
space to be so sublet shall leave this Lease in full
force and effect with respect to the remainder of the
space, the Rent and Tenant's Proportionate Share of
Operating Expenses and taxes shall be adjusted on a pro
rata basis to reflect the reduction in Net Rentable Area
of the Premises as retained by Tenant. This Lease as so
amended shall continue thereafter in full force and
effect and references herein to the Premises shall mean
that portion thereof as to which the Lease has not been
terminated.
(b) Tenant shall not enter into any other transaction
subject to this paragraph 10 without Landlord's prior
written consent which said consent shall not be
unreasonably withheld. It shall be reasonable for
Landlord to withhold consent to any proposed transaction
described in this paragraph 10 on any of the grounds
specified in paragraph 10 (a) with respect to sublessees
or any other reasonable grounds.
(c) Any rent or other consideration realized by Tenant
under any such sublease or assignment to which Landlord
has consented hereunder, in excess of the Rent payable
hereunder, after amortization of the reasonable cost of
the improvements over the remainder of the Term for
which Tenant has paid and reasonable subletting and
assignment costs, shall be divided and paid ninety
percent (90%) to Landlord and ten percent (10%) to
Tenant.
(d) Any subletting hereunder by Tenant shall not result
in Tenant being released or discharged from any
liability under this lease. Any purported assignment,
subletting or other transaction to which paragraph 10
applies, which occurs contrary to the provisions hereof,
shall be void. Landlord's consent to any assignment,
subletting or other transaction to which this paragraph
10 applies shall not release Tenant from any of Tenant's
obligations hereunder or constitute a consent with
respect to any subsequent transaction to which this
paragraph applies.
INSURANCE AND 11. (a) Landlord shall not be liable to Tenant and
INDEMNIFICATION Tenant hereby waives all claims against Landlord for any
injury or damage to any person or property in or about
the Premises by or from any cause whatsoever, (other
than Landlord's gross negligence or willful misconduct)
and, without limiting the generality of the foregoing,
whether caused by water leakage or any character from
the roof, walls, basement or other portion of the
Premises or the Building, or caused by gas, fire, oil or
electricity in, on or about the Premises of the
Building.
(b) Except in the case of Landlord's negligence or
misconduct, Tenant shall hold Landlord harmless from and
defend Landlord against any and all claims or liability
for any injury or damage to any person or property
whatsoever: (i) occurring in, on or about the Premises
or any part thereof, or (ii) occurring in, on or about
any facilities (including, without prejudice to the
generality of the term "facilities", elevators,
stairways, lobbies, health clubs, passageways or
hallways), the use of which Tenant may have in
conjunction with other tenants of the Building, when
such injury or damage shall be caused in part or in
whole by the act, neglect, fault of or omission of any
duty with respect to the same by tenant, its agents,
servants, employees or invitees. Except in the case of
Landlord's negligence or misconduct, Tenant shall
further indemnify and save Landlord harmless against and
from any and all claims by or on behalf of any person,
firm or corporation arising from the conduct or
management of any work or thing whatsoever done by
Tenant in or about or from transactions of Tenant
concerning the Premises, and will further indemnify and
save Landlord harmless against and from any and all
claims arising from any breach or default on the part of
Tenant in the performance of any covenant or agreement
on the part of Tenant to be performed pursuant to the
terms of this Lease or arising from any act or
negligence of Tenant, or any of its agents, contractors,
servants, employees or licensees, and from and against
all costs, counsel fees, expenses and liabilities
incurred in connection with any such claim or action or
proceeding brought thereon. In case any action or
proceeding is brought against Landlord by reason of any
claims or liability within the limits of the foregoing
indemnity. Tenant shall defend such action or proceeding
at Tenant's sole expense by counsel reasonably
satisfactory to Landlord.
(c) Landlord shall hold Tenant harmless from and defend
Tenant against any and all claims or liability for any
injury or damage to any person or property occurring in
or about any facilities (including, without prejudice to
the generality of the term "facilities", elevators,
stairways, passageways or hallways), the use of which
Tenant may have in conjunction with other tenants of the
building, when such injury or damage shall be caused in
whole or in part by the act, neglect, fault of or
omission of any duty with respect to the same by
Landlord, its
- 4 -
<PAGE> 5
agents, servants, employees or invitees. Landlord shall
further indemnify and save Tenant harmless against and
from any and all claims by or on behalf of any person,
firm or corporation arising from the conduct or
management of any work or thing whatsoever done by
Landlord in or about, or from transactions of Landlord
concerning, the Premises where such work is not being
done for the account of Tenant; and Landlord will
further indemnify and save Tenant harmless against and
from any and all claims arising from any breach or
default on the part of Landlord in the performance of
any covenant or agreement on the part of Landlord to be
performed pursuant to the terms of this Lease or arising
from any act or negligence of Landlord, or any of its
agents, contractors, servants, employees or licensees,
and from and against all costs, counsel fees, expenses
and liabilities incurred in connection with any such
claim or action or proceeding brought thereon. In case
any action or proceeding is brought against Tenant by
reason of any claims or liability within the limits of
the foregoing indemnity, Landlord shall defend such
action or proceeding at Landlord's sole expense by
counsel reasonably satisfactory to Tenant.
(d) The provisions of paragraph 11(b) and 11(c) shall
survive the expiration or termination of this Lease with
respect to any claims or liability occurring prior to
such expiration or termination.
(e) Tenant shall purchase at its own expense and keep
in force during the Term of this Lease a policy or
policies of workers' compensation and comprehensive
liability insurance, including personal injury and
property damage, in the amount of Five Hundred Thousand
Dollars ($500,000.00) for property damage and Two
Million Dollars ($2,000,000.00) per occurrence for
personal injuries or deaths of persons occurring in or
about the Premises. The foregoing limits shall be
increased in proportion to increases during the Term in
the United States Department of Labor, Bureau of Labor
Statistics, Cost of Living Index, All Urban Consumers
(1967 = 100) for the region in which the Leased Premises
are located. Said policies shall: (i) name Landlord and
any party holding an interest to which this Lease may be
subordinated under paragraph 18 hereof, as additional
insureds, and insure Landlord's contingent liability
under this Lease; (ii) be issued by an insurance company
acceptable to Landlord and licensed to do business in
the State of California; and (iii) provide that said
insurance shall not be cancelled unless ten (10) days
prior written notice shall have been given to Landlord.
Said policy or policies or certificates thereof shall be
delivered to Landlord by Tenant upon commencement of the
term of this Lease and upon each renewal of said
insurance.
WAIVER OF 12. To the extent permitted by law and without
SUBROGATION affecting the coverage provided by insurance required to
be maintained hereunder, Landlord and Tenant each waive
any right to recover against the other (i) damages for
injury to or death of persons, (ii) damages to property,
(iii) damage to the Premises or any part thereof, (iv)
damage to the Building or any part thereof, or (v)
claims arising by reason of the foregoing, but only to
the extent that any of the foregoing damages and/or
claims referred to above are covered (and only to the
extent of such coverage) by insurance actually carried
by either Landlord or Tenant (other than acts such as
intentional wrongdoing or criminal conduct, that are not
waived in the standard waiver of subrogation provision
in commercial property insurance at the time of the loss
or damage). This provision is intended to waive fully,
and for the benefit of each party, any rights and/or
claims which might give rise to a right of subrogation
on any insurance carrier. The coverage obtained by each
party pursuant to this Lease shall include, but without
limitation, a waiver of subrogation by the carrier which
conforms to the provisions of this paragraph.
SERVICES AND 13. (a) Landlord shall maintain the public and common
UTILITIES areas of the Building, including lobbies, stairs,
elevators, corridors and restrooms, the windows in the
Building, the mechanical, plumbing and electrical
equipment serving the Building, and the structure
itself, in reasonably good order and condition except
for damage occasioned by the act of Tenant, which damage
shall be repaired by Landlord at Tenant's expense.
(b) Provided Tenant shall not be in default hereunder,
and subject to the provisions elsewhere herein contained
and to the rules and regulations of the Building,
Landlord shall furnish to the Premises during ordinary
business hours of generally recognized business days, to
be determined by Landlord (but exclusive, in any event,
of Saturdays, Sundays and legal holidays), water and
electricity suitable for the Permitted Uses of the
Premises, heat and air conditioning required in
Landlord's judgment for the comfortable use and
occupation of the Premises for the Permitted Uses,
janitorial services during the times and in the manner
that such services are, in Landlord's judgment,
customarily furnished in comparable office buildings in
the immediate market area, and elevator service which
shall mean service either by nonattended automatic
elevators or elevators with attendants, or both, at the
option of Landlord, Landlord shall have no obligation to
provide additional or after-hours heating or air
conditioning, but if Landlord elects to provide such
services at Tenant's request. Tenant shall pay to
Landlord a reasonable charge for such services as
determined by Landlord. Tenant agrees to keep and cause
to be kept closed all window covering when necessary
because of the sun's position, and Tenant also agrees at
all times to cooperate fully with Landlord and to abide
by all the regulations and requirements which Landlord
may prescribe for the proper functioning and protection
of heating, ventilating and air conditioning systems.
Wherever heat-generating machines, excess lighting or
equipment are used in the Premises which affect the
temperature otherwise maintained by the air conditioning
system, Landlord reserves the right to install
supplementary air conditioning units in the Premises,
and the cost thereof, including the cost of installation
and the cost of operation and maintenance thereof, shall
be paid by Tenant to Landlord upon demand by Landlord.
(c) Tenant shall not without the written consent of
Landlord use any apparatus or device in the Premises,
including without limitation, electronic data processing
machines, punch card machines and machines using excess
lighting or using current in excess of that which is
determined by Landlord as reasonable and normal for the
Permitted Use or which will in any way increase the
amount of electricity or water usually furnished or
supplied for the Permitted Uses of the Premises; nor
connect with electric current, except through existing
electrical outlets in the Premises or water pipes, any
apparatus or device for the purposes of using electrical
current or water. If Tenant shall require water or
electric current or any other resource in excess of that
usually furnished or supplied for the Permitted Uses of
the Premises, Tenant shall first procure the consent of
Landlord which Landlord shall not unreasonably refuse,
to the use thereof, and Landlord may cause a special
meter to be installed in the Premises so as to measure
the amount of water, electric current or other resource
consumed for any such other use. Tenant shall pay
directly to Landlord as an addition to and separate from
payment of Basic Operating Cost the cost of all such
energy, utility service and meters (and of installation,
maintenance and repair thereof). Landlord may add to the
metered charge a recovery of additional expense incurred
in keeping account of the water, electric current or
other resource so consumed. Landlord shall not be liable
for any damages directly or indirectly resulting from,
nor shall the Rent herein reserved be abated by reason
of (i) the installation, use or interruption of use of
any equipment in connection with the furnishing of any
of the foregoing utilities and services, (ii) failure to
furnish or delay in furnishing any such utilities or
services when such failure or delay is caused by acts of
God or the elements, labor disturbances of any
character, any other accidents or other conditions
beyond the reasonable control of Landlord, or by the
making of repairs or improvements to the Premises or to
the Building, or (iii) the limitation, curtailment,
rationing or restriction on use of water, electricity,
gas or any other form of energy or any other service or
utility whatsoever serving the Premises or the Building.
Landlord shall be entitled to cooperate voluntarily and
in a reasonable manner with the efforts of national,
state or local governmental agencies or utility
suppliers in reducing energy or other resource
consumption. The obligation to make services available
hereunder shall be subject to the limitations of any
such voluntary, reasonable program.
(d) Any sums payable under this paragraph 13 shall
constitute Additional Rent hereunder.
ESTOPPEL 14. Within ten (10) days following any written request
CERTIFICATE which Landlord may make from time to time, Tenant shall
execute and deliver to Landlord a certificate
substantially in the form attached hereto as Exhibit D
and made a part hereof, indicating thereon any
exceptions thereto which may exist at that time. Failure
by Tenant to execute and deliver such certificate shall
constitute an acceptance of the Premises and
acknowledgment by Tenant that the statements included in
Exhibit D are true and correct without exception.
Landlord and Tenant intend that any statement delivered
pursuant to this paragraph may be relied upon by any
mortgagee, beneficiary, purchaser or prospective
purchaser of the Building or any interest therein.
Landlord shall have the right to substitute for the
attached Exhibit D a certificate in form required by
Landlord's mortgagee or provider of financing.
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<PAGE> 6
SECURITY 15. Concurrently with execution hereof, Tenant has paid
DEPOSIT to Landlord the Security Deposit in the amount stated on
the Basic Lease Information sheet as security for the
full and faithful performance of Tenant's obligations
under this Lease. Upon expiration of the Term or earlier
termination hereof, the Security Deposit shall be
returned to Tenant, reduced by such amounts as may be
required by Landlord to remedy defaults on the part of
Tenant in the payment of Rent, to repair damages to the
Premises caused by Tenant and to clean the Premises.
Landlord shall hold the Security Deposit for the
foregoing purposes in accordance with the provisions of
all applicable law.
SUBSTITUTION 16. Paragraph not used.
HOLDING OVER 17. If Tenant shall retain possession of the Premises
or any part thereof without Landlord's consent following
the expiration of the Term or sooner of this Lease for
any reason, then Tenant shall pay to Landlord for each
day of such retention triple the amount of the daily
rental for the last period prior to the date of such
expiration or termination. Tenant shall also indemnify
and hold Landlord harmless from any loss or liability
resulting from delay by Tenant in surrendering the
Premises, including, without limitation, any claims made
by any succeeding tenant founded on such delay.
Alternatively, if Landlord gives notice to Tenant of
Landlord's election thereof, such holding over shall
constitute renewal of this Lease for a period from month
to month or for one year, whichever shall be specified
in such notice. Acceptance of Rent by Landlord following
expiration or termination shall not constitute a renewal
of this Lease, and nothing contained in this paragraph
shall waive Landlord's right of reentry or any other
right. Unless Landlord exercises the option hereby given
to it, Tenant shall be only a Tenant at sufferance,
whether or not Landlord accepts any Rent from Tenant
while Tenant is holding over without Landlord's written
consent.
SUBORDINATION 18. Without the necessity of any additional document
being executed by Tenant for the purpose of effecting a
subordination, this Lease shall be subject and
subordinate at all times to: (a) all ground leases or
underlying leases which may now exist or hereafter be
executed affecting the Building or the land upon which
the Building is situated or both, and (b) the lien of
any mortgage or deed of trust which may now exist or
hereafter be executed in any amount for which said
Building, land, ground leases or underlying leases, or
landlord's interest or estate in any of said items, is
specified as security. Notwithstanding the foregoing,
Landlord shall have the right to subordinate or cause to
be subordinated any such ground leases or underlying
leases or any such liens to this Lease. In the event
that any ground lease or underlying lease terminates for
any reason or any mortgage or deed of trust is
foreclosed or a conveyance in lieu of foreclosure is
made for any reason, Tenant shall, notwithstanding any
subordination, attorn to and become the Tenant of the
successor in interest to Landlord at the option of such
successor in interest. Tenant shall execute and deliver,
upon demand by Landlord and in the form requested by
Landlord, any additional documents evidencing the
priority or subordination of this Lease with respect to
any such ground leases or underlying leases or the lien
of any such mortgage or deed of trust. Tenant hereby
irrevocably appoints Landlord as attorney-in-fact of
Tenant to execute, deliver and record any such documents
in the name and on behalf of Tenant. At the request of
Landlord, Tenant shall provide to Landlord its current
financial statement or other information disclosing
financial worth which Landlord shall use solely for
purposes of this Lease and in connection with the
ownership, management and disposition of the property
subject hereto.
RULES AND 19. Tenant shall faithfully observe and comply with the
REGULATIONS rules and regulations printed on or annexed to this
Lease and all reasonable modifications thereof and
additions thereto from time to time put into effect by
Landlord, provided such rules and regulations do not
materially adversely affect Tenant's rights under this
Lease and are applied to all Tenants of the Premises in
an equal and non-discriminatory manner. Landlord shall
not be responsible to Tenant for the non-compliance by
any other tenant or occupant of the Building with any of
the rules and regulations.
RE-ENTRY 20. Landlord reserves and shall at all times have the
BY LANDLORD right to reenter the Premises to inspect the same, to
supply janitor service and any other service to be
provided by Landlord to Tenant hereunder, upon not less
than 24 hours notice to Tenant to show the Premises to
prospective purchasers, mortgagees or tenants, to post
notices of nonresponsibility and to alter, improve or
repair the Premises and any portion of the Building,
without abatement of Rent, and may for that purpose
erect, use and maintain scaffolding, pipes, conduits and
other necessary structures in and through the Premises
where reasonably required by the character of the work
to be performed; provided that entrance to the Premises
shall not be blocked thereby, and further provided that
the business of Tenant shall not be interfered with
unreasonably. Except in the case of Landlord negligence
or misconduct, Tenant waives any claim for damages for
any injury or inconveniences to or interference with
Tenant's business, any loss of occupancy or quiet
enjoyment of the Premises, any other loss occasioned
thereby. Landlord shall at all times have and retain a
key with which to unlock all of the doors in, upon and
about the Premises, excluding Tenant's vaults and safes
or special security areas (designated in advance), and
Landlord shall have the right to use any and all means
which Landlord may deem necessary or proper to open said
doors in an emergency, in order to obtain entry to any
portion of the Premises, and any entry to the Premises
or portions thereof obtained by Landlord by any of said
means, or otherwise, shall not be construed to be a
forcible or unlawful entry into, or a detainer of, the
Premises, or an eviction, actual or constructive, of
Tenant from the Premises or any portions thereof.
Landlord shall also have the right at any time, without
the same constituting an actual or constructive eviction
and without incurring any liability to Tenant therefore,
to change the arrangement and/or location of entrances
or passageways, doors and doorways, and corridors,
elevators, stairs, toilets or other public parts of the
Building and to change the name, number or designation
by which the Building is commonly known.
DEFAULT 21. (a) EVENTS OF DEFAULT: The occurrence of any of
BY TENANT the following shall constitute an event of default on
the part of Tenant:
(1) ABANDONMENT. Vacation or abandonment of the
Premises for a continuous period in excess of
fifteen (15) days accompanied by nonpayment of
rent. Tenant waives any right to notice Tenant may
have under Section 1951.3 of the Civil Code of the
State of California, the terms of this subsection
(a) being deemed such notice to Tenant as required
by said Section 1951.3;
(2) NONPAYMENT OF RENT. Failure to pay any
installment of Rent due and payable hereunder (or
failure to pay any other amount required to be paid
hereunder, all such obligations to be construed as
the equivalent of obligations for payment of rent)
upon the date when said payment is due, such
failure continuing without cure by payment of the
delinquent Rent and late charge for a period of
five (5) business days after written notice and
demand; provided, however, that except as expressly
otherwise provided herein, Landlord shall not be
required to provide such notice more than twice
during the Term, the third such non-payment
constituting default for all purposes hereof
without requirement of notice. For purposes of
subparagraph 21(e), such failure shall constitute a
default without requirement of notice. The due
dates for payment of installments of rent provided
for herein shall be absolute and the existence of a
cure period or notice period shall not be deemed to
extend the said date for purposes of determining
Tenant's compliance with its obligations hereunder.
(3) OTHER OBLIGATIONS. Failure to perform any
obligations, agreement or covenant under this Lease
other than those matters specified in subparagraphs
(1) and (2) of this subparagraph (a), such failure
continuing for fifteen (15) business days after
written notice of such failure (or such longer
period as Landlord determines to be necessary to
remedy such default, provided that Tenant shall
continuously and diligently pursue such remedy at
all times until such default is cured);
(4) GENERAL ASSIGNMENT. A general assignment by
Tenant for the Benefit of creditors;
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<PAGE> 7
(5) BANKRUPTCY. The filing of any voluntary petition in
bankruptcy by Tenant, or the filing of an involuntary
petition by Tenant's creditors, which involuntary petition
remains undischarged for a period of thirty (30) days.
In the event that under applicable law the trustee in
bankruptcy or Tenant has the right to affirm this Lease and
continue to perform the obligations of Tenant hereunder,
such trustee or Tenant shall, in such time period as may be
permitted by the bankruptcy court having jurisdiction, cure
all defaults of Tenant hereunder outstanding as of the date
of the affirmance of this Lease and provide to Landlord such
adequate assurances as may be necessary to ensure Landlord
of the continued performance of Tenant's obligations under
this Lease;
(6) RECEIVERSHIP. The employment of a receiver to take
possession of substantially all of Tenant's assets or the
Premises, if such receivership remains undissolved for a
period of ten (10) business days after creation thereof;
(7) ATTACHMENT. The attachment, execution or other judicial
seizure of all or substantially all of Tenant's assets or
the Premises, if such attachment or other seizure remains
undismissed or undischarged for a period of ten (10)
business days after the levy thereof;
(8) INSOLVENCY. The admission by Tenant in writing of its
inability to pay its debts as they become due, the filing
by Tenant of a petition seeking any reorganization,
arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future
statute, law or regulation, the filing by Tenant of an
answer admitting or failing timely to contest a material
allegation of a petition filed against Tenant in any such
proceeding or, if within thirty (30) days after the
commencement of any proceeding against Tenant seeking any
reorganization or arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present
or future statute, law or regulation, such proceeding shall
not have been dismissed.
(b) REMEDIES UPON DEFAULT.
(1) RENT. All failures to pay any monetary obligation to be paid
by Tenant under this Lease shall be construed as obligations
for payment of Rent.
(2) TERMINATION. In the event of the occurrence of any event of
default, Landlord shall have the right, with or without
notice or demand, immediately to terminate this Lease, and
at any time thereafter recover possession of the Premises or
any part thereof and expel and remove therefrom Tenant and
any other person occupying the same, by any lawful means,
and again repossess and enjoy the Premises without prejudice
to any of the remedies that Landlord may have under this
Lease, or at law or equity by reason of Tenant's default or
of such termination.
(3) CONTINUATION AFTER DEFAULT. Even though Tenant has breached
this Lease and/or abandoned the Premises, this Lease shall
continue in effect for so long as Landlord does not
terminate Tenant's right to possession, under paragraph
21(b)(2) hereof, and Landlord may enforce all its rights
and remedies under this Lease, including (but without
limitation) the right to recover Rent as it becomes due; and
Landlord, without terminating this Lease, may exercise all
of the rights and remedies of a landlord under Section
1951.4 of the Civil Code of the State of California or any
successor code section. Acts of maintenance, preservation
or efforts to lease the Premises or the appointment of a
receiver upon application of Landlord to protect Landlord's
interests under this Lease shall not constitute an election
to terminate Tenant's right to possession.
(c) DAMAGES UPON TERMINATION. Should Landlord terminate this
Lease pursuant to the provisions of paragraph 21(b)(2)
hereof, Landlord shall have all the rights and remedies of a
landlord provided by Section 1951.2 of the Civil Code of the
State of California, or successor code section. Upon such
termination, in addition to any other rights and remedies to
which Landlord may be entitled under applicable law,
Landlord shall be entitled to recover from Tenant: (i) the
worth at the time of award of the unpaid Rent and other
amounts which had been earned at the time of termination;
(ii) the worth at the time of award of the amount by which
the unpaid Rent which would have been earned after
termination until the time of award exceeds the amount of
such Rent loss that the Tenant proves could have been
reasonably avoided; (iii) the worth at the time of award of
the amount by which the unpaid Rent for the balance of the
Term after the time of award exceeds the amount of such Rent
loss that the Tenant proves could be reasonably avoided; and
(iv) any other amount necessary to compensate Landlord for
all the detriment proximately caused by Tenant's failure to
perform its obligations under this Lease or which, in the
ordinary course of things, would be likely to result
therefrom. The "worth at the time of award" of the amounts
referred to in (i) and (ii) shall be computed with interest
at the lesser of eighteen percent (18%) per annum or the
maximum rate allowed by law. The "worth at the time of
award" of the amount referred to in (iii) shall be computed
by reference to competent appraisal evidence or the formula
prescribed by and using the lowest discount rate permitted
under applicable law.
(d) COMPUTATION OF RENT FOR PURPOSES OF DEFAULT. For purposes of
computing unpaid Rent, which would have accrued and become
payable under this Lease pursuant to the provisions of
paragraph 21(c) unpaid Rent shall consist of the sum of:
(1) the total Basic Rent for the balance of the Term then
remaining (with the amount of Basic Rent to be determined by
reference to fair rental value being the subject of proof by
competent evidence), plus
(2) a computation of the excess of Gross Rent (the term "Gross
Rent" meaning the sum of (i) rental adjustments payable
pursuant to paragraph 29 and (ii) Basic Rent) over Basic
Rent for the balance of the Term then remaining ("Excess
Gross Rental"), the assumed excess Gross Rental for the
calendar year of the default and each future calendar year
in the Term to be equal to the Excess Gross Rental for the
calendar year prior to the year in which default occurs
compounded at a per annum rate equal to the mean average
rate of inflation for the preceding five (5) calendar years
as determined by the United States Department of Labor,
Bureau of Labor Statistics Consumer Price Index (All Urban
Consumers) for the Metropolitan Area or Region of which San
Francisco, California is a part.
(e) LATE CHARGE. In addition to its other remedies, Landlord
shall have the right without notice or demand to add to
the amount of any payment required to be made by Tenant
hereunder, and which is not paid on or before the date the
same is due, an amount equal to five percent (5%) of the
delinquency for each month or portion thereof that the
delinquency remains outstanding to compensate Landlord
for the loss of the use of the amount not paid and the
administrative costs caused by the delinquency, the parties
agreeing that Landlord's damage by virtue of such
delinquencies would be difficult to compute and the amount
stated herein represents a reasonable estimate thereof.
(f) REMEDIES CUMULATIVE. All rights, privileges and elections or
remedies of the parties are cumulative and not alternative
to the extent permitted by law and except as otherwise
provided herein.
DAMAGE BY 22. If the Premises or the building are damaged by fire or other
FIRE, ETC. casualty, Landlord shall forthwith repair the same, provided
such repairs can be made within one hundred eighty (180) days
from the date of such damage under the laws and regulations of
the federal, state and local governmental authorities having
jurisdiction thereof. In such event, this Lease shall remain in
full force and effect except that Tenant shall be entitled to a
proportionate reduction of Rent while such repairs to be made
hereunder by Landlord are being made. Said proportionate
reduction shall be based upon the extent to which the making of
such repairs to be made hereunder by Landlord shall interfere
with the business carried on by Tenant in the Premises. Within
See twenty (20) days from the date of such damage, Landlord shall
Addendum 5 notify Tenant whether or not such repairs can be made within
one hundred eighty (180) days from the date of such damage and
Landlord's determination thereof shall be binding on Tenant.
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<PAGE> 8
In either event, the Rent shall be reduced by a proportionate
amount based upon the extent to which said damage interfered
with the business carried on by Tenant in the Premises, and
Tenant shall pay such reduced Rent up to the date of
termination. Landlord agrees to refund to Tenant any Rent
previously paid for any period of time subsequent to such date
of termination. The repairs to be made hereunder by Landlord
shall not include, and Landlord shall not be required to repair,
any damage by fire or other cause to the property of Tenant or
any repairs or replacements of any paneling, decorations,
railings, floor coverings or any alterations, additions,
fixtures or improvements installed on the premises by or at the
expense of Tenant. The provisions of Section 1942, subdivision
2, and Section 1933, subdivision 4, of the Civil Code of
California are superseded by the foregoing.
EMINENT 23. If any part of the Premises shall be taken or appropriated
DOMAIN under the power of eminent domain or conveyed in lieu thereof,
which materially effects Tenant's occupancy of the Premises,
either party shall have the right to terminate this Lease at its
option. If any part of the Building shall be taken or
appropriated under power of eminent domain or conveyed in lieu
thereof, Landlord may terminate this Lease at its option. In
either of such events, Landlord shall receive subject to the
rights of Landlord's first mortgagee (and Tenant shall assign to
Landlord upon demand from Landlord) any income, rent, award or
any interest therein which may be paid in connection with the
exercise of such power of eminent domain, and Tenant shall have
no claim against Landlord for any part of the sums paid by
virtue of such proceedings, whether or not attributable to the
value of the unexpired Term. If a part of the Premises shall be
so taken or appropriated or conveyed and neither party hereto
shall elect to terminate this Lease and the Premises have been
damaged as a consequence of such partial taking or appropriation
or conveyance, Landlord shall restore the Premises continuing
under this Lease at Landlord's cost and expense; provided,
however, that Landlord shall not be required to repair or
restore any injury or damage to the property of Tenant or to
make any repairs or restoration of any alterations, additions,
fixtures or improvements installed on the Premises by or at the
expense of Tenant. Thereafter, the Rent for the remainder of the
Term shall be proportionately reduced, such reduction to be
based upon the extent to which the partial taking or
appropriation or conveyance shall interfere with the business
carried on by Tenant in the Premises. Notwithstanding anything
to the contrary contained in this paragraph, if the temporary
use or occupancy of any part of the Premises shall be taken or
appropriated under power of eminent domain during the Term, this
Lease shall be and remain unaffected by such taking or
appropriation and Tenant shall continue to pay in full all Rent
payable hereunder by Tenant during the Term; in the event of any
such temporary appropriation or taking, Tenant shall be entitled
to receive that portion of any award which represents
compensation for the use or occupancy of the Premises during the
Term, and Landlord shall be entitled to receive that portion of
any award which represents the cost of restoration of the
Premises and the use and occupancy of the Premises.
SALE BY 24. In the event of a sale or conveyance by Landlord of the
LANDLORD Building, the same shall operate to release Landlord from any
AND TENANT'S future liability upon any of the covenants or conditions,
REMEDIES express or implied, herein contained in favor of Tenant, and in
such event Tenant agrees to look solely to the responsibility
of the successor in interest of Landlord in and to this Lease.
This Lease shall not be affected by any such sale and Tenant
agrees to attorn to the purchaser or assignee. Tenant shall look
solely to Landlord's interest in the Building for recovery of
See Addendum 6 any judgment from Landlord. Landlord, or if Landlord is a
partnership, its partners whether general or limited, or if
Landlord is a corporation, its directors, officers or
shareholders, shall never be personally liable for any such
judgment.
RIGHT OF 25. All covenants and agreements to be performed by Tenant under
LANDLORD any of the terms of this Lease shall be performed by Tenant at
TO PERFORM Tenant's sole cost and expense and without any abatement of
Rent. If Tenant shall fail to pay any sum of money, other than
Rent, required to be paid by it hereunder or shall fail to
perform any other act on its part to be performed hereunder, and
such failure shall continue for ten (10) days after receipt of
notice thereof by Landlord, Landlord may, but shall not be
obligated to do so, and without waiving or releasing Tenant from
any obligations of the Tenant, make any such payment or perform
any such act on the Tenant's part to be made or performed. All
sums reasonably so paid by Landlord and all necessary reasonable
incidental costs together with interest thereon at the rate of
eighteen percent (18%) per annum or the maximum rate permitted
by law, whichever is less per annum from the date of such
payment by the Landlord shall be payable as Additional Rent to
Landlord on demand, and Tenant covenants to pay such sums, and
Landlord shall have, in addition to any other right or remedy of
Landlord, the same right and remedies in the event of the
nonpayment thereof by Tenant as in the case of default by Tenant
in the payment of Rent.
SURRENDER 26. (a) Tenant shall, at least ninety (90) days before the last
OF PREMISES day of the Term, give to Landlord a written notice of intention
to surrender the Premises on that date, but nothing contained
herein shall be construed as an extension of the Term or as
consent of Landlord to any holding over by Tenant.
(b) At the end of the term or any renewal thereof or other
sooner termination of this Lease, Tenant shall peaceable deliver
up to Landlord possession of the Premises, together with all
improvements, fixtures or additions thereto by whomsoever made,
in the same condition as received, or first installed, damage by
fire, earthquake, act of God, normal wear and tear or the
elements alone excepted. Tenant may, upon the termination of
this Lease, remove all movable furniture and equipment belonging
to Tenant, at Tenant's sole cost, title to which shall be in
Tenant until such termination, repairing any damage caused by
such removal. Property not so removed shall be deemed abandoned
by the Tenant, and title to the same shall thereupon pass to
Landlord.
(c) The voluntary or other surrender of this Lease by Tenant,
or a mutual cancellation thereof, shall not work a merger and
shall, at the option of Landlord, terminate all or any existing
subleases or subtenancies or may, at the option of Landlord,
operate as an assignment to it of any or all such subleases or
subtenancies.
WAIVER 27. If either Landlord or Tenant waives the performance of any
term, covenant or condition contained in this Lease, such
waiver shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition
contained herein. The acceptance of Rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any
term, covenant or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time
Landlord accepted such Rent. Failure by Landlord to enforce any
of the terms, covenants or conditions of this Lease for any
length of time shall not be deemed to waive or to decrease the
right of Landlord to insist thereafter upon strict performance
by Tenant. Waiver by Landlord of any term, covenant or condition
contained in this lease may only be made by a written document
signed by Landlord.
NOTICES 28. All notices and demands which may or are required to be given
by either party to the other hereunder shall be in writing. All
notices and demands by Landlord to Tenant shall be sent by
United States certified or registered mail, postage prepaid,
addressed to Tenant at the Premises, or to such other place as
Tenant may from time to time designate in a notice to Landlord.
All notices and demands by Tenant to Landlord shall be sent by
United States certified or registered mail, postage prepaid,
addressed to Landlord at the address specified in the Basic
Lease Information, or to such other firm or to such other place
as Landlord may from time to time designate in a notice to
Tenant.
RENTAL 29. In addition to Basic Rent provided to be paid hereunder,
ADJUSTMENT Tenant shall pay as Rent Tenant's Proportionate Share of Basic
Operating Cost in the manner set forth below.
(a) Definition: For purposes hereof, the terms used in this
paragraph 29 shall have the following meanings:
(1) "Basic Operating Cost" shall mean all expenses and costs of
every kind and nature which Landlord shall pay or become
obligated to pay because of or in connection with the ownership
and operation of the Building and supporting facilities of the
Building, and such additional facilities now and in subsequent
years as may be determined by Landlord to be necessary to the
Building, including, but not limited to the following:
(i) Wages, salaries and related expenses and benefits of all
on-site and off-site employees engaged directly in the
operation, management, maintenance, engineering and security of
the Building, and the costs of an office in the Building;
provided, however, that Basic Operating Cost shall not include
leasing commissions paid to any real estate broker, salesperson
or agent.
(ii) Supplies, materials and rental of equipment used in the
operation, management and maintenance of the Building.
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<PAGE> 9
(iii) Utilities, including water and power, heating, lighting, air conditioning
and ventilating of the Building.
(iv) All maintenance, janitorial and service agreements for the Building and
the equipment therein, including, without limitation, alarm services, window
cleaning and elevator maintenance.
(v) A management cost recovery determined by Landlord equal to three percent
(3%) of Gross Rent derived from the Building.
(vi) Legal expenses and the cost of audits by certified public accountants;
provided, however, that legal expenses chargeable as Basic Operating Cost shall
not include the cost of negotiating leases, collecting rents, evicting tenants
nor shall it include costs incurred in legal proceedings with or against any
tenant or to enforce the provisions of any lease.
(vii) All insurance premiums and costs, including but not limited to, the
premiums and cost of fire, casualty and liability coverage and rental abatement
and earthquake insurance (if Landlord elects to provide such coverage)
applicable to the Building and Landlord's personal property used in connection
therewith.
(viii) Repairs, replacement and general maintenance (excluding repairs and
general maintenance paid by proceeds of insurance or by Tenant or other third
parties, and alterations attributable solely to tenants of the Building other
than Tenant).
(ix) All maintenance costs relating to public and service areas of the
Building, including (but without limitation) sidewalks, landscaping, service
areas, mechanical rooms and Building exteriors.
(x) All taxes, service payments in lieu of taxes, annual or periodic license or
use fees, fees, real estate taxes, impositions or charges imposed upon or
levied in connection with use of the Building to raise funds for public
transit, housing or other environmental, sociological or fiscal effects of the
Building or land use, assessments whether general or special, ordinary and
extraordinary, unforeseen as well as foreseen, of any kind which are assessed,
levied, charged, confirmed or imposed by any public authority upon the
Building, the land upon which it is located, Building operations or Rent
payable under this Lease (or any portion or component thereof), excepting only
inheritance or estate taxes imposed upon or assessed against the interest of
any person in the Building or any part thereof or interest therein, and taxes
computed upon the basis of the net income of the owners of the Building or any
part thereof or interest therein.
(xi) Amortization (together with reasonable financing charges) of capital
improvement made to the Building subsequent to the Term Commencement Date which
will improve the operating efficiency of the Building or which may be required
to comply with laws, ordinances, rules or regulations promulgated, adopted or
enforced after completion of the initial construction of the Building and
improvements of the Premises pursuant to the Office Lease Improvement Agreement.
Notwithstanding anything to the contrary herein contained, Basic
Operating Cost shall not include (aa) the initial construction cost of
the Building; (bb) depreciation on the initial construction of the Building;
(cc) the cost of providing Tenant Improvements to tenant or any other tenant;
(dd) debt service (including, but without limitation, interest, principal and
any impound payments) required to be made on any mortgage or deed of trust
recorded with respect to the Building and/or the real property on which the
Building is located other than debt service and financing charges imposed
pursuant to paragraph 29(a)(1)(xi) above; and (ee) the cost of special
services, goods or materials provided to any tenant. In the event that the
Building is not fully occupied during any fiscal year of the Term as determined
by Landlord, and adjustment shall be made in computing the Basic Operating Cost
for such year so that Basic Operating Cost shall be computed as though the
Building had been one hundred percent (100%) occupied; provided, however, that
in no event shall Landlord be entitled to collect in excess of one hundred
percent (100%) of the total Basic Operating Cost from all of the tenants in the
Building including Tenant. All costs and expenses shall be determined in
accordance with generally accepted accounting principles which shall be
consistently applied (with accruals appropriate to Landlord's business). Basic
Operating Cost shall not include specific costs incurred for the account of,
separately billed to and paid by specific tenants.
(2) "Estimated Basic Operating Cost" for any particular year shall mean
Landlord's estimate of the Basic Operating Cost for such fiscal year made prior
to commencement of such fiscal year as hereinafter provided. Landlord shall
have the right from time to time to revise its fiscal year and interim
accounting periods so long as the periods as so revised are reconciled with
prior periods in accordance with generally accepted accounting principles
applied in a consistent manner.
(3) "Basic Operating Cost Adjustment" shall mean the difference between Basic
Operating Cost and Estimated Basic Operating Cost for any fiscal year
determined as hereinafter provided.
(b) PAYMENT OF ESTIMATED BASIC OPERATING COST.
During June of each fiscal year during the Term, or as soon thereafter
as practicable, Landlord shall give Tenant written notice of the Estimated
Basic Operating Cost for the ensuing fiscal year. The Estimated Basic Operating
Cost for the fiscal year in which the Scheduled Term Commencement Date falls is
set forth in the Basic Lease Information sheet. Tenant shall pay Tenant's
Proportionate Share of the Estimated Basic Operating Costs with installments of
Basic Rent required to be paid pursuant to paragraph 3 above for the fiscal
year to which the estimate applies in monthly installments on the first day of
each calendar month during such year, in advance. Such payment shall be
construed to be Rent for all purposes hereof. If at any time during the course
of a fiscal year, Landlord determines that Basic Operating Cost will apparently
vary from the then Estimated Basic Operating Cost by more than five percent
(5%), Landlord may, by written notice to Tenant, revise the Estimated Basic
Operating Cost for the balance of such fiscal year and Tenant shall pay
Tenant's Proportionate Share of the Estimated Basic Operating Cost as so
revised for the balance of the then current fiscal year on the first day of
each calendar month thereafter, such revised installment amounts to be Rent for
all purposes hereof.
(c) COMPUTATION OF BASIC OPERATING COST ADJUSTMENT.
Within one hundred twenty (120) days after the end of each fiscal year
as determined by Landlord or as soon thereafter as practicable, Landlord shall
deliver to Tenant a statement of Basic Operating Cost for the fiscal year just
ended, accompanied by a computation of Basic Operating Cost Adjustment. If such
statement shows that Tenant's payment based upon Estimated Basic Operating Cost
is less than Tenant's Proportionate Share of Basic Operating Cost, then Tenant
shall pay the difference within twenty (20) days after receipt of such
statement, such payment to constitute additional rent hereunder. If such
statement shows that Tenant's payments of Estimated Basic Operating Cost exceed
Tenant's Proportionate Share of Basic Operating Costs, then (provided that
Tenant is not in default under this Lease), Tenant shall receive a credit for
the amount of such payment against Tenant's obligation for payment of Tenant's
Proportionate Share of Estimated Basic Operating Cost next becoming due
hereunder. If this Lease has been terminated or the Term hereof has expired
prior to the date of such statement, then the Basic Operating Cost Adjustment
shall be paid by the appropriate party within twenty (20) days after the date
of delivery of the statement.
(d) NET LEASE. This shall be a net lease and Base Rent shall be paid to
Landlord absolutely net of all costs and expenses. The provisions for payment
of Basic Operating Cost by means of periodic payments of Tenant's Proportionate
Share of Estimated Basic Operating Cost and the Basic Operating Cost Adjustment
are intended to pass on to Tenant and reimburse Landlord for all cost and
expenses of the nature described in paragraph 29(a)(1) above incurred in
connection with ownership and operation of the Building and such additional
facilities now and in subsequent years as may be determined by Landlord to be
necessary to the Building.
(e) TENANT AUDIT. Tenant shall have the right, at Tenant's expense and upon not
less than forty-eight (48) hours prior written notice to Landlord, to review at
reasonable times Landlord's books and records for any fiscal year a portion of
which falls within the Term for purposes of verifying Landlord's calculation of
Basic Operating Costs and Basic Operating Cost Adjustment. In the event that
Tenant shall dispute the amount set
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<PAGE> 10
forth in any statement provided by Landlord under paragraph
29(c) above. Tenant shall have the right not later than
twenty (20) days following the receipt of such statement,
and upon condition that Tenant shall first deposit with
Landlord the full amount in dispute, to cause Landlord's
books and records with respect to such fiscal year to be
audited by certified public accountants selected by Tenant
subject to Landlord's reasonable right of approval. The
Basic Operating Cost Adjustment shall be appropriately
adjusted on the basis of such audit. If such audit discloses
a liability for a refund or a credit by Landlord to Tenant
in excess of ten percent (10%) of Tenant's Proportionate
Share of the Basic Operating Cost Adjustment previously
reported, the cost of such audit shall be borne by Landlord.
Otherwise the cost of such audit shall be paid by Tenant. If
Tenant shall not request an audit in accordance with the
provisions of this paragraph 29(e) within twenty (20) days
of receipt of Landlord's statement provided pursuant to
paragraph 29(d), such statement shall be final and binding
for all purposes hereof.
TAXES 30. (a) Tenant shall pay before delinquency any and all taxes
PAYABLE levied or assessed and which become payable by Landlord (or
BY TENANT Tenant) during the Term of this Lease, whether or not now
customary or within the contemplation of the parties hereto,
which are based upon, measured by or otherwise calculated
with respect to: (a) the value of Tenant's equipment,
furniture, fixtures or other personal property located in
the Premises; (b) the value of any leasehold improvements,
alterations, or additions made in or to the Premises,
regardless of whether title to such improvements,
alterations or additions shall be in Tenant or Landlord; or
(c) this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in
the Premises.
(b) In the event that it shall not be lawful for Tenant so
to reimburse Landlord, the Rent shall be revised to net
Landlord the same net rent after imposition of any such tax
upon Landlord as would have been payable to Landlord prior
to the imposition of any such tax. All taxes payable by
Tenant under this Paragraph 30 shall be additional rental.
SUCCESSORS 31. Subject to the provisions of paragraph 10 hereof, the
AND ASSIGNS terms, covenants and conditions contained herein shall be
binding upon and inure to the benefit of the heirs,
successors, executors, administrators and assigns of the
parties hereto.
ATTORNEY'S 32. In the event that any action or proceeding is brought
FEES to enforce any term, covenant or condition of this Lease on
the part of Landlord or Tenant, the prevailing party in such
litigation shall be entitled to reasonable attorneys' fees
to be fixed by the court in such action or proceeding.
LIGHT 33. No diminution of light, air or view by any structure
AND AIR which may hereafter be erected (whether or not by Landlord)
shall entitle Tenant to any reduction of Rent, result in any
liability of Landlord to Tenant, or in any other way affect
this Lease or Tenant's obligations hereunder.
PUBLIC TRANS- 34. Tenant shall establish and maintain during the Term
PORTATION hereof a program to encourage maximum use of public
INFORMATION transportation by personnel of Tenant employed on the
Premises, including without limitation the distribution to
such employees of written materials explaining the
convenience and availability of public transportation
facilities adjacent or proximate to the Building, staggering
working hours of employees, and encouraging use of such
facilities, all at Tenant's sole reasonable cost and
expense.
MISCELLANEOUS 35. (a) The term "Premises" shall be deemed to include (except
where such meaning would be clearly repugnant to the
context) the office space demised and improvements now or at
any time hereinafter comprising or built in the space hereby
demised.
(b) The paragraph headings herein are for convenience of
reference and shall in no way define, increase, limit or
describe the scope or intent of any provision of this Lease.
(c) The term "Landlord" in these presents shall include the
Landlord, its successors and assigns. In any case where this
Lease is signed by more than one person, the obligations
hereunder shall be joint and several.
(d) The term "Tenant" or any pronoun used in place thereof
shall indicate and include the masculine or feminine, the
singular or plural number, individuals, firms or
corporations, and their and each of their respective
successors, executors, administrators and permitted assigns,
according to the context hereof.
(e) Time is of the essence of this Lease and all of its
provisions.
(f) This Lease shall in all respects be governed by the laws
of the State of California.
(g) This Lease, together with its exhibits, contains all the
agreements of the parties hereto and supersedes any previous
negotiations.
(h) There have been no representations made by the Landlord
or Tenant or understandings made between the parties other
than those set forth in this Lease and its exhibits.
(i) This Lease may not be modified except by a written
instrument by the parties hereto.
(j) If for any reason whatsoever any of the provisions
hereof shall be unenforceable or ineffective, all of the
other provisions shall be and remain in full force and
effect.
(k) Additional paragraphs 37 and 38 and addenda 1 through 6
attached hereto.
LEASE 36. Submission of this instrument for examination or
EFFECTIVE signature by Tenant does not constitute a reservation or
DATE option for lease, and it is not effective as a lease or
otherwise until execution and delivery by both Landlord and
Tenant.
IN WITNESS WHEREOF, the parties hereto have executed
this Lease the day and year first above written.
"LANDLORD"
Spieker Properties, L.P.,
a California limited partnership
By: Spieker Properties, Inc.
a Maryland corporation
Date: 9/17/96 Its: General Partner
By: /s/ JOHN A FOSTER
--------------------------------
John A. Foster
Its: Senior Vice President
"TENANT"
Infoseek Corporation,
a California corporation
Date: 9/11/96 By: /s/ ANDREW E. NEWTON
--------------------------------
Andrew E. Newton
Its: Vice President
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<PAGE> 11
ADDITIONAL PARAGRAPHS ATTACHED TO AND MADE A PART OF THAT LEASE AGREEMENT
BETWEEN SPIEKER PROPERTIES, L.P., A CALIFORNIA LIMITED PARTNERSHIP, AS
LANDLORD, AND INFOSEEK CORPORATION, A CALIFORNIA CORPORATION, AS TENANT, DATED
AUGUST 29, 1996, FOR THE PREMISES AT 2620 AUGUSTINE DRIVE, SUITE 260, SANTA
CLARA, CALIFORNIA.
37. CONDITIONAL REQUIREMENTS OF LEASE.
Tenant agrees that this entire Lease, and all provisions contained
within, are subject to the complete execution of a Termination
Agreement for the Premises between Innovative Information Systems, Inc.
and Spieker Properties, L.P. Once completely executed by both parties,
an original copy shall be attached to and become a part of this Lease,
as Exhibit "F".
38. AFTER-HOURS BUILDING SERVICES AND AMENITIES.
Landlord provides normal heating, ventilation and air conditioning
(HVAC), electrical power and use of all other building services and
amenities Monday through Friday, 6:00 AM to 6:00 PM, during generally
recognized business days, as determined by Landlord.
Tenant acknowledges and agrees that Tenant's use of the Premises
outside of generally recognized business days and hours imposes an
additional burden on the Building's janitorial service, florescent
light tubes, HVAC, electrical services, and other common area amenities.
Fees to operate the building's systems after normal business hours,
including administrative fees, are currently estimated at fifteen
dollars ($15.00) per hour.
<PAGE> 12
ADDENDA ATTACHED TO AND MADE A PART OF THAT LEASE AGREEMENT BETWEEN SPIEKER
PROPERTIES, L.P., A CALIFORNIA LIMITED PARTNERSHIP, AS LANDLORD, AND INFOSEEK
CORPORATIONS, A CALIFORNIA CORPORATION, AS TENANT, DATED AUGUST 29, 1996, FOR
THE PREMISES AT 2620 AUGUSTINE DRIVE, SUITE 260, SANTA CLARA, CALIFORNIA.
ADDENDUM 1 - PARAGRAPH #1 - PREMISES
- --------------------------------------
Tenant shall accept the Premises in "as is" condition.
ADDENDUM 2 - PARAGRAPH #4 - RENT
- ----------------------------------
April 1, 1997 through March 31, 1998: $5,938.00 (Five Thousand Nine Hundred
Thirty Eight Dollars and no/100ths) per month plus basic operating costs and
taxes per paragraph 29 of this Lease Agreement. Basic operating costs and taxes
are estimated a year in advance and collected on a monthly basis. Any
adjustment necessary (up and down) will be made at the end of the operating
year.
ADDENDUM 3 - PARAGRAPH #6 - COMPLIANCE WITH LAWS
- ------------------------------------------------
Additionally, Tenant, at Tenant's expense shall comply with any and all
provisions of the Americans with Disabilities Act of 1990 (the ("ADA") as
enacted as of the effective date of this lease amendment, as the ADA imposes
any duty upon Tenant with respect to the alteration, occupancy, and/or use of
the Premises. Tenant shall hold Landlord harmless from and defend Landlord
against any and all claims, damages or liabilities arising directly or
indirectly from Tenant's failure to comply with the ADA.
ADDENDUM 4 - PARAGRAPH #10 - ASSIGNMENT AND SUBLETTING
- ------------------------------------------------------
Notwithstanding anything to the contrary contained in Paragraph 10, Tenant may
make a general assignment of all or a substantial part of its business or may
assign this Lease or sublet all or any portion of the leased Premises to any
wholly owned subsidiary of Tenant or to any entity controlling, controlled by,
or in common control with Infoseek, Inc., and none of the foregoing provisions
of this paragraph shall apply to any such assignment or subletting by Tenant
except that any such assignment or subletting shall not relieve Tenant of any
obligation to be performed by Tenant under this Lease which occurred before or
after such assignment or subletting and provided Tenant's use of the Premises
remains consistent with Paragraph 10 of this Lease Agreement.
ADDENDUM 5 - PARAGRAPH #22 - DAMAGE BY FIRE
- -------------------------------------------
Either party shall have the right to cancel this Lease by giving the other
party written notice within ten (10) days from the date of Landlord's notice
that such repairs cannot be made within one hundred eighty (180) days or notice
that Landlord has elected not to make such repairs. Said cancellation shall be
effective thirty (30) days from the first day that either party gives notice to
cancel.
ADDENDUM 6 - PARAGRAPH #24 - SALE BY LANDLORD AND TENANT'S REMEDIES
- -------------------------------------------------------------------
Landlord shall provide Tenant with an estoppel certificate at least 15 days
prior to any sale for Tenant to itemize the obligations, if any, of Landlord to
Tenant. Landlord shall remain responsible to Tenant for fulfillment of those
items which cannot be fulfilled prior to sale. Any of the obligations as stated
in the estoppel certificate with are outstanding shall survive the termination
or the Lease except for any obligations which may be assumed by any successor
to Landlord's interest in this Lease.
<PAGE> 13
RULES AND REGULATIONS
EXHIBIT A. 1. Sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways shall not be obstructed by Tenants or
used by them for any purpose other than for ingress to and
egress from their respective premises. The halls, passages,
exits, entrances, elevators and stairways are not for the use of
the general public and Landlord shall in all cases retain the
right to control and prevent access thereto by all persons whose
presence, in the judgment of Landlord, shall be prejudicial to
the safety, character, reputation and interests of the Building
and its Tenants, provided that nothing herein contained shall be
construed to prevent such access to persons with whom any Tenant
normally deals in the ordinary course of such Tenant's business
unless such persons are engaged in illegal activities. No
Tenant, and no employees or invitees of any Tenant, shall go
upon the roof of the Building, except as authorized by Landlord.
2. No sign, placard, picture, name, advertisement or notice,
visible from the exterior of leased premises shall be inscribed,
painted, affixed, installed or otherwise displayed by any Tenant
either on its premises or any part of the Building without the
prior written consent of Landlord, and Landlord shall have the
right to remove any such sign, placard, picture, name,
advertisement, or notice without notice to and at the expense of
the Tenant.
If Landlord shall have given such consent to any Tenant at
any time, whether before or after the execution of the lease,
such consent shall in no way operate as a waiver or release of
any of the provisions hereof or of such lease, and shall be
deemed to relate only to the particular sign, placard, picture,
name, advertisement or notice so consented to by Landlord and
shall not be construed as dispensing with the necessity of
obtaining the specific written consent of Landlord with respect
to any other such sign, placard, picture, name, advertisement or
notice.
All approved signs or lettering on doors and walls shall be
printed, painted, affixed or inscribed at the expense of the
Tenant by a person approved by Landlord.
3. The bulletin board or directory of the Building will be
provided exclusively for the display of the name and location of
Tenants only and Landlord reserves the right to exclude any
other names therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or
other coverings, awnings, hangings or decorations shall be
attached to, hung or placed in, or used in connection with, any
window or door on any premises without the prior written consent
of Landlord. In any event with the prior written consent of
Landlord, all such items shall be installed inboard of
Landlord's standard window covering and shall in no way be
visible from the exterior of the Building. No articles shall be
placed or kept on the window sills so as to be visible from the
exterior of the Building. No articles shall be placed against
glass partitions or doors which might appear unsightly from
outside Tenant's Premises.
5. Landlord reserves the right to exclude from the Building
between the hours of 6 pm and 8 am and at all hours on
Saturdays, Sundays and holidays all persons who are not Tenants
or their accompanied guests in the Building. Each Tenant shall
be responsible for all persons for whom it allows to enter the
building and shall be liable to Landlord for all acts of such
persons.
Landlord shall in no case be liable for damages for error
with regard to the admission to or exclusion from the Building
of any person.
During the continuance of any invasion, mob, riot, public
excitement or other circumstance rendering such action advisable
in Landlord's opinion, Landlord reserves the right to prevent
access to the Building by closing the doors, or otherwise, for
the safety of Tenants and protection of the Building and
property in the Building.
6. No Tenant shall employ any person or persons other than the
janitor of Landlord for the purpose of cleaning premises unless
otherwise agreed to by Landlord in writing. Except with the
written consent of Landlord no person or persons other than
those approved by Landlord shall be permitted to enter the
Building for the purpose of cleaning the same. No Tenant shall
cause any unnecessary labor by reason of such Tenant's
carelessness or indifference in the preservation of good order
and cleanliness of the premises. Landlord shall in no way be
responsible to any Tenant for any loss of property on the
premises, however occurring, or for any damage done to the
effects of any Tenant by the janitor or any other employee or
any other person.
7. No Tenant shall obtain for use upon its premises ice,
drinking water, food, beverage, towel or other similar services
except through facilities provided by Landlord (and maintained
by Tenant) and under regulations fixed by Landlord, or accept
barbering or bootblacking services in its premises except from
persons authorized by Landlord.
8. Each Tenant shall see that all doors of its premises are
closed and securely locked and must observe strict care and
caution that all water faucets or water apparatus are entirely
shut off before the Tenant or its employees leave such premises,
and that all utilities shall likewise be carefully shut off, so
as to prevent waste or damage, and for any default or
carelessness the Tenant shall make good all injuries sustained
by other Tenants or occupants of the Building or Landlord. On
multiple-tenancy floors, all Tenants shall keep the door or
doors to the Building corridors closed at all times except for
ingress or egress.
9. As more specifically provided in the Tenant's Lease of the
Premises, Tenant shall not waste electricity, water or
air-conditioning and agrees to cooperate fully with Landlord to
assure the most effective operation of the Building's heating
and air-conditioning, and shall refrain from attempting to
adjust any controls other than room thermostats installed for
Tenant's use.
10. No Tenant shall alter any lock or access device or install a
new additional lock or access device or any bolt on any door of
its premises without the prior written consent of Landlord. If
Landlord shall give its consent, the Tenant shall in each case
furnish Landlord with a key for any such lock.
11. No Tenant shall make or have made additional copies of any
keys or access devices provided by Landlord. Each Tenant, upon
the termination of the Tenancy, shall deliver to Landlord all
the keys or access devises for the Building, offices, rooms and
toilet rooms which shall have been furnished the Tenant or which
the Tenant shall have had made. In the event of the loss of any
keys or access devices so furnished by Landlord, Tenant shall
pay Landlord therefor.
12. The toilet rooms, toilets, urinals, wash bowls and other
apparatus shall not be used for any purpose other than that for
which they were constructed and no foreign substance of any kind
whatsoever shall be thrown therein, and the expenses of any
breakage, stoppage or damage resulting from the violation of
this rule shall be borne by the Tenant who, or whose employees
or invitees, shall have caused it.
13. No Tenant shall use or keep in its premises or the Building
any kerosene, gasoline or inflammable or combustible fluid or
material other than limited quantities necessary for the
operation or maintenance of office or office equipment. No
Tenant shall use any method of heating or air-conditioning other
than that supplied by Landlord.
14. No Tenant shall use, keep or permit to be used or kept in
its premises any foul or noxious gas or substance or permit of
suffer such premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the
Building by reason of noise, odors and/or vibrations or
interfere in any way with other Tenants or those having business
therein, nor shall any animals or birds be brought or kept in or
about any premises of the Building.
15. No cooking shall be done or permitted by any Tenant on its
premises (except that use by the Tenant of Underwriters'
Laboratory approved equipment for the preparation of coffee,
tea, hot chocolate and similar beverages for Tenants and their
employees shall be permitted, provided that such equipment and
use is in accordance with all the applicable federal, state and
city laws, codes, ordinances, rules and regulations), nor shall
premises be used for lodging.
EXHIBIT "A" Page 1
<PAGE> 14
16. Except with the prior written consent of Landlord, no Tenant shall
sell, or permit the sale, at retail, of newspapers, magazines, periodicals,
theatre tickets or any other goods or merchandise in or on any premises, nor
shall Tenant carry on, or permit or allow any employee or other person to carry
on, the Business of stenography, typewriting or any similar business in or from
any premises for the service or accommodation of occupants of any other portion
of the Building, nor shall the premises of any Tenant be used for the storage
of merchandise or for manufacturing of any kind, or the business of a public
barber shop, beauty parlor, nor shall the premises of any Tenant be used for any
improper, immoral or objectionable purpose, or any business or activity other
than that specifically provided for in such Tenant's lease.
17. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions in
their installation.
18. Landlord will direct electricians as to where and how telephone,
telegraph and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of
Landlord. The location of burglar alarms, telephones, call boxes and other
office equipment affixed to all premises shall be subject to the written
approval of Landlord.
19. No Tenant shall install any radio or television antenna, loudspeaker or
any other device on the exterior walls or the roof of the Building. Tenant
shall not interfere with radio or television broadcasting or reception from or
in the Building or elsewhere.
20. No Tenant shall lay linoleum, tile, carpet or any other floor covering
so that the same shall be affixed to the floor of its premises in any manner
except as approved in writing by Landlord. The expense of repairing any damage
resulting from a violation of this rule or the removal of any floor covering
shall be borne by the Tenant by whom, or by whose contractors, employees or
invitees, the damage shall have been caused.
21. No furniture, freight, equipment, materials, supplies, packages,
merchandise or other property will be received in the Building or carried up or
down the elevators except between such hours and in such elevators as shall be
designated by Landlord.
Landlord shall have the right to prescribe the weight, size and
position of all safes, furniture or other heavy equipment brought into the
Building. Safes or other heavy objects shall, if considered necessary by
Landlord, stand on wood strips of such thickness as determined by Landlord to
be necessary to properly distribute the weight thereof. Landlord will not be
responsible for loss of or damage to any such safe, equipment or property from
any cause, and all damage done to the Building by moving or maintaining any
such safe, equipment or other property shall be repaired at the expense of
Tenant.
Business machines and mechanical equipment belonging to Tenant which
cause noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable to
Landlord or to any tenants in the Building shall be placed and maintained by
Tenant, at Tenant's expense, on vibration eliminators or other devices
sufficient to eliminate noise or vibration. The person employed to move such
equipment in or out of the Building must be acceptable to Landlord.
22. No Tenant shall place a load upon any floor of the premises which
exceeds the load per square foot which such floor was designed to carry and
which is allowed by law. No Tenant shall mark, or drive nails, screw or drill
into, the partitions, woodwork or plaster or in any way deface such premises or
any part thereof.
23. No Tenant shall install, maintain or operate upon the Premises any
vending machine without the written consent of Landlord.
24. There shall not be used in any space, or in the public areas of the
Building, either by any Tenant or others, any hand trucks except those equipped
with rubber tires and side guards or such other material-handling equipment as
Landlord may approve. No other vehicles of any kind shall be brought by any
Tenant into or kept in or about the premises.
25. Each Tenant shall store all its trash and garbage within the interior
of its premises. No material shall be placed in the trash boxes or receptacles
if such material is of such nature that it may not be disposed of in the
ordinary and customary manner of removing and disposing of trash and garbage
in the city without violation of any law or ordinance governing such disposal.
All trash, garbage and refuse disposal shall be made only through entryways and
elevators provided for such purposes and at such times as Landlord shall
designate.
26. Canvassing, soliciting, distribution of handbills or any other written
material, and peddling in the Building are prohibited and each Tenant shall
cooperate to prevent the same. No Tenant shall make room-to-room solicitation
of business from other tenants in the building.
27. Landlord shall have the right, exercisable without notice and without
liability to any Tenant, to change the name and address of the Building.
28. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment is intoxicated or under the influence of
liquor or drugs or who is in violation of any of the rules and regulations of
the Building.
29. Without the prior written consent of Landlord, Tenant shall not use the
name of the Building in connection with or in promoting or advertising the
business of Tenant except as Tenant's address.
30. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental agency.
31. Tenant assumes any and all responsibility for protecting its Premises
from theft, robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed.
32. The requirements of Tenants will be attended to only upon application
at the office of the Building by an authorized individual. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord, and no employees will
admit any person (Tenant or otherwise) to any office without specific
instructions from Landlord.
33. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular Tenant or Tenants, but no such waiver by Landlord
shall be construed as a wavier of such Rules and Regulations in favor of any
other Tenant or Tenants, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all Tenants of the Building.
34. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety and
security, for care and cleanliness of the Building and for the preservation of
good order therein. Tenant agrees to abide by all such Rules and Regulations
hereinabove stated and any additional rules and regulations which are adopted.
35. Landlord reserves the right to designate the use of the parking spaces
on the premises.
36. Tenant shall use carpet protectors under all desk chairs.
37. Tenant agrees to keep balcony doors closed at all times, except during
ingress and egress.
38. Tenant or Tenant's guest shall park between designated parking lines
only, and shall not occupy two parking spaces with one car. Vehicles in
violation of the above shall be subject to tow-away, at vehicle owner's expense.
39. Vehicles parked on premises overnight without prior written consent of
the Landlord shall be deemed abandoned and shall be subject to tow-away at
vehicle owner's expense.
40. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, customers,
invitees and guests.
41. The Rules and Regulations are in addition to, and shall not be
construed to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any Lease of Premises in the Building.
The word "Building" as used herein means the building of which the premises are
part.
Page 2
<PAGE> 15
EXHIBIT D
FORM OF TENANT CERTIFICATE
- ------------------------------------
- ------------------------------------
- ------------------------------------
- ------------------------------------
RE:
Gentlemen:
The undersigned, as Tenant under that certain lease (the ""Lease") dated
____________________ 19__, made with ____________________________________
as Landlord (the ""Landlord"), does hereby certify:
1. That the copy of the Lease attached hereto as Exhibit A is a true and
complete copy of the Lease, and there are no amendments, modifications or
extensions of or to the Lease and the Lease is now in full force and
effect.
2. That its leased premises at the above location have been completed in
accordance with the terms of the Lease, that it has accepted possession of
said premises, and that it now occupies the same.
3. That it began paying rent on ______________ , 19__, and that, save only as
may be required by the terms of the Lease, no rental has been paid in
advance, nor has the undersigned deposited any sums with the Landlord as
security.
4. That there exist no defenses or offsets to enforcement of the Lease by the
Landlord and, so far as is known to the undersigned, the Landlord is not,
as of the date hereof, in default in the performance of the Lease, nor has
the Landlord committed any breach thereof, nor has any event occurred
which, with the passage of time or the giving of notice, or both, would
constitute a default or breach by the Landlord.
The undersigned acknowledges that you are relying on the above
representation of the undersigned in (advancing funds to purchase the
existing first mortgage loan covering the building in which the leased
premises are located) (in purchasing the building in which the leased
premises are located) and does hereby warrant and affirm to and for your
benefit, and that of your successors and assigns, that each of the
foregoing representations is true, correct and complete as of the date
hereof.
Dated: _______________________________
By ___________________________________
Its _______________________________
EXHIBIT "D"
<PAGE> 1
Exhibit 11.1
INFOSEEK CORPORATION
STATEMENT OF COMPUTATION OF NET LOSS PER SHARE
(UNAUDITED)
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September30, September 30,
1996 1995 1996 1995
---------------------- -----------------------
<S> <C> <C> <C> <C>
Net Loss $(3,696) $ (667) $(11,986) $(1,710)
Weighted average common shares
outstanding during the period 25,931 3,628 11,642 3,697
Shares related to SAB No. 55,64
and 83 -- 12,483 4,161 12,483
Conversion of preferred stock not
included in shares related to SAB
No. 55, 64, and 83 -- 9,700 4,534 9,700
------- ------- -------- -------
Total shares used in net loss per share 25,931 25,811 20,337 25,880
Net loss per share $ (0.14) $ (0.03) $ (0.59) $ (0.07)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> APR-01-1996
<PERIOD-END> SEP-30-1996
<CASH> 3,085
<SECURITIES> 47,495
<RECEIVABLES> 1,765
<ALLOWANCES> (250)
<INVENTORY> 0
<CURRENT-ASSETS> 52,594
<PP&E> 8,093
<DEPRECIATION> (1,708)
<TOTAL-ASSETS> 59,681
<CURRENT-LIABILITIES> 4,279
<BONDS> 0
0
0
<COMMON> 74,306
<OTHER-SE> (4,724)
<TOTAL-LIABILITY-AND-EQUITY> 59,681
<SALES> 0
<TOTAL-REVENUES> 4,007
<CGS> 827
<TOTAL-COSTS> 7,528
<OTHER-EXPENSES> (652)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (3,696)
<INCOME-TAX> 0
<INCOME-CONTINUING> (3,696)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,696)
<EPS-PRIMARY> (0.14)
<EPS-DILUTED> 0.00
</TABLE>
