-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RIfH04CT+4GV++S43uSg91qvo/FWoWUp+gZP/RT6IAVMS4dbHH7w0GJQ0gcIACnM NrTBRx7ljzqnqO9nxciCvw== 0000892569-99-000812.txt : 19990331 0000892569-99-000812.hdr.sgml : 19990331 ACCESSION NUMBER: 0000892569-99-000812 CONFORMED SUBMISSION TYPE: 10-KT PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19981231 FILED AS OF DATE: 19990330 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PLATINUM SOFTWARE CORP CENTRAL INDEX KEY: 0000891178 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 330277592 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: 10-KT SEC ACT: SEC FILE NUMBER: 000-20740 FILM NUMBER: 99578228 BUSINESS ADDRESS: STREET 1: 195 TECHNOLOGY DR CITY: IRVINE STATE: CA ZIP: 92718-2402 BUSINESS PHONE: 7144534000 MAIL ADDRESS: STREET 1: 195 TECHNOLOGY DR CITY: IRVINE STATE: CA ZIP: 92718-2402 10-KT 1 FORM 10-K FOR THE PERIOD ENDED DEC 31, 1998 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------------------------ FORM 10-K [ ] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 [X] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM JULY 1, 1998 TO DECEMBER 31, 1998 COMMISSION FILE NUMBER 0-20740 ------------------------------------ PLATINUM SOFTWARE CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 33-0277592 (State or other jurisdiction of (I.R.S Employer incorporation or organization) Identification No.) 195 TECHNOLOGY DRIVE IRVINE, CALIFORNIA 92618-2402 (Address of principal executive offices, zip code) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (949) 453-4000 ------------------------------------ SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: TITLE OF CLASS COMMON STOCK, PAR VALUE $.001 PER SHARE ------------------------------------ Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No __ Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of the registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [ ] The aggregate market value of the registrant's voting Common Stock held by non-affiliates of the registrant was approximately $215,177,251 (computed using the closing sales price of $6.625 per share of Common Stock on March 15, 1999 as reported by the Nasdaq National Market). Shares of Common Stock held by each officer and director and each person who owns 5% or more of the outstanding Common Stock have been excluded in that such persons may be deemed affiliates. The determination of affiliate status is not necessarily a conclusive determination for other purposes. There were 40,425,546 shares of the registrant's Common Stock, par value $.001 per share, outstanding on March 15, 1999. ------------------------------------ Portions of the registrant's definitive Proxy Statement for the Annual Meeting of Stockholders scheduled to be held on April 29, 1999, which Proxy Statement will be filed no later than 120 days after the close of the registrant's fiscal year ended December 31, 1998, are incorporated by reference in Part III of this Annual Report on Form 10-K. 2 PART I ITEM 1. BUSINESS Platinum Software Corporation ("Platinum" or the "Company") designs, develops, markets and supports enterprise resource planning ("ERP") software solutions for use by mid-sized companies as well as divisions and subsidiaries of larger corporations worldwide. Effective December 31, 1998, a wholly owned subsidiary of Platinum ("Merger Sub") merged with DataWorks Corporation ("DataWorks") and DataWorks became a wholly owned subsidiary of Platinum. In addition, on December 30, 1998, the Company changed its fiscal year end to December 31. Because the merger with DataWorks ("Merger") was effective on December 31, 1998, the financial results of the Company contained in this Transition Report represent the Company's consolidated amounts, including the consolidated balance sheet of DataWorks, but do not include the results of operations of DataWorks. Following the Merger, the Company has three primary areas of focus for its software products: Front Office applications, which include its CLIENTELE(R) and PLATINUM(R) ERA Front Office sales force automation and customer service and support applications which provide growing and mid-sized companies with comprehensive customer relationship management functionality; General Services applications, which include PLATINUM ERA Financials, PLATINUM ERA Distribution and PLATINUM(R) FOR WINDOWS; and Manufacturing applications which include PLATINUM ERA Manufacturing, AVANTE - an ERP suite designed to meet the needs of rapidly growing manufacturers of discrete, highly engineered products, VANTAGE - an ERP suite designed for engineer-to-order ("ETO") and job shop manufacturers; and VISTA, an integrated business management application targeted at small job shop manufacturers. The Company's software products incorporate a significant number of internationalized features to address global market opportunities, including support for national languages, multiple currencies and accounting for value-added taxation. The Company also offers consulting, training and support services to supplement the use of its software products by its customers. The Company was incorporated in Delaware in November 1987 under the name "Platinum Holdings Corporation." In September 1992, the Company changed its name to Platinum Software Corporation. The Company has eight operating subsidiaries: Platinum Software Canada, Ltd., Platinum Software (Aust.) Pty. Limited, Platinum Software (N.Z.) Limited, Platinum Software (U.K.) Limited, Platinum Software (Ireland) Limited, Platinum Software (North Asia) Limited, Platinum Software Asia, Pte, and DataWorks Corporation. DataWorks also has four operating subsidiaries in international markets. Unless the context otherwise requires, references to the "Company" herein includes Platinum Software Corporation and its operating subsidiaries, including DataWorks Corporation. The Company's headquarters and principal place of business is located at 195 Technology Drive, Irvine, California 92618-2402, and its telephone number is (949) 453-4000. BACKGROUND In recent years, organizations have increasingly focused on collecting, analyzing and distributing mission-critical enterprise information as rapidly and efficiently as possible to improve productivity and to secure a competitive advantage. Historically, computing environments for large organizations were dominated by mainframes and minicomputers, which were expensive to purchase, install and maintain. Due to the centralized nature of these generally proprietary systems, access to critical data was typically limited to an organization's management information services ("MIS") department and was not readily available to key decision makers and managers. In the 1980s, the advent of more powerful and less expensive personal computers ("PCs"), coupled with improvements in networking technology, led to the adoption of Local Area Networks ("LANs") in increasing numbers by businesses of all sizes. LANs enabled organizations to have on-line access to real-time, mission-critical data. Enterprise and management information software products were introduced based on open database architectures. These systems were easier to implement and modify and critical information could be accessed readily from a variety of "off-the-shelf" general business productivity applications such as spreadsheet and word processing programs. The continuing advances in both microprocessor and network technology resulted in corresponding increases in network performance, which caused LAN systems to be adopted increasingly by many medium and small organizations as well as departments of larger organizations. For some medium and most small organizations, LAN-based systems continue to be effective solutions. However, in heavy processing environments with large numbers of concurrent users and tremendous amounts of data being sent across the network, bottlenecks can 2 3 significantly reduce the performance of the LAN-based system. Consequently, the limited client/server functionality of these LAN systems can create difficulties for organizations that have a larger number of enterprise-wide users and heavy network traffic requirements. Further, LAN-based systems offer less control of information security and integrity than centralized, host-based systems, despite increasing end-user access to that information and, therefore, many MIS departments have been somewhat reluctant to store sensitive and mission-critical data on LAN systems. Many of the limitations of LAN technology have been overcome by the development of advanced client/server technology for storing, accessing and distributing data. The client/server model consists of PC and workstation "clients" connected on enterprise-wide networks to "servers," generally more powerful systems, such as high-performance PCs or workstations, minicomputers, reduced instruction set computer ("RISC")-based servers or mainframes. The client/server architecture is designed to partition the processing of application software between the client and the server to allow the clients to handle the user interface and local data manipulation while allowing the server to perform computing-intensive functions. This design minimizes network traffic and exploits the server's powerful processing capability. Because of this partitioning, system throughput is scaleable and can be increased by replacing the server computer with a more powerful machine. Client/server systems also offer the degree of data integrity and security that large MIS departments require, since all data access can be controlled by server-based relational database management systems ("RDBMSs") that couple the benefits of open database architectures with the benefits of centralized control offered by host-based systems. With the dramatic scalability and performance improvements made possible with client/server technology, many organizations looked to leverage this technology to implement enterprise business applications. Enterprise business applications began as an extension of the corporate reengineering efforts of the early 1990s. As Fortune 1,000 companies aggressively invested in information technology to help them streamline and integrate disparate business processes, they created a tremendous demand for enterprise-wide software applications that integrated business processes and information. At first, only these large organizations had the technological expertise, budget and ability to support lengthy implementations typified by early solutions. This demand helped make the enterprise applications market one of the largest and fastest growing segments of the software industry. In fact, AMR Research, Inc., an industry analyst organization, projects that the enterprise applications market will grow 37 percent annually for the next several years, reaching more than $52 billion by 2002, up from just $14.8 billion in 1997. While smaller companies understood the business value of enterprise applications, they lacked the extensive resources required to implement and support such first-generation solutions. Collectively known as the "midmarket," these rapidly growing small- and mid-sized organizations number in the hundreds of thousands worldwide. In their own quest to boost productivity, profits and gain a competitive advantage, mid-sized companies increasingly turned to integrated application software to automate and link their business processes. Due to the midmarket's unique business constraints of limited budgets and limited implementation timeframes, "best-of-breed" solutions and after-market application integration were far too cumbersome and costly to be an effective enterprise solution. Mid-sized companies required a software application that leveraged the advances in client/server software technology to deliver a truly integrated and enterprise wide solution. Enterprise applications employed by mid-sized companies are required to satisfy business and technology requirements that are significantly different from those found in Fortune 1,000 organizations. As a group, mid-sized companies face tremendous global competitive pressures as they compete for business against larger corporations, other mid-sized competitors and smaller start-ups. They understand the need to remain close to their customers and to make the most effective use of their relatively limited resources. Mid-sized companies demand a quick return on technology investments and require that solutions be affordable not only to acquire and implement, but also to support throughout its entire operational life span. With respect to technology, mid-sized companies are practical consumers. Mid-sized companies generally do not take risks on cutting-edge technology, but instead typically select affordable, proven solutions. The decade's dramatic decrease in information technology costs, coupled with a simultaneous increase in computing power, have made key new technologies accessible to this cost-conscious market. Microsoft Corporation took advantage of increased computing capabilities to develop Microsoft BackOffice(R), a robust network operating system and scaleable relational database that provides smaller businesses with a sophisticated technology infrastructure previously accessible only to Fortune 1,000 corporations. Microsoft Windows NT(R) and SQL Server quickly became the fastest growing technology platforms, attracting midmarket companies with its features, familiarity and ease-of-use. 3 4 The development of cost-effective infrastructures has increased the mid-sized company's investment in enterprise applications. Spurred by outside issues, such as Year 2000 readiness and pending Euro currency mandates, mid-sized companies realized they could finally afford--or, rather not afford to be without--enterprise business solutions. The Company's product offerings and product development efforts are focused on meeting the enterprise business application needs of these growing mid-sized businesses. TECHNOLOGY STRATEGY The Company's technology strategy is to develop a leading line of enterprise business software applications using industry-standard tools where possible, and to take advantage of leading third-party, industry-standard technologies for database management systems, operating systems, user interfaces and connectivity (including Internet, Intranet and Extranet access). The Company developed its own proprietary application development tools to create its first generation of client/server products, as well as acquired several proprietary application development tools through acquisitions. These technologies and tools were developed to meet the unique needs of the current marketplace. However, as industry-standard tools mature, the Company intends to increasingly exploit these leading tools as they become generally available. The Company's core product architecture incorporates many of the foundation technologies of client/server computing, including: OPEN DATABASE TECHNOLOGY The Company utilizes open database technology to provide extremely flexible, yet integrated enterprise business applications. This open database orientation is based on widely accepted database management systems. The Company's PLATINUM ERA product line (formerly PLATINUM SQL) uses the Microsoft SQL Server relational database management system. The Company has focused the development of its PLATINUM ERA product line using Microsoft's industry-standard SQL language as the fundamental database access methodology. The Company's PLATINUM FOR WINDOWS financial accounting application is optimized for Pervasive, Inc.'s Pervasive.SQL database. The Company's CLIENTELE Front Office suite leverages both the Microsoft Access and Microsoft SQL Server databases. The Company has designed some of its manufacturing products to run on databases that are best suited for the particular applications required by customers, including Ardent, Progress, and Microsoft FoxPro. The Company has chosen these open databases in order to maximize the throughput of its customers' transactions, to provide realistic models of business data and to maximize price and performance under the budget constraints of its customer base. The Company's AVANTE product leverages open database technology from Ardent Software, Inc., its VANTAGE product is designed for Progress Software Corporation's Progress database and its VISTA product is built on Microsoft's FoxPro database. ADVANCED NETWORKING/CONNECTIVITY The Company's products are designed to operate on LANs, wide area networks ("WANs"), the Internet (including Intranets and Extranets) as well as through mobile and remote dial-up connections. The Company supports popular industry-standard networking protocols such as TCP/IP, Novell IPX/SPX and Microsoft NETBEUI/Named Pipes. The Company's connectivity and networking support offers advanced features such as: (i) concurrent access to data and critical functions for all network users; (ii) a high degree of fault tolerance; (iii) high levels of security; (iv) a wide range of options for configuring different users on the network; (v) remote access and data processing; and (vi) mobile computing. INDUSTRY STANDARD USER INTERFACES The Company has incorporated numerous features into its user interfaces to simplify the operation of and access to its products. All of the Company's product lines incorporate the popular Microsoft Windows graphical user interfaces ("GUIs"). The Company's GUI tools include industry-standard field controls, pull-down menus, tool bars and tab menus that facilitate the use of the software. In addition, the Company's products incorporate the latest and most advanced GUI features such as process wizards, cue cards, advanced on-line help and on-line documentation. These tools and the Windows multiple document interface ("MDI") give the user interface a popular look and feel. 4 5 POWERFUL APPLICATION DEVELOPMENT TOOLS The Company provides comprehensive, ground-up application development and customization capabilities for its PLATINUM ERA, AVANTE, VANTAGE, VISTA, CLIENTELE and PLATINUM FOR WINDOWS product lines. To accomplish this, the Company provides extensive, integrated application development environments for these product lines. These customization tools deliver a complete development environment, enabling a user to make changes ranging from a simple field name change to building an integrated custom application. The PLATINUM ERA Customization Workbench is a software development kit for PLATINUM ERA that enables customers and authorized resellers to build comprehensive software solutions that augment the standard product. The intuitive Windows interface of the Visual Forms Designer provides a powerful tool to modify and extend the functionality of standard applications. In addition, industry-standard Visual Basic macro language and ActiveX Automation support enables all PLATINUM ERA product suites to exchange and integrate with external COM-enabled Microsoft Windows applications. The Customization Workbench includes technical reference guides and diagrams, an OLE integration kit and certain report script source code. The Company has recently licensed Visual Basic for Applications and has incorporated it in its most recent release of PLATINUM ERA. The PLATINUM ERA DISTRIBUTION and PLATINUM ERA MANUFACTURING suites employ PowerBuilder from Sybase, Inc. to provide its user interface. Due to the complexity and wide variations of the changes needed for many end users of the manufacturing and distribution products, the Company offers complete customization services through its professional services group. In addition to its Windows-based client, the Company provides a Java-based user interface and middle-tier application server to provide electronic commerce functionality on top of the same database platform. Users are provided with complete capabilities to change the user interface, validation rules and business processing of business-to-business transactions using a complete application extension environment. The PLATINUM ERA Front Office and CLIENTELE Front Office suites use a proprietary forms package to build and modify the user interface. These suites also include CLIENTELE Basic to enable users and consultants to tailor the look and feel, behavior and processing of the both the PLATINUM ERA Front Office and CLIENTELE Front Office application suites to meet their specific business needs. Both front office suites offer additional applications designed to extend the suite's functionality, including Conductor, Connector and Smart Delivery. Conductor provides workflow routing and rules capabilities that allow any user, no matter where they are, to receive messages and tasks from the front office system. Connector enables remote sites and traveling sales and support representatives to connect to their master front office database and synchronize customer information, ensuring timely information whether the user is at headquarters, a remote site or on the road. Smart Delivery is a marketing encyclopedia system that enables current marketing information to be automatically distributed to the field. Additionally, the Company offers Internet-enabled solutions, including PLATINUM ERA.NET Front Office and ClienteleNet, which enables internal remote users as well as customers to interact with the system via an Internet browser. PLATINUM FOR WINDOWS was developed using industry standard development tools such as Visual Basic and utilizes the industry standard Pervasive.SQL database engine. As a result, a series of reusable objects have been created. By exposing certain aspects of the objects, users have the ability to modify and extend the system without losing a consistent user interface. PLATINUM FOR WINDOWS also includes template definition for easier document entry and wizards which make it easier for a user to set up the software or define users or GROUPS. To minimize cost and support issues for its manufacturing customers, the Company has tightly integrated its database and development environments. AVANTE was developed using a object-based development tool, Avante Tools, that utilizes a graphical development tool set. Through Avante Tools, the Company is able to support products across multiple operating systems from a single object code library. VANTAGE is written in the Progress 4GL and database, which provides a powerful, graphical development tool set. VISTA provides VB Forms, a powerful form designer tool that supports user-definable screen generation. TECHNICAL ARCHITECTURE STRATEGY AND COMMON COMPONENTS A key element of the Company's technology strategy is the development of common components that can be used by all product families. These common components will be developed by focused development teams according to common standards to leverage advanced functionality and technology across all the Company's solutions. The Company's technology direction will embrace the Microsoft Windows Distributed interNetwork Architecture ("DNA") for building distributed application components. This strategy will enable the Company's 5 6 development teams to leverage COM+ and advanced services and components of the Windows 2000 operating system and Office 2000 productivity suite, while allowing each product family to continue to utilize the individual databases and development tools appropriate to the requirements of each product's target market. This standardized application integration infrastructure is intended to enable all the Company's product families to enjoy the benefits of certain common components required in most markets. These common components include Front Office, Enterprise Business Intelligence, and Electronic Commerce. The Front Office application suite, which has already been integrated with PLATINUM ERA, will be integrated with other application suites, including AVANTE, VANTAGE and PLATINUM FOR WINDOWS to provide integrated customer service, sales and marketing functionality. Enterprise Business Intelligence components will provide a common suite of applications for data navigation, ad-hoc analysis, strategic planning and on-line analytical processing ("OLAP") which all products can use to gain strategic insights into their business. Common components for electronic commerce will enable e-commerce for all products, whether through the Internet or other private networks. PRODUCTS The Company designs, develops, markets and supports ERP applications that provide organizations with technically advanced business solutions. Following the Merger, the Company has six primary software solutions, including PLATINUM ERA, AVANTE, VANTAGE, VISTA, CLIENTELE and PLATINUM FOR WINDOWS. The PLATINUM ERA product suite includes sales force automation, customer service and support, financial accounting, budgeting, distribution and light manufacturing functionality. AVANTE is an easy-to-use ERP solution for mid-sized manufacturers of discrete and highly engineered products. VANTAGE is an integrated solution for engineer-to-order ("ETO") and job shop manufacturers that meet the dynamic product requirements of customer manufacturing operations. VISTA is a Windows-based desktop business management system specifically designed for the needs of small job shops and the make-to-order ("MTO") departments of larger companies. CLIENTELE is an integrated customer relationship management solution that enables growing companies to easily track and share customer information to boost revenues and increase customer satisfaction. PLATINUM FOR WINDOWS is a robust accounting solution designed for small- to medium-sized businesses operating in the LAN environment. In addition, the Company continues to provide support for the installed base of the PLATINUM FOR DOS financial accounting software product, which the Company discontinued marketing in 1998 after providing a Year 2000 compliant version. The Company also continues to provide support for the installed base of PLATINUM(R) SQL ENTERPRISE (formerly SEQUEL TO PLATINUM(R)), a product which the Company discontinued marketing in 1996. PLATINUM ERA PLATINUM ERA (formerly named PLATINUM SQL), an integrated, customer-centric suite of client/server ERP software applications, is designed to meet the unique business needs of mid-sized companies worldwide (including divisions and subsidiaries of larger corporations). PLATINUM ERA is typically targeted to either a non-manufacturing or service-based business with revenues between $50 and $500 million or a distributor/light manufacturer with the same revenues. These organizations require the functional depth and sophistication of traditional high-end enterprise business applications, but desire a rapid and cost-effective product implementation. PLATINUM ERA includes sales force automation, customer service and support, financial accounting, budgeting, distribution and light manufacturing functionality. The product is optimized for use with the Microsoft Windows NT operating system and the Microsoft SQL Server relational database. PLATINUM ERA minimizes the complexities of client/server installation by providing the user with installation wizards that help configure the Microsoft SQL Server database based upon information provided by the installer. As previously indicated, PLATINUM ERA was designed for the Microsoft Windows NT server platform and runs on Windows NT and Windows 95/98 client platforms. PLATINUM ERA is integrated with other Microsoft software products and supports Active X, which enables customers to integrate not only other Microsoft products but also any Active X-compliant application. In addition, PLATINUM ERA is a 32-bit client and server application that takes full advantage of the Microsoft SQL server for Windows NT. In order to fully exploit the capabilities of the client/server model of computing, the Company has optimized its PLATINUM ERA product line for the Microsoft SQL Server database. All major data manipulation functions are implemented in the native language of the database server, Transact SQL, and thereby are executed as "stored procedures" and/or "triggers" that are processed solely on the server. This implementation results in a substantial reduction in network traffic as compared to other client/server approaches, provides scaleable high performance, and provides inherent portability of the RDBMS to a large number of server, hardware and operating system platforms without code change or conversion. 6 7 PLATINUM ERA includes both front and back office applications. The front office applications include Customer Care, Sales and Marketing, Conductor, Connector, Help Desk, Smart Delivery and ERA.net Front Office. The back office includes financial, distribution and manufacturing suites of applications. The following back office financial applications are presently generally available in version 7.0: System Manager, General Ledger with FRx, Accounts Receivable, Accounts Payable, Cash Management, Multi-Currency Manager, Asset Management, Import Manager, Credit and Collections, Allocations and Budget Manager. PLATINUM ERA Distribution includes Purchasing and Distribution. PLATINUM ERA also includes a variety of Internet-enabled products to extend its functionality via the Internet, including an information access tool, ERA.net Decision Support, and a business-to-business electronic commerce solution, ERA.net Order. Version 7.1 of PLATINUM ERA is scheduled for release in September 1999, and is expected to include features such as: (i) a customization workbench based on PowerBuilder that will enable consultants, resellers and customers to customize the PLATINUM ERA Manufacturing and Distribution suites, (ii) improved integration between the front and back office components of PLATINUM ERA, and (iii) a new desktop that provides a common user interface and navigation tool for all PLATINUM ERA applications. See "Certain Considerations - Forward Looking Statements." The PLATINUM ERA Front Office suite enables small- to mid-sized businesses to organize, maintain and share customer information to improve customer service and improve support and sales personnel productivity. PLATINUM ERA Front Office is also used for managing customer service and support operations, including internal help desks that support an organization's internal workforce (traditionally, the MIS department) as well as external customer support centers that support the businesses' customers, vendors, and suppliers. The PLATINUM ERA front office suite also includes a sales and marketing automation application which, when combined with the customer service and support application, enables organizations to share customer information from the initial contact throughout the duration of the customer life cycle. The sales and marketing application includes contact management, opportunity management, account management, territory management, a marketing encyclopedia, scheduling and calendaring functionality. The PLATINUM ERA Distribution and PLATINUM ERA Manufacturing suites are comprehensive, client/server applications designed to improve the efficiency and responsiveness of manufacturing and distribution operations. The manufacturing and distribution suites are fully integrated with the PLATINUM ERA Financial and PLATINUM ERA Front Office suites to ensure that repetitive, assemble-to-order or configure-to-order manufacturing operations are in sync with sales, distribution, purchasing and financial departments. This customer-centric focus of the PLATINUM ERA enables companies to respond quickly to customer demands and improve customer service. License fees for PLATINUM ERA vary depending upon the number of modules, servers and concurrent users. Revenues attributable to licenses of PLATINUM ERA (including the predecessor of PLATINUM ERA, PLATINUM SQL AND CLIENTELE) were $17,159,000, $24,687,000, $48,825,000 or 38%, 41% and 50% of the Company's total revenues for the fiscal years ended June 30, 1996, 1997 and 1998, respectively, and $28,720,000 or 45% of the Company's total revenues for the six months ended December 31, 1998. MANUFACTURING APPLICATIONS The Company's dedicated manufacturing applications include AVANTE, VANTAGE and Vista. AVANTE, VANTAGE and VISTA were acquired as part of the Merger with DataWorks. See "Merger with DataWorks." AVANTE is an easy-to-use ERP solution for mid-sized manufacturers of discrete and highly engineered products. Built on proven technologies, AVANTE is a cost-effective and easy-to-implement solution that has the built-in flexibility that manufacturers need to meet the challenges of constant production process improvements, global sourcing and mass customizations. VANTAGE is an integrated, Windows-based solution for engineer-to-order and job shop manufacturers that meets the dynamic product requirements of custom manufacturing operations. VANTAGE provides powerful tools for quoting, visual scheduling, job tracking and costing, as well as shop floor data collection. VISTA is a Windows based desktop business management system specifically designed for the needs of small job shops and the make-to-order departments of larger businesses. For further information regarding AVANTE, VANTAGE and VISTA, see "Merger with DataWorks." 7 8 CLIENTELE CLIENTELE is an integrated customer relationship management solution designed to meet the needs of growing, mid-sized organizations. CLIENTELE enables businesses to easily gather, track, organize and share customer information to boost revenues and increase customer service levels. CLIENTELE contains both a customer service and support application as well as a sales force automation application. PLATINUM FOR WINDOWS PLATINUM FOR WINDOWS is a Windows-based client/server financial accounting software package for smaller businesses whose corporate computing environment consists of LANs comprised of personal computers. PLATINUM FOR WINDOWS is the next generation of the Company's PLATINUM FOR DOS and PLATINUM PREMIER financial accounting applications. First introduced in June 1995, PLATINUM FOR WINDOWS includes a Windows-based client that was designed around the interface standards of Microsoft Windows 95 to handle all user interaction and data maintenance. The Windows-based client interacts with an application server that runs postings, reports and utilities. Both the client and the server communicate with the LAN-based Pervasive.SQL database. No database conversions are required to upgrade from the PLATINUM FOR DOS product to PLATINUM FOR WINDOWS, ensuring a smooth upgrade path for PLATINUM FOR DOS users. The following modules of PLATINUM FOR WINDOWS are presently generally available: Premier Ledger with FRx, Premier Consolidations, Premier Currency Translation, Premier Inter-Company Processing, Premier Budgeting, Foreign Currency Manager, System Manager, General Ledger, Bank Book, Accounts Receivable, Accounts Payable, Purchase Order, Sales Order, Inventory, Project Costing, Bank Book, Advanced Allocations, and Budget Manager. In addition, the Company continues to support its PLATINUM FOR DOS integrated financial software applications. First introduced in June 1985, the core PLATINUM FOR DOS accounting modules include General Ledger, Accounts Receivable, Accounts Payable, Inventory, Order Entry, System Manager, Purchase Order, Job Costing, Bank Book and Consolidations. Version 4.8 of PLATINUM FOR WINDOWS, which is scheduled to be generally available in July 1999, is scheduled to include the addition of Crystal Reports, a "Virtual Warehouse" module that provides integration with Ingram Micro's inventory suite and enhancements to its Customization Workbench. See "Certain Considerations-Forward Looking Statements." Revenues attributable to licenses of the PLATINUM FOR WINDOWS and PLATINUM FOR DOS applications were $6,075,000, $7,436,000 and $8,752,000, or 13%, 12% and 9% of the Company's total revenues for the fiscal years ended June 30, 1996, 1997 and 1998, respectively, and $4,327,000, or 7% of the Company's total revenues for the six months ended December 31, 1998. OTHER PRODUCTS The Company also offers a line of integration kits and database products that support its PLATINUM FOR WINDOWS and PLATINUM FOR DOS lines of software products and licenses these products to its Value Added Resellers ("VARs"), distributors, Authorized Consultants and end-users. The Company also serves as an OEM vendor or reseller for certain third-party software applications and pays royalties to various organizations in connection with the distribution of third-party software and the sale of products that incorporate third-party technologies. In addition, in certain cases, as part of turnkey solutions requested by a customer of AVANTE or VANTAGE, the Company resells complete third party computer hardware systems and related peripherals. The Company does not typically carry inventory of computer hardware. PROFESSIONAL SERVICES, TECHNICAL SUPPORT AND SOFTWARE MAINTENANCE The Company's professional services division provides consulting services to customers in the design and implementation of the Company's software products, as well as custom software development, education, training and other consulting and programming services. The professional services division functions in domestic and international markets. Professional services are generally provided on a time and materials basis. The Company believes that its provision of professional services, in conjunction with its current and planned product offerings, facilitates the licensing of technology to customers, stimulates demand for the Company's products and provides a key market differentiator over its competition. 8 9 The Company is committed to providing timely, high-quality technical support, which the Company believes is critical to maintaining customer satisfaction. The Company provides technical support by offering telephone support, e-mail support, facsimile support and communications through its World Wide Web site, http://www.platsoft.com. Telephone support is available five days a week during normal business hours on a nearly worldwide basis, collectively from the Company's support centers in the United States and outside of the United States. The Company also believes that customer satisfaction should be maintained by ensuring that its VARs, Distributors and Authorized Consultants are able to effectively provide front-line technical support and assistance to end-users. The Company offers comprehensive training, telephone consultation and product support for its VARs, Distributors and Authorized Consultants. Training courses are held regularly in major cities worldwide. The Company offers its customers several software maintenance options, for varying annual fees. The Company's software maintenance programs are the customer's sole avenue for product updates and technical support. The annual maintenance fee is a percentage of the then current list price of the software purchased. Customers who subscribe for maintenance receive telephone and technical support, timely information on product enhancements and features and product updates and upgrades. Revenue from these software maintenance agreements is recognized ratably over the maintenance period. The Company provides a three-month warranty for the media on which its products are licensed and also provides a performance warranty on certain products ranging from 3 months to one year. Services revenues, which include consulting, education, training and maintenance and support services, were approximately $21,817,000, $27,420,000 and $40,406,000, or 48%, 45% and 41% of the Company's total revenues for the fiscal years ended June 30, 1996, 1997 and 1998, respectively, and approximately $30,428,000 or 48% of the Company's total revenues for the six months ended December 31, 1998. MARKETING, SALES AND DISTRIBUTION The Company sells and markets its products and services worldwide, directly and through a network of VARs, distributors and software consultants who generally market the Company's products on a nonexclusive basis. The Company's products are sold to and used by a broad customer base, including businesses, government bodies, educational institutions and other users. The Company sells its PLATINUM FOR WINDOWS product exclusively through VARs or distributors. The Company sells its PLATINUM ERA product through a hybrid channel that includes a direct sales force as well as a network of VARs. The Company sells its CLIENTELE product through an internal telesales organization, a direct sales force and through a network or VARs. The Company's field sales organization is divided into geographic regions: United States, divided into Northeast, Southeast, Northcentral, Southcentral, Northwest, and Southwest; Canada; United Kingdom/Europe/Middle East/Africa; Australia/New Zealand; Asia and other international countries The Company's network of VARs and Authorized Consultants are required to undergo extensive training and certification procedures provided by the Company on the use, installation and implementation of the Company's products as a condition of being authorized by the Company to sell its products. The Company's VARs include consulting groups and resellers, the majority of whom provide computer installations, systems integration and consulting services to organizations. The Company's Authorized Consultants generally are not resellers of the Company's products, but professional firms who offer implementation services and product support to end-users. The Company believes that its Authorized Consultants are product influencers and are a valuable part of the Company's marketing, sales and distribution efforts. To support the Company's network of VARs and Authorized Consultants, the Company provides experienced personnel who are specifically tasked with their growth and support. These individuals are responsible for educating and training the distribution channel, disseminating information, implementing marketing programs and developing regional markets. The AVANTE and VANTAGE products, which were acquired in the DataWorks Merger, are presently sold by a direct sales force in the United States. The domestic sales organization includes sales representatives, pre-sale consultants, telemarketers and sales management personnel. The VISTA product, which was also acquired in the DataWorks Merger, is presently sold by a dedicated telesales organization. In recognition of international opportunities for its software products, the Company has committed resources to an international sales and marketing effort. The Company has established subsidiaries in the United 9 10 Kingdom, Australia, New Zealand, Canada, Hong Kong and Singapore to further such sales and marketing efforts. The Company sells its products in Europe, including Russia, Latin and South America, Africa, Asia and the Middle East principally through third-party distributors and dealers. The Company's international revenues were approximately $14,079,000, $17,368,000 and $27,480,000, or 31%, 29% and 28% of total revenues for the fiscal years ended June 30, 1996, 1997 and 1998, respectively, and $17,161,000 or 27% of total revenues for the six months ended December 31, 1998. See "Note 8 of Notes to Consolidated Financial Statements." The AVANTE, VANTAGE and VISTA products, which were acquired in the DataWorks Merger, are presently sold internationally through wholly owned subsidiaries of DataWorks in the United Kingdom and France, and through product specific distributors in Germany, Australia and Canada. The Company currently has sales offices located in the metropolitan areas of Atlanta, Boston, Chicago, Dallas, Detroit, Houston, Louisville, Irvine, New York, Portland, San Francisco, St. Louis, Seattle, Tampa, Washington, D.C., Calgary, Canada, Toronto, Canada, Auckland, New Zealand, London, England, Sydney and Melbourne, Australia, Hong Kong and Singapore. As a result of the DataWorks Merger, the Company has additional sales offices in San Jose, California, San Diego, California and Minneapolis, Minnesota. The Company expects to consolidate sales offices in cities or geographic areas where there is overlap. Products are generally shipped as orders are received or within 30 days thereof and, accordingly, the Company has historically operated with little or no backlog. Because of the generally short cycle between order and shipment, the Company does not believe that its backlog as of any particular date is meaningful. PRODUCT DEVELOPMENT AND QUALITY ASSURANCE Since inception, the Company has made substantial investments in product development, which is evidenced by the following product releases: the 1985 release of a LAN-based client/server financial accounting package that offered a high degree of multi-user concurrency; the 1988 release of a financial accounting package written for OS/2; the 1990 release of a LAN-based software package that provided comprehensive support for international accounting requirements; the 1991 release of a Windows graphical accounting system that offered Windows MDI support; the 1992 release of a graphical, SQL Server-based integrated financial and management information software product line; the 1994 release of a client/server financial accounting application designed to run on Microsoft Windows NT and Microsoft SQL Server; the 1995 release of a Windows- and LAN-based financial accounting software package; the 1997 release of an international, multi-currency client/server financial accounting application and the 1998 release of an integrated ERP solution with light manufacturing, distribution, sales and marketing, customer service and support and financial accounting functionality. Software development expenses before capitalization were approximately $14,861,000, $11,855,000, and $12,971,000 for the fiscal years ended June 30, 1996, 1997 and 1998, respectively, and $9,125,000 for the six months ended December 31, 1998. The Company plans to continue to address the needs of midmarket users of client/server ERP software by continuing to develop high quality software products that feature advanced technologies. The Company's technology strategy is to develop leading business application software using its own technologies combined with leading third-party, industry-standard technologies in database management systems, application development tools, operating systems, user interfaces and networks. The Company plans to use technologies from Microsoft Corporation whenever possible and plans to build technologies based on Microsoft Corporation's recommended technical architecture. In particular, the Company believes that it has been an industry leader in designing and developing products for operation on LANs/WANs and Microsoft's SQL Server database. The Company has also been a pioneer in the use of GUIs with integrated business application software. Currently, the Company pursues object-oriented methodologies that simplify the development, maintenance and customization of its products. Accordingly, the Company's tools offer a high degree of customization for its products. The Company intends to continue to invest in product development. In particular, the Company plans to continue to (i) develop enhancements, including additional functions and features, for its PLATINUM ERA, AVANTE, VANTAGE, VISTA, CLIENTELE and PLATINUM FOR WINDOWS product lines, (ii) develop common application components such as e-commerce, supply chain management, data warehousing and on-line analytical processing that can be integrated with all of the Company's solutions to extend their functionality and (iii) develop and/or acquire new applications or modules that build upon the Company's business application strategy. In 1997 and 1998, the Company acquired three business application software developers and has integrated the products and development teams to various degrees. See "Management's Discussion of Analysis of Financial 10 11 Condition and Results of Operations -1997 Acquisitions and 1998 Acquisition." In 1997, the Company acquired both Clientele, Inc. and FocusSoft, Inc. During 1998, the Company integrated, to a certain level, the distribution, manufacturing, sales force automation and customer service and support products it had added from its acquisitions with the Company's PLATINUM SQL core financial application. The Company has also renamed the entire application suite to PLATINUM ERA (Enterprise Ready Applications). The Company integrated the acquired applications to share common master files (e.g. customers, vendors, and inventory items) and to process transactions consistently across all applications. All of the PLATINUM ERA product line is built on the Microsoft SQL Server database, supports extensive customization, and provides a graphical user interface. The Company is continuing to improve the integration between these applications and is investing to make the technical architecture more consistent across all of the applications especially in the area of user interface, object oriented development and reporting. In 1998, the Company acquired DataWorks Corporation. See "Merger with DataWorks." The same development teams that had maintained and enhanced the AVANTE, VANTAGE and VISTA products for DataWorks are continuing to maintain and enhance these products for the Company. DataWorks had a development team working on their next-generation product called IMPRESSA FOR BACKOFFICE ("IBO"). The IBO product was never released and never installed at a customer site. The IBO development team has been re-deployed to maintain and enhance the PLATINUM ERA Distribution and PLATINUM ERA Manufacturing application modules. The IBO product and PLATINUM ERA share very similar technologies and application functionality. As a result, the IBO and PLATINUM ERA development teams have synergistic skill sets, including experience with PowerBuilder, Microsoft SQL Server and extensive application experience in distribution and manufacturing. The Company is also making investments to improve the marketability of its products outside of the United States and Canada. The Company has opened a European localization center ("ELC") based in Dublin, Ireland. The ELC will develop the necessary changes to translate and localize the products for sale in Europe. In addition, the Company has contracted with a third party to develop the necessary changes to translate and localize the products for sale in Latin and South America. The computer software industry is characterized by rapid technological advances and changes in customer requirements. The Company's future success will depend upon its ability to enhance its current products and develop and introduce new products that keep pace with technological developments, respond to evolving customer requirements and continue to achieve market acceptance. In particular, the Company believes it must continue to respond quickly to users' needs for broad functionality and multi-platform support and to advances in hardware and operating systems. In the past, the Company has occasionally experienced delays in the introduction of new products and product enhancements. There can be no assurance that the Company will not experience significant delays in the introduction of new products or product enhancements in the future, which could have a material adverse effect on the Company's results of operations. The Company's future business is dependent on the execution of the strategy that is in place to target the client/server ERP software needs of mid-sized businesses. Any significant delay in shipping new modules or enhancements could have a material adverse effect on the Company's results of operations. In addition, there can be no assurance that new modules or product enhancements developed by the Company will adequately achieve market acceptance. COMPETITION The client/server enterprise business applications software industry is intensely competitive, rapidly changing and significantly affected by new product offerings and other market activities. A number of companies offer enterprise application suites similar to the Company's product offerings that are targeted at the same markets. In addition, a number of companies offer a "best-of-breed" or point solution similar or competitive to one product in the Company's enterprise business application suite. Some of the Company's existing competitors, as well as a number of new potential competitors, have larger technical staffs, more established and larger marketing and sales organizations and significantly greater financial resources than the Company. There can be no assurance that competitors will not develop products that are superior to the Company's products or that achieve greater market acceptance. The Company's future success will depend significantly upon its ability to increase its share of its target markets and to license additional products and product enhancements to existing customers. There can be no assurance that the Company will be able to compete successfully or that competition will not have a material adverse effect on the Company's results of operations. In addition, potential customers may increasingly demand that certain of the Company's ERP systems incorporate certain RDBMS software offered by competing products, but not currently supported by the Company products. 11 12 The Company believes that it competes in two distinct enterprise business applications markets: emerging enterprises and midmarket enterprises. The Company defines emerging enterprises as rapidly growing businesses between $10 and $100 million in annual revenues. Businesses in this market require solutions that provide a more sophisticated level of functionality to effectively manage their business than can be found in "off-the-shelf" applications. These businesses require applications that are easy to implement, customize, manage and use as well as being affordable. Emerging enterprises generally lack dedicated information technology management resources and require solutions that do not require a high level ongoing maintenance and support for their continued operation. Products in this market are principally sold through VARs and solution-oriented computer retail stores with the purchasing decision often influenced by professionals providing consulting services. The Company believes that purchases in this market are primarily influenced by functionality, performance, availability of a Windows-based solution, price and quality. The Company believes it competes favorably with respect to all of these factors. The Company competes primarily in the midmarket, which the Company defines as growing, mid-sized enterprises with revenues between $50 and $500 million. Although the Company does not actively target larger, Fortune 1,000 corporations with its enterprise business applications, it encounters competitors from this market segment who are increasingly targeting mid-sized enterprises. Businesses in this market require solutions that provide a more sophisticated level of functionality to effectively manage their business than can be found in "off-the-shelf" applications. These businesses require applications that are easy to implement, customize, manage and use as well as being affordable. Mid-sized enterprises also lack dedicated information technology management resources and need solutions that do not require a high level of ongoing maintenance and support for their continued operation. The Company believes that purchases in this market are primarily influenced by functionality, performance, availability of a Windows-based solution, price, quality and customer service. The Company believes it competes favorably with respect to all of these factors. Increasingly, customers in this market segment are looking for Microsoft SQL Server based solutions and the PLATINUM ERA product line is well positioned to address this requirement. The Company believes it is one of only a few vendors in this market space that is exclusively dedicated to providing midmarket companies with comprehensive, integrated enterprise business applications. However, there are competitors from both the high-end and low-end who are attracted to the business opportunity represented by the midmarket and are beginning to offer complete or partial enterprise business applications to this market. In order to compete in the future, the Company must respond effectively to customer needs and incorporate those technologies and application functionality that will meet the challenges posed by competitors' innovations. To accomplish this objective, the Company will be required to continue to invest in enhancing its current products and, when necessary, introduce new products to remain competitive. There can be no assurance that the Company will be able to continue to invest in such enhancements or new products, or introduce such enhancements or new products in a timely fashion or at all. The Company has a number of competitors that vary is size, target markets and overall product scope. The Company's primary competition comes from independent software vendors in three distinct groups, including (i) large, multinational ERP vendors that are increasingly targeting mid-sized businesses as their traditional market becomes saturated, including J.D. Edwards, Baan Co. NV, Oracle Corporation, PeopleSoft, Inc. and SAP AG, (ii) mid-range ERP vendors, including System Software Associates, Inc., Lawson Corporation and Navision, and (iii) established "best-of-breed" or point solution providers that compete with only one portion of the Company's overall ERP suite, including Sage Software, Ltd. (formerly State of the Art, Inc.), Great Plains Software, Inc., Scala, Inc., Systems Union, Ltd., Solomon Software, SQL Financials, Geac and Flexi International Software, Inc. for financial accounting; Fourth Shift Corporation, QAD, Inc., ROI Systems, Symix Systems, Inc. Lilly Software and Macola Software, Inc. for manufacturing and distribution; and Onyx Software Corporation, Pivotal Software, Inc. and Sales Logix Corporation for sales force automation and customer service and support. While these competitors offer dedicated applications, the Company believes that its broader product offerings and level of product integration provide a significant competitive advantage. INTELLECTUAL PROPERTY The Company regards its software as proprietary, in that title to and ownership of the software generally exclusively resides with the Company, and the Company attempts to protect it with a combination of copyright, trademark and trade secret laws, employee and third-party nondisclosure agreements and other industry standard methods for protecting ownership of its proprietary software. Despite these precautions, there can be no assurance unauthorized third-parties will not copy certain portions of the Company's products or reverse engineer or obtain and 12 13 use information the Company regards as proprietary. Like many software firms, the Company presently has no patents. While the Company's competitive position may be affected by its ability to protect its proprietary information, the Company believes that trademark and copyright protections are less significant to the Company's success than other factors such as the knowledge, ability and experience of the Company's personnel, name recognition and ongoing product development and support. There can be no assurance that the mechanisms used by the Company to protect its software will be adequate or that the Company's competitors will not independently develop software products that are substantially equivalent or superior to the Company's software products. The Company's software products are generally licensed to end-users on a "right to use" basis pursuant to a perpetual, non-exclusive license that generally restricts use of a software for the organization's internal business purposes and the end user is generally not permitted to sublicense or transfer the products. The Company licenses its PLATINUM FOR WINDOWS, CLIENTELE, VISTA and PLATINUM ERA (those sold through VARs and distributors) product lines pursuant to "shrink wrap" licenses that are not signed by licensees and therefore may be unenforceable under the laws of certain jurisdictions. In addition, the laws of some foreign countries do not protect the Company's proprietary rights to the same extent as do the laws of the United States. Certain components of the Company's products are licensed from third parties. DataWorks has historically licensed the source code for the AVANTE and VANTAGE products to customers to enable them to customize the software to meet particular requirements. The standard customer license contains a confidentiality clause protecting the products. In the event of termination of the license agreement, the customer remains responsible for the confidentiality obligation and for any accrued and unpaid license fees. However, there can be no assurance that such customers will take adequate precautions to protect the source code or other confidential information. As the number of software products in the industry increases and the functionality of these products further overlap, the Company believes that software programs will increasingly become subject to infringement claims. There can be no assurance that third-parties will not assert infringement claims against the Company in the future with respect to current or future products or that any such assertion may not require the Company to enter into royalty arrangements or will result in costly litigation. The Company is not aware of any material infringement actions or claims. PRODUCTION The principal materials and components used in the Company's software products include computer media, including disks and CD-ROMs, and user manuals. For each product, the Company prepares a master software disk or CD-ROM, user manuals, which may be in printed form or distributed on a CD-ROM, and packaging. Substantially all of the Company's disk and CD-ROM duplication is performed by third-party vendors, using disks and blank CD-ROMs acquired from various sources. Outside sources print the Company's packaging and related materials to the Company's specifications. Portions of the completed packages are assembled by third-party vendors. To date, the Company has not experienced any material difficulties or delays in the manufacture and assembly of its products, or material returns due to product defects. EMPLOYEES As of December 31, 1998, the Company had 660 full-time employees, including 119 in product development, 87 in support services, 151 in professional services, 167 in sales, 43 in marketing and 93 in finance and administration. The Company's employees are not represented by any collective bargaining organization, and the Company has never experienced a work stoppage. The Company believes that its relations with its employees are good. Following the DataWorks Merger, as of March 1, 1999, the Company had 1,690 full-time employees, including 299 in product development, 221 in support services, 519 in professional services, 318 in sales, 88 in marketing and 245 in finance and administration. MERGER WITH DATAWORKS On December 31, 1998, at 11:59 p.m., California time ("Effective Time"), Merger Sub, which was a wholly owned subsidiary of the Company, was merged with and into DataWorks pursuant to an Agreement and Plan of Reorganization dated as of October 13, 1998, as amended as of October 30, 1998 (the "Acquisition Agreement"). At the Effective Time: (i) Merger Sub ceased to exist; (ii) DataWorks, as the surviving corporation in the Merger, became a wholly owned subsidiary of the Company and (iii) subject to the provisions of the Acquisition Agreement 13 14 relating to the payment of fractional shares, each share of Common Stock of DataWorks, $0.001 par value per share ("DataWorks Common Stock") existing immediately prior to the Effective Time was converted into the right to receive 0.794 shares (the "Exchange Ratio") of the Company's Common Stock, $0.001 par value per share. The Company issued 11,739,459 shares in the Merger to former stockholders of DataWorks. In addition, pursuant to the Acquisition Agreement, upon the Effective Time, each outstanding option or right to purchase DataWorks Common Stock under the DataWorks 1995 Equity Incentive Plan, the DataWorks 1995 Non-Employee Directors Stock Option Plan, the Interactive 1997 Nonstatutory Stock Option Plan, the Interactive 1995 Stock Option Plan, and each other outstanding option or right to purchase DataWorks Common Stock was assumed by the Company and became an option or right to purchase Company Common Stock, with appropriate adjustments made to the number of shares issuable thereunder and the exercise price thereof based on the Exchange Ratio. The Merger was a tax-free reorganization under Section 368(a) of the Internal Revenue Code of 1986, as amended, and was accounted for as a purchase for financial reporting purposes in accordance with generally accepted accounting principles. FORMER DATAWORKS PRODUCTS Following the Merger, the Company has rationalized several former DataWorks products, including: (i) terminating the development of the IMPRESSA FOR BACKOFFICE product in favor of applying those development resources to the development schedule of PLATINUM ERA, and (ii) keeping the ManFact and DataFlo products in maintenance mode and continuing to support the products' installed base while providing data conversion and migration support and tools for those customers desiring to upgrade to another of the Company's products. The business needs and resource requirements of small- and mid-sized manufacturers tend to be considerably different than those of larger companies. Customers in these markets generally have small MIS departments, budget constraints and limited experience with the advanced technologies inherent in ERP systems. Additionally, manufacturers typically have different business requirements based on the type of manufacturing performed. The AVANTE, VANTAGE and VISTA products are designed to meet particular manufacturing needs of both the small- and mid-sized manufacturers. The following chart describes the VISTA, VANTAGE and AVANTE products and typical customer profiles relating to each of them:
Products VISTA VANTAGE AVANTE ---------------------- ----------------- --------------------- --------------------- Customer Revenues...... Under $10 million $10 - $100 million $10 - $125 million Type of Manufacturing Operations.......... Entry level Entry level Make to order Basic job shop/ Job shop/ Mixed mode Engineer-to-order Engineer-to-order Repetitive MIS Infrastructure..... Minimal. Limited Limited Price Range............ $10,000.-$15,000 $65,000 $175,000 Deployment Period...... 1.-.2.months 3 - 9 months 3 - 9 months
VISTA VISTA is intended for manufacturers with annual revenues typically under $10 million. This product is better suited for the needs of small job shops and the MTO departments of larger businesses that have less developed MIS infrastructures and lower MIS budgets, require a shorter deployment period and often seek established, user-friendly products. VISTA is a Windows-based desktop business management system specifically designed for the needs of small job shops and the MTO departments of larger businesses. VISTA fully integrates 15 core business modules and features single level bills of material capabilities. VISTA incorporates the DesignWare feature which permits users to, among other things, define their own screens, add fields, change colors, hide fields, change grid sizes and drag choices from menus to the desktop. 14 15 VANTAGE Vantage is an integrated, Windows-based ERP solution for engineer-to-order and job shop manufacturers that meets the dynamic product requirements of custom manufacturing operations. Vantage provides powerful tools for quoting, visual scheduling, job tracking and costing, as well as shop floor data collection. Vantage supports a mix of custom and standard part orders and multilevel assemblies and is comprised of 18 fully integrated business modules. Vantage is optimized for the rapid deployment, minimal support and price/performance requirements of custom and mixed-mode manufacturers in the $10 to $100 million revenue range. VISTA and VANTAGE, like AVANTE, are comprised of groups of modules that can be differently configured to comprehensively support a customer's business processes. The following chart describes the VISTA and VANTAGE modules, and the discussion below points out certain key characteristics of the VISTA and VANTAGE modules: VISTA AND VANTAGE APPLICATION MODULE GROUPS
- ------------------------------------------------------------------------------------------------- Business Planning Sales, Distribution Production and Finance and and Engineering and Customer Service Material Operations Administration - ------------------------------------------------------------------------------------------------- Bills of Material Estimating Inventory Management Accounts Payable Scheduling Order Entry Job Control Accounts Receivable Shop Vision Quoting Purchasing/Receiving General Ledger Global Finite Rescheduling EDI Shop Floor Data Payroll Shipping/Receiving Collection Report Writer Purchasing RFQ Document Management
BUSINESS PLANNING AND ENGINEERING GROUP. In VISTA and VANTAGE, the Business Planning and Engineering module allows the production manager to control the sales and shop priorities through a visual scheduling manager. Indented bills of material support provide the ability to retain product information for repeat orders, and "what if" scheduling provides the ability to simulate the impact of new orders and schedule changes. SALES, DISTRIBUTION AND CUSTOMER SERVICE GROUP. Estimating, quoting and sales order processing are tightly integrated in the products, supporting the requirement for rapid cost estimating and order commitment. Order-to-job linking provides rapid access to production status and delivery information. EDI applications allow for electronic distribution of sales orders, change orders and invoices. PRODUCTION AND MATERIAL OPERATIONS GROUP. Priorities established in scheduling are realized in manufacturing job processing. These controls present real-time status reporting based on data collection inputs and provide just-in-time material purchasing and availability. Visual job "wizards" and document management allows paperless management and instant graphical review of job history, job status and inventory. FINANCE AND ADMINISTRATION GROUP. VISTA'S and VANTAGE'S Finance and Administration Group enables associated product costs and revenues to be recorded to the General Ledger module as subsidiary ledgers of the Accounts Payable, Accounts Receivable, Payroll and Shop Floor Data Collection modules. The prices for VISTA and VANTAGE applications are based upon the specific product line, the modules purchased and the number of concurrent users. The average sales price of VISTA is $12,000, and the average sales price of VANTAGE is $65,000 (exclusive of hardware costs and professional service fees). AVANTE The AVANTE product has historically been targeted to manufacturers of "highly engineered products" with annual revenues typically between $10 million and $125 million in eight principal industries: industrial equipment; computer/office equipment; consumer electronics; instrumentation and controls; medical/dental products; transportation/aerospace products; capital equipment; and contract manufacturers. AVANTE is an easy-to-use ERP solution for mid-sized manufacturers of discrete and highly engineered products. Built on proven technologies, Avante is a cost-effective and rapidly deployable solution that has the built-in flexibility manufacturers need to meet the challenges of constant production process improvements, global sourcing and mass customization. 15 16 AVANTE is comprised of groups of modules that comprehensively support a manufacturing company's business process. These modules provide and integrate feature-rich applications, are built upon a common set of design and development standards and tools, and share a common database architecture. AVANTE is highly modular in nature and can be scaled from small to large configurations on a variety of platforms supporting the Microsoft NT and UNIX operating systems. This enterprise-wide system can be implemented in a variety of multi-currency, multi-company and multi-plant environments networked through client and host-based configurations. The following chart describes the AVANTE modules and the discussion below highlights certain key characteristics. AVANTE APPLICATION MODULE GROUPS
- ---------------------------------------------------------------------------------------- Sales, Business Planning Distribution and Production and Finance and and Engineering Customer Service Material Operations Administration - ---------------------------------------------------------------------------------------- Capacity Customer Service Inventory Management Accounts Payable Requirements Planning Electronic Data Lot/Serial Control Accounts Receivable Engineering Change Interchange MES Budgeting Control Estimating Multi-Plant Control Cost Accounting Forecasting Field Service Production Activity Currency and VAT Master Production Quoting Management Executive Scheduling Sales Order Project Management Information System Material Requirements Shipping/Returned Purchasing/Receiving Fixed Assets Planning Material Quality Control General Ledger Product Configurator Repetitive Manufacturing Payroll Product Definition Shop Floor Data Collection Personnel Work Order Control
BUSINESS PLANNING AND ENGINEERING GROUP. The Business Planning and Engineering Group enables manufacturing companies to create high-level business plans from current and historical sales, production and purchasing data. Manufacturing companies use these plans to generate specific product and product family forecasts, as well as capacity models that flow into final and sub-assembly manufacturing, scheduling and purchase plans. Engineering and configuration management defines material and routing structures to planning and production and provides visibility to anticipate and coordinate product changes. SALES, DISTRIBUTION AND CUSTOMER SERVICE GROUP. The Sales, Distribution and Customer Service Group allows a manufacturer to estimate, quote and take orders for standard, configured and custom, "one-of-a-kind" products. The sales made are integrated with the Business Planning and Engineering modules providing actual versus plan reporting. Shipments, order status and invoicing can be transmitted directly to the customer via EDI. Return material, field service and help desk applications are available on line to customer service providing detail service analysis and call tracking. PRODUCTION AND MATERIAL OPERATIONS GROUP. The Production and Material Operations Group provides a means to record, track and measure production, material, labor, quality and cost flows throughout the manufacturing and purchasing processes. Inventory tracking is provided by company, plant, warehouse and location with full traceability. Traditional work order, as well as rate and cell-based just-in-time production is supported and fully integrated with detailed shop floor and quality control reporting. The Production and Material Operations Group provides blanket and contract orders, EDI and detailed supplier analysis reporting in the purchasing application. FINANCE AND ADMINISTRATION GROUP. The Finance and Administration Group flows from the operational modules included in the groups described above. This group captures all associated costs and revenues to the General Ledger module as subsidiary ledgers of the Accounts Payable, Accounts Receivable, Payroll, Inventory Management, Shop Floor Data Collection, Shipping/Returned Material and Cost Accounting modules. The costing systems support both actual and standard cost methodologies with additional capabilities for unlimited cost simulation, modeling and reporting. The financial modules support both distributed and consolidated processing in a multi-company environment and provide complete foreign currency and tax capabilities. The average price of the Company's AVANTE ERP system (exclusive of hardware and professional services) is approximately $175,000. 16 17 IMPRESSA FOR MRO. IMPRESSA FOR MRO (previously called JIT and obtained by DataWorks in its acquisition of Interactive) is a software system consisting of standardized modules and a family of additional integration modules. IMPRESSA FOR MRO is designed primarily for maintenance, repair and overhaul and contract manufacturing, including a fully integrated suite of software supporting supply chain management, repair and overhaul, manufacturing, and financial and project management applications which are designed to support an enterprise's business processes in an industrial company. The Company is presently holding IMPRESSA FOR MRO as an asset held for sale and is evaluating its options with respect to the disposition of this product. RESTRUCTURINGS In February 1996, the Company underwent another reduction in force of approximately 40 persons with the intent again to reduce operating expenses and minimize the usage of cash. In June 1997, the Company underwent another restructuring as a result of the Clientele acquisition. During the quarter ended December 31, 1998, the Company underwent another restructuring as a result of the Merger with DataWorks. See "Management's Discussion and Analysis of Financial Condition and Results of Operations - Restructurings." CERTAIN CONSIDERATIONS FORWARD LOOKING STATEMENTS. Certain statements in this Transition Report, including statements regarding the anticipated dates of product releases and commercial shipments, and the anticipated dates of completion of Year 2000 assessments, testing and implementation of fixes are forward looking statements within the meaning of Section 27A of the Securities and Exchange Act of 1993, as amended, and Section 21E of the Securities and Exchange Act of 1934, as amended, that involve risks and uncertainties. Any statements contained herein (including without limitation statements to the effect that the Company or Management "estimates," "expects," "anticipates," "plans," "believes," "projects," "continues," "may," or "will" or statements concerning "potential" or "opportunity" or variations thereof or comparable terminology or the negative thereof,) that are not statements of historical fact should be construed as forward looking statements. Actual results could differ materiallly and adversely from those anticipated in such forward looking statements as a result of certain factors including the factors listed at pages 17-22. Because of these and other factors that may affect the Company's operating results, past performance should not be considered an indicator of future performance and investors should not use historical results to anticipate results or trends in future periods. FLUCTUATIONS IN QUARTERLY OPERATING RESULTS. The Company's quarterly operating results have fluctuated in the past. The Company's operating results may fluctuate in the future as a result of many factors that may include: o The demand for the Company's products o The size and timing of orders for the Company's products o The number, timing and significance of new product announcements by the Company and its competitors o The Company's ability to introduce and market new and enhanced versions of its products on a timely basis o The level of product and price competition Changes in operating expenses of the Company Changes in average selling prices In addition, the Company will most likely record a significant portion of its revenues in the final month of a quarter with a concentration of such revenues recorded in the final 10 business days of that month. Due to the above factors, among others, the Company's revenues will be difficult to forecast. The Company, however, will base its expense levels, in significant part, on its expectations of future revenue. As a result, the Company expects its expense levels to be relatively fixed in the short run. The Company's failure to meet revenue expectations could adversely affect operating results. Further, an unanticipated decline in revenue for a particular quarter may disproportionately affect the Company's net income because a relatively small amount of the Company's expenses will vary with its revenues in the short run. As a result, the Company believes that period-to-period comparisons of the Company's results of operations are not and will not necessarily be meaningful, and 17 18 you should not rely upon them as an indication of future performance. Due to the foregoing factors, it is likely that in some future quarter the Company's operating results will be below the expectations of public market analysts and investors. Such an event would likely have a material adverse effect upon the price of the Company's Common Stock. INTEGRATION OF DATAWORKS. On December 31, 1998, a wholly owned subsidiary of the Company was merged with DataWorks and DataWorks became a subsidiary of the Company. The Company is still in the process of integrating the operations of the two companies. Following the Merger, a significant number of AVANTE sales representatives and certain sales management employees have resigned from the Company. The Company expects that these departures will materially adversely effect the Company's revenues from the AVANTE product in the near term, as well as the Company's financial results. There can be no assurance that other employees will not resign from the Company. There may be substantial difficulties, costs and delays involved in integrating the operations of DataWorks. These difficulties, costs and delays may include: o Distracting management from the business of the Company o Potential incompatibility of business cultures o Perceived and potential adverse change in client service standards, business focus, billing practices or service offerings available to clients o Potential inability to successfully coordinate the research and development and sales and marketing efforts o Costs and delays in implementing common systems and procedures, including financial accounting systems o Costs and inefficiencies in delivering services to the clients of the Company o Inability to retain and integrate key management, technical sales and customer support personnel o Potential conflicts in direct sales channels and VARs Further, there is no assurance that the Company will retain and successfully integrate its key management, technical, sales and customer support personnel, or that it will realize any of the anticipated benefits of the DataWorks Merger. Any one or all of the factors identified above may cause increased operating costs, lower than anticipated financial performance or the loss of customers and employees. The failure to integrate the Company and DataWorks will have a material adverse effect on the business, financial condition and results of operations of the Company. HORIZONTAL PRODUCT STRATEGY. As part of its business strategy, the Company intends to expand its product offerings to include application software products that are complementary to its existing client/server enterprise resource planning applications, such as human resources and payroll products. This strategy may involve acquisitions, investments in other businesses that offer complementary products, joint development agreements or licensing of technology agreements. The risks commonly encountered in the acquisitions of businesses would accompany any future acquisitions or investments by the Company. Such risks may include, the following: o The difficulty of integrating previously distinct businesses into one business unit o The substantial management time devoted to such activities o The potential disruption of the Company's ongoing business o Undisclosed liabilities o Failure to realize unanticipated benefits (such as synergies and cost savings) o Issues related to product transition (such as development, distribution and customer support) The Company expects that the consideration it would pay in such future acquisitions would consist of stock, rights to purchase stock, cash or some combination. If the Company issues stock or rights to purchase stock in connection with these future acquisitions, earnings per share and then-existing holders of the Company's Common Stock may experience dilution. DEPENDENCE ON DISTRIBUTION CHANNELS. The Company distributes its PLATINUM FOR WINDOWS product exclusively through third-party distributors and VARs, and distributes its PLATINUM ERA product, including CLIENTELE, through a direct sales force as well as through VARs and distributors. The Company's distribution channel includes distributors, VARs and authorized consultants, which consist primarily of professional firms. The Company's agreements with its VARs and authorized consultants do not require such VARs and consultants to offer 18 19 exclusively or recommend the Company's products, and either party can terminate such agreements with or without cause. If the Company's VARs or authorized consultants cease distributing or recommending the Company's products or emphasize competing products, the Company's results of operations could be materially and adversely affected. In addition, PLATINUM ERA, a client/server ERP application, requires additional skill and training for successful implementation. Although the Company is actively seeking additional VARs to sell PLATINUM ERA, delays in training or recruiting VARs could adversely impact the Company's ability to generate license revenue from its PLATINUM ERA line of products. In the fourth quarter of fiscal 1996, the Company reestablished a direct sales force for PLATINUM ERA. There can be no assurance that the direct sales force will not lead to conflicts with the Company's VAR channel. DEPENDENCE ON PRINCIPAL PRODUCTS. The Company derives a substantial portion of its revenue from the sale of information systems and related support services. Accordingly, any event that adversely affects fees derived from the sale of such systems would materially and adversely affect the Company's business, results of operations and performance. These events may include: o Competition from other products o Significant flaws in the Company's products o Incompatibility with third-party hardware or software products o Negative publicity or evaluation of the Company or its products o Obsolescence of the hardware platforms or software environments in which the Company's systems run. RISKS OF PRODUCT DEFECTS. Software products as complex as those ERP products offered by the Company may contain undetected errors or failures when first introduced or as new versions are released. Despite testing by the Company, and by current and potential customers, any of the Company's products may contain errors after their commercial shipment. Such errors may cause loss of or delay in market acceptance of the Company's products. The inability of the Company to correct such errors in a timely manner could have a material adverse effect on the Company's results of operations. In addition, technical problems with the current release of the database platforms on which the Company's products operate could impact sales of these products, which could have a material adverse effect on the Company's results of operations. RELIANCE ON THIRD-PARTY SUPPLIERS. The Company's products incorporate and use software products developed by other entities. The Company cannot assure you that such third parties will: o Remain in business o Support the Company's product line o Maintain viable product lines o Make their product lines available to the Company on commercially acceptable terms Any significant interruption in the supply of such third-party technology could have a material adverse effect on the Company's business, results of operation and financial condition. RISKS ASSOCIATED WITH RAPID TECHNOLOGICAL CHANGE AND PRODUCT DEVELOPMENT. The market for the Company's software products is subject to ongoing technological developments, evolving industry standards and rapid changes in customer requirements. As companies introduce products that embody new technologies or as new industry standards emerge, existing products may become obsolete and unmarketable. The Company's future business, operating results and financial condition will depend on its ability to: o Enhance its existing products o Develop new products that address the increasingly sophisticated needs of its customers o Develop products for additional platforms Further, if the Company fails to respond to technological advances, emerging industry standards and end-user requirements, or experiences any significant delays in product development or introduction, the Company's competitive position and revenues could be adversely affected. The Company's success will depend on its ability to develop and successfully introduce new products and services. The Company cannot assure you that it will 19 20 successfully develop and market new products on a timely basis, if at all. Any such delay or failure could have a material adverse effect on the Company's business, results of operations and financial condition. From time to time, the Company or its competitors may announce new products, capabilities or technologies that have the potential to replace or shorten the life cycles of the Company's existing products. The Company cannot assure you that such announcements will not cause customers to delay or alter their purchasing decisions, which could have a material adverse effect on the Company's business, operating results and financial condition. DEPENDENCE ON CLIENT/SERVER ENVIRONMENT. The Company's development tools, application products and consulting and education services help organizations build, customize or deploy solutions that operate in a client/server computing environment. The Company cannot assure you that these markets will continue to grow or that the Company will be able to respond effectively to the evolving requirements of these markets. If the market for client/server application products and services does not grow in the future, or grows more slowly than the Company anticipates, or if the Company fails to respond effectively to evolving requirements of this market, the Company's business, financial condition and results of operations will be materially and adversely affected. HIGHLY COMPETITIVE INDUSTRY. The business information systems industry in general and the ERP computer software industry in particular are very competitive and subject to rapid technological change. Many of the Company's current and potential competitors have (1) longer operating histories, (2) significantly greater financial, technical and marketing resources, (3) greater name recognition, (4) larger technical staffs, and (5) a larger installed customer base than the Company has. A number of companies offer products that are similar to the Company's products and that target the same markets. In addition, any of these competitors may be able to respond more quickly to new or emerging technologies and changes in customer requirements, and to devote greater resources to the development, promotion and sale of their products than the Company. Furthermore, because there are relatively low barriers to entry in the software industry, the Company expects to experience additional competition from other established and emerging companies. Such competitors may develop products and services that compete with those offered by the Company or may acquire companies, businesses and product lines that compete with the Company. It also is possible that competitors may create alliances and rapidly acquire significant market share. Accordingly, the Company cannot assure you that the Company's current or potential competitors will not develop or acquire products or services comparable or superior to those that the Company develops, combine or merge to form significant competitors, or adapt more quickly than will the Company to new technologies, evolving industry trends and changing customer requirements. Competition could cause price reductions, reduced margins or loss of market share for the Company's products and services, any of which could materially and adversely affect the Company's business, operating results and financial condition. The Company cannot assure you that the Company will be able to compete successfully against current and future competitors or that the competitive pressures that the Company may face will not materially adversely affect its business, operating results and financial condition. DEPENDENCE ON MANUFACTURING INDUSTRY. The Company's business depends, in large part, upon the capital expenditures of mid-range discrete manufacturers, which in part depend upon the demand for such manufacturers' products. A recession or other adverse event that affects the manufacturing industry in the United States or in other markets that the Company serves could affect such demand. Decreased demand could force manufacturers in the Company's target markets to curtail or postpone capital expenditures on business information systems. Any such change in the amount or timing of capital expenditures in its target markets could materially and adversely affect the Company's business and operations. RISKS ASSOCIATED WITH YEAR 2000 COMPLIANCE. Significant uncertainty exists in the software industry concerning the potential effects of the "Year 2000" issue. The "Year 2000" issue exists because the date codes used in some computer software and hardware systems use only two digits so that many computer systems cannot distinguish between the years 1900 and 2000. The Company believes that the current versions of its products are Year 2000 compliant. However, despite its belief and although the Company has conducted or is conducting its own quality testing procedures, we cannot assure you that the Company's software products contain all necessary date code changes or do not contain errors related to the Year 2000. If any of the Company's software products fail to perform, including failures due to the onset of calendar year 2000 there would likely be a material adverse effect on the Company's business, financial condition and results of operations. The Company is currently evaluating its information technology infrastructure for Year 2000 compliance, including reviewing what actions are required to make all software systems used internally Year 2000 compliant as well as actions necessary to make the Company less vulnerable to Year 2000 compliance problems associated with third parties' systems. See "Management's Discussion and Analysis of Financial Condition and Results of 20 21 Operations Year 2000 Issues." We cannot assure you that such measures will alleviate all Year 2000 problems which could have a material adverse effect on the Company's business, operating results and financial condition. The Company believes that as the Year 2000 approaches, potential purchasers of ERP software systems may curtail or delay their purchases of ERP software until the Year 2000 passes and the potential purchaser is comfortable that its business operations are not negatively impacted by the Year 2000. As a result, it is possible that in the remainder of calendar 1999 and into the first six months of 2000 the Company may experience a reduction in revenues from ERP software sales and such reduction may materially and adversely affect the Company's financial results. DEPENDENCE ON RETENTION AND INTEGRATION OF KEY PERSONNEL. The Company's success depends on the continued service of key management personnel, including L. George Klaus, William Pieser, Ken Lally, Stuart W. Clifton and Norman R. Farquhar. Messrs. Klaus, Pieser, Lally and Farquhar are not subject to an employment agreement for a specified time duration with the Company. In addition, the competition to attract, retain and motivate qualified technical, sales and operations personnel is intense. Following the Merger, a significant number of AVANTE sales representatives and certain sales management employees have resigned from the Company. The Company expects that these departures will materially adversely affect the Company's revenues from the AVANTE product in the near term as well as the Company's financial results. The Company is actively seeking qualified replacements. The Company has at times experienced, and continues to experience, difficulty in recruiting qualified personnel, particularly in software development and customer support. There is no assurance that the Company can replace the departed employees in a timely manner or retain its key personnel or attract other qualified personnel in the future. The failure to attract or retain such persons could have a material adverse effect on the Company's business, operating results, cash flows and financial condition. RISKS ASSOCIATED WITH INTERNATIONAL SALES. The following table compares international sales of the Company to the total revenues of the Company for the periods indicated. International Sales as a Percentage of Total Revenues ----------------------------------------------------- Fiscal Year ended June 30, 1996 31% Fiscal Year ended June 30, 1997 29% Fiscal Year ended June 30, 1998 28% Six Months ended December 31, 1998 27% The Company believes that any future growth of the Company will be dependent, in part, upon its ability to increase revenues in international markets. The Company will continue to expand its operations outside of the United States. The expansion will require significant management attention and financial resources and could adversely affect the Company's margins. To increase international sales in subsequent periods, the Company must establish additional foreign operations, hire additional personnel and recruit international resellers. The Company cannot assure you that the Company will maintain or expand its international sales. If the revenues that the Company generates from foreign activities are inadequate to offset the expense of maintaining foreign offices and activities, the Company's business, financial condition and results of operations could be materially and adversely affected. International sales are subject to inherent risks, including: o Unexpected changes in regulatory requirements o Tariffs and other barriers o Unfavorable intellectual property laws o Fluctuating exchange rates o Difficulties in staffing and managing foreign sales and support operations o Longer accounts receivable payment cycles o Difficulties in collecting payment o Potentially adverse tax consequences, including repatriation of earnings Lack of acceptance of localized products in foreign countries o Burdens of complying with a wide variety of foreign laws o Effects of high local wage scales and other expenses 21 22 Any one of these factors could materially and adversely affect the Company's future international sales and, consequently, the Company's business, operating results, cash flows and financial condition. In the recent past, the financial markets in Asia, Latin America and other world regions have experienced significant turmoil. Such turmoil in the Asian financial markets, in particular, may negatively affect the Company's sales to that region. A portion of the Company's revenues from sales to foreign entities, including foreign governments, has been in the form of foreign currencies. The Company does not have any hedging or similar foreign currency contracts. Fluctuations in the value of foreign currencies could adversely impact the profitability of the Company's foreign operations. RISKS ASSOCIATED WITH INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS PROTECTION. The Company relies on a combination of copyright, trademark and trade secret laws, employee and third-party nondisclosure agreements and other industry standard methods for protecting ownership of its proprietary software. However, the Company cannot assure you that in spite of these precautions, an unauthorized third party will not copy or reverse-engineer certain portions of the Company's products or obtain and use information that the Company regards as proprietary. The Company cannot assure you that the mechanisms that the Company uses to protect its intellectual property will be adequate or that the Company's competitors will not independently develop products that are substantially equivalent or superior to the Company's products. The Company may from time to time receive notices from third parties claiming that its products infringe upon third-party intellectual property rights. The Company expects that as the number of software products in the country increases and the functionality of these products further overlaps, the number of these types of claims will increase. Any such claim, with or without merit, could result in costly litigation and require the Company to enter into royalty or licensing arrangements. The terms of such royalty or license arrangements, if required, may not be acceptable to the Company. In addition, in certain cases, the Company provides the source code for its application software under licenses to its customers to enable them to customize the software to meet particular requirements. Although the source code licenses contain confidentiality and nondisclosure provisions, we cannot assure you that such customers will take adequate precautions to protect the Company's source code or other confidential information. SHARES ELIGIBLE FOR FUTURE SALE. As of March 15, 1999, the Company had 40,425,546 shares of common stock outstanding. There are presently 95,305 shares of Series C Preferred Stock outstanding. Each share of Series C Preferred Stock is convertible into ten shares of common stock, as adjusted for stock dividends, combinations or splits at the option of the holder. As a result, the Series C Preferred Stock is convertible into 953,050 shares of common stock. The holders of the Series C Preferred Stock have the right to cause the Company to register the sale of the shares of common stock issuable upon conversion of the Series C Preferred Stock. Also, the Company has a substantial number of options or shares issuable to employees under employee option or stock grant plans. As a result, a substantial number of shares of common stock will be eligible for sale in the public market at various times in the future. Sales of substantial amounts of such shares could adversely affect the market price of the Company's Common Stock. POSSIBLE VOLATILITY OF STOCK PRICES. The market prices for securities of technology companies, including the Company, have been volatile. Quarter to quarter variations in operating results, changes in earnings estimates by analysts, announcements of technological innovations or new products by the Company or its competitors, announcements of major contract awards and other events or factors may have a significant impact on the market price of the Company's Common Stock. In addition, the securities of many technology companies have experienced extreme price and volume fluctuations, which have often been unrelated to the companies' operating performance. These conditions may adversely affect the market price of the Company's Common Stock. Because of these and other factors affecting the Company's operating results, past financial performance should not be considered an indicator of future performance, and investors should not use historical trends to anticipate results or trends in future periods. ITEM 2. PROPERTIES The Company leases approximately 150,000 square feet of office space in Irvine, California. The majority of the leases for the space expire in April 2004. The principal activities in Irvine, California are corporate headquarters, sales, marketing, development and customer support. The Company leases additional facilities and 22 23 offices, including locations in Louisville, Kentucky; Foster City, California; Oakbrook, Illinois; East Berlin, Connecticut; Portland, Oregon; Hasbrouck Heights, New Jersey; Dallas, Texas; Houston, Texas; Atlanta, Georgia; Plymouth, Michigan; Tampa, Florida; St. Louis, Missouri; Melbourne and Sydney, Australia; Mississauga, Canada; London, England; Dublin, Ireland; Auckland, New Zealand; Hong Kong and Singapore. DataWorks, a subsidiary of the Company, leases approximately 102,000 square feet of office space in San Diego, California for sales, marketing, customer support and product development under leases expiring in July 1999. DataWorks has entered into leases for approximately 180,000 square feet of office space in San Diego, California, which begin in August 1999 and extend through August 2009. The Company is presently evaluating this new space and may sublet a portion of the space to a third party. DataWorks also leases approximately 30,000 square feet of office space in Minneapolis, Minnesota related to the VISTA and VANTAGE product offerings under leases expiring in April 2002. DataWorks also has approximately 36,000 square feet of office space under lease in other locations in the United States with expiration dates ranging from 1999 through 2004, as well as approximately 43,000 square feet of office space in the United Kingdom and Europe in support of regional activities with expiration dates ranging from 1999 to 2004. The Company believes that its present facilities are sufficient to accommodate its near-term facilities requirements. The Company expects to consolidate sales and other offices in cities or geographic areas where there is overlap with DataWorks offices. ITEM 3. LEGAL PROCEEDINGS DataWorks, and certain of its officers, directors and former officers have been named as defendants in two lawsuits alleging violations of the federal securities laws. The complaints were filed in the United States District Court for the Southern District of California. They purport to be brought on behalf of classes of stockholders who purchased DataWorks stock, and allege that between October 30, 1997 and July 16, 1998, the defendants issued misleading statements concerning DataWorks' acquisition of the Interactive Group, Inc. and sales of certain products. The complaints do not specify the dollar amount of damages alleged or relief requested. The Company is also named in the lawsuit as a defendant as a successor of DataWorks. The Company is subject to miscellaneous legal proceedings in the normal course of business. The Company is currently defending these proceedings and claims, and anticipates that it will be able to resolve these matters in a manner that will not have a material adverse effect on the Company's financial position, results of operations or cash flows. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS. On October 28, 1998, the Company held its annual meeting of stockholders and at such meeting, L. George Klaus, W. Douglas Hajjar, Donald R. Dixon, Arthur J. Marks and L. John Doerr were elected as directors of the Company by the Common and Series C stockholders. Each share of Series C Preferred Stock is convertible into ten (10) shares of Common Stock and is entitled to vote with the holders of Common Stock on an as-converted basis on all matters presented for stockholder approval. The other item considered at the annual meeting of stockholders included the ratification of the appointment of Ernst & Young LLP as the Company's independent auditors for the fiscal year ending June 30, 1999. The ratification of the appointment of Ernst & Young LLP was approved by a majority of the stockholders present and entitled to vote at the meeting. Specifically, the total outstanding shares available for voting at the meeting was 28,371,689 shares of Common Stock of which 23,946,475 were present or represented at the meeting, and 953,050 shares of Series C Preferred Stock (on an as-converted basis) were present or represented at the meeting. 23,919,173 shares of Common Stock and 953,050 shares of Series C Preferred Stock voted in favor of the ratification of Ernst & Young LLP, 11,775 shares of Common Stock voted against, and 15,527 shares of Common Stock abstained from voting. With respect to the election of directors, 23,946,475 shares of Common Stock were available for voting at the meeting and 953,050 shares of Series C Preferred Stock (on an as-converted basis) were available for voting at the meeting. All shares of Series C Preferred Stock voted in favor of all of the nominated directors. The following nominees received the votes by common stockholders as noted below: 23 24
NAME VOTES FOR WITHHELD AUTHORITY ---- --------- ------------------ L. George Klaus 23,900,047 46,878 Arthur J. Marks 23,900,047 46,767 W. Douglas Hajjar 23,900,047 46,667 L. John Doerr 23,900,047 49,913 Donald R. Dixon 23,900,047 46,767
On December 23, 1998, the Company held a special meeting of stockholders and at such meeting the issuance of shares of Common Stock in connection with the DataWorks Merger was approved. The total outstanding shares available for voting at the meeting was 28,408,217 shares of Common Stock and 953,050 shares of Series C Preferred Stock (on an as-converted basis) of which 19,589,546 shares of Common Stock and all 953,050 shares of Series C Preferred Stock were present or represented at the meeting. 19,440,613 shares of Common Stock and 953,050 shares of Series C Preferred Stock voted in favor of the proposal, 66,166 shares of Common Stock voted against the proposal and 82,767 shares of Common Stock abstained from voting. PART II ITEM 5. MARKET VALUE OF THE REGISTRANT'S COMMON STOCK The Company's Common Stock is traded on the over-the-counter market (The Nasdaq National Market System) under the symbol PSQL. The following table sets forth, for the periods indicated, the range of high and low closing sale prices for the Company's Common Stock.
Fiscal Year ended June 30, 1997: High Low ------------------------------- ------ ------ 1st Quarter $11.125 $ 6.250 2nd Quarter 13.000 10.625 3rd Quarter 13.375 8.688 4th Quarter 11.000 7.000
Fiscal Year ended June 30, 1998: High Low -------------------------------- -------- -------- 1st Quarter $12.9375 $10.3750 2nd Quarter 11.7500 7.7500 3rd Quarter 24.0000 10.2500 4th Quarter 24.3750 17.5000
Six Months ended December 31, 1998: High Low ----------------------------------- -------- ------- Quarter ended September 30, 1998 $27.0000 $8.0000 Quarter ended December 31, 1998 12.8125 5.7500
There were approximately 1,600 security holders of record as of March 15, 1999. The Company has not paid dividends to date and intends to retain any earnings for use in the business for the foreseeable future. 24 25 ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA SELECTED CONSOLIDATED FINANCIAL DATA The statement of operations data set forth below with respect to the years ended June 30, 1996, 1997 and 1998, the six months ended December 31, 1998, and the balance sheet data at June 30, 1997 and 1998 and December 31, 1998 are derived from, and should be read in conjunction with, the audited Consolidated Financial Statements included elsewhere herein. The statement of operations data set forth below with respect to the years ended June 30, 1994 and 1995, and the balance sheet data at June 30, 1994, 1995, and 1996 are derived from audited financial statements not included in this Form 10-K. The unaudited statement of operations data set forth below with respect to the six months ended December 31, 1997 is derived from the Company's books and records and contain all adjustments consisting only of normal adjustments necessary for a fair presentation of the Company's financial position.
Year Ended June 30 Six Months Ended December 31 ------------------------------------------------------------------- ----------------------- 1994 1995 1996 1997 1998 1997 1998 --------- --------- --------- --------- ------- --------- -------- (in thousands, except per share amounts) ---------------------------------------------------------------------------------------------- (unaudited) STATEMENT OF OEPRATIONS DATA: Revenues: License fees $ 31,136 $ 37,925 $ 23,234 $ 32,123 $57,577 $ 21,747 $ 33,047 Services 16,854 20,250 21,817 27,420 40,406 17,973 30,428 Business forms sales 6,720 - - - - - - Royalty income - 692 619 1,208 505 195 241 --------- --------- --------- --------- ------- --------- -------- Total revenues 54,710 58,867 45,670 60,751 98,488 39,915 63,716 Cost of revenues 25,635 20,205 21,083 21,980 29,961 13,247 20,539 --------- --------- --------- --------- ------- --------- -------- Gross profit 29,075 38,662 24,587 38,771 68,527 26,668 43,177 --------- --------- --------- --------- ------- --------- -------- Operating expenses: Sales and marketing 25,961 21,007 21,334 26,024 38,177 14,999 23,030 Software development 22,059 17,914 14,490 10,398 11,724 6,075 6,213 General and administrative 10,350 5,569 16,270 6,030 7,145 3,406 3,897 Charge for restructuring 6,741 - 5,568 1,600 - - 5,950 Charge for purchased research and development 3,570 - - - - - 6,384 --------- --------- --------- --------- ------- --------- -------- Total operating expenses 68,681 44,490 57,662 44,052 57,046 24,480 45,474 --------- --------- --------- --------- ------- --------- -------- Income (loss) from operations (39,606) (5,828) (33,075) (5,281) 11,481 2,188 (2,297) Charge for settlement of class action litigation and related expenses (20,000) - - - - - - Other income (expense), net 341(1) 103(2) (132)(3) 873(1) 1,866(1) 1,139(4) 421 (1) --------- --------- --------- --------- ------- --------- -------- Income (loss) before provision for income taxes (59,265) (5,725) (33,207) (4,408) 13,347 3,327 (1,876) Provision for income taxes 308 20 - - - - 180 --------- --------- --------- --------- ------- --------- -------- Net income (loss) $ (59,573) $ (5,745) $ (33,207) $ (4,408) $13,347 $ 3,327 $ (2,056) ========= ========= ========= ========= ------- --------- -------- Diluted net income (loss) per share $ (3.78) $ (0.35) $ (1.83) $ (0.20) $ 0.45 $ 0.11 $ (0.07) --------- --------- --------- --------- ------- --------- -------- Weighted average shares 15,770 16,196 18,128 21,758 29,716 29,147 28,373 ========= ========= ========= ========= ======= ======== ========
- ------------------- (1) Amount represents principally interest income. (2) Amount represents principally interest income net of interest expense associated with the Company's $15,000,000 debenture. (3) Amount represents principally interest expense associated with the Company's $15,000,000 debenture net of interest income. (4) Amount represents principally interest income and an increase of approximately $298,000 in the fair value of an investment. 25 26
June 30, December 31, ------------------------------------------------------------------- ----------- 1994 1995 1996 1997 1998 1998 --------- --------- --------- --------- -------- --------- BALANCE SHEET DATA: Working capital (deficit) $ (9,996) $ 24,443 $ 3,438 $ 3,808 22,319 $ 59,106 Total assets 48,479 66,691 41,640 43,156 67,988 212,277 Current portion of long-term obligations 6,000 - - - - - long-term obligations Long-term obligations, less current portion 10,158 16,035 288 277 35 1,116 Stockholders' equity 1,299 30,212 16,199 15,587 34,910 117,995
26 27 ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS OVERVIEW 1997 ACQUISITIONS On June 30, 1997, the Company acquired Clientele Software, Inc. ("Clientele"), a privately held provider of help desk automation software based in Portland, Oregon. As consideration for the acquisition, the Company issued 887,636 shares of common stock in exchange for all of the outstanding shares of common stock of Clientele. The exchange ratio used with respect to the conversion of the Clientele shares was 0.19761 (i.e., each share of Clientele common stock converted into 0.19761 shares of the Company's common stock). In addition, the Company assumed all of the outstanding employee stock options of Clientele, which translated into stock options to acquire 212,356 shares of common stock of the Company. Ten percent of the shares issued in the merger, or 88,764 shares, were placed into an escrow for a period of one year to cover indemnification claims in connection with the transaction. The transaction was accounted for as a pooling of interests, and accordingly, the accompanying consolidated financial statements have been restated to incorporate the financial position, results of operations and cash flows of Clientele for all periods presented. On November 14, 1997, the Company acquired FocusSoft, Inc. ("FocusSoft"), a privately held provider of enterprise resource planning and distribution software based in Louisville, Kentucky. As consideration for the acquisition, the Company issued 2,474,794 shares of common stock in exchange for all of the outstanding shares of common stock of FocusSoft. The exchange ratio used with respect to the conversion of the FocusSoft shares was 24.747937 (i.e., each share of FocusSoft common stock converted into 24.747937 shares of the Company's common stock.) In addition, the Company assumed all of the employee stock options of FocusSoft, which translated into stock options to acquire 225,206 shares of common stock of the Company. Ten percent of the shares issued in the merger, or 247,479 shares, were placed into an escrow for a period of one year to cover indemnification claims in connection with the transaction. The transaction was accounted for as a pooling of interests, and accordingly, the accompanying consolidated financial statements have been restated to incorporate the financial position, results of operations and cash flows of FocusSoft for all periods presented. 1998 ACQUISITION On December 31, 1998, at 11:59 p.m., California time, Merger Sub, which was a wholly owned subsidiary of the Company, was merged with and into DataWorks. At the Effective Time: (i) Merger Sub ceased to exist; (ii) DataWorks, as the surviving corporation in the Merger, became a wholly owned subsidiary of the Company and (iii) subject to the provisions of the Acquisition Agreement relating to the payment of fractional shares, each share of Common Stock of DataWorks, $0.001 par value per share existing immediately prior to the Effective Time was converted into the right to receive 0.794 shares (the "Exchange Ratio") of the Company's Common Stock, $0.001 par value per share. The Company issued 11,739,459 shares in the Merger to former stockholders of DataWorks. Because the Merger was effective on December 31, 1998, the financial results of the Company contained in this Transition Report represent the Company's consolidated amounts including the consolidated balance sheet of DataWorks but do not include the results of operations of DataWorks. See Note 2 to the Consolidated Financial Statements and Item 1, "Business - Merger with DataWorks." RESTRUCTURINGS During the second quarter of fiscal 1996, the Company restructured its business operations. The restructuring included the cessation of the marketing of the version of the Company's PLATINUM SQL ENTERPRISE product that runs on the Sybase/UNIX server platform as well as the elimination of the Company's direct sales force for its PLATINUM SQL ENTERPRISE product line. The restructuring resulted in a charge of $3,300,000. Such amount included approximately $1,200,000 for severance and other extended benefit costs related to the reduction in force, $1,200,000 for lease termination and buyout costs related to the closure of facilities and $872,000 in asset write-downs and other costs. In February 1996, the Company had another reduction in force of approximately 40 people. This reduction in force resulted in an additional restructuring charge of $2,300,000 which was recorded in the third quarter of fiscal 1996. Such amount included approximately $300,000 for severance and other extended benefit costs related to the reduction in force, $625,000 in lease termination and buyout costs related to the closure of facilities and $1,400,000 in asset write-downs and other costs. 27 28 In June 1997, the Company underwent another restructuring as a result of the Clientele acquisition. This resulted in an additional restructuring charge of $1,600,000, which was recorded in the fourth quarter of fiscal 1997. Such amount included approximately $1,100,000 for excess facility costs, as well as approximately $500,000 for severance and other extended benefit costs. In December 1998, the Company underwent another restructuring as a result of the DataWorks Merger. This resulted in a restructuring charge of $5,950,000, which was recorded in the three months ended December 31, 1998. Such amount included approximately $5,500,000 for severance and other extended benefit costs related to a reduction in force of approximately 25 people, and approximately $450,000 in lease terminations and buyout costs related to the closure of duplicate facilities. During the six months ended December 31, 1998, the Company paid approximately $727,000 for severance, lease termination and other costs relating to the 1996 and 1997 restructurings. At December 31, 1998, the Company has a $7,957,000 cash obligation related to severance and lease terminations and other costs of the 1996, 1997 and 1998 restructurings which the Company expects to fund from existing cash reserves and working capital during fiscal year 1999. 28 29 RESULTS OF OPERATIONS The following table sets forth certain statement of operations data as a percentage of total revenues for the periods indicated:
Six Months Ended Year Ended June 30 December 31 ------------------------------------------------------- ------------------- 1994 1995 1996 1997 1998 1997 1998 --------- -------- --------- --------- --------- ------- --------- (in percents) ----------------------------------------------------------------------------- (unaudited) Revenues: License fees................... 57 64 51 53 58 54 52 Services....................... 31 35 48 45 41 45 48 Business forms sales........... 12 - - - - - - Royalty income................. - 1 1 2 1 1 - --------- -------- --------- --------- --------- ------- --------- Total revenues................ 100 100 100 100 100 100 100 Cost of revenues................. 47 34 46 36 30 33 32 --------- -------- --------- --------- --------- ------- --------- Gross profit.................. 53 66 54 64 70 67 68 --------- -------- --------- --------- --------- ------- --------- Operating expenses: Sales and marketing............ 47 36 47 43 39 38 36 Software development........... 40 31 32 17 12 15 11 General and administrative..... 19 9 36 10 7 9 6 Charge for restructuring 12 - 12 3 - - 9 Charge for in-process research and development.............. 7 - - - - - 10 --------- -------- --------- --------- --------- ------- --------- Total operating expenses...... 125 76 127 73 58 62 72 --------- -------- --------- --------- --------- ------- --------- Income (loss) from operations. (72) (10) (73) (9) 12 5 (4) Charge for settlement of class action litigation and related expenses (37) - - - - - - Other income (expense), net...... - - - 2 2 3 1 --------- -------- --------- --------- --------- ------- --------- Income (loss) before provision for income taxes............. (109) (10) (73) (7) 14 8 (3) Provision for income taxes....... - - - - - - - ========= ======== ========= ========= ========= ======= ========= Net income (loss)............. (109) (10) (73) (7) 14 8 (3) ========= ======== ========= ========= ========= ======= =========
29 30 COMPARISON OF THE SIX MONTHS ENDED DECEMBER 31, 1997 TO THE SIX MONTHS ENDED DECEMBER 31, 1998 REVENUES Revenues were approximately $39,915,000 and $63,716,000 in the six months ended December 31, 1997 and 1998, respectively, representing an increase of approximately 60 percent in the six months ended December 31, 1998. License fee revenues were approximately $21,747,000 and $33,047,000 for the six months ended December 31, 1997 and 1998, respectively, representing an increase of 52 percent in the six months ended December 31, 1998. License fee revenues for the Company's PLATINUM ERA product, formerly PLATINUM SQL (including CLIENTELE) were approximately $18,076,000 and $28,720,000 for the six months ended December 31, 1997 and 1998, respectively, representing an increase of 59 percent in the six months ended December 31, 1998. The increase in revenues was primarily attributable to an overall increase in personnel in the direct sales force for the PLATINUM ERA product; the Company's broader product offering following the FocusSoft acquisition; the release of the CLIENTELE 3.0 product in February 1998, which included sales force functionality; the release of FocusSoft's version 5.0 product (now named PLATINUM ERA Advanced Distribution and Manufacturing) with enhanced distribution and manufacturing functionality; additional lead generation, telesales and marketing efforts and an increased effort to sell PLATINUM ERA internationally. License fee revenues for the Company's PLATINUM FOR WINDOWS and PLATINUM FOR DOS products were approximately $3,671,000 and $4,327,000 for the six months ended December 31, 1997 and 1998, respectively, representing an increase of 18 percent in the six months ended December 31, 1998. The increase in revenues was primarily due to increased domestic demand created by the commercial availability of a complete suite of the PLATINUM FOR WINDOWS modules. International license fee revenues increased from $5,924,000 in the six months ended December 31, 1997 to $10,530,000 in the six months ended December 31, 1998. The increase was due to an increased effort to sell PLATINUM ERA internationally. Services revenues, which include consulting, education, training, and maintenance and support services, increased 69 percent from $17,973,000 in the six months ended December 31, 1997 to $30,428,000 in the six months ended December 31, 1998. The increase was primarily attributable to the increase in installations. Also, the increase was attributable to an overall rise in the installed base of end-users of PLATINUM ERA and the increased effort to renew customers on maintenance contracts. The number of days sales outstanding was 76 days at June 30, 1998 as compared to 164 days at December 31, 1998. The increase in days sales outstanding was primarily attributable to the effect of purchase accounting treatment of the DataWorks Merger which provides for the inclusion of the accounts receivable of DataWorks, but not the revenue for DataWorks in the Company's financial statements. Excluding the receivables acquired from DataWorks, the number of days sales outstanding was 89 days at December 31, 1998. This increase was primarily due to giving longer payment terms on receivables due to competitive pressures. GROSS PROFIT Gross profit increased 62 percent from $26,668,000 in the six months ended December 31, 1997 to $43,177,000 in the six months ended December 31, 1998 and increased as a percentage of revenues from 67 percent to 68 percent, respectively. The increase in gross profit was due to higher license revenues which have higher margins than services revenues. OPERATING EXPENSES Total operating expenses increased from $24,480,000 for the six months ended December 31, 1997 to $33,140,000 for the six months ended December 31, 1998, excluding the charge for the 1998 restructuring and the charge for in-process research and development costs associated with the DataWorks Merger. Total operating expenses as a percentage of revenues were 62 percent and 53 percent for the six months ended December 31, 1997 and December 31, 1998, respectively, excluding the charge for the 1998 restructuring and the charge for in-process research and development costs associated with the DataWorks merger. Included in operating expenses for the six months ended December 31, 1997 were approximately $800,000 in charges for the FocusSoft acquisition. The increase in dollar amount was primarily attributable to an overall increase in direct sales personnel as well as additional commissions for the sales personnel as their quota was exceeded because additional commissions were paid as if the six months ended December 31, 1998 was the last six months of the commission plan year. 30 31 Sales and marketing costs were approximately $14,999,000 and $23,030,000 in the six months ended December 31, 1997 and 1998, respectively, or approximately 38 percent and 36 percent of total revenues. The increase in the dollar amount of sales and marketing expenses was primarily due to the increase in the direct sales force for the PLATINUM ERA product. Software development costs were approximately $6,326,000 and $9,125,000 in the six months ended December 31, 1997 and 1998, respectively, or approximately 16 percent and 14 percent of total revenues, before capitalization of software costs of approximately $251,000 and $2,912,000. Upon the release for general availability of the Company's software products, the Company amortizes capitalized software development costs over a 5-year period. Such amortization is included in cost of revenues. The percentage of capitalized software development costs to total software development costs increased from 4 percent in the six months ended December 31, 1997 to 32 percent in the six months ended December 31, 1998. During the six months ended December 31, 1997, costs were capitalized for the creation of translation into different languages for the PLATINUM SQL and PLATINUM FOR WINDOWS products and for the Job Cost module for PLATINUM FOR WINDOWS and Job Shop and Engineer to Order for the PLATINUM SQL Advanced Distribution and Advanced Manufacturing applications. During the six months ended December 31, 1998, costs were capitalized for the creation of translations into different languages and localizations for the PLATINUM SQL product, the serial lot tracking feature for the PLATINUM FOR WINDOWS product, Year 2000 enhancements for the PLATINUM FOR DOS product and certain applications of the PLATINUM ERA 7.0 release. General and administrative expenses were approximately $3,406,000 and $3,897,000 in the six months ended December 31, 1997 and 1998, respectively, or approximately 9 percent and 6 percent of total revenues. The increase in dollar amount was primarily attributable to management bonuses and employee profit sharing accrued during the six months ended December 31, 1998 due to the Company's improved operating results as compared to no bonuses or profit sharing accrued during the six months ended December 31, 1997 due to historical operating losses. OTHER INCOME Other income was approximately $1,139,000 and $421,000 in the six months ended December 31, 1997 and 1998, respectively. Other income for the six months ended December 31, 1998 primarily represented interest earned on the Company's cash and cash equivalents and short-term investments net of foreign currency losses realized. Other income for the six months ended December 31, 1997 primarily represented interest earned on the Company's cash and cash equivalents and short-term investments as well as an increase of $298,000 in the fair value of an investment. PROVISION FOR INCOME TAXES The Company recorded no provision for income taxes in the six months ended December 31, 1997 and a provision of $180,000 during the six months ended December 31, 1998. The effective tax rate during these periods was 0 percent for both periods. During 1998, the effective tax rate was lower than the statutory federal income tax rate of 35 percent, primarily due to the inability to record benefits from current net operating losses. During 1997, the Company's tax expense was offset by the reduction of valuation allowances recorded in prior years as a result of the Company's profitability in the current year. As of December 31, 1998, the Company had provided a valuation allowance of approximately $51,334,000 because realization of the Company's net deferred tax asset is not more likely than not due to the historical losses incurred by the Company prior to fiscal 1998, and the uncertainty as to profits in the future. Any realization of the Company's net deferred tax asset will reduce the Company's effective tax rate in future periods. COMPARISON OF THE YEAR ENDED JUNE 30, 1997 TO THE YEAR ENDED JUNE 30, 1998 REVENUES Revenues were approximately $60,751,000 and $98,488,000 in fiscal years 1997 and 1998, respectively, representing an increase of approximately 62 percent in fiscal 1998. License fee revenues were approximately $32,123,000 and $57,577,000 for the years ended June 30, 1997 and 1998, respectively, representing an increase of 79 percent in fiscal 1998. License fee revenues for the Company's PLATINUM SQL product (including CLIENTELE) were approximately $24,687,000 and $48,825,000 for the years ended June 30, 1997 and 1998, respectively, representing an increase of 98 percent in fiscal 1998. The increase 31 32 in revenues was primarily attributable to an overall increase in personnel in the direct sales force for the PLATINUM SQL product; the Company's broader product offering following the FocusSoft acquisition; the release of the CLIENTELE 3.0 product in February 1998, which included sales force functionality; the release of FocusSoft's version 5.0 product (now named PLATINUM SQL Advanced Distribution and Manufacturing) with enhanced distribution and manufacturing functionality; additional lead generation, telesales and marketing efforts and an increased effort to sell PLATINUM SQL internationally. License fee revenues for the Company's PLATINUM FOR WINDOWS and PLATINUM FOR DOS products were approximately $7,436,000 and $8,752,000 for the years ended June 30, 1997 and 1998, respectively, representing an increase of 18 percent in fiscal 1998. The increase in revenues was primarily due to increased domestic demand created by the commercial availability of a complete suite of the PLATINUM FOR WINDOWS modules. International license fee revenues increased from $8,969,000 in fiscal 1997 to $18,713,000 in fiscal 1998. The increase was due to an increased effort to sell PLATINUM SQL internationally. Services revenues, which include consulting, education, training, and maintenance and support services, increased 47 percent from $27,420,000 in fiscal year 1997 to $40,406,000 in fiscal year 1998. The increase was primarily attributable to the increase in installations. Also, the increase was attributable to an overall rise in the installed base of end-users of PLATINUM SQL and the increased effort to renew customers on maintenance contracts. The number of days sales outstanding was 62 days at June 30, 1997 as compared to 76 at June 30, 1998. The increase in days sales outstanding was primarily attributable to increased international revenues, which generally have longer payment terms than domestic revenues. GROSS PROFIT Gross profit increased 77 percent from $38,771,000 in fiscal year 1997 to $68,527,000 in fiscal year 1998 and increased as a percentage of revenues from 64 percent to 70 percent, respectively. The increases in gross profit and the gross profit percentage were due to higher license revenues as a percentage of total revenues, which have higher margins than services revenues. OPERATING EXPENSES Total operating expenses increased from $42,452,000 for fiscal year 1997 to $57,046,000 for fiscal year 1998, excluding the one time charge for the fiscal 1997 restructuring. Total operating expenses as a percentage of revenues were 70 percent and 58 percent for the years ended June 30, 1997 and 1998, respectively, excluding the one time charge for the fiscal 1997 restructuring. Included in operating expenses for the fiscal year ended June 30, 1998 were approximately $800,000 in one time charges for the FocusSoft acquisition. The increase in dollar amount was primarily attributable to an overall increase in direct sales personnel as well as additional commissions for the sales personnel as their quota was exceeded. Sales and marketing costs were approximately $26,024,000 and $38,177,000 in fiscal years 1997 and 1998, respectively, or approximately 43 percent and 39 percent of total revenues. The increase in the dollar amount of sales and marketing expenses was primarily due to the increase in the direct sales force for the PLATINUM SQL product. Software development costs were approximately $11,855,000 and $12,971,000 in fiscal years 1997 and 1998, respectively, or approximately 20 percent and 13 percent of total revenues, before capitalization of software costs of approximately $1,457,000 and $1,247,000. Upon the release for general availability of the Company's software products, the Company amortizes capitalized software development costs over a 5-year period. Such amortization is included in cost of revenues. The percentage of capitalized software development costs to total software development costs decreased from 12 percent in fiscal year 1997 to 10 percent in fiscal year 1998. During fiscal year 1997, costs were capitalized for PLATINUM SQL multi-currency functionality, as well as certain PLATINUM FOR WINDOWS development costs for the Inventory and Order Entry modules and development of PLATINUM SQL Customization Workbench. During fiscal year 1998, costs were capitalized for the creation of translations into different languages and localizations for the PLATINUM SQL product, the Job Cost module for the PLATINUM FOR WINDOWS product, Year 2000 enhancements for the PLATINUM FOR DOS product, Job Shop and Engineer to Order for the PLATINUM SQL Advanced Distribution and Manufacturing applications, CLIENTELE 3.0 sales force automation functionality and certain applications of the PLATINUM SQL 4.2 release. 32 33 General and administrative expenses were approximately $6,030,000 and $7,145,000 in fiscal years 1997 and 1998, respectively, or approximately 10 percent and 7 percent of total revenues. The increase was primarily attributable to management bonuses and employee profit sharing earned in fiscal 1998 due to the Company's improved operating results. OTHER INCOME Other income was approximately $873,000 and $1,866,000 in fiscal years 1997 and 1998, respectively. Other income primarily represented interest earned on the Company's cash and cash equivalents and short-term investments as well as foreign currency gains realized in fiscal 1998. PROVISION FOR INCOME TAXES The Company recorded no provision for income taxes in fiscal years 1997 and 1998. The effective tax rate during these periods was 0 percent for both years. During 1997, the effective tax rate was lower than the statutory federal income tax rate of 35 percent, primarily due to the inability to record benefits from current net operating losses. During 1998, the Company's tax expense was offset by the reduction of valuation allowances recorded in prior years as a result of the Company's profitability in the current year. As of June 30, 1998, the Company had provided a valuation allowance of approximately $46,495,000 because realization of the Company's net deferred tax asset is not more likely than not due to the historical losses incurred by the Company prior to fiscal 1998, and the uncertainty as to profits in the future. COMPARISON OF THE YEAR ENDED JUNE 30, 1996 TO THE YEAR ENDED JUNE 30, 1997 REVENUES Revenues were approximately $45,670,000 and $60,751,000 in fiscal years 1996 and 1997, respectively, representing an increase of approximately 33 percent in fiscal 1997. License fee revenues were $23,234,000 and $32,123,000 for the years ended June 30, 1996 and 1997, respectively, representing an increase of approximately 38 percent in fiscal 1997. License fee revenues for the Company's PLATINUM SQL product (including CLIENTELE) were approximately $17,159,000 and $24,687,000 for the years ended June 30, 1996 and 1997, respectively representing an increase of 44 percent in fiscal 1997. The increase in revenues is principally due to the reinstatement of the direct sales force. License fee revenues for the Company's PLATINUM FOR WINDOWS and PLATINUM FOR DOS products were approximately $6,075,000 and $7,436,000 for the years ended June 30, 1996 and 1997, respectively, representing an increase of 22 percent in fiscal 1997. The increase in revenues was the result of the availability of a complete Windows based product suite for the entire fiscal 1997 period. International license fee revenues increased from $7,100,000 in fiscal 1996 to $8,969,000 in fiscal 1997. The increase was due to increases in international license fee revenues for the Company's PLATINUM SQL and PLATINUM FOR WINDOWS and PLATINUM FOR DOS products. Services revenues increased 26 percent from $21,817,000 in fiscal 1996 to $27,420,000 in fiscal 1997. The increase was primarily attributable to the involvement of the consulting and professional services division in providing consulting and implementation services to customers. Also, the increase was attributable to an overall rise in the installed base of end-users of PLATINUM SQL and the increased effort to renew customers on maintenance contracts. The number of days sales outstanding was 94 days at June 30, 1996 as compared to 62 at June 30, 1997. The improvement in days sales outstanding was primarily attributable to increased efforts in collecting accounts receivable as well as payment terms on direct PLATINUM SQL licenses of 50% of net license fee and maintenance due upon license execution and the remaining 50% of license fees generally due in 30 days. GROSS PROFIT Gross profit increased 58 percent from $24,587,000 in fiscal year 1996 to $38,771,000 in fiscal year 1997 and increased as a percentage of revenues from 54 percent to 64 percent, respectively. The increases in gross profit and the gross profit percentage were due to higher license revenues as a percentage of total revenues, which have higher margins than services revenues. 33 34 OPERATING EXPENSES Total operating expenses, excluding restructuring charges, decreased from $52,094,000 for fiscal year 1996 to $42,452,000 for fiscal year 1997. The decrease was due to the provision of additional reserves in fiscal 1996 for the following items: accounts receivable arising from PLATINUM SQL sales to VARs; relocation costs associated with the hiring of new senior management executives; write-downs of property and equipment and notes receivable from divestitures. Such decrease was also achieved by cost savings from the termination of approximately 100 employees during the second quarter of fiscal 1996 and 40 employees during the third quarter of fiscal 1996. Such decrease was offset in part by the investment made in the PLATINUM SQL direct sales force. Total operating expenses as a percentage of revenues, excluding restructuring charges, were 115 percent and 70 percent for the years ended June 30, 1996 and 1997, respectively. Sales and marketing expenses were approximately $21,334,000 and $26,024,000 in fiscal years 1996 and 1997, respectively, or approximately 47 percent and 43 percent of total revenues. The increase in the dollar amount of sales and marketing expenses was primarily due to the re-establishment of a direct sales force for the PLATINUM SQL product. Software development costs were approximately $14,861,000 and $11,855,000 in fiscal years 1996 and 1997, respectively, or approximately 33 percent and 20 percent of total revenues, before capitalization of software costs of approximately $371,000 and $1,457,000. The decrease in the amount of software development expenses was due to personnel reductions as a result of the restructurings. Upon the release for general availability of the Company's software products, the Company amortizes capitalized software development costs over a 5-year period. Such amortization is included in cost of revenues. The percentage of capitalized software development costs to total software development costs increased from 3 percent in fiscal year 1996 to 12 percent in fiscal year 1997 due principally to the capitalization of PLATINUM SQL multi-currency development costs as well as certain PLATINUM FOR WINDOWS development costs for the Inventory and Order Entry modules. General and administrative expenses were approximately $16,270,000 and $6,030,000 in fiscal years 1996 and 1997, respectively, or approximately 36 percent and 10 percent of total revenues. The decrease was primarily the result of the provision of the following additional reserves: approximately $1,636,000 for accounts receivable arising from PLATINUM SQL sales to VARs; approximately $1,292,000 relating to accounts receivable from PLATINUM SQL ENTERPRISE customers; relocation costs of approximately $1,590,000 associated with the hiring of new senior management executives; write-down of approximately $500,000 of property and equipment and approximately $2,941,000 provided for notes receivable from divestitures in fiscal 1996. OTHER INCOME (EXPENSE) Other income (expense) was approximately ($132,000) and $873,000 in fiscal years 1996 and 1997. Other income (expense) primarily represented interest earned on the Company's cash and cash equivalents and short-term investments net of interest expense of $1,236,000 in fiscal 1996 and $0 in fiscal 1997 on the Company's $15,000,000 debenture, which debenture was repaid in June 1996, when it was converted into common stock of the Company. PROVISION FOR INCOME TAXES The Company recorded no provision for income taxes in fiscal years 1996 and 1997. The effective tax rate during these periods was 0 percent for both years. The effective tax rates were lower than the statutory federal income tax rate of 34 percent, primarily due to the inability to record benefits from current net operating losses. As of June 30, 1997, the Company had provided a valuation allowance of approximately $41,580,000 because realization of the Company's net deferred tax asset is not more likely than not due to the historical losses incurred by the Company, and the uncertainty as to profits in the future. INFLATION AND FOREIGN CURRENCY EXCHANGE Inflation has not had a significant impact on the Company's operating results to date. The Company's foreign revenues are substantially denominated in the country's respective local currency. The Company's results of operations of its international subsidiaries are impacted by foreign currency fluctuations. Significant fluctuation in currency values could have an adverse effect on the Company's consolidated net revenues, gross margin and profitability. 34 35 LIQUIDITY AND CAPITAL RESOURCES As of December 31, 1998, the Company's principal sources of liquidity included cash, cash equivalents and short-term investments of approximately $52,686,000. These resources increased by approximately $29,907,000 over the June 30, 1998 balance primarily due to the assets acquired in the DataWorks Merger and cash generated by operations offset, in part, by capital expenditures. The Company had working capital of $59,106,000 at December 31, 1998. The Company is dependent upon its ability to generate cash flow from license fees and other operating revenues, as well as the collection of its outstanding accounts receivable to maintain current liquidity levels. However, the Company believes that its current cash reserves, together with existing sources of liquidity, will satisfy the Company's projected short-term liquidity and other cash requirements for the next 12 months. YEAR 2000 ISSUES OVERVIEW. The Year 2000 Problem generally involves whether a computer system, software product or business system, when working alone or in conjunction with other software or hardware systems, accepts input of, stores, manipulates and outputs dates in the Year 2000 or thereafter without error or interruption (the "Year 2000 Problem"). The Year 2000 Problem potentially impacts the Company in the following principal areas: (i) The Company's software products, including products manufactured by third parties that are resold by the Company; (ii) the Company's internal technology systems; (iii) the Company's non-internal technology systems which contain embedded computer devices; and (iv) the business systems of the Company's distributors, resellers and customers. COMPANY PRODUCTS. As a leading supplier of client/server enterprise resource planning software for the middle market, the Company is aware of the Year 2000 Problem and is committed to offering software products that are Year 2000 compliant. The Company presently believes that the current releases of its PLATINUM SQL, PLATINUM ERA and PLATINUM FOR WINDOWS software products are Year 2000 compliant. The Company's PLATINUM FOR DOS product, which was initially released in the mid-1980s was not Year 2000 compliant until the release of version 4.6 in August 1998. The version 4.6 release is being offered for free to all existing PLATINUM FOR DOS users on maintenance. The Company believes that the current releases of the products acquired in the DataWorks Merger are Year 2000 compliant, although formal testing of such products is presently in progress and is expected to be completed by June 30, 1999. There can be no assurance that the Company's products do not contain undetected errors associated with year 2000 date functions that may result in material costs to the Company. See "Certain Considerations - Risks Associated with Year 2000 Compliance." As part of its PLATINUM SQL, PLATINUM ERA and PLATINUM FOR WINDOWS product lines the Company resells certain products that are manufactured by third parties, both on an OEM and reseller basis. In addition, such products, in certain cases, include third party-technology. The Company has received assurances from such third parties regarding the Year 2000 compliance of the third party products. The Company is in the process of formally querying the suppliers of third products that are resold with or embedded in the DataWorks software products as to their progress in identifying and addressing Year 2000 Problems. It is possible that such formal inquiries will uncover unanticipated Year 2000 issues. INTERNAL TECHNOLOGY SYSTEMS. The Company's internal technology systems include telecommunications (phones, voicemail and network connections), computer hardware (personal computers and network servers) and software. The Company has assessed the Year 2000 Problem with respect to telecommunications with the exception of its Louisville, Kentucky and New York offices. The assessment with respect to these offices is scheduled to be completed prior to July 31, 1999. The Company has identified fixes that need to be made to its telecommunications systems to make them Year 2000 compliant. These fixes relate primarily to upgrades to voice mail and phone systems at some of the Company's international offices and sales offices. It is anticipated that these fixes will be implemented by September 1, 1999 and fully tested by September 30, 1999. In addition, the Company has assessed approximately 90 percent of its hardware used for Year 2000 compliance and has not uncovered any material non compliance. The assessment of the remaining 10 percent is scheduled to be completed by July 31, 1999. The Company's principal software systems include accounting, customer support, order entry and desktop productivity (e-mail/word processing, spreadsheets, etc.). The Company uses Microsoft Corporation products for desktop productivity which have been certified by Microsoft as Year 2000 compliant with minor issues. The Company, for the most part, uses its own products for its accounting, order entry and customer support software needs. Certain former DataWorks offices use third party accounting software and the Company is in the process of converting to its own accounting software for internal use. 35 36 NONINTERNAL TECHNOLOGY SYSTEMS. Noninternal technology systems include security systems, elevators and other systems which contain an embedded computer or computer like device which is used to control the operation of plant, machinery and equipment. Most of embedded systems on which the Company relies in its daily operations are owned and managed by the lessors of the facilities in which the Company's operations are located. The Company has not assessed completely whether there are any Year 2000 Problems with its noninternal technology systems and anticipates that the full assessment will be completed by July 31, 1999. To date, the Company has incurred approximately $100,000 in Year 2000 remediation costs, which was funded from working capital. The Company expects to incur an additional $225,000 by September 1, 1999 to upgrade voice mail and phone systems at some of the Company's international offices and sales offices. Also, the Company is in the process of engaging a third party consulting firm to assist with Year 2000 readiness efforts and anticipates incurring additional fees for the consulting services. The Company is in the process of completing a contingency plan for its internal and non-internal technology systems which it expects to complete by September 1, 1999. THIRD PARTY RELATIONSHIPS. The Company has over 350 resellers of its software products, including distributors and VARs. No one of the resellers is responsible for a material amount of the Company's license fees. The Company, from time to time, queries its resellers as to their progress in identifying and addressing Year 2000 Problems. Although the Company feels confident that its internal technology will be Year 2000 ready, the Company does recognize that it is vulnerable, as are most organizations, to the inability of significant suppliers and utility organizations to become Year 2000 ready. For example, the failure or interruption of electrical services would disrupt the Company's ability to communicate with its customers, suppliers, business partners and others and would adversely affect the Company's operations. FORWARD LOOKING STATEMENTS. The Company has made forward looking statements regarding its Year 2000 readiness and anticipated dates for completion of assessment, testing, and implementation of fixes. The Company has described many of the risks associated with the these forward looking statements. See "Certain Considerations - Risks Associated with Year 2000 Compliance." The Company wishes to caution the reader that there are many factors that could cause its actual results to differ materially from those stated in the forward looking statements. This is especially the case because many aspects of Year 2000 readiness are outside the control of the Company, such as the performance of third party suppliers. All of these factors make it impossible for the Company to ensure that it will be able to resolve all Year 2000 problems in a timely manner to avoid materially adversely affecting its operations or business. ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK INTEREST RATE RISK. The Company's exposure to market risk for changes in interest rates relates primarily to the Company's investment portfolio. The Company does not use derivative financial instruments in its investment portfolio. The Company places its investments with high credit quality issuers and, by policy, limits the amount of credit exposure to any one issuer. The Company is adverse to principal loss and ensures the safety and preservation of its invested funds by limiting default risk, market risk, and reinvestment risk. The Company mitigates default risk by investing in only the safest and highest credit quality securities and by constantly positioning its portfolio to respond appropriately to a significant reduction in a credit rating of any investment issuer or guarantor. The portfolio includes only corporate debt securities and municipal bonds. FOREIGN CURRENCY RISK. The Company transacts business in various foreign currencies, primarily in certain European countries, Canada and Australia. The Company does not have any hedging or similar foreign currency contracts. Although international revenues approximated 27% of the Company's total revenues for the six months ended December 31, 1998, less than 20% of the revenues are denominated in foreign currencies. Significant currency fluctuations could adversely impact foreign revenues; however the Company does not foresee or expect any significant changes in foreign currency exposure in the near future. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA The financial statements and supplementary data of the Company required by this Item are set forth at the pages indicated at Item 14(a)(1). 36 37 ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE There were no changes or disagreements with respect to the Company's independent accountants during the six months ended December 31, 1998. PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT The information required hereunder is incorporated by reference from the sections of the Company's Proxy Statement filed in connection with its April 29, 1999 Annual Meeting of Stockholders entitled "Nominees" and "Other Executive Officers." ITEM 11. EXECUTIVE COMPENSATION The information required hereunder is incorporated by reference from the sections of the Company's Proxy Statement filed in connection with its April 29, 1999 Annual Meeting of Stockholders entitled "Executive Compensation." The information required hereunder is incorporated by reference from the sections of the Company's Proxy Statement filed in connection with its April 29, 1999 Annual Meeting of Stockholders entitled "Principal Stockholders." ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS The information required hereunder is incorporated by reference from the sections of the Company's Proxy Statement filed in connection with its April 29, 1999 Annual Meeting of Stockholders entitled "Executive Compensation" and "Compensation Committee Interlocks and Insider Participation." PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (a)(1) Financial Statements Index to Financial Statements
Page ---- Report of Independent Auditors.............................................. 44 Consolidated Balance Sheets as of June 30, 1997, June 30, 1998 and December 31, 1998....................................................... 45 Consolidated Statements of Operations for the years ended June 30, 1996, 1997 and 1998 and the six months ended December 31, 1997 (unaudited) and 1998........................................................ 46 Consolidated Statements of Stockholders' Equity for the years ended June 30, 1996, 1997, 1998 and the six months ended December 31, 1998........ 47 Consolidated Statements of Cash Flows for the years ended June 30, 1996, 1997 and 1998 and the six months ended December 31, 1997 (unaudited) and 1998.................................................................... 48 Notes to Consolidated Financial Statements.................................. 49
(2) Financial Statement Schedules Index to Financial Statement Schedules Report of Independent Auditors.............................................. 63 Schedule II - Valuation and Qualifying Accounts............................. 64
All other schedules are omitted because they are not required or the required information is included in the consolidated financial statements or notes thereto. 37 38 (3) Exhibits Index to Exhibits
Exhibit No. Description Location ----------- ----------- -------- 2.1 Agreement and Plan of Reorganization and Merger dated as of June 27, 1997 among the Company, CSI Acquisition Corp., Clientele Software, Inc., Dale E. Yocum, Pamela Yocum, William L. Mulert (Schedules not included pursuant to Rule 601(b)(2) of Reg. S-K) (9) 2.2 Agreement and Plan of Reorganization dated as of November 4, 1997 by and among the Company, FS Acquisition Corp., FocusSoft, Inc., John Lococo, Michael Zimmerman and Joseph Brumleve. (Schedules not included pursuant to Rule 601(b)(2) of Reg. S-K) (11) 2.3 Agreement and Plan of Reorganization by and among the Company, Zoo Acquisition Corp. and DataWorks Corporation, dated as of October 13, 1998, as amended as of October 30, 1998. (Schedules not included pursuant to Rule 601(b)(2) of Reg. S-K) (14) 3.1 Second Restated Certificate of Incorporation of the Company. (1) 3.2 Certificate of Amendment to Second Restated Certificate of Incorporation of the Company (10) 3.3 Amended and Restated Bylaws of the Company, as currently in effect. (8) 3.6 Specimen Certificate of Common Stock. (2) 4.1 Certificate of Designation of Rights, Preferences and Privileges of Series A Junior Participating Preferred Stock (4) 4.2 Certificate of Designation of Preferences of Series B Preferred Stock (5) 4.3 Certificate of Designation of Preferences of Series C Preferred Stock (6) 10.1 Platinum Software Corporation Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan - 1990 (the "1990 Plan"). (2) 10.2 Form of Incentive Option Agreement pertaining to the 1990 Plan. (2) 10.3 Form of Nonqualified Stock Option Agreement pertaining to the 1990 Plan. (2) 10.4 Form of Restricted Share Agreement pertaining to the 1990 Plan. (2) 10.5 Form of Indemnification Agreement for Officers and Directors of the Company. (2) 10.6 Platinum Software Corporation Employee Stock Purchase Plan, as amended. (2) 10.10 1993 Nonqualified Stock Option Plan (3) 10.11 Form of Nonqualified Stock Option Agreement pertaining to the 1993 (3) Nonqualified Stock Option Plan. 10.12 1994 Incentive Stock Option, Non-qualified Stock Option and Restricted (5) Stock Purchase Plan. 10.13 Form of Non-qualified Stock Option Agreement pertaining to the 1994 Plan. (5) 10.28 Stock Purchase Agreement dated September 22, 1994 between the Company and the Series B Preferred Stock Investors (6) 10.29 Registration Rights Agreement dated September 22, 1994 between the Company and the Series B Preferred Stock Investors (6) 10.30 Amendment to Stock Purchase Agreement dated May 26, 1995 between the Company and the Series C Preferred Stock Investors (6) 10.31 Amendment to Registration Rights Agreement dated May 26, 1995 between the Company and the Series C Preferred Stock Investors (6) 10.33 Employment Offer letter with L. George Klaus dated February 7, 1996. (7) 10.34 Restricted Stock Purchase Agreement between the Company and L. George Klaus dated as of February 7, 1996. (7) 10.35 Employment Offer letter with William L. Pieser dated February 7, 1996. (7) 10.36 Restricted Stock Purchase Agreement between the Company and William L. Pieser dated as of February 7, 1996. (7) 10.42 Employment Offer letter with Ken Lally dated as of April 1, 1996. (7) 10.43 Restricted Stock Purchase Agreement between the Company and Ken Lally dated as of April 10, 1996. (7) 10.44 1996 Nonqualified Stock Plan and Form of Nonqualified Option Agreement. (12) 10.45 Platinum Software Corporation Clientele Incentive Stock Plan. (12) 10.47 1997 Nonqualified Stock Option Plan. (13) 10.48 Amended and Restated 1998 Nonqualified Stock Option Plan. (15) 10.49 Software Distribution License Agreement with FRx Software Corporation, as amended to date. (15)
38 39 Index to Exhibits (Continued)
Exhibit No. Description Location ----------- ----------- -------- 10.50 Executive Employment Agreement, effective as of October 13, 1998 between the Company and Stuart W. Clifton. (16) 10.51 Noncompetition Agreement, effective as of October 13, 1998 between the Company and Stuart W. Clifton (16) 10.52 DataWorks 1995 Equity Incentive Plan, as amended ("Equity Plan") (17) 10.53 Forms of Incentive Stock Option and Nonstatutory Stock Option under the Equity Plan (17) 10.54 DataWorks 1995 Non-Employee Directors Stock Option Plan, as amended (18) 10.55 Sublease Agreement dated November 22, 1991 between DataWorks and Titan Corporation ("Sublease") (17) 10.56 First Amendment to Sublease dated December 1, 1994 (17) 10.57 Lease Agreement dated January 16, 1997 between DataWorks and Whiop Real Estate Limited Partnership (19) 10.58 1995 Stock Option Plan, as amended of Interactive (the "Interactive Option Plan") (20) 10.59 Form of Incentive Stock Option Plan under the Interactive Option Plan (21) 10.60 Warrant to purchase common stock by DataWorks to Cruttenden Roth Incorporated (21) 10.61 Lease between James S. Hekiman and William Finard, as Trustees of the Burlington Woods Office Trust No. 11 under a declaration of trust dated September 10, 1980 and Interactive dated September 23, 1991 (21) 10.62 1997 Nonstatutory Stock Plan of Interactive (22) 10.63 Single Tenant lease between ADI Research Partners, LP and DataWorks, dated as of August 14, 1998 21.1 Subsidiaries of the Company. 23.1 Consent of Ernst & Young LLP. 24.1 Power of Attorney (included on the signature page of this Annual Report on Form 10-K). 27.1 Financial Data Schedule
39 40 Executive Compensation Plans and Arrangements
Exhibit No. Description Location ---------- ----------- -------- 10.1 1990 Plan (2) 10.2 Form of Incentive Option Agreement pertaining to the 1990 Plan. (2) 10.3 Form of Nonqualified Stock Option Agreement pertaining to the 1990 Plan. (2) 10.4 Form of Restricted Share Agreement pertaining to the 1990 Plan. (2) 10.10 1993 Nonqualified Stock Option Plan (3) 10.11 Form of Nonqualified Stock Option Agreement pertaining to the 1993 Nonqualified Stock Option Plan. (3) 10.12 1994 Incentive Stock Option, Non-qualified Stock Option and Restricted Stock Purchase Plan. (5) 10.13 Form of Non-qualified Stock Option Agreement pertaining to the 1994 Plan. (5) 10.33 Employment Offer letter with L. George Klaus dated February 7, 1996. (7) 10.34 Restricted Stock Purchase Agreement between the Company and L. George Klaus dated as of February 7, 1996. (7) 10.35 Employment Offer letter with William L. Pieser dated February 7, 1996. (7) 10.36 Restricted Stock Purchase Agreement between the Company and William L. Pieser dated as of February 7, 1996. (7) 10.42 Employment offer letter with Ken Lally dated as of April 1, 1996 (7) 10.43 Restricted Stock Purchase Agreement between the Company and Ken Lally dated as of April 10, 1996 (7) 10.44 1996 Nonqualified Stock Plan and Form of Nonqualified Option Agreement. (12) 10.45 Platinum Software Corporation Clientele Incentive Stock Plan. (12) 10.47 1997 Nonqualified Stock Option Plan. (13) 10.48 Amended and Restated 1998 Nonqualified Stock Option Plan. (15) 10.50 Executive Employment Agreement, effective as of October 13, 1998 between the Company and Stuart W. Clifton. (16) 10.51 Noncompetition Agreement, effective as of October 13, 1998 between the Company and Stuart W. Clifton (16) 10.52 DataWorks 1995 Equity Incentive Plan, as amended ("Equity Plan") (17) 10.53 Forms of Incentive Stock Option and Nonstatutory Stock Option under the (17) Equity Plan 10.54 DataWorks 1995 Non-Employee Directors Stock Option Plan, as amended (18) 10.58 1995 Stock Option Plan, as amended of Interactive (the "Interactive Option Plan") (20) 10.59 Form of Incentive Stock Option Plan under the Interactive Option Plan (21) 10.62 1997 Nonstatutory Stock Plan of Interactive (22)
- -------------- (1) Incorporated by reference to the referenced exhibit number to the Company's Registration Statement on Form S-1, Reg. No. 33-57294. (2) Incorporated by reference to the referenced exhibit number to the Company's Registration Statement on Form S-1, Reg. No. 33-51566. (3) Incorporated by reference to the referenced exhibit to the Company's Annual Report on Form 10-K for the year ended June 30, 1993. (4) Incorporated by reference to the referenced exhibit to the Company's Registration Statement on Form 8-A, dated April 14, 1994. (5) Incorporated by reference to the referenced exhibit to the Company's Annual Report on Form 10-K for the year ended June 30, 1994. (6) Incorporated by reference to the referenced exhibit to the Company's Annual Report on Form 10-K for the year ended June 30, 1995. 40 41 (7) Incorporated by reference to the referenced exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1996. (8) Incorporated by reference to the referenced exhibit to the Company's Annual Report on Form 10-K for the year ended June 30, 1996. (9) Incorporated by reference to the referenced exhibit to the Company's Current Report on Form 8-K dated June 30, 1997. (10) Incorporated by reference to the referenced exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended December 31, 1996. (11) Incorporated by reference to the referenced exhibit to the Company's Current Report on Form 8-K dated November 14, 1997. (12) Incorporated by reference to the referenced exhibit to the Company's Annual Report on Form 10-K for the year ended June 30, 1997. (13) Incorporated by reference to Exhibit 4.1 to the Company's Registration Statement on Form S-8, Reg. No. 333-41321. (14) Incorporated by reference to the referenced exhibit to the Company's Schedule 13D filed with the SEC on October 23, 1998, as amended. (15) Incorporated by reference to the referenced exhibit to the Company's Annual Report on Form 10-K for the year ended June 30, 1998. (16) Incorporated by reference to Company's Registration Statement on Form S-4, Reg. No. 333-67577. (17) Incorporated by reference to the DataWorks Registration Statement on Form S B-2 (No. 33-97022LA) or amendments thereto. (18) Incorporated by reference to the referenced exhibit to the DataWorks Annual Report on Form 10-K for its fiscal year ended December 31, 1997. (19) Incorporated by reference to the referenced exhibit to the DataWorks Annual Report on Form 10-K for its fiscal year ended December 31, 1996. (20) Incorporated by reference to the referenced exhibit to the Interactive Group, Inc. Annual Report on Form 10-K for its fiscal year ended December 31, 1996. (21) Incorporated by reference to the Interactive Group, Inc. Registration Statement on Form S-1 (Reg. No. 33-90816). (22) Incorporated by reference to the referenced exhibit to the Interactive Group, Inc. Registration Statement on Form S-8 (Reg. No. 333-30259). 41 42 (b) Reports on Form 8-K. The Company filed a current report on Form 8-K dated October 27, 1998 to report under Item 5, "Other Events", the Company's results for the quarter ended September 30, 1998. In addition, the Company filed a current report on Form 8-K, dated December 30, 1998 to report under Item 2, "Acquisition or Disposition of Assets", the Merger with DataWorks Corporation and to also report under Item 8, "Change in Fiscal Year" the change in the Company's fiscal year end from June 30 to December 31. The Company also filed an amendment to the December 30, 1998 Current Report on Form 8-K/A to include the financial statements required by Item 7 in connection with the DataWorks Merger. The following trademarks may be mentioned in the foregoing Annual Report on Form 10-K: PLATINUM, CLIENTELE, and SEQUEL TO PLATINUM. CLIENTELE is a registered trademark of the Company. PLATINUM and SEQUEL TO PLATINUM are registered trademarks of PLATINUM TECHNOLOGY International, INC. All other product names are trademarks or registered trademarks of their respective companies. 42 43 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) 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, in the City of Irvine, State of California, on March 26, 1999. PLATINUM SOFTWARE CORPORATION By: /s/ L. GEORGE KLAUS ---------------------------------- L. George Klaus President, Chief Executive Officer and Chairman of the Board POWER OF ATTORNEY We, the undersigned directors and officers of Platinum Software Corporation, do hereby constitute and appoint L. George Klaus our true and lawful attorney and agent, with full power of substitution to do any and all acts and things in our name and behalf in our capacities as directors and officers and to execute any and all instruments for us and in our names in the capacities indicated below, which said attorney and agent may deem necessary or advisable to enable said corporation to comply with the Securities Exchange Act of 1934, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with this Transition Report on Form 10-K, including specifically but without limitation, power and authority to sign for us or any of us in our names in the capacities indicated below, any and all amendments (including post-effective amendments) hereto; and we do hereby ratify and confirm all that said attorney and agent, shall do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ L. GEORGE KLAUS Chairman of the Board, March 26, 1999 - ------------------------------ Chief Executive Officer L. George Klaus and President (Principal Executive Officer) /s/ PAUL G. MAZZARELLA Vice President, Corporate March 26, 1999 - ------------------------------ Controller Paul G. Mazzarella (Principal Accounting Officer) /s/ NORMAN R. FARQUHAR Executive Vice President, Chief March 26, 1999 - ----------------------------- Financial Officer Norman R. Farquhar (Principal Financial Officer) /s/ W. DOUGLAS HAJJAR Director March 26, 1999 - ----------------------------- W. Douglas Hajjar /s/ L. JOHN DOERR Director March 26, 1999 - ----------------------------- L. John Doerr /s/ ARTHUR J. MARKS Director March 26, 1999 - ----------------------------- Arthur J. Marks /s/ DONALD R. DIXON Director March 26, 1999 - ----------------------------- Donald R. Dixon Director - ----------------------------- Stuart W. Clifton
43 44 REPORT OF INDEPENDENT AUDITORS The Board of Directors and Stockholders Platinum Software Corporation We have audited the accompanying consolidated balance sheets of Platinum Software Corporation as of June 30, 1997 and 1998, and December 31, 1998 and the related consolidated statements of operations, stockholders' equity and cash flows for each of the three years in the period ended June 30, 1998 and the six months ended December 31, 1998. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of Platinum Software Corporation as of June 30, 1997 and 1998 and December 31, 1998, and the consolidated results of its operations and its cash flows for each of the three years in the period ended June 30, 1998, and the six months ended December 31, 1998, in conformity with generally accepted accounting principles. /s/ ERNST & YOUNG LLP Orange County, California February 2, 1999 44 45 PLATINUM SOFTWARE CORPORATION CONSOLIDATED BALANCE SHEETS (in thousands, except share amounts)
Jun. 30, Jun. 30, Dec. 31, 1997 1998 1998 --------- --------- ------ -- ASSETS Current assets: Cash and cash equivalents $ 6,724 $ 11,251 $ 22,175 Short-term investments 9,542 11,528 30,511 Accounts receivable, net of allowance for doubtful accounts of $6,263, $5,159 and $11,795 at June 30, 1997, June 30, 1998 and December 31, 1998, respectively 11,976 28,929 84,789 Inventories 481 803 971 Prepaid expenses and other 2,377 2,851 13,826 --------- --------- --------- Total current assets 31,100 55,362 152,272 Property and equipment, net 8,587 8,688 13,388 Software development costs, net of accumulated amortization of $3,495, $4,551 and $4,976 at June 30, 1997, June 30, 1998 and December 31, 1998, respectively 2,660 2,851 5,572 Intangible assets, net of accumulated amortization of $4,200, $4,272 and $4,300 at June 30, 1997, June 30, 1998 and December 31, 1998, respectively 278 206 32,056 Other assets 531 881 8,989 --------- --------- --------- $ 43,156 $ 67,988 $ 212,277 ========= ========= ========= LIABILITIES AND STOCKHOLDERS' EQUITY Current liabilities: Accounts payable $ 4,752 $ 3,571 $ 16,490 Accrued restructuring costs 2,609 1,280 7,957 Accrued severance and merger costs -- -- 7,133 Accrued compensation and payroll taxes 3,131 7,244 15,932 Other accrued expenses 5,162 4,922 8,809 Deferred revenue 11,638 16,026 36,845 --------- --------- --------- Total current liabilities 27,292 33,043 93,166 --------- --------- --------- Long-term liabilities 277 35 1,116 --------- --------- --------- Commitments and Contingencies (Note 3) Stockholders' equity: Preferred stock, $.001 par value, 5,000,000 shares authorized: Series A preferred stock, none issued and outstanding at June 30, 1997, June 30, 1998 and December 31, 1998 -- -- -- Series B preferred stock, 2,435,000, 1,439,750 and 0 shares issued and outstanding at June 30, 1997, June 30, 1998 and December 31, 1998, respectively 13,466 7,962 -- Series C preferred stock, 213,803, 162,020 and 95,305 shares issued and outstanding at June 30, 1997, June 30, 1998 and December 31, 1998, respectively 16,826 12,751 7,501 Common stock, $.001 par value: 60,000,000 shares authorized, 22,584,610, 26,142,715 and 40,196,832 shares issued outstanding at June 30, 1997, June 30, 1998 and December 31, 1998, respectively 22 26 40 Additional paid-in capital 116,745 134,550 232,042 Less: Notes receivable from officers for issuance of restricted stock (11,563) (11,563) (11,563) Accumulated other comprehensive income (loss) 393 (1,092) (245) Accumulated deficit (120,302) (107,724) (109,780) --------- --------- --------- Total stockholders' equity 15,587 34,910 117,995 --------- --------- --------- $ 43,156 $ 67,988 $ 212,277 ========= ========= =========
The accompanying notes are an integral part of these consolidated financial statements. 45 46 PLATINUM SOFTWARE CORPORATION CONSOLIDATED STATEMENTS OF OPERATIONS (in thousands, except per share amounts)
Six Months Ended Year Ended June 30, December 31, --------------------------------------- ----------------------- 1996 1997 1998 1997 1998 -------- -------- --------- -------- -------- (unaudited) Revenues: License fees $ 23,234 $ 32,123 $ 57,577 $ 21,747 $ 33,047 Services 21,817 27,420 40,406 17,973 30,428 Royalty income 619 1,208 505 195 241 -------- -------- -------- -------- -------- Total revenues 45,670 60,751 98,488 39,915 63,716 -------- -------- -------- -------- -------- Cost of revenues: Cost of license fees 4,117 5,159 5,990 2,486 4,808 Cost of services 16,966 16,821 23,971 10,761 15,731 -------- -------- -------- -------- -------- Total cost of revenues 21,083 21,980 29,961 13,247 20,539 -------- -------- -------- -------- -------- Gross profit 24,587 38,771 68,527 26,668 43,177 -------- -------- -------- -------- -------- Operating expenses: Sales and marketing 21,334 26,024 38,177 14,999 23,030 Software development 14,490 10,398 11,724 6,075 6,213 General and administrative 16,270 6,030 7,145 3,406 3,897 Charge for restructuring 5,568 1,600 -- -- 5,950 Charge for in-process research and development -- -- -- -- 6,384 -------- -------- -------- -------- -------- Total operating expenses 57,662 44,052 57,046 24,480 45,474 -------- -------- -------- -------- -------- Income (loss) from operations (33,075) (5,281) 11,481 2,188 (2,297) -------- -------- -------- -------- -------- Other income (expense): Interest income 949 835 940 726 474 Interest expense (1,344) (71) (39) (30) (90) Other 263 109 965 443 37 -------- -------- -------- -------- -------- Total other income (expense) (132) 873 1,866 1,139 421 -------- -------- -------- -------- -------- Income (loss) before provision for income taxes (33,207) (4,408) 13,347 3,327 (1,876) Provision for income taxes -- -- -- -- 180 -------- -------- -------- -------- -------- Net income (loss) $(33,207) $ (4,408) $ 13,347 $ 3,327 $ (2,056) ======== ======== ======== ======== ======== Basic net income (loss) per share $ (1.83) $ (0.20) $ 0.56 $ 0.15 $ (0.07) ======== ======== ======== ======== ======== Shares used in computing basic net income (loss) per share 18,128 21,758 23,956 22,727 28,373 ======== ======== ======== ======== ======== Diluted net income (loss) per share $ (1.83) $ (0.20) $ 0.45 $ 0.11 (0.07) ======== ======== ======== ======== ======== Shares used in computing diluted net income (loss) per share 18,128 21,758 29,716 29,147 28,373 ======== ======== ======== ======== ========
The accompanying notes are an integral part of these consolidated financial statements. 46 47 PLATINUM SOFTWARE CORPORATION CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (IN THOUSANDS, EXCEPT SHARE AMOUNTS)
Series A Series B Series C Preferred Stock Preferred Stock Preferred Stock Common Stock --------------- ------------------ ------------------ --------------------- Shares Amount Shares Amount Shares Amount Shares Amount ------ ------ ------ ------ ------ ------ ------ ------ Balance, June 30, 1995 -- -- 2,490,000 $13,770 $231,598 $ 18,226 16,538,685 $ 16 Net loss -- -- -- -- -- -- -- -- Foreign currency translation adjustments -- -- -- -- -- -- -- -- Issuance of restricted stock -- -- -- -- -- -- 2,950,000 3 Conversion of debenture -- -- -- -- -- -- 1,528,988 2 Exercise of warrants -- -- -- -- -- -- 60,750 -- Employee stock purchases -- -- -- -- -- -- 47,711 -- Exercise of stock options -- -- -- -- -- -- 345,738 -- ------- ------- ------------ ------- -------- -------- ---------- ------- Balance, June 30, 1996 -- -- 2,490,000 13,770 231,598 18,226 21,471,872 21 Net loss -- -- -- -- -- -- -- -- Foreign currency translation adjustments -- -- -- -- -- -- -- -- Subchapter S distributions to FocusSoft shareholders -- -- -- -- -- -- -- -- Conversion of Series B Preferred Stock -- -- (55,000) (304) -- -- 55,000 -- Conversion of Series C Preferred Stock -- -- -- -- (17,795) (1,400) 177,950 -- Issuance of Common Stock -- -- -- -- -- -- 6,600 -- Exercise of warrants -- -- -- -- -- -- 55,000 -- Employee stock purchases -- -- -- -- -- -- 41,540 -- Exercise of stock options -- -- -- -- -- -- 776,648 1 ------- ------- ------------ ------- -------- -------- ---------- ------- Balance, June 30, 1997 -- -- 2,435,000 13,466 213,803 16,826 22,584,610 22 Net income -- -- -- -- -- -- -- -- Foreign currency translation adjustments -- -- -- -- -- -- -- -- Subchapter S distributions to FocusSoft shareholders -- -- -- -- -- -- -- -- Conversion of Series B Preferred Stock -- -- (995,250) (5,504) -- -- 995,250 1 Conversion of Series C Preferred Stock -- -- -- -- (51,783) (4,075) 517,830 1 Employee stock purchases -- -- -- -- -- -- 45,968 -- Exercise of stock options -- -- -- -- -- -- 1,999,057 2 ------- ------- ------------ ------- -------- -------- ---------- ------- Balance, June 30, 1998 -- -- 1,439,750 7,962 162,020 12,751 26,142,715 26 Net loss -- -- -- -- -- -- -- -- Common stock issued in connection with the DataWorks Merger -- -- -- -- -- -- 11,739,459 12 Foreign currency translation adjustments -- -- -- -- -- -- -- -- Conversion of Series B Preferred Stock -- -- (1,439,750) (7,962) -- -- 1,439,750 1 Conversion of Series C Preferred Stock -- -- -- -- (66,715) (5,250) 667,150 1 Employee stock purchases -- -- -- -- -- -- 52,731 -- Exercise of stock options -- -- -- -- -- -- 155,027 -- ------- ------- ------------ ------- -------- -------- ---------- ------- Balance, December 31, 1998 -- -- $ -- $ 95,305 $ 7,501 40,196,832 $ 40 ======= ======= ============ ======= ======== ======== ========== =======
Accumulated Total Notes Other Stock- Additional Receivable Comprehensive holders' Comprehensive Paid-in from Income Accumulated Equity Income Capital Officers (Loss) Deficit (Deficit) (Loss) --------- --------- --------- --------- --------- -------- Balance, June 30, 1995 $ 80,424 $ -- $ 404 $ (82,628) $ 30,212 $ Net loss -- -- -- (33,207) (33,207) (33,207) Foreign currency translation adjustments -- -- (55) -- (55) (55) Issuance of restricted stock 11,560 (11,563) -- -- -- Conversion of debenture 17,046 -- -- -- 17,048 Exercise of warrants 244 -- -- -- 244 Employee stock purchases 269 -- -- -- 269 Exercise of stock options 1,688 -- -- -- 1,688 --------- --------- --------- --------- --------- -------- Balance, June 30, 1996 111,231 (11,563) 349 (115,835) 16,199 $ (33,262) ========= Net loss -- -- -- (4,408) (4,408) (4,408) Foreign currency translation adjustments -- -- 44 -- 44 44 Subchapter S distributions to FocusSoft shareholders -- -- -- (59) (59) Conversion of Series B Preferred Stock 304 -- -- -- -- Conversion of Series C Preferred Stock 1,400 -- -- -- -- Issuance of Common Stock -- -- -- -- -- Exercise of warrants 399 -- -- -- 399 Employee stock purchases 237 -- -- -- 237 Exercise of stock options 3,174 -- -- -- 3,175 --------- --------- --------- --------- --------- --------- Balance, June 30, 1997 116,745 (11,563) 393 (120,302) 15,587 $ (4,364) ========= Net income -- -- -- 13,347 13,347 13,347 Foreign currency translation adjustments -- -- (1,485) -- (1,485) (1,485) Subchapter S distributions to FocusSoft shareholders -- -- -- (769) (769) Conversion of Series B Preferred Stock 5,503 -- -- -- -- Conversion of Series C Preferred Stock 4,074 -- -- -- -- Employee stock purchases 435 -- -- -- 435 Exercise of stock options 7,793 -- -- -- 7,795 --------- --------- --------- --------- --------- --------- Balance, June 30, 1998 134,550 (11,563) (1,092) (107,724) 34,910 $ 11,862 ========= Net loss -- -- -- (2,056) (2,056) (2,056) Common stock issued in connection with the DataWorks Merger 83,194 -- -- -- 83,206 Foreign currency translation adjustments -- -- 847 -- 847 847 Conversion of Series B Preferred Stock 7,961 -- -- -- -- Conversion of Series C Preferred Stock 5,249 -- -- -- -- Employee stock purchases 490 -- -- -- 490 Exercise of stock options 598 -- -- -- 598 --------- --------- --------- --------- --------- --------- Balance, December 31, 1998 $ 232,042 $ (11,563) $ 245) $(109,780) 117,995 $ (1,209) ========= ========= ========= ========= ========= =========
The accompanying notes are an integral part of these consolidated statements. 47 48 PLATINUM SOFTWARE CORPORATION CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands)
Six Months Ended Year Ended June 30, December 31, --------------------------------- ---------------------- 1996 1997 1998 1997 1998 -------- -------- -------- --------- -------- (unaudited) CASH FLOWS FROM OPERATING ACTIVITIES: Net income (loss) $(33,207) $ (4,408) $ 13,347 $ 3,327 $ (2,056) Adjustments to reconcile net income (loss) to net cash provided by (used in) operating activities: Depreciation and amortization 6,431 5,822 5,126 2,732 3,496 Provision for doubtful accounts receivable 6,623 2,095 1,561 1,048 1,263 Provision for doubtful notes 2,940 -- -- -- -- receivable from divestitures Interest expense on debenture issued in connection with class action settlement 1,236 -- -- -- -- Charge for restructuring 5,568 1,600 -- -- 5,950 Charge for in-process research and development -- -- -- -- 6,384 Change in operating assets and liabilities, net of effects of DataWorks Merger: (Increase) decrease in accounts receivable (1,322) (6,197) (18,514) (4,543) (4,909) (Increase) decrease in inventories 212 (21) (322) (213) (168) (Increase) decrease in prepaid expenses and other 111 176 (474) (603) (5,752) (Increase) decrease in other assets 91 (62) (350) (42) (676) Increase (decrease) in accounts payable (58) 693 (1,181) (1,384) 1,065 Increase (decrease) in accrued restructuring costs (2,683) (912) (1,329) (636) (727) Increase (decrease) in other accrued expenses 1,998 400 3,873 (1,715) (29) Increase (decrease) in deferred revenue 2,587 359 4,388 (58) 3,137 -------- -------- -------- -------- -------- Cash provided by (used in) operating activities (9,473) (455) 6,125 (2,087) 6,978 -------- -------- -------- -------- -------- CASH FLOWS FROM INVESTING ACTIVITIES: Cash acquired in the DataWorks Merger -- -- -- -- 13,018 Capital expenditures (2,795) (3,035) (4,099) (1,326) (3,670) Capitalized software development costs (371) (1,457) (1,247) (251) (2,912) Purchase of short-term investments (13,192) (10,500) (13,500) (1,000) (4,086) Sale of short-term investments 8,099 11,056 11,514 2,481 -- Payments received on notes receivable from divestitures 1,016 825 -- -- -- Other (143) (285) (242) (217) (17) -------- -------- -------- -------- -------- Cash provided by (used in) investing activities (7,386) (3,396) (7,574) (313) 2,333 -------- -------- -------- -------- -------- CASH FLOWS FROM FINANCING ACTIVITIES: Subchapter S distributions to FocusSoft shareholders -- (59) (769) (769) -- Exercise of stock options 1,382 3,175 7,795 439 598 Exercise of warrants 186 399 -- -- -- Employee stock purchases 269 237 435 231 490 (Increase) decrease in restricted cash (530) 1,006 -- -- -- -------- -------- -------- -------- -------- Cash provided by (used in) financing activities 1,307 4,758 7,461 (99) 1,088 -------- -------- -------- -------- -------- EFFECT OF EXCHANGE RATES ON CASH (55) 44 (1,485) 241 525 -------- -------- -------- -------- -------- NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS (15,607) 951 4,527 (2,258) 10,924 CASH AND CASH EQUIVALENTS, beginning of period 21,380 5,773 6,724 6,724 11,251 -------- -------- -------- -------- -------- CASH AND CASH EQUIVALENTS, end of period $ 5,773 $ 6,724 $ 11,251 $ 4,466 $ 22,175 ======== ======== ======== ======== ========
The accompanying notes are an integral part of these consolidated financial statements. 48 49 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS JUNE 30, 1996, 1997, 1998 AND DECEMBER 31, 1998 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES a. Company Operations and Basis of Presentation Platinum Software Corporation, a Delaware corporation, and its subsidiaries design, develop, market and support a broad range of client/server enterprise resource planning software for use by businesses of all sizes worldwide. The consolidated financial statements include the accounts of Platinum Software Corporation and all of its subsidiaries. The consolidated balance sheets also include the net assets acquired from the DataWorks Merger. (See Note 2) The amounts disclosed for the six months ended December 31, 1997 are unaudited. All significant intercompany balances and transactions have been eliminated in consolidation. The term "Company" used herein means Platinum Software Corporation and its subsidiaries, unless otherwise indicated by the context. b. Use of Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the amounts reported in the financial statements and accompanying notes. Actual amounts could differ from these estimates. c. Short-term Investments The Company accounts for its investment securities under the provisions of Statement of Financial Accounting Standards No. 115, "Accounting for Certain Investments in Debt and Equity Securities," (SFAS No. 115). Under SFAS No. 115, management determines the appropriate classification of debt securities at the time of purchase and reevaluates such designation as of each balance sheet date. Debt securities that the Company has both the positive intent and ability to hold to maturity are carried at amortized cost. Debt securities that the Company does not have the positive intent and ability to hold to maturity are classified as available-for-sale and are carried at fair value. Realized and unrealized holding gains and losses on securities classified as available-for-sale are not material. The Company classifies its short-term investments as available-for-sale securities and carries them at their fair market value. At December 31, 1998, short-term investments consisted of debt securities and municipal bonds with interest rates ranging from 3.25 percent to 7.38 percent. At June 30, 1997 and 1998 and December 31, 1998, short-term investments are as follows:
Gross Unrealized Cost Losses Fair Value ------- ---------------- ---------- (in thousands) June 30, 1997: Corporate debt securities $ 9,664 $ 122 $ 9,542 ======= ======= ======= June 30, 1998: Corporate debt securities $11,538 $ 10 $11,528 ======= ======= ======= December 31, 1998: Corporate debt securities $15,674 $ 60 $15,614 Municipal bonds 14,907 10 14,897 ------- ------- ------- Total $30,581 $ 70 $30,511 ======= ======= =======
49 50 d. Revenue Recognition Revenue is recognized from licenses of software upon contract execution, shipment of products and when the Company has performed all of its significant contractual obligations. When a software license agreement obligates the Company to provide more than one software module, all license revenue under the agreement is deferred until all modules achieve general availability and are delivered, except when the license agreement contains a specific financial remedy in the event the unavailable module is not delivered. In such instance, revenue is deferred in the amount attributable to the specific financial remedy. The Company generally does not provide any post-contract customer service or support as part of the software license fee, however, when such services are provided for in the license agreement, an appropriate portion of the license fee is deferred and recognized over the service or support period. The Company's customers may enter into maintenance agreements with the Company and such revenue is recognized ratably over the term of the agreement. Revenue from consulting services is recognized as services are provided. In October 1997 the AICPA issued Statement of Position (SOP) 97-2, "Software Revenue Recognition" which superseded SOP 91-1. The Company has adopted SOP 97-2, as amended, for software transactions entered into after July 1, 1998. The adoption of SOP 97-2 did not have a material impact on the Company's results of operations. e. Product Returns The Company permits VARs and other software distributors to return certain products that were returned by the end-user customers and allows a 30-day return period for certain customers. The Company establishes reserves for such estimated product returns. Such product return reserve is included within the allowance for doubtful accounts and was $660,000 at June 30, 1997, $190,000 at June 30, 1998 and $725,000 at December 31, 1998. f. Inventories The Company's inventories consist of software modules in diskette and CD-ROM form ready for shipment, and manuals, and are stated at the lower of cost (first-in, first-out) or market. g. Property and Equipment The following summarizes the components of property and equipment, at cost, as of June 30, 1997 and 1998 and December 31, 1998:
June 30, December 31 ----------------------- ------------ 1997 1998 1998 -------- -------- -------- (in thousands) Computer equipment $ 19,039 $ 22,222 $ 27,612 Furniture and fixtures 3,605 3,653 4,873 Leasehold improvements 1,851 2,719 3,852 -------- -------- -------- 24,495 28,594 36,337 Accumulated depreciation and amortization (15,908) (19,906) (22,949) -------- -------- -------- $ 8,587 $ 8,688 $ 13,388 ======== ======== ========
Depreciation is computed under the straight-line method over the estimated useful lives of the assets ranging from 2 to 5 years. Maintenance and repairs are charged to expense as incurred and the costs of additions and betterments that increase the useful lives of the assets are capitalized. Effective July 1, 1996, the Company adopted Statement of Financial Accounting Standards No. 121 "Accounting for the Impairments of Long-Lived Assets and for Long-Lived Assets to be Disposed Of." The adoption of this standard had no material impact on the Company's consolidated financial statements. 50 51 h. Software Development Costs Software development costs incurred subsequent to the determination of technological feasibility and marketability of a software product are capitalized. Amortization of capitalized software development costs commences when the products are available for general release to customers over the expected useful life of the respective products, which is generally 5 years. Amortization of software development costs is included in cost of license fees and totaled $942,000, $1,047,000 and $1,056,000 for the years ended June 30, 1996, 1997 and 1998, respectively, and $553,000 and $425,000 for the six months ended December 31, 1997 and 1998, respectively. i. Intangible Assets Intangible assets are amortized over the estimated economic life of the asset. Amortization of acquired technology is included in cost of license fees and totaled $891,000, $1,084,000 and $72,000 for the years ended June 30, 1996, 1997 and 1998, respectively, and $45,000 and $28,000 for the six months ended December 31, 1997 and 1998, respectively. The following summarizes the components of intangible assets, at cost, as of June 30, 1997 and 1998 and December 31, 1998:
June 30 December 31 --------------------------- ----------- 1997 1998 1998 -------- -------- -------- (in thousands) Acquired technology $ 4,478 $ 4,478 $ 23,533 Customer base -- -- 8,710 Assembled workforce -- -- 4,113 -------- -------- -------- 4,478 4,478 36,356 Accumulated amortization (4,200) (4,272) (4,300) -------- -------- -------- $ 278 $ 206 $ 32,056 ======== ======== ========
j. Advertising Costs The Company expenses production costs of advertising upon the first showing. Other advertising costs are expensed as incurred. Advertising expense totaled $867,000, $1,490,000 and $1,034,000 for the years ended June 30, 1996, 1997 and 1998, respectively and $140,000 and $771,000 for the six months ended December 31, 1997 and 1998, respectively. k. Foreign Currency Translation The functional currency of the Company's foreign operations is the respective local country's currency. Assets and liabilities of the foreign operations are translated into U.S. dollars at the exchange rate at the balance sheet date, whereas revenues and expenses are translated into U.S. dollars at average exchange rates. Translation adjustments are shown as a separate component of stockholders' equity. l. Concentration of Credit Risks and Major Customer Data The Company sells its products to VARs and other software distributors generally under credit terms ranging from 30 to 90 days. Also, the Company presently sells its products directly to end-users generally requiring a significant up-front payment and remaining credit terms of 30 to 60 days. The Company believes no significant concentrations of credit risk existed at December 31, 1998. The Company maintains adequate reserves for potential credit losses and such losses have been within management's estimates. Receivables from customers are generally unsecured. m. Net Income (Loss) per Share Basic net income (loss) per share is computed by dividing net income (loss) by the weighted average number of shares of common stock outstanding during the period. Diluted income (loss) per share is computed by dividing net income (loss) by the weighted average number of shares of common stock and common stock equivalents outstanding during the period. Common stock equivalents were antidilutive for the years ended June 30, 1996 and 1997 and the six months ended December 31, 1998, and, therefore, were excluded from the calculation of diluted net loss per share for such periods. 51 52 The following table sets forth the computation of basic and diluted net income (loss) per share:
Six Months Ended Year Ended June 30 December 31 -------------------------------------- ---------------------- 1996 1997 1998 1997 1998 -------- -------- -------- -------- -------- (in thousands) Numerator: Net income (loss) - Numerator for basic and diluted net income (loss) per share $(33,207) $ (4,408) $ 13,347 $ 3,327 $ (2,056) Denominator: Denominator for basic net income (loss) per share - weighted average shares 18,128 21,758 23,956 22,727 28,373 Effect of dilutive securities: Employee stock options -- -- 1,942 1,847 -- Preferred stock -- -- 3,818 4,573 -- -------- -------- -------- -------- -------- Dilutive potential common shares -- -- 5,760 6,420 -- Denominator for diluted net income (loss) per share - adjusted weighted average shares and assumed conversion 18,128 21,758 29,716 29,147 28,373 ======== ======== ======== ======== ======== Basic net income (loss) per share $ (1.83) $ (0.20) $ 0.56 $ 0.15 $ (0.07) ======== ======== ======== ======== ======== Diluted net income (loss) per share $ (1.83) $ (0.20) $ 0.45 $ 0.11 $ (0.07) ======== ======== ======== ======== ========
n. Segment Reporting Effective July 1, 1998, the Company adopted the Financial Accounting Standards Board's Statement of Financial Accounting Standards No. 131, "Disclosures about Segments of an Enterprise and Related Information" (SFAS No. 131). SFAS No. 131 superseded FASB Statement No. 14, "Financial Reporting for Segments of a Business Enterprise." SFAS No. 131 establishes standards for the way that public business enterprises report information about operating segments in annual financial statements and requires that those enterprises report selected information about operating segments in interim financial reports. SFAS No. 131 also establishes standards for related disclosures about products and services, geographic areas, and major customers. The adoption of SFAS No. 131 did not affect results of operations, financial position, or the disclosure of segment information because the Company operates only in one segment. o. Reclassifications Certain reclassifications have been made to June 30, 1996, 1997 and 1998 amounts to conform with the current period presentation. 2. ACQUISITIONS AND RESTRUCTURINGS a. Acquisitions On June 30, 1997, the Company acquired Clientele Software, Inc. ("Clientele"), a privately held provider of help desk automation software based in Portland, Oregon. As consideration for the acquisition, the Company issued 887,636 shares of common stock in exchange for all of the outstanding shares of common stock of Clientele. The exchange ratio used with respect to the conversion of the Clientele shares was 0.19761 (i.e., each share of Clientele common stock converted into 0.19761 shares of the Company's common stock). In addition, the Company assumed all of the outstanding employee stock options of Clientele, which translated into stock options to 52 53 acquire 212,356 shares of common stock of the Company. Ten percent of the shares issued in the merger, or 88,764 shares, were placed into an escrow for a period of one year to cover indemnification claims in connection with the transaction. The transaction was accounted for as a pooling of interests, and accordingly, the accompanying consolidated financial statements have been restated to incorporate the financial position, results of operations and cash flows of Clientele for all periods presented. On November 14, 1997, the Company acquired FocusSoft, Inc. ("FocusSoft"), a privately held provider of enterprise resource planning and distribution software based in Louisville, Kentucky. As consideration for the acquisition, the Company issued 2,474,794 shares of common stock in exchange for all of the outstanding shares of common stock of FocusSoft. The exchange ratio used with respect to the conversion of the FocusSoft shares was 24.747937 (i.e., each share of FocusSoft common stock converted into 24.747937 shares of the Company's common stock.) In addition, the Company assumed all of the employee stock options of FocusSoft, which translated into stock options to acquire 225,206 shares of common stock of the Company. Ten percent of the shares issued in the merger, or 247,479 shares, were placed into an escrow for a period of one year to cover indemnification claims in connection with the transaction. The transaction was accounted for as a pooling of interests, and accordingly, the accompanying consolidated financial statements have been restated to incorporate the financial position, results of operations and cash flows of FocusSoft for all periods presented. On December 31, 1998, at 11:59 p.m., California time ("Effective Time"), Zoo Acquisition Corp. ("Merger Sub"), which was a wholly owned subsidiary of the Company, was merged with and into DataWorks Corporation pursuant to an Agreement and Plan of Reorganization dated as of October 13, 1998, as amended as of October 30, 1998 (the "Acquisition Agreement"). At the Effective Time: (i) Merger Sub ceased to exist; (ii) DataWorks, as the surviving corporation in the Merger, became a wholly owned subsidiary of the Company and (iii) subject to the provisions of the Acquisition Agreement relating to the payment of fractional shares, each share of Common Stock of DataWorks, $0.001 par value per share ("DataWorks Common Stock") existing immediately prior to the Effective Time was converted into the right to receive 0.794 shares (the "Exchange Ratio") of the Company's Common Stock, $0.001 par value per share. The Company issued 11,739,459 shares in the Merger to former stockholders of DataWorks. In addition, pursuant to the Acquisition Agreement, upon the Effective Time, each outstanding option or right to purchase DataWorks Common Stock under the DataWorks 1995 Equity Incentive Plan, the DataWorks 1995 Non-Employee Directors Stock Option Plan, the Interactive 1997 Nonstatutory Stock Option Plan, the Interactive 1995 Stock Option Plan and each other outstanding option or right to purchase DataWorks Common Stock was assumed by Platinum and became an option or right to purchase Platinum Common Stock, with appropriate adjustments made to the number of shares issuable thereunder and the exercise price thereof based on the Exchange Ratio. The Merger was a tax-free reorganization under Section 368(a) of the Internal Revenue Code of 1986, as amended, and was accounted for as a purchase for financial reporting purposes in accordance with generally accepted accounting principles. The total purchase price and allocation among the tangible and intangible assets and liabilities acquired (including purchased in-process technology) is summarized as follows (in thousands): Total purchase price: Value of stock issued $ 83,522 Value of options assumed 376 Transaction costs 2,102 -------- $ 86,000 ======== Amortization Purchase price allocation: Period (years) ------------------ Tangible assets $ 98,774 Intangible assets: Developed and core technology 17,372 5 Customer base 8,710 7 Assembled workforce 4,113 4 In-process research and development 6,384 expensed Tangible liabilities (49,353) -------- $ 86,000 ========
53 54 The Company recorded a charge of $6,384,000 during the six months ended December 31, 1998 for purchased in-process research and development related to development projects that had not reached technological feasibility, had no alternative future use, and for which successful development was uncertain. The conclusion that each in-process development effort, or any material sub-component, had no alternative future use was reached in consultation with engineering personnel from both the Company and DataWorks. The operating results of DataWorks have not been included in the consolidated statement of operations since the acquisition became effective on December 31, 1998. Had the acquisition taken place at the beginning of fiscal 1998, the unaudited pro forma results of operation would have been as follows for the year ended June 30, 1998 and the six months ended December 31, 1998 (in thousands, except per share data):
Year Ended Six Months Ended June 30, 1998 December 31, 1998 ------------- ----------------- Net revenues $264,616 $150,337 Net income (loss) $ 10,732 $(24,352) Basic net income (loss) per share $ 0.30 $ (.61) Diluted net income (loss) per share $ 0.26 $ (.61)
The pro forma results of operations give effect to certain adjustments, including amortization of purchased intangibles. b. Restructurings During the second quarter of fiscal 1996, the Company restructured its business operations. The restructuring included the cessation of the marketing of the version of the Company's PLATINUM SQL ENTERPRISE product that runs on the Sybase/UNIX server platform as well as the elimination of the Company's direct sales force for its PLATINUM SQL ENTERPRISE product line. The restructuring resulted in a charge of $3,300,000. Such amount included approximately $1,200,000 for severance and other extended benefit costs related to the reduction in force, $1,200,000 for lease termination and buyout costs related to the closure of facilities and $872,000 in asset write-downs and other costs. In February 1996, the Company had another reduction in force of approximately 40 people. This reduction in force resulted in an additional restructuring charge of $2,300,000 which was recorded in the third quarter of fiscal 1996. Such amount included approximately $300,000 for severance and other extended benefit costs related to the reduction in force, $625,000 in lease termination and buyout costs related to the closure of facilities and $1,400,000 in asset write-downs and other costs. In June 1997, the Company underwent another restructuring as a result of the Clientele acquisition. This resulted in an additional restructuring charge of $1,600,000 which was recorded in the fourth quarter of fiscal 1997. Such amount included approximately $1,100,000 for excess facility costs, as well as approximately $500,000 for severance and other extended benefit costs. In December 1998, the Company had another restructuring as a result of the DataWorks Merger. This resulted in a restructuring charge of $5,950,000, which was recorded during the three months ended December 31, 1998. Such amounts included approximately $5,500,000 for severance and extended benefit costs related to a reduction in force of approximately 25 people, and approximately $450,000 in lease termination and buyout costs related to the closure of duplicate facilities. During the six months ended December 31, 1998, the Company paid approximately $727,000 for severance, lease termination and other costs relating to the 1996 and 1997 restructurings. At December 31, 1998, the Company has a $7,957,000 cash obligation related to severance and lease terminations costs related to the 1996, 1997 and 1998 restructurings, which will be funded from existing cash reserves and working capital during fiscal year 1999. 54 55 3. COMMITMENTS AND CONTINGENCIES The Company leases certain of its operating facilities and equipment under operating leases with terms ranging up to 5 years. The following is a schedule by years of future minimum lease payments under operating leases:
Year ending December 31 (in thousands): Amount --------- 1999 $ 7,430 2000 6,811 2001 5,805 2002 4,331 2003 3,308 Thereafter 10,623 --------- Total $ 38,308 =========
Rental expense under operating leases, net of sublease income, for the years ended June 30, 1996, 1997 and 1998, was $2,154,000, $2,067,000 and $2,432,000, respectively and for the six months ended December 31, 1997 and 1998, was $1,210,000 and $1,915,000, respectively. The Company is party to an employment agreement with the President, Chief Executive Officer and Chairman of the Board, which provides that the Company shall be required to pay severance compensation to him equal to the aggregate annual salary and bonus in the event his employment is terminated without cause or in the event that he is constructively terminated. In the event of termination without cause or constructive termination, the Company's repurchase right lapses with respect to the restricted shares that would have vested during the 12-month period following termination. (See Note 6) Finally, the Company agreed to provide a relocation package to assist him in relocating his principal residence. Such costs were paid in fiscal 1997. The Company is party to employment agreements with two of the Company's executive vice presidents, which provides that the Company shall be required to pay severance compensation equal to the aggregate six months salary and bonus in the event their employment is terminated without cause or in the event that they are constructively terminated. In the event of termination without cause or constructive termination, the Company's repurchase right lapses with respect to the restricted shares that would have vested during the 6-month period following termination. (See Note 6) Finally, the Company agreed to provide a relocation package to assist them in relocating their principal residences. Such costs were paid in fiscal 1997. DataWorks, and certain of its officers, directors and former officers have been named as defendants in two lawsuits alleging violations of the federal securities laws. The complaints were filed in the United States District Court for the Southern District of California. They purport to be brought on behalf of classes of stockholders who purchased DataWorks stock, and allege that between October 30, 1997 and July 16, 1998, the defendants issued misleading statements concerning DataWorks' acquisition of Interactive Group, Inc. and sales of certain products. The complaints do not specify the dollar amount of damages alleged or relief requested. The Company is also named in the lawsuit as a defendant as a successor of DataWorks. The Company is subject to miscellaneous legal proceedings in the normal course of business and other legal proceedings. The Company is currently defending these proceedings and claims, and anticipates that it will be able to resolve these matters in a manner that will not have a material adverse effect on the Company's financial position, results of operations or cash flows. 55 56 4. INCOME TAXES The provision for income taxes for the years ended June 30, 1996, 1997 and 1998 and the six months ended December 31, 1998 is comprised of the following:
Six Months Year Ended June 30 Ended -------------------------------------- December 31 1996 1997 1998 1998 ---------- --------- ---------- ----------- (in thousands) Federal: Current $ - $ - $ - $ - Deferred - - - - ---------- ---------- ---------- --------- - - - - ---------- ---------- ---------- --------- State: Current - - - - Deferred - - - - ---------- ---------- ---------- --------- - - - - ---------- ---------- ---------- --------- Foreign: Current - - - 180 Deferred - - - - ---------- ---------- --------- --------- - - - 180 ========== ========== ========== ========= $ - $ - $ - $ 180 ========== ========== ========== =========
The income (loss) before income taxes between Federal and foreign jurisdictions for the fiscal years ended June 30, 1996, 1997 and 1998 and for the six months ended December 31, 1998 are as follows:
Six Months Year Ended June 30 Ended ------------------------------- December 31 1996 1997 1998 1998 -------- ------- -------- ---- ------- (in thousands) Federal $(28,061) $(4,375) $ 10,676 $(1,952) Foreign (5,146) (33) 2,671 (104) -------- ------- -------- ------- Total $(33,207) $(4,408) $ 13,347 $(2,056) ======== ======= ======== =======
The reported provision (benefit) for income taxes for the fiscal years ended June 30, 1996, 1997 and 1998 and for the six months ended December 31, 1998 differ from the amount computed by applying the statutory federal income tax rate of 35 percent to the consolidated income (loss) before income taxes as follows: 56 57
Six Months Year Ended June 30 Ended ------------------------------- December 31 1996 1997 1998 1998 --------- --------- -------- ----------- (in thousands) Provision (benefit) computed at $(11,201) $ (1,659) $ 4,708 $ (657) statutory rates Increase (reduction) resulting from: State taxes, net of federal benefit (1,354) (414) 574 (185) In-process research and development write off -- -- -- 2,234 Valuation allowance 12,795 2,685 (5,372) (1,238) Other (240) (612) 90 26 -------- -------- -------- -------- $ -- $ -- $ -- $ 180 ======== ======== ======== ========
The components of the Company's net deferred income tax asset (liability) as of June 30, 1997 and 1998, and December 31, 1998 are as follows:
June 30 ---------------------- December 31 1997 1998 1998 ---------- --------- ----------- (in thousands) Net operating loss carryforwards $ 33,250 $ 37,750 $ 45,350 Allowance for doubtful accounts 1,940 1,330 3,917 Merger and acquisition costs, net 3,015 3,380 4,726 Research and development credits 2,010 2,720 4,715 Other accruals and reserves 1,550 1,820 4,660 Purchased research and development -- -- 1,013 Accrued restructuring costs 1,210 685 169 Depreciation (405) (410) 771 Software capitalization, net (990) (780) (779) Purchased intangibles -- -- (13,208) Valuation allowance (41,580) (46,495) (51,334) --------- -------- -------- $ -- $ -- $ -- ========== ======== ========
As of December 31, 1998, the Company had provided a valuation allowance of approximately $51,334,000 because realization of the Company's net deferred tax asset is not more likely than not due to the historical losses incurred by the Company prior to fiscal 1998, and the uncertainty as to profits in the future. Any realization of the Company's net deferred tax asset would reduce the Company's effective tax rate in future periods. The Company has federal, state and foreign net operating loss carryforwards as of December 31, 1998 of approximately $97,800,000, $54,100,000 and $24,000,000, respectively. The federal and state losses expire in the years 1998 through 2012. The foreign losses have no expiration date. In addition, the Company has approximately $3,360,000 of federal research and development credit carryforwards that expire in the years 2000 through 2011. Included in the Company's net operating loss carryforwards are tax deductions relating to the exercise of non-qualified stock options totaling approximately $45,700,000. These losses are fully offset by a valuation allowance. Upon future realization of net operating losses, no income tax benefit will be permitted to the extent the utilized losses reflect a deduction for the exercise of nonqualified stock options which will be charged to stockholders' equity. Utilization of the federal and state net operating loss and research and development credit carryforwards could be limited in future years if the Company were to experience a greater than 50 percent change in ownership within a 3-year period as defined in section 382 of the United States Internal Revenue Code of 1986. 57 58 5. STOCK OPTION PLAN AND OTHER EMPLOYEE BENEFITS The Company adopted a stock option plan effective May 31, 1990, whereby incentive and nonqualified options and purchase rights may be granted to officers and other key employees. The total number of shares which may be granted under this plan is 1,650,000. The Company adopted an additional nonqualified stock option plan effective July 21, 1993, whereby nonqualified options may be granted to officers and other key employees. The total number of shares that may be granted under this plan is 1,275,000. The Company adopted a third stock option plan effective April 20, 1994, whereby incentive and nonqualified stock options, as well as purchase rights, may be granted to officers, directors and other key employees. The total number of shares that may be granted under this plan is 2,200,000. The Company adopted a fourth stock option plan effective January 4, 1996, whereby nonqualified stock options may be granted to nonexecutive officers and other key employees. The total number of shares that may be granted under this plan is 500,000. The Company adopted a fifth stock option plan effective July 29, 1997, whereby nonqualified stock options may be granted to employees, consultants and others with important business relationships with the Company. The total number of shares that may be granted under this plan is 500,000. The Company adopted a sixth stock option plan effective April 22, 1998, whereby nonqualified stock options may be granted to officers, directors, employees and others with important business relationships with the Company. The total shares that may be granted under this plan is 3,000,000. The shares that may be granted were increased from 1,000,000 to 3,000,000 effective July 28, 1998. On June 30, 1997, the Company acquired Clientele Software, Inc. (See Note 2) The Company assumed all of the outstanding employee stock options of Clientele which translated into options to acquire 212,356 shares of common stock of the Company. On November 14, 1997, the Company acquired FocusSoft, Inc. (See Note 2). The Company assumed all of the outstanding employee stock options of FocusSoft, which translated into options to acquire 225,206 shares of common stock of the Company. On December 31, 1998, the Company acquired DataWorks Corporation (See Note 2). The Company assumed all of the outstanding employee stock options of DataWorks, which translated into options to acquire 1,683,682 shares of Common Stock of the Company. Effective July 1990, the Company adopted a profit sharing plan pursuant to Section 401 of the Internal Revenue Code. The Company has not made any contributions to the profit sharing plan as of December 31, 1998. In addition, the Company adopted an Employee Stock Purchase Plan in August 1992 authorizing the issuance of up to an aggregate of 450,000 shares of common stock to participating employees which permits employees to purchase common stock at a price equal to 85 percent of the fair market value at the beginning or end of a 6-month plan period. As of December 31, 1998, 313,049 shares have been sold under this plan. 58 59 The following is a summary of common stock option activity for the following periods:
Six Months Ended Year Ended June 30 December 31 ------------------------------------------------------------------------ --------------------- 1996 1997 1998 1998 ------------------------- --------------------- ---------------------- --------------------- Weighted Weighted Weighted Weighted Average Average Average Average Exercise Exercise Exercise Exercise Options Price Options Price Options Price Options Price ---------- -------- ---------- -------- ---------- --------- ---------- -------- Outstanding, Beginning of Period 3,593,798 $6,0563 3,763,658 $5,8039 3,765,837 $ 5.2839 3,337,562 $10.0597 Granted 1,903,375 6.5210 3,771,877 5.4211 1,991,378 14.0630 5,114,960 15.5539 Exercised (345,738) 3.9864 (776,648) 3.8445 (1,999,057) 3.9693 (155,027) 3.8569 Expired or Canceled (1,387,777) 7.8937 (2,993,050) 6.4843 (420,596) 9.4058 (2,848,088) 20.4212 Options Assumed from DataWorks Merger -- -- -- -- -- -- 1,683,682 11.9519 ---------- ------- ---------- ------- ---------- -------- ---------- -------- Outstanding, End of Period 3,763,658 $5.8039 3,765,837 $5.2839 3,337,562 $10.0597 7,133,089 $10.3917 ========= ======= ========= ======= ========= ======== ========= ======== Options Exercisable 1,876,238 $4.8565 2,008,293 $4.1165 718,858 $ 5.7045 2,140,935 $ 9.6226 ========= ======= ========= ======= ======= ======== ========= ========
The following table summarizes information about stock options outstanding at December 31, 1998.
Options Outstanding Options Exercisable ----------------------------------------- ---------------------------- Weighted Number Average Weighted Number Weighted Outstanding Remaining Average Exercisable Average Range of Exercise as of Dec. Contractual Exercise as of Exercise Prices Dec. 31, 1998 Life Price Dec. 31, 1998 Price - -------------------- ------------- ----------- -------- ------------- --------- $0.1107-$3.5000 584,155 5.54 $2.5755 381,568 $2.9703 $3.6020-$3.6020 31,402 6.35 $3.6020 25,916 $3.6020 $5.0000-$10.8125 2,008,673 8.47 $8.6123 649,010 $8.4508 $11.5000-$11.5000 3,757,119 8.96 $11.5000 556,254 $11.5000 $11.7254-$32.4307 751,740 9.19 $15.9648 528,187 $14.1862 ----------------- --------- ----- -------- --------- -------- $0.1107-$32.4307 7,133,089 8.56 $10.3917 2,140,935 $ 9.6226 ================ ========= ===== ======== ========= ========
The Company follows Accounting Principles Board Opinion No. 25 "Accounting for Stock Issued to Employees" in accounting for options issued to employees under the above mentioned plans. Accordingly, no compensation expense has been recognized for options issued to employees and stock issued under the stock purchase plan. Had compensation costs for the Company's stock option plans and stock purchase plan been determined based upon fair value at the grant date under these plans consistent with Statement of Financial Accounting Standards No. 123 (SFAS No. 123), "Accounting for Stock-Based Compensation," the Company's net income (loss) and income (loss) per share would have been as follows:
Six Months Ended Year Ended June 30, December 31, -------------------------------------------- ----------- 1996 1997 1998 1998 -------------- ------------- ------------ ----------- Net income (loss) as reported $ (33,207,000) $ (4,408,000) $ 13,347,000 $ (2,056,000) ============= ============ ============ ============ Net income (loss) - pro forma $ (34,582,000) $(11,426,000) $ 6,753,000 $(10,895,000) ============= ============ ============ ============ Income (loss) per share as reported $ (1.83) $ (0.20) $ 0.45 $ (0.07) ============= ============ ============ ============ Income (loss) per share - pro forma $ (1.91) $ (0.53) $ 0.23 $ (0.38) ============== ============= ============ ============
59 60 The fair value of shares had been estimated using the Black-Scholes option pricing model with the following weighted average assumptions:
Stock Option Plans Purchase Plan ------------ -------------- Expected life (years) 4 .5 Risk-free interest rate 5.06% 4.695% Volatility 1.4956 1.4956 Dividend rate 0% 0%
For options granted during the years ended June 30, 1996, 1997 and 1998, and the six months ended December 31, 1998, the weighted average fair value at date of grant was $4.3625, $4.0667, $10.5921 and $13.5639 per option, respectively. The weighted average fair value at date of grant for stock purchase shares during the years ended June 30, 1996, 1997 and 1998, and the six months ended December 31, 1998, was $2.430, $3.007, $5.798 and $6.0867 per share, respectively. The discounted value of the stock purchase shares granted in the years ended June 30, 1996, 1997 and 1998 and the six months ended December 31, 1998, using the Black-Scholes Option pricing model was $58,000, $42,000, $158,000 and $55,000, respectively. As of December 31, 1998, the total number of shares of common stock reserved for future issuance under existing stock option plans and Series C Preferred Stock (See Note 7) is approximately 8,086,000. On March 9, 1994, the Board of Directors adopted a Shareholder Rights Plan (the Plan) which is intended to protect stockholders from unfair takeover practices. Under the Plan, each share of common stock carries a right to obtain additional stock according to terms provided in the Plan. The rights will not be exercisable or separable from the common stock until a third-party acquires at least 20 percent of the Company's then outstanding common stock or commences a tender offer for at least 20 percent of the Company's then outstanding common stock. In the event the Company is acquired in a merger or other business combination transaction which the Company is not the surviving corporation or 50 percent or more of its consolidated assets or earning power are sold or transferred, each right will entitle its holder to receive, at the then current exercise price, common stock of the acquiring company, having a market value equal to two times the exercise price of the right. If a person or entity were to acquire 20 percent or more of the outstanding shares of the Company's common stock, or if the Company is the surviving corporation in a merger and its common stock is not changed or exchanged, each right will entitle the holder to receive at the then current exercise price common stock having a market value equal to two times the exercise price of the right. Until a right is exercised, the holder of a right, as such, will have no rights as a stockholder of the Company, including, without limitation, the rights to vote as a stockholder or receive dividends. The rights, which expire on March 9, 2004, may be redeemed by the Company at a price of $0.01 per right. 6. RESTRICTED STOCK In February 1996, the President, Chief Executive Officer and Chairman of the Board purchased 2,000,000 shares of restricted stock at a purchase price of $3.50, the then fair market value of the Company's common stock. In payment of one-half of the purchase price, the Company executed a secured five-year promissory note in the principal amount of $3,500,000. The note bears simple interest at 6 percent per annum and is a recourse promissory note. The Company retained a repurchase right with respect to the restricted stock. The repurchase right lapsed with respect to 350,000 shares on the date of the restricted stock grant, and lapses with respect to 29,167 shares each month for 36 months so that after 3 years the repurchase right shall not apply to 1,400,000 shares. The repurchase right with respect to the remaining 600,000 shares lapses based on fulfillment of certain performance criteria with respect to the Company's operating revenues and profit after taxes for fiscal 1997, fiscal 1998 and fiscal 1999 years, or in any event after 10 years. The Company also has loaned to the President, Chief Executive Officer and Chairman of the Board $3,500,000 pursuant to an unsecured 5-year recourse promissory note, which bears interest at the rate of 6 percent per annum. This loan was used to fund the restricted stock purchase along with the secured note referenced above. In February 1996, one of the Company's senior executive officers purchased 500,000 shares of restricted stock at a purchase price of $3.50, the then fair market value of the Company's common stock. In payment of one-half of the purchase price, the Company executed a secured 5-year promissory note in the principal amount of $875,000. The note bears simple interest at 6 percent per annum and is a recourse promissory note. The Company retained a repurchase right with respect to the restricted stock. The repurchase right lapsed with respect to 50,000 shares on the date of the restricted stock grant, and lapses with respect to 8,334 shares each month for 36 months, so that after 3 years the repurchase right shall not apply to 350,000 shares. The repurchase right with respect to the remaining 60 61 150,000 shares lapses based on fulfillment of certain performance criteria with respect to the Company's operating revenues and profit after taxes for fiscal 1997, fiscal 1998 and fiscal 1999 years, or in any event after 10 years. The Company also has loaned to this senior executive officer $875,000 pursuant to an unsecured 5-year recourse promissory note, which bears interest at the rate of 6 percent per annum. This loan was used to fund the restricted stock purchase along with the secured note referenced above. In April 1996, one of the Company's senior executive officers purchased 450,000 shares of restricted stock at a purchase price of $6.25, the then fair market value of the Company's common stock. In payment of one-half of the purchase price, the Company executed a secured 5-year promissory note in the principal amount of $1,406,250. The note bears simple interest at 6 percent per annum and is a recourse promissory note. The Company retained a repurchase right with respect to the restricted stock. The repurchase right lapsed with respect to 49,980 shares on the date of the restricted stock grant, and lapses with respect to 6,945 shares each month thereafter for 36 months, so that after 3 years the repurchase right shall not apply to 300,000 shares. The repurchase right with respect to the remaining 150,000 shares lapses based on fulfillment of certain performance criteria with respect to the Company's operating revenues and profit after taxes for fiscal 1997, fiscal 1998 and fiscal 1999, or in any event after 10 years. The Company also has loaned to this senior executive officer $1,406,250 pursuant to an unsecured 5-year promissory note, which bears interest at 6 percent per annum. This loan was used to fund the restricted stock purchase along with the secured note referenced above. In April 1998, the Board of Directors forgave any and all interest on such notes. 7. PREFERRED STOCK The Company's Series B Preferred Stock is convertible into common shares of the Company on a one-for-one basis at any time at the option of the holders. Such shares automatically convert into common stock of the Company 10 days after formal notification by the Company that the average consecutive 20-trading day closing stock price of the common stock has exceeded $22.12 per share. The holders of preferred stock are entitled to vote with the holders of common stock on an as converted basis. The holders of a majority of the outstanding Series B Preferred Stock, voting together as a class, have the right to designate two members of the Board of Directors. In fiscal 1998, 995,250 shares of Series B Preferred Stock were converted to common stock. During the six months ended December 31, 1998, the remaining outstanding Series B Preferred Stock automatically converted to common stock. The Company's Series C Preferred Stock is convertible into common shares of the Company on a ten-for-one basis at any time at the option of the holders. Such shares automatically convert into common stock of the Company 10 days after formal notification by the Company that the average consecutive 20-trading day closing stock price of the common stock has exceeded $25.00 per share. The holders of preferred stock are entitled to vote with holders of common stock on an as converted basis. In fiscal 1998, 51,783 shares of Series C Preferred Stock were converted to common stock. During the six months ended December 31, 1998, 66,715 shares of Series c Preferred Stock were converted to Common Stock. The holders of the Series C Preferred Stock have the right to cause the Company to register the sale of shares of common stock issuable upon conversion of the Series C Preferred Stock. 61 62 8. SEGMENT AND GEOGRAPHIC INFORMATION The Company operates in one industry segment: the design, development, marketing and support of client/server enterprise resource planning applications software products. A summary of the Company's operations by geographic area is as follows:
United Latin States Australasia Europe Canada America Consolidated ------ ----------- ------ ------ ------- ------------ (in thousands) Year Ended June 30, 1996: Net revenues $31,591 $8,294 $2,134 $3,042 $ 609 $45,670 ======= ====== ====== ====== ====== ======= Operating income (loss) (27,914) (1,823) (3,471) (476) 609 (33,075) ======= ====== ====== ====== ====== ======= Identifiable assets 33,370 3,164 2,857 2,249 - 41,640 ======= ====== ====== ====== ====== ======= Year Ended June 30, 1997: Net revenues $43,383 $7,993 $4,426 $3,957 $ 992 $60,751 ======= ====== ====== ====== ====== ======= Operating income (loss) (5,422) 388 (1,429) 190 992 (5,281) ======= ====== ====== ====== ====== ======= Identifiable assets 34,822 3,565 2,488 2,281 - 43,156 ======= ====== ====== ====== ====== ======= Year Ended June 30, 1998: Net revenues $71,008 $9,560 $8,169 $7,232 $2,519 $ 98,488 ======= ====== ====== ====== ====== ======= Operating income (loss) 9,721 (1,818) 1,109 (50) 2,519 11,481 ======= ====== ====== ====== ====== ======= Identifiable assets 51,956 5,809 4,974 5,249 - 67,988 ======= ====== ====== ====== ====== ======= Six Months Ended December 31, 1998: Net revenues $46,555 $5,528 $5,256 $4,864 $1,513 $63,716 ======= ====== ====== ====== ====== ======= Operating income (loss) (2,407) (1,366) (200) 163 1,513 (2,297) ======= ====== ====== ====== ====== ======= Identifiable assets 169,925 7,892 28,929 5,531 - 212,277 ======= ====== ====== ====== ====== =======
62 63 REPORT OF INDEPENDENT AUDITORS The Board of Directors and Stockholders Platinum Software Corporation We have audited the consolidated financial statements of Platinum Software Corporation as of June 30 1997 and 1998 and December 31, 1998, and for each of the three years in the period ended June 30, 1998 and the six months ended December 31, 1998, and have issued our report thereon dated February 2, 1999. Our audits also included the financial statement schedule listed in Item 14(a) of this Transition Report on Form 10-K. This schedule is the responsibility of the Company's management. Our responsibility is to express an opinion based on our audits. In our opinion, the financial statement schedule referred to above, when considered in relation to the basic financial statements taken as a whole, presents fairly in all material respects the information set forth therein. /s/ ERNST & YOUNG LLP Orange County, California February 2, 1999 63 64 PLATINUM SOFTWARE CORPORATION SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS (in thousands)
Balance at Provision Beginning for Bad Amounts Balance at Description of Year Debt Written Off Other End of Year - --------------------------------- --------- --------- ----------- -------- ----------- FOR THE YEAR ENDED JUNE 30, 1996: Allowance for doubtful accounts $ 4,860 $ 6,623 $ (2,360) $ -- $ 9,123 ======== ======== ======== ======== ======= FOR THE YEAR ENDED JUNE 30, 1997: Allowance for doubtful accounts $ 9,123 $ 2,095 $ (4,955) $ -- $ 6,263 ======== ======== ======== ======== ======= FOR THE YEAR ENDED JUNE 30, 1998: Allowance for doubtful accounts $ 6,263 $ 1,561 $ (2,665) $ -- $ 5,159 ======== ======== ======== ======== ======= FOR THE SIX MONTHS ENDED DECEMBER 31, 1998: Allowance for doubtful accounts $ 5,159 $ 1,263 $ (2,573) $ 7,946(A) $11,795 ======== ======== ======== ======== =======
- ---------------- (A) Amounts acquired from the DataWorks Merger. 64 EX-10.63 2 SINGLE-TENANT LEASE AGREEMENT 1 EXHIBIT 10.63 SINGLE-TENANT LEASE (TRIPLE NET) LANDLORD: ADI RESEARCH PARTNERS, L.P., A CALIFORNIA LIMITED PARTNERSHIP TENANT: DATAWORKS CORPORATION, A CALIFORNIA CORPORATION 2 STANDARD FORM SINGLE-TENANT LEASE TABLE OF CONTENTS
Section Title Page - ------- ----- ---- SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS ................. iv 1 Lease of Premises .................................................. 1 2. Term ............................................................... 1 3. Rent ............................................................... 3 4. Common Area; Operating Expenses .................................... 3 5. Communication Equipment ............................................ 6 6. Use ................................................................ 7 7. Payments and Notices ............................................... 9 8. Brokers ............................................................ 9 9. Surrender; Holding Over ............................................ 9 10. Taxes .............................................................. 10 11. Repairs ............................................................ 11 12. Alterations ........................................................ 12 13. Liens .............................................................. 13 14. Assignment and Subletting .......................................... 14 15. Entry by Landlord .................................................. 15 16. Utilities and Services ............................................. 15 17. Indemnification and Exculpation .................................... 16 18. Damage or Destruction .............................................. 17 19. Eminent Domain ..................................................... 18 20. Tenant's Insurance ................................................. 18 21. Waiver of Subrogation .............................................. 20 22. Tenant's Default and Landlord's Remedies ........................... 20 23. Landlord's Default ................................................. 21 24. Subordination ...................................................... 22 25. Estoppel Certificate ............................................... 22 26. Parking ............................................................ 23 27. Modification and Cure Rights of Landlord's Mortgagees and Lessors .. 23 28. Quiet Enjoyment .................................................... 23 29. Transfer of Landlord's Interest .................................... 23 30. Limitation on Landlord's Liability ................................. 23 31. Miscellaneous ...................................................... 23 32. Lease Execution .................................................... 26 33. Building 3 ......................................................... 26 34. Expansion of Project ............................................... 28
EXHIBITS EXHIBIT "A" Site Plan (including Tenant's Site, the Building 3 Site and the Adjacent Land) EXHIBIT "B" Work Letter Agreement EXHIBIT "C" Sample Form of Notice of Lease Term Dates EXHIBIT"D" Environmental Questionnaire EXHIBIT "E" Sample Form of Tenant Estoppel Certificate EXHIBIT "F" Rules and Regulations EXHIBIT "G" Form of Memorandum -i- 3 STANDARD FORM SINGLE-TENANT LEASE INDEX OF DEFINED TERMS AAA ......................................................................... 25 Abatement Conditions ........................................................ 16 Actual Statement ............................................................ 5 ADA ......................................................................... 7 Adjacent Land ............................................................... 28 Affiliate ................................................................... 15 Allowance ................................................................... Exhibit B Arbitration Notice .......................................................... 25 Arbitrator .................................................................. 25 Architect ................................................................... Exhibit B Base Improvements ........................................................... Exhibit B Billing Period .............................................................. 5 BOMA Standards .............................................................. 1 Brokers ..................................................................... v Building 3 Site ............................................................. 26 Building 3 Space ............................................................ 27 Building Systems ............................................................ Exhibit B Building 1 .................................................................. iv Building 2 .................................................................. iv Building 3 .................................................................. 26 Buildings ................................................................... iv Commencement Date ........................................................... iv Common Area ................................................................. 3 Communication Equipment ..................................................... 6 Comparable Buildings ........................................................ 12 Control ..................................................................... 15 Cure Notice ................................................................. 16 Depository .................................................................. 17 Early Occupancy Date ........................................................ 1 Economic Terms .............................................................. 27 Effective Date .............................................................. 1 Election Date ............................................................... 27 emergency ................................................................... 15 Estimate Statement .......................................................... 5 Expansion Commencement Date ................................................. 26 Expansion Negotiating Period ................................................ 27 Expansion Notice ............................................................ 26 Expansion Option ............................................................ 26 Expansion Payments .......................................................... 27 Extension Option ............................................................ 1 Fair Market Rental .......................................................... 1 Final Plans ................................................................. Exhibit B First Refusal Notice ........................................................ 27 Force Majeure ............................................................... 25 Force Majeure Delays ........................................................ Exhibit B Hazardous Materials ......................................................... 8 HVAC ........................................................................ Exhibit B Indemnified Claims .......................................................... 16 Interest Rate ............................................................... v JAMS ........................................................................ 25 Landlord .................................................................... 1 Landlord Indemnified Parties ................................................ 8 Landlord Parties ............................................................ 16 Landlord's Address .......................................................... iv Landlord's Determination .................................................... 1 Laws ........................................................................ 12 Lease ....................................................................... 1 Lease Expiration Date ....................................................... iv market cap .................................................................. 15 Market Rent Data ............................................................ 2 Memorandum .................................................................. 24 Monthly Rent ................................................................ iv Negotiating Period .......................................................... 2 Operating Expenses .......................................................... 4 Option Period ............................................................... 1 Original Tenant ............................................................. 1 Outside Date ................................................................ Exhibit B
-ii- 4 Outside Date Termination Notice ............................................. 2 Outside Termination Date .................................................... 2 Parking Ratio ............................................................... v PCBs ........................................................................ 8 Permitted Assignee .......................................................... 26 Permitted Business .......................................................... 14 Permitted Non-Affiliate Assignee ............................................ 15 Permitted Use ............................................................... v PID ......................................................................... 2 Pre-Approved Change ......................................................... 12 Preliminary Plans ........................................................... Exhibit B Premises .................................................................... iv Proceeds .................................................................... 17 Project ..................................................................... iv Punch List .................................................................. Exhibit B Punch List Items ............................................................ Exhibit B Real Property Taxes ......................................................... 10 Rent ........................................................................ 3 Restoration ................................................................. 17 Restore ..................................................................... 17 Review Period ............................................................... 5 Right of First Refusal ...................................................... 27 Security Deposit ............................................................ v Signage ..................................................................... 7 Signage Specifications ...................................................... 7 Substantial Completion ...................................................... Exhibit B Summary ..................................................................... iv Superior Interest ........................................................... 22 Tenant ...................................................................... 1 Tenant Change ............................................................... 12 Tenant Changes .............................................................. 12 Tenant Delays ............................................................... Exhibit B Tenant Improvements ......................................................... Exhibit B Tenant's Address ............................................................ iv Tenant's Contribution ....................................................... Exhibit B Tenant's Election Notice .................................................... 27 Tenant's Monthly Operating Expense Charge ................................... 5 Tenant's Parties ............................................................ 8 Tenant's Review Period ...................................................... 2 Tenant's Site ............................................................... iv Term ........................................................................ 1 Termination Date ............................................................ 17 Transfer .................................................................... 14 Transfer Date ............................................................... 14 Transfer Notice ............................................................. 14 Transferee .................................................................. 14 Work Cost Statement ......................................................... Exhibit B Work Costs .................................................................. Exhibit B Work Letter ................................................................. iv
-iii- 5 SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS This SUMMARY OF BASIC LEASE INFORMATION AND DEFINITIONS ("SUMMARY") is hereby incorporated into and made a part of the attached Single-Tenant Lease which pertains to the Premises described in Section 1.4 below. All references in the Lease to the "Lease" shall include this Summary. All references in the Lease to any term defined in this Summary shall have the meaning set forth in this Summary for such term. Any initially capitalized terms used in this Summary and any initially capitalized terms in the Lease which are not otherwise defined in this Summary shall have the meaning given to such terms in the Lease. 1.1 LANDLORD'S ADDRESS: c/o The Allen Group 111 South Johnson Visalia, CA 93291 Attn: Mr. Richard Allen Telephone: (209) 732-5425 Facsimile (209) 732-7160 With a copy to: Kilroy Services, Inc. 4365 Executive Drive, Suite 850 San Diego, CA 92121-2130 Attn: Mr. Steve Black Telephone: (619) 550-1930 Facsimile: (619) 550-1935 1.2 TENANT'S ADDRESS: Prior to the Commencement Date: Dataworks Corporation 5910 Pacific Center Boulevard San Diego, CA 92121 Attn: Bradley J. Thies, Esq. Telephone: (619) 546-9600 Facsimile: (619) 564-9777 Following the Commencement Date: To be designated upon receipt of permits. 1.3 PROJECT: The industrial development known as Sorrento Gateway in the City of San Diego, County of San Diego, State of California, as shown on the site plan attached hereto as Exhibit "A". The Project includes all buildings, improvements and facilities, now or subsequently located within such development from time to time. The aggregate saleable land area located within the Project (including Tenant's Site) is expected to be approximately 1,389,564 square feet. 1.4 PREMISES: A two (2) story building containing approximately one hundred ten thousand (110,000) rentable square feet ("BUILDING 1") and a two (2) story building containing approximately sixty thousand (60,000) rentable square feet ("BUILDING 2"), all to be constructed by Landlord at approximately those locations in the Project shown on Exhibit 'A" pursuant to the Work Letter Agreement attached hereto as Exhibit "B" (the "WORK LETTER"). Building 1 and Building 2 may be collectively referred to herein as the "BUILDINGS." That area surrounding the Buildings including Tenant's parking area as shown on Exhibit "A" may be referred to herein as "TENANT'S SITE." 1.5 Commencement DATE: The date which is thirty (30) days after the date of Substantial Completion (as determined in accordance with the Work Letter) of Improvements in the Premises; however, the Commencement Date shall not occur prior to September 1, 1999. Subject to Force Majeure Delays and Tenant Delays, Landlord anticipates that the Commencement Date will occur on or around September 1, 1999. 1.6 LEASE EXPIRATION DATE: Ten (10) years following the Commencement Date, subject to two (2) extension options of five (5) years pursuant to Section 2.4 of the Lease. If the Commencement Date occurs on a day other than the first day of a month, then for purposes of determining the Lease Expiration Date, the ten (10) year period shall be measured from the first day of the month following the month in which the Commencement Date occurs. 1.7 Monthly Rent:
MONTHLY RENT PER YEARS RENTABLE SQUARE FOOT ----- -------------------- 1-2* $1.450 3-4 $1.537 5-6 $1.629 7-8 $1.727 9-10 $1.831
*Including any partial month at the beginning of the Term. -iv- 6 1.8 SECURITY DEPOSIT: None. 1.9 PERMITTED USE: The Premises may be used only for general office, laboratory, research and development and light manufacturing and any other lawful use consistent with a first-class building which is otherwise permitted by applicable zoning ordinances, including without limitation, any use which would be permitted, subject to Landlord's reasonable approval, by variance or conditional use permit. 1.10 Brokers: CB Richard Ellis, Inc. and Colliers International. 1.11 INTEREST RATE: The lesser of: (a) the prime rate then announced by Wells Fargo Bank, NA (or the largest state chartered bank in the State of California if Wells Fargo Bank, NA ceases to exist or to publish a prime rate) plus five percent (5%) per annum; or (b) the maximum rate permitted BY law. 1.12 PARKING RATIO: Not less than four (4) spaces per 1,000 rentable square feet of the Premises as shown on Exhibit "A. -v- 7 SINGLE-TENANT LEASE This LEASE ("LEASE"), which includes the preceding Summary attached hereto and incorporated herein by this reference, is made as of the 14th day of August, 1998, by and between ADI RESEARCH PARTNERS, L.P., a California limited partnership ("LANDLORD"), and DATAWORKS CORPORATION, a California corporation ("TENANT"). 1. LEASE OF PREMISES. 1.1 LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises upon and subject to the terms, covenants and conditions contained in this Lease to be performed by each party. 1.2 MEASUREMENT OF PREMISES. On or before Substantial Completion of the Improvements, Landlord shall cause the Architect (as defined in Section 2.2 of Exhibit "B") to measure the rentable square footage of the Premises. For purposes of this Lease, rentable square footage of the Premises or of the other buildings in the Project shall mean Gross Building Area calculated in accordance with the Standard Method for Measuring Floor Area in Office Buildings ANSI/BOMA Z65.1-1996 ("BOMA STANDARDS"). Based upon such measurement, the Monthly Rent, the Allowance and the rentable square footage of the Project shall be adjusted and the parties shall make any necessary reconciliations in payments of sums previously made hereunder. 2. TERM. 2.1 TERM; NOTICE OF LEASE DATES. This Lease shall be effective upon the date first above written (the "EFFECTIVE DATE"). Subject to Section 2.2 below, the term of this Lease (the "TERM") shall commence upon the Commencement Date and shall expire on the Lease Expiration Date, unless sooner terminated or extended as permitted herein, and if extended, the "Term" will include the Option Period(s). Within ten (10) business days after Landlord's written request, Tenant shall execute a written confirmation of the Commencement Date as set forth in the Notice of Lease Term Dates attached hereto as Exhibit "C". 2.2 EARLY OCCUPANCY. Landlord shall allow Tenant to enter the Premises when the construction of the Buildings has proceeded to a point where, consistent with good construction practices, Tenant can commence preparation of the Premises for Tenant's occupancy, which shall in no event be later than sixty (60) days prior to the date Landlord projects for Substantial Completion (the "EARLY OCCUPANCY DATE") for purposes of Tenant's installation of Tenant's furniture, cabling, fixtures and equipment. Landlord shall provide Tenant with written notice of the projected Early Occupancy Date at least thirty (30) days prior to such date. Tenant's entry into the Premises from and after the Early Occupancy Date shall be subject to Tenant's coordination of such entry with Landlord and Landlord's general contractor(s) so as not to hinder or unreasonably interfere with the completion of the Premises and the Tenant Improvements therein. Such early occupancy shall be subject to all of the terms and conditions of this Lease, including, without limitation, those provisions requiring that Tenant shall be responsible for all costs, expenses and obligations relating to the Premises (including, without limitation, Sections 17, 20 and 22) except that Tenant will not be obligated to pay any Rent or the Monthly Management Fee described in Section 3.3 below during the period of such early occupancy. In addition, Landlord agrees that neither Tenant, nor any contractor or subcontractor of Tenant shall be charged for the use of elevators, hoists (if any), water, electricity, HVAC, security or any other utilities or services prior to the Commencement Date. 2.3 OPTION TO EXTEND. Tenant shall have two (2) options (each, an "EXTENSION OPTION") to extend the Term for a period (each, an "Option PERIOD") of five (5) years each, commencing upon the Lease Expiration Date upon the same terms and conditions previously applicable, except for the grant of any exercised Extension Option and Monthly Rent (which shall be determined as set forth below). An Extension Option may be validly exercised only by notice in writing received by Landlord not more than twelve (12) months and not less than six (6) months prior to the Lease Expiration Date (or expiration of the first (1st) Option Period, if applicable); provided, however, that the Extension Option may be validly exercised only if no uncured Tenant default exists as of the date of exercise. If Tenant does not exercise an Extension Option during the exercise period set forth above in strict accordance with the provisions hereof, each Extension Option shall forever terminate and be of no further force or effect. Each Extension Option is personal to the Tenant originally named herein (the "ORIGINAL TENANT"), may not be exercised by any person or entity other than the Original Tenant and shall become null and void if the Original Tenant assigns its interest in this Lease, unless such assignment is to an Affiliate or a Permitted Non-Affiliate Transferee (as those terms are defined in Section 14.5 below). Monthly Rent during an Option Period shall be equal to Fair Market Rental as of the commencement of the Option Period. For purposes hereof, "FAIR MARKET RENTAL" shall mean the base rent payable during an Option Period to a willing landlord by a willing tenant having a similar financial responsibility, credit rating and capitalization as Tenant then has, taking into account all other relevant factors for like and comparable space, improved with tenant improvements of like and comparable quality to those then existing in the Premises (taking into account the age and the layout of the existing improvements) in the Sorrento Mesa area of San Diego and further taking into account items that professional real estate brokers customarily consider, including, but not limited to, rental rates (including any market increases over the applicable term of any such Option Period), space availability, tenant size, tenant improvement allowances, freeway visibility, free rent and any other lease concessions, if any, then being charged or granted by Landlord or the landlords of such similar buildings. Landlord shall provide Tenant with written notice of Landlord's determination of the Fair Market Rental for the applicable Option Period ("LANDLORD'S DETERMINATION") not later than one (1) month after the date upon which Tenant delivers the required notice to Landlord exercising the applicable Extension Option. Tenant shall have one (1) month ("TENANT'S 8 REVIEW PERIOD") after receipt of Landlord's Determination within which to accept the Fair Market Rental set forth in Landlord's Determination or to object thereto in writing. Failure of Tenant to so object to Landlord's Determination within Tenant's Review Period shall conclusively be deemed Tenant's approval and acceptance thereof. In the event Tenant objects to Landlord's Determination within Tenant's Review Period, Landlord and Tenant shall have a period of ten (10) business days (the "NEGOTIATING PERIOD") within which the parties shall attempt, in good faith, to agree upon such Fair Market Rental for the applicable Option Period using their best good faith efforts. If the parties agree on the Fair Market Rental for the Option Period within the Negotiating Period, they shall execute an amendment to this Lease setting forth such Fair Market Rental and such other terms and conditions as may be mutually agreed by the parties. If the parties are unable to agree on the Fair Market Rental for the applicable Option Period within the Negotiating Period then each party shall place in a separate sealed envelope their final proposal as to the Fair Market Rental for the Option Period and such determination shall be submitted to each other and to arbitration as set forth below. The cost of arbitration shall be paid by Landlord and Tenant equally. Within ten (10) business days of the expiration of the Negotiating Period, Landlord and Tenant shall agree upon and jointly appoint a single arbitrator who shall by profession be a real estate appraiser who shall have been active over the ten (10) year period ending on the date of such appointment in the appraisal of commercial properties in San Diego County, California, and who shall not have been employed or engaged by either party during the five (5) year period preceding the date of such appointment. If Landlord and Tenant fail to agree and appoint an arbitrator, then the appointment of the arbitrator shall be made by the Presiding Judge of the San Diego Superior Court, or, if he or she refuses to act, by any judge having jurisdiction over the parties. Neither Landlord nor Tenant shall consult with such arbitrator as to his or her opinion as to the Fair Market Rental for the applicable Option Period prior to the appointment. The determination of the arbitrator shall be limited solely to the issue of whether Landlord's or Tenant's submitted Fair Market Rental for the Premises is closer to the actual prevailing market rent for the Premises as determined by the arbitrator, taking into account the requirements hereof. Such arbitrator may hold such hearings and require such briefs as the arbitrator, in his or her sole discretion, determines is necessary. In addition, Landlord or Tenant may submit to the arbitrator, with a copy to the other party, within five (5) business days after the appointment of the arbitrator any market data and additional information that such party deems relevant to the determination of the Fair Market Rental for the applicable Option Period ("MARKET RENT DATA") and the other party may submit a reply in writing within five (5) business days after receipt of such Market Rent Data. The arbitrator shall, within ten (10) business days of his or her receipt of all Market Rent Data, and in no event later than forty-five (45) days after his or her appointment, reach a decision as to whether the parties shall use Landlord's or Tenant's submitted Fair Market Rental for the applicable Option Period (i.e., the arbitrator shall not be entitled to reach a compromise position), and shall notify Landlord and Tenant of such determination. The decision of the arbitrator shall be binding upon Landlord and Tenant. If the Fair Market Rental for the Option Period shall not have been determined by the commencement of the applicable Option Period, Tenant shall continue to pay the Monthly Rent and additional rent payable as of the month immediately preceding such commencement until the Fair Market Rental is established so that the Monthly Rent established for the Option Period shall be retroactive to the commencement of the Option Period. 2.4 CONDITIONS PRECEDENT. Landlord will not be obligated to deliver possession of the Premises to Tenant (but Tenant will be liable for Rent if the Commencement Date has occurred and if Landlord can otherwise deliver the Premises, or the applicable portion thereof, to Tenant as required hereunder) until Landlord has received from Tenant certificates of insurance as required under Section 20 of this Lease. 2.5 DELAY IN POSSESSION. In the event that the Substantial Completion of the Improvements in the Premises has not occurred by the "OUTSIDE TERMINATION DATE," which shall be March 1, 2000, as such March 1, 2000 date may be extended by the number of days of Tenant Delays and by the number of days of Force Majeure Delays (but only up to a maximum of ninety (90) days for Force Majeure Delays), then the sole remedy of Tenant (except as provided in Section 7.2 of the Work Letter Agreement) shall be the right to deliver a notice to Landlord (the "OUTSIDE DATE TERMINATION NOTICE") electing to terminate this Lease effective upon receipt of the Outside Date Termination Notice by Landlord. Except as provided hereinbelow, the Outside Date Termination Notice must be delivered by Tenant to Landlord, if at all, not earlier than the Outside Termination Date and not later than ten (10) business days after the Outside Termination Date. If prior to the Outside Termination Date Landlord determines that Substantial Completion of the Improvements in the Premises will not occur by the Outside Termination Date, Landlord shall have the right to deliver a written notice to Tenant stating Landlord's opinion as to the date by which Substantial Completion of the Improvements in the Premises shall occur and Tenant shall be required, within ten (10) business days after receipt of such notice, to either deliver the Outside Date Termination Notice (which will mean that this Lease shall thereupon terminate) or agree to extend the Outside Termination Date to that date which is set by Landlord. Failure of Tenant to so respond in writing within said five business day period shall be deemed to constitute Tenant's agreement to extend the Outside Termination Date to that date which is set by Landlord. If the Outside Termination Date is so extended, Landlord's right to request Tenant to elect to either terminate or further extend the Outside Termination Date shall remain and shall continue to remain, with each of the notice periods and response periods set forth above, until the Substantial Completion of the Improvements in the Premises or until this Lease is terminated. If this Lease is terminated, neither party shall have any further obligation to the other, except that Landlord shall, within thirty (30) days after such termination, pay to Tenant an amount equal to the product of Five Thousand Dollars ($5,000.00) multiplied by the number of days from the Outside Date (as extended pursuant to Section 7.2 of the Work Letter Agreement) until the date of termination. 2.6 PLANNED INDUSTRIAL DEVELOPMENT PERMIT. Landlord agrees to provide evidence of Landlord's receipt of all required approvals for landscaping and landscaping inspections pursuant to the Planned Industrial Development Permit for the Premises ("PID") to Tenant on or before the Commencement Date. In addition, Landlord acknowledges that to the extent the city of San Diego requires an updated traffic study and/or requires mitigation of any significant traffic -2- 9 impacts under the PID, Tenant shall not be required to pay for any portion of the cost of any such study or any such mitigation by way of contributions to Operating Expenses or otherwise. 3. RENT. 3.1 MONTHLY RENT. Tenant agrees to pay Landlord, as rent for the Premises, the Monthly Rent designated in Section 1.7 of the Summary. The Monthly Rent shall be paid by Tenant in advance on the first day of each and every calendar month commencing upon the Commencement Date, except that on the Commencement Date the Monthly Rent for any partial month at the beginning of the Term and the Monthly Rent for the first full month of the Term shall be payable by Tenant. Monthly Rent for any partial month shall be prorated in the proportion that the number of days this Lease is in effect during such month bears to the actual number of days in such month. 3.2 ADDITIONAL RENT. All amounts and charges payable by Tenant under this Lease in addition to the Monthly Rent described in Section 3.1 above (including Tenant's Monthly Operating Expense Charge pursuant to Section 4 below) shall be considered additional rent for the purposes of this Lease, and the word "RENT" in this Lease shall include such additional rent unless the context specifically or clearly implies that only the Monthly Rent is referenced. Rent shall be paid to Landlord as provided in Section 7, without any prior demand therefor and without any deduction or offset except as specified elsewhere in the Lease, in lawful money of the United States of America. 3.3 MANAGEMENT FEE. Tenant shall pay to Landlord as additional rent a monthly management fee equal to one percent (1%) of the Monthly Rent. Such fee shall be payable concurrently with Monthly Rent. 3.4 LATE PAYMENTS. Late payments of Rent will be subject to interest and a late charge as provided in Sections 22.6 and 22.7 below. 3.5 TENANT'S OBLIGATIONS. Except as otherwise provided herein, all Rent shall be absolutely net to Landlord so that this Lease shall yield net to Landlord, the Rent to be paid each month during the Term of this Lease. Accordingly, and except as otherwise provided herein, all costs, expenses and obligations of every kind or nature whatsoever relating to the Premises which may arise or become due during the Term of this Lease shall be paid by Tenant. Nothing herein contained shall be deemed to require Tenant to pay or discharge any liens or mortgages of any character whatsoever which may exist or hereafter be placed upon the Premises by Landlord. 4. COMMON AREA; OPERATING EXPENSES. 4.1 DEFINITION OF COMMON AREA. The term "COMMON AREA," as used in this Lease means all areas and the improvements thereon within the exterior boundaries of the Project now or later made available for the general use of Landlord, Tenant and other persons entitled to occupy floor area in the Project and their customers, including, without limitation, the parking facilities of the Project, trash areas, roadways, sidewalks, walkways, parkways, driveways, landscaped areas, and similar areas and facilities situated within the Project which are not reserved for the exclusive use of any Project occupants. 4.2 MAINTENANCE AND USE OF COMMON AREA. The manner in which the Common Area shall be maintained shall be reasonably determined by Landlord; provided, however, Landlord shall at all times keep the Common Areas (other than Tenant's Site, which shall be maintained by Tenant pursuant to Section 11.1 below) in a clean and first-class condition comparable to landlords of other first-class commercial developments in the Sorrento Mesa area of San Diego. The use and occupancy by Tenant of the Premises shall include the right to use the Common Area (except areas used in the maintenance or operation of the Project), in common with Landlord and other tenants of the Project and their customers and invitees, subject to (i) any covenants, conditions and restrictions now or hereafter of record, and (ii) such reasonable, non-discriminatory rules and regulations concerning the Project as may be established by Landlord from time to time provided the same do not materially and adversely interfere with Tenant's use and occupancy of the Premises. Landlord's initial rules and regulations with respect to the use of the Common Areas (which shall be applied and enforced by Landlord in a reasonable and non-discriminatory manner) area attached to this Lease as Exhibit "F." Tenant agrees to promptly comply with all such rules and regulations upon receipt of written notice from Landlord. Except as specifically provided in Section 4.3 below, the Common Areas (specifically including Tenant's parking facilities therein) shall be accessible to Tenant twenty-four (24) hours per day, seven (7) days per week, every day of the year, including holidays. 4.3 CONTROL OF AND CHANGES TO COMMON AREA. Subject to the limitations set forth below, Landlord shall have the sole and exclusive control of the Common Area, as well as the right to make reasonable changes to the Common Area. Provided Landlord does not materially and adversely interfere with Tenant's use of and access to the Premises and Tenant's access or use of the parking facilities in the Common Areas, Landlord's rights shall include, but not be limited to, the right to (a) restrain the use of the Common Area by unauthorized persons; (b) cause Tenant to remove or restrain persons from any unauthorized use of the Common Area if they are using the Common Area by reason of Tenant's presence in the Project; (c) utilize from time to time any portion of the Common Area (other than Tenant's parking area) for promotional, entertainment, and related matters; (d) temporarily close any portion (but not all) of the Common Area (for a period not to exceed five (5) days in any single instance except that such limitation shall not apply in the case of casualty) for repairs, improvements or alterations, to discourage non-customer use, to prevent public dedication or an easement by prescription from arising, or for any other reason deemed appropriate in Landlord's reasonable business judgment; and (e) reasonably change the shape and size of the Common Area, add, eliminate or change the location of improvements to the Common Area, including, without limitation, structures, lighting, parking areas, landscaped areas, roadways, walkways, drive aisles and curb cuts; provided, however, except as may be required by law, in no event may Landlord (i) change the primary access to the Project from the adjacent public streets, (ii) change the layout or configuration of the parking spaces as shown on Exhibit "A", (iii) reduce the number of parking spaces available to Tenant below the ratio of four (4) spaces per one thousand (1,000) rentable square feet of the Premises, or (iv) materially impair the visibility of Tenant's signage on the Buildings without the prior written consent of Tenant, which consent may -3- 10 be withheld by Tenant in it's sole and absolute discretion. Tenant acknowledges that all or any portion of Landlord's rights and obligations with respect to the Common Areas under this Lease may be transferred to an owners' association formed for the Project; such rights and obligations may include, without limitation, the obligation to maintain the Common Areas subject to the terms and conditions set forth in this Lease, and the right to collect Operating Expenses from tenants and owners within the Project. 4.4 OPERATING EXPENSES. Commencing on the Commencement Date and continuing throughout the Term, Tenant agrees to pay Landlord as additional rent in accordance with the terms of this Section 4, Tenant's Share of all costs and expenses for the operation, maintenance, repair, and replacement of the Common Area ("OPERATING EXPENSES") which shall include but not be limited to the following items: (i) except as specifically provided in Section 10.1 below, any form of Real Property Tax, assessment, license fee, license tax, business license fee, commercial rental tax, levy, charge, improvement bond or similar imposition of any kind or nature imposed by any authority having the direct power to tax, including any city, county, state or federal government, or any school, agricultural, lighting, drainage or other improvement or special assessment district thereof (provided, however, that Operating Expenses shall not include the cost of any bonds posted as security for any improvements nor shall Operating Expenses include any fees paid in connection with the initial development of the Project); (ii) any and all assessments under any covenants, conditions and restrictions affecting the Project; (iii) water, sewer and other utility charges; (iv) costs of insurance obtained by Landlord; (v) waste disposal services for the Common Areas only (it being acknowledged by Landlord that Tenant will contract directly for the removal of trash and rubbish from the Buildings); (vi) security, if Landlord elects to provide security services; (vii) labor; (viii) management costs including, without limitation: (A) wages and salaries (and payroll taxes and similar charges) of property management employees, and (B) management office rental, supplies, equipment and related operating expenses and commercially reasonable management/administrative fees; (ix) supplies, materials, equipment and tools including rental of personal property; (x) maintenance, sweeping, repairs, resurfacing, and upkeep of all parking and other Common Areas; (xii) amortization on a straight line basis over the useful life (together with interest at the lesser of Landlord's actual market cost of capital or the Interest Rate on the unamortized balance) of all capitalized expenditures which are: (A) reasonably intended to produce a reduction in operating charges or energy consumption; or (B) required under any governmental law or regulation that was not applicable to the Common Area at the time it was originally constructed; or (C) for replacement or restoration of any Common Area equipment and/or improvements needed to operate and/or maintain the Common Area at the same quality levels as prior to the replacement or restoration; (xiii) gardening and landscaping; (xiv) maintenance of signs (other than signs of tenants of the Project); (xv) personal property taxes levied on or attributable to personal property used in connection with the Common Areas; (xvi) reasonable accounting, management, audit, verification, legal, owners' association and other consulting fees; and (xvii) any other actual and documented costs and expenses of repairs, maintenance, painting, lighting, cleaning, and similar items. Notwithstanding anything to the contrary contained herein, the following shall not be included in Common Area Operating Expenses: (1) costs incurred due to Landlord's violation of any terms or conditions of this Lease or any other lease relating to the Project; (2) damage and repairs attributable to fire or other casualty insurable under a standard form of "all-risk" property insurance on the Premises or Project; (3) damage and repairs covered under any other insurance policy carried by Landlord in connection with the Project, to the extent that Tenant's insurance is not the primary coverage therefore; (4) uninsured damage and repairs caused solely by the negligence or willful misconduct of Landlord, its partners, employees, agents, contractors or invitees; (5) reserves for the repair, replacement or improvement of the Premises or Project; (6) all payments of principal, finance charges or interest (except as expressly provided in (xii) above) or debt or amortization on any mortgage, deed of trust or any other debt of Landlord and all rental and other costs due under any ground or underlying lease; (7) advertising, promotional, and marketing costs, including leasing commissions and attorneys' fees in connection with the negotiation and preparation of letters, deal memos, letters of intent, leases, subleases, and/or assignments, space planning costs, site use permits, and other costs and expenses incurred in connection with any lease, sublease and/or assignment negotiations and transactions with present or prospective tenants or other occupants in the Project; (8) costs, including permit, license and inspection costs, incurred with respect to the installation of improvements for other tenants or other occupants in the Project or incurred in renovating or otherwise improving, decorating, painting or redecorating vacant space for tenants or other occupants of the Project; (9) any costs, fines, or penalties incurred due to violations by Landlord or other tenants of the Project (other than Tenant) of any governmental rule or authority; (10) expenses incurred by Landlord in connection with services or other benefits which are not offered to Tenant or items and services for which Tenant or any other occupant of the Project reimburses Landlord (other than through its share of Operating Expenses), or which Landlord offers selectively to one or more tenants, other than Tenant, without reimbursement; (11) the cost of repairing any structural defects in the Premises or Project and repairing any material defects in the design, materials or workmanship of the Premises or Project; (12) wages, salaries, or other compensation paid to any executive employees of Landlord above the grade of project manager; (13) Landlord's general corporate overhead and administrative expenses; (14) the costs of repairs and/or replacements of the roof, foundation, and structural supports of the Premises; (15) any management fee other than the Management Fee payable by Tenant pursuant to Section 3.3 above (provided, however, that this exclusion (15) shall apply only to the extent that an owner's association for the Project has not been formed to maintain the Common Areas); (16) all costs of the initial construction of the Project, including Common Areas, parking areas and landscaping and further including, without limitation, any development impact fees, school fees, utility hook-up or tap-in-fees and other similar fees and impositions which are required to be paid by Landlord as a condition to the issuance of a building permit and/or the subsequent issuance of a certificate of occupancy (or an equivalent certificate) for the Premises; (17) costs incurred for charitable contributions and works of art (other than repair and maintenance of works) within the Project; and (18) any costs and expenses incurred by Landlord in connection with the formation of an owner's association for the Project (including, without limitation, attorneys' fees and costs and accounting fees and costs). Landlord agrees to exercise reasonable care that there be no duplication of submittals of items of expense for which Tenant is obligated to pay Landlord directly under this Lease. Notwithstanding anything in this Section 4.4 to the contrary, Landlord shall not include within Operating Expenses any costs incurred by Landlord for other portions of the Project which are used by other tenants for a purpose similar to the purposes for which Tenant uses Tenant's Site, to the extent Tenant is responsible for such items within Tenant's Site; by way of example, because Tenant is responsible for repair and maintenance of the parking facilities located on Tenant's Site, Landlord shall not include within Operating Expenses costs incurred in connection with repair and maintenance of the parking facilities for another site within the Project. Despite -4- 11 anything in this Section 4.4 to the contrary, Landlord shall bill Tenant for Tenant's Share of Operating Expenses within two (2) years of the date Landlord shall have incurred such Operating Expenses (the "BILLING PERIOD"). In the event Landlord shall have incurred and been billed for such Operating Expenses prior to the expiration of a particular Billing Period, Tenant shall not be obligated to pay Tenant's Share of such Operating Expenses that could have been billed and were not billed to Tenant prior to the expiration of such Billing Period. Landlord shall use reasonable judgment to control Operating Expenses and shall use its commercially reasonable efforts to obtain competitive pricing on all material items of Operating Expenses consistent with the operation of the Project in a first-class manner, but in any event shall operate the Project in a first-class manner. Tenant acknowledges that if Landlord's rights and obligations with respect to the Common Areas under this Lease are transferred to an owner's association formed for the Project as described in Section 4.3 above, Tenant shall be required to pay directly to such association on or before the date due, any such assessments for such purposes and, in such case, this Section 4.4 and the remaining sections of this Article 4 shall not apply. 4.5 TENANT'S MONTHLY OPERATING EXPENSE CHARGE. From and after the Commencement Date, Tenant shall pay to Landlord, on the first day of each calendar month during the Term of this Lease, Tenant's Share of an amount estimated by Landlord to be the Monthly Operating Expenses for the Project for that month ("TENANT'S MONTHLY OPERATING EXPENSE CHARGE"). "TENANT'S SHARE" shall be the ratio that the saleable land area of Tenant's Site bears to the total saleable land area within the Project from time to time. Saleable land area shall mean the area of the final building pad(s) plus setback areas. Tenant's Share is initially anticipated to be thirty-three point six zero five percent (33.605%), which shall be subject to verification or adjustment upon Substantial Completion of the Improvements in accordance with Section 1.2 above. 4.6 ESTIMATE STATEMENT. Prior to the Commencement Date and by no later than July 1st of each subsequent calendar year during the Term of this Lease, Landlord shall deliver to Tenant a statement ("ESTIMATE STATEMENT") wherein Landlord will estimate both the Operating Expenses and Tenant's Monthly Operating Expense Charge for the then current calendar year. Tenant agrees to pay Landlord, as additional rent, Tenant's estimated Monthly Operating Expense Charge each month thereafter, beginning with the next installment of rent due, until such time as Landlord issues a revised Estimate Statement or the Estimate Statement for the succeeding calendar year. If at any time during the Term of this Lease, but not more often than two (2) times per year, Landlord reasonably determines that Tenant's Share of Operating Expenses for the current calendar year will be greater than the amount set forth in the then current Estimate Statement, Landlord may issue a revised Estimate Statement (which shall include a detailed statement of the reasons for any such increase) and Tenant agrees to pay Landlord, within thirty (30) days of receipt of the revised Estimate Statement, the difference between the amount owed by Tenant under such revised Estimate Statement and the amount owed by Tenant under the original Estimate Statement for the portion of the then current calendar year which has expired; provided, however, if the amount of such difference is in excess of Fifteen Thousand Dollars ($15,000.00), Tenant shall have the right to pay the same in equal installments over a six (6) month period rather than in a single lump sum. Thereafter Tenant agrees to pay Tenant's Monthly Operating Expense Charge based on such revised Estimate Statement until Tenant receives the next calendar year's Estimate Statement or a new revised Estimate Statement for the current calendar year. 4.7 ACTUAL STATEMENT. By July 1st of each calendar year during the Term of this Lease, Landlord shall deliver to Tenant a statement ("ACTUAL STATEMENT") which states in reasonable detail (i) the total Operating Expenses for the preceding year (by account) and all adjustments thereto; and (ii) Landlord's calculation of Tenant's Share of the actual Operating Expenses for the preceding calendar year. If the Actual Statement reveals that Tenant's Share of the actual Operating Expenses is more than the total Additional Rent paid by Tenant for Operating Expenses on account of the preceding calendar year, Tenant agrees to pay Landlord the difference in a lump sum within thirty (30) days of receipt of the Actual Statement; provided, however, if the amount of such difference is in excess of Fifteen Thousand Dollars ($15,000.00), Tenant shall have the right to pay the same in equal installments over a six (6) month period rather than in a single lump sum. If the Actual Statement reveals that Tenant's Share of the actual Operating Expenses is less than the Additional Rent paid by Tenant for Operating Expenses on account of the preceding calendar year, Landlord will credit any overpayment toward the next monthly installment(s) of Tenant's Share of the Operating Expenses due under this Lease or reimburse such amount to Tenant within thirty (30) days of the expiration or earlier termination of this Lease. Such obligation will be a continuing one which will survive the expiration or earlier termination of this Lease. 4.8 LANDLORD'S BOOKS AND RECORDS. Within one (1) year after Tenant's receipt of any Actual Statement (the "REVIEW PERIOD") Tenant shall have the right, only once in any calendar year, at its sole cost and expense, to audit or inspect and photocopy Landlord's detailed records with respect to Operating Expenses, as well as all other additional rent payable by Tenant pursuant to the Lease for the calendar year which is the subject of the Actual Statement and such records for the immediately preceding calendar year. Said audit may be completed by Tenant's personnel, an independent certified public accountant or an outside consultant. Landlord shall utilize, and cause to be utilized, accounting records and procedures for each calendar year conforming to applicable generally accepted accounting principles consistently applied with respect to all the Operating Expenses for such calendar year, to enable the audit or inspection by Tenant pursuant to this clause to be conducted. Pursuant to the foregoing, Landlord shall be obligated to keep such records for all calendar years included in the Term of this Lease until one (1) year following the expiration or earlier termination of this Lease. Tenant shall give Landlord not less than ten (10) business days prior written notice of its intention to conduct any such audit. Landlord shall reasonably cooperate with Tenant during the course of such audit, which shall be conducted during normal business hours in Landlord's Project management office in Southern California. Landlord agrees to make such personnel available to Tenant as is reasonably necessary for Tenant's employees and agents to conduct such audit. Landlord shall make such records available to Tenant's employees and agents for inspection during normal business hours. Tenant's employees and agents shall be entitled to make photostatic copies of such records, provided Tenant bears the expense of such copying, and further provided that Tenant keeps such copies in a confidential manner and does not discuss, display or distribute such copies to any other third party. Tenant's failure to commence an audit within the Review Period shall be deemed to constitute Tenant's approval of the Operating Expenses and other additional rent set forth in the Actual Statement. Despite anything in this Section 4.8 to the contrary, if Tenant conducts an audit of Operating Expenses which discloses an overstatement of Tenant's Share of any particular item(s) of -5- 12 Operating Expenses which has also been a component of Operating Expenses in the immediately preceding year, then notwithstanding the limitations on the timing for Tenant's audit right as provided herein, Tenant shall be permitted to audit Landlord's books and records with respect to such item(s) for the immediately preceding calendar year (but not any year prior to such immediately preceding calendar year) and the results of any such further audit shall otherwise be subject to the terms and conditions set forth in this Section 4.8 and Section 4.9 below (except that Tenant may not then audit any additional prior years). The results of such audit, after corrections for any errors, as reasonably determined by both parties using applicable generally accepted accounting principles, shall be binding upon Landlord and Tenant and all aspects of the audit, including the results and any settlements, shall be kept strictly confidential between the parties. If such audit discloses that the amount paid by Tenant as Tenant's Share of Operating Expenses, or of other additional rent payable pursuant to this Lease, has been overstated, then the amount of such overpayment shall be credited against the next installment(s) of Operating Expenses then due (or shall be paid to Tenant if such audit was conducted at the expiration or earlier termination of the Term). In addition, if such audit discloses that the amount paid by Tenant as Tenant's Share of Operating Expenses, or of other additional rent payable pursuant to the Lease, has been overstated by more than four percent (4%) then, in addition to immediately repaying such overpayment with interest at the Interest Rate to Tenant, Landlord shall also pay the out-of-pocket costs incurred by Tenant in connection with such audit (which cost shall not exceed the amount overcharged whether repaid or credited to Tenant). In the event of a dispute between Landlord and Tenant regarding the results of any audit conducted by or at the direction of Tenant, either party may submit the matter to arbitration as provided in Section 31.20 below. 4.9 MISCELLANEOUS. Except as specifically provided herein, any delay or failure by Landlord in delivering any Estimate Statement or Actual Statement pursuant to this Section 4 will not constitute a waiver of its right to require an increase in additional rent for Operating Expenses nor will it relieve Tenant of its obligations pursuant to this Section 4, except that Tenant will not be obligated to make any payments based on such Estimate Statement or Actual Statement until thirty (30) days after receipt of such Estimate Statement or Actual Statement. Even though the Term has expired and Tenant has vacated the Premises, when the final determination is made of Tenant's Share of the actual Operating Expenses for the year in which this Lease terminates, Tenant agrees to promptly pay any increase due over the estimated expenses paid through the expiration date of the Term and, conversely, any overpayment made in the event said expenses decrease shall promptly be rebated by Landlord to Tenant. Such obligation will be a continuing one which will survive the expiration or termination of this Lease. Each time Landlord provides Tenant with an Actual Statement and/or Estimated Statement of Operating Expenses, such statement shall be reasonably itemized, showing the applicable expense for the applicable year and the year prior to the applicable year. 5. COMMUNICATION EQUIPMENT. Satellite "dishes" or other similar devices. such as antennae together with all cable, wiring, conduits (other than those conduits that are part of the Base Improvements to be constructed by Landlord pursuant to the Work Letter attached hereto in Exhibit "B") and related equipment, for the purpose of receiving and sending radio, television, computer, telephone or other communication signals, shall be referred to herein collectively as "COMMUNICATION EQUIPMENT". Subject to the terms and conditions contained in this Section 5, Tenant and Tenant's contractors (which shall first be reasonably approved by Landlord) shall have the right, at Tenant's sole cost and expense (and without any additional charges from Landlord), to install, repair, replace, remove, operate and maintain Communication Equipment on or around the Premises, the parking facilities designated for the Premises, the landscaped areas of the Premises, and the roof of the Premises, in each case at locations reasonably approved by Landlord. With respect to any installation(s) of Communication Equipment on the roof of the Premises, Tenant shall retain Landlord's designated roofing contractor or a roofing contractor reasonably approved by Landlord to make any necessary penetrations and associated repairs to the roof in order to preserve Landlord's roof warranty. Tenant's installation and operation of the Communication Equipment shall be governed by the following terms and conditions: (a) Tenant's right to install, replace, repair, remove, operate and maintain the Communication Equipment shall be subject to all governmental laws, rules and regulations, and any applicable covenants, conditions and restrictions, and Landlord makes no representation that such laws, rules and regulations permit such installation and operation. (b) All plans and specifications for the Communication Equipment shall be subject to Landlord's reasonable approval. If Landlord fails to respond to any written request for such approval from Tenant within ten (10) days after Landlord's receipt of such request, Tenant may deliver written notice to Landlord that Landlord has so failed to respond to such request for approval and if Landlord still fails to respond within ten (10) days after Landlord's receipt of such notice, Tenant's request shall be deemed approved. In no event shall Tenant's request be deemed approved without Landlord's actual approval if Tenant has failed to so notify Landlord in writing that Landlord has failed to respond to Tenant's initial request for approval. (c) All costs of installation, operation and maintenance of the Communication Equipment and any necessary related equipment (including, without limitation, costs of obtaining any necessary permits and connections to the Premises' or Project's electrical system) shall De borne by Tenant. (d) Tenant shall use the Communication Equipment so as not to cause any interference to other tenants in the Project or with any other tenant's Communication Equipment, and not to damage the Project or Premises or interfere with the normal operation of the Project. (e) Landlord shall not have any obligations with respect to the Communication Equipment. Landlord makes no representation that the Communication Equipment will be able to receive or transmit communication signals without interference or disturbance (whether or not by reason of the installation or use of similar equipment by others in the Project) and Tenant agrees that Landlord shall not be liable to Tenant therefor; provided, however, Landlord will not permit any other tenant of the Project to install any Communications Equipment which, at the time of such installation, Landlord reasonably believes will interfere with the use and operation of the Communication Equipment installed by Tenant. -6- 13 (f) Tenant shall (i) be solely responsible for any damage caused as a result of the Communication Equipment, (ii) promptly pay any tax, license or permit fees charged pursuant to any laws or regulations in connection with the installation, maintenance or use of the Communication Equipment and comply with all precautions and safeguards recommended by all governmental authorities, and (iii) pay for all necessary repairs, replacements to or maintenance of the Communication Equipment. (g) The Communication Equipment shall remain the sole property of Tenant. Tenant shall remove the Communication Equipment and related equipment at Tenant's sole cost and expense upon the expiration or earlier termination of this Lease or upon the imposition of any governmental law or regulation which may require removal, and shall repair the Premises and Project upon such removal to the extent required by such work of removal. If Tenant fails to remove the Communication Equipment and repair the Premises or portions thereof in which the Communication Equipment is located within thirty (30) days after the expiration or earlier termination of this Lease, Landlord may, following an additional five (5) days written notice to Tenant, do so at Tenant's expense. The provisions of this Section 5(g) shall survive the expiration or earlier termination of this Lease. (h) The Communication Equipment shall be deemed to constitute a portion of the Premises for purposes of Articles 17 and 20 of this Lease. 6. USE. 6.1 GENERAL. Tenant shall use the Premises solely for the Permitted Use specified in Section 1.9 of the Summary, and shall not use or permit the Premises to be used for any other use or purpose whatsoever. Tenant shall, at its sole cost and expense, observe and comply with all requirements of any board of fire underwriters or similar body relating to the Premises, and all laws, statutes, codes, reasonable and non-discriminatory rules and regulations now or hereafter in force relating to or affecting the use, occupancy, alteration or improvement (whether structural or non-structural, including unforeseen and/or extraordinary alterations or improvements, and regardless of the period of time remaining in the Term) of the Premises, including, without limitation, the provisions of the Americans with Disabilities Act and the California Disability Access Laws and their respective implementing regulations (collectively, the "ADA") as it pertains to Tenant's specific use, occupancy, improvement and alteration (whether structural or non-structural, including unforeseen and/or extraordinary alterations or improvements, and regardless of the period of time remaining in the Term) of the Premises. Tenant shall not use or allow the Premises to be used (a) in violation of any recorded covenants, conditions and restrictions affecting the Premises or of any law or governmental rule or regulation, or of any certificate of occupancy issued for the Premises, or (b) for any improper or unlawful purpose. Tenant shall not cause, maintain or permit any nuisance in, on or about the Premises, nor commit or suffer to be committed any waste in, on or about the Premises. 6.2 SIGNS. Subject to this Section 6.2 and provided that the Original Tenant, an Affiliate or a Permitted Non-Affiliate Assignee (as those terms are defined in Article 14 below) leases at least fifty percent (50%) of the rentable square feet of any Building, the Original Tenant (or such Affiliate or such Permitted Non-Affiliate Assignee) shall have the exclusive right to install, at its sole cost and expense, signage on the exterior of such Building and at locations on the property upon which such Building is located ("SIGNAGE"). The graphics, materials, color, design, lettering, lighting (if any), specifications and exact location of the Signage (collectively, the "SIGNAGE SPECIFICATIONS") and any subsequent changes thereto, shall be subject to the prior written approval of Landlord, which approval should not be unreasonably withheld, conditioned or delayed. If Landlord fails to respond to any written request for such approval from Tenant within thirty (30) days after Landlord's receipt of such request, Tenant's request shall be deemed approved. In addition, the Signage and all Signage Specifications therefor shall be subject to Tenant's receipt of all required governmental permits and approvals, shall be subject to all applicable governmental laws and ordinances, and all covenants, conditions and restrictions affecting the Premises and the Project. Tenant hereby acknowledges that, notwithstanding Landlord's approval of the Signage and/or the Signage Specifications therefor, Landlord has made no representations or warranty to Tenant with respect to the probability of obtaining such approvals and permits. In the event Tenant does not receive the necessary permits and approvals for the Signage, Tenant's and Landlord's rights and obligations under the remaining provisions of this Lease shall not be affected. The cost of installation of the Signage, as well as all costs of design and construction of such Signage and all other costs associated with such Signage, including, without limitation, permits, maintenance and repair, shall be the sole responsibility of Tenant. The rights to the Signage shall be personal to Original Tenant and may not be transferred except (i) in connection with Tenant's assignment of its entire interest in this Lease, if any, to an Affiliate or a Permitted Non-Affiliate Assignee (as those terms are defined in Section 14.5 below), and (ii) subject to the requirements for the Original Tenant an Affiliate or a Permitted Non-Affiliate Assignee specified in the first sentence of this Section 6.2 above, a subtenant of greater than 5,000 rentable square feet which has been approved by Landlord pursuant to Article 14 below shall be entitled to erect Signage in accordance with this Section 6.2, provided that the name of such subtenant is not an "Objectionable Name," as that term is defined below. The Term "OBJECTIONABLE NAME" shall mean any name that relates to an entity that is of a character or reputation, or is associated with a political orientation or faction that is materially inconsistent with the quality of the Project, or which would otherwise reasonably offend landlords of projects comparable to the project, taking into consideration the visibility of the Signage. Should the Signage require maintenance or repairs as determined in Landlord's reasonable judgment, Landlord shall have the right to provide written notice thereof to Tenant and Tenant shall cause such repairs and/or maintenance to be performed within thirty (30) days after receipt of such notice from Landlord at Tenant's sole cost and expense. Should Tenant fail to perform such maintenance and repairs within the period described in the immediately preceding sentence, Landlord shall have the right, following an additional five (5) days written notice to Tenant, to cause such work to be performed and to charge Tenant, as additional rent, for the cost of such work. Upon the expiration or earlier termination of this Lease, Tenant shall, at Tenant's sole cost and expense, cause the Signage to be removed from the exterior of the Premises and/or locations on the property on which the Premises is located and shall cause such Signage locations to be restored to the condition existing prior to the placement of such Signage. If Tenant fails to remove such Signage and to restore such Signage locations as provided in the immediately preceding sentence within thirty (30) days following the expiration or early termination of this Lease, then Landlord, following an additional five (5) days written notice to Tenant, may perform such work, and all costs and expenses incurred by Landlord in so performing such work shall be reimbursed by -7- 14 Tenant to Landlord within ten (10) days after Tenant's receipt of invoice therefor. The immediately preceding sentence shall survive the expiration or earlier termination of this Lease. Except as provided in this Section 6.2 above, Tenant may not install any signs on the exterior or roof of the Building or anywhere else in the Project. 6.3 HAZARDOUS MATERIALS. 6.3.1 TENANT'S ENVIRONMENTAL REPRESENTATIONS AND INDEMNIFICATION. Except for ordinary and general office supplies, such as copier toner, liquid paper, glue, ink and common cleaning and janitorial materials and, to the extent approved in writing by Landlord (which shall not be unreasonably withheld), materials reasonably necessary for the conduct of Tenant's business that are used and stored in compliance with all applicable laws (some or all of which may constitute "Hazardous Materials" as defined in this Lease), Tenant agrees not to cause or permit any Hazardous Materials to be brought upon, stored, used, handled, generated, released or disposed of on, in, under or about the Premises by Tenant, its agents, employees, subtenants, assignees, licensees, contractors or invitees (collectively, "TENANT'S PARTIES"), without the prior written consent of Landlord, which consent Landlord may withhold in its sole and absolute discretion. Concurrently with the execution of this Lease, Tenant agrees to complete and deliver to Landlord an Environmental Questionnaire in the form of Exhibit "D" attached hereto. Upon the expiration or earlier termination of this Lease, Tenant agrees to promptly remove from the Premises, at its sole cost and expense, any and all Hazardous Materials, including any equipment or systems containing Hazardous Materials which are installed, brought upon, stored, used, generated or released upon, in, under or about the Premises by Tenant or any of Tenant's Parties. To the fullest extent permitted by law, Tenant agrees to promptly indemnify, protect, defend and hold harmless Landlord and Landlord's partners, officers, directors, employees, agents, successors and assigns (collectively, "LANDLORD INDEMNIFIED PARTIES") from and against any and all claims, damages, judgments, suits, causes of action, losses, liabilities, penalties, fines, expenses and costs (including, without limitation, clean-up, removal, remediation and restoration costs, sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees and court costs) which arise or result from the presence of Hazardous Materials on, in, under or about the Premises and which are caused or permitted by Tenant or any of Tenant's Parties or any other persons or entities. Tenant agrees to promptly notify Landlord of any release of Hazardous Materials of which Tenant obtains actual knowledge during the Term of this Lease, whether caused by Tenant or any other persons or entities. In the event of any release of Hazardous Materials caused or permitted by Tenant or any of Tenant's Parties or any other persons or entities, Landlord shall have the right, but not the obligation, to cause Tenant to immediately take all steps Landlord deems reasonably necessary or appropriate to remediate such release and prevent any similar future release to the satisfaction of Landlord and Landlord's mortgagee(s). At all times during the Term of this Lease, Landlord will have the right, but not the obligation, following reasonable advance written notice to Tenant (except in the case of an emergency when no notice shall be required) to enter upon the Premises to inspect, investigate, sample and/or monitor the Premises to determine if Tenant is in compliance with the terms of this Lease regarding Hazardous Materials. Tenant will, upon the request of Landlord, cause to be performed an environmental audit of the Premises at Tenant's expense by an environmental consulting firm reasonably acceptable to Landlord. As used in this Lease, the term "HAZARDOUS MATERIALS" shall mean and include any hazardous or toxic materials, substances or wastes as now or hereafter designated or regulated under any law, statute, ordinance, rule, regulation, order or ruling of any agency of the State, the United States Government or any local governmental authority, including, without limitation, asbestos, petroleum, petroleum hydrocarbons and petroleum based products, urea formaldehyde foam insulation, polychlorinated biphenyls ("PCBs"), and freon and other chlorofluorocarbons. The provisions of this Section 6.3.1 will survive the expiration or earlier termination of this Lease. 6.3.2 LANDLORD'S ENVIRONMENTAL REPRESENTATIONS AND INDEMNIFICATION. Landlord represents and warrants to Tenant that as of the date of this Lease and to Landlord's actual knowledge and except as disclosed in that certain Phase 1 dated June, 1996, prepared by Robert Prater Associates (i) there are no Hazardous Materials in, on, under, below or otherwise located on or about the Premises in violation of applicable law, and (ii) there has been no release or migration of any Hazardous Materials in violation of applicable law onto, beneath, upon or about the Premises. Landlord shall indemnify, protect, defend and hold Tenant, its successors, assigns, subtenants, agents, employees, officers and directors harmless from any and all losses, damages, liabilities, judgments, costs, claims, expenses, penalties, including, but not limited to, attorneys' fees, court costs and consultant fees (a) arising out of or involving any Hazardous Materials introduced to the Premises by Landlord to the extent that the same were Hazardous Materials at the time of such introduction to the Premises; or (b) due to Landlord's breach of its foregoing representation. The provisions of this Section 6.3.2 will survive the expiration or earlier termination of this Lease. Landlord's actual knowledge means the actual knowledge of the following individuals, without inquiry: Steven L. Black, Steven R. Scott, James Edwards and Stephen R. Stock, who Landlord represents are the representatives of Landlord who are most knowledgeable with respect to the existing physical condition of the Project. In addition, Landlord shall be responsible for, at Landlord's sole cost and expense, the repair, cleanup, detoxification, encapsulation, removal and/or remediation of Hazardous Materials, to the extent such action is necessitated, directly or indirectly, by the presence or use, generation, storage, release, or disposal of Hazardous Materials by any person at the Project (or the real property on which the Project is located) prior to the Early Occupancy Date, including any prior owner of such real property and to the extent such removal or remediation is required by applicable law, provided that the presence, generation, storage, release, or disposal of such Hazardous Material is not the result of acts or omissions of Tenant, its agents, contractors or employees (which acts or omissions shall be governed by Section 6.3.1 above). 6.4 REFUSE AND SEWAGE. Tenant agrees not to keep any trash, garbage, waste or other refuse on the Premises except in proper containers and agrees to contract directly for the regular removal of the same from the Premises. Tenant shall keep all containers or other equipment used for storage of such materials in a clean and sanitary condition. Tenant shall, at Tenant's sole cost and expense, properly dispose of all sanitary sewage and shall not use the sewage disposal system for the disposal of anything except sanitary sewage. Tenant shall keep that portion of the sewage disposal system within Tenant's Site free of all obstructions and in good operating condition. Tenant shall contract directly for all trash disposal services at Tenant's sole cost and expense. -8- 15 6.5 ACCESS/SECURITY SYSTEM. Landlord acknowledges that, subject to Sections 18 and 19 below, the Premises shall be accessible to Tenant twenty-four (24) hours per day, seven (7) days per week, every day of the year, including holidays. Landlord acknowledges that as a part of the Tenant Improvements, Tenant intends to install an automated security system in, on, or about the Premises, including, without limitation, a cardreader access system for access through all exterior doors of the Buildings which shall be programmable and controlled by a computer system located within the Buildings and capable of remote access by employees of Tenant. Landlord shall have the right to review and to approve or disapprove the plans in Landlord's reasonable discretion as provided in the Work Letter Agreement attached to this Lease as Exhibit "B". Landlord agrees that Tenant shall have the right, upon the expiration or earlier termination of this Lease, to remove the security system; provided, however, Tenant shall, at its sole cost and expense, repair any damage caused by such removal. 7. PAYMENTS AND NOTICES. All Rent and other sums payable by Tenant to Landlord hereunder shall be paid to Landlord at the address designated in Section 1.1 of the Summary, or to such other persons and/or at such other places as Landlord may hereafter designate in writing. Any notice required or permitted to be given hereunder must be in writing and may be given by personal delivery (including delivery by nationally recognized overnight courier or express mailing service), or by registered or certified mail, postage prepaid, return receipt requested, addressed to Tenant at the address(es) designated in Section 1.2 of the Summary, or to Landlord at the address(es) designated in Section 1.1 of the Summary. Either party may, by written notice to the other, specify a different address for notice purposes. 8. BROKERS. The parties recognize that the brokers who negotiated this Lease are stated in Section 1.10 of the Summary and that Landlord shall be solely responsible for the payment of the brokerage commission to the brokers and that Tenant shall have no obligation or responsibility therefor. Such commissions are to be paid (a) to CB Richard Ellis, Inc. at the rate of $7.71 per rentable square foot for Buildings 1 and 2 and (b) to Colliers Iliff Thom at the rate of $3.00 per rentable square foot for Buildings 1 and 2, and in the event Tenant exercises its Option to Expand pursuant to Section 33 below, Landlord shall pay to CB Richard Ellis, Inc. and Colliers Iliff Thom commissions at the respective rates of $7.71 and $3.00 per rentable square foot of Building 3 (such commission amounts for Building 3 to be prorated by Landlord on a straight line basis based upon the time remaining in the initial Lease Term as of the effective date of Tenant's lease of such expansion space). Landlord further agrees that fifty percent (50%) of the brokerage commission to be paid to CB Richard Ellis, Inc. for Buildings 1 and 2 only shall be due and payable at such time as this Lease has been signed by Landlord and Tenant and a deed of trust evidencing a loan for the construction of the Premises has been recorded against the Premises; provided, however, if the deed of trust evidencing the loan for the construction of the Premises has not been recorded within sixty (60) days from the date of last execution of this Lease by Landlord and Tenant, the first fifty percent (50%) of such brokerage commission for Buildings 1 and 2 shall become immediately due and payable. The remaining fifty percent (50%) of the brokerage commission for Building 1 and 2 shall be paid to CB Richard Ellis, Inc. on the Commencement Date. In the event that Landlord fails to make any payment to CB Richard Ellis, Inc. on or before the date due as specified in this Section 8 above, Tenant may send a factually correct written notice to Landlord and CB Richard Ellis, Inc. of such failure and if Landlord still fails to pay said amounts to CB Richard Ellis, Inc. as described in Tenant's written notice within thirty (30) days after Landlord's receipt of said written notice, Tenant shall have the option (but shall not be required) to pay said amounts directly to CB Richard Ellis, Inc. and to offset the amounts so paid by Tenant to CB Richard Ellis, Inc. together with interest at the Interest Rate from the date of payment until the date of offset, from Tenant's next Monthly Rent obligations which may become due under this Lease. Any amounts so paid by Tenant to CB Richard Ellis, Inc. and offset from Tenant's Monthly Rent obligations under this Lease shall no longer be owed from Landlord to CB Richard Ellis, Inc. Each party represents and warrants to the other, that, to its knowledge, no other broker, agent or finder (a) negotiated or was instrumental in negotiating or consummating this Lease on its behalf, and (b) is or might be entitled to a commission or compensation in connection with this Lease. Any broker, agent or finder of Tenant whom Tenant has failed to disclose herein shall be paid by Tenant. Tenant shall indemnify, protect, defend (by counsel reasonably approved in writing by Landlord) and hold Landlord harmless from and against any and all claims, judgments, suits, causes of action, damages, losses, liabilities and expenses (including attorneys' fees and court costs) resulting from any breach by Tenant of the foregoing representation, including, without limitation, any claims that may be asserted against Landlord by any broker, agent or finder undisclosed by Tenant herein. Landlord shall indemnify, protect, defend (by counsel reasonably approved in writing by Tenant) and hold Tenant harmless from and against any and all claims, judgments, suits, causes of action, damages, losses, liabilities and expenses (including attorneys' fees and court costs) resulting from any breach by Landlord of the foregoing representation, including, without limitation, any claims that may be asserted against Tenant by any broker, agent or finder undisclosed by Landlord herein. The foregoing indemnities shall survive the expiration or earlier termination of this Lease. 9. SURRENDER: HOLDING OVER. 9.1 SURRENDER OF PREMISES. Upon the expiration or sooner termination of this Lease, Tenant shall surrender all keys for the Premises to Landlord, and Tenant shall deliver exclusive possession of the Premises to Landlord broom clean and in first-class condition and repair, reasonable wear and tear excepted (and casualty damage excepted if this Lease is terminated as a result thereof pursuant to Section 18), with all of Tenant's personal property (and those items, if any, of Tenant Improvements and Tenant Changes identified by Landlord pursuant to Section 12.2 below) removed therefrom and all damage caused by such removal repaired, as required pursuant to Sections 12.2 and 12.3 below. If, for any reason, Tenant fails to surrender the Premises on the expiration or earlier termination of this Lease, with such removal and repair obligations completed, then, in addition to the provisions of Section 9.3 below and Landlord's rights and remedies under Section 12.4 and the other provisions of this Lease, Tenant shall indemnify, protect, defend (by counsel reasonably approved in writing by Landlord) and hold Landlord harmless from and, against any and all claims, judgments, suits, causes of action, damages, losses, liabilities and expenses (including attorneys' fees and court costs but excluding, in any event, consequential damages) resulting from such failure to surrender. 9.2 HOLDING OVER. If Tenant, without Landlord's consent, holds over after the expiration or earlier termination of the Lease Term, then, without waiver of any right on the part of Landlord as a result of Tenant's failure to timely surrender -9- 16 possession of the Premises to Landlord, Tenant shall become a tenant at sufferance only, upon the terms and conditions set forth in this Lease so far as applicable (including Tenant's obligation to pay all costs, expenses and any other additional rent under this Lease), but at a Monthly Rent equal to a percentage of the Monthly Rent applicable to the Premises immediately prior to the date of such expiration or earlier termination, which percentage shall be (i) one hundred twenty-five percent (125%) for the first three (3) months of such holding over and (ii) one hundred fifty percent (150%) thereafter. Acceptance by Landlord of rent after such expiration or earlier termination shall not constitute a consent to a hold over hereunder or result in an extension of this Lease. 9.3 PRE-APPROVED HOLDING OVER. Notwithstanding the foregoing, by written notice to Landlord given at least six (6) months prior to the expiration of the original Term or any Option Period, Tenant shall have a one-time right to elect to hold over in the entire Premises (which hold over will be deemed to be with Landlord's consent for one (1), two (2), or three (3) full months as specified in Tenant's notice). Any such hold over shall be upon all of the terms and conditions of this Lease, as applicable, except that Monthly Rent shall be one hundred twenty-five percent (125%) of the Monthly Rent applicable immediately prior to such hold over. The original Term (or any applicable Option Period) will be extended for the period specified in such written notice by Tenant to Landlord and a vacation of the Premises by Tenant prior to such date will not relieve Tenant of its obligation to pay Monthly Rent and additional rent accruing under this Lease through such expiration, as extended pursuant to Tenant's notice. 9.4 NO EFFECT ON LANDLORD'S RIGHTS. The foregoing provisions of this Section 9 are in addition to, and do not affect, Landlord's right of re-entry or any other rights of Landlord hereunder or otherwise provided at law or in equity. 10. TAXES. 10.1 Real Property Taxes. Except as specifically provided in this Section 10.1 below, Tenant agrees to pay all general and special real property taxes, assessments (including, without limitation, change in ownership taxes or assessments), liens, bond obligations, license fees or taxes and any similar impositions in-lieu of other impositions now or previously within the definition of real property taxes or assessments and any and all assessments under any covenants, conditions and restrictions affecting the Premises (collectively "REAL PROPERTY TAXES") which may be now or hereafter levied or assessed against the Premises applicable to the period from the Commencement Date, until the expiration or sooner termination of this Lease. Notwithstanding the foregoing provisions, if the Real Property Taxes are not levied and assessed against the Premises as separate tax parcels, then Tenant shall pay Tenant's pro rata share of all Real Property Taxes which may be levied or assessed by any lawful authority against the land and improvements of the separate tax parcel on which the Premises are located. Tenant's pro rata share under such circumstances shall be apportioned according to the value of the Premises as it relates to the total value of all of the buildings (including the Premises) situated in the separate tax parcel in which the Premises is located. All Real Property Taxes for the tax year in which the Commencement Date occurs and for the tax year in which this Lease terminates shall be apportioned and adjusted so that Tenant shall not be responsible for any Real Property Taxes for a period of time occurring prior to the Commencement Date or subsequent to the expiration of the Lease term. Tenant agrees to pay to the taxing authority entitled thereto the total Real Property Taxes due. On or before the Commencement Date, Landlord shall make arrangements with the applicable taxing authorities for the delivery of the statements for such Real Property Taxes directly to Tenant. Any of said payments to be made directly to the taxing authority shall be made prior to the delinquency date established by the taxing authority, and Tenant shall, within ten (10) business days after Tenant's receipt of written request from Landlord, deliver evidence of such payment to Landlord. Failure of Tenant to pay said Real Property Taxes as and when herein specified shall, in addition to all other rights and remedies of Landlord hereunder, subject Tenant to any fine, penalty, interest, or cost which Landlord may incur as a result thereof. Tenant shall, within thirty (30) days after demand, reimburse Landlord for any such fine, penalty, interest, or cost, together with interest thereon at the Interest Rate. Landlord and Tenant hereby agree and acknowledge that Tenant shall be entitled to contest and/or appeal the Real Property Taxes assessed by any applicable taxing authority directly to such authority, provided that Tenant shall indemnify, defend and hold Landlord harmless from any and all claims, liabilities and damages incurred by Landlord in connection therewith. If at any time during the Term under the laws of the United States, or the state, county, municipality, or any political subdivision thereof in which the Premises is located, a tax or excise on rent or any other tax however described is levied or assessed by any such political body against Landlord on account of rent payable to Landlord hereunder or any tax based on or measured by expenditures made by Tenant on behalf of Landlord, such tax or excise shall be considered "Real Property Taxes" for purposes of this Section 10.1, and shall be payable in full by Tenant. Such taxes or excises shall be payable within thirty (30) days after Tenant's receipt of the tax bill therefor from Landlord. Despite the foregoing, under no circumstances shall Real Property Taxes include Landlord's federal, state or local income, franchise, inheritance or estate taxes. Notwithstanding anything to the contrary contained herein, to the extent that any of the following items are not of record, as of the date of this Lease. Real Property Taxes and assessments shall not include: (i) any assessment districts or landscape districts, or assessments associated with any other site improvements; (ii) Mello-Roos type infrastructure financing assessments of any type; (iii) costs or fees payable to public authorities in connection with any future construction, renovation and/or improvements to the Project; (iv) reserves for future Real Property Taxes; and (v) any documentary transfer taxes arising from a voluntary transfer of the Premises or any portion of the Project by Landlord. If a reduction in Real Property Taxes is obtained for any year of the Term during which Tenant paid such Real Property Taxes, then Tenant, at Tenant's option, shall be entitled to such reduction by way of direct reimbursement. If, by applicable law, any taxes or assessments may be paid in installments at the option of the taxpayer, then Tenant may pay such taxes and assessments in installments. -10- 17 10.2 PERSONAL PROPERTY TAXES. Except as provided in Section 10.1 above, Tenant shall be liable for, and shall pay before delinquency, all taxes and assessments (real and personal) levied against (a) any personal property or trade fixtures placed by Tenant in or about the Premises (including any increase in the assessed value of the Premises based upon the value of any such personal property or trade fixtures); and (b) any Tenant Improvements or alterations in the Premises (whether installed and/or paid for by Landlord or Tenant). If any such taxes or assessments are levied against Landlord or Landlord's property, Landlord may, after a minimum of ten (10) business days prior written notice to Tenant (and under proper protest if requested by Tenant) pay such taxes and assessments, and Tenant shall reimburse Landlord therefor within thirty (30) days after demand by Landlord; provided, however, Tenant, at its sole cost and expense, shall have the right, with Landlord's cooperation, to bring suit in any court of competent jurisdiction to recover the amount of any such taxes and assessments so paid under protest. 11. REPAIRS. 11.1 TENANT'S REPAIR OBLIGATIONS. Except for (i) Landlord's obligations to maintain those Common Areas (other than Tenant's Site) as provided in Section 4.2; and (ii) Landlord's obligations under Section 11.2 and the Work Letter Agreement attached to this Lease as Exhibit "B", Tenant shall at all times and at Tenant's sole cost and expense, keep, maintain, clean, repair, renovate, retrofit, replace and preserve the Premises, Tenant's Site and all parts thereof, including, without limitation, (a) utility meters, plumbing, pipes and conduits, all heating, ventilating and air conditioning systems located within the Premises, all fixtures, furniture and equipment, Tenant's Signage (as provided further in Section 6.2 above), locks, closing devices, security devices, windows, window sashes, casements and frames, floors and floor coverings, shelving, restrooms, ceilings, interior walls, roof membranes, skylights, interior partition walls and demising walls, doors, electrical and lighting equipment, sprinkler systems, loading dock areas and doors, and all Base Improvements (other than those identified to be Landlord's responsibility under Section 11.2), Tenant Improvements, Tenant Changes and other alterations, additions and other property and/or fixtures located within the Premises and (b) to the extent such items are included in Tenant's Site, parking facilities (including slurry coating at such intervals during the initial Term and any Option Periods(s) as reasonably determined by Tenant), driveways (including regularly scheduled sweeping), walkways, rail spur areas (if any), fences, lawns and landscaped areas, in a condition consistent with comparable first-class buildings in the Sorrento Mesa area, reasonable wear and tear excepted. Tenant's repair and maintenance obligations shall include, but not be limited to, responsibility for painting the exterior of the Premises whenever necessary to maintain the first-class appearance of the Premises. Except as provided in Section 11.2, Tenant shall at all times during the Term make all changes, repairs and improvements to the Premises of every kind and nature, whether ordinary or extraordinary, foreseen or unforeseen, which may be required by any Laws or for the safety of the Premises. Tenant agrees to procure and maintain contracts for janitorial services and maintenance contracts for all heating, ventilating and air conditioning systems. Such services, maintenance and repairs shall be performed with due diligence, lien-free and in a good and workmanlike manner, by reputable licensed contractor(s) which are selected by Tenant and approved by Landlord, which approval Landlord shall not unreasonably withhold or delay. 11.2 LANDLORD'S REPAIR RIGHTS AND OBLIGATIONS. Except as provided in this Section 11.2, Section 11.3 below and in the Work Letter Agreement attached to this Lease as Exhibit "B", Landlord has no obligation whatsoever to alter, remodel, improve, repair, renovate, retrofit, replace, redecorate or paint all or any part of the Premises. Except as specifically provided in Section 11.4 below, Tenant waives the right to make repairs at Landlord's expense under any law, statute or ordinance now or hereafter in effect (including the provisions of California Civil Code Section 1942 and any successive sections or statutes of a similar nature). If Tenant fails to perform Tenant's obligations under Section 11.1 hereof, or under any other provision of this Lease, then Landlord shall have the option (but not the obligation) to enter upon the Premises after ten (10) days' prior written notice to Tenant, or in the case of an emergency immediately without prior notice, to perform such obligations on Tenant's behalf necessary to return the Premises to good order, condition and repair, whereupon the actual and documented costs incurred by Landlord shall become due and payable to Landlord, upon demand, together with a fee of five percent (5%) of the costs of such work for Landlord's managing agent. Promptly following written notice thereof from Tenant, Landlord shall perform, at its cost and expense, all improvements to the Buildings to the extent and only to the extent such improvements are necessary due to the failure of the Buildings, at Substantial Completion, to comply with the requirements of all building codes and laws (including the ADA) applicable as of Substantial Completion and in no way arising from or in connection with any act, omission or construction carried out by or for Tenant at the Premises. No later than forty-five (45) days following the Commencement Date, Landlord shall provide Tenant with a complete list of all major contractors and subcontractors and a complete list of the manufacturers and suppliers of all major components of the Buildings and the major building systems (such as the roof, elevators, HVAC and electrical systems) and Landlord shall assign to Tenant all warranties received from, and all rights of enforcement of such warranties against, all contractors and subcontractors, manufacturers and suppliers involved in the construction of the Premises, except for those warranties and rights pertaining to those components of the Premises for which Landlord is responsible pursuant to this Section 11.2. Despite any such assignment, in the event any contractor, subcontractor, manufacturer or supplier fails or refuses to honor any such warranty or fails to recognize Tenant's rights to enforce any such warranty, Landlord agrees to reasonably cooperate with Tenant, at no cost to Landlord, to enforce such warranty. 11.3 CONDITION OF PREMISES. Landlord shall cause the Premises and all Common Areas of the Project to be constructed in a first-class, lien-free manner in accordance with all applicable building codes in effect as of the Commencement Date and then being enforced against Landlord including, without limitation, any requirements of the ADA (as defined in Section 6.1 above). If Tenant notifies Landlord within one (1) year after the Commencement Date that the Premises or any Common Areas are in violation of any such law which was in effect and enforced against Landlord as of the Commencement Date, or that the Premises or the Common Areas or any portion thereof is defective, Landlord, at Landlord's sole cost and expense, shall promptly make those modifications necessary to bring such item into compliance with such law(s) or to cure such defect, as applicable. In addition, throughout the Term of this Lease and any Option Period(s) (if applicable), Landlord shall be responsible for the repair of any defects in design or construction of the foundation, slab structure, exterior wall structure and roof structure (excluding the roof membrane) of the Buildings. Tenant acknowledges and agrees that, except to the extent specifically set forth in this Lease, Landlord has not made, -11- 18 does not make and specifically negates and disclaims any representations, warranties, promises, covenants, agreements or guarantees of any kind or character whatsoever concerning or with respect to (a) the value, nature, quality or condition of the Premises; (b) the suitability of the Premises for any and all activities and uses which Tenant may conduct thereon; (c) the compliance of the Premises with any future laws, rules, ordinances or regulations of any applicable governmental authority or body, including, without limitation, environmental laws (collectively, "LAWS"); (d) the manner or quality of the construction or materials incorporated into the Premises; (e) the manner, quality, state of repair or lack of repair of the Premises; or (f) any other matter with respect to the Premises. 11.4 TENANT'S RIGHT TO MAKE REPAIRS. If Tenant provides written notice to Landlord of an event or circumstance which requires the action of Landlord with respect to the Landlord's repair rights and obligations as described in Section 11.2 or 11.3 above, and Landlord fails to provide or commence (i.e. begin making arrangements for such work (or fails thereafter to proceed to complete such work with diligent efforts as required by the terms of this Lease) within ten (10) days after receipt of such written notice (or such shorter period of time as may be applicable in the event of an emergency), Tenant may proceed to take the required action upon delivery of an additional five (5) business days notice to Landlord (or within the applicable and appropriate time period based on an emergency) specifying that Tenant is taking such required action, and if such action was required under the terms of this Lease to be taken by Landlord, then Tenant shall be entitled to prompt reimbursement by Landlord of Tenant's costs and expenses in taking such action plus interest at the Interest Rate during the period from the date Tenant incurs such costs and expenses until such time as payment is made by Landlord. Tenant may utilize the services of any qualified contractor which normally and regularly performs similar work in other comparable buildings and building projects located in the Sorrento Mesa area of San Diego, of similar age and quality of construction (hereinafter, "COMPARABLE BUILDINGS"). Further, if Landlord does not deliver a detailed written objection to Tenant, within thirty (30) days after receipt of an invoice by Tenant of its costs of taking action which Tenant claims should have been taken by Landlord, and if such invoice from Tenant sets forth a reasonably particularized breakdown of its costs and expenses in connection with taking such action on behalf of Landlord, then Tenant shall be entitled to deduct from the Monthly Rent payable by Tenant under this Lease, the amount set forth in such invoice together with interest at the Interest Rate. If, however, Landlord in good faith delivers to Tenant, within thirty (30) days after receipt of Tenant's invoice, a written objection to the payment of such invoice, setting forth with reasonable particularity Landlord's reasons for its claim that such action did not have to be taken by Landlord pursuant to the terms of this Lease or that the charges are excessive (in which case Landlord shall pay the amount it contends would not have been excessive), then Tenant shall not be entitled to such deduction from Monthly Rent, but Tenant may commence arbitration proceedings against Landlord (in the manner set forth in Section 31.20 below) to collect the amount set forth in the subject invoice. 12. ALTERATIONS. 12.1 TENANT CHANGES; CONDITIONS. 12.1.1 Tenant shall not make any alterations, additions, improvements or decorations to the Premises (collectively, "TENANT CHANGES," and individually, a "TENANT CHANGE") unless Tenant first obtains Landlord's prior written approval thereof, which approval Landlord shall not unreasonably withhold, condition or delay. Notwithstanding the foregoing, Landlord's prior approval shall not be required for any Tenant Change which satisfies all of the following conditions (hereinafter a "PRE-APPROVED CHANGE"): (i) the costs of such Tenant Change does not exceed One Hundred Thousand Dollars ($100,000) individually; (ii) Tenant delivers to Landlord final plans, specifications and working drawings (if necessary) or such Tenant Change at least ten (10) days prior to commencement of the work thereof; (iii) Tenant and such Tenant Change otherwise satisfy all other conditions set forth in this Section 12.1; and (iv) the Tenant Change does not affect the structural, mechanical, life-safety or exterior elements of the Premises and such Tenant Change is not visible from the exterior of the Premises. The construction of the Buildings and the initial Tenant Improvements therein shall be governed by the Work Letter Agreement and not this Article 12; this Article 12 shall only apply to Tenant Changes subsequent to initial construction. 12.1.2 All Tenant Changes shall be performed: (i) in accordance with the approved plans, specifications and working drawings; (ii) lien-free and in a good and workmanlike manner; (iii) in compliance with all laws, rules and regulations of all governmental agencies and authorities including, without limitation, applicable building permit requirements and/or the provisions of Title III of the ADA; and (iv) at such times, in such manner and subject to such non-discriminatory rules and regulations as Landlord may from time to time reasonably designate. 12.1.3 Throughout the performance of the Tenant Changes, Tenant shall obtain, or cause its contractors to obtain, workers compensation insurance in compliance with the provisions of Section 20 of this Lease and "Builder's All Risk" insurance in a commercially reasonable amount given the scope of the Tenant Change, covering the construction of such Tenant Change, it being understood by Tenant, that all such Tenant Changes shall be insured by Tenant pursuant to Section 20 upon the completion thereof. 12.1.4 Landlord agrees that Landlord shall approve or disapprove for reasonable reasons, the plans and specifications and/or working drawings for any proposed Tenant Change within ten (10) business days after receipt of the same by Landlord and, if disapproved, Landlord shall return the plans and specifications and/or working drawings to Tenant together with a reasonably detailed statement of the basis for Landlord's disapproval thereof and Tenant shall direct Tenant's architect or space planner to make all necessary revisions to the same. If Landlord thereafter disapproves the plans and specifications and/or working drawings for the proposed Tenant Change as revised, Landlord, Tenant and Tenant's architect or space planner shall, within three (3) business days following receipt of notice of such disapproval, meet and revise the plans and specifications and/or working drawings to the reasonable satisfaction of Landlord and Tenant. This procedure shall be repeated until Landlord and Tenant ultimately approve the plans and specifications and/or working drawings for the proposed Tenant Change. Despite the foregoing, if Landlord fails to respond to any request by Tenant for approval of a Tenant Change within ten (10) business days after receipt of Tenant's request for -12- 19 such approval, Landlord's failure to respond within three (3) business days after receipt of a second notice after the expiration of the initial ten (10) business day period, shall be deemed to be Landlord's approval with respect to the same. 12.1.5 Notwithstanding anything to the contrary contained herein, Landlord and Tenant hereby agree and acknowledge that it is Tenant's intention to construct a child care facility on the Premises for use by Tenant's employees (the "CHILD CARE FACILITIES"). Tenant hereby agrees and acknowledges that, if permitted by applicable Laws and subject to Tenant's receipt of all applicable governmental approvals and permits, Tenant shall be entitled to construct the Child Care Facilities in accordance with the terms of this Section 12.1 (and not the terms of the Tenant Work Letter). Tenant acknowledges that Landlord's requirements for the plans and specifications and working drawings for the Child Care Facilities to be approved by Landlord pursuant to this Section 12.1 may include a requirement for aesthetic screening. Tenant further acknowledges that any such Child Care Facilities located on the Premises which are available to Tenant and Tenant's employees will be provided by Tenant or a third party (the "CHILD CARE PROVIDER") and not by Landlord. If Tenant's employees choose to use the Child Care Facilities, Tenant acknowledges that Tenant and Tenant's employees are not relying upon any investigation which Landlord may have conducted concerning the Child Care Provider or any warranties or representation with respect thereto, it being the sole responsibility of Tenant and the individual user of the Child Care Facilities to conduct any and all investigations of the Child Care Facilities prior to making use thereof. Accordingly, Landlord shall have no responsibility with respect to the quality or care provided by the Child Care Facilities, or for any acts or omissions of the Child Care Provider. Furthermore, Tenant, for Tenant and for Tenant's employees, hereby agrees that Landlord, its members, partners, subpartners and their respective officers, agents, servants, employees, and independent contractors shall not be liable for, and are hereby released from any responsibility for any loss, cost, damage, expense or liability, either to person or property, arising from the use of the Child Care Facilities by Tenant or Tenant's employees. Nothing contained herein is intended to be a representation or warranty by Landlord that any Child Care Facilities will be permitted by Law during the Lease Term and Landlord shall have no obligation to provide, or to make available, any such Child Care Facilities. 12.2 REMOVAL OF TENANT CHANGES AND TENANT IMPROVEMENTS. All Tenant Changes and the initial Tenant Improvements in the Premises shall become the property of Landlord and shall remain upon and be surrendered with the Premises at the end of the Term of this Lease; provided, however, Landlord may, by written notice delivered to Tenant at the time of Landlord's consent to such Tenant Change or approval of the Final Plans (as applicable), identify those items of the initial Tenant Improvements and Tenant Changes which are not typical office improvements and which Landlord shall require Tenant to remove at the end of the Term of this Lease. However, notwithstanding the foregoing, Landlord shall not be entitled to require Tenant to remove any initial Tenant Improvements which are typical office improvements and which are consistent with the plans and specifications reviewed by Landlord as of the date of this Lease and, in any event, Landlord shall not require Tenant to remove any of the improvements associated with the Child Care Facilities or the cafeteria planned by Tenant as of the date of this Lease. If Landlord requires, Tenant to remove any such items as described above, Tenant shall, at its sole cost, remove the identified items on or before the expiration or sooner termination of this Lease and repair any damage to the Premises caused by such removal (or, at Landlord's option, and provided Landlord has given Tenant at least ten (10) business days written notice prior to taking any action, shall pay to Landlord all of Landlord's actual and documented costs of such removal and repair). 12.3 REMOVAL OF PERSONAL PROPERTY. All articles of personal property owned by Tenant or installed by Tenant at its expense in the Premises (including business and trade fixtures, furniture and movable partitions, phone systems and security systems) shall be, and remain, the property of Tenant, and shall be removed by Tenant from the Premises. at Tenant's sole cost and expense, on or before the expiration or sooner termination of this Lease. Tenant shall repair any damage caused by such removal. 12.4 TENANT'S FAILURE TO REMOVE. If Tenant fails to remove by the expiration or sooner termination of this Lease all of its personal property, or any items of Tenant Improvements or Tenant Changes identified by Landlord for removal pursuant to Section 12.2 above, Landlord may, following an additional ten (10) business days' prior written notice to Tenant (without liability to Tenant for loss thereof), at Tenant's sole cost and in addition to Landlord's other rights and remedies under this Lease, at law or in equity: (a) remove and store such items in accordance with applicable law; and/or (b) upon ten (10) business days' prior notice to Tenant sell all or any such items at private or public sale for such price as Landlord may obtain as permitted under applicable law. Landlord shall apply the proceeds of any such sale to any amounts due to Landlord under this Lease from Tenant (including Landlord's attorneys' fees and other costs incurred in the removal, storage and/or sale of such items), with any remainder to be paid to Tenant. 13. LIENS. Tenant shall not permit any mechanic's, materialmen's or other liens to be filed against all or any part of the Premises, nor against Tenant's leasehold interest in the Premises, by reason of or in connection with any repairs, alterations, improvements or other work contracted for or undertaken by Tenant or any other act or omission of Tenant or Tenant's agents, employees, contractors, licensees or invitees. Tenant shall, at Landlord's request, provide Landlord with enforceable, conditional and final lien releases (and other reasonable evidence reasonably requested by Landlord to demonstrate protection from liens) from all persons furnishing labor and/or materials with respect to the Premises. Landlord shall have the right at all reasonable times to post on the Premises and record any notices of non-responsibility which it deems necessary for protection from such liens. If any such liens are filed, Tenant shall, at its sole cost, promptly cause such lien to be released of record or bonded so that it no longer affects title to the Premises. If Tenant fails to cause such lien to be so released or bonded within twenty (20) days after filing thereof, Landlord may, following an additional ten (10) business days' prior written notice to Tenant, without waiving its rights and remedies based on such breach, and without releasing Tenant from any of its obligations, cause such lien to be released by posting of an appropriate bond to cause the lien to be released. Tenant shall pay to Landlord within fifteen (15) days after receipt of invoice from Landlord, any sum paid by Landlord to obtain the bonds required to remove such liens, together with interest at the Interest Rate from the date of such payment by Landlord. -13- 20 14. ASSIGNMENT AND SUBLETTING 14.1 RESTRICTION ON TRANSFER. Tenant will not assign or encumber this Lease in whole or in part, nor sublet all or any part of the Premises, without the prior written consent of Landlord, which consent Landlord will not unreasonably withhold, condition or delay, except as provided in this Section 14. The consent by Landlord to any assignment, encumbrance or subletting shall not constitute a waiver of the necessity for such consent to any subsequent assignment or subletting. This prohibition against assigning or subletting shall be construed to include a prohibition against any assignment or subletting by operation of law. Except as provided in Section 14.6 below, irrespective of any assignment or sublease, Tenant shall remain fully liable under this Lease and shall not be released from performing any of the terms, covenants and conditions of this Lease. Without limiting in any way Landlord's right to withhold its consent on any reasonable grounds, it is agreed that Landlord will not be acting unreasonably in refusing to consent to an assignment or sublease if, in Landlord's reasonable opinion, (i) the proposed assignee does not have the financial capability to fulfill the obligations imposed by the assignment, or (ii) the proposed assignment or sublease involves a change of use of the Premises from that specified herein. Any proposed assignee or subtenant which Landlord does not disapprove shall be deemed a "PERMITTED BUSINESS." 14.2 TRANSFER NOTICE. If Tenant desires to effect an assignment, encumbrance or subletting (a "TRANSFER") for which Landlord's consent is required, then at least fifteen (15) business days prior to the date when Tenant desires the Transfer to be effective (the "TRANSFER DATE"), Tenant agrees to give Landlord a notice (the "TRANSFER NOTICE"), stating the name, address and business of the proposed assignee, sublessee or other transferee (sometimes referred to hereinafter as "TRANSFEREE"), reasonable information (including references) concerning the ownership, and financial condition of the proposed Transferee, the Transfer Date, any ownership or commercial relationship between Tenant and the proposed Transferee, and the consideration and all other material terms and conditions of the proposed Transfer, all in such detail as Landlord may reasonably require. 14.3 LANDLORD'S OPTIONS. Within ten (10) business days of Landlord's receipt of any Transfer Notice, and any additional information requested by Landlord concerning the proposed Transferee's financial responsibility, Landlord will notify Tenant of its election to do one of the following: (i) consent to the proposed Transfer subject to such reasonable conditions as Landlord may impose in providing such consent; (ii) refuse such consent, which refusal shall be on reasonable grounds which shall be set forth in a detailed written statement to Tenant; or (iii) in the event that the proposed Transfer is for a period that will expire during the last twelve (12) months of the initial Term or the last twelve (12) months of any Option Period(s) (if applicable), terminate this Lease as to the portion of the Premises which is proposed to be sublet or assigned and recapture all or such portion of the Premises for reletting by Landlord. 14.4 ADDITIONAL CONDITIONS. A condition to Landlord's consent to any Transfer of this Lease will be the delivery to Landlord of a true copy of the fully executed instrument of assignment, sublease, transfer or hypothecation, in form and substance reasonably satisfactory to Landlord. With respect to a Transfer pursuant to which Tenant subleases a portion of the Premises for a period that expires prior to the last twelve (12) months of the initial Term or any Option Period(s) (if applicable), Tenant agrees to pay to Landlord, as additional rent, on a monthly basis, fifty percent (50%) of all sums and other consideration paid to and for the benefit of Tenant by the sublessee in excess of the Rent payable under this Lease for the same period and portion of the Premises. In calculating excess rent or other consideration which may be payable to Landlord under this Section, Tenant will be entitled to deduct commercially reasonable third party brokerage commissions and attorneys' fees (including those fees and costs required to be reimbursed to Landlord as provided below) and other amounts reasonably and actually expended by Tenant in connection with such subletting including, without limitation, (i) the costs of any changes, alterations and improvements to the Premises in connection with the Transfer, (ii) any space planning, architectural or design fees or expenses incurred in marketing such space or in connection with such Transfer, (iii) any improvement allowance or other monetary concessions provided to the Transferee, (iv) any lease takeover cost incurred by Tenant in connection with the Transfer, and (v) out-of-pocket costs of advertising the space which is the subject of the Transfer, if written evidence of such expenditures is provided to Landlord. Except for an assignment by Tenant of its entire interest in this Lease to a Permitted Non-Affiliate Assignee (as defined in Section 14.6 below) who, by operation of law or express agreement, assumes all of Tenant's obligations under this Lease, no Transfer will release Tenant of Tenant's obligations under this Lease or alter the primary liability of Tenant to pay the Rent and to perform all other obligations to be performed by Tenant hereunder. Landlord may require that any Transferee remit directly to Landlord on a monthly basis, all monies due Tenant by said Transferee, and each sublease shall provide that if Landlord gives said sublessee written notice that Tenant is in default under this Lease beyond any applicable notice and cure period, said sublessee will thereafter make all payments due under the sublease directly to or as directed by Landlord, which payments will be credited against any payments due under this Lease. Tenant hereby irrevocably and unconditionally assigns to Landlord all rents and other sums payable under any sublease of the Premises; provided, however, that Landlord hereby grants Tenant a license to collect all such rents and other sums so long as Tenant is not in default under this Lease. Tenant shall, within ten (10) days after the execution and delivery of any assignment or sublease, deliver a copy thereof to Landlord. Consent by Landlord to one Transfer will not be deemed consent to any subsequent Transfer. In the event of default by any Transferee of Tenant or any successor of Tenant (except for a Permitted Non-Affiliate Assignee (as defined in Section 14.6 below) who, by operation of law or express agreement, assumes all of Tenant's obligations under this Lease) in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against such Transferee or successor. If Tenant effects a Transfer or requests the consent of Landlord to any Transfer (whether or not such Transfer is consummated), then, within thirty (30) days after Tenant's receipt of written demand from Landlord, Tenant agrees to pay Landlord a non-refundable administrative fee of Five Hundred Dollars ($500.00), plus Landlord's reasonable attorneys' fees and costs and other costs incurred by Landlord in reviewing such proposed assignment or sublease (which fees and costs shall in no event exceed $1,500.00 per proposed Transfer). Notwithstanding any contrary provision of this Lease, if Tenant or any proposed Transferee claims that Landlord has unreasonably withheld or delayed its consent to a proposed Transfer or otherwise has breached its obligations under this Section 14, Tenant's and such Transferee's only remedy shall be to seek a declaratory judgment, injunctive relief, and/or monetary damages, and Tenant waives all other remedies against Landlord, including without limitation, the right to terminate this Lease. -14- 21 14.5 PERMITTED TRANSFERS. Notwithstanding anything to the contrary contained in this Article 14, Landlord consents to the Transfer of the Premises to any holding company, corporation, association or entity which is or becomes a parent, subsidiary or affiliate of Tenant or any entity which is controlled by, controls, or is under common control with, Tenant, or to any entity resulting from a merger, consolidation or reorganization of Tenant or any entity succeeding to all (or substantially all) of the stock or business and assets of Tenant (collectively, an "AFFILIATE"), provided that Tenant notifies Landlord of any such Transfer prior to the effective date thereof and promptly supplies Landlord with any documents or information reasonably requested by Landlord regarding such Transfer or such Affiliate (including an assumption of Tenant's obligations under this Lease), and further provided that such Transfer is not a subterfuge by Tenant to avoid its obligations under this Lease. "CONTROL," as used in this Section 14.5, shall mean the ownership, directly or indirectly, of greater than fifty percent (50%) of the voting interest in an entity. Landlord specifically acknowledges and agrees that as of the date of this Lease, Tenant is a publicly-held company whose stock is traded on a nationally-recognized exchange and that under no circumstances shall any transfer of such stock over such exchange be deemed a Transfer for purposes of this Lease. 14.6 PERMITTED NON-AFFILIATE ASSIGNEE. Notwithstanding anything to the contrary contained in this Article 14, but subject to Landlord's option to recapture pursuant to Section 14.3(iii) above, if, pursuant to the foregoing provisions of this Article 14, Tenant assigns Tenant's entire interest in this Lease to a non-Affiliate entity ("PERMITTED NON-AFFILIATE ASSIGNEE") that (i) has, as of the close of such entity's most recent fiscal year, a net worth equal to or greater than Eighty Million Dollars ($80,000,000.00), (ii) has, as of the close of such entity's most recent fiscal year, a debt to equity ratio of less than or equal to twenty-five percent (25%), (iii) has generated an operating profit for the four (4) fiscal years preceding the proposed Transfer, and (iv) has, if the stock of the proposed assignee is publicly traded on a nationally recognized exchange, a "market cap" (which for purposes of this Lease means the market price per share of the common stock of such assignee multiplied by the number of shares of such stock which are then outstanding) of at least Three Hundred Fifty Million Dollars ($350,000,000.00) (as all such standards contained in (i)-(iv) above shall be reasonably verified by Landlord's review of the most recent audited financial statements (which may be satisfied by an annual report if such entity is publicly traded) for such non-Affiliate entity, which statements shall be dated no earlier than twelve (12) months prior to the effective date of the proposed Transfer), Tenant shall, effective from and after the effective date of such assignment, be relieved from all remaining obligations under this Lease. 14.7 TENANT'S LICENSING OF COMMUNICATION EQUIPMENT DEEMED A TRANSFER. Notwithstanding anything to the contrary contained herein, in the event that Tenant licenses any third party to utilize the Communication Equipment to which Tenant is entitled to install and maintain pursuant to Section 5 above, such license shall be deemed a Transfer for purposes of this Article 14 except that Landlord's recapture right specified in Section 14.3 above shall not apply to such Transfer and in calculating the consideration that may be payable by Tenant to Landlord pursuant to Section 14.4 above, (i) such consideration shall be payable by Tenant to Landlord whether or not such license expires prior to the last twelve (12) months of the initial Term or any Option Period(s), and (ii) in addition to any costs incurred by Tenant as described in Section 14.4 above, Tenant shall also be entitled to deduct reasonable costs of installation and maintenance incurred by Tenant in connection with the specific Communication Equipment to be licensed if acceptable written evidence of such costs is provided to Landlord. 15. ENTRY BY LANDLORD. Landlord and its employees and agents shall at all reasonable times and with reasonable advance written notice (which shall be at least 24 hours, except in the case of an "EMERGENCY", which for purposes of this Lease means situations in which there is an imminent threat to persons and/or property within the Buildings) to Tenant's designated representative who shall initially be Tenant's Director of Corporate Facilities, Jon R. Johnson, have the right to enter the Premises to inspect the same, to exhibit the Premises to prospective lenders or purchasers (or during the last six (6) months of the initial Term or first Option Period (unless Tenant has exercised its upcoming Option to Extend pursuant to Section 2.3 above) or during the last nine (9) months of the second (2nd) Option Period, to prospective tenants), to post notices of non-responsibility, and/or to alter, improve or repair the Premises as contemplated by Section 11.2, all without being deemed guilty of or liable for any breach of Landlord's covenant of quiet enjoyment or any eviction of Tenant, and without abatement of rent. In exercising such entry rights, Landlord shall endeavor to minimize, as reasonably practicable, the interference with Tenant's business, and shall provide Tenant with reasonable advance written notice of such entry (except in emergency situations). Landlord shall have the means which Landlord may deem reasonably proper to open Tenant's doors in an emergency in order to obtain entry to the Premises. Any entry to the Premises obtained by Landlord by any of said means in an emergency or otherwise shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the Premises or any portion thereof, or grounds for any abatement or reduction of Rent and Landlord shall not have any liability to Tenant for any damages or losses on account of any such entry by Landlord except, subject to the provisions of Sections 21.1 and 23, to the extent of Landlord's negligence or willful misconduct, in which case Landlord's liability (if any) shall be limited to the extent such damages or losses are not covered by insurance carried by Tenant or required to be carried by Tenant hereunder. 16. UTILITIES AND SERVICES. 16.1 PROVISIONS OF UTILITIES AND SERVICES. Except for Landlord's obligations set forth in the Work Letter, Tenant shall be solely responsible for obtaining and shall promptly pay all charges for heat, air conditioning, water, gas, electricity or any other utility used, consumed or provided in, furnished to or attributable to the Premises directly to the supplying utility companies. Except as specifically provided below, in no event shall Rent abate or shall Landlord be liable for any interruption or failure in the supply of any such utility services to Tenant. Landlord and Tenant hereby agree and acknowledge that Landlord shall, as part of the Base Improvements constructed pursuant to the Work Letter attached hereto as Exhibit "B," install one (1) electrical meter (for use by the local utility company in separately metering Tenant's electrical consumption) in each of the Buildings that comprise the Premises hereunder. In addition, notwithstanding anything to the contrary contained in this Section 16, Landlord will be solely responsible for the payment of all water capacity charges, meter setting fees, tap in fees and all other similar charges which may be imposed by any governmental authority or utility provider in connection with the initial provision of such utilities to the Premises. -15- 22 16.2 ABATEMENT CONDITIONS. Notwithstanding anything to the contrary contained in this Lease, if Tenant is prevented from using all or a portion of the Premises for its normal business operations, and Tenant does not, in fact, use all or such portion of the Premises, for a period of five (5) consecutive business days or more after written notice of such condition is delivered to Landlord, due to any service or utility not being provided to the Premises, or portion thereof, as required by the terms of this Lease or due to Tenant not having access to the Building, the Premises, or portion thereof, and where such prevention of Tenant's use of the Premises is caused by the negligence or willful misconduct of Landlord, its agent, contractors or employees, the following provisions of this Section 16.2 shall apply (the conditions set forth above to be known as "ABATEMENT CONDITIONS"). Notwithstanding the foregoing, this Section 16.2 shall not apply to the damage or destruction of the Premises pursuant to Section 18 below, or to the condemnation of the Premises pursuant to Section 19 below. To the extent an Abatement Condition affects only a portion of the Premises, and such portion is a material portion of the Premises, and Tenant is not reasonably able to conduct its business from the remaining portion of the Premises, the Abatement Condition shall be deemed to affect the entire Premises. Tenant shall promptly deliver to Landlord notice (the "CURE NOTICE") of such condition and if Landlord fails to cure such condition within five (5) business days after delivery to it of the Cure Notice, then the Rent applicable to the affected portion of the Premises shall be abated from the expiration of said five (5) day period until the date when such failure is cured; provided, however, that if Tenant has previously paid Rent to Landlord for a period of time subsequent to the commencement of Tenant's right to abate Rent hereunder, then Landlord shall, within ten (10) business days following the date of such abatement, credit to Tenant an amount equivalent to such excess payments against the Monthly Rent next due under this Lease, or, if after the expiration or termination of this Lease, reimburse to Tenant the amount of such excess payments. 17. INDEMNIFICATION AND EXCULPATION. 17.1 TENANT'S ASSUMPTION OF RISK AND WAIVER. Except to the extent such matter is not covered by the insurance required to be maintained or actually maintained by Tenant under this Lease and such matter is attributable to the negligence or willful misconduct of Landlord or Landlord's agent(s), Landlord shall not be liable to Tenant, Tenant's employees, agents or invitees for: (i) any damage to property of Tenant, or of others, located in, on or about the Premises, (ii) the loss of or damage to any property of Tenant or of others by theft or otherwise, (iii) any injury or damage to persons or property resulting from fire, explosion, failing plaster, steam, gas, electricity, water, rain or leaks from any part of the Premises or from the pipes, appliance of plumbing works or from the roof, street or subsurface or from any other places or by dampness or by any other cause of whatsoever nature, or (iv) any such damage caused by other persons in the Premises, occupants of adjacent property, or the public, or caused by operations in construction of any private, public or quasi-public work. All property of Tenant kept or stored on the Premises shall be so kept or stored at the sole risk of Tenant and Tenant shall hold Landlord harmless from any claims arising out of damage to the same, unless such damage shall be caused by the negligence or willful misconduct of Landlord or Landlord's agent(s) (in which case Landlord's liability (if any) shall be limited to the extent such matter is not covered by insurance maintained by Tenant or required to be maintained by Tenant hereunder). Landlord or its agents shall not be liable for interference with the light or other intangible rights. Nothing contained in this Section 17.1 however, shall operate to relieve Landlord of the consequences of its own negligence, willful misconduct or criminal acts, or the willful misconduct or criminal acts of its authorized agents, employees or contractors; subject, however, to the express limitations and restrictions on Landlord's liability contained elsewhere in this Lease and provided that Landlord's liability, if any, shall be limited to the extent such consequences are not covered by insurance maintained by Tenant or required to be maintained by Tenant hereunder. 17.2 INDEMNIFICATION. Tenant shall be liable for, and shall indemnify, defend, protect and hold Landlord and Landlord's partners, officers, directors, employees, agents, successors and assigns (collectively, "LANDLORD PARTIES") harmless from and against, any and all claims, damages, judgments, suits, causes of action, losses, liabilities and expenses, including attorneys' fees and court costs (collectively, "INDEMNIFIED CLAIMS"), arising or resulting from (a) any act or omission of Tenant or any of Tenant's agents, employees, contractors, subtenants, assignees, licensees or Tenant's invitees (collectively, "TENANT PARTIES"); (b) the use of the Premises (including, without limitation, the Child Care Facilities) and conduct of Tenant's business by Tenant or any Tenant Parties, or any other activity, work or thing done, permitted or suffered by Tenant or any Tenant Parties, in or about the Premises; and/or (c) any default by Tenant of any obligations on Tenant's part to be performed under the terms of this Lease. In case any action or proceeding is brought against Landlord or any Landlord Parties by reason of any such Indemnified Claims, Tenant, upon notice from Landlord, shall defend the same at Tenant's expense by counsel approved in writing by Landlord, which approval shall not be unreasonably withheld. 17.3 LANDLORD'S INDEMNIFICATION OF TENANT. Landlord shall indemnify, defend, protect, and hold harmless Tenant and the Tenant Parties from any Indemnified Claims incurred in connection with or arising from (a) any cause in or about the Project (including those Common Areas other than Tenant's Site), during the Term (to the extent covered by Landlord's insurance policies carried pursuant to the terms of this Lease), or (b) any negligent acts or omissions or willful misconduct of any of the Landlord Parties in, on, or about the Buildings (except and to the extent the same is covered by insurance required to be carried by Tenant pursuant to this Lease) or the Project, either prior to, during, or after the expiration of the Term, provided that, except as set forth above, the terms of the foregoing indemnity shall not apply to the extent such Claims arise from the negligence or willful misconduct of the Tenant Parties in connection with the Tenant's Parties activities in, on or about the Buildings or Project. Notwithstanding the foregoing, because Landlord is required to maintain insurance on the Common Areas of the Project as provided in Section 20 below, and Tenant reimburses Landlord for such insurance as additional rent, Landlord hereby agrees to protect, defend, indemnify and hold Tenant harmless from any Claims with respect to the Common Areas other than Tenant's Site and Landlord's equipment and property on the Common Areas to the extent such Claim is covered by Landlord's insurance, even if resulting from the negligent acts or willful misconduct of the Tenant Parties. 17.4 WAIVER OF CONSEQUENTIAL DAMAGES. Notwithstanding any contrary provision of this Lease, neither Landlord nor Tenant shall be liable to the other party for any consequential damages for a breach or default under this Lease, provided -16- 23 that this sentence shall not be applicable to any consequential damages which may be incurred by the Landlord Parties relating to or in connection with any holdover by Tenant following the expiration of the Term, subject to and in accordance with the provisions of Section 9 of this Lease. 17.5 SURVIVAL; NO RELEASE OF INSURERS. The indemnification obligations of Landlord and Tenant under this Section 17, shall survive the expiration or earlier termination of this Lease. Landlord's and Tenant's covenants, agreements and indemnification in this Section 17, are not intended to and shall not relieve any insurance carrier of its obligations under policies required to be carried by Landlord and Tenant, pursuant to the provisions of this Lease. 18. DAMAGE OR DESTRUCTION. 18.1 OBLIGATION TO RESTORE. Except as provided in Section 18.2 below, in case of damage to or destruction of the Premises, whether or not by a risk required to be covered by insurance as set forth in Section 20 of this Lease, this Lease shall not terminate and Tenant shall promptly restore, rebuild, replace or repair (hereinafter referred to as "RESTORE" or "RESTORATION") the Premises to substantially the same condition as existed immediately prior to such damage or destruction. Such Restoration shall be commenced promptly but in no event later than the later of (i) ninety (90) days after the casualty in the event of an uninsured casualty; or (ii) thirty (30) days following Tenant's receipt of applicable insurance proceeds if the casualty is one which is required to be covered by insurance pursuant to this Lease, and such Restoration shall be prosecuted with due diligence, subject to Force Majeure. For purposes of this Section 18, Tenant shall be deemed to have commenced Restoration upon the commencement of preparation of plans and specifications for the Restoration to be performed by Tenant. 18.2 TENANT'S TERMINATION OPTION. Notwithstanding the foregoing, however, in the case of damage to or destruction of the Premises that will render the Premises inaccessible or unusable for purposes of conducting Tenant's business for a period of fifteen (15) months or more, Tenant may elect to terminate this Lease by giving Landlord written notice of such election within ninety (90) days following the casualty, in which event Tenant shall have no obligation to Restore the Premises; provided, however, in the event the casualty is covered by insurance required to be carried by Tenant under this Lease or by insurance actually maintained by Tenant, Tenant shall, subject to Tenant's receipt of the applicable insurance proceeds for such purpose, clear the Premises of debris and return the same to a safe and clean condition, and deliver any remaining insurance proceeds to Landlord in accordance with Section 18.7 below. If Tenant elects to terminate this Lease in accordance with this paragraph, this Lease shall as of the date for termination set forth in Tenant's notice (the "TERMINATION DATE") which Termination Date shall in no event be earlier than the date of such notice. Said termination shall not release Tenant from the obligations and liabilities of Tenant under this Lease, actual or contingent, which have accrued on or prior to the Termination Date. 18.3 DAMAGE NEAR END OF TERM. In addition to the termination rights set forth in Sections 18.2 and 18.3 above, Landlord and Tenant shall each have the right to terminate this Lease if any damage to the Premises occurs during the last twelve (12) months of the Term (or during the last twelve (12) months of any Option Period) and Tenant's architect or contractor reasonably estimates in a writing delivered to the parties that the repair, reconstruction or restoration of such damage cannot be completed within the earlier of (a) the scheduled expiration date of the Term, or (b) sixty (60) days after the date of such casualty. 18.4 RECONSTRUCTION AND REPAIR REQUIREMENTS. Tenant shall obtain Landlord's prior approval of all plans for Restoration work performed BY Tenant, which approval shall not be unreasonably withheld, conditioned or delayed. If Landlord fails to respond to any written request for such approval from Tenant within ten (10) days after Tenant's second such request (Tenant's original request to be deemed the first notice), Tenant's request for approval of the Restoration shall be deemed approved. 18.5 NO RENT ABATEMENT DURING RECONSTRUCTION. There shall be no Rent abatement during Restoration of the Premises or during that period after any casualty and prior to commencement of Restoration. 18.6 ADJUSTMENT OF LOSS AND DISBURSEMENT OF INSURANCE PROCEEDS UPON RESTORATION. Except for Restoration that is reasonably expected to cost less than One Hundred Thousand Dollars ($100,000), Landlord shall have the right to participate with Tenant in the adjustment of the loss with the insurance company(ies) and all proceeds of the insurance policies maintained pursuant to Section 20.1 (a) ("PROCEEDS") shall be deposited with a depository acceptable to Landlord and Tenant (the "DEPOSITORY"). If the Proceeds are insufficient to cover the anticipated cost of Restoration, Tenant shall deposit with the Depository prior to the commencement of Restoration funds in the amount of such deficiency. The Depository shall disburse the Proceeds and Tenant's funds, if applicable, during the course of Restoration in accordance with customary construction disbursements, including a ten percent (10%) retention. If, after the Restoration has been completed in accordance with the terms of this Lease, there are remaining funds held by the Depository, then such funds (after first deducting from such funds the fees and expenses of the Depository) shall be delivered to Tenant. If there are not sufficient funds remaining to pay for the Depository's fees and expenses, Landlord and Tenant shall be equally responsible for the payment of same. 18.7 DISBURSEMENT OF INSURANCE PROCEEDS UPON TERMINATION. Upon any termination of this Lease under the provisions of this Article 18, all proceeds from insurance policies maintained under Section 20 (other than proceeds attributable to Tenant's personal property and Tenant Changes paid for by Tenant that Landlord previously informed Tenant would have to be removed upon the expiration or earlier termination of this Lease) shall be disbursed and paid to Landlord, less such amounts that are used by Tenant in clearing any debris from the Premises and returning the Premises to a safe and clean condition as required by Section 18.1 above. 18.8 WAIVER OF TERMINATION. The agreements contained in this Article 18 provide a material part of the consideration for this Lease and in bargaining for and obtaining its rights under this Article 18, Tenant waives any right to terminate this -17- 24 Lease under Section 1932 and/or 1933 of the Civil Code of California, or any similar statute or law now or hereafter in force. 19. EMINENT DOMAIN. 19.1 TOTAL OR PARTIAL TAKING. In case all of the Premises, or such part thereof is taken which materially and adversely interferes with Tenant's ability to conduct its normal business operations in a Building, shall be taken for any public or quasi-public purpose by any lawful power or authority by exercise of the right of appropriation, condemnation or eminent domain, or sold to prevent such taking, Tenant shall have the right to terminate this Lease as to the affected Building effective as of the date possession is required to be surrendered to said authority. Tenant shall not assert any claim against Landlord or the taking authority for any compensation because of such taking, and Landlord shall be entitled to receive the entire amount of any award without deduction for any estate or interest of Tenant; provided, however, in the event of such a taking, Tenant shall be entitled to such portion of the award as shall be attributable to goodwill and for damage to, or the cost of removal of, Tenant's personal property, Tenant's relocation expenses and any other damage to Tenant's business by reason of such taking and fifty percent (50%) of the "bonus" or "excess value" of its leasehold interest hereunder. In the event a dispute arises between Landlord and Tenant with respect to whether such taking of a portion of the Premises materially and adversely interferes with Tenant's ability to conduct its normal business operations in a Building, such dispute shall be submitted to arbitration in accordance with the provisions of Section 31.20 below. In the event this Lease is not terminated following a taking, Landlord shall be entitled to the entire amount of the award without deduction for any estate or interest of Tenant, Landlord shall restore the Premises to substantially their same condition prior to such partial taking to the extent of any award proceeds received by Landlord, and a fair and equitable abatement shall be made to Tenant for the Rent corresponding to the time during which, and to the part of the Premises of which, Tenant shall be so deprived on account of such taking and restoration. If the award proceeds from the taking are insufficient to restore the Premises as required by the preceding sentence and Landlord does not provide its own funds to so restore the Premises, and if as a result thereof Tenant's ability to use the Premises as contemplated by this Lease is materially and substantially impaired, then Tenant may elect to terminate this Lease as to the affected Building by giving Landlord written notice thereof; provided, however, Landlord may rescind such termination by giving Tenant written notice within ten (10) business days following Landlord's receipt of such termination notice from Tenant that Landlord will provide the necessary funds to so restore the Premises. 19.2 TAKING OF COMMON AREA. In the event there shall be a taking of the Common Area such that Landlord can no longer provide Tenant with parking sufficient to comply with the provisions of this Lease, Tenant may, at its sole option, elect to terminate this Lease by written notice to Landlord effective thirty (30) days after the date of such notice; provided, however, Tenant shall not be entitled to terminate this Lease as provided herein so long as, not later than thirty (30) days after the date of the taking, suitable substitute parking is made available for use by Tenant (at no additional charges to Tenant) within the Project or in other substitute parking facilities within a reasonable walking distance from the Buildings. Any such substitute parking to be provided by Landlord shall be subject to Tenant's approval, in Tenant's sole and absolute discretion. 19.3 TEMPORARY TAKING. In the event of taking of the Premises or any part thereof for temporary use, (i) this Lease shall be and remain unaffected thereby and Rent shall not abate, and (ii) Tenant shall be entitled to receive for itself such portion or portions of any award made for such use with respect to the period of the taking which is within the Lease Term. For purposes of this Section 19.2, a temporary taking shall be defined as a taking for a period of six (6) months or less. 19.4 WAIVER OF TERMINATION. Tenant and Landlord waive any right to terminate this Lease under Section 1265.130 of the California Code of Civil Procedure, or any similar statute or law now or hereafter in force. 20. TENANT'S INSURANCE. 20.1 TYPES OF INSURANCE. On or before the earlier of the Early Occupancy Date or the date Tenant commences or causes to be commenced any work of any type in or on any portion of the Premises, and continuing during the entire Term, Tenant shall obtain and keep in full force and effect respecting the Premises, the following insurance: (a) All Risk insurance (with commercially reasonable deductibles, taking into consideration the financial capacity and credit rating of Tenant and not, in any event, exceeding the amount specified in Section 20.2(d) below), including fire and extended coverage, sprinkler leakage (including earthquake sprinkler leakage), vandalism, malicious mischief, and, (i) if required by Landlord's lender, flood coverage and (ii) at Landlord's sole option in the event that at any time during the initial Term or any Option Period(s), Tenant's net worth, as verified by Landlord's review of Tenant's audited financial statements, is less than Seventy Million Dollars ($70,000,000.00), earthquake insurance, upon property of every description and kind located on the Premises, including, without limitation, furniture, equipment and any other personal property, any Tenant Changes, the Tenant Improvements, and the Buildings in an amount not less then the full replacement cost thereof. (b) Commercial general liability insurance coverage, on an occurrence basis, including personal injury, bodily injury (including wrongful death), broad form property damage, operations hazard, owner's protective coverage, contractual liability (including Tenant's indemnification obligations under this Lease, including Section 17 hereof), liquor liability (if Tenant serves or stores alcohol on the Premises), products and completed operations liability, and owned/non-owned auto liability, with a general aggregate of not less than Three Million Dollars ($3,000,000) per occurrence with "umbrella" or excess liability coverage of not less than Five Million Dollars ($5,000,000.00). The limits of such commercial general liability insurance may be increased every five (5) years during the Term of this Lease to an amount reasonably required by Landlord, but in no event shall the limits of such insurance be increased to an amount which is greater than that typically required of tenants of Comparable Buildings in the -18- 25 Sorrento Mesa area of San Diego, taking into account the size of the Premises and the financial strength of Tenant. (c) Worker's compensation and employer's liability insurance, in statutory amounts and limits, covering all persons employed in connection with any work done in, on or about the Premises for which claims for death or bodily injury could be asserted against Landlord, Tenant or the Premises. (d) Loss of income, extra expense and business interruption insurance covering a minimum of twelve (12) months of Tenant's Rent and such additional amounts as will reimburse Tenant for direct or indirect loss of earnings attributable to all perils commonly insured against by prudent tenants or attributable to prevention of access to the Premises or Tenant's parking areas as a result of such perils. (e) Any other form or forms of insurance as Tenant or Landlord or the mortgagees of Landlord may reasonably require from time to time, in form, amounts and for insurance risks against which a prudent tenant would protect itself, but only to the extent such risks and amounts are available in the insurance market at commercially reasonable costs but only to the extent such risks and amounts are available in the insurance market at commercially reasonable costs and are typically required of tenants of Comparable Buildings in the Sorrento Mesa area of San Diego taking into account the size of the Premises and the financial strength of Tenant. 20.2 REQUIREMENTS. Each policy required to be obtained by Tenant hereunder shall: (a) be issued by insurers authorized to do business in the state in which the Premises is located and rated not less than financial class VII, and not less than policyholder rating A in the most recent version of Best's Key Rating Guide (provided that, in any event, the same insurance company shall provide the coverages described in Sections 20.1 (a) and 20.1 (d) above); (b) be in form reasonably satisfactory from time to time to Landlord; (c) name Tenant as named insured thereunder and shall name Landlord and, at Landlord's request, Landlord's mortgagees and ground lessors of which Tenant has been informed in writing, as additional insureds (and with respect to the insurance described in Sections 20.1 (a) and (d) above, as loss-payees) thereunder, all as their respective interests may appear; (d) shall not have a deductible amount exceeding Fifty Thousand Dollars ($50,000.00); (e) specifically provide that the insurance afforded by such policy for the benefit of Landlord and Landlord's mortgagees and ground lessors shall be primary, and any insurance carried by Landlord or Landlord's mortgagees and ground lessors shall be excess and non-contributing; (f) except for worker's compensation insurance, contain an endorsement that the insurer waives its right to subrogation as described in Section 21 below; and (g) require the insurer to notify Landlord (and the mortgagees and ground lessors of Landlord who are named as additional insureds) in writing not less than thirty (30) days prior to any change, reduction in coverage, cancellation or other termination thereof. Tenant agrees to deliver to Landlord, as soon as practicable after the placing of the required insurance, but in no event later than sixty (60) days prior to the Commencement Date, certificates from the insurance company evidencing the existence of such insurance and Tenant's compliance with the foregoing provisions of this Section 20. Tenant shall cause replacement certificates to be delivered to Landlord not less than thirty (30) days prior to the expiration of any such policy or policies. If any such initial or replacement certificates are not furnished within the time(s) specified herein, Landlord shall have the right, but not the obligation, following at least an additional five (5) business days' notice to Tenant, to procure such policies and certificates at Tenant's expense. Despite any provision to the contrary in this Section 20, Tenant's obligation to carry the specified insurance may be brought within the coverage of a so-called blanket policy or policies of property insurance carried and maintained by Tenant, provided, however, that the coverage afforded Landlord, and Landlord's mortgagees (if any) will not be reduced or diminished by reason of the use of such blanket policy of insurance. 20.3 SELF-INSURANCE. In fulfilling its obligations for the acquisition of insurance coverage under Sections 20.11(b) through and including (e) of this Lease above (but not Section 20.1 (a)), Tenant shall have the right to self-insure subject to the following conditions: (a) the right to self-insure shall extend only to the Original Tenant any Permitted Transferee (including a Permitted Non-Affiliate Transferee); (b) Tenant (or such Permitted Transferee or Permitted Non-Affiliate Transferee) shall only be entitled to self-insure if it maintains a net worth of at least Two Hundred Million Dollars ($200,000,000.00) calculated in accordance with generally accepted accounting principles and, if requested by Landlord, on an annual basis, Tenant shall deliver audited financial statements or the most recently published annual report and a written verification executed by an authorized representative of Tenant confirming Tenant's satisfaction of such standard; (c) Tenant shall maintain a reasonable self-insurance program providing for loss reserves which are derived in accordance with accepted standards of the insurance industry and accrued or otherwise funded, and deliver reasonable evidence of such self-insurance program concurrently with delivery of its verification of net worth as required above; (d) prior to the institution of such self-insurance, Tenant shall notify Landlord in writing of its election to so self-insure (which notice shall specify the insurance coverage(s) which Tenant elects to so self-insure) and shall deliver to Landlord the name, address and telephone number of the claims administrator for such coverage; (e) Lessee's indemnity described in Section 17.2 above shall fully extend to all claims covered by any self-insured amount; (f) proceeds payable pursuant to such self-insurance shall be treated as insurance proceeds for all other purposes under this Lease; and (g) the waiver of subrogation provided in Section 21 below shall fully extend to all claims within such self-insured amount. 20.4 EFFECT ON INSURANCE. Tenant shall not do or permit to be done anything which will violate or invalidate any insurance policy maintained by Tenant hereunder. If Tenant's occupancy or conduct of its business in or on the Premises results in any increase in premiums for any insurance carried by Landlord and Landlord or its insurer can reasonably substantiate the nature of Tenant's activities which are causing the increase in such premiums, then Tenant shall pay such increase as additional rent within ten (10) business days after being billed therefor by Landlord. If any insurance coverage carried by Landlord shall be canceled or reduced (or cancellation or reduction thereof shall be threatened) by reason of the use or occupancy of the Premises by Tenant or by anyone permitted by Tenant to be upon the Premises, and if Tenant fails to remedy such condition within thirty (30) days after notice thereof (or commence such cure within such thirty (30) day period if such matter is not capable of being fully cured within thirty (30) days, in which case Tenant shall diligently prosecute such cure to completion), Landlord shall have all remedies provided in this Lease, at law or in -19- 26 equity, including, without limitation, the right (but not the obligation) to enter upon the Premises and attempt to remedy such condition at Tenant's cost. 20.5 LANDLORD'S INSURANCE. Landlord (or an owners association formed by Landlord to operate the Common Areas of the Project) shall, at all times during the Term, maintain public liability insurance covering the Common Areas of the Project in such amounts and with such deductibles as are normally carried by sophisticated prudent landlords of projects comparable to the Project. In addition, Landlord shall maintain policies of insurance covering loss of or damage to the improvements in the Common Areas in the full amount of their replacement cost. Such policy shall provide protection (subject to reasonable deductibles which shall be comparable to deductibles being carried by sophisticated prudent landlords of comparable Projects) against all perils included within the classification of fire, extended coverage, vandalism, malicious mischief, and, at Landlord's (or the association's) option, special extended perils, and any other perils (e.g., flood and earthquake), which policies shall have limits protecting the Project and Landlord in such amounts that are normally and customarily carried by sophisticated prudent landlords of projects comparable to the Project. Landlord shall not obtain insurance for Tenant's trade fixtures or equipment. The cost of all such insurance to be carried by Landlord shall be included in Operating Expenses or in assessments of the owner's association, as applicable. 21. WAIVER OF SUBROGATION. 21.1 WAIVER. Landlord and Tenant each hereby waive their rights against each other with respect to any claims or damages or losses which are caused by or result from (a) occurrences insured against under any insurance policy carried by Landlord or Tenant pursuant to the provisions of this Lease, or (b) occurrences which would have been covered under any insurance required to be obtained and maintained by Landlord or Tenant under Section 20 of this Lease had such insurance been obtained and maintained as required therein. The foregoing waiver shall be in addition to, and not a limitation of, any other waivers or releases contained in this Lease. 21.2 WAIVER OF INSURERS. Tenant shall cause each property damage and loss of income, extra expense and business interruption insurance policy required to be obtained by it pursuant to Section 20 to provide that the insurer waives all rights of recovery by way of subrogation against Landlord in connection with any claims, losses and damages covered by such policy. In addition, Landlord shall cause its property damage insurance policy to provide that the insurer waives all rights of recovery by way of subrogation against Tenant in connection with any claims, losses and damages covered by such policy. If either Landlord or Tenant fails to maintain property insurance required hereunder, or if Tenant fails to maintain loss of income, extra expense and business interruption insurance, such insurance shall be deemed to be self-insured with a deemed full waiver of subrogation as set forth in the immediately preceding sentence. 22. TENANT'S DEFAULT AND LANDLORD'S REMEDIES. 22.1 TENANT'S DEFAULT. The occurrence of any one or more of the following events shall constitute a default under this Lease by Tenant: 22.1.1 the abandonment of the Premises by Tenant as defined in California Civil Code Section 1951.3; 22.1.2 the failure by Tenant to make any payment of Rent or any other payment required to be made by Tenant hereunder, within ten (10) days after Tenant's receipt of written notice from Landlord that such payment was not received; 22.1.3 the failure by Tenant to observe or perform any of the express or implied covenants or provisions of this Lease to be observed or performed by Tenant, other than as specified in Sections 22.1 (a) or (b) above, where such failure shall continue for a period of thirty (30) days after Tenant's receipt of written notice thereof from Landlord to Tenant; provided, however, that if the nature of Tenant's default is such that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant shall commence such cure within said thirty (30) day period and thereafter diligently prosecute such cure to completion; and 22.1.4 (i) the making by Tenant of any general assignment for the benefit of creditors, (ii) the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against the Tenant, the same is dismissed within sixty (60) days), (iii) the appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within sixty (60) days, or (iv) the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease where such seizure is not discharged within sixty (60) days. 22.2 LANDLORD'S REMEDIES; TERMINATION. In the event of any such default by Tenant, in addition to any other remedies available to Landlord under this Lease, at law or in equity, Landlord shall have the immediate option to terminate this Lease and all rights of Tenant hereunder. In the event that Landlord shall elect to so terminate this Lease, then Landlord may recover from Tenant: (a) the worth at the time of award of any unpaid rent which had been earned at the time of such termination; plus (b) the worth at the time of the 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 rental loss that Tenant proves could have been reasonably avoided; plus (c) 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 rental loss that Tenant proves could be reasonably avoided; plus -20- 27 (d) 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. As used in Sections 22.2(a) and 22.2(b) above, the "worth at the time of award" is computed by allowing interest at the Interest Rate set forth in Section 1.10 of the Summary. As used in Section 22.2(c) above, the "worth at the time of award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%). 22.3 LANDLORD'S REMEDIES; RE-ENTRY RIGHTS. In the event of any such default by Tenant, in addition to any other remedies available to Landlord under this Lease, at law or in equity, Landlord shall also have the right as permitted by applicable law, with or without terminating this Lease, to re-enter the Premises and remove all persons and property from the Premises; such property may be removed, stored and/or disposed of pursuant to Section 12.4 of this Lease or any other procedures permitted by applicable law. No re-entry or taking possession of the Premises by Landlord pursuant to this Section 22.3, and no acceptance of surrender of the Premises or other action on Landlord's part, shall be construed as an election to terminate this Lease unless a written notice of such intention be given to Tenant or unless the termination thereof be decreed by a court of competent jurisdiction. 22.4 LANDLORD'S REMEDIES; CONTINUATION OF LEASE. In the event of any such default by Tenant, in addition to any other remedies available to Landlord under this Lease, at law or in equity, Landlord shall have the right to continue this Lease in full force and effect, whether or not Tenant shall have abandoned the Premises. The foregoing remedy shall also be available to Landlord pursuant to California Civil Code Section 1951.4 and any successor statute thereof in the event Tenant has abandoned the Premises. In the event Landlord elects to continue this Lease in full force and effect pursuant to this Section 22.4, then Landlord shall be entitled to enforce all of its rights and remedies under this Lease, including the right to recover rent as it becomes due. Landlord's election not to terminate this Lease pursuant to this Section 22.4 or pursuant to any other provision of this Lease, at law or in equity, shall not preclude Landlord from subsequently electing to terminate this Lease or pursuing any of its other remedies. 22.5 LANDLORD'S RIGHT TO PERFORM. Except as specifically provided otherwise in this Lease, all covenants and agreements by Tenant under this Lease shall be performed by Tenant at Tenant's sole cost and expense and without any abatement or offset of rent. Except as specifically provided otherwise in this Lease, if Tenant shall fail to pay any sum of money (other than Rent) or perform any other act on its part to be paid or performed hereunder and such failure shall continue for ten (10) days with respect to monetary obligations (or thirty (30) days with respect to non-monetary obligations) after Tenant's receipt of written notice thereof from Landlord, Landlord may, following an additional five (5) days written notice to Tenant, without waiving or releasing Tenant from any of Tenant's obligations, make such payment or perform such other act on behalf of Tenant. All sums so paid by Landlord and all necessary incidental costs incurred by Landlord in performing such other acts shall be payable by Tenant to Landlord within ten (10) business days after demand therefor as additional rent. 22.6 INTEREST. If any other amount payable by Landlord or Tenant hereunder is not received by the party entitled to such payment within ten (10) days after the date when due, it shall bear interest at the Interest Rate set forth in Section 1.10 of the Summary from the date due until paid. All interest, and any late charges imposed on Tenant pursuant to Section 22.7 below, shall be considered additional rent due from Tenant to Landlord under the terms of this Lease. 22.7 LATE CHARGES. Tenant acknowledges that, in addition to interest costs, the late payments by Tenant to Landlord of any Monthly Rent or other sums due under this Lease will cause Landlord to incur costs not contemplated by this Lease, the exact amount of such costs being extremely difficult and impractical to fix. Such other costs include, without limitation, processing, administrative and accounting charges and late charges that may be imposed on Landlord by the terms of any mortgage, deed of trust or related loan documents encumbering the Premises. Accordingly, if any monthly installment of Rent or any other amount payable by Tenant hereunder is not received by Landlord within ten (10) days following written notice that such amount is due, Tenant shall pay to Landlord an additional sum of five percent (5%) of the overdue amount as a late charge for the first late charge due and payable by Tenant pursuant to this Section 22.7 in any calendar year, or ten percent (10%) of the overdue amount as a late charge for the second (2nd) and any subsequent late charge due and payable by Tenant pursuant to this Section 22.7 in any calendar year. However, in no event shall any late charge be more than the maximum late charge allowed by law. The parties agree that such late charge represents a fair and reasonable estimate of the costs that Landlord will incur by reason of any late payment as hereinabove referred to by Tenant, and the payment of late charges and interest are distinct and separate in that the payment of interest is to compensate Landlord for the use of Landlord's money by Tenant, while the payment of late charges is to compensate Landlord for Landlord's processing, administrative and other costs incurred by Landlord as a result of Tenant's delinquent payments. Acceptance of a late charge or interest shall not constitute a waiver of Tenant's default with respect to the overdue amount or prevent Landlord from exercising any of the other rights and remedies available to Landlord under this Lease or at law or in equity now or hereafter in effect. 22.8 RIGHTS AND REMEDIES CUMULATIVE. All rights, options and remedies of Landlord and Tenant contained in this Section 22 or in Section 23 below and elsewhere in this Lease shall be construed and held to be cumulative, and no one of them shall be exclusive of the other, and Landlord or Tenant, as applicable shall have the right to pursue any one or all of such remedies or any other remedy or relief which may be provided by law or in equity, whether or not stated in this Lease. Nothing in this Section 22 or in Section 23 shall be deemed to limit or otherwise affect the indemnification obligations of Landlord and Tenant pursuant to any provision of this Lease. 23. LANDLORD'S DEFAULT. Landlord shall be in default in the performance of any obligation required to be performed by Landlord under this Lease if (i) Landlord is obligated to make a payment of money to Tenant and Landlord fails to make such payment within ten (10) days of written notice from Tenant that the same was not paid when due, or (ii) such obligation is other than the payment of money and Landlord has failed to perform such obligation within thirty (30) days -21- 28 after the receipt of written notice from Tenant specifying in detail Landlord's failure to perform; provided however, that if the nature of Landlord's obligation is such that more than thirty (30) days are required for its performance, then Landlord shall not be deemed in default if it commences such performance within such thirty (30) day period and thereafter diligently pursues the same to completion. Upon any such uncured default by Landlord, Tenant may exercise any of its rights provided in law or at equity; provided, however: (a) Tenant shall have no right to offset or abate Rent in the event of any default by Landlord under this Lease, except to the extent offset rights are specifically provided to Tenant in this Lease; and (b) Tenant's rights and remedies hereunder shall be limited to the extent (i) Tenant has expressly waived in this Lease any of such rights or remedies, and/or (ii) this Lease otherwise expressly limits Tenant's rights or remedies, including the limitation on Landlord's liability contained in Section 30 hereof. 24. SUBORDINATION. At the request of Landlord or any mortgagee of a mortgage or a beneficiary of a deed of trust now or hereafter encumbering all or any portion of the Premises, or any lessor of any ground or master lease now or hereafter affecting all or any portion of the Premises (each, a "SUPERIOR INTEREST"), this Lease shall be subject and subordinate at all times to such ground or master leases (and such extensions and modifications thereof), and to the lien of such mortgages and deeds of trust (as well as to any advances made thereunder and to all renewals, replacements, modifications and extensions thereof); provided, however, no subordination of this Lease shall result in Tenant being disturbed in its possession of the Premises or in the enjoyment of its rights under this Lease so long as Tenant is not in default with respect to its obligations hereunder, and any commercially reasonable subordination agreement which Landlord, any mortgagee or ground lessor requests Tenant to execute to effect or confirm such subordination shall so provide. Notwithstanding the foregoing, Landlord shall have the right to subordinate or cause to be subordinated any or all ground or master leases or the lien of any or all mortgages or deeds of trust to this Lease. In the event that any ground or master 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, at the election of Landlord's successor in interest, Tenant shall attorn to and become the tenant of such successor. Subject to Tenant's receipt of a commercially reasonable non-disturbance agreement as provided in this Section 24 below, Tenant hereby waives its rights under any current or future law which gives or purports to give Tenant any right to terminate or otherwise adversely affect this Lease and the obligations of Tenant hereunder in the event of any such foreclosure proceeding or sale. Subject to the foregoing, Tenant covenants and agrees to execute and deliver to Landlord within ten (10) business days after receipt of written demand by Landlord and in the form reasonably required by Landlord, any additional commercially reasonable documents evidencing the priority or subordination of this Lease with respect to any such ground or master lease or the lien of any Superior Interest or Tenant's agreement to attorn. Notwithstanding anything set forth elsewhere in this Lease, Tenant agrees to subordinate its leasehold interest in the Premises to the interest of (and to attorn to) the holder of each existing or future Superior Interest encumbering the Premises or the Project, if and only if Landlord furnishes to Tenant from each such holder of an existing or future Superior Interest, a commercially reasonable non-disturbance agreement. Such commercially reasonable non-disturbance agreement shall (i) include the obligation of any current or future holder of a Superior Interest to recognize Tenant's rights specifically set forth in this Lease to offset certain amounts against Rent due hereunder, or to otherwise receive certain credits against Rent as set forth expressly herein and in the Work Letter Agreement, (ii) apply to any successors or assigns of Tenant, and (iii) with respect to any future construction loan encumbering the Premises (but not the existing infrastructure loan and not any future permanent loan), require the recognition by the holder of any such Superior Interest to any one (1) of the following alternatives (at the election of the holder): (a) to pay for the construction of Base Improvements and the Allowance as provided in the Work Letter Agreement (to the extent such Base Improvements have not than been completed and/or such Allowance has not been funded), or (b) to allow Tenant to assume responsibility for construction of the "Improvements" (as that term is defined in Exhibit "B"), in which case Tenant shall be entitled to offset (1) any reasonable, out-of-pocket costs incurred by Tenant in connection with the completion of the Base Improvements and (2) any portion of the Allowance funded by Tenant and not funded by Landlord, against Tenant's first obligations to pay Monthly Rent which become due under this Lease, or (c) to allow Tenant to acquire the holder's interest in Tenant's Site by payment to the holder of the outstanding amounts then due under the note. 25. ESTOPPEL CERTIFICATE. 25.1 TENANT'S AND LANDLORD'S OBLIGATIONS. Within ten (10) business days following Landlord's written request, Tenant shall execute and deliver to Landlord an estoppel certificate, in a form substantially similar to the form of Exhibit "E" attached hereto, certifying: (a) the Commencement Date of this Lease; (b) that this Lease is unmodified and in full force and effect (or, if modified, that this Lease is in full force and effect as modified, and stating the date and nature of such modifications); (c) the date to which the Rent and other sums payable under this Lease have been paid; (d) that there are not, to the best of Tenant's knowledge, any defaults under this Lease by either Landlord or Tenant, except as specified in such certificate; and (e) such other matters as are set forth in Exhibit "E" or are reasonably requested by Landlord. Any such estoppel certificate delivered pursuant to this Section 25.1 may be relied upon by any mortgagee, beneficiary, purchaser or prospective purchaser of any portion of the Premises, as well as their assignees. In connection with a proposed assignment or sublease by Tenant, or in connection with a financing transaction of Tenant where this Lease is not provided as security, Landlord hereby agrees to provide to Tenant, within ten (10) business days after Tenant's written request, an estoppel certificate signed by Landlord, containing the same types of information as set forth above, with such changes as are reasonably necessary to reflect that the estoppel certificate is being granted to Tenant or to Tenant's proposed assignee or subtenant by Landlord, rather than being granted by Tenant to Landlord or to a prospective lender or purchaser. 25.2 FAILURE TO DELIVER. Failure of Landlord or Tenant to deliver such estoppel certificate within such time shall constitute a default hereunder without the applicability of notice and cure periods specified in Section 22 above and shall be conclusive upon the other party that: (a) this Lease is in full force and effect without modification, except as may be represented by Landlord or Tenant, as applicable, in good faith; (b) there are no uncured defaults in Landlord's or Tenant's performance (other than the failure to deliver the estoppel certificate); and (c) not more than one (1) month's Rent has been paid in advance. -22- 29 26. PARKING. Subject to Sections 18, 19 and 31.16 of this Lease, Tenant shall be entitled, commencing on the Early Occupancy Date, to use the number of parking spaces set forth in Section 1.12 of the Summary, which parking spaces shall pertain to the parking facilities designated for the Premises, as outlined on Exhibit "A" attached hereto. Nothwithstanding anything to the contrary contained herein, except in the case of casualty or condemnation, under no circumstances may Landlord reduce the number of parking spaces available for the Premises below the ratio set forth in Section 1.12 of the Summary. Landlord agrees that during the initial Term, Landlord shall not charge Tenant any fees for Tenant's use of the parking facilities; provided, however, that (a) Tenant shall be responsible for the full amount of taxes (if any) imposed by any governmental authority in connection with the use of such parking facilities by Tenant and (b) parking charges (if any) applicable during the Option Period(s) shall be determined as a component of Fair Market Rental (as defined in Section 2.3 above); however, (i) if it is determined as a component of Fair Market Rental that Tenant shall be charged for parking during any Option Periods, Monthly Rent payable for the Premises shall not also include such parking charges (i.e., Tenant shall not be charged more than once for such parking charges), and (ii) Tenant will be obligated to pay parking charges as a component of Fair Market Rental (or as a separate charge) if, and only if, landlords of comparable buildings in the Sorrento Mesa area of San Diego are then charging tenants for the use of uncovered surface parking facilities and in no event shall Landlord charge Tenant (either as a component of Fair Market Rental for the Premises or as a per parking space charge) more than the prevailing rates then being charged for such parking by landlords of such projects comparable to the Project in the Sorrento Mesa area of San Diego. Tenant's continued right to use the parking facilities is conditioned upon Tenant abiding by all reasonable and non-discriminatory rules and regulations which are prescribed from time to time for the orderly operation and use of the parking lots, Tenant's cooperation in seeing that Tenant's employees and visitors also comply with such rules and regulations, and Tenant not being in default under this Lease. The parking spaces to which Tenant is entitled pursuant to this Section 26 are solely for use by Tenant's own personnel, Tenant's visitors, suppliers and invitees and such passes may not be transferred, assigned, subleased or otherwise alienated by Tenant without Landlord's prior approval. 27. MODIFICATION AND CURE RIGHTS OF LANDLORD'S MORTGAGEES AND LESSORS. 27.1 MODIFICATIONS. If, in connection with Landlord's obtaining or entering into any financing or ground lease for any portion of the Premises, the lender or ground lessor shall request modifications to this Lease, Tenant shall, within ten (10) business days after request therefor, execute an amendment to this Lease including such modifications, provided such modifications are reasonable, do not (i) increase the obligations of Tenant hereunder; (ii) extend the Term; or (iii) otherwise adversely affect the leasehold estate created hereby or Tenant's rights hereunder. 27.2 CURE RIGHTS. In the event of any default on the part of Landlord, Tenant will give notice by registered or certified mail to any beneficiary of a deed of trust or mortgagee covering the Premises or ground lessor of Landlord whose address shall have been furnished to Tenant. 28. QUIET ENJOYMENT. Landlord covenants and agrees with Tenant that, upon Tenant performing all of the covenants and provisions on Tenant's part to be observed and performed under this Lease (including payment of rent hereunder), Tenant shall and may peaceably and quietly have, hold and enjoy the Premises in accordance with and subject to the terms and conditions of this Lease as against all persons claiming by, through or under Landlord. 29. TRANSFER OF LANDLORD'S INTEREST. The term "Landlord" as used in this Lease, so far as covenants or obligations on the part of the Landlord are concerned, shall be limited to mean and include only the owner or owners, at the time in question, of the fee title to, or a lessee's interest in a ground lease of, the Premises. In the event of any transfer or conveyance of any such title or interest (other than a transfer for security purposes only), the transferor shall be automatically relieved of all covenants and obligations on the part of Landlord contained in this Lease accruing after the date of such transfer or conveyance, provided that the transferee of Landlord's interest has expressly agreed to assume, in writing or by operation of law, the performance of all the covenants and obligation of Landlord under this Lease following the date of such transfer. Landlord and Landlord's transferees and assignees shall have the absolute right to transfer all or any portion of their respective title and interest in the Premises and/or this Lease without the consent of Tenant, and such transfer or subsequent transfer shall not be deemed a violation on Landlord's part of any of the terms and conditions of this Lease. 30. LIMITATION ON LANDLORD'S LIABILITY. Notwithstanding anything contained in this Lease to the contrary, the obligations of Landlord under this Lease (including any actual or alleged breach or default by Landlord) do not constitute personal obligations of the individual partners, directors, officers or shareholders of Landlord or Landlord's partners, and Tenant shall not seek recourse against the individual partners, directors, officers or shareholders of Landlord or Landlord's partners, or any of their personal assets for satisfaction of any liability with respect to this Lease. In addition, in consideration of the benefits accruing hereunder to Tenant and notwithstanding anything contained in this Lease to the contrary, Tenant hereby covenants and agrees for itself and all of its successors and assigns that except as provided in the last sentence of this Section 30, the liability of Landlord for its obligations under this Lease (including any liability as a result of any actual or alleged failure, breach or default hereunder by Landlord), shall be limited solely to, and Tenant's and its successors' and assigns' sole and exclusive remedy shall be against, Landlord's interest in the Project, including the rents, issues and profits of Landlord therefrom and no other assets of Landlord. However, Landlord agrees that the immediately preceding sentence shall not apply to any liability Landlord may have to Tenant pursuant to Section 7.2 of Exhibit "B" below in the event that Landlord's interest in the Project is acquired as a result of a foreclosure or a deed in lieu of foreclosure. 31. MISCELLANEOUS. 31.1 GOVERNING LAW. This Lease shall be governed by, and construed pursuant to, the laws of the state in which the Premises is located. -23- 30 31.2 SUCCESSORS AND ASSIGNS. Subject to the provisions of Section 29 above, and except as otherwise provided in this Lease, all of the covenants, conditions and provisions of this Lease shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective heirs, personal representatives and permitted successors and assigns; provided, however, no rights shall inure to the benefit of any Transferee of Tenant unless the Transfer to such Transferee is made in compliance with the provisions of Section 14. 31.3 NO MERGER. The voluntary or other surrender of this Lease by Tenant or a mutual termination thereof shall not work as a merger and shall, at the option of Landlord, either (a) terminate all or any existing subleases, or (b) operate as an assignment to Landlord of Tenant's interest under any or all such subleases. 31.4 PROFESSIONAL FEES. If either Landlord or Tenant should bring suit or commence arbitration against the other with respect to this Lease, including for unlawful detainer or any other relief against the other hereunder, then all costs and expenses incurred by the prevailing party therein (including, without limitation, its actual appraisers', accountants', attorneys' and other professional fees, expenses and court costs), shall be paid by the other party. 31.5 WAIVER. The waiver by either party of any breach by the other party of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant and condition herein contained, nor shall any custom or practice which may become established between the parties in the administration of the terms hereof be deemed a waiver of, or in any way affect, the right of any party to insist upon the performance by the other in strict accordance with said terms. No waiver of any default of either party hereunder shall be implied from any acceptance by Landlord or delivery by Tenant (as the case may be) of any Rent or other payments due hereunder or any omission by the non-defaulting party to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect defaults other than as specified in said waiver. The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease other than the failure of Tenant to pay the particular Rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such Rent. 31.6 TERMS AND HEADINGS; INTERPRETATION. The words "Landlord" and "Tenant" as used herein shall include the plural as well as the singular. Words used in any gender include other genders. The Section headings of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part hereof. Any deletion of language from this Lease prior to its execution by Landlord and Tenant shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the parties intended thereby to state the converse of the deleted language. 31.7 TIME. Time is of the essence with respect to performance of every provision of this Lease in which time or performance is a factor. All references in this Lease to "days" shall mean calendar days unless specifically modified herein to be "business" days. 31.8 PRIOR AGREEMENTS; AMENDMENTS. This Lease, including the Summary and all Exhibits and Riders attached hereto contains all of the covenants, provisions, agreements, conditions and understandings between Landlord and Tenant concerning the Premises and any other matter covered or mentioned in this Lease, and no prior agreement or understanding, oral or written, express or implied, pertaining to the Premises or any such other matter shall be effective for any purpose. No provision of this Lease may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors in interest. The parties acknowledge that all prior agreements, representations and negotiations are deemed superseded by the execution of this Lease to the extent they are not expressly incorporated herein. 31.9 SEPARABILITY. The invalidity or unenforceability of any provision of this Lease (except for Tenant's obligation to pay Rent) shall in no way affect, impair or invalidate any other provision hereof, and such other provisions shall remain valid and in full force and effect to the fullest extent permitted by law. 31.10 RECORDING. Concurrently with the execution of this Lease, Landlord and Tenant shall each execute a Memorandum of Lease ("MEMORANDUM") which shall be in the form of Exhibit "G" attached hereto, provided that within ten (10) days after written request from Landlord, Tenant also executes and delivers to Landlord, in recordable form, a properly acknowledged quitclaim deed or other instrument extinguishing all of the Tenant's rights and interest in and to the Premises, and designating Landlord as the transferee, which deed or other instrument shall be held by Landlord and may be recorded by Landlord only when this Lease terminates or expires (but not prior thereto). The parties acknowledge that the legal description attached as Exhibit "A" to the Memorandum applies to both Tenant's Site and the Building 3 Site; accordingly, if Tenant fails to exercise its Expansion Option and fails to exercise its Right of First Refusal in accordance with Section 33 below, Tenant shall, within ten (10) days after written request from Landlord, execute and deliver to Landlord, in recordable form, a property acknowledged quitclaim deed or other instrument extinguishing all of Tenant's rights and interest in and to the Building 3 Site, and designating Landlord as the transferee, which deed or other instrument may be recorded by Landlord. Tenant shall pay for all costs of or related to recording the Memorandum, including, but not limited to, recording charges and documentary transfer taxes. 31.11 EXHIBITS AND RIDERS. All Exhibits and Riders attached to this Lease are hereby incorporated in this Lease for all purposes as though set forth at length herein. 31.12 AUCTIONS. Tenant shall have no right to conduct any auction in, on or about the Premises. 31.13 ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of a lesser amount than the rent payment herein stipulated shall be deemed to be other than on account of the rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such rent -24- 31 or pursue any other remedy provided in this Lease. Tenant agrees that each of the foregoing covenants and agreements shall be applicable to any covenant or agreement either expressly contained in this Lease or imposed by any statute or at common law. 31.14 FINANCIAL STATEMENTS. Upon ten (10) business days prior written request from Landlord (which Landlord may make at any time during the Term but no more often than once in any calendar year), Tenant shall deliver to Landlord a current financial statement of Tenant. Such statements shall be prepared in accordance with generally acceptable accounting principles and certified as true in all material respects by Tenant (if Tenant is an individual) or by an authorized officer or general partner of Tenant (if Tenant is a corporation or partnership, respectively). If Tenant is a publicly traded company, Tenant may fulfill the requirements of this Section 31.14 by delivering to Landlord a copy of Tenant's most recent annual report or those statements submitted by Tenant to the Securities and Exchange Commission. 31.15 NO PARTNERSHIP. Landlord does not, in any way or for any purpose, become a partner of Tenant in the conduct of its business, or otherwise, or joint venturer or a member of a joint enterprise with Tenant by reason of this Lease, 31.16 FORCE MAJEURE. In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lock-outs, labor troubles, inability to procure materials, failure of power, governmental moratorium or other governmental action or inaction (including failure, refusal or delay in issuing permits, approvals and/or authorizations), injunction or court order, riots, insurrection, war, fire, earthquake, flood or other natural disaster or other reason of a like nature not the fault of the party delaying in performing work or doing acts required under the terms of this Lease (but excluding delays due to financial inability) (herein collectively, "FORCE MAJEURE"), then performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. The provisions of this Section 31.16 shall not apply to nor operate to excuse Landlord or Tenant from the payment of Rent or other amounts strictly in accordance with the terms of this Lease. 31.17 COUNTERPARTS. This Lease may be executed in one or more counterparts, each of which shall constitute an original and all of which shall be one and the same agreement. 31.18 DUTY TO ACT REASONABLY. Whenever this Lease grants Landlord or Tenant the right to take action, exercise discretion, establish rules and regulations or make allocations or other determinations, unless another standard is expressly prescribed, Landlord and Tenant shall act reasonably and in good faith. 31.19 NON-DISCRIMINATION. Landlord and Tenant acknowledge and agree that there shall be no discrimination against, or segregation of, any person, group of persons, or entity on the basis of race, color, creed, religion, age, sex, marital status, national origin, or ancestry in the leasing, subleasing, transferring, assignment, occupancy, tenure, use, or enjoyment of the Premises, or any portion thereof. 31.20 ARBITRATION. 31.20.1 GENERAL SUBMITTALS TO ARBITRATION. The submittal of all matters to arbitration in accordance with the terms of this Section 31.20 shall be the sole and exclusive method, means and procedure to resolve any and all claims, disputes or disagreements arising under this Lease, except for (i) determination of Fair Market Rental for the Option Period(s), which shall be determined in accordance with Section 2.3 above, and (ii) claims relating to Landlord's exercise of any unlawful detainer rights pursuant to California law or rights or remedies used by Landlord to gain possession of the Premises or terminate Tenant's right of possession to the Premises. The parties hereby irrevocably waive any and all rights to the contrary and shall at all times conduct themselves in strict, full, complete and timely accordance with the terms of this Section 31.20 and all attempts to circumvent the terms of this Section 31.20 shall be absolutely null and void and of no force or effect whatsoever. 31.20.2 JAMS/ENDISPUTE. Any dispute to be arbitrated pursuant to the provisions of this Section 31.20 shall be determined by binding arbitration before a retired judge of the Superior Court of the State of California (the "ARBITRATOR") under the auspices of JAMS/Endispute ("JAMS") in San Diego, California. Such arbitration shall be initiated by the parties, or either of them, within ten (10) business days after either party sends written notice (the "ARBITRATION NOTICE") of a demand to arbitrate by registered or certified mail to the other party and to JAMS. The Arbitration Notice shall contain a description of the subject matter of the arbitration, the dispute with respect thereto, the amount involved, if any, and the remedy or determination sought. The parties may agree on a retired judge from the JAMS panel. If they are unable to promptly agree, JAMS will provide a list of three (3) available judges and each party may strike one. The remaining judge (or if there are two (2), the one selected by JAMS) will serve as the Arbitrator. In the event that JAMS shall no longer exist or if JAMS fails or refuses to accept submission of such dispute, then the dispute shall be resolved by binding arbitration before the American Arbitration Association ("AAA") in San Diego, California under the AAA's commercial arbitration rules then in effect. 31.20.3 ARBITRATION PROCEDURE. 31.20.3.1 PRE-DECISION ACTIONS. The Arbitrator shall schedule a pre-hearing conference to resolve procedural matters, arrange for the exchange of information, obtain stipulations, and narrow the issues. The parties will submit proposed discovery schedules to the Arbitrator at the preheating conference. The scope and duration of discovery will be within the sole discretion of the Arbitrator. The Arbitrator shall have the discretion to order a pre-hearing exchange of information by the parties, including, without limitation, production of requested documents, exchange of summaries of testimony of proposed witnesses, and examination by deposition OF parties and third-party witnesses. This discretion shall be exercised in favor of discovery reasonable under the circumstances. -25- 32 31.20.3.2 THE DECISION. Any party may be represented by counsel or other authorized representative. In rendering a decision(s), the Arbitrator shall determine the rights and obligations of the parties according to the substantive and procedural laws of California and the terms and provisions of this Lease. The Arbitrator's decision shall be based on the evidence introduced at the hearing, including all logical and reasonable inferences therefrom. The Arbitrator may make any determination, and/or grant any remedy or relief that is just and equitable. The decision must be based on, and accompanied by, a written statement of decision explaining the factual and legal basis for the decision as to each of the principal controverted issues. The decision shall be conclusive and binding, and it may thereafter be confirmed as a judgment by the Superior Court of the State of California, subject only to challenge on the grounds set forth in California Code of Civil Procedure Section 1286.2. The validity and enforceability of the Arbitrator's decision is to be determined exclusively by the California courts pursuant to the provisions of this Lease. The Arbitrator may award costs, including without limitation attorneys' fees, and expert and witness costs, to the prevailing party, if any, as determined by the Arbitrator in its discretion. The Arbitrator's fees and costs shall be paid by the non-prevailing party as determined by the Arbitrator in its discretion. A party shall be determined by the Arbitrator to be the prevailing party if its proposal for the resolution of a dispute is the closer to that adopted by the Arbitrator. 32. LEASE EXECUTION. 32.1 AUTHORITY. If either Landlord or Tenant executes this Lease as a partnership or corporation, then such party represents and warrants that: (a) Landlord or Tenant, as applicable, is a duly authorized and existing partnership or corporation, as the case may be, and is qualified to do business in the state in which the Premises are located; (b) such persons and/or entities executing this Lease are duly authorized to execute and deliver this Lease on behalf of Landlord or Tenant, as applicable, in accordance with such party's partnership agreement (if Landlord or Tenant is a partnership), or a duly adopted resolution of such party's board of directors and such party's by-laws (if Landlord or Tenant is a corporation); and (c) this Lease is binding upon Landlord and Tenant in accordance with its terms. 32.2 NO OPTION. The submission of this Lease for examination or execution by Tenant does not constitute a reservation of or option for the Premises and this Lease shall not become effective as a Lease until it has been executed by Landlord and delivered to Tenant. 33. BUILDING 3. 33.1 OPTION TO EXPAND. Landlord hereby grants to Tenant the option ("EXPANSION OPTION") to expand the Premises to include an additional approximately 57,000 rentable square foot building ("BUILDING 3") to be constructed by Landlord at the approximate location in the Project shown on Exhibit "A." 33.1.1 EXERCISE OF EXPANSION OPTION. The Expansion Option shall be exercised, if at all, by written notice ("EXPANSION NOTICE") from Tenant to Landlord of such exercise no later than the date which is two (2) years after the Commencement Date. The Expansion Option shall be personal to the Original Tenant and any assignee of Tenant's entire interest under this Lease (including, without limitation, an assignment to a Permitted Non-Affiliate Assignee) where such assignment is permitted under Article 14 above ("PERMITTED ASSIGNEE"), and may not be assigned or transferred to any other person or entity. Tenant shall not have the right to exercise the Expansion Option if, as of the date of the Expansion Notice, Tenant is in default under this Lease after expiration of applicable cure periods. 33.1.2 CONSTRUCTION OF BUILDING 3. If Tenant timely exercises its Expansion Option, the Base Improvements for Building 3 shall be completed in accordance with the specifications for the Base Improvements for the initial Buildings, and the Tenant Improvements in Building 3 shall be completed by Landlord in accordance with the Work Letter except that (i) the Allowance for Building 3 shall be an amount equal to the product of (a) Twenty-Nine and no/100 Dollars ($29.00) per rentable square foot of Building 3 multiplied by (b) a fraction, the numerator of which is one hundred twenty (120) minus the number of months between the Commencement Date and the Expansion Commencement Date (as that term is defined in Section 33.1.3 below) and the denominator of which is one hundred twenty (120), and (ii) the schedule specified in Section 6 of the Work Letter shall be as reasonably determined by Landlord and Tenant in good faith given the date of Landlord's receipt of the Expansion Notice. However, Landlord acknowledges that Tenant shall be entitled to commence the preparation and approval process for the Preliminary Plans and Final Plans for Building 3 prior to the time that Tenant delivers the Expansion Notice to Landlord and to have Landlord apply for plan check of the Final Plans, all at Tenant's sole cost and expense; provided, however, that if Tenant subsequently exercises the Expansion Option by delivery of the Expansion Notice, upon full execution and delivery of the amendment to this Lease in order to document such expansion, Landlord shall reimburse Tenant for any costs so incurred by Tenant and charge the Allowance for Building 3 for such reimbursed amount; provided, however, only that portion of such reimbursement attributable to the Tenant Improvements for Building 3 as opposed to the Base Improvements, shall be charged against the Allowance for Building 3. 33.1.3 TERMS OF TENANT'S LEASE OF BUILDING 3. IF Tenant exercises its Expansion Option, Tenant's lease of Building 3 shall be upon all of the terms and conditions specified in this Lease for Tenant's lease of the original Premises including, without limitation, the same rate of Monthly Rent payable (per rentable square foot) then in effect for the original Premises (and subject to the same increases at the same times provided for the original Premises pursuant to this Lease) and the Term for Tenant's lease of Building 3 shall be co-terminous with the Term for Tenant's lease of the original Premises. The Term for Building 3 and Tenant's obligation to pay Monthly Rent with respect to Building 3 shall commence upon the date ("EXPANSION COMMENCEMENT DATE") of Substantial Completion (as determined in accordance with the Work Letter) of Improvements for Building 3 (subject to acceleration as provided in, and subject to, Section 7.1 of the Work Letter). If Tenant timely exercises the Expansion Option, Landlord and Tenant shall execute an amendment to this Lease adding Building 3 to the Premises upon the terms and conditions set forth in this Section 33.1. If Tenant timely exercises the Expansion Option, or if Tenant exercises its Right of First Refusal pursuant to Section 33.2 below with respect to all of Building 3, commencing as of the effective date of Tenant's lease of Building 3, that certain site located adjacent to Building 3 as shown on Exhibit "A" hereto (the "BUILDING 3 SITE") shall be added to Tenant's Site, -26- 33 in which case Tenant shall be responsible for repair and maintenance of the Building 3 Site as provided in, and subject to, Article 11 above. 33.1.4 CONSIDERATION FOR EXPANSION OPTION. In consideration for Landlord's grant of the Expansion Option to Tenant, Tenant shall pay to Landlord, as additional rent, Fifty-One Thousand Two Hundred Eighty-Eight and no/100 Dollars ($51,288.00) on the Commencement Date and every three (3) months thereafter until the earlier of (i) the date Tenant delivers the Expansion Notice, or (ii) the expiration of the twenty-first (21st) full month of the Term. Such payments may be referred to herein as the "EXPANSION PAYMENTS." If Tenant delivers the Expansion Notice, then Tenant shall have no further obligation to make any Expansion Payments. In addition, Tenant may elect to discontinue its Expansion Payments; provided, that if Tenant fails to make any Expansion Payment on a timely basis, the Expansion Option shall terminate if Tenant fails to reinstate such payments within ten (10) business days of Tenant's receipt of written notice from Landlord to that effect (in which case Tenant's Right of First Refusal specified in Section 33.2 below shall apply). If Tenant elects not to lease Building 3 pursuant to this Section 33.1 or Section 33.2 below, Landlord may construct Building 3 for occupancy by a third party; provided, however, that parking applicable to such building shall contain at least four (4) parking spaces for each one thousand (1,000) rentable square feet of such building and the restrictions set forth in Section 34 below shall apply. Landlord agrees to use commercially reasonable efforts to cause the Base Improvements for Building 3 to be completed within eight (8) months after Landlord's receipt of the Expansion Notice and Landlord's procurement of a building permit for Building 3 (and Landlord agrees to promptly apply for and thereafter diligently pursue a building permit for Building 3 following receipt of the Expansion Notice). 33.2 RIGHT OF FIRST REFUSAL. If Tenant's Expansion Option specified in Section 33.1 expires or if Tenant otherwise discontinues making the Expansion Payments, thereupon Tenant shall have a continuing right of first refusal ("RIGHT OF FIRST REFUSAL") with respect to all or any portion of Building 3. Tenant's First of First Refusal shall be on the terms and conditions set forth in this Section 33.2. 33.2.1 PROCEDURE. Landlord shall notify Tenant (the "FIRST REFUSAL NOTICE") from time to time when Landlord has reached agreement with a third party on the basic economic terms and conditions for said third party's lease of all or any portion of Building 3 ("BUILDING 3 SPACE"). The First Refusal Notice shall set forth such basic economic terms and conditions (collectively the "ECONOMIC TERMS") including, without limitation, the term for such proposed lease, the tenant improvement allowance applicable to such lease, the rental rate applicable to such lease, the proposed commencement date and any other basic economic terms and conditions. Notwithstanding the foregoing, Landlord shall have no obligation to deliver the First Refusal Notice and Tenant's Right of First Refusal shall expire upon expiration of the initial Lease Term. 33.2.2 PROCEDURE FOR ACCEPTANCE. If Tenant wishes to exercise Tenant's Right of First Refusal, then within fifteen (15) business days after delivery of the First Refusal Notice to Tenant (the "ELECTION DATE"), Tenant shall deliver written notice to Landlord ("TENANT'S ELECTION NOTICE") pursuant to which Tenant shall elect either to (i) lease the Building 3 Space upon the Economic Terms as set forth in the First Refusal Notice and the same non-Economic Terms as set forth in this Lease; (ii) refuse to lease the Building 3 Space, specifying that such refusal is not based upon the Economic Terms set forth by Landlord in the First Refusal Notice, but upon Tenant's lack of need for the Building 3 Space in which event Landlord may lease the Building 3 Space to any entity on any terms Landlord desires and Tenant's Right of First Refusal with respect to the Building 3 Space specified in Landlord's First Refusal Notice shall thereupon terminate and be of no further force or effect until such time as the next tenant's lease of the Building 3 Space expires or terminates (including any renewal or extension of such lease, whether or not such renewal or extension is pursuant to an express written provision in such lease, and regardless of whether any such renewal or extension is consummated pursuant to a lease amendment or a new lease); or (iii) refuse to lease the Building 3 Space, specifying that such refusal is based upon the Economic Terms set forth in the First Refusal Notice, in which event Tenant shall also specify in Tenant's Election Notice revised Economic Terms (which may include, without limitation, a lease term which is co-terminus with Tenant's lease of the Premises if such is not the case in the Economic Terms proposed by Landlord) upon which Tenant would be willing to lease such Building 3 Space from Landlord. If Tenant does not so respond in writing to Landlord's First Refusal Notice by the Election Date, Tenant shall be deemed to have elected the option described in clause (ii) above. If Tenant timely delivers to Landlord Tenant's Election Notice pursuant to clause (iii) above, and if Tenant's Election Notice is received by Landlord prior to the Election Date, then Landlord and Tenant shall negotiate, in good faith, for a period of ten (10) business days after Landlord's receipt of Tenant's Election Notice (the "EXPANSION NEGOTIATING PERIOD") to agree upon such Economic Terms. If Tenant delivers Tenant's Election Notice pursuant to clause (iii) above, but Landlord and Tenant do not agree upon such Economic Terms on or before the expiration of the Expansion Negotiating Period, Landlord may elect either to (a) lease the Building 3 Space to Tenant upon the revised Economic Terms specified by Tenant in Tenant's Election Notice, and the same non-Economic Terms as set forth in this Lease; or (b) within one hundred eighty (180) days after the Election Date, lease the Building 3 Space to any person or entity upon any terms Landlord desires; provided, however, if the Economic Terms of Landlord's proposed lease to said third party are more favorable to the third party than those Economic Terms proposed by Tenant in Tenant's Election Notice, before entering into such third party lease, Landlord shall notify Tenant of such more favorable Economic Terms and Tenant shall have the right to lease the Building 3 Space upon such more favorable Economic Terms by delivering written notice thereof to Landlord within ten (10) business days after Tenant's receipt of Landlord's notice. If Tenant does not elect to lease such space from Landlord within said ten (10) business day period, Tenant shall be deemed to have elected the option described in clause (ii) above and Tenant's Right of First Refusal shall thereupon terminate and be of no further force or effect until such time as the next tenant's lease of the Building 3 Space expires or terminates (including any renewal or extension of such lease, whether or not such renewal or extension is pursuant to an express written provision in such lease, and regardless of whether any such renewal or extension is consummated pursuant to a lease amendment or a new lease). In determining whether the Economic Terms of Landlord's proposed lease to a third party are more favorable to the third party than those Economic Terms proposed by Tenant in Tenant's Election Notice, the rent and all concessions shall be blended on a straight-line basis to an effective rental rate throughout the term of the proposed lease with the third party, and compared with the effective rental rate blending on a straight line basis the rent and all concessions for the term proposed by Tenant in Tenant's Election Notice. If Tenant timely delivers to Landlord Tenant's -27- 34 Election Notice pursuant to clause (ii) or (iii) above (or is deemed to have elected the option in clause (ii) above), and if Landlord elects to proceed to lease the Building 3 Space to a third party pursuant to this Section 33.2.2 above, but fails to execute a lease with such third party within one hundred eighty (180) days after the Election Date, then before leasing the Building 3 Space to any third party, Landlord shall once again be required to deliver a First Refusal Notice to Tenant pursuant to Section 33.2.1 above and the foregoing procedures of this Section 33.2 shall once again apply. 33.2.3 LEASE OF BUILDING 3 SPACE. If Tenant timely exercises Tenant's right to lease the Building 3 Space as set forth herein, Landlord and Tenant shall execute an amendment to this Lease adding the Building 3 Space to this Lease upon the same non-economic terms and conditions as applicable to the initial Premises, and the Economic Terms and conditions as provided in this Section 33.2. 33.2.4 TERMINATION OF RIGHT OF FIRST REFUSAL. The rights set forth in this Section 33.2, and Landlord's obligations with respect thereto, shall be personal to the Original Tenant and any Permitted Assignee, including a Permitted Non-Affiliate Assignee. Tenant shall not have the right to lease the Building 3 Space if, as of the date of the attempted exercise of any Right of First Refusal by Tenant, Tenant is in default under this Lease after any applicable notice and cure periods. 34. EXPANSION OF PROJECT. If Landlord owns, as of the date of execution of this Lease or in the future, any land which is adjacent to the Premises and is so designated on the Site Plan attached to this Lease as Exhibit "A" ("ADJACENT LAND") and Landlord elects to develop such Adjacent Land, Landlord shall only develop buildings that are of substantially the same design as the Buildings leased to Tenant under this Lease including, without limitation, substantially the same amount of parking and substantially the same landscaping and building height, so that such Adjacent Land together with the Premises looks and feels like an integrated campus. In no event shall any building constructed on such Adjacent Land be greater than three (3) floors unless Tenant otherwise consents, which consent may be withheld by Tenant in its sole and absolute discretion. Landlord agrees that prior to commencement of construction on, or SALE of, any lots in the Project (other than Tenant's Site), covenants, conditions and restrictions shall be recorded against such lot(s), or an individual covenant shall be recorded against such lot(s), in each case specifying that any roof-top equipment on buildings erected on such lot(s) shall be architecturally screened in such a manner as to provide an aesthetically pleasing view over such buildings. -28- 35 IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first above written. "TENANT" DATAWORKS CORPORATION, a California corporation By: /s/ STUART CLIFTON -------------------------------------- Name: STUART CLIFTON ------------------------------ Title: PRESIDENT & CEO By: /s/ NORMAN R. FARQUHAR -------------------------------------- Name: Norman R. Farquhar ------------------------------ Title: Executive Vice President & CFO "LANDLORD" ADI RESEARCH PARTNERS, L.P., a California limited partnership By: Allen Development, Inc., a California corporation general partner By /s/ RICHARD S. ALLEN -------------------------------- Name: Richard S. Allen --------------------------- Title: Chief Executive Officer -------------------------- By /s/ DAVID L. DICK -------------------------------- Name: DAVID L. DICK --------------------------- Title: SECRETARY -------------------------- - ---------- NOTE: IF TENANT IS A CALIFORNIA CORPORATION, then one of the following alternative requirements must be satisfied: (A) This Lease must be signed by two (2) officers of such corporation: one being the chairman of the board, the president or a vice president, and the other being the secretary, an assistant secretary, the chief financial officer or an assistant treasurer. If one (1) individual is signing in two (2) of the foregoing capacities, that individual must sign twice; once as one officer and again as the other officer. (B) If there is only one (1) individual signing in two (2) capacities, or if the two (2) signatories do not satisfy the requirements of (A) above, then Tenant shall deliver to Landlord a certified copy of a corporate resolution in the form reasonably acceptable to Landlord authorizing the signatory(ies) to execute this Lease. IF TENANT IS A CORPORATION INCORPORATED IN A STATE OTHER THAN CALIFORNIA, then Tenant shall deliver to Landlord a certified copy of a corporate resolution in the form reasonably acceptable to Landlord authorizing the signatory(ies) to execute this Lease. -29- 36 EXHIBIT "A" SITE PLAN PREMISES AND BUILDING 3 37 EXHIBIT "B" WORK LETTER AGREEMENT This Work Letter Agreement supplements the Single-Tenant Industrial Lease (the "LEASE") to which this Work Letter Agreement is attached. All terms not defined herein shall have the same meanings as set forth in the Lease. 1. Construction of Base Improvements and Tenant Improvements. Landlord shall construct, through Reno Construction or any other general contractor reasonably approved by Tenant, the "BASE IMPROVEMENTS" described on Schedule 1 attached hereto. Any changes to Schedule 1 shall be subject to Tenant's approval, which approval shall not be unreasonably withheld or delayed. In addition, Landlord shall construct, through the contractor selected pursuant to Section 4 below, all other portions of the Buildings to be occupied by Tenant pursuant to the Lease (collectively, the "TENANT IMPROVEMENTS") in accordance with the Final Plans for the Tenant Improvements approved by Landlord and Tenant pursuant to Paragraph 2 below. The Base Improvements and Tenant Improvements are collectively referred to as the "IMPROVEMENTS." All Improvements shall be constructed pursuant to this Work Letter Agreement. 2. Plans and Specifications for Improvements. 2.1 All plans and specifications, and approvals or disapprovals thereof, for the Tenant Improvements shall be submitted in accordance with the schedule set forth in Paragraph 6 below. 2.2 Tenant shall retain Ware & Malcomb Architects, Inc. or any other architect reasonably approved by Landlord (the "ARCHITECT") to prepare and deliver to Landlord for Landlord's reasonable approval preliminary plans for the Tenant Improvements (the "PRELIMINARY PLANS"). If Landlord shall reasonably disapprove of any portion of the Preliminary Plans, Landlord shall advise Tenant of such revisions, and reasons therefor. Tenant shall then submit to Landlord, for Landlord's reasonable approval, a redesign of the Preliminary Plans, incorporating the revisions reasonably required by Landlord. 2.3 Tenant shall then cause the Architect to prepare from the approved Preliminary Plans complete architectural plans, drawings and specifications for the Tenant Improvements. Such complete plans, drawings and specifications are referred to herein as the "FINAL PLANS". All items shown on the Final Plans other than the Base Improvements shall be considered to be Tenant Improvements. Tenant shall submit the Final Plans for the approval of Landlord in the same manner as provided in Paragraph 2.2 above for approval by Landlord of the Preliminary Plans. 2.4 Tenant acknowledges that, unless specifically shown as Landlord's responsibility on the Final Plans, the Improvements shall not include, and Landlord shall not be responsible for, the design, construction or installation of, various nonstructural items which Tenant may find desirable for the Premises including, without limitation, furniture, trade fixtures, office equipment, telephone, telecommunications and data equipment and systems, plantscaping, artwork or cabling; Tenant may enter the Premises to install these items as provided in, and subject to, Section 2.2 of the Lease and Paragraph 5 below. 3. Allowance for Work and Work Cost. 3.1 Landlord shall construct the Base Improvements at Landlord's sole cost. Tenant shall receive from Landlord an allowance (the "ALLOWANCE") of Twenty-Nine Dollars ($29.00) per rentable square foot of the Premises, which Allowance shall be used solely for Work Costs for the Tenant Improvements. All Tenant Improvements, whether or not the cost thereof is covered by the Allowance, shall become the property of Landlord upon expiration or earlier termination of the Lease and shall remain on the Premises at all times during the Term of the Lease. Tenant shall be entitled to a credit of up to a maximum of Two Dollars ($2.00) per rentable square foot of the Premises against Tenant's first obligations to pay Monthly Rent under the Lease for any portion of the Allowance not used BY Tenant; however, Tenant shall be entitled to no payment or rent reduction for any part of the Allowance not used by Tenant to the extent such unused portion exceeds said Two Dollars ($2.00) per rentable square foot maximum. 3.2 As used herein, "WORK COSTS" mean (i) all out-of-pocket fees and expenses incurred by Landlord or Tenant in connection with the design, permitting and construction of the Tenant Improvements, including, without limitation, architectural and engineering fees for the preparation of the Preliminary Plans and Final Plans, (ii) the actual contractor costs and charges for material and labor, contractor's profit, overhead and general conditions incurred by Landlord in having the Tenant Improvements constructed in accordance with the Final Plans, (iii) governmental agency plan check, permit and other fees and sales and use taxes, (iv) testing and inspection costs, (v) any paint touch-up or repair work necessary due to Tenant's move into the Premises, and (vi) all other reasonable costs expended or to be expended by Landlord in the construction of the Tenant Improvements. 3.3 As promptly as practicable following Tenant's approval of the Final Plans, Landlord shall submit to Tenant a written estimate of the Work Costs for the Tenant Improvements. Thereupon, Tenant shall either approve the estimate or disapprove specific items and submit to Landlord proposed revisions of Final Plans to reflect the deletion of and/or substitution for such disapproved items. Any such deletions and/or substitutions to the Final Plans will be processed in accordance with Subparagraphs 3.7 and 3.8 below. Upon Tenant's final written approval of said estimate (such approved estimate to be referred to herein as the "WORK COST STATEMENT"), Landlord shall have the right to purchase special materials requiring extended delivery time as set forth on the Final Plans and to commence the construction of the items included in said Work Cost Statement pursuant to Paragraph 4 hereof. EXHIBIT "B" 38 3.4 If the Final Plans or any amendment thereto requested by Tenant shall require changes in the Base Improvements, the increased cost of the Base Improvements caused by such changes shall be charged as a Work Cost. The cost thereof shall include all architectural and/or engineering fees and expenses in connection therewith. Alternatively, if any amendment to the Final Plans is requested by Landlord and not requested by Tenant, and if such amendment requires an increase in the cost of the Base Improvements, such increased cost of the Base Improvements shall be at Landlord's sole expense. However, notwithstanding the foregoing, if the Final Plans require a change in the Base Improvements in order to cause the Final Plans to comply with applicable codes, such increased cost of the Base Improvements shall be charged as a Work Cost. 3.5 Landlord's written estimate of the Work Costs shall include a reasonable contingency to allow for changes in the Tenant Improvements and/or other unforeseen costs and expenses arising after Tenant's approval thereof. 3.6 In the event that the Work Cost Statement exceeds the Allowance, Tenant shall pay the excess (the "TENANT'S CONTRIBUTION") directly to the general contractor in accordance with the following procedure: upon Landlord's receipt of a monthly draw request from the general contractor for the Tenant Improvements and Landlord's approval of such draw request, Landlord shall forward such draw request to Tenant together with Landlord's determination (calculated in the manner set forth below) of that portion of Tenant's Contribution applicable to such draw request. The applicable portion of Tenant's Contribution for each draw request shall be calculated as the percentage which Tenant's Contribution bears to the total amount set forth in the Work Cost Statement. Such monthly payments by Tenant shall, however, be reduced to the extent of any retention provided in Landlord's construction contract with the general contractor for the Tenant Improvements (which final retention shall be payable by Tenant together with Landlord's payment of such final retention). Landlord will give Tenant periodic reports (not less than monthly) on estimated and actual Work Costs incurred and Landlord will make Landlord's books and records concerning the Work Costs reasonably available for Tenant's review. 3.7 In the event that changes to the Final Plans are requested by Tenant and approved by Landlord or required by any governmental agency subsequent to Landlord's approval thereof, the changes shall be incorporated into the work by means of change order. 3.8 Any change orders to the approved Final Plans which are requested by Tenant and approved by Landlord or required by any governmental agency shall be forwarded to Landlord for approval and costing. Tenant shall be given a written cost estimate for the completion of said change order and an estimate of any delay in Substantial Completion (if any) which may result from such change order. If the change order is requested by Tenant, Tenant may, following receipt of the written cost estimate for the change order and the estimate of any delay, rescind its request for the change order. To the extent any change order requested by Tenant or required by any governmental agency increases the total amount of Work Costs, and if the total amount of Work Costs exceeds the Allowance, Tenant shall pay such increased cost (to the extent such cost is not covered by any remaining portion of the Allowance) directly to the general contractor for the Tenant Improvements as such increased costs are invoiced on a monthly basis from the general contractor as a part of the general contractor's draw request. 3.9 If Tenant fails to pay any amounts due from Tenant to the general contractor pursuant to this Section 3 on a timely basis (unless Tenant, in good faith, disputes the payment of any such amounts, in which event Tenant shall pay the undisputed portion and any delays involved in resolving such dispute shall be deemed to constitute a Tenant Delay), Landlord may, following at least five (5) business days notice to Tenant, discontinue construction of the Tenant Improvements until Tenant complies with its obligations, in which case any delay in construction resulting therefrom shall be deemed to constitute a Tenant Delay and any increase in costs of construction resulting from such delay shall be born by Tenant. 4. Construction. 4.1 Tenant shall be entitled to select the general contractor for construction of the Tenant Improvements. Tenant may make such selection based on either a negotiated bid or competitive bidding basis. If Tenant makes such selection based upon a negotiated bid basis, Tenant shall make such selection within twenty-one (21) days after the Final Plans have been approved by Landlord; provided, however, that any general contractor which Tenant elects to negotiate with (and the general contractor ultimately selected by Tenant) shall be experienced in comparable build-to-suit projects in the San Diego area and shall be subject to Landlord's reasonable, prior written approval. If Tenant elects to select such contractor pursuant to a competitive bidding procedure, the Final Plans shall be submitted by Landlord to at least two (2), but not more than four (4), general contractors experienced in comparable build-to-suit projects in the San Diego area and reasonably preapproved in writing by Landlord. Each such contractor shall submit a sealed, fixed price contract bid (on such bid form as Landlord shall designate and Tenant shall reasonably approve) to construct the Tenant Improvements. Each contractor shall be notified in the bid package of the time schedule for construction of the Tenant Improvements. The bids shall be submitted promptly to Landlord and a reconciliation shall be performed by Landlord (in the presence of Tenant's Construction Representative) to adjust inconsistent or incorrect assumptions so that a like-kind comparison can be made and a low bidder determined. Tenant shall be entitled to select any of such preapproved contractors submitting a bid, provided that such contractor states that it will be able to meet Landlord's construction schedule. Such selection by Tenant shall be made within twenty-one (21) days after Landlord's approval of the Final Plans. In either case (prenegotiated bid or competitive bidding), the general contractor shall only be entitled to use subcontractors reasonably approved by Landlord. Landlord shall have the right, but not the obligation, to choose the contractor selected by Tenant for construction of the Tenant Improvements as the general contractor for construction of the Base Improvements. 4.2 Following Tenant's approval of the Work Cost Statement, Tenant's selection of the general contractor for the Tenant Improvements and receipt of all relevant governmental agency approvals and permits, and EXHIBIT "B"-Page 2 39 when the Base improvements have reached a stage suitable for construction of the Tenant Improvements, Landlord shall cause the selected general contractor to commence the construction of the Tenant Improvements. Landlord and/or such general contractor shall have the right to cause all or any portion of such work to be performed by one or more subcontractors. Tenant shall have the right to reasonably approve all subcontractors for all major sub-trades such as the electrical, mechanical, plumbing and HVAC subcontractors. Landlord shall furnish Tenant with a critical path schedule setting forth the projected completion dates therefor and showing the deadlines for any actions required to be taken by Tenant during such construction; such critical path schedule shall be updated by Landlord and provided to Tenant's Construction Representative every thirty (30) days during the course of construction. 4.3 In connection with the construction of the Improvements, each party shall be entitled to rely upon the other party's construction representative who shall be as follows: Landlord's Construction Representative: Stephen Stock, Tenant's Construction Representative: Jon R. Johnson. Each respective construction representative shall have the authority to make binding commitments relative to the improvements on behalf of the party appointing such construction representative. All inquiries of Landlord or Tenant pertaining to construction of the Improvements shall be directed in writing to Landlord's Construction Representative or Tenant's Construction Representative, as applicable. A party may designate a substitute construction representative by giving written notice to the other party at any time. Any representatives of Tenant (other than Tenant's Construction Representative) who desire to visit the Premises during construction of the Improvements must first notify Landlord and the general contractor. 5. Decorating by Tenant. Landlord shall make the Premises reasonably available to Tenant prior to Substantial Completion as provided in Section 2.2 of the Lease. Such early entry by Tenant shall be subject to scheduling by Landlord and such rules and regulations as Landlord may reasonably establish in order to minimize any interference in Landlord's completion of the improvements. If at any time such entry shall cause or threaten a delay in the construction of the improvements, Landlord may terminate Tenant's right to such early entry. Prior to Tenant's entry, Tenant shall deliver evidence to Landlord that Tenant has obtained the insurance required under the Lease. Tenant shall be responsible for any damage to the Improvements caused by Tenant's entry. 6. Schedule. Preparation and approval of the Preliminary Plans, Final Plans and the Work Cost Statement shall proceed as indicated below.
Action Responsibility Due Date - ------ -------------- -------- Submission of the Preliminary Plans Tenant 30 days following the Effective Date Delivery of written notice Landlord 5 days after (i) approving or disapproving Preliminary Plans Submission, if necessary, of Tenant 10 days after (ii) redesign of Preliminary Plans Delivery of written notice of Landlord 3 days after (iii) final approval of Preliminary Plans (if (iii) is necessary) Submission of Final Plans Tenant 70 days after approval to Landlord of Preliminary Plans Delivery of written notice Landlord 5 days after (v) approving or disapproving Final Plans Submission, if necessary, of Tenant 10 days after (vi) redesign of Final Plans Delivery of written notice of Landlord 3 days after (vii) final approval of Final Plans (if (vii) is necessary) Submission of Work Cost estimate Landlord 20 days after approval to Tenant of Final Plans Delivery of written notice of Tenant 5 days after (ix) final approval of Work Cost Statement
Delays. 7.1 If Landlord shall be actually delayed in Substantial Completion of the Improvement the following ("TENANT DELAYS"): EXHIBIT "B" - Page 3 40 (i) Tenant's failure to complete any action item which is the responsibility of Tenant on or before the due date specified in Paragraph 6 above or any subsequently revised schedule as may be approved by Landlord and Tenant, or (ii) Tenant's changes to the Final Plans after Tenant's approval thereof or the date required for Tenant's approval under Paragraph 6 above, whichever is earlier, or (iii) Any delay caused by Tenant's entry pursuant to Paragraph 5, or (iv) Any delay of Tenant in making payment of Tenant's Contribution, or (v) Any other delay caused by Tenant, then, notwithstanding anything to the contrary set forth in the Lease, and regardless of the actual date of Substantial Completion of the Improvements, the date of Substantial Completion thereof shall be deemed to be the date that Substantial Completion would have occurred if no Tenant Delays had occurred. Nothwithstanding the foregoing, no Tenant Delays shall be deemed to have occurred pursuant to Sections 7.1(ii), (iii), (iv), or (v) above (but not (i) above) until and unless Landlord has given written notice to Tenant specifying the action or inaction which Landlord contends constitutes a Tenant Delay. Except as provided herein to the contrary, if such action or inaction is not cured within one (1) business day after Tenant's receipt of such notice, then a Tenant Delay shall be deemed to have occurred commencing as of the date Tenant received such notice and continuing for the number of days the completion of the Improvements was in fact delayed as a result of such action or inaction. 7.2 In the event that the Substantial Completion of the Improvements has not occurred by the "OUTSIDE DATE," which shall be August 1, 1999, as such August 1, 1999 date may be extended by the number of days of Tenant Delays and by the number of days of "Force Majeure Delays" (as defined below), then as Tenant's sole remedy (except as provided in Section 2.5 of the Lease), upon the Commencement Date, Landlord shall pay to Tenant an amount equal to the product of Five Thousand Dollars ($5,000.00) multiplied by the number of days from the Outside Date (as so extended) until the Commencement Date. By way of example only, and not as a limitation upon the foregoing, if Landlord experiences ten (10) days of Tenant Delays and five (5) days of Force Majeure Delays and if Substantial Completion of the Improvements occurs on August 20, 1999, then the amount so payable by Landlord to Tenant shall be Twenty Thousand Dollars ($20,000.00) (i.e., the Outside Date shall be extended by a total of fifteen (15) days to August 16, 1999 which is four (4) days prior to the date of Substantial Completion of the Improvements; 4 x $5,000.00 = $20,000.00). For purposes of this Lease, "FORCE MAJEURE DELAYS" shall mean and refer to a period of delay or delays encountered by Landlord affecting the work of construction of the Improvements because of delays due to excess time in obtaining governmental permits or approvals beyond the time period normally required to obtain such permits or approvals for similar projects in San Diego, California; fire, earthquake or other acts of God; acts of the public enemy; riot; public unrest; governmental regulations of the sales of materials or supplies or the transportation thereof; strikes or boycotts; shortages of material or labor or any other cause beyond the reasonable control of Landlord. However, no Force Majeure Delay shall be deemed to have occurred unless and until Landlord has provided written notice to Tenant specifying the circumstance that Landlord contends constitutes a Force Majeure Delay. If such circumstance is not rectified within one (1) business day after Tenant's receipt of such notice, then a Force Majeure Delay, as set forth in such notice, shall be deemed to have occurred commencing as of the date such notice was received and continuing for the number of days that Substantial Completion of the Improvements was in fact delayed as a result of such circumstance. 8. Substantial Completion; Punch List. 8.1 "SUBSTANTIAL COMPLETION" of the Improvements shall be deemed to have occurred when the Premises has been completed pursuant to the Final Plans with the exception of any "PUNCH LIST ITEMS" as that term is defined in Section 8.2 below such that Tenant can conduct normal business operations from the Premises: all of the heating, ventilating, air-conditioning ("HVAC"), and plumbing, life safety, mechanical and/or electrical systems for each of the Buildings (collectively "BUILDING SYSTEMS") are operational to the extent necessary to service the Premises; a certificate of occupancy (or a reasonably substantial equivalent such as a sign off from a building inspector or a temporary certificate of occupancy) is issued for the Premises; and all required parking spaces and all exterior landscaping (including both hardscape and softscapes) have been substantially completed; Landlord has tendered possession of the Premises to Tenant and Tenant has continuous and commercially reasonable uninterrupted ingress and egress to the Buildings and access to the Premises is available to Tenant. The existence of Punch List Items referred to in Paragraph 8.2 below shall not impact the determination of Substantial Completion. 8.2 No earlier than ten (10) days prior to the estimated date of Substantial Completion of the Improvements, Tenant's Construction Representative, Landlord's Construction Representative and Architect shall jointly conduct a walk-through of the Improvements and shall jointly prepare a punch list ("PUNCH LIST") of items needing additional work ("PUNCH LIST ITEMS"), none of which shall materially interfere with Tenant's use and occupancy of the Premises for the Permitted Use and all of which shall be corrected within thirty (30) days after compilation of the Punch List (except that if any item may be reasonably expected to take more than thirty (30) days to correct, Landlord shall commence to correct such item within said thirty (30) day period and shall diligently proceed to correct such item thereafter); provided, however, the Punch List shall be limited to items which are required by the Final Plans and any other changes agreed to by the parties. In addition to the inspection provided for above, no later than fifteen (15) days following the Commencement Date, Tenant's Construction Representative and Landlord's Construction Representative shall re-inspect the Premises and shall prepare a new Punch List of items which were not discovered during the pre-Commencement Date inspection; provided, however, that any items damaged during Tenant's move in or occupancy shall not be included in such Punch List and shall be repaired or replaced by Tenant at Tenant's sole cost and expense. Finally, in addition to the inspections provided for above, approximately ten (10) months after the Commencement Date, EXHIBIT "B"-Page 4 41 Tenant's Construction Representative and Landlord's Construction Representative shall conduct a walk through of the Premises for purposes of identifying any issues covered by warranty, so that such issues may be identified prior to the expiration of said warranties. 9. Miscellaneous. 9.1 Neither Tenant nor the general contractor shall be charged directly or indirectly for the use of elevators, hoists, water, electricity, heating, ventilation and air-conditioning, security or parking. The general contractor and all subcontractors performing work on the Tenant Improvements shall be allowed to utilize the temporary power and portable restroom facilities of the contractor performing work on the Base Improvements free of charge until permanent power and restrooms are completed and available. Landlord shall not charge Tenant or the Allowance any fee of any kind to manage the design and construction of the Premises. 9.2 At Tenant's option, Landlord agrees to assign to Tenant or to otherwise use commercially reasonable efforts to enforce all warranties (including any statutory obligations of the contractor) received from all contractors and subcontractors involved in the construction of the Premises. 9.3 Prior to Substantial Completion of the Improvements, the general contractor shall thoroughly clean the Premises. In addition, promptly after completion, Landlord shall deliver to Tenant copies of "as-built" plans for the Buildings and Tenant's Site. EXHIBIT "B"-Page 5 42 SCHEDULE 1 DESCRIPTION OF BASE IMPROVEMENTS The following is a description of Base Improvements for the Premises. Any items not specifically identified are intended to be included with the Tenant Improvements. The Buildings shall be two (2) story painted concrete tilt-up shell style buildings with a combination of "punched" window openings and glass curtain wall to include the following items: 1) Completed men's and women's restrooms to include full height ceramic tile on all walls and complete tile on the entire floor with a floor drain that will coordinate with Tenant's finish plans. The restrooms shall contain high quality fixtures and mirrors, adequately sized, the countertops shall be of man-made "stone-like" material provided at Landlord's expense, or if Tenant desires an upgrade, Tenant may upgrade as a charge to the Allowance, in which case Tenant shall receive a credit for Landlord's standard material. 2) Completed telephone/electrical closets on each floor, properly vented and lighted. 3) Completed and painted stairwells to include any required lighting, excluding exit lighting within the Premises. 4) Completed packaged variable volume mechanical system on the roof of the Buildings, properly installed with all electrical and plumbing completed, noise and vibration attenuated at a ratio of approximately three (3) tons of capacity for every 1,000 rentable square feet in the Buildings which will enable the inside temperature to be consistent with the mechanical design as mutually approved by Landlord and Tenant. The roof shall be penetrated for supply and return duct shafts (properly insulated with sound boots or other methods where required to attenuate noise and vibration) and the main loop shall be installed in the shell. 5) The core and stairwell vestibules and the elevator lobbies shall be sheet-rocked throughout the Buildings. All sheet-rock shall be properly taped, mudded, sanded to a smooth finish, paint ready. The perimeter of the inside exterior walls shall have completed studs with insulation installed prior to Tenant Improvements at Landlord's expense. 6) All floors shall be delivered finished smooth (wall to wall) and shall be flat to a level of one-quarter (1/4) inch over ten (10) feet in any direction (noncumulative), free of cracks of greater than one-eighth (1/8) inch in width and with no height differential on either side of the crack, except for expansion or control joints which shall be installed and completed in conformance with industry standards. The floors shall be ready to accept floor covering, with only minor floor-floating required. The ground floor shall be sealed if necessary to prevent levels of moisture penetration greater than four (4) pounds after a seventy-two (72) hour calcium chloride test has been completed. 7) Fire and life safety system and fire sprinkler system shall be installed per City of San Diego (or other local jurisdiction) current codes. Final drops for fire sprinklers shall be deducted from the Allowance. The upper floors shall be an approved "fire-rated" enclosure or separation between floors upon shell completion. 8) An electrical system shall be properly installed in each Building using high quality components of between 1600 and 2000 amps, 480/277 volt, 3 phase, 4 wire service located in properly completed electrical rooms. Primary electrical service to the Buildings shall be installed and wired with pad mounted transformer in an acceptable location. Adequate power shall be transformed for house power (to include but not be limited to exterior lighting, landscaping controls, parking lot lighting, etc). 9) The loading capacity of all "upper" floors shall be a minimum live load of eighty (80) pounds per square foot and a minimum dead load of twenty (20) pounds per square foot. 10) A minimum of two (2), four (4) inch empty conduits shall be installed between all Buildings for voice and data communication connections. SCHEDULE 1 43 EXHIBIT "C" SAMPLE FORM OF NOTICE OF LEASE TERM DATES To:______________________ Date:__________________________ ______________________ Re: Lease dated___________, 19___ between________________, Landlord, and_____________________, Tenant, concerning premises located at_____________________("PREMISES"). Ladies and Gentlemen: In accordance with the above-referenced Lease, we wish to advise and/or confirm as follows: 1. That the Premises have been accepted by Tenant in accordance with the Lease. 2. That Tenant has accepted and is in possession of the Premises, and acknowledges that under the provisions of the Lease, the Term of the Lease expires on _____________ (subject to earlier termination as provided in the Lease), with two (2) options to renew for five (5) years each, and commenced upon _____________. 3. That in accordance with the Lease, rental payment has commenced. 4. If the Commencement Date of the Lease is other than the first day of the month, the first billing will contain a pro rata adjustment. Each billing thereafter, with the exception of the final billing, shall be for the full amount of the monthly installment as provided for in the Lease. 5. Monthly Rent is due and payable in advance on the first day of each and every month during the Term of the Lease. Your rent checks should be made payable to__________________at______________________. 6. The rentable square footage of the Premises is__________________________. AGREED AND ACCEPTED TENANT: LANDLORD: __________________________________ _________________________________________ By:_______________________________ By:______________________________________ By:_______________________________ SAMPLE ONLY [NOT FOR EXECUTION] EXHIBIT "C" 44 EXHIBIT "D" ENVIRONMENTAL QUESTIONNAIRE The purpose of this form is to obtain information regarding the use or proposed use of hazardous materials at the premises. Prospective tenants should answer the questions in light of their proposed operations at the premises. Existing tenants should answer the questions as they relate to ongoing operations at the premises and should update any information previously submitted. If additional space is needed to answer the questions, you may attach separate sheets of paper to this form. Your cooperation in this matter is appreciated. 1. GENERAL INFORMATION Name of Responding Company:__________________________________________________ Check the Applicable Status: Prospective Tenant______ Existing Tenant______ Mailing Address:_____________________________________________________________ Contact Person and Title:____________________________________________________ Telephone Number: (___)_______________________ Address of Leased Premises:__________________________________________________ Length of Lease Term:________________________________________________________ Describe the proposed operations to take place on the premises, including principal products manufactured or services to be conducted. Existing tenants should describe any proposed changes to ongoing operations. _____________________________________________________________________________ _____________________________________________________________________________ 2. STORAGE OF HAZARDOUS MATERIALS 2.1 Will any hazardous materials be used or stored on-site? Wastes Yes____ No_____ Chemical Products Yes____ No_____ 2.2 Attach a list of any hazardous materials to be used or stored, the quantities that will be on-site at any given time, and the location and method of storage (e.g., 55-gallon drums on concrete pad). 3. STORAGE TANKS AND SUMPS 3.1 Is any above or below ground storage of gasoline, diesel or other hazardous substances in tanks or sumps proposed or currently conducted at the premises? Yes____ No_____ If yes, describe the materials to be stored, and the type, size and construction of the sump or tank. Attach copies of any permits obtained for the storage of such substances. _________________________________________________________________________ _________________________________________________________________________ 3.2 Have any of the tanks or sumps been inspected or tested for leakage? Yes____ No_____ If so, attach the results. 3.3 Have any spills or leaks occurred from such tanks or sumps? Yes____ No_____ If so, describe. _________________________________________________________________________ _________________________________________________________________________ 3.4 Were any regulatory agencies notified of the spill or leak? Yes____ No_____ If so, attach copies of any spill reports filed, any clearance letters or other correspondence from regulatory agencies relating to the spill or leak. 3.5 Have any underground storage tanks or sumps been taken out of service or removed? Yes____ No_____ If yes, attach copies of any closure permits and clearance obtained from regulatory agencies relating to closure and removal of such tanks. EXHIBIT "D" 45 4. SPILLS 4.1 During the past year, have any spills occurred at the premises? Yes____ No_____ If yes, please describe the location of the spill. ______________________________________________________________________ ______________________________________________________________________ 4.2 Were any agencies notified in connection with such spills? Yes____ No_____ If yes, attach copies of any spill reports or other correspondence with regulatory agencies. 4.3 Were any clean-up actions undertaken in connection with the spills? Yes____ No_____ Attach copies of any clearance letters obtained from any regulatory agencies involved and the results of any final soil or groundwater sampling done upon completion of the clean-up work. 5. WASTE MANAGEMENT 5.1 Has your company been issued an EPA Hazardous Waste Generator I.D. Number? Yes____ No_____ 5.2 Has your company filed a biennial report as a hazardous waste generator? Yes____ No_____ If so, attach a copy of the most recent report filed. 5.3 Attach a list of the hazardous wastes, if any, generated or to be generated at the premises, its hazard class and the quantity generated on a monthly basis. 5.4 Describe the method(s) of disposal for each waste. Indicate where and how often disposal will take place. ____ On-site treatment or recovery ______________________________ ____ Discharged to sewer ______________________________ ____ Transported and disposed of off-site ______________________________ ____ Incinerator ______________________________ 5.5 Indicate the name of the person(s) responsible for maintaining copies of hazardous waste manifests completed for off-site shipments of hazardous waste. _________________________________________________________________________ 5.6 Is any treatment of processing of hazardous wastes currently conducted or proposed to be conducted at the premises: Yes____ No_____ If yes, please describe any existing or proposed treatment methods.______ _________________________________________________________________________ 5.7 Attach copies of any hazardous waste permits or licenses issued to your company with respect to its operations at the premises. 6. WASTEWATER TREATMENT/DISCHARGE 6.1 Do you discharge wastewater to: ____ storm drain? ____ sewer? ____ surface water? ____ no industrial discharge 6.2 Is your wastewater treated before discharge? Yes____ No_____ If yes, describe the type of treatment conducted. _________________________________________________________________________ _________________________________________________________________________ 6.3 Attach copies of any wastewater discharge permits issued to your company with respect to its operations at the premises. 7. AIR DISCHARGES 7.1 Do you have any filtration systems or stacks that discharge into the air? Yes____ No_____ EXHIBIT "D" - Page 2 46 7.2 Do you operate any of the following types of equipment or any other equipment requiring an air emissions permit? ____ Spray booth ____ Dip tank ____ Drying oven ____ Incinerator ____ Other (please describe)____________________________________________ ____ No equipment requiring air permits 7.3 Are air emissions from your operations monitored? Yes____ No_____ If so, indicate the frequency of monitoring and a description of the monitoring results. _________________________________________________________________________ 7.4 Attach copies of any air emissions permits pertaining to your operations at the premises. 8. HAZARDOUS MATERIALS DISCLOSURES 8.1 Does your company handle hazardous materials in a quantity equal to or exceeding an aggregate of 500 pounds, 55 gallons, or 200 cubic feet per month? Yes____ No_____ 8.2 Has your company prepared a hazardous materials management plan pursuant to any applicable requirements of a local fire department or governmental agency? Yes____ No_____ If so, attach a copy of the business plan. 8.3 Has your company adopted any voluntary environmental, health or safety program? Yes____ No_____ If so, attach a copy of the program. No formal program. We recycle paper, aluminum cans, and scrap aluminum. 9. ENFORCEMENT ACTIONS, COMPLAINTS 9.1 Has your company ever been subject to any agency enforcement actions, administrative orders, or consent decrees? Yes____ No_____ If so, describe the actions and any continuing compliance obligations imposed as a result of these actions. _________________________________________________________________________ 9.2 Has your company ever received requests for information, notice or demand letters, or any other inquiries regarding its operations? Yes____ No_____ 9.3 Have there ever been, or are there now pending, any lawsuits against the company regarding any environmental or health and safety concerns? Yes____ No_____ 9.4 Has an environmental audit ever been conducted at your company's current facility? Yes____ No_____ If so, identify who conducted the audit and when it was conducted. _________________________________________________________________________ The undersigned represents to Landlord that the foregoing is accurate and complete in all material respects. DATAWORKS CORPORATION, a California corporation By:_________________________ Name:_______________________ Title:______________________ Date:_______________________ EXHIBIT "D" - Page 3 47 EXHIBIT "E" SAMPLE FORM OF TENANT ESTOPPEL CERTIFICATE The undersigned ("TENANT") hereby certifies to_______________________("LANDLORD"), and__________________, as follows: 1. Attached hereto is a true, correct and complete copy of that certain Lease dated_____ 19__ between Landlord and Tenant (the "LEASE"), which demises Premises which are located at_______________________. The Lease is now in full force and effect and has not been amended, modified or supplemented, except as set forth in Section 6 below. 2. The term of the Lease commenced on_____________, 19_ (Office Building),______________, 19__ (Manufacturing Building, and____________________, 19_ (Parking Lot). 3. The term of the Lease is currently scheduled to expire on____________, 19__. 4. Tenant has no option to renew or extend the Term of the Lease except:________ ______________________________________. 5. Tenant has no preferential right to purchase the Premises. 6. The Lease has: (Initial One). ( ) not been amended, modified, supplemented, extended, renewed or assigned. ( ) been amended, modified, supplemented, extended, renewed or assigned by the following described agreements, copies of which are attached hereto:____________ _______________________________________. 7. Tenant has accepted and is now in possession of the Premises and has not sublet, assigned or encumbered the Lease, the Premises or any portion thereof except as follows:_____________________________________________________________. 8. The current Monthly Rent is $____________. 9. The amount of security deposit (if any) is $__________________________. No other security deposits have been made. 10. All rental payments payable by Tenant have been paid in full as of the date hereof. No rent under the Lease has been paid for more than thirty (30) days in advance of its due date. 11. All work required to be performed by Landlord under the Lease has been completed and has been accepted by Tenant, and all tenant improvement allowances have been paid in full. 12. To the best of Tenant's knowledge, as of the date hereof, there are no defaults on the part of Landlord or Tenant under the Lease. 13. Tenant has no defense as to its obligations under the Lease and claims no set-off or counterclaim against Landlord, except as follows:____________________ _______________________________________. 14. Tenant has no right to any concession (rental or otherwise) or similar compensation in connection with renting the space it occupies, except as expressly provided in the Lease. 15. All insurance required of Tenant under the Lease has been provided by Tenant and all premiums have been paid. 16. There has not been flied by or against Tenant a petition in bankruptcy, voluntary or otherwise, any assignment for the benefit of creditors, any petition seeking reorganization or arrangement under the bankruptcy laws of the United States or any state thereof, or any other action brought pursuant to such bankruptcy laws with respect to Tenant. 17. Tenant pays rent due Landlord under the Lease to Landlord and does not have any knowledge of any other person who has any right to such rents by collateral assignment or otherwise. The foregoing certification is made with the knowledge that_______________________is about to [FUND A LOAN TO LANDLORD OR PURCHASE THE PREMISES FROM LANDLORD], and that______________________ is relying upon the representations herein made in (FUNDING SUCH LOAN OR PURCHASING THE PREMISES]. Dated:__________, 19__. "TENANT" __________________________________ By:_______________________________ By:_______________________________ SAMPLE ONLY (NOT FOR EXECUTION) EXHIBIT "E" 48 EXHIBIT "F" RULES AND REGULATIONS 1 Except as provided in the Lease, no sign, placard, picture advertisement, name or notice shall be installed or displayed on any part of the outside or inside of the Building without the prior written consent of Landlord. Landlord shall have the right to remove, at Tenant's expense and without notice, any sign installed or displayed in violation of this rule. 2. Except as explicitly permitted BY the terms of the Lease, no awning or other projections shall be permitted on any part of the Premises. Tenant shall not place anything against or near glass partitions or doors or windows which may appear unsightly from outside the Premises. 3. If Tenant requires burglar alarm or similar services, it shall comply with the provisions of the Lease with respect to its installation. 4. Tenant shall not place a load upon any floor of the Premises which exceeds the load per square foot which such floor was designed to carry. Landlord shall have the right to prescribe the position of all heavy equipment, materials, furniture or other property brought into the Building. Heavy objects, shall stand on such platforms as necessary to properly distribute the weight. 5. Tenant shall not use or keep in the Premises any kerosene, gasoline or inflammable or combustible fluid or material other than those limited quantities necessary for the operation or maintenance of office equipment. Tenant shall not use or permit to be used in the Premises any foul or noxious gas or substance, or permit or allow the Premises, the Building or Project, to be occupied or used in a manner offensive or objectionable to Landlord by reason of noise, behavior, odors or vibrations, nor shall Tenant bring into or keep in or about the Premises any birds or animals (other than those assisting disabled persons). 6. Tenant shall use its reasonable efforts to not waste electricity, water or air-conditioning and agrees to comply with any governmental energy-saving rules, laws or regulations of which Tenant has actual notice. 7. Tenant shall not sell, or permit the sale at retail, of newspapers, magazines, periodicals, theater tickets or any other goods or merchandise to the general public in or on the Premises. Tenant shall not make any room-to-room solicitation of business from other tenants in the Project. Tenant shall not use the Premises for any business or activity other than that specifically provided for in Tenant's Lease. 8. Except as expressly provided in the Lease, Tenant shall not install any radio or television antenna, loudspeaker or other device on the roof or exterior walls of the Building. 9. Canvassing, soliciting and distribution of handbills or any other written material, and peddling in the Project are prohibited, and each tenant shall cooperate to prevent same. 10. Landlord reserves the right to exclude or expel from the Project any person who, in Landlord's judgment, is intoxicated or under the influence of liquor or drugs or who is in violation of any the Rules and Regulations. 11. Tenant shall store all its trash and garbage within its Premises. Tenant shall not place in any trash box or receptacle any material which cannot be disposed of in the ordinary and customary manner of trash and garbage disposal. All garbage and refuse disposal shall be made in accordance with directions issued from time to time by Landlord. 12. The Premises shall not be used for the storage of merchandise held for sale to the general public, or for lodging or manufacturing of any kind, nor shall the Premises be used for any improper, immoral or objectionable purposes. 13. Tenant shall comply with all safety, fire protection and evacuation procedures and regulations established by Landlord or any governmental agency. 14. 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. 15. Landlord may waive any one or more of these Rules and Regulations for the benefit of Tenant or any other tenant, but no such waiver by Landlord shall be construed as a waiver of such Rules and Regulations in favor of Tenant or any other tenant, nor prevent Landlord from thereafter enforcing any such Rules and Regulations against any or all of the tenants of the Project. 16. These Rules and Regulations are in addition to, and shall not be construed to in any way modify or amend, in whole or in part, the terms, covenants, agreements and conditions of the Lease. 17. Landlord reserves the right to make such other non-discriminatory 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 Project 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 so adopted. EXHIBIT "F 49 18. Tenant shall be responsible for the observance of all the foregoing rules by Tenant's employees, agents, clients, customers, invitees and guests. 50 EXHIBIT "G" FORM OF MEMORANDUM RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Procopio, Cory, Hargreaves & Savitch LLP 530 B Street, Suite 2100 San Diego, CA 92101-4469 Attention: Eric B. Shwisberg, Esq. ================================================================================ (Space Above For Recorder's Use) MEMORANDUM OF LEASE THIS MEMORANDUM OF LEASE ("Memorandum') is dated the 14th day of August, 1998 by and between ADI RESEARCH PARTNERS, L.P., a California limited partnership ("Landlord"), and DATAWORKS CORPORATION, a California corporation ("Tenant'). RECITALS: A. Landlord and Tenant entered into that certain Single-Tenant Lease (Triple-Net) dated as of August 14, 1998 (the "Lease"), with respect to those certain premises to be constructed by Landlord to consist of a two (2) story building containing approximately one hundred ten thousand (110,000) rentable square feet and a two (2) story building containing approximately sixty thousand (60,000) rentable square feet (collectively the "Premises") to be located on a portion of the real property described in Exhibit A attached hereto and made a part hereof (the "Property"), together with the right to use the "Common Areas" located on the Property, as that term is defined in Section 4.1 of the Lease. B. Landlord and Tenant wish to record a Memorandum of the Lease confirming the existence of the Lease and certain matters pertaining thereto. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: 1. Lease. In consideration of the covenants and agreements contained in the Lease, Landlord does hereby lease to Tenant the Premises more particularly described in the Lease. As of the date hereof, the Lease is currently in full force and effect and has not been modified or amended in any respect whatsoever. 2. Term. The term of the Lease shall expire, unless extended pursuant to the options available to Tenant in accordance with the terms of the Lease, ten (10) years after the "Commencement Date," as that term is defined in Section 1.5 of the Summary of Basic Lease Information contained in the Lease. 3. Options. Tenant has two (2) separate consecutive options to extend the term of the Lease for five (5) years each on the terms and conditions set forth in Section 2.3 of the Lease. 4. Option to Expand. Pursuant to Section 33 of the Lease, Tenant has an option to expand the Premises to include a third building to be constructed by Landlord ("Building 3") containing approximately fifty thousand (50,000) rentable square feet. Building 3 is to be constructed on a portion of the Property located immediately adjacent to the Premises ("Building 3 Site"). 5. Right of First Refusal to Lease Additional Space. Pursuant to Section 33.2 of the Lease, Tenant has a continuing Right of First Refusal to lease all or any portion of any Building 3. 6. Building 3 Site Restrictions. Pursuant to Section 34 of the Lease, Landlord has agreed that Landlord shall develop a building on the Building 3 Site that is substantially of the same design as the buildings that constitute the initial Premises, including, without limitation, substantially the same amount of parking and substantially the same landscaping. In no event shall any building constructed on the Building 3 Site be greater than three (3) floors unless Tenant consents, which consent may be withheld by Tenant at its sole and absolute discretion. 7. Lease Incorporated. The purpose of this Memorandum is solely to provide notice of the existence of the Lease. All of the terms, conditions and covenants of the Lease are incorporated herein by this reference and are not amended, modified or varied in any way by this Memorandum. The terms of the Lease shall govern in the event of any conflict with this Memorandum. EXHIBIT "G" 51 8. Termination of Lease. Upon the expiration or sooner termination of the Lease, this Memorandum shall terminate and be of no further force or effect and Tenant agrees to execute and deliver for recordation, a quitclaim deed in favor of Landlord confirming that Tenant quitclaims all right, title and interest in and to the Premises under the Lease. 9. Counterparts. This Memorandum may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Memorandum of Lease as of the date first above written. LANDLORD: TENANT: ADI RESEARCH PARTNERS, L.P., DATAWORKS CORPORATION, a California limited partnership a California corporation By: ALLEN DEVELOPMENT, INC., By:______________________________________ a California corporation, Name:____________________________________ general partner Title:___________________________________ By:_________________________ Name:_______________________ By:______________________________________ Title:______________________ Name:____________________________________ Title:___________________________________ By:_________________________ Name:_______________________ Title:______________________ 52 EXHIBIT A TO MEMORANDUM OF LEASE LEGAL DESCRIPTION OF THE PROPERTY THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: LOTS 6, 7, 8 AND 9 OF CORPORATE RESEARCH PARK II, IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 13604, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, JULY 27,1998. EXHIBIT A TO MEMORANDUM OF LEASE EX-21.1 3 SUBSIDIARIES OF THE COMPANY 1 EXHIBIT 21.1 SUBSIDIARIES OF THE COMPANY
Jurisdiction of Name Incorporation - -------------------------------------------- ---------------------- Cypher Business Systems, Inc. United Kingdom Platinum Software (Aust.) Pty., Ltd. Australia Platinum Software BVI, Ltd. British Virgin Islands Platinum Software Canada, Ltd. Canada Slatershelfco 173 Limited United Kingdom Platinum Software Foreign Sales Corporation, Inc. US Virgin Islands Platinum Software (Holdings) Limited Ireland Platinum Software (Ireland) Limited Ireland Platinum Software (North Asia) Limited Hong Kong Platinum Software (NZ) Limited New Zealand Platinum Software (UK) Limited United Kingdom Platinum Software Asia Pte Singapore DataWorks Corporation Delaware DataWorks International Export Corporation Barbados DataWorks Nederland B.V. Netherlands DataWorks Nordic A.B. Sweden DataWorks France S.A. France DataWorks (Europe) Ltd. United Kingdom
EX-23.1 4 CONSENT OF ERNST & YOUNG 1 EXHIBIT 23.1 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statements (Form S-8, No. 33-54604) pertaining to the 1990 Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Option Purchase Plan, (Form S-8, No. 33-70518) pertaining to the 1993 Nonqualified Stock Option Plan and Key Employee Warrants, (Form S-8, No. 33-71876) pertaining to the 1993 Key Employee Warrants, (Form S-8, No. 33-92270) pertaining to the 1994 Incentive Stock Option, Nonqualified Stock Option and Restricted Stock Purchase Plan, (Form S-8, No. 333-06419) pertaining to the 1996 Nonqualified Stock Option Plan, (Form S-8, No. 333-06415) pertaining to Key Employee Restricted Stock Purchase Plan, (Form S-8, No. 333-28259) pertaining to the Key Employee Restricted Stock Purchase Plan, (Form S-8, No 333-46393) pertaining to Key Employee Options and FocusSoft Stock Option Plan, (Form S-8, No. 333-41321), pertaining to the 1997 Nonqualified Stock Option Plan and Platinum Software Corporation Clientele Incentive Plan, (Form S-3, No. 333-38105) pertaining to the registration of 450,935 shares, (Form S-3, 333-46395) pertaining to the registration of 2,474,794 shares, (Form S-4, No. 333-67577) pertaining to the registration of 16,950,379 shares, (Form S-8, No. 333-67841) pertaining to the 1998 Nonqualified Stock Option Plan, (Form S-8, No. 333-70855) pertaining to DataWorks 1995 Equity Incentive Plan, DataWorks 1995 Non-Employee Directors Stock Option Plan, Interactive 1997 Nonstatutory Stock Option Plan, Interactive 1995 Stock Option Plan, and Nonstatutory Stock Option Agreements, Nonqualified Stock Option Agreement of our reports dated February 2, 1999, with respect to the consolidated financial statements and schedule of Platinum Software Corporation, included in the Transition Report (Form 10-K) for the year ended December 31, 1998. Ernst & Young LLP Orange County, California March 24, 1999 EX-27.1 5 FINANCIAL DATA SCHEDULE
5 1,000 6-MOS DEC-31-1998 JUL-01-1998 DEC-31-1998 22,175 30,511 96,584 11,795 971 152,272 36,337 22,949 212,277 93,166 1,116 0 7,501 40 110,454 212,277 33,047 63,716 4,808 20,539 45,053 0 0 (1,876) 180 (2,056) 0 0 0 (2,056) (0.07) (0.07)
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