UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM 10-Q

 


 

(Mark One)

x

 

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

 

For the quarterly period ended March 31, 2008

 

or

 

o

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from                  to                

 

Commission File Number: 000-51595

 


 

Website Pros, Inc.

(Exact name of registrant as specified in its charter)

 


 

Delaware

 

94-3327894

(State or other jurisdiction of
incorporation or organization)

 

(I.R.S. Employer
Identification No.)

 

 

 

12735 Gran Bay Parkway West, Building 200, Jacksonville, FL

 

32258

(Address of principal executive offices)

 

(Zip Code)

 

(904) 680-6600

(Registrant’s telephone number, including area code)

 

 

(Former name, former address and former fiscal year, if changed since last report)

 

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.     x   Yes     o   No

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer o

 

Accelerated filer x

 

 

 

Non-accelerated filer o

 

Smaller reporting company o

(Do not check if a smaller reporting company)

 

 

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).     o   Yes     x   No

 

Common Stock, par value $0.001 per share, outstanding as of April 30, 2008: 27,630,485

 

 



 

Website Pros, Inc.

 

Quarterly Report on Form 10-Q

For the Quarterly Period ended March 31, 2008

Index

 

Part I

Financial Information

 

 

 

 

Item 1.

Financial Statements (unaudited)

 

 

 

 

 

Consolidated Statements of Operations

 

 

 

 

 

Consolidated Balance Sheets

 

 

 

 

 

Consolidated Statements of Cash Flows

 

 

 

 

 

Notes to Consolidated Financial Statements

 

 

 

 

Item 2.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

 

 

 

Item 3.

Quantitative and Qualitative Disclosures About Market Risk

 

 

 

 

Item 4.

Controls and Procedures

 

 

 

 

Part II

Other Information

 

 

 

 

Item 1.

Legal Proceedings

 

 

 

 

Item 1A.

Risk Factors

 

 

 

 

Item 2.

Unregistered Sales of Equity Securities and Use of Proceeds

 

 

 

 

Item 3.

Defaults Upon Senior Securities

 

 

 

 

Item 4.

Submission of Matters to a Vote of Security Holders

 

 

 

 

Item 5.

Other Information

 

 

 

 

Item 6.

Exhibits

 

 

 

 

Signatures

 

 

 

2



 

PART I—FINANCIAL INFORMATION

 

Item 1.                                     Financial Statements.

 

Website Pros, Inc.

 

Consolidated Statements of Operations

(in thousands except per share amounts)

(unaudited)

 

 

 

Three months ended

 

 

 

March 31,
2008

 

March 31,
2007

 

Revenue:

 

 

 

 

 

Subscription

 

$

29,731

 

$

15,138

 

License

 

449

 

1,028

 

Professional services

 

681

 

258

 

 

 

 

 

 

 

Total revenue

 

30,861

 

16,424

 

 

 

 

 

 

 

Cost of revenue (excluding depreciation and amortization shown separately below):

 

 

 

 

 

Subscription (a)

 

10,903

 

6,815

 

License

 

93

 

298

 

Professional services

 

375

 

301

 

 

 

 

 

 

 

Total cost of revenue

 

11,371

 

7,414

 

 

 

 

 

 

 

Gross profit

 

19,490

 

9,010

 

 

 

 

 

 

 

Operating expenses:

 

 

 

 

 

Sales and marketing (a)

 

7,463

 

3,947

 

Research and development (a)

 

2,638

 

778

 

General and administrative (a)

 

5,102

 

2,908

 

Depreciation and amortization

 

3,349

 

681

 

 

 

 

 

 

 

Total operating expenses

 

18,552

 

8,314

 

 

 

 

 

 

 

Income from operations

 

938

 

696

 

Interest, net

 

256

 

502

 

 

 

 

 

 

 

Income before income taxes

 

1,194

 

1,198

 

 

 

 

 

 

 

Income tax expense

 

(644

)

(566

)

 

 

 

 

 

 

Net income

 

$

550

 

$

632

 

 

 

 

 

 

 

Basic net income per common share

 

$

0.02

 

$

0.04

 

 

 

 

 

 

 

Diluted net income per common share

 

$

0.02

 

$

0.03

 

 

 

 

 

 

 

Basic weighted average common shares outstanding

 

27,549

 

17,339

 

 

 

 

 

 

 

Diluted weighted average common shares outstanding

 

30,619

 

19,672

 

 

 

 

 

 

 

(a) Stock-based compensation included above:

 

 

 

 

 

 

 

 

 

 

 

Subscription (cost of revenue)

 

$

80

 

$

42

 

Sales and marketing

 

210

 

109

 

Research and development

 

103

 

59

 

General and administrative

 

538

 

583

 

 

 

$

931

 

$

793

 

 

See accompanying notes to consolidated financial statements

 

3



 

Website Pros, Inc.

 

Consolidated Balance Sheets

(in thousands)

 

 

 

March 31,
2008
(unaudited)

 

December 31,
2007
(audited)

 

Assets

 

 

 

 

 

Current assets:

 

 

 

 

 

Cash and cash equivalents

 

$

33,554

 

$

29,746

 

Restricted investments

 

498

 

4,805

 

Accounts receivable, net of allowance of $715 and $791, respectively

 

6,560

 

6,204

 

Inventories, net of reserves of $67 and $67, respectively

 

23

 

26

 

Prepaid expenses

 

1,499

 

4,248

 

Prepaid marketing fees

 

775

 

793

 

Deferred taxes

 

1,137

 

1,723

 

Other current assets

 

737

 

759

 

 

 

 

 

 

 

Total current assets

 

44,783

 

48,304

 

Restricted investments

 

305

 

1,675

 

Property and equipment, net

 

6,878

 

7,153

 

Goodwill

 

108,448

 

107,933

 

Intangible assets, net

 

66,840

 

69,422

 

Other assets

 

520

 

526

 

 

 

 

 

 

 

Total assets

 

$

227,774

 

$

235,013

 

 

 

 

 

 

 

Liabilities and stockholders’ equity

 

 

 

 

 

Current liabilities:

 

 

 

 

 

Accounts payable

 

$

2,196

 

$

2,445

 

Accrued expenses

 

7,061

 

8,686

 

Accrued restructuring costs and other reserves

 

4,358

 

10,484

 

Deferred revenue

 

8,686

 

8,501

 

Accrued marketing fees

 

234

 

279

 

Notes payable, current

 

110

 

1,186

 

Obligations under capital leases, current

 

 

1

 

Other liabilities

 

131

 

197

 

 

 

 

 

 

 

Total current liabilities

 

22,776

 

31,779

 

Accrued rent expense

 

84

 

105

 

Deferred revenue

 

149

 

147

 

Notes payable

 

30

 

59

 

Accrued restructuring costs and other reserves

 

2,656

 

3,116

 

Deferred tax liabilities

 

3,351

 

3,351

 

Other long-term liabilities

 

85

 

25

 

 

 

 

 

 

 

Total liabilities

 

29,131

 

38,582

 

 

 

 

 

 

 

Stockholders’ equity:

 

 

 

 

 

Common stock, $0.001 par value; 150,000,000 shares authorized, 27,625,200 and 27,472,686 shares issued and outstanding at March 31, 2008 and December 31, 2007, respectively

 

28

 

27

 

Additional paid-in capital

 

255,869

 

254,208

 

Accumulated deficit

 

(57,254

)

(57,804

)

 

 

 

 

 

 

Total stockholders’ equity

 

198,643

 

196,431

 

 

 

 

 

 

 

Total liabilities and stockholders’ equity

 

$

227,774

 

$

235,013

 

 

See accompanying notes to consolidated financial statements

 

4



 

Website Pros, Inc.

 

Consolidated Statements of Cash Flows

(in thousands)

(unaudited)

 

 

 

Three months ended
March 31,

 

 

 

2008

 

2007

 

Cash flows from operating activities

 

 

 

 

 

Net income

 

$

550

 

$

632

 

 

 

 

 

 

 

Adjustments to reconcile net income to net cash (used in) provided by operating activities:

 

 

 

 

 

Depreciation and amortization

 

3,349

 

681

 

Loss on disposal of assets

 

3

 

 

Stock-based compensation expense

 

931

 

793

 

Deferred income tax

 

586

 

539

 

Changes in operating assets and liabilities:

 

 

 

 

 

Accounts receivable

 

(360

)

226

 

Inventories

 

3

 

35

 

Prepaid expenses and other assets

 

2,818

 

37

 

Accounts payable, accrued expenses and other liabilities

 

(9,084

)

(1,071

)

Deferred revenue

 

185

 

313

 

 

 

 

 

 

 

Net cash (used in) provided by operating activities

 

(1,019

)

2,185

 

 

 

 

 

 

 

Cash flows from investing activities

 

 

 

 

 

Business acquisitions

 

(8

)

(2,374

)

Proceeds from sale of investments

 

5,500

 

 

Purchase of investments

 

(996

)

 

Change in restricted investments

 

1,228

 

 

Purchase of property and equipment

 

(522

)

(415

)

Investment in intangible assets

 

(1

)

(100

)

 

 

 

 

 

 

Net cash provided by (used in) investing activities

 

5,201

 

(2,889

)

 

 

 

 

 

 

Cash flows from financing activities

 

 

 

 

 

Stock issuance costs

 

(5

)

 

Payments of debt obligations

 

(1,106

)

(31

)

Proceeds from exercise of stock options

 

737

 

39

 

 

 

 

 

 

 

Net cash (used in) provided by financing activities

 

(374

)

8

 

 

 

 

 

 

 

Net increase (decrease) in cash and cash equivalents

 

3,808

 

(696

)

Cash and cash equivalents, beginning of period

 

29,746

 

42,155

 

 

 

 

 

 

 

Cash and cash equivalents, end of period

 

$

33,554

 

$

41,459

 

 

 

 

 

 

 

Supplemental cash flow information

 

 

 

 

 

Interest paid

 

$

21

 

$

5

 

 

 

 

 

 

 

Income taxes paid

 

$

73

 

$

37

 

 

See accompanying notes to consolidated financial statements

 

5



 

Website Pros, Inc.

Notes to Consolidated Financial Statements

(unaudited)

 

1. The Company and Summary of Significant Accounting Policies

 

Description of Company

 

Website Pros, Inc. (the Company) is a provider of Do-It-For-Me and Do-It-Yourself Website building tools, Internet marketing, lead generation, and technology solutions that enable small and medium-sized businesses to build and maintain an effective Internet presence. The Company offers a full range of web services, including Website design and publishing, Internet marketing and advertising, search engine optimization, e-mail, lead generation, home contractor specific leads, and shopping cart solutions meeting the needs of a business anywhere along its lifecycle.

 

On September 30, 2007, the Company acquired Web.com, Inc. (“Web.com”). Web.com is a leading provider of Do-It-Yourself Websites and Internet marketing services for the small and medium-sized business market.  Web.com offers a wide selection of online services, including Web hosting, e-mail, e-commerce, Website development, online marketing and optimization tools.  Web.com has a large customer base that provides significant upsell and cross-sell opportunities for Do-It-For-Me Website services, online marketing and lead generation services. The Company believes that the Web.com acquisition united two market leaders to create a single company with solutions that can better meet the diverse Web services needs of small and medium-sized businesses. In addition, the Company expects it will be able to leverage cost savings and take advantage of cross-selling opportunities across our significantly expanded customer base.

 

On February 19, 2008, the Company announced its intention to change its name to Web.com. The name change could take place as early as the first half of 2008.

 

The Company has reviewed the criteria of Statement of Financial Accounting Standards (SFAS) No. 131, Disclosures About Segments of an Enterprise and Related Information , and has determined that the Company is comprised of only one segment, Web services and products.

 

Certain prior year amounts have been reclassified to conform to current year presentation.

 

Basis of Presentation

 

The accompanying consolidated balance sheet as of March 31, 2008, the consolidated statements of operations for the three months ended March 31, 2008 and 2007, the consolidated statements of cash flows for the three months ended March 31, 2008 and 2007, and the related notes to the consolidated financial statements for the three months ended March 31, 2008 and 2007 are unaudited. These unaudited consolidated financial statements have been prepared on the same basis as the audited consolidated financial statements for the year ended December 31, 2007, except that certain information and disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the U.S. have been condensed or excluded as permitted.

 

In the opinion of management, the unaudited consolidated financial statements include all adjustments of a normal recurring nature necessary for the fair presentation of the Company’s financial position as of March 31, 2008, and the Company’s results of operations for the three months ended March 31, 2008 and 2007 and cash flows for the three months ended March 31, 2008 and 2007. The results of operations for the three months ended March 31, 2008 are not necessarily indicative of the results to be expected for the year ending December 31, 2008.

 

These unaudited consolidated financial statements should be read in conjunction with the consolidated financial statements and related notes contained in the Company’s Annual Report on Form 10-K for the year ended December 31, 2007 filed with the Securities and Exchange Commission, or SEC, on March 11, 2008.

 

Use of Estimates

 

The preparation of the consolidated financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates.

 

Goodwill and Other Intangible Assets

 

In accordance with SFAS No. 142, Goodwill and Other Intangible Assets , goodwill determined to have an indefinite useful life is tested for impairment, at least annually or more frequently if indicators of impairment arise. If impairment of the

 

6



 

carrying value based on the calculated fair value exists, the Company measures the impairment through the use of discounted cash flows. The Company completed its annual goodwill impairment test during the fourth quarter of 2007 and determined that the carrying amount of goodwill was not impaired. In addition, there were no indicators of impairment during the quarter ended March 31, 2008.

 

Intangible assets acquired as part of a business combination are accounted for in accordance with SFAS No. 141, Business Combinations , and are recognized apart from goodwill if the intangible arises from contractual or other legal rights or the asset is capable of being separated from the acquired enterprise. Indefinite-lived intangible assets are tested for impairment annually and on an interim basis if events or changes in circumstances between annual tests indicate that the asset might be impaired in accordance with SFAS No. 142.  The Company completed its annual impairment test during the fourth quarter of 2007 and determined that the carrying value of its indefinite-lived intangible assets was not impaired. In addition, there were no indicators of impairment during the quarter ended March 31, 2008.

 

Definite-lived intangible assets are amortized over their useful lives, which range between fourteen months and ten years.

 

Earnings per Share

 

The Company computes earnings per share in accordance with SFAS No. 128, Earnings Per Share . Basic net income attributable per common share includes no dilution and is computed by dividing net income by the weighted average number of common shares outstanding for the period. Diluted net income attributable per common share includes the potential dilution that could occur if securities or other contracts to issue common stock were exercised or converted into common stock.

 

7



 

Recent Accounting Pronouncements

 

In December 2007, the FASB issued SFAS No. 141 (revised 2007), Business Combinations (SFAS 141(r)).  SFAS 141(r) retains the fundamental requirements of SFAS No. 141, but revise certain applications of the Standard to improve the financial reporting of business combinations.  Some of these revisions include, to recognize assets acquired, liabilities assumed with contractual obligations and any noncontrolling interests at fair market value as of the date of purchase, to recognize other contingencies using the “more likely than not” definition from FASB Concepts Statement No. 5, Elements of Financial Statements, to recognize consideration and contingent consideration at fair market value as of the date of purchase, and to expense acquisition-related costs as incurred. SFAS 141(r) is effective as of the beginning of an entity’s first fiscal year that begins after December 15, 2008. Early adoption of this Standard is not permitted. The Company has not completed its assessment of the impact SFAS 141(r) will have on its financial position, results of operations, cash flows or disclosure.

 

2. New Accounting Pronouncements

 

In September 2006, the Financial Accounting Standards Board (FASB) issued Statement of Financial Accounting Standard No. 157 (SFAS 157), Fair Value Measurements , which establishes a common definition for fair value to be applied in general accepted accounting principles and expands disclosure about fair value measurements. SFAS 157 applies under other accounting pronouncements that require or permit fair value measurements, so the issuance of SFAS No. 157 does not require any new fair value measurements.  SFAS No. 157 is effective for fiscal years beginning after November 15, 2007, and interim periods within the implementation year.  The Company’s adoption of this statement in the quarter ended March 31, 2008 did not have an impact on its financial position, results of operations, cash flows or disclosures.

 

In February 2007, the FASB issued SFAS No. 159, The Fair Value Option for Financial Assets and Financial Liabilities (FAS 159). SFAS 159 allows entities to voluntarily choose, at specified election dates, to measure many financial assets and financial liabilities, as well as, certain nonfinancial instruments that are similar to financial instruments, at fair value (the “fair value option”). The election is made on an instrument-by-instrument basis and is irrevocable. If the fair value option is selected for an instrument, SFAS 159 specifies that all subsequent changes in fair value for that instrument shall be reported in earnings. SFAS No. 157 is effective for fiscal years beginning after November 15, 2007, and interim periods within the implementation year. The Company has elected not to measure eligible items at fair value and, as such, the adoption of this statement in the quarter ended March 31, 2008 did not have an impact on its financial position, results of operations, cash flows or disclosures.

 

3. Business Combinations

 

Acquisition of Web.com

 

On September 30, 2007, the Company completed the transactions contemplated by the Agreement and Plan of Merger and Reorganization executed on June 26, 2007 (the “Merger Agreement”) by and among the Company, Augusta Acquisition Sub, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“Merger Sub”) and Web.com, Inc., a Minnesota corporation (“Web.com”) pursuant to which Web.com merged with and into Merger Sub (the “Merger”). The Merger was approved by the stockholders of the Company and the shareholders of Web.com on September 25, 2007. The Company believes that the Web.com merger united two market leaders to create a single company with solutions that can better meet the diverse Web services needs of small and medium sized businesses. In addition, the Company expects it will be able to leverage cost savings and take advantage of cross-selling opportunities across its significantly expanded customer base.

 

Web.com is a leader in providing simple, yet powerful solutions for Websites and web services. In addition, Web.com offers do-it-yourself and professional Website design, web hosting, e-commerce, web marketing and e-mail.

 

In consideration for the Merger, shareholders of Web.com received either (a) to the extent the shareholder made an effective cash election with respect to the shares of Web.com common stock held by such shareholder, approximately $2.36749 per share of Web.com common stock and approximately 0.43799 shares of common stock of the Company for each share of common stock of Web.com held by such shareholder and (b) to the extent the shareholder made an effective stock election, or made no election, with respect to the shares of Web.com common stock held by such shareholder, 0.6875 shares of common stock of the Company for each share of Web.com common stock held by such shareholder. In the aggregate, the Company issued approximately 9.2 million shares of the Company’s stock and paid $25 million in cash to Web.com shareholders. In addition, under the terms of the Merger Agreement, each outstanding vested option to purchase shares of Web.com common stock converted into and became a vested option to purchase the Company’s common stock, and the Company assumed such option in accordance with the terms of the stock option plan or agreement under which that option

 

8



 

was issued. The number of shares of Website Pros common stock an option holder is entitled to purchase and the price of those options was subject to an option exchange ratio calculated in accordance with the Merger Agreement. In the aggregate, Web.com option holders are now entitled to purchase an aggregate of approximately 2.4 million shares of the Company’s common stock at a weighted average exercise price of $5.61 per share.

 

The Merger was accounted for using the purchase method of accounting under U.S. generally accepted accounting principles. Under the purchase method of accounting, the Company is considered the acquirer of Web.com for accounting purposes and the total purchase price was allocated to the assets acquired and liabilities assumed from Web.com based on their fair values as of September 30, 2007. Under the purchase method of accounting, the total consideration was approximately $132.1 million, which includes the issuance of the Company’s common stock valued at approximately $88.6 million, the assumption of stock options with a fair value of $16.5 million and cash payments of $25.0 million. The Company’s transaction costs related to this merger, including legal fees, investment-banking fees, due diligence expenses, filing and printing fees, was approximately $2 million. The estimated value of the common stock was calculated using the average the Company’s common stock price three days before and after the merger announcement. The average stock price used to calculate the purchase price was $9.68.

 

As of March 31, 2008, the purchase accounting for this acquisition is still subject to final adjustment primarily for completion of the valuation of certain acquired assets and an analysis of income tax attributes.

 

The following table summarizes the Company’s preliminary purchase price allocation based on the estimated fair values of the assets acquired and liabilities assumed on September 30, 2007 (in thousands):

 

Tangible current assets

 

$

19,648

 

Tangible non-current assets

 

9,278

 

Customer relationships

 

27,100

 

Developed technology

 

26,200

 

Non-compete

 

1,300

 

Trade names

 

8,500

 

Goodwill

 

73,719

 

Deferred tax assets

 

20,773

 

Current liabilities

 

(15,659

)

Accrued restructuring costs and other reserves

 

(10,892

)

Non-current liabilities

 

(591

)

Non-current restructuring costs and other reserves

 

(3,575

)

Deferred tax liabilities

 

(24,000

)

 

 

 

 

Net assets acquired

 

$

131,801

 

 

Included in tangible current assets and tangible non-current assets there is $304 thousand and $6.4 million of restricted cash, respectively.  The restricted cash includes $4.9 million relating to merchant processing, $1.5 million as collateral on a promissory note, and $304 thousand relating to miscellaneous transactions. The intangible assets include customer relationships, developed technology, non-compete agreements, and trade names, which are being amortized over a three to ten year period, except for the trade names, which have an indefinite life. The goodwill represents business benefits the Company anticipates realizing in future periods and is not expected to be deductible for tax purposes.

 

The financial information in the table below summarizes the combined results of operations of the Company and Web.com on a pro forma basis for the quarter ended March 31, 2007, as though the acquisition had occurred at the beginning of the period. This pro forma financial information is presented for informational purposes only and is not necessarily indicative of the results of operations that would have been achieved had the acquisition actually taken place at the beginning of the three month period set forth below.

 

 

 

Three months ended 
March 31, 2007

 

Revenue

 

$

29,456

 

Net income

 

356

 

Basic net income per common share

 

0.01

 

Diluted net income per common share

 

0.01

 

 

9



 

Acquisition of Substantially All of the Assets of and Assumption of Select Liabilities from Submitawebsite, Inc.

 

On March 31, 2007, the Company acquired substantially all of the assets of and assumed certain liabilities from Submitawebsite, Inc. (Submitawebsite), based in Scottsdale, Arizona, which is a leader in natural Search Engine Optimization (SEO), a technology which aligns a Website’s code and content with strategic keyword phrase targeting.   The Company believes that the Submitawebsite acquisition will allow the Company to leverage and deepen relationships with both companies’ customer bases. Under the terms of the asset purchase agreement, the Company paid cash consideration of approximately $2.1 million and $30 thousand of transaction costs, subject to certain adjustments based on the final balance sheet of Submitawebsite as of March 31, 2007.  In addition, if certain requirements are met, such as key employee retention and revenue performance, during the twelve-month periods following March 31, 2007 and 2008, the Company will pay Submitawebsite contingent consideration up to an additional $250 thousand per year, which will be recorded as goodwill upon satisfaction of terms. As of March 31, 2008, the Company recorded $250,000 as a liability, which is payable to the former owner of Submitawebsite for meeting the first year’s conditions referred to above. This liability was paid in April 2008.

 

The following table summarizes the Company’s preliminary purchase price allocation as of March 31, 2007 based on the estimated fair values of the assets acquired and liabilities assumed on March 31, 2007 (in thousands):

 

Tangible current assets

 

$

10

 

Tangible non-current assets

 

32

 

Customer relationships

 

93

 

Non-compete

 

12

 

Trade name

 

258

 

Goodwill

 

2,247

 

Current liabilities

 

(322

)

 

 

 

 

Net assets acquired

 

$

2,330

 

 

The intangible assets include customer relationship, non-compete agreements and trade name. The non-compete and customer relationship intangible assets are being amortized over a fourteen to twenty-four month period, while the trade names has an indefinite life. The goodwill represents business benefits the Company anticipates realizing in future periods and is expected to be deductible for tax purposes.

 

4. Restructuring Costs and Other Reserves

 

In connection with the acquisition of Web.com, the Company accrued, as part of its purchase price allocation, certain liabilities that represent the estimated costs of exiting Web.com facilities, relocating Web.com employees, the termination of Web.com employees and the estimated cost to settle Web.com legal matters that existed prior to the acquisition of approximately $11.6 million. As of March 31, 2008 the Company had a $4.6 million liability remaining for these restructuring costs. These plans were formulated at the time of the closing of the Web.com acquisition. These restructuring costs and other reserves are expected to be paid through July 2010.

 

In addition, as part of the liabilities assumed in the Web.com acquisition, the Company has assumed $2.9 million of restructuring obligations that were previously recorded by Web.com. These costs include the exit of unused office space in which Web.com has remaining lease obligations as of September 30, 2007. As of March 31, 2008, the Company had a $2.4 million liability remaining for these restructuring costs. These restructuring costs are expected to be paid through July 2010.

 

During the year ended December 31, 2007, the Company executed a plan to restructure operations, which included the termination of certain employees and the closing of certain facilities (the “2007 Plan”) in September 2007. In accordance with the 2007 Plan, the Company closed its facilities in Los Angeles, California and Seneca Falls, New York. The closure of these locations resulted in the termination of four employees. The Company recorded facility exit costs of $15 thousand, severance costs of $77 thousand for terminated employees, and $3 thousand in asset disposals. In addition, the Company restructured other operations by terminating two employees and recorded a restructuring expense of $148 thousand. As of

 

10



 

March 31, 2008, the Company had a $20 thousand liability remaining for these restructuring costs. These restructuring costs are expected to be paid during 2008.

 

The table below summarizes the activity of accrued restructuring costs and other reserves during the three months ended March 31, 2008 (in thousands):

 

 

 

Balance as of
December 31,
2007

 

Additions

 

Cash
Payments

 

Change in
Estimates

 

Balance as of
March 31,
2008

 

 

 

 

 

 

 

 

 

 

 

 

 

Restructuring costs

 

$

2,757

 

$

 

$

(370

)

$

(2

)

$

2,385

 

 

 

 

 

 

 

 

 

 

 

 

 

Merger related costs

 

10,843

 

 

(6,214

)

 

4,629

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance

 

$

13,600

 

$

 

$

(6,584

)

$

(2

)

$

7,014

 

 

5. Income Taxes

 

The Company calculates its income tax liability in accordance with FASB Interpretation No. 48 (FIN 48), Accounting for Uncertainty in Income Taxes—an Interpretation of FASB Statement No. 109 . The Company is subject to audit by the IRS and various states for all years since inception. The Company does not believe there will be any material changes in its unrecognized tax positions over the next 12 months. The Company’s policy is that it recognizes interest and penalties accrued on any unrecognized tax benefits as a component of income tax expense. As of the date of March 31, 2008, the Company did not have any accrued interest or penalties associated with any unrecognized tax benefits, nor was any interest expense recognized during the three months ended March 31, 2008. In addition, there were no changes to the unrecognized tax benefit during the three months ended March 31, 2008.

 

The Company recognized income tax expense of $644 thousand and $566 thousand in the three months ended March 31, 2008 and 2007, respectively, based upon its estimated annual effective rate. The Company’s effective rate exceeds the statutory rate primarily due to non-deductible expenses associated with incentive stock options.

 

6. Earnings per Share

 

Basic net income per common share is calculated using net income and the weighted-average number of shares outstanding during the reporting period. Diluted net income per common share includes the effect from the potential issuance of common stock, such as common stock issued pursuant to the exercise of stock options or warrants.

 

The following table sets forth the computation of basic and diluted net income per common share for the three months ended March 31, 2008 and 2007 (in thousands except per share amounts):

 

 

 

Three months ended
March 31,

 

 

 

2008

 

2007

 

Net income

 

$

550

 

$

632

 

 

 

 

 

 

 

Weighted average outstanding shares of common stock

 

27,549

 

17,339

 

Dilutive effect of stock options

 

2,730

 

1,864

 

Dilutive effect of warrants

 

201

 

192

 

Dilutive effect of escrow shares

 

139

 

277

 

 

 

 

 

 

 

Common stock and common stock equivalents

 

30,619

 

19,672

 

 

 

 

 

 

 

Net income per common share:

 

 

 

 

 

Basic

 

$

0.02

 

$

0.04

 

Diluted

 

$

0.02

 

$

0.03

 

 

11



 

For the three months ended March 31, 2008 and 2007, options to purchase approximately 2.3 million and 923 thousand shares, respectively, of common stock with exercise prices greater than the average fair value of the Company’s stock of $10.24 and $9.03, respectively, were not included in the calculation of the weighted average shares for diluted net income per common share because the effect would have been anti-dilutive.

 

7. Goodwill and Intangible Assets

 

The following table summarizes changes in the Company’s goodwill balances as required by SFAS No. 142 for the periods ended (in thousands):

 

 

 

March 31, 2008

 

December 31, 2007

 

Goodwill balance at beginning of period

 

$

107,933

 

$

31,587

 

Goodwill acquired during the period

 

515

 

76,346

 

Goodwill impaired during the year

 

 

 

 

 

 

 

 

 

Goodwill balance at end of period

 

$

108,448

 

$

107,933

 

 

In accordance with SFAS No. 142, the Company reviews goodwill balances for indicators of impairment on an annual basis and between annual tests if an event occurs or circumstances change that would more likely than not reduce the fair value of goodwill below its carrying amount. Upon completion of the annual assessments, the Company determined that goodwill was not impaired. In addition, there were no indicators of impairment during the quarter ended March 31, 2008.

 

The Company’s intangible assets are summarized as follows (in thousands):

 

 

 

March 31,
2008

 

December 31,
2007

 

Weighted-average
Amortization
period

 

Indefinite lived intangible assets:

 

 

 

 

 

 

 

Domain/Trade names

 

$

13,275

 

$

13,275

 

 

 

Definite lived intangible assets:

 

 

 

 

 

 

 

Non-compete agreements

 

3,239

 

3,239

 

36 months

 

Customer relationships

 

31,389

 

31,389

 

82 months

 

Developed technology

 

27,309

 

27,309

 

71 months

 

Other

 

90

 

89

 

 

 

Accumulated amortization

 

(8,462

)

(5,879

)

 

 

 

 

 

 

 

 

 

 

 

 

$

66,840

 

$

69,422

 

 

 

 

The weighted-average amortization period for the amortizable intangible assets is approximately 74 months. Total amortization expense was $2.6 million and $388 thousand for the three months ended March 31, 2008 and 2007, respectively.

 

Other indefinite-lived intangible assets are tested for impairment annually and on an interim basis if events or changes in circumstances between annual tests indicate that the asset might be impaired in accordance with SFAS No. 142. Upon completion of the annual assessments, the Company determined that its indefinite lived intangible assets were not impaired. In addition, there were no indicators of impairment during the quarter ended March 31, 2008.

 

As of March 31, 2008, the amortization expense for the next five years is as follows (in thousands):

 

2008

 

$

7,321

 

2009

 

9,574

 

2010

 

9,050

 

2011

 

8,530

 

2012

 

8,530

 

Thereafter

 

10,560

 

 

 

 

 

Total

 

$

53,565

 

 

12



 

8. Stock Based Compensation

Equity Incentive Plans

 

An Equity Incentive Plan (“1999 Plan”) was adopted by the Company’s Board of Directors and approved by its stockholders on April 5, 1999. The 1999 Plan was amended in June 1999, May 2000, May 2002 and November 2003 to increase the number of shares available for awards. The 1999 Plan as amended provides for the grant of incentive stock options, non-statutory stock options, and stock bonuses to the Company’s employees, directors and consultants. As of March 31, 2008, the Company has reserved 4,074,428 shares of common stock for issuance under this plan. Of the total reserved as of March 31, 2008, options to purchase a total of 2,411,854 shares of the Company’s common stock were held by participants under the plan, options to purchase 1,488,564 shares of common stock have been issued and exercised and options to purchase 174,010 shares of common stock were cancelled and became available under the 2005 Equity Incentive Plan (the “2005 Plan”) and are currently available for future issuance.

 

The Board of Directors administers the 1999 Plan and determines the terms of options granted, including the exercise price, the number of shares subject to individual option awards and the vesting period of options, within the limits set forth in the 1999 Plan itself. Options under the 1999 Plan have a maximum term of 10 years and vest as determined by the Board of Directors. Options granted under the 1999 Plan generally vest either over 30 or 48 months. All options granted during 2002 vest over 30 months, and in general all other options granted vest over 48 months. The exercise price of non-statutory stock options and incentive stock options granted shall not be less than 85% and 100%, respectively, of the fair market value of the stock subject to the option on the date of grant. No 10% stockholder is eligible for an incentive or non-statutory stock option unless the exercise price of the option is at least 110% of the fair market value of the stock at date of grant. The 1999 Plan terminated upon the Closing of the Company’s initial public offering in November 2005.

 

The Company’s Board of Directors adopted, and its stockholders approved, the 2005 Equity Incentive Plan that became effective November 2005. As of March 31, 2008, the Company had reserved 2,337,149 shares for equity incentives to be granted under the plan. The option exercise price cannot be less than the fair value of the Company’s stock on the date of grant. Options generally vest ratably over three or four years, are contingent upon continued employment, and generally expire ten years from the grant date. As of March 31, 2008, options to purchase a total of 1,928,565 shares were held by participants under the plan, 23,655 shares have been issued and exercised and options to purchase a total of 384,929 shares were available for future issuances.

 

The Company’s Board of Directors adopted, and its stockholders approved, the 2005 Non-Employee Directors’ Stock Option Plan (the “2005 Directors Plan”), which became effective November 2005. The 2005 Directors Plan calls for the automatic grant of nonstatutory stock options to purchase shares of common stock to nonemployee directors. The aggregate number of shares of common stock that was authorized pursuant to options and restricted stock granted under this plan is 911,250 shares. As of March 31, 2008, options to purchase a total of 322,500 shares of the Company’s common stock were held by participants under the plan, 33,750 shares of restricted stock were held by participants under the plan, no options have been exercised and 555,000 shares of common stock were available for future issuance. On May 8, 2007, the Board of Directors adopted, and its stockholders approved, an amendment to the 2005 Directors Plan to modify, among other things, the initial and annual grants to non-employee directors by providing for restricted stock grants and reducing the size of the option grants.

 

The Company’s Board of Directors adopted, and its stockholders approved, the 2005 Employee Stock Purchase Plan (the “ESPP”), which became effective November 2005. The ESPP authorizes the issuance of 603,285 shares of common stock pursuant to purchase rights granted to the Company’s employees or to employees of any of its affiliates. The ESPP is intended to qualify as an “employee stock purchase plan” within the meaning of Section 425 of the Internal Revenue Code. As of March 31, 2008, no shares have been issued under the ESPP.

 

In connection with the merger with Web.com, the company assumed five additional stock option plans, the Web.com 2006 Equity Incentive Plan (the “Web.com 2006 Plan”), the Web.com 2005 Equity Incentive Plan (the “Web.com 2005 Plan”), the Web.com 2002 Equity Incentive Plan (the “Web.com 2002 Plan”), the Web.com 2001 Equity Incentive Plan (the “Web.com 2001 Plan”) and the Web.com 1995 Stock Option Plan (the “Web.com 1995 Plan”), collectively referred to as the “Web.com Option Plans”. Options issued under the Web.com Option Plans have an option term of 10 years. Vesting periods range from 0 to 5 years.  Exercise prices of options under the Web.com Option Plans are 100% of the fair market value of the Web.com common stock on the date of grant.  As of March 31, 2008, the Company has reserved 2,424,558 million shares for issuance upon the exercise of outstanding options under the Web.com Option Plans.  All awards outstanding under the Web.com Option Plans continue in accordance with their terms, but no further awards will be granted under those plans.

 

On March 31, 2008, the Board of Directors approved the Company’s 2008 Equity Incentive Plan (the “2008 Plan”), subject to stockholder approval. The 2008 Plan as amended provides for the grant of incentive stock options, nonstatutory stock

 

13



 

options, restricted stock awards, restricted stock unit awards, stock appreciation rights, performance stock awards, performance cash awards, and other stock-based awards to the Company’s employees, directors and consultants. As of March 31, 2008, the Company has reserved 3,000,000 shares of common stock for issuance under this plan. No options have yet been granted under the 2008 Plan.

 

The Board of Directors, or a committee thereof, administers all of the equity incentive plans and determines the terms of options granted, including the exercise price, the number of shares subject to individual option awards and the vesting period of options, within the limits set forth in the stock option plans. Options have a maximum term of 10 years and vest as determined by the Board of Directors.

 

The fair value of each option award is estimated on the date of the grant using the Black Scholes option valuation model and the assumptions noted in the following table.  Expected volatility rates are based on the Company’s historical volatility, since the Initial Public Offering, on the date of the grant. The expected term of options granted represents the period of time that they are expected to be outstanding. The risk-free rate for periods within the contractual life of the option is based on the U.S. Treasury yield curve in effect at the time of the grant.

 

 

 

Three months ended March 31,

 

 

 

2008

 

2007

 

Risk-free interest rate

 

2.23-3.28%

 

4.41- 4.89%

 

Dividend yield

 

0%

 

0%

 

Expected life (in years)

 

5

 

5

 

Volatility

 

39%

 

57-60%

 

 

  Stock Option Activity

 

The following table summarizes option activity for the three months ended March 31, 2008 for all of the Company’s stock options:

 

 

 

Shares
Covered
by
Options

 

Exercise
Price per
Share

 

Weighted
Average
Exercise
Price

 

Weighted
Average
Remaining
Contractual
Term
(in years)

 

Aggregate
Intrinsic
Value
(in thousands)

 

Balance, December 31, 2007

 

6,873,462

 

$

0.50 to 193.02

 

$

6.36

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Granted

 

215,050

 

9.31

 

9.31

 

 

 

 

 

Exercised

 

(129,933

)

0.50 to 10.01

 

5.04

 

 

 

 

 

Forfeited

 

(59,627

)

8.70 to 14.05

 

10.13

 

 

 

 

 

Expired

 

(48,797

)

4.22 to 46.55

 

12.88

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Balance, March 31, 2008

 

6,850,155

 

0.50 to 193.02

 

6.40

 

6.87

 

$

27,047

 

 

 

 

 

 

 

 

 

 

 

 

 

Exercisable at March 31, 2008

 

5,057,269

 

0.50 to 193.02

 

5.25

 

6.19

 

26,168

 

 

Compensation costs related to the Company’s stock option plans were $857 thousand and $793 thousand for the three months ended March 31, 2008 and 2007. Compensation expense is generally recognized on a straight-line basis over the vesting period of grants. As of March 31, 2008, the Company had $7.8 million of unrecognized compensation costs related to share-based payments, which the Company expects to recognize through January 2012.

 

The total intrinsic value of options exercised during the three months ended March 31, 2008 and 2007 was $761 thousand and $262 thousand, respectively. The weighted average grant-date fair value of options granted during the three months ended March 31, 2008 and 2007 was $3.58, and $4.93, respectively.  The fair value of shares vested during the three months ended March 31, 2008 and 2007 was $833 thousand and $778 thousand, respectively.

 

14



 

The following activity occurred under the Company’s stock option plans during the three months ended March 31, 2008:

 

Unvested Shares

 

Shares

 

Weighted
Average
Grant–Date Fair Value

 

Unvested at December 31, 2007

 

1,834,418

 

$

4.52

 

Granted

 

215,050

 

3.58

 

Vested

 

(196,955

)

4.23

 

Forfeited

 

(59,627

)

5.16

 

 

 

 

 

 

 

Unvested at March 31, 2008

 

1,792,886

 

4.42

 

 

Price ranges of outstanding and exercisable options as of March 31, 2008 are summarized below:

 

 

 

Outstanding Options

 

Exercisable Options

 

Exercise Price

 

Number
of Options

 

Weighted
Average
Remaining
Life (Years)

 

Weighted
Average
Exercise
Price

 

Number
of Options

 

Weighted
Average
Exercise
Price

 

$

0.50

 

543,851

 

4.16

 

$

0.50

 

543,851

 

$

0.50

 

$

2.00 – $2.99

 

1,067,169

 

5.44

 

2.04

 

1,067,169

 

2.04

 

$

3.00 – $3.99

 

1,426,643

 

5.50

 

3.37

 

1,426,643

 

3.37

 

$

4.00 – $6.99

 

392,449

 

7.18

 

5.03

 

384,601

 

5.04

 

$

7.00 – $9.99

 

2,111,084

 

8.07

 

8.94

 

1,079,696

 

8.86

 

$

10.00 – $19.99

 

1,260,102

 

8.57

 

10.75

 

506,452

 

11.13

 

$

20.00 - $193.02

 

48,857

 

2.52

 

44.54

 

48,857

 

44.54

 

 

 

6,850,155

 

 

 

 

 

5,057,269

 

 

 

 

Restricted Stock Activity

 

The following information relates to awards of restricted stock that has been granted to non-employee directors under our 2005 Non-Employee Directors’ Stock Option Plan. The restricted stock is not transferable until vested and the restrictions lapse upon the completion of a certain time period, usually over a one-year period. The fair value of each restricted stock grant is based on the closing price of the Company’s stock on the date of grant and is amortized to compensation expense over its vesting period.  At March 31, 2008, there were 39,500 shares of restricted stock outstanding.

 

The following activity occurred under the Company’s restricted stock plan during the three months ended March 31, 2008:

 

Restricted Stock Activity

 

Shares

 

Weighted
Average
Grant–Date Fair Value

 

Restricted stock outstanding at December 31, 2007

 

39,500

 

$

9.72

 

Granted

 

 

 

Lapse of restriction

 

 

 

 

 

 

 

 

 

Restricted stock outstanding at March 31, 2008

 

39,500

 

9.72

 

 

Compensation expense for the three-month period ended March 31, 2008 was approximately $74 thousand. As of March 31, 2008, there was approximately $183 thousand of total unamortized compensation cost related to the restricted stock outstanding.

 

9. Debt

 

To finance the purchase of the domain name, www.leads.com, in August 2004, LEADS.com signed a $500 thousand non-interest bearing note agreement with the owner of the domain name. The collateral for this note is the www.leads.com domain name. The note is payable in quarterly installments over 5 years. The imputed interest rate is 5.25%. As of March 31, 2008 and December 31, 2007, the remaining balance was $140 thousand and $162 thousand, respectively.

 

15



 

At the closing of the Web.com merger on September 30, 2007, the Company assumed approximately $1.3 million in outstanding indebtedness to US Bancorp Oliver-Allen Technology. The promissory note is payable through January 2009 in monthly installments of approximately $94 thousand and bears an interest rate of 6.75%. In addition, the promissory note is collateralized by $1.3 million of cash, which is included in non-current restricted investments. As of December 31, 2007, the remaining balance was $1.1 million. This promissory note was subsequently paid in full in March 2008.

 

10. Commitments and Contingencies

 

From time to time we may be involved in litigation relating to claims arising out of our operations. There are several outstanding litigation matters that relate to our wholly-owned subsidiary, Web.com Holding Company, Inc., formerly Web.com, Inc. (“Web.com”), including the following:

 

On August 2, 2006, Web.com filed suit in the United States District Court for the Western District of Pennsylvania against Federal Insurance Company and Chubb Insurance Company of New Jersey, seeking insurance coverage and payment of litigation expenses with respect to litigation involving Web.com pertaining to events in 2001. Web.com also has asserted claims against Rapp Collins, a division of Omnicom Media, that are pending in state court in Pennsylvania for recovery of the same litigation expenses.

 

On June 19, 2006, Web.com filed suit in the United States District Court for the Northern District of Georgia against The Go Daddy Group, Inc., seeking damages, a permanent injunction and attorney fees related to alleged infringement of four of Web.com’s patents.

 

Web.com was party to a lawsuit in state court in Missouri relating to Web.com’s acquisition of Communitech.Net, Inc. in 2002. In February 2008, we settled all claims related to that lawsuit pursuant to a confidential settlement agreement. As part of the settlement, we received a broad release of claims. We had previously adequately reserved for the contingencies arising from this matter, including the settlement. As such, we do not believe that the settlement will have a material adverse impact on our financial condition, cash flows or results of operations.

 

The outcome of litigation may not be assured, and despite management’s views of the merits of any litigation, or the reasonableness of our estimates and reserves, our cash balances could nonetheless be materially affected by an adverse judgment. In accordance with SFAS No. 5 “Accounting for Contingencies,” we believe we have adequately reserved for the contingencies arising from the above legal matters where an outcome was deemed to be probable and the loss amount could be reasonably estimated. As such, we do not believe that the anticipated outcome of the aforementioned proceedings will have a materially adverse impact on our financial condition, cash flows, or results of operations.

 

11. Related Party Transactions

 

The Company purchases online marketing services, including online advertising, from The Search Agency, Inc. (“TSA”), an entity in which the Company’s President and Director, Jeffrey M. Stibel, has an equity interest. Mr. Stibel is also a member and chairman of the Board of Directors of TSA. The Company’s purchases of online marketing services from TSA are made pursuant to the Company’s standard form of purchase order. The purchase order imposes no minimum commitment or long-term obligation on the Company. The Company may terminate the arrangement at any time. The Company pays TSA fees equal to a specified percentage of the Company’s purchases of online advertising made through TSA. The Company believes that the services it purchases from TSA, and the prices it pays, are competitive with or superior to those available from alternative providers. The total amount of fees paid to TSA for services rendered for the three months ended March 31, 2008 was $152 thousand, and $132 thousand and $44 thousand was accrued at March 31, 2008 and December 31, 2007, respectively. No fees were paid to TSA prior to October 1, 2007.

 

16



 

Item 2.  Management’s Discussion and Analysis of Financial Condition and Results of Operations.

 

In addition to historical information, this Quarterly Report on Form 10-Q contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. Actual results could differ materially from those projected in the forward-looking statements as a result of a number of factors, risks and uncertainties, including the risk factors set forth in this discussion, especially under the captions “Variability of Results” and “Factors That May Affect Future Operating Results” in this Form 10-Q. Generally, the words “anticipate”, “expect”, “intend”, “believe” and similar expressions identify forward-looking statements. The forward-looking statements made in this Form 10-Q are made as of the filing date of this Form 10-Q with the Securities and Exchange Commission, and future events or circumstances could cause results that differ significantly from the forward-looking statements included here. Accordingly, we caution readers not to place undue reliance on these statements. We expressly disclaim any obligation to update or alter our forward-looking statements, whether, as a result of new information, future events or otherwise after the date of this document.

 

The following discussion and analysis should be read in conjunction with the consolidated financial statements and notes thereto in Item 1 above and with our financial statements and notes thereto for the year ended December 31, 2007, contained in our Annual Report on Form 10-K for the year ended December 31, 2007 filed with the SEC on March 11, 2008.

 

Overview

 

We believe we are a leading provider, based on our number of subscribers, of Do-It-For-Me and Do-It-Yourself Website building tools, Internet marketing, lead generation and technology solutions that enable small and medium-sized businesses to build and maintain an effective Internet presence. The company offers a full range of Web services, including Website design and publishing, Internet marketing and advertising, search engine optimization, e-mail, lead generation, home contractor specific leads, and shopping cart solutions meeting the needs of a business anywhere along its lifecycle.

 

On September 30, 2007, the Company acquired Web.com, Inc. (“Web.com”). Web.com is a leading provider of Do-It-Yourself Websites and Internet marketing services for the small and medium-sized business market. Web.com offers a wide selection of online services, including Web hosting, e-mail, e-commerce, Website development, online marketing and optimization tools. Web.com has a large customer base that provides significant upsell and cross-sell opportunities for Do-It-For-Me Website services, online marketing and lead generation services. We believe that the Web.com acquisition united two market leaders to create a single company with solutions that can better meet the diverse Web services needs of small and medium sized businesses. In addition, the Company expects it will be able to leverage cost savings and take advantage of cross-selling opportunities across its significantly expanded customer base.

 

On February 19, 2008, the Company announced its intention to change its name to Web.com. The name change could take place as early as the first half of 2008.

 

Our primary Do-It-For-Me service offerings, eWorks! XL and SmartClicks, are comprehensive performance-based packages that include Website design and publishing, Internet marketing and advertising, search engine optimization, search engine submission, lead generation and easy-to-understand Web analytics. As an application service provider, or ASP, we offer our customers a full range of Web services and products on an affordable subscription basis. In addition to our primary service offerings, we provide a variety of premium services to customers who desire more advanced capabilities; such as e-commerce solutions and other sophisticated Internet marketing services and online lead generation. The breadth and flexibility of our offerings allow us to address the Web services needs of a wide variety of customers, ranging from those just establishing their Websites to those that want to enhance their existing Internet presence with more sophisticated marketing and lead generation services. Additionally, as the Internet continues to evolve, we plan to refine and expand our service offerings to keep our customers at the forefront.

 

Through the combination of our proprietary Website publishing and management software, automated workflow processes, and specialized workforce development and management techniques, we believe that we achieve production efficiencies that enable us to offer sophisticated Web services at affordable rates. Our technology automates many aspects of creating, maintaining, enhancing, and marketing Websites on behalf of our customers. With approximately 270,000 subscribers to our eWorks! XL, SmartClicks, and subscription-based services as of March 31, 2008, we believe we are one of the industry’s largest providers of affordable Web services and products enabling small and medium-sized businesses to have an effective Internet presence.

 

We have traditionally sold our Web services and products to customers identified primarily through strategic relationships with established brand name companies that have a large number of small and medium-sized business customers. We have a direct sales force that utilizes leads generated by our strategic marketing relationships to acquire new customers at our sales

 

17



 

centers in Spokane, Washington; Atlanta, Georgia; Jacksonville, Florida; Manassas, Virginia; Norton, Virginia; Halifax, Nova Scotia; and Scottsdale, Arizona. Our sales force specializes in selling to small and medium-sized businesses across a wide variety of industries throughout the United States.

 

Through the acquisition of Web.com, we also acquired a large number of customers directly through online and affiliate marketing activities that target small and medium-sized businesses that want to establish or enhance their Internet presence.

 

To increase our revenue and take advantage of our market opportunity, we plan to expand our subscriber base as well as increase our revenue from existing subscribers. We intend to continue to invest in hiring additional personnel, particularly in sales and marketing; developing additional services and products; adding to our infrastructure to support our growth; and expanding our operational and financial systems to manage our growing business. As we have in the past, we will continue to evaluate acquisition opportunities to increase the value and breadth of our Web services and product offerings and expand our subscriber base.

 

Key Business Metrics

 

Management periodically reviews certain key business metrics to evaluate the effectiveness of our operational strategies, allocate resources and maximize the financial performance of our business. These key business metrics include:

 

Net Subscriber Additions

 

We maintain and grow our subscriber base through a combination of adding new subscribers and retaining existing subscribers. We define net subscriber additions in a particular period as the gross number of new subscribers added during the period, less subscriber cancellations during the period. For this purpose, we only count as new subscribers those customers whose subscriptions have extended beyond the free trial period. Additionally, we do not treat a subscription as cancelled, even if the customer is not current in its payments, until either we have attempted to contact the subscriber twenty times or 60 days have passed since the most recent failed billing attempt, whichever is sooner. In any event, a subscriber’s account is cancelled if payment is not received within approximately 80 days.

 

We review this metric to evaluate whether we are performing to our business plan. An increase in net subscriber additions could signal an increase in subscription revenue, higher customer retention, and an increase in the effectiveness of our sales efforts. Similarly, a decrease in net subscriber additions could signal decreased subscription revenue, lower customer retention, and a decrease in the effectiveness of our sales efforts. Net subscriber additions above or below our business plan could have a long-term impact on our operating results due to the subscription nature of our business.

 

Monthly Turnover

 

Monthly turnover is a metric we measure each quarter, and which we define as customer cancellations in the quarter divided by the sum of the number of subscribers at the beginning of the quarter and the gross number of new subscribers added during the period, divided by three months. Customer cancellations in the quarter include cancellations from gross subscriber additions, which is why we include gross subscriber additions in the denominator. In measuring monthly turnover, we use the same conventions with respect to free trials and subscribers who are not current in their payments as described above for net subscriber additions. Monthly turnover is the key metric that allows management to evaluate whether we are retaining our existing subscribers in accordance with our business plan. An increase in monthly turnover may signal deterioration in the quality of our service, or it may signal a behavioral change in our subscriber base. Lower monthly turnover signals higher customer retention.

 

Sources of Revenue

 

We derive our revenue from sales of subscriptions, licenses, and services to our customers. Our revenue generally depends on the sale of a large number of subscriptions to small and medium-sized businesses. Leads provided by a relatively small number of companies with which we have strategic marketing relationships generate most of these sales.

 

Subscription Revenue

 

We currently derive a substantial majority of our revenue from fees associated with our subscription services, which are generally sold through our eWorks! XL, SmartClicks, Visibility Online, Web.com, Renex and 1ShoppingCart.com offerings. A significant portion of our subscription contracts include the design of a five-page Website, its hosting, and several additional Web services. In the case of eWorks! XL, upon the completion and initial hosting of the Website, our subscription services are offered free of charge for a 30-day trial period during which the customer can cancel at any time. After the 30-

 

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day trial period has ended, the revenue is recognized on a daily basis over the life of the contract. No 30-day free trial period is offered to customers for our Visibility Online services, and revenue is recognized on a daily basis over the life of the contract. The typical subscription is a monthly contract, although terms range up to 12 months. We bill a majority of our customers on a monthly basis through their credit cards, bank accounts, or business merchant accounts.

 

The Web.com product line subscription revenue is primarily generated from shared and dedicated hosting, managed services, e-commerce services, applications hosting and domain name registrations. Revenue is recognized as the services are provided. Hosting contracts generally are for service periods ranging from one to 24 months and typically require up-front fees. These fees, including set-up fees for hosting services, are deferred and recognized ratably over the customer’s expected service period. Deferred revenues represents the liability for advance billings to customers for services not yet provided.

 

For the three months ended March 31, 2008, subscription revenue accounted for approximately 96% of our total revenue as compared to 92% for the three months ended March 31, 2007. The number of paying subscribers to our Web services and lead generation products drives subscription revenue as well as the subscription price that we charge for these services. The number of paying subscribers is affected both by the number of new customers we acquire in a given period and by the number of existing customers we retain during that period. We expect other sources of revenue to decline as a percentage of total revenue over time.

 

License Revenue

 

We generate license revenue from the sale of perpetual licenses to use our software products. Our software products enable customers to build Websites either for themselves or for others. License revenue consists of all fees earned from granting customers licenses to use our software products. Software may be delivered indirectly by a channel distributor, through download from our Website, or directly to end users by us. We recognize license revenue from packaged products upon shipment to end-users. We consider delivery of licenses under electronic licensing agreements to have occurred when the related products are shipped and the end user has been electronically provided with the licenses and software activation keys that allow the end user to take immediate possession of the software. In periods during which we release new versions of our software, our license revenue is likely to be higher than in periods during which no new releases occur.

 

Professional Services Revenue

 

We also generate professional services revenue from custom Website design and outsourced customer service and sales support. Our custom Website design work is typically billed on a fixed price basis and over very short periods. Our outsourced customer service and sales support services are typically billed on an hourly basis.

 

Cost of Revenue

 

Cost of Subscription Revenue

 

Cost of subscription revenue primarily consists of expenses related to marketing fees we pay to companies with which we have strategic marketing relationships as well as compensation expenses related to our Web page development staff, directory listing fees, customer support costs, domain name and search engine registration fees, allocated overhead costs, billing costs, and hosting expenses. We allocate overhead costs such as rent and utilities to all departments based on headcount. Accordingly, general overhead expenses are reflected in each cost of revenue and operating expense category. As our customer base and Web services usage grows, we intend to continue to invest additional resources in our Website development and support staff.

 

Cost of License Revenue

 

Cost of license revenue consists of costs attributable to the manufacture and distribution of the software, compensation expenses related to our quality assurance staff, as well as allocated overhead costs.

 

Cost of Professional Services Revenue

 

Cost of professional services revenue primarily consists of compensation expenses related to our Web page development staff and allocated overhead costs. We plan to add additional resources in this area to support the expected growth in our professional services and custom design functions.

 

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Operating Expenses

 

Sales and Marketing Expense

 

Our largest direct marketing expense are the costs associated with the online marketing channels we use to acquire and promote our services. These channels include search marketing, affiliate marketing and online partnerships. Sales costs consist primarily of salaries and related expenses for our sales and marketing staff. Sales and marketing expenses also include commissions, marketing programs, including advertising, events, corporate communications, other brand building and product marketing expenses and allocated overhead costs.

 

We plan to continue to invest heavily in sales and marketing by increasing the number of direct sales personnel in order to add new subscription customers as well as increase sales of additional and new services and products to our existing customer base. Our investment in this area will also help us to expand our strategic marketing relationships, to build brand awareness, and to sponsor additional marketing events. We expect that, in the future, sales and marketing expenses will increase in absolute dollars and continue to be our largest indirect cost.

 

Research and Development Expense

 

Research and development expenses consist primarily of salaries and related expenses for our research and development staff, outsourced software development expenses, and allocated overhead costs. We have historically focused our research and development efforts on increasing the functionality of the technologies that enable our Web services and lead generation products. Our technology architecture enables us to provide all of our customers with a service based on a single version of the applications that serve each of our product offerings. As a result, we do not have to maintain multiple versions of our software, which enables us to have lower research and development expenses as a percentage of total revenue. We expect that, in the future, research and development expenses will increase in absolute dollars as we continue to upgrade and extend our service offerings and develop new technologies.

 

General and Administrative Expense

 

General and administrative expenses consist of salaries and related expenses for executive, finance, administration, and management information systems personnel, as well as professional fees, other corporate expenses, and allocated overhead costs. We expect that general and administrative expenses will increase in absolute dollars as we continue to add personnel to support the growth of our business.

 

Depreciation and Amortization Expense

 

Depreciation and amortization expenses relate primarily to our computer equipment, software, building and other intangible assets recorded due to the acquisitions we have completed.

 

Critical Accounting Policies

 

Our discussion and analysis of our financial condition and results of operations are based on our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, and expenses and related disclosure of contingent assets and liabilities. We review our estimates on an ongoing basis. We base our estimates on historical experience and on various other assumptions that we believe to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities. Actual results may differ from these estimates under different assumptions or conditions. While our significant accounting policies are described in more detail in Note 1 to our consolidated financial statements included in this report, we believe the following accounting policies to be critical to the judgments and estimates used in the preparation of our consolidated financial statements.

 

Revenue Recognition

 

We recognize revenue in accordance with SEC Staff Accounting Bulletin No. 104 and other related generally accepted accounting principles.

 

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We recognize revenue when all of the following conditions are satisfied: (1) there is persuasive evidence of an arrangement; (2) the service has been provided to the customer; (3) the amount of fees to be paid by the customer is fixed or determinable; and (4) the collection of our fees is probable.

 

Thus, we recognize subscription revenue on a daily basis, as services are provided. Customers are billed for the subscription on a monthly, quarterly, semi-annual, or annual basis, at the customer’s option. For all of our customers, regardless of their billing method, subscription revenue is recorded as deferred revenue in the accompanying consolidated balance sheets. As services are performed, we recognize subscription revenue on a daily basis over the applicable service period. When we provide a free trial period, we do not begin to recognize subscription revenue until the trial period has ended and the customer has been billed for the services.

 

License revenue is derived from sales of software licenses directly to end-users as well as through value-added resellers and distributors. Software may be delivered indirectly by a distributor, through download from our Website, or directly to end-users by our company. We recognize revenue generated by the distribution of software licenses directly by us in the form of a boxed software product or a digital download upon sale and delivery to the end-user. End-users who purchase a software license online pay for the license at the time of order. We do not offer extended payment terms or make concessions for software license sales. We recognize revenue generated from distribution agreements where the distributor has a right of return as the distributor sells and delivers software license product to the end-user. We recognize revenue from distribution agreements where no right of return exists when a licensed software product is shipped to the distributor. In arrangements where distributors pay us upon shipment of software product to end-customers, we recognize revenue upon payment by the distributor. We are not obligated to provide technical support in connection with software licenses and do not provide technical support services to our software license customers. Our revenue recognition policies are in compliance with Statement of Position, or SOP, 97-2 (as amended by SOP 98-4 and SOP 98-9), Software Revenue Recognition .

 

Professional services revenue is generated from custom Website design, outsourced customer service and sales support services, and search engine optimization services. Our professional services revenue from contracts for custom Website design is recorded using a proportional performance model based on labor hours incurred. The extent of progress toward completion is measured by the labor hours incurred as a percentage of total estimated labor hours to complete. Labor hours are the most appropriate measure to allocate revenue among reporting periods, as they are the primary input to the provision of our professional services. Our search engine optimization services are billed on a fixed price basis and revenue is recognized on a daily basis over the applicable service period.

 

We account for our multi-element arrangements, such as in the instances where we design a custom Website and separately offer other services such as hosting and marketing, in accordance with Emerging Issues Task Force Issue 00-21, Revenue Arrangements with Multiple Deliverables. We identify each element in an arrangement and assign the relative fair value to each element. The additional services provided with a custom Website are recognized separately over the period for which services are performed.

 

Allowance for Doubtful Accounts

 

In accordance with our revenue recognition policy, our accounts receivable are based on customers whose payment is reasonably assured. We monitor collections from our customers and maintain an allowance for estimated credit losses based on historical experience and specific customer collection issues. While credit losses have historically been within our expectations and the provisions established in our financial statements, we cannot guarantee that we will continue to experience the same credit loss rates that we have in the past. Because we have a large number of customers, we do not believe a change in liquidity of any one customer or our inability to collect from any one customer would have a material adverse impact on our consolidated financial position.

 

We also monitor failed direct debit billing transactions and customer refunds and maintain an allowance for estimated losses based upon historical experience. These provisions to our allowance are recorded as an adjustment to revenue. While losses from these items have historically been minimal, we cannot guarantee that we will continue to experience the same loss rates that we have in the past.

 

Accounting for Stock-Based Compensation

 

We record compensation expenses for our employee and director stock-based compensation plans based upon the fair value of the award in accordance with SFAS No. 123(R), Share Based Payment . Stock-based compensation is amortized over the related vesting periods.

 

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Goodwill and Intangible Assets

 

In accordance with Statement of Financial Accounting Standards No. 142, Goodwill and Other Intangible Assets , we periodically evaluate goodwill and indefinite lived intangible assets for potential impairment. We test for the impairment of goodwill and indefinite lived intangible assets annually, and between annual tests if an event occurs or circumstances change that would more likely than not reduce the fair value of goodwill or indefinite lived intangible assets below its carrying amount. Other intangible assets include, among other items, customer relationships, developed technology and non-compete agreements, and they are amortized using the straight-line method over the periods benefited, which is up to ten years. Other intangible assets represent long-lived assets and are assessed for potential impairment whenever significant events or changes occur that might impact recovery of recorded costs. While we believe it is unlikely that any significant changes to the useful lives of our tangible and intangible assets will occur in the near term, rapid changes in technology or changes in market conditions could result in revisions to such estimates that could materially affect the carrying value of these assets and our future operating results.

 

Accounting for Purchase Business Combinations

 

All of our acquisitions were accounted for as purchase transactions, and the purchase price was allocated to the assets acquired and liabilities assumed based on the fair value of the assets acquired and liabilities assumed. The excess of the purchase price over the fair value of net assets acquired or net liabilities assumed, was allocated to goodwill. The fair value of amortizable intangibles, primarily consisting of customer relationships, non-compete agreements, trade names, and developed technology, was determined using valuation studies performed by an independent third-party valuation expert.

 

Provision for Income Taxes

 

We recognize deferred tax assets and liabilities on differences between the book and tax basis of assets and liabilities using currently effective tax rates. Further, deferred tax assets are recognized for the expected realization of available net operating loss carry forwards. A valuation allowance is recorded to reduce a deferred tax asset to an amount that we expect to realize in the future. We review the adequacy of the valuation allowance on an ongoing basis and recognize these benefits if a reassessment indicates that it is more likely than not that these benefits will be realized. In addition, we evaluate our tax contingencies on an ongoing basis and recognize a liability when we believe that it is probable that a liability exists and that the liability is measurable.

 

Comparison of the Results for the Three Months Ended March 31, 2008 to the Results for the Three Months Ended March 31, 2007

 

Revenue

 

 

 

Three months ended
March 31,

 

 

 

2008

 

2007

 

 

 

(unaudited)

 

Revenue:

 

 

 

 

 

Subscription

 

$

29,731

 

$

15,138

 

License

 

449

 

1,028

 

Professional services

 

681

 

258

 

Total revenue

 

$

30,861

 

$

16,424

 

 

Total revenue for the three months ended March 31, 2008 increased $14.4 million, or 88%, over the three months ended March 31, 2007.

 

Subscription Revenue . Subscription revenue increased 96% to $29.7 million in the three months ended March 31, 2008 from $15.1 million in the three months ended March 31, 2007. Subscription revenue increased approximately $13.4 million due to additional revenues resulting from our acquisitions of Web.com and Submitawebsite, which increased our subscribers by approximately 181,000. In addition, subscription revenue increased by $1.2 million as a result of an increase in our customer base from approximately 76,600 as of March 31, 2007 to approximately 270,000 as of March 31, 2008, of which approximately 173,000 were added in connection with the Web.com and Submitawebsite acquisitions, and the change in average revenue per customer.

 

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The average monthly turnover decreased to 4.1% in the three months ended March 31, 2008 from 5.3% in the three months ended March 31, 2007.  The average monthly turnover for the three months ended March 31, 2008 included the turnover associated with our acquisitions of Web.com and Submitawebsite.

 

License Revenue. License revenue decreased 56% to $449 thousand in the three months ended March 31, 2008 from $1.0 million in the three months ended March 31, 2007. This decrease was primarily attributable to the timing of the Netobjects Fusion version release and the natural life cycle of the Netobjects Fusion product, which resulted in less units being sold during the three months ended March 31, 2008.

 

Professional Services Revenue. Professional services revenue increased 164% to $681 thousand in the three months ended March 31, 2008 from $258 thousand in the three months ended March 31, 2007. Professional services revenue increased approximately $439 thousand due to additional revenue resulting from our acquisition of Submitawebsite.

 

Cost of Revenue

 

 

 

Three months ended
March 31,

 

 

 

2008

 

2007

 

 

 

(unaudited)

 

Cost of revenue

 

 

 

 

 

Subscription

 

$

10,903

 

$

6,815

 

License

 

93

 

298

 

Professional services

 

375

 

301

 

Total cost of revenue

 

$

11,371

 

$

7,414

 

 

Cost of Subscription Revenue. Cost of subscription revenue increased 60% to $10.9 million in the three months ended March 31, 2008 from $6.8 million in the three months ended March 31, 2007. The increase in the cost of subscription revenue of approximately $4.1 million was primarily the result of the costs associated with the increase in our subscriber base since March 31, 2007. More specifically, during the three months ended March 31, 2008, we incurred additional costs of approximately $4.0 million related to the additional subscription revenue associated with customers acquired as part of our acquisition of Web.com and Submitawebsite.  Further, gross margin on subscription revenue increased to 63% for the three months ended March 31, 2008 from 55% for the three months ended March 31, 2007.

 

Cost of License Revenue. Cost of license revenue decreased 69% to $93 thousand in the three months ended March 31, 2008 from $298 thousand in the three months ended March 31, 2007. The decrease in the cost of license revenue was primarily attributable to the timing of the most recent release of our NetObjects Fusion product as potential customers waited to make purchases until the new release was available.

 

Cost of Professional Services Revenue. Cost of professional services revenue increased 25% to $375 thousand in the three months ended March 31, 2008 from $301 thousand in the three months ended March 31, 2007. The increase in the cost of professional services revenue was primarily the result of the costs associated with the search engine optimization professional services acquired through our acquisition of Submitawebsite, which was partially offset by the reduction in headcount which caused a decrease in employee compensation and benefits expense.

 

Operating Expenses

 

 

 

Three months ended
March 31,

 

 

 

2008

 

2007

 

 

 

(unaudited)

 

Operating expenses:

 

 

 

 

 

Sales and marketing

 

$

7,463

 

$

3,947

 

Research and development

 

2,638

 

778

 

General and administrative

 

5,102

 

2,908

 

Depreciation and amortization

 

3,349

 

681

 

Total operating expenses

 

$

18,552

 

$

8,314

 

 

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Operating Expenses

 

Sales and Marketing Expenses. Sales and marketing expenses increased 89% to $7.5 million, or 24% of total revenue, during the three months ended March 31, 2008 from $3.9 million, or 24% of total revenue, during the three months ended March 31, 2007. An increase of $3.2 million in sales and marketing expenses were attributable to the addition of sales and marketing resources in connection with our acquisitions of Web.com and Submitawebsite. In addition, there was an increase in employee compensation and benefits expense totaling $272 thousand related to an increase in headcount.

 

Research and Development Expenses. Research and development expenses increased 239% to $2.6 million, or 9% of total revenue, during the three months ended March 31, 2008 from $778 thousand, or 5% of total revenue, during the three months ended March 31, 2007. The increase was primarily due to an increase of $1.4 million in additional research and development resources associated with our acquisitions of Web.com and Submitawebsite. In addition, there was an increase in employee compensation and benefits expense totaling $343 thousand related to an increase in headcount and an increase of $83 thousand was due to an increase in the cost of resources related to the ongoing development of NetObjects Fusion.

 

General and Administrative Expenses. General and administrative expenses increased 75% to $5.1 million, or 17% of total revenue, during the three months ended March 31, 2008 from $2.9 million, or 18% of total revenue, during the three months ended March 31, 2007. The increase was primarily due to an increase of $2.1 million in additional general and administrative resources associated with our acquisitions of Web.com and Submitawebsite.

 

Depreciation and Amortization Expense. Depreciation and amortization expense increased 392% to  $3.3 million, or 11% of total revenue, during the three months ended March 31, 2008 from $681 thousand, or 4% of total revenue, during the three months ended March 31, 2007. Amortization expense and depreciation expense increased $2.2 million and $475 thousand, respectively, due to increases in definite-lived intangible assets and fixed assets.

 

Net Interest Income. Net interest income decreased 49% to $256 thousand, or 1% of total revenue, during the three months ended March 31, 2008 from $502 thousand, or 3% of total revenue, during the three months ended March 31, 2007. The decrease in interest income was due to the reduction of the cash balance available to invest in money market funds and a reduction in interest rates.

 

Income tax expense. Income tax expense increased to $644 thousand during the three-months ended March 31, 2008 from $566 thousand during the three-months ended March 31, 2007. The Company’s effective rate exceeds the statutory rate primarily due to non-deductible expenses associated with incentive stock options.

 

Liquidity and Capital Resources

 

As of March 31, 2008, we had $33.6 million of unrestricted cash and cash equivalents and $22.0 million in working capital, as compared to $29.7 million of cash and cash equivalents and $16.5 million in working capital as of December 31, 2007. The increase in unrestricted cash is primarily due to the release of $4.5 million of restricted investments into unrestricted cash, while the increase in the working capital is due to the cash generated from operations.

 

Net cash used in operations for the three months ended March 31, 2008 was $1.0 million as compared to the net cash provided by operations of $2.2 million for the three months ended March 31, 2007. This decrease was primarily due to the Company’s net payments of $3.8 million associated with the accrued restructuring and other costs paid during the three months ended March 31, 2008, which was recorded in connection with the Web.com acquisition.

 

Net cash provided by investing activities in the three months ended March 31, 2008 was $5.2 million as compared to the net cash used in investing activities during the three months ended March 31, 2007 of $2.9 million. During the three months ended March 31, 2008, the Company received proceeds from the sales of restricted investments totaling $5.5 million and reinvested $1.0 million. The uninvested proceeds were transferred to a money market account and classified as unrestricted cash. In addition, the Company paid off a note payable and the related restricted cash was released and classified as unrestricted cash. During the three months ended March 31, 2007, the Company acquired substantially all of the assets and select liabilities of Submitawebsite, Inc. totaling approximately $2.1 million, including acquisition expenses.

 

Net cash used in financing activities in the three months ended March 31, 2008 was $374 thousand as compared to the net cash provided by financing activities of $8 thousand for the three months ended March 31, 2007. During the three months ended March 31, 2008, the Company paid $1.1 million to satisfy a debt obligation and received proceeds from the exercise of stock options of $737 thousand.

 

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Summary

 

Our future capital uses and requirements depend on numerous forward-looking factors. These factors include but are not limited to the following:

 

·                   the costs involved in the expansion of our customer base;

 

·                   the costs involved with investment in our servers, storage and network capacity;

 

·                   the costs associated with the expansion of our domestic and international activities;

 

·                   the costs involved with our research and development activities to upgrade and expand our service offerings; and

 

·                   the extent to which we acquire or invest in other technologies and businesses.

 

We believe that our existing cash and cash equivalents will be sufficient to meet our projected operating requirements for at least the next 12 months, including our sales and marketing expenses, research and development expenses, capital expenditures, and any acquisitions or investments in complementary businesses, services, products or technologies. As of March 31, 2008 and December 31, 2007, we did not have any relationships with unconsolidated entities or financial partnerships, such as entities often referred to as structured finance or special purpose entities, which would have been established for the purpose of facilitating off-balance sheet arrangements or other contractually narrow or limited purposes.

 

Item 3.                                     Quantitative and Qualitative Disclosures About Market Risk.

 

Foreign Currency Exchange Risk

 

Our results of operations and cash flows are subject to fluctuations due to changes in foreign currency exchange rates, particularly changes in the Euro and the Canadian Dollar. We will analyze our exposure to currency fluctuations and may engage in financial hedging techniques in the future to reduce the effect of these potential fluctuations. We have not entered into any hedging contracts since exchange rate fluctuations have had little impact on our operating results and cash flows. The majority of our subscription agreements are denominated in U.S. dollars. To date, our foreign sales have been primarily in Euros. Sales to customers domiciled outside the United States were approximately 1% and 4% of our total revenue in the three months ended March 31, 2008 and 2007, respectively. Sales in Germany represented approximately 59% of our international revenue in the three months ended March 31, 2008 and 2007.

 

Interest Rate Sensitivity

 

We had unrestricted cash and cash equivalents totaling $33.6 million and $29.7 million at March 31, 2008 and December 31, 2007, respectively. These amounts were invested primarily in money market funds. The unrestricted cash, cash equivalents and short-term marketable securities are held for working capital purposes. We do not enter into investments for trading or speculative purposes. Due to the short-term nature of these investments, we believe that we do not have any material exposure to changes in the fair value of our investment portfolio as a result of changes in interest rates. Declines in interest rates, however, will reduce future investment income. We do not hold any auction rate securities and we have no reason to believe that any of the cash equivalents that we hold are illiquid.

 

Item 4.                                     Controls and Procedures.

 

Evaluation of disclosure controls and procedures.

 

Based on their evaluation as of March 31, 2008, our Chief Executive Officer and Chief Financial Officer have concluded that our disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended) were sufficiently effective to ensure that the information required to be disclosed by us in this quarterly report on Form
10-Q was recorded, processed, summarized and reported within the time periods specified in the Securities and Exchange Commission’s rules.

 

Our disclosure controls and procedures are designed to provide reasonable assurance of achieving their objectives. Our management, including our Chief Executive Officer and Chief Financial Officer, does not expect that our disclosure controls and procedures or our internal controls will prevent all error and all fraud. A control system, no matter how well conceived and operated, can provide only reasonable, not absolute, assurance that the objectives of the control system are met. Further, the design of a control system must reflect the fact that there are resource constraints, and the benefits of controls must be considered relative to their costs. Because of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that all control issues and instances of fraud, if any, within our Company have been detected.

 

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Changes in internal controls. Other than described below, there have been no changes in our internal controls over financial reporting during the three months ended March 31, 2008 that have materially affected, or are reasonably likely to materially affect, our internal controls over financial reporting.

 

During the quarter ended March 31, 2008, we implemented significant changes to our financial accounting and reporting system by upgrading to a new accounting system and reporting database.  The new accounting system and reporting database is expected to improve the consolidation process, increase efficiency, and enable additional reporting options. The impact of these changes has enhanced our internal controls over financial reporting.

 

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PART II—OTHER INFORMATION

 

Item 1.                                      Legal Proceedings

 

From time to time we may be involved in litigation relating to claims arising out of our operations. There are several outstanding litigation matters that relate to our wholly-owned subsidiary, Web.com Holding Company, Inc., formerly Web.com, Inc. (“Web.com”), including the following:

 

On August 2, 2006, Web.com filed suit in the United States District Court for the Western District of Pennsylvania against Federal Insurance Company and Chubb Insurance Company of New Jersey, seeking insurance coverage and payment of litigation expenses with respect to litigation involving Web.com pertaining to events in 2001. Web.com also has asserted claims against Rapp Collins, a division of Omnicom Media, that are pending in state court in Pennsylvania for recovery of the same litigation expenses.

 

On June 19, 2006, Web.com filed suit in the United States District Court for the Northern District of Georgia against The Go Daddy Group, Inc., seeking damages, a permanent injunction and attorney fees related to alleged infringement of four of Web.com’s patents.

 

Web.com was party to a lawsuit in state court in Missouri relating to Web.com’s acquisition of Communitech.Net, Inc. in 2002. In February 2008, we settled all claims related to that lawsuit pursuant to a confidential settlement agreement. As part of the settlement, we received a broad release of claims. We had previously adequately reserved for the contingencies arising from this matter, including the settlement. As such, we do not believe that the settlement will have a material adverse impact on our financial condition, cash flows or results of operations.

 

The outcome of litigation may not be assured, and despite management’s views of the merits of any litigation, or the reasonableness of our estimates and reserves, our cash balances could nonetheless be materially affected by an adverse judgment. In accordance with SFAS No. 5 “Accounting for Contingencies,” we believe we have adequately reserved for the contingencies arising from the above legal matters where an outcome was deemed to be probable and the loss amount could be reasonably estimated. As such, we do not believe that the anticipated outcome of the aforementioned proceedings will have a materially adverse impact on our financial condition, cash flows, or results of operations.

 

Item 1A.                            Risk Factors

 

Factors That May Affect Future Operating Results

 

In addition to the risks discussed in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” our business is subject to the risks set forth below.

 

We depend on our strategic marketing relationships to identify prospective customers. The loss of several of our strategic marketing relationships, or a reduction in the referrals and leads they generate, would significantly reduce our future revenue and increase our expenses.

 

As a key part of our strategy, we have entered into agreements with a number of companies pursuant to which these parties provide us with access to their customer lists and allow us to use their names in marketing our Web services and products. Approximately 85% of our new customers in the year ended December 31, 2007, and approximately 16% in the three months ended March 31, 2008, were identified through our strategic marketing relationships. We believe these strategic marketing relationships are critical to our business because they enable us to penetrate our target market with a minimum expenditure of resources. If these strategic marketing relationships are terminated or otherwise fail, our revenue would likely decline significantly and we could be required to devote additional resources to the sale and marketing of our Web services and products. We have no long-term contracts with these organizations, and these organizations are generally not restricted from working with our competitors. Accordingly, our success will depend upon the willingness of these organizations to continue these strategic marketing relationships.

 

To successfully execute our business plan, we must also establish new strategic marketing relationships with additional organizations that have strong relationships with small and medium-sized businesses that would enable us to identify additional prospective customers. If we are unable to diversify and extend our strategic marketing relationships, our ability to grow our business may be compromised.

 

27



 

Most of our Web services are sold on a month-to-month basis, and if our customers either are unable or choose not to subscribe to our Web services, our revenue may decrease.

 

Typically, our Web service offerings are sold pursuant to month-to-month subscription agreements, and our customers can generally cancel their subscriptions to our Web services at any time with little or no penalty.

 

Historically, we have experienced a high turnover rate in our customer base. For the year ended December 31, 2007, 43%, of our subscribers who were customers at the beginning of the respective year were no longer subscribers at the end of the respective year. For the three months ended March 31, 2008 and 2007, 16% and 18%, respectively, of our subscribers who were customers at the beginning of the respective period were no longer subscribers at the end of the period. The turnover rate calculations do not include any acquisition related customer activity.

 

While we cannot determine with certainty why our subscription renewal rates are not higher, we believe there are a variety of factors, which have in the past led, and may in the future lead, to a decline in our subscription renewal rates. These factors include the cessation of our customers’ businesses, the overall economic environment in the United States and its impact on small and medium-sized businesses, the services and prices offered by us and our competitors, and the evolving use of the Internet by small and medium-sized businesses. If our renewal rates are low or decline for any reason, or if customers demand renewal terms less favorable to us, our revenue may decrease, which could adversely affect our stock price.

 

If economic or other factors negatively affect the small and medium-sized business sector, our customers may become unwilling or unable to purchase our Web services and products, which could cause our revenue to decline and impair our ability to operate profitably.

 

Our existing and target customers are small and medium-sized businesses. These businesses are more likely to be significantly affected by economic downturns than larger, more established businesses. Additionally, these customers often have limited discretionary funds, which they may choose to spend on items other than our Web services and products. If small and medium-sized businesses experience economic hardship, they may be unwilling or unable to expend resources to develop their Internet presences, which would negatively affect the overall demand for our services and products and could cause our revenue to decline.

 

Our growth will be adversely affected if we cannot continue to successfully retain, hire, train, and manage our key employees, particularly in the telesales and customer service areas.

 

Our ability to successfully pursue our growth strategy will depend on our ability to attract, retain, and motivate key employees across our business. We have many key employees throughout our organization that do not have non-competition agreements and may leave to work for a competitor at any time. In particular, we are substantially dependent on our telesales and customer service employees to obtain and service new customers. Competition for such personnel and others can be intense, and there can be no assurance that we will be able to attract, integrate, or retain additional highly qualified personnel in the future. In addition, our ability to achieve significant growth in revenue will depend, in large part, on our success in effectively training sufficient personnel in these two areas. New hires require significant training and in some cases may take several months before they achieve full productivity if they ever do. Our recent hires and planned hires may not become as productive as we would like, and we may be unable to hire sufficient numbers of qualified individuals in the future in the markets where we have our facilities. If we are not successful in retaining our existing employees, or hiring, training and integrating new employees, or if our current or future employees perform poorly, growth in the sales of our services and products may not materialize and our business will suffer.

 

We may expand through acquisitions of, or investments in, other companies or technologies, which may result in additional dilution to our stockholders and consume resources that may be necessary to sustain our business.

 

One of our business strategies is to acquire complementary services, technologies or businesses. In connection with one or more of those transactions, we may:

 

·                   issue additional equity securities that would dilute our stockholders;

 

·                   use cash that we may need in the future to operate our business; and

 

·                   incur debt that could have terms unfavorable to us or that we might be unable to repay.

 

Business acquisitions also involve the risk of unknown liabilities associated with the acquired business. In addition, we may not realize the anticipated benefits of any acquisition, including securing the services of key employees. Incurring unknown liabilities or the failure to realize the anticipated benefits of an acquisition could seriously harm our business.

 

28



 

We may find it difficult to integrate recent and potential future business combinations, which could disrupt our business, dilute stockholder value, and adversely affect our operating results.

 

During the course of our history, we have completed several acquisitions of other businesses, and a key element of our strategy is to continue to acquire other businesses in the future. In particular, we completed the Submitawebsite, Inc. acquisition in March 2007 and the Web.com merger in September 2007. Integrating these recently acquired businesses and assets and any businesses or assets we may acquire in the future could add significant complexity to our business and additional burdens to the substantial tasks already performed by our management team. In the future, we may not be able to identify suitable acquisition candidates, and if we do, we may not be able to complete these acquisitions on acceptable terms or at all. In connection with our recent and possible future acquisitions, we may need to integrate operations that have different and unfamiliar corporate cultures. Likewise, we may need to integrate disparate technologies and Web service and product offerings, as well as multiple direct and indirect sales channels. The key personnel of the acquired company may decide not to continue to work for us. These integration efforts may not succeed or may distract our management’s attention from existing business operations. Our failure to successfully manage and integrate Submitawebsite and Web.com, or any future acquisitions could seriously harm our business.

 

Accounting for acquisitions under generally accepted accounting principles could adversely affect our reported financial results.

 

Under generally accepted accounting principles in the United States, we could be required to record charges for in-process research and development or other charges in connection with future acquisitions, which would reduce any future reported earnings or increase any future reported loss. Acquisitions could also require us to record substantial amounts of goodwill and other intangible assets. For example, in connection with our recent acquisition of Web.com, we recorded $76.0 million of goodwill and $63.5 million of intangible assets. Any future impairment of this goodwill, and the ongoing amortization of other intangible assets, could adversely affect our reported financial results.

 

We have only recently become profitable and may not maintain our level of profitability.

 

Although we generated net income for the year ended December 31, 2007, we have not historically been profitable and may not be profitable in future periods. As of March 31, 2008, we had an accumulated deficit of approximately $57.3 million. We expect that our expenses relating to the sale and marketing of our Web services, technology improvements and general and administrative functions, as well as the costs of operating and maintaining our technology infrastructure, will increase in the future. Accordingly, we will need to increase our revenue to be able to maintain our profitability. We may not be able to reduce in a timely manner or maintain our expenses in response to any decrease in our revenue, and our failure to do so would adversely affect our operating results and our level of profitability.

 

Our operating results are difficult to predict and fluctuations in our performance may result in volatility in the market price of our common stock.

 

Due to our limited operating history, our evolving business model, and the unpredictability of our emerging industry, our operating results are difficult to predict. We expect to experience fluctuations in our operating and financial results due to a number of factors, such as:

 

·                   our ability to retain and increase sales to existing customers, attract new customers, and satisfy our customers’ requirements;

 

·                   the renewal rates for our services;

 

·                   changes in our pricing policies;

 

·                   the introduction of new services and products by us or our competitors;

 

·                   our ability to hire, train and retain members of our sales force;

 

·                   the rate of expansion and effectiveness of our sales force;

 

·                   technical difficulties or interruptions in our services;

 

·                   general economic conditions;

 

·                   additional investment in our services or operations;

 

29



 

·                   ability to successfully integrate acquired businesses and technologies;

 

·                   bulk licenses of our software; and

 

·                   our success in maintaining and adding strategic marketing relationships.

 

These factors and others all tend to make the timing and amount of our revenue unpredictable and may lead to greater period-to-period fluctuations in revenue than we have experienced historically.

 

As a result of these factors, we believe that our quarterly revenue and results of operations are likely to vary significantly in the future and that period-to-period comparisons of our operating results may not be meaningful. The results of one quarter may not be relied on as an indication of future performance. If our quarterly revenue or results of operations fall below the expectations of investors or securities analysts, the price of our common stock could decline substantially.

 

Our business depends in part on our ability to continue to provide value-added Web services and products, many of which we provide through agreements with third parties, and our business will be harmed if we are unable to provide these Web services and products in a cost-effective manner.

 

A key element of our strategy is to combine a variety of functionalities in our Web service offerings to provide our customers with comprehensive solutions to their Internet presence needs, such as Internet search optimization, local yellow pages listings, and e-commerce capability. We provide many of these services through arrangements with third parties, and our continued ability to obtain and provide these services at a low cost is central to the success of our business. For example, we currently have agreements with several service providers that enable us to provide, at a low cost, Internet yellow pages advertising. However, these agreements may be terminated on short notice, typically 60 to 90 days, and without penalty. If any of these third parties were to terminate their relationships with us, or to modify the economic terms of these arrangements, we could lose our ability to provide these services at a cost-effective price to our customers, which could cause our revenue to decline or our costs to increase.

 

We have a risk of system and Internet failures, which could harm our reputation, cause our customers to seek reimbursement for services paid for and not received, and cause our customers to seek another provider for services.

 

We must be able to operate the systems that manage its network around the clock without interruption. Its operations will depend upon our ability to protect its network infrastructure, equipment, and customer files against damage from human error, fire, earthquakes, hurricanes, floods, power loss, telecommunications failures, sabotage, intentional acts of vandalism and similar events. Our networks are currently subject to various points of failure. For example, a problem with one of our routers (devices that move information from one computer network to another) or switches could cause an interruption in the services that we provide to some or all of our customers. In the past, we have experienced periodic interruptions in service. We have also experienced, and in the future we may continue to experience, delays or interruptions in service as a result of the accidental or intentional actions of Internet users, current and former employees, or others. Any future interruptions could:

 

·                   Cause customers or end users to seek damages for losses incurred;

 

·                   Require the Company to replace existing equipment or add redundant facilities;

 

·                   Damage the Company’s reputation for reliable service;

 

·                   Cause existing customers to cancel their contracts; or

 

·                   Make it more difficult for the Company to attract new customers.

 

Our data centers are maintained by third parties.

 

A substantial portion of the network services and computer servers we utilize in the provision of services to customers are housed in data centers owned by other service providers. In particular, a significant number of our servers are housed in data centers in Atlanta, Georgia, and Jacksonville, Florida. We obtain Internet connectivity for those servers, and for the customers who rely on those servers, in part through direct arrangements with network service providers and in part indirectly through the owners of those data centers. We also utilize other third-party data centers in other locations. In the future, we may house other servers and hardware items in facilities owned or operated by other service providers.

 

30



 

A disruption in the ability of one of these service providers to provide service to us could cause a disruption in service to our customers. A service provider could be disrupted in its operations through a number of contingencies, including unauthorized access, computer viruses, accidental or intentional actions, electrical disruptions, and other extreme conditions. Although we believe we have taken adequate steps to protect our business through contractual arrangements with our service providers, we cannot eliminate the risk of a disruption in service resulting from the accidental or intentional disruption in service by a service provider. Any significant disruption could cause significant harm to us, including a significant loss of customers. In addition, a service provider could raise its prices or otherwise change its terms and conditions in a way that adversely affects our ability to support our customers or could result in a decrease in our financial performance.

 

We rely heavily on the reliability, security, and performance of our internally developed systems and operations, and any difficulties in maintaining these systems may result in service interruptions, decreased customer service, or increased expenditures.

 

The software and workflow processes that underlie our ability to deliver our Web services and products have been developed primarily by our own employees. The reliability and continuous availability of these internal systems are critical to our business, and any interruptions that result in our inability to timely deliver our Web services or products, or that materially impact the efficiency or cost with which we provide these Web services and products, would harm our reputation, profitability, and ability to conduct business. In addition, many of the software systems we currently use will need to be enhanced over time or replaced with equivalent commercial products, either of which could entail considerable effort and expense. If we fail to develop and execute reliable policies, procedures, and tools to operate our infrastructure, we could face a substantial decrease in workflow efficiency and increased costs, as well as a decline in our revenue.

 

We face intense and growing competition. If we are unable to compete successfully, our business will be seriously harmed.

 

The market for our Web services and products is competitive and has relatively low barriers to entry. Our competitors vary in size and in the variety of services they offer. We encounter competition from a wide variety of company types, including:

 

·                   Website design and development service and software companies;

 

·                   Internet service providers and application service providers;

 

·                   Internet search engine providers;

 

·                   Local business directory providers; and

 

·                   Website domain name providers and hosting companies.

 

In addition, due to relatively low barriers to entry in our industry, we expect the intensity of competition to increase in the future from other established and emerging companies. Increased competition may result in price reductions, reduced gross margins, and loss of market share, any one of which could seriously harm our business. We also expect that competition will increase as a result of industry consolidations and formations of alliances among industry participants.

 

Many of our current and potential competitors have longer operating histories, significantly greater financial, technical, marketing and other resources, greater brand recognition and, we believe, a larger installed base of customers. These competitors may be able to adapt more quickly to new or emerging technologies and changes in customer requirements. They may also be able to devote greater resources to the promotion and sale of their services and products than we can. If we fail to compete successfully against current or future competitors, our revenue could increase less than anticipated or decline, and our business could be harmed.

 

Our failure to build brand awareness quickly could compromise our ability to compete and to grow our business.

 

As a result of the anticipated increase in competition in our market, and the likelihood that some of this competition will come from companies with established brands, we believe brand name recognition and reputation will become increasingly important. Our strategy of relying significantly on third-party strategic marketing relationships to find new customers may impede our ability to build brand awareness, as our customers may wrongly believe our Web services and products are those of the parties with which we have strategic marketing relationships. If we do not continue to build brand awareness quickly, we could be placed at a competitive disadvantage to companies whose brands are more recognizable than ours.

 

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If our security measures are breached, our services may be perceived as not being secure, and our business and reputation could suffer.

 

Our Web services involve the storage and transmission of our customers’ proprietary information. Although we employ data encryption processes, an intrusion detection system, and other internal control procedures to assure the security of our customers’ data, we cannot guarantee that these measures will be sufficient for this purpose. If our security measures are breached as a result of third-party action, employee error or otherwise, and as a result our customers’ data becomes available to unauthorized parties, we could incur liability and our reputation would be damaged, which could lead to the loss of current and potential customers. If we experience any breaches of our network security or sabotage, we might be required to expend significant capital and other resources to remedy, protect against or alleviate these and related problems, and we may not be able to remedy these problems in a timely manner, or at all. Because techniques used by outsiders to obtain unauthorized network access or to sabotage systems change frequently and generally are not recognized until launched against a target, we may be unable to anticipate these techniques or implement adequate preventative measures.

 

If we cannot adapt to technological advances, our Web services and products may become obsolete and our ability to compete would be impaired.

 

Changes in our industry occur very rapidly, including changes in the way the Internet operates or is used by small and medium-sized businesses and their customers. As a result, our Web services and products could become obsolete quickly. The introduction of competing products employing new technologies and the evolution of new industry standards could render our existing products or services obsolete and unmarketable. To be successful, our Web services and products must keep pace with technological developments and evolving industry standards, address the ever-changing and increasingly sophisticated needs of our customers, and achieve market acceptance. If we are unable to develop new Web services or products, or enhancements to our Web services or products, on a timely and cost-effective basis, or if new Web services or products or enhancements do not achieve market acceptance, our business would be seriously harmed.

 

Providing Web services and products to small and medium-sized businesses designed to allow them to Internet-enable their businesses is a new and emerging market; if this market fails to develop, we will not be able to grow our business.

 

Our success depends on a significant number of small and medium-sized business outsourcing Website design, hosting, and management as well as adopting other online business solutions. The market for our Web services and products is relatively new and untested. Custom Website development has been the predominant method of Internet enablement, and small and medium-sized businesses may be slow to adopt our template-based Web services and products. Further, if small or medium-sized businesses determine that having an Internet presence is not giving their businesses an advantage, they would be less likely to purchase our Web services and products. If the market for our Web services and products fails to grow or grows more slowly than we currently anticipate, or if our Web services and products fail to achieve widespread customer acceptance, our business would be seriously harmed.

 

We are dependent on our executive officers, and the loss of any key member of this team may compromise our ability to successfully manage our business and pursue our growth strategy.

 

Our future performance depends largely on the continuing service of our executive officers and senior management team, especially those of David Brown, our Chief Executive Officer. Our executives are not contractually obligated to remain employed by us. Accordingly, any of our key employees could terminate their employment with us at any time without penalty and may go to work for one or more of our competitors after the expiration of their non-compete period. The loss of one or more of our executive officers could make it more difficult for us to pursue our business goals and could seriously harm our business.

 

Our growth could strain our resources and our business may suffer if we fail to implement appropriate controls and procedures to manage our growth.

 

We are currently experiencing a period of rapid growth in employees and operations, with our employee base increasing from 654 full-time employees as of March 31, 2007 to 841 full-time employees as of March 31, 2008. This growth has placed, and will continue to place, a strain on our management, administrative, and sales and marketing infrastructure. If we fail to successfully manage our growth, our business could be disrupted, and our ability to operate our business profitably could suffer. We anticipate that further growth in our employee base will be required to expand our customer base and to continue to develop and enhance our Web service and product offerings. To manage the growth of our operations and personnel, we will need to enhance our operational, financial, and management controls and our reporting systems and procedures. This will

 

32



 

require additional personnel and capital investments, which will increase our cost base. The growth in our fixed cost base may make it more difficult for us to reduce expenses in the short term to offset any shortfalls in revenue.

 

We may be unable to protect our intellectual property adequately or cost-effectively, which may cause us to lose market share or force us to reduce our prices.

 

Our success depends, in part, on our ability to protect and preserve the proprietary aspects of our technology, Web services, and products. If we are unable to protect our intellectual property, our competitors could use our intellectual property to market services and products similar to those offered by us, which could decrease demand for our Web services and products. We may be unable to prevent third parties from using our proprietary assets without our authorization. We do not currently rely on patents to protect our core intellectual property, and we have not applied for patents in any jurisdictions inside or outside of the United States. To protect, control access to, and limit distribution of our intellectual property, we generally enter into confidentiality and proprietary inventions agreements with our employees, and confidentiality or license agreements with consultants, third-party developers, and customers. We also rely on copyright, trademark, and trade secret protection. However, these measures afford only limited protection and may be inadequate. Enforcing our rights to our technology could be costly, time-consuming and distracting. Additionally, others may develop non-infringing technologies that are similar or superior to ours. Any significant failure or inability to adequately protect our proprietary assets will harm our business and reduce our ability to compete.

 

If we fail to maintain an effective system of internal controls, we may not be able to accurately or timely report our financial results, which could cause our stock price to fall or result in our stock being delisted.

 

Effective internal controls are necessary for us to provide reliable and accurate financial reports. We will need to devote significant resources and time to comply with the requirements of Sarbanes-Oxley with respect to internal control over financial reporting. In addition, Section 404 under Sarbanes-Oxley requires that we assess and our auditors attest to the design and operating effectiveness of our controls over financial reporting. Our ability to comply with the annual internal control report requirement for our fiscal year ending on December 31, 2008, will depend on the effectiveness of our financial reporting and data systems and controls across our company and our operating subsidiaries. We expect these systems and controls to become increasingly complex to the extent that we integrate acquisitions and our business grows. To effectively manage this complexity, we will need to continue to improve our operational, financial, and management controls and our reporting systems and procedures. Any failure to implement required new or improved controls, or difficulties encountered in the implementation or operation of these controls, could harm our operating results or cause us to fail to meet our financial reporting obligations, which could adversely affect our business and jeopardize our listing on the NASDAQ Global Market, either of which would harm our stock price.

 

We might require additional capital to support business growth, and this capital might not be available on acceptable terms, or at all.

 

We intend to continue to make investments to support our business growth and may require additional funds to respond to business challenges, including the need to develop new services and products or enhance our existing Web services, enhance our operating infrastructure and acquire complementary businesses and technologies. Accordingly, we may need to engage in equity or debt financings to secure additional funds. If we raise additional funds through further issuances of equity or convertible debt securities, our existing stockholders could suffer significant dilution, and any new equity securities we issue could have rights, preferences and privileges superior to those of holders of our common stock. Any debt financing secured by us in the future could involve restrictive covenants relating to our capital raising activities and other financial and operational matters, which may make it more difficult for us to obtain additional capital and to pursue business opportunities, including potential acquisitions. In addition, we may not be able to obtain additional financing on terms favorable to us, if at all. If we are unable to obtain adequate financing or financing on terms satisfactory to us, when we require it, our ability to continue to support our business growth and to respond to business challenges could be significantly impaired.

 

Provisions in our amended and restated certificate of incorporation and bylaws or under Delaware law might discourage, delay, or prevent a change of control of our company or changes in our management and, therefore, depress the trading price of our common stock.

 

Our amended and restated certificate of incorporation and bylaws contain provisions that could depress the trading price of our common stock by acting to discourage, delay, or prevent a change of control of our company or changes in our management that the stockholders of our company may deem advantageous. These provisions:

 

·                   establish a classified board of directors so that not all members of our board are elected at one time;

 

·                   provide that directors may only be removed for cause and only with the approval of 66  2 /3% of our stockholders;

 

33



 

·                   require super-majority voting to amend some provisions in our amended and restated certificate of incorporation and bylaws;

 

·                   authorize the issuance of blank check preferred stock that our board of directors could issue to increase the number of outstanding shares to discourage a takeover attempt;

 

·                   prohibit stockholder action by written consent, which requires all stockholder actions to be taken at a meeting of our stockholders;

 

·                   provide that the board of directors is expressly authorized to make, alter, or repeal our bylaws; and

 

·                   establish advance notice requirements for nominations for elections to our board or for proposing matters that can be acted upon by stockholders at stockholder meetings.

 

Additionally, we are subject to Section 203 of the Delaware General Corporation Law, which generally prohibits a Delaware corporation from engaging in any of a broad range of business combinations with any “interested” stockholder for a period of three years following the date on which the stockholder became an “interested” stockholder and which may discourage, delay, or prevent a change of control of our company.

 

If we do not integrate our services and products, we may lose customers and fail to achieve our financial objectives.

 

Achieving the benefits of the merger will depend in part upon the integration of Web.com’s services and products with those offered by us in a timely and efficient manner. To provide enhanced and more valuable services and products to our customers after, we also need to integrate our sales and development organizations. This may be difficult, unpredictable, and subject to delay because our services and products have been developed, marketed and sold independently and were designed without regard to such integration. If we cannot successfully integrate our services and products and continue to provide customers with enhanced services and products in the future on a timely basis, we may lose customers and our business and results of operations may suffer.

 

We expect to incur significant additional costs integrating the companies into a single business.

 

We incurred substantial non-recurring costs associated with closing the transaction with Web.com. We expect to incur and have established reserves for significant additional costs integrating Web.com’s operations, products and personnel. These costs may include costs for:

 

·                   employee redeployment, relocation or severance;

 

·                   integration of information systems;

 

·                   combining sales teams and processes; and

 

·                   reorganization or closures of facilities.

 

In addition, we do not know whether we will be successful in these integration efforts.

 

We may not realize the anticipated benefits from the acquisition.

 

The acquisition involves the integration of two companies that have previously operated independently. We expect the acquisition of Web.com to result in financial and operational benefits, including increased revenue, cost savings and other financial and operating benefits. We can not assure you, however, that we will be able to realize increased revenue, cost savings or other benefits from the merger, or, to the extent such benefits are realized, that they are realized timely. This integration may also be difficult, unpredictable, and subject to delay because of possible cultural conflicts and different opinions on product roadmaps or other strategic matters. We must integrate or, in some cases, replace, numerous systems, including those involving management information, purchasing, accounting and finance, sales, billing, employee benefits, payroll and regulatory compliance, many of which are dissimilar. Difficulties associated with integrating Web.com’s service and product offering into ours, or with integrating Web.com’s operations into ours, could have a material adverse effect on the combined company and the market price of our common stock.

 

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Charges to earnings resulting from acquisitions may adversely affect our operating results.

 

Under purchase accounting, we allocate the total purchase price to an acquired company’s net tangible assets, intangible assets based on their fair values as of the date of the acquisition and record the excess of the purchase price over those fair values as goodwill. Our management’s estimates of fair value are based upon assumptions believed to be reasonable but are inherently uncertain. Going forward, the following factors could result in material charges that would adversely affect our results:

 

·

 

impairment of goodwill;

 

 

 

·

 

charges for the amortization of identifiable intangible assets and for stock-based compensation;

 

 

 

·

 

accrual of newly identified pre-merger contingent liabilities that are identified subsequent to the finalization of the purchase price allocation; and

 

 

 

·

 

charges to income to eliminate certain Website Pros pre-merger activities that duplicate those of the acquired company or to reduce our cost structure.

 

 

 

We expect to incur additional costs associated with combining the operations of Web.com as well as our previously acquired companies, which may be substantial. Additional costs may include costs of employee redeployment, relocation and retention, including salary increases or bonuses, accelerated amortization of deferred equity compensation and severance payments, reorganization or closure of facilities, taxes and termination of contracts that provide redundant or conflicting services. Some of these costs may have to be accounted for as expenses that would decrease Website Pros’ net income and earnings per share for the periods in which those adjustments are made.

 

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds.

 

Not applicable.

 

Item 3.                                     Defaults Upon Senior Securities

 

Not applicable.

 

Item 4.                                     Submission of Matters to a Vote of Security Holders.

 

Not applicable.

 

Item 5.                                     Other Information

 

Not applicable.

 

35



 

Item 6.                                     Exhibits.

 

Exhibit No.

 

Description of Document

3.1

 

 

Amended and Restated Certificate of Incorporation of Website Pros, Inc.(1)

 

 

 

 

3.2

 

 

Amended and Restated Bylaws of Website Pros, Inc.(2)

 

 

 

 

4.1

 

 

Reference is made to Exhibits 3.1 and 3.2

 

 

 

 

4.2

 

 

Specimen Stock Certificate.(1)

 

 

 

 

4.4

 

 

Warrant dated December 10, 2003, exercisable for 208,405 shares of common stock.(1)

 

 

 

 

4.5

 

 

Warrant dated April 27, 2004, exercisable for 72,942 shares of common stock.(1)

 

 

 

 

10.1

 

 

Lease agreement dated December 4, 2007 between the Registrant and FDG Flagler Center I, LLC.

 

 

 

 

10.2

 

 

Compensatory Arrangements of Certain Officers.(3)+

 

 

 

 

31.1

 

 

CEO Certification required by Rule 13a-14(a) or Rule 15d-14(a).

 

 

 

 

31.2

 

 

CFO Certification required by Rule 13a-14(a) or Rule 15d-14(a).

 

 

 

 

32.1

 

 

Certification required by Rule 13a-14(b) or Rule 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350).(4)

 

 

 

 

32.2

 

 

Certification required by Rule 13a-14(b) or Rule 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350).(4)

 


+

 

Indicates management contract or compensatory plan.

(1)

 

Filed as an Exhibit the Registrant’s registration statement on Form S-1 (No. 333-124349), filed with the SEC on April 27, 2005, as amended, and incorporated herein by reference.

(2)

 

Filed as an Exhibit the Registrant’s current report on Form 8-K (00-51595), filed with the SEC on November 14, 2007, and incorporated herein by reference.

(3)

 

Filed as an exhibit to the Registrant’s current report on Form 8-K (No. 000-51595), filed with the SEC on February 26, 2008.

(4)

 

The certifications attached as Exhibits 32.1 and 32.2 accompanying this Quarterly Report on Form 10-Q, are not deemed filed with the Securities and Exchange Commission and are not to be incorporated by reference into any filing of Website Pros, Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date of this Quarterly Report on Form 10-Q, irrespective of any general incorporation language contained in such filing.

 

36



 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

 

 

Website Pros, Inc.

 

 

(Registrant)

 

 

 

May 12, 2008

 

/s/    K EVIN M. CARNEY        

Date

 

Kevin M. Carney

Chief Financial Officer

(Principal Financial and Accounting Officer)

 

37



 

I NDEX OF E XHIBITS

 

Exhibit No.

 

Description of Document

3.1

 

 

Amended and Restated Certificate of Incorporation of Website Pros, Inc.(1)

 

 

 

 

3.2

 

 

Amended and Restated Bylaws of Website Pros, Inc.(2)

 

 

 

 

4.1

 

 

Reference is made to Exhibits 3.1 and 3.2

 

 

 

 

4.2

 

 

Specimen Stock Certificate.(1)

 

 

 

 

4.4

 

 

Warrant dated December 10, 2003, exercisable for 208,405 shares of common stock.(1)

 

 

 

 

4.5

 

 

Warrant dated April 27, 2004, exercisable for 72,942 shares of common stock.(1)

 

 

 

 

10.1

 

 

Lease agreement dated December 4, 2007 between the Registrant and FDG Flagler Center I, LLC.

 

 

 

 

10.2

 

 

Compensatory Arrangement of Certain Officers.(3)+

 

 

 

 

31.1

 

 

CEO Certification required by Rule 13a-14(a) or Rule 15d-14(a).

 

 

 

 

31.2

 

 

CFO Certification required by Rule 13a-14(a) or Rule 15d-14(a).

 

 

 

 

32.1

 

 

Certification required by Rule 13a-14(b) or Rule 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350).(4)

 

 

 

 

32.2

 

 

Certification required by Rule 13a-14(b) or Rule 15d-14(b) and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. §1350).(4)

 


+

 

Indicates management contract or compensatory plan.

(1)

 

Filed as an Exhibit the Registrant’s registration statement on Form S-1 (No. 333-124349), filed with the SEC on April 27, 2005, as amended, and incorporated herein by reference.

(2)

 

Filed as an Exhibit the Registrant’s current report on Form 8-K (00-51595), filed with the SEC on November 14, 2007, and incorporated herein by reference.

(3)

 

Filed as an exhibit to the Registrant’s current report on Form 8-K (No. 000-51595), filed with the SEC on February 26, 2008 and incorporated herein by reference.

(4)

 

The certifications attached as Exhibits 32.1 and 32.2 accompanying this Quarterly Report on Form 10-Q, are not deemed filed with the Securities and Exchange Commission and are not to be incorporated by reference into any filing of Website Pros, Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, whether made before or after the date of this Quarterly Report on Form 10-Q, irrespective of any general incorporation language contained in such filing.

 

38


Exhibit 10.1

 

LEASE AGREEMENT

 

THIS LEASE AGREEMENT (“ Lease ”) is made as of this 4 th day of December, 2007, by and between FDG Flagler Center I LLC , a Delaware limited liability company, an address of which is 10151 Deerwood Park Boulevard, Building 100, Suite 330, Jacksonville, Florida 32256 (“ Landlord ”) and Website Pros, Inc. , a Delaware corporation, an address of which is 12735 Gran Bay Parkway West, Building 200, Suite 100, Jacksonville, Florida 32258 (“ Tenant ”).

 

1.                                        PROPERTY; TERM.

 

1.1                                  PREMISES.  The Landlord hereby leases to the Tenant and the Tenant hereby leases from the Landlord the building located at 12808 Gran Bay Parkway West, Jacksonville, Florida 32258 (“ Premises ” or “ Building ”), which Premises is deemed to contain 112,306 rentable square feet for all purposes of this Lease. The Premises is situated on the real property described in Exhibit A attached hereto (“ Property ”) and included in a multiple building, business and/or industrial park known as Flagler Center (“ Park ”).

 

1.1.1                   PHASE IN.  Tenant intends to occupy the Building in two phases.  The first phase shall consist of at least 82,682 rentable square feet (the “ Phase I Premises ”), and the second phase shall consist of the remaining rentable square footage of the Building (the “ Phase II Premises ”).  The location and configuration of the space to be included in each phase shall be set forth in Tenant’s Plans (as defined in the Work Letter).

 

1.2                                  COMMON AREAS.  Tenant and its employees and customers will have the nonexclusive right during the Term of this Lease to use the parking areas, streets, driveways, aisles, sidewalks, curbs, delivery passages, loading areas, lighting facilities, and all other areas in the Property designated by Landlord, from time to time, for use by all tenants of the Property in common (collectively, the “ Common Areas ”), in common with Landlord, other tenants of the Property and other persons designated by Landlord.

 

1.3                                  LEASE TERM.  The term of this Lease (the “ Term ”) shall be one hundred thirty-two (132) calendar months plus the portion of the month in which the Phase I Commencement Date (as defined below) occurs if the Phase I Commencement Date is other than the first day of the month.  The Term shall commence as to the Phase I Premises on the 14 th day following the date of Substantial Completion of the Tenant Improvements to the Phase I Premises, as defined in the Work Letter (the “ Phase I Commencement Date ”), which is estimated to be April 1, 2008; provided, however, that Tenant shall have no right to possession of the Phase I Premises until the Security Deposit has been delivered to Landlord (the Security Deposit shall not be deemed delivered to Landlord if it is in the form of a check until that check has cleared the bank and funds have been credited to Landlord’s account) and the Tenant has provided Landlord with a certificate of insurance evidencing the insurance coverages that Tenant is obligated to maintain pursuant to this Lease.  The Term shall commence as to the Phase II Premises on the earlier to occur of (i) the first day of the thirteenth (13 th ) full calendar month of the Term, or (ii)  as to any portion of the Phase II Premises, on the date that Tenant takes possession of such portion of the Phase II Premises, and opens for the conduct of business operations therein (other than any de minimis use)

 

1



 

(the “ Phase II Commencement Date ”).   Landlord and Tenant shall execute a Commencement Agreement substantially in the form of Exhibit C attached hereto once the Phase I Commencement Date has been determined, and shall supplement such Commencement Agreement, as needed, to document any early Phase II Commencement Date(s).

 

1.4                                  HOLDOVER OF CURRENT LEASE.  Landlord and Tenant entered into that certain Lease Agreement dated as of January 17, 2003, as amended by that certain First Amendment to Lease dated as of November 23, 2005 (together, the “ Current Lease ”) for the lease of Suite 100, which is deemed to contain 41,149 rentable square feet, in Flagler Center Building 200, which is located at 12735 Gran Bay Parkway West, Jacksonville, Florida 32258.  The Termination Date, as defined in Section 1.3 of the Current Lease, is hereby extended to the Phase I Commencement Date (the “ Extended Term ”).  During the Extended Term, Tenant shall continue to pay Base Rent at the rate of $41,251.87 per month ($12.03 per rentable square foot per year).

 

1.5                                  RENEWAL TERM.  Tenant shall have the option to renew this Lease as set forth in the attached Renewal Rider.

 

2.                                      RENT AND OTHER CHARGES.

 

2.1                                  BASE RENT.  Tenant agrees to pay rent (“ Base Rent ”) in equal monthly installments on the first day of each month of the term, together with any and all rental, sales or use taxes levied by any governmental body for the use or occupancy of the Premises and any rent or other charges payable hereunder in accordance with the following schedule:

 

Lease
Months

 

Annual Base Rent/
RSF

 

Monthly Base Rent

 

 

 

 

 

 

 

1-4

 

$

0.00

 

$

0.00

 

5-12

 

$

14.25

 

$

98,184.88

*

13-24

 

$

14.68

 

$

137,387.67

 

25-36

 

$

15.12

 

$

141,505.56

 

37-48

 

$

15.57

 

$

145,717.04

 

49-60

 

$

16.04

 

$

150,115.69

 

61-72

 

$

16.52

 

$

154,607.93

 

73-84

 

$

17.02

 

$

159,287.34

 

85-96

 

$

17.53

 

$

164,060.35

 

97-108

 

$

18.05

 

$

169,020.53

 

109-120

 

$

18.59

 

$

174,074.30

 

121-132

 

$

19.15

 

$

179,315.25

 

 


*                                          Calculated based upon 82,682 rentable square feet.

 

2



 

If the Phase I Commencement Date should be a date other than the first day of a calendar month, then the first installment of Base Rent shall be prorated by multiplying the regular monthly installment of Base Rent by a fraction, the numerator of which is the number of days from the Phase I Commencement Date through the final day of the first calendar month of the Term and the denominator of which is the total number of days in the calendar month in which the Phase I Commencement Date occurs (and Tenant shall pay such prorated Base Rent amount to Landlord together with, and at such time as, the installment of Base Rent for the fifth (5 th ) full calendar month of the Term becomes due). In such event, Lease Month 1 would commence on the first day of the calendar month following the month in which the Phase I Commencement Date occurs.

 

Base Rent shall be paid without demand, set off or deduction to Landlord at P.O. Box 862614, Orlando, Florida 32886-2614 or such other address as Landlord directs in writing.

 

2.2                               LATE CHARGES.  If any Base Rent or other payment due under this Lease is not received by Landlord within ten (10) days of the due date of such payment, Tenant shall pay, in addition to such payment a late charge equal to the greater of (i) five percent (5.0%) of the payment which is past due or (ii) Two Hundred Fifty and No/100 Dollars ($250.00).  If any payment due from Tenant shall remain overdue for more than ten (10) days, interest shall accrue daily on the past due amount from the date such amount was due until paid or judgment is entered at a rate equivalent to the lesser of eighteen percent (18%) per annum and the highest rate permitted by law.  Interest on the past due amount shall be in addition to and not in lieu of the five percent (5.0%) late charge or any other remedy available to Landlord (“ Default Rate ”).

 

2.3                                  ADDITIONAL RENT.  All charges payable by Tenant under the terms of this Lease other than Base Rent are called “ Additional Rent .”  Unless this Lease provides otherwise, all Additional Rent shall be paid with the next monthly installment of Base Rent and shall include all applicable sales or use taxes.  The term “ Rent ” shall mean Base Rent and Additional Rent.

 

2.4                                  TAXES.

 

2.4.1                       Personal Property Taxes .  Commencing upon the Phase I Commencement Date, Tenant shall pay, as and when due, all taxes attributable to the personal property, trade fixtures, business, occupancy, or sales of Tenant.

 

2.4.2                       Real Estate Taxes .  Commencing upon the Phase I Commencement Date, Tenant shall pay, as and when due, all real estate taxes, personal property taxes and other ad valorem taxes, and any other levies, charges, local improvement rates, impositions and assessments whatsoever assessed or charged against the Property and/or the Building, the equipment and improvements therein contained which are part of the Building, and including any amounts assessed or charged in substitution for or in lieu of any such taxes (collectively, “ Real Estate Taxes ”), levied or assessed against the Property and/or the Building by any lawful authority for each calendar year or portion thereof during the period between the Phase I Commencement Date and the expiration of the Term.  Landlord shall provide Tenant with all tax bills which are the Tenant’s responsibility hereunder and such payments shall be made by Tenant directly to the taxing authorities prior to any delinquency.  Tenant shall provide Landlord with paid tax receipts or, if not available, other proof of payment reasonably acceptable to Landlord,

 

3



 

on or before the date that the Real Estate Taxes would be deemed to be delinquent (i.e., the date that penalties would start to accrue).  If Tenant does not pay Real Estate Taxes by the aforesaid date, Landlord shall have the right to pay the Real Estate Taxes and Tenant shall reimburse Landlord within thirty (30) days of receipt of demand for payment by Landlord.  The Real Estate Taxes are to be prorated for any partial lease year occurring at the beginning or end of the Term during the period in which the taxing authority assesses Real Estate Taxes.  In the event that Tenant does not pay Real Estate Taxes prior to delinquency for any calendar year due to any act or omission of Tenant, then Landlord shall have the right to thereafter elect to pay the Real Estate Taxes for the remainder of the Term of the Lease; whereupon Tenant shall promptly reimburse Landlord within thirty (30) days after written demand therefor from Landlord to Tenant.

 

2.4.3                         Contesting Taxes .  If Tenant desires, as determined by Tenant in its reasonable business judgment, to contest the validity or amount of any tax, assessment, levy, or other governmental charge agreed to in this Lease to be paid by Tenant, Tenant shall be permitted to do so, upon posting of adequate security or the payment of amounts, all as may be required by Applicable Laws (as defined in Section 3.2 hereof), to prevent loss of title to the Property and the Building and after giving Landlord prior written notice of Tenant’s intent to contest the taxes for the applicable year.  So long as Tenant complies with the foregoing, Landlord shall cooperate with Tenant (at no expense to Landlord) and execute any document which may be reasonably necessary for any such contest proceeding.  Nothing herein shall be deemed to limit Landlord’s right to contest any tax, assessment, levy or government charge imposed against the Property and/or the Building, which right, with respect to ad valorem real property taxes, shall be exercised by Landlord in its reasonable business judgment.  The foregoing restriction on Tenant’s ability to contest the validity or amount of any tax, assessment, levy, or other governmental charge agreed to in this Lease to be paid by Tenant shall only be deemed to apply to Real Estate Taxes and shall not be deemed to apply to any personal property taxes, which are payable by Tenant on its personalty in the Premises.

 

2.4.4                         Receipts .  Upon written request of Landlord, during the Term of this Lease, Tenant shall obtain and deliver to Landlord paid receipts for all taxes, assessments, and other items required under this Lease to be paid by Tenant.

 

2.4.5                         Exclusions .  Real Estate Taxes shall not include any franchise, transfer, gains, inheritance, estate, mortgage recording, and income taxes imposed upon Landlord.

 

2.4.6                         Separate Parcel .  Landlord shall, at its expense, apply for and diligently follow such procedures as are necessary to have the Property (including the Building) taxed by the applicable governmental authorities as a parcel separate from the other parcel(s) included in Landlord’s tax bills, so that Tenant will be in a position to pay and/or contest Real Estate Taxes on its own, subject to the terms of this Section 2.4.  If the Property and the Building are taxed or assessed as a separate parcel, Landlord shall direct the tax authority to send the tax bills for the Property and the Building directly to Tenant’s address during the Term hereof.  If the Property and/or the Building are not taxed or assessed as a separate parcel, then:  (a) Tenant’s share of Real Estate Taxes shall be determined by multiplying such taxes or assessments in the entire tax bill by a fraction, the numerator of which is the total value of the Property and the Building and the denominator of which is the total value of all land included in the tax bill, and Landlord shall

 

4



 

provide such determination to Tenant in writing, together with a copy of the applicable tax bill, no later than thirty (30) days prior to the due date of such Real Estate Taxes for the applicable year.

 

2.4.7                         Tax Credits .  Any tax credits or other municipal, county, or state incentives received as part of the Governmental Incentives (as defined in Section 11.24) or similar incentives shall inure to the benefit of the Tenant.

 

2.5                                  ELECTRICITY.  Commencing upon the Phase I Commencement Date, Tenant shall pay for all costs and fees incurred in connection with the provision and use of electricity at the Building, including, without limitation, the parking areas therefor, as separately metered in Tenant’s name.

 

2.6                                  OPERATING EXPENSES.

 

2.6.1                         Tenant Operating Expenses Except as otherwise expressly set forth in this Lease, from and after the Phase I Commencement Date, Tenant shall be solely responsible, at Tenant’s sole cost and expense, for the maintenance, operation, repair, replacement (regardless of whether such replacement is required under any Applicable Law that was not in effect or not applicable to the Premises or the Park on the Phase I Commencement Date) and administration of the Building and the Property, including, without limitation: (i) water, sewer, gas, and other utility charges (including electricity charges, as provided above) for the Building and the Property; and (ii) window washing, janitorial services (to be provided in the manner that such services are customarily furnished in comparable office buildings in the area), rest room supplies and other maintenance expenses in connection with the Building (collectively, the “ Tenant Operating Expenses ”).  It is understood that Tenant may desire, at some point during the Term, to maintain all or portions of the Building Systems (as defined in Section 7.1) in lieu of Landlord providing such services pursuant to Section 7.1 of this Lease.  In such event, Landlord and Tenant shall negotiate in good faith regarding (i) the Buildings Systems to be maintained by Tenant and the reasonable performance standards relating thereto, (ii) the timing of any such transition of maintenance obligations, and (iii) the reasonable and appropriate adjustments of the operating expense and maintenance provisions of this Lease.

 

2.6.2                         Landlord Operating Expenses In addition, Tenant shall be responsible to reimburse and/or pay Landlord for the following expenses: (i) insurance that the Landlord is obligated or permitted to obtain under this Lease and any deductible amount applicable to any claim made by the Landlord under such insurance; (ii) ninety percent (90%) of Landlord’s equitable allocation to the Building (which allocation is based upon the duties associated with a “full service” lease) of wages and benefits payable to those employees of Landlord and Landlord’s property manager whose duties are directly connected with the property management of the Building or the Property, including, without limitation, the operation and maintenance thereof, which allocation shall not exceed $0.40 per rentable square foot of the Building for calendar year 2008; (iii) the dues and assessments under any applicable deed restrictions or declarations of covenants and conditions; (iv) landscaping, ground maintenance and pest control for the Building and the Property; and (v)  a management fee equal to three percent (3%) of the

 

5



 

annual Rent for the Building (collectively, the “ Landlord Operating Expenses ”).  Additionally, the cost of Landlord’s Maintenance Obligations (as defined in Section 7.1) (excluding any costs for capital improvements) shall also be included in Landlord Operating Expenses.

 

2.6.3                         Payment of Landlord Operating Expenses .  In addition to the payment of Base Rent, commencing on the Phase I Commencement Date, Tenant shall pay one hundred percent (100%) of the Landlord Operating Expenses to Landlord.  On or before March 31st of each calendar year, Landlord shall provide a good faith estimate of the Landlord Operating Expenses for that calendar year (the “ Estimate Statement ”).  Tenant shall remit monthly one-twelfth (1/12 th ) of the amount set forth in the Estimate Statement (the “ Estimated Payment ”) as Additional Rent together with its payments of Base Rent; provided that Landlord may invoice Tenant retroactively for the months of January through the month of issuance of the Estimate Statement.  On or before March 31 st of each calendar year, Landlord shall send a statement to Tenant detailing all actual Landlord Operating Expenses for the prior calendar year (the “ Landlord Operating Expense Statement ”).  If the Landlord Operating Expense Statement indicates that the total Estimated Payments made by Tenant during the preceding year exceeded the actual Landlord Operating Expenses for such year, then, at Landlord’s option (except upon the expiration of the Term, whereupon a refund shall automatically be given, if applicable), Tenant shall be given either: (i) a credit against its next due Estimated Payment, or (ii) a refund, in the amount of the difference between the Estimated Payments made in the preceding year and the actual Landlord Operating Expenses for such year.  If the Landlord Operating Expense Statement indicates that the actual Landlord Operating Expenses exceeded the Estimated Payments, then Tenant shall remit the difference to Landlord as Additional Rent within thirty (30) days after Tenant’s receipt of the applicable Landlord Operating Expense Statement.  Landlord’s failure to provide a statement shall not prejudice Landlord’s right to collect a shortfall or Tenant’s right to receive a credit or refund for over payments.  Any obligation of Landlord or Tenant to remit any overpayment or underpayment pursuant to this Section shall survive the expiration of the Term or earlier termination of this Lease.

 

3.0                                  USE OF PROPERTY.

 

3.1                                  PERMITTED USES.  Tenant may use the Premises only for the following Permitted Use: general office (which includes, but is not limited to, use of the Premises as a call, technology and operations center), unless Landlord gives written consent in advance of any other use of the Premises, which consent may be withheld in Landlord’s sole discretion.  Landlord represents that, to the best of its knowledge, the Applicable Laws permit the Premises to be used for the Permitted Use.  Tenant shall not create a nuisance or use the Premises for any illegal or immoral purpose.

 

3.2                                  COMPLIANCE WITH LAWS.  During the Term, Tenant shall comply with all federal, state and local laws, ordinances, building codes, and rules and regulations of governmental entities having jurisdiction over the Property and/or the Building, including but not limited to the Board of Fire Underwriters and the Americans with Disabilities Act (the “ ADA ”) and all regulations and orders promulgated pursuant to the ADA (collectively, “ Applicable

 

6



 

Laws ”) , and shall promptly comply with all governmental orders and directives for the correction, prevention, and abatement of any violation of Applicable Laws in, upon, or connected with the Property and/or the Building, all at Tenant’s sole expense.  Tenant warrants that all improvements or alterations of the Premises made by Tenant or Tenant’s employees, agents or contractors, either prior to Tenant’s occupancy of the Premises or during the Term, will comply with all Applicable Laws.  Tenant will procure at its own expense all permits and licenses required for the transaction of its business in the Premises.  In addition, Tenant warrants that its use of the Premises will be in strict compliance with all Applicable Laws.  During the Term, Tenant shall, at its sole cost and expense, make any modifications to the Premises, the Building and/or the Property that may be required pursuant to any Applicable Laws.  Notwithstanding the foregoing to the contrary, Landlord shall be solely responsible, at Landlord’s expense, for making any modifications to the Premises, the Building and/or the Property required as a result of Landlord’s failure to comply with Applicable Laws in connection with Landlord’s obligations under the Work Letter.

 

3.3                                  HAZARDOUS MATERIAL.  T hroughout the Term, Tenant will prevent the presence, use, generation, release, discharge, storage, disposal, or transportation of any Hazardous Materials (as hereinafter defined) on, under, in, above, to, or from the Premises, except that Hazardous Materials may be used in the Premises as necessary for the customary maintenance of the Premises provided that same are used, stored and disposed of in strict compliance with Applicable Laws.  For purposes of this provision, the term “ Hazardous Materials ” will mean and refer to any wastes, materials, or other substances of any kind or character that are or become regulated as hazardous or toxic waste or substances, or which require special handling or treatment, under any Applicable Laws.

 

If Tenant’s activities at the Premises or Tenant’s use of the Premises (a) result in a release of Hazardous Materials that is not in compliance with Applicable Laws or permits issued thereunder; (b) gives rise to any claim or requires a response under Applicable Laws or permits issued thereunder; (c) causes a significant public health effect; or (d) creates a nuisance, then Tenant shall, at its sole cost and expense:  (i) immediately provide verbal notice thereof to Landlord as well as notice to Landlord in the manner required by this Lease, which notice shall identify the Hazardous Materials involved and the emergency procedures taken or to be taken; and (ii) promptly take all action in response to such situation required by Applicable Laws, provided that Tenant shall first obtain Landlord’s approval of the non-emergency remediation plan to be undertaken.

 

Tenant shall at all times indemnify and hold harmless Landlord against and from any and all claims, suits, actions, debts, damages, costs, losses, obligations, judgments, charges and expenses (including reasonable attorneys’ fees) of any nature whatsoever suffered or incurred by Landlord to the extent they were caused by the following activities of Tenant at the Building and/or the Property during the Term of this Lease and arise from events or conditions which came into existence after the Phase I Commencement Date:  (i) any release, threatened release, or disposal of any Hazardous Materials at the Building and/or the Property, or (ii) the violation of any Applicable Laws at the Building and/or the Property, pertaining to protection of the environment, public health and safety, air emissions, water discharges, hazardous or toxic substances, solid or hazardous wastes or occupational health and safety.

 

7



 

3.4                                  SIGNS AND AUCTIONS.  Subject to the following provisions of this paragraph, Tenant shall be entitled to two (2) signs on the exterior façade of the Building, and one (1) monument sign outside of the Building.  Prior to installation of the signs, Tenant shall submit a drawing of the proposed signs, which shall detail the size, color, design, lighting and method of attachment to the Building, to Landlord for approval, which shall not be unreasonably withheld.  After Landlord has approved Tenant’s signs, Tenant shall cause the signs to be manufactured at its sole expense.  Landlord shall arrange for installation of the signs, at Tenant’s expense, with the exact placement of the signs subject to Landlord’s prior approval, which shall not be unreasonably withheld.  Tenant shall not place any other signs on the Building or Park except with the prior written consent of the Landlord, including consent as to location and design, which may be withheld in Landlord’s sole discretion.  Any and all such approved signs shall be installed and shall be maintained by Tenant, at its sole cost and expense and shall be in compliance with the Rules and Regulations and all Applicable Laws.  Tenant shall be responsible to Landlord for the installation, use, or maintenance of all signs and any damage caused thereby.  Tenant agrees to remove all signs prior to termination of the Lease and upon such removal to repair all damage incident to such removal.  Landlord shall, at Landlord’s expense, install directional and building identification signs at the entrances to the Property.

 

3.5                                  ACCESS.

 

3.5.1                         Landlord’s Access .  Landlord shall be entitled at all reasonable times and upon reasonable notice to enter the Premises to examine them and to make such repairs, alterations, or improvements thereto as Landlord is required by this Lease to make or which Landlord considers necessary.  Tenant shall not unduly obstruct any pipes, conduits, or mechanical or other electrical equipment so as to prevent reasonable access thereto.  Landlord shall exercise its rights under this section, to the extent possible in the circumstances, in such manner so as to minimize interference with Tenant’s use and enjoyment of the Premises.  Landlord and its agents have the right to enter the Premises at all reasonable times and upon reasonable notice to show them to prospective purchasers, lenders, or anyone having a prospective interest in the Building, and, during the last six months of the Term or any renewal thereof, to show them to prospective tenants.  Landlord will have the right at all times to enter the Premises without prior notice to Tenant in the event of an emergency affecting the Premises.

 

3.5.2                         Tenant’s Access .  Tenant shall have access to the Premises twenty-four (24) hours per day, seven (7) days per week, 365 days per year, subject to Applicable Laws.

 

3.6                                  QUIET POSSESSION.  If Tenant pays all Rent and fully performs all of its obligations under this Lease, Tenant shall be entitled to peaceful and quiet enjoyment of the Premises for the Term without interruption or interference by Landlord or any person claiming through Landlord.

 

3.7                                  INTENTIONALLY DELETED.

 

3.8                                  PARKING.  Tenant shall have the right to use 515 parking spaces associated with the Building, as shown on attached Exhibit A-1 Additionally, commencing on the Phase II

 

8



 

Commencement Date, Tenant shall have the right to use up to an additional 105 parking spaces adjacent to Flagler Center 300, in the location depicted on attached Exhibit A-1 .  Alternatively, if Nuvell Financial Services Corp. does not renew its lease of Lakeside Four prior to the expiration thereof in September 2009, Tenant shall have the option of using up to 105 parking spaces adjacent to Lakeside Four, in the location depicted on attached Exhibit A-1 , in lieu of using the parking spaces associated with Flagler Center 300. All motor vehicles (including all contents thereof) shall be parked in such spaces at the sole risk of Tenant, its employees, agents, invitees and licensees, it being expressly agreed and understood that Landlord has no duty to insure any of said motor vehicles (including the contents thereof), and that Landlord is not responsible for the protection and security of such vehicles, or the contents thereof.

 

3.9                                  RULES AND REGULATIONS.  Tenant shall observe all reasonable rules and regulations established by Landlord from time to time for the Building.  The rules and regulations in effect as of the date hereof are attached to and made a part of this Lease as Exhibit B .  Landlord will have the right at all times to change and amend the rules and regulations in any reasonable manner as it may deem advisable for the safety, care and operation or use of the Park or the Premises.

 

3.10                            INSTALLATION OF GENERATOR.  Tenant shall have the right to install, at Tenant’s sole cost and expense, a generator for Tenant’s exclusive use in the location specified on Exhibit A-2 attached hereto.  The size and type of the generator shall be subject to Landlord’s prior written approval, which shall not be unreasonably withheld.  Tenant shall be responsible for installation of all necessary equipment associated with the generator as well as any screening required by Landlord, Applicable Laws or covenants and restrictions of record. Landlord shall have the right to require and approve screening for such generator, but such approval shall not be deemed to be a representation or warranty that the screening complies with Applicable Law or covenants and restrictions of record.   Tenant shall operate, maintain and repair the generator, at Tenant’s sole expense, in a fully operable condition and in compliance with the manufacturer’s specifications and all Applicable Laws.  In the event that any modification to the area in which the generator is installed, including screening thereof, is at any time required by any Applicable Law or any covenant or restriction of record, Tenant shall commence such modification within thirty (30) days after receipt of notice thereof from Landlord or any governmental agency and shall diligently pursue such modification to completion.  If Tenant fails to commence such modification with such thirty (30) day period or diligently pursue such modification to completion, Landlord shall be entitled to make such modifications and charge the amount of such modifications to Tenant as Additional Rent.  Tenant shall be responsible for the cost of any electricity used by the generator or its associated equipment.  On or before the final day of the Term, Tenant shall remove the generator and its associated equipment from the Property and repair any damage caused thereby.  Tenant hereby agrees to indemnify, defend and hold Landlord harmless for any and all liabilities, claims, damages, injuries or losses, including, without limitation, all costs, expenses, court costs and reasonable attorney’s fees imposed on Landlord by any person whomsoever caused by or resulting from the installation, operation, maintenance, removal or repair of the generator or associated equipment, except for any such liability, claim, damage, injury or loss caused by Landlord, its employees, agents or contractors.

 

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4.0                                  TENANT ALTERATIONS AND IMPROVEMENTS.

 

4.1                                  TENANT IMPROVEMENTS.  Landlord shall construct the Tenant Improvements in accordance with the terms of Exhibit D attached hereto (the “ Work Letter ”).  If any improvements, modifications or alterations, beyond those specified in the Work Letter, are required for Tenant’s occupancy of the Premises, Tenant will be solely responsible for all associated expenses.  After the Phase I Commencement Date, if any improvements, modifications or alterations are required by any governmental body or due to any Applicable Law as a result of Tenant’s use of the Premises, Tenant will be solely responsible for all associated costs.

 

4.2                                  TENANT ALTERATIONS.  Tenant will not make or allow to be made any alterations in or to the Premises without first obtaining the written consent of Landlord, which consent may be granted or withheld in Landlord’s reasonable discretion; provided, however, that Landlord’s consent shall not be required for interior, nonstructural alterations which do not impact the Building Systems and which cost less than $150,000.00 in the aggregate to perform each alteration project, but Tenant shall notify Landlord of any such interior, nonstructural alterations.  For alterations that require Landlord’s consent, Landlord shall have ten (10) business days within which to review any submission by Tenant to Landlord of the plans and specifications therefor.  Landlord may require Tenant to provide demolition and/or lien and completion bonds in form and amount satisfactory to Landlord.  All Tenant alterations will be accomplished in a good and workmanlike manner at Tenant’s sole expense, in conformity with all Applicable Laws by a licensed and bonded contractor approved in advance by Landlord, such approval of contractor not to be unreasonably withheld or delayed.  All contractors performing alterations in the Premises shall carry workers’ compensation insurance, commercial general liability insurance, automobile insurance and excess liability insurance in amounts reasonably acceptable to Landlord and shall deliver a certificate of insurance evidencing such coverages to Landlord prior to commencing work in the Premises.  Upon completion of any such work, Tenant shall provide Landlord with “as built” plans, copies of all construction contracts, and proof of payment for all labor and materials.  Any Tenant alterations to the Premises made by or installed by either party hereto will remain upon and be surrendered with the Premises and become the property of Landlord upon the expiration or earlier termination of this Lease without credit to Tenant; provided, however, Landlord, at it option, may require Tenant to remove any additions and/or repair any alterations to restore the Premises to the condition existing at the time Tenant took possession, with all costs of removal, repair, restoration, or alterations to be borne by Tenant.  This clause will not apply to moveable equipment, furniture or moveable trade fixtures owned by Tenant, which may be removed by Tenant at the end of the Lease Term if Tenant is not then in default and if such equipment and furniture are not then subject to any other rights, liens and interests of Landlord.  Tenant will have no authority or power, express or implied, to create or cause any construction lien or mechanics’ or materialmen’s lien or claim of any kind against the Premises, the Park or any portion thereof.  Tenant will promptly cause any such liens or claims to be released by payment, bonding or otherwise within thirty (30) days after request by Landlord, and will indemnify Landlord against losses arising out of any such claim including, without limitation, legal fees and court costs.  NOTICE IS HEREBY GIVEN THAT LANDLORD WILL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIAL FURNISHED OR TO BE FURNISHED TO TENANT, OR

 

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TO ANYONE HOLDING THE PREMISES THROUGH OR UNDER TENANT, AND THAT NO MECHANICS’ OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS WILL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN THE PREMISES.  TENANT WILL DISCLOSE THE FOREGOING PROVISIONS TO ANY CONTRACTOR ENGAGED BY TENANT PROVIDING LABOR, SERVICES OR MATERIAL TO THE PREMISES.

 

5.0                                  INSURANCE AND INDEMNITY.

 

5.1                                  TENANT’S INSURANCE.

 

5.1.1.                      Tenant will throughout the Term (and any other period when Tenant is in possession of the Premises) carry and maintain, at its sole cost and expense, the following types of insurance, which shall provide coverage on an occurrence basis, with respect to the Premises, in the amounts specified with deductible amounts reasonably satisfactory to Landlord:

 

(a)                                   Commercial General Liability Insurance .  Commercial general liability (“ CGL ”) insurance covering claims arising from personal injury, death and property damage occurring in or about the Premises, the Building and the Common Areas with minimum limits of $1,000,000.00 per occurrence and $2,000,000.00 general aggregate.  The CGL policy shall include contractual liability coverage of all liabilities arising pursuant to the Lease.

 

(b)                                  Comprehensive Automobile Liability Insurance .  Comprehensive automobile liability insurance with a limit of not less than $1,000,000.00 per occurrence for bodily injury, $500,000.00 per person and $100,000.00 property damage or a combined single limit of $1,000,000 for both owned and non-owned vehicles.

 

(c)                                   Excess Liability Insurance .  Tenant shall also carry and maintain excess liability insurance with a limit of not less than $3,000,000.00 per occurrence.

 

(d)                                  Property Insurance .  Insurance of personal property, decorations, trade fixtures, furnishings, equipment, alterations, leasehold improvements and betterments made by Tenant on a replacement cost basis, with coverage equal to not less than ninety percent (90%) of the full replacement value of all insured property.  In the event any casualty occurs, Tenant agrees to pay the difference between the insurance coverage required to be maintained by this subparagraph 5.1(d) and an insurance policy offering coverage of one hundred percent (100%) of the full replacement value of the insured property.  Tenant’s policy will also include business interruption/extra expense coverage in sufficient amounts.

 

(e)                                   Workers’ Compensation and Employers’ Liability Insurance .  Workers’ Compensation Insurance covering all employees of Tenant, as required by the laws of the State of Florida, and Employers’ Liability coverage subject to a limit of no less than $500,000 for bodily injury by accident per accident/$500,000 for bodily injury by disease per employee/$1,000,000 for bodily injury by disease policy limit.

 

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5.1.2                         Policy Form .  All policies referred to above shall:  (i) be taken out with insurers licensed to do business in Florida having an A.M Best’s rating of A-, Class IX, or otherwise approved in advance by Landlord; (ii) name Landlord and Landlord’s property manager as additional insureds; (iii) be non-contributing with, and shall apply only as primary and not as excess to any other insurance available to the Landlord or any mortgagee of Landlord; and (iv) contain an obligation of the insurers to notify the Landlord by certified mail not less than thirty (30) days prior to any material change, cancellation, or termination of any such policy.  Certificates of insurance on Acord Form 25-S on or before the Phase I Commencement Date and thereafter at times of renewal or changes in coverage or insurer, and if required by a mortgagee, copies of such insurance policies certified by an authorized officer of Tenant’s insurer as being complete and current, shall be delivered to the Landlord promptly upon request.  If (a) the Tenant fails to take out or to keep in force any insurance referred to in this Section 5.1, or should any such insurance not be approved by either the Landlord or any mortgagee, and (b) the Tenant does not commence and continue to diligently cure such default within forty-eight (48) hours after written notice by the Landlord to Tenant specifying the nature of such default, then the Landlord has the right, without assuming any obligation in connection therewith, to procure such insurance at the sole cost of the Tenant, and all outlays by the Landlord shall be paid by the Tenant to the Landlord without prejudice to any other rights or remedies of the Landlord under this Lease.  The Tenant shall not keep or use in the Premises any article that may be prohibited by any fire or casualty insurance policy in force from time to time covering the Building.

 

5.2                                  LANDLORD’S INSURANCE.  During the Term, Landlord will carry and maintain the following types of insurance: (i) property insurance on the Building covering “All Risks” perils in an amount equal to the full replacement cost of the Building (excluding any property with respect to which the Tenant and other tenants are obliged to insure pursuant to Section 5.1 or similar sections of their respective leases); and (ii) commercial general liability insurance with respect to the Landlord’s operations in the Park

 

5.3                                  RELEASE AND WAIVER OF SUBROGATION RIGHTS.  The parties hereto, for themselves and anyone claiming through or under them, hereby release and waive any and all rights of recovery, claim, action or cause of action, against each other, their respective agents, directors, officers and employees, for any loss or damage to all property, whether real, personal or mixed, located in the Building, by reason of any cause against which the releasing party is actually insured or, regardless of the releasing party’s actual insurance coverage, against which the releasing party is required to be insured pursuant to the provisions of Sections 5.1 or 5.2.  This mutual release and waiver shall apply regardless of the cause or origin of the loss or damage, including negligence of the parties hereto, their respective agents and employees except that it shall not apply to willful conduct.  Each party agrees to provide the other with reasonable evidence of its insurance carrier’s consent to such waiver of subrogation upon request.  This Section 5.3 supersedes any provision to the contrary which may be contained in this Lease.

 

5.4                                  INDEMNIFICATION OF THE PARTIES.

 

5.4.1                         Tenant’s Indemnity .  Tenant hereby agrees to indemnify, defend and hold harmless Landlord from and against any and all liability for any loss, injury or damage, including,

 

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without limitation, consequential damage including, without limitation, all costs, expenses, court costs and reasonable attorneys’ fees, imposed on Landlord by any person whomsoever that occurs (i) in the Premises, except for any such loss, injury or damage that is caused by or results from the gross negligence or willful misconduct of Landlord, its employees or agents; or (ii) anywhere in the Park outside of the Premises as a result of the negligence or willful misconduct of Tenant, its employees, agents or contractors.

 

5.4.2                         Landlord’s Indemnity .  Landlord hereby indemnifies Tenant from, and agrees to hold Tenant harmless against, any and all liability for any loss, injury or damage, including, without limitation, all costs, expenses, court costs and reasonable attorneys’ fees, imposed on Tenant by any person whomsoever, that occurs in the Building or anywhere on the Park and that is caused by or results from the negligence or willful misconduct of Landlord or its employees or agents except that Landlord shall only be obligated to indemnify Tenant for damages arising from Landlord’s negligence or willful misconduct in the Premises .

 

The provisions of this Section 5.4 shall survive the expiration or earlier termination of this Lease.

 

6.                                        DAMAGE, DESTRUCTION AND CONDEMNATION

 

6.1                                  DESTRUCTION OR DAMAGE TO PREMISES.  If the Premises are at any time damaged or destroyed in whole or in part by fire, casualty or other causes, Landlord shall have sixty (60) days from such damage or destruction to determine and inform Tenant whether Landlord will restore the Premises to substantially the condition that existed immediately prior to the occurrence of the casualty.  If Landlord elects to rebuild, Landlord shall complete such repairs to the extent of insurance proceeds within one hundred and eighty (180) days from the end of the sixty (60) day period.  If such repairs have not been completed within that 180-day period, and Tenant desires to terminate the Lease as a result thereof, then Tenant must notify Landlord prior to Landlord’s completion of the repairs of Tenant’s intention to terminate this Lease.  Landlord shall then have ten (10) days after Landlord’s receipt of written notice of Tenant’s election to terminate to complete such repairs (as evidenced by a certificate of completion).  If Landlord does complete such repairs prior to the expiration of such ten-day cure period, Tenant shall have no such right to terminate this Lease.  Tenant shall, upon substantial completion by Landlord, promptly and diligently, and at its sole cost and expense, repair and restore any improvements to the Premises made by Tenant to the condition which existed immediately prior to the occurrence of the casualty.  If, in Landlord’s reasonable estimation, the Premises cannot be restored within two hundred forty (240) days of such damage or destruction, then either Landlord or Tenant may terminate this Lease as of a date specified in such notice, which date shall not be less than thirty (30) nor more than sixty (60) days after the date such notice is given.  Until the restoration of the Premises is complete, there shall be an abatement or reduction of Base Rent in the same proportion that the square footage of the Premises so damaged or destroyed and under restoration bears to the total square footage of the Premises, unless the damaging event was caused by the negligence or willful misconduct of Tenant, its employees, officers, agents, licensees, invitees, visitors, customers, concessionaires, assignees, subtenants, contractors or subcontractors, in which event there shall be no such abatement.

 

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Notwithstanding the foregoing provisions of this paragraph, if damage to or destruction of the Premises in excess of fifty percent (50%) of the value of the Premises shall occur within the last year of the Term, as the same may be extended as provided hereinafter, the obligation of Landlord to restore the Premises shall not arise unless (i) Landlord, at its sole option, elects to restore such work; (ii) Landlord, at its sole option, elects to provide Tenant with the opportunity of extending the Term for an additional period so as to expire five (5) years from the date of the completion by Landlord of the repairs and restoration to the Premises; and (iii) Tenant gives written notice to Landlord within thirty (30) days after Landlord’s request that Tenant agrees to such extension.  Such extension shall be on the terms and conditions provided herein, if an option to extend this Lease remains to be exercised by Tenant hereunder, or under the terms prescribed in Landlord’s notice, if no such further extension period is provided for herein.  Upon receipt of such notice from Tenant, Landlord agrees to repair and restore the Premises within a reasonable time.  If Tenant fails to timely extend the Term as provided herein, Landlord at its option shall have the right to terminate this Lease as of the date of the damaging event, or to restore the Premises and the Lease shall continue for the remainder of the then unexpired Term, or until the Lease is otherwise terminated as provided herein.

 

6.2                                  CONDEMNATION.

 

6.2.1                         Total or Partial Taking .  If the whole of the Premises (provided that if 60% or more of the Premises are taken, the Tenant may deem that all of the Premises are taken), or such portion thereof as will make the Premises unusable, in Landlord’s judgment, for the purposes leased hereunder, shall be taken by any public authority under the power of eminent domain or sold to public authority under threat or in lieu of such taking, the Term shall cease as of the day possession or title shall be taken by such public authority, whichever is earlier (“ Taking Date ”), whereupon the rent and all other charges shall be paid up to the Taking Date with a proportionate refund by Landlord of any rent and all other charges paid for a period subsequent to the Taking Date.  If less than the whole of the Premises, or less than such portion thereof as will make the Premises unusable as of the Taking Date, is taken, Base Rent and other charges payable to Landlord shall be reduced in proportion to the amount of the Premises taken.  If this Lease is not terminated, Landlord shall repair any damage to the Premises caused by the taking to the extent necessary to make the Premises reasonably tenantable within the limitations of the available compensation awarded for the taking (exclusive of any amount awarded for land).

 

6.2.2                         Award .  All compensation awarded or paid upon a total or partial taking of the Premises or Building including the value of the leasehold estate created hereby shall belong to and be the property of Landlord without any participation by Tenant; Tenant shall have no claim to any such award based on Tenant’s leasehold interest.  However, nothing contained herein shall be construed to preclude Tenant, at its cost, from independently prosecuting any claim directly against the condemning authority in such condemnation proceeding for damage to, or cost of removal of, stock, trade fixtures, furniture, and other personal property belonging to Tenant; provided, however, that no such claim shall diminish or otherwise adversely affect Landlord’s award or the award of any mortgagee.

 

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7.                                        MAINTENANCE AND REPAIRS.

 

7.1                                  LANDLORD’S OBLIGATIONS.  Landlord shall keep the foundation, roof and structural portions of exterior walls of the improvements on the Building, and the HVAC, electrical, mechanical, plumbing, fire, and life safety systems serving the Building (collectively, the “ Building Systems ”), and the entrances, sidewalks, parking areas and other facilities from time to time comprising the Common Areas, in good order, condition and repair (“ Landlord’s Maintenance Obligations ”).  In addition, but subject nevertheless to any applicable waiver or subrogation, Landlord may charge to Tenant as Additional Rent the cost of any repairs of damage to the roof, foundation or structural portions or walls caused by Tenant’s acts or omissions.  The cost of Landlord’s Maintenance Obligations (excluding any costs for capital improvements) shall be included in Landlord Operating Expenses.  Landlord shall not be obligated to maintain or repair windows, doors, plate glass or the surfaces of walls of the Premises.  Landlord shall not be obligated to make any repairs under this Section 7.1 until a reasonable time after receipt of a written notice from Tenant specifying the need for such repairs and thereafter Landlord shall commence such repairs within five (5) business days.

 

7.2                                  TENANT’S OBLIGATIONS.

 

7.2.1                         Except as specifically provided to the contrary in Section 7.1 above, Tenant shall at its expense throughout the Term and all renewals and extensions thereof, maintain the Building and the Property, including, without limitation, the interior walls and ceilings, electric light fixtures, bulbs, tubes and tube casings, doors, windows, floor and wall coverings, loading areas, levelers, plumbing fixtures, entrances, sidewalks, corridors, parking areas and other facilities from time to time comprising the Building and the Property (as well as the Tenant’s furniture, fixtures, equipment and other personal property in the Building), in good order, condition and repair as befitting a comparable office building in Jacksonville, Florida.  Landlord shall extend to Tenant the benefit from warranties on such items, if any, that have been made by Landlord’s contractors or the manufacturer of such items.  Tenant acknowledges and agrees that Landlord shall have no obligation to perform any maintenance, repair, replacement or other structural or non-structural alterations in or to the Building except as expressly set forth in Sections 6 and 7.1.

 

7.2.2                         All of Tenant’s obligations to maintain and repair shall be accomplished at Tenant’s sole expense.  If Tenant fails to maintain and repair the Building and/or the Property as required by this Section 7.2.2, Landlord may, on ten (10) days’ prior notice (except that no notice shall be required in case of emergency), enter the Building and perform such maintenance or repair on behalf of the Tenant.  In such cases, Tenant shall reimburse Landlord immediately upon demand for all costs incurred in performing such maintenance or repair plus an administration fee equal to 5% of such costs or expenses.

 

7.3                                  CONDITION UPON TERMINATION.  Upon the termination of the Lease, Tenant shall surrender the Premises to Landlord, broom clean and in the same condition as received except for ordinary wear and tear which Tenant was not otherwise obligated to remedy under any provision of this Lease.  However, Tenant shall not be obligated to repair any damage that Landlord is required to repair under Section 7.1.  Tenant shall repair, at Tenant’s expense, any damage to the

 

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Premises caused by the removal of any of Tenant’s personal property, including but not limited to furniture, machinery and equipment.  In no event, however, shall Tenant remove any of the following materials or equipment without Landlord’s prior written consent: any power wiring or power panels; lighting or lighting fixtures; millwork and cabinetry; wall coverings; drapes, blinds or other window coverings; carpets or other floor coverings; heaters, air conditioners, or any other heating or air conditioning equipment; fencing or security gates; plumbing fixtures, water fountains; or other similar building operating equipment and decorations.

 

8.                                        DEFAULT AND REMEDIES:

 

8.1                                  DEFAULT BY TENANT.  The following will be events of default by Tenant under this Lease:

 

(a)                                   Failure to pay when due any installment of Rent or any other payment required pursuant to this Lease; provided that Landlord shall give Tenant notice of the first such instance of non-payment in each calendar year and Tenant shall have a period of ten (10) days after receipt thereof to cure such non-payment before a default shall be deemed to have occurred;

 

(b)                                  The filing of a petition for bankruptcy or insolvency under any applicable federal or state bankruptcy or insolvency law; an adjudication of bankruptcy or insolvency or an admission that it cannot meet its financial obligations as they become due, or the appointment or a receiver or trustee for all or substantially all of the assets of Tenant; the foregoing shall also apply to all Guarantors;

 

(c)                                   A transfer in fraud of creditors or an assignment for the benefit of creditors, whether by Tenant or any Guarantor;

 

(d)                                  The filing or imposition of a lien against the Property, the Building or the Park as a result of any act or omission of Tenant and the failure of Tenant to satisfy or bond the lien in its entirety within twenty (20) days thereafter;

 

(e)                                   The liquidation, termination or dissolution of Tenant or any Guarantor, or, if Tenant or any Guarantor is a natural person, the death of Tenant or such Guarantor;

 

(f)                                     Failure to cure the breach of any non-monetary provision of this Lease within twenty (20) days after written notice thereof to Tenant; provided, however, that if such breach can not be cured within such 20 day period using diligent efforts and Tenant promptly commenced efforts to cure such breach upon receipt of Landlord’s written notice thereof, then such cure period shall be extended for so long as Tenant continues to use diligent efforts to cure, not to exceed a total of sixty (60) days from the date of Landlord’s notice; and

 

(g)                                  Failure to deliver, maintain or restore the Security Deposit pursuant to Section 11.2 hereof.

 

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8.2                                  REMEDIES.  In the event of any default hereunder by Tenant, the Landlord shall have the following rights and remedies without prejudice to any other rights which it has pursuant to this Lease or at law or in equity, which are cumulative and not alternative:

 

(a)                                   Landlord may terminate this Lease by notice to Tenant and retake possession of the Premises for Landlord’s account.  Tenant shall then quit and surrender the Premises to Landlord.  Tenant’s liability under all of the provisions of this Lease shall continue notwithstanding any expiration and surrender, or any re-entry, repossession, or disposition hereunder, including to the extent legally permissible, payment of all Rent and other charges until the date on which the Term would have expired but for such termination.  If Landlord so elects, Rent shall be accelerated and Tenant shall pay Landlord damages in the amount of any and all sums that would have been due for the lesser of:  (i) two (2) years from the date of termination of the Lease by Landlord; and (ii) the remainder of the Term.  Landlord shall use good faith efforts to relet the Premises, but shall not be obligated to give preference to the Premises over other available space in the Park.  Landlord may grant any concessions of Rent, and agree, at Tenant’s expense, to paint or make any special repairs, alterations, and decorations for any new Tenant, as it may deem advisable in its sole and absolute discretion.  All Rent received by Landlord as a result of reletting the Premises, or any portion thereof, shall be credited towards accelerated Rent collected by Landlord.

 

(b)                                  Landlord may remedy or attempt to remedy any default of the Tenant under this Lease for the account of the Tenant and to enter upon the Premises for such purposes.  No notice of the Landlord’s intention to perform any such obligation of Tenant need be given the Tenant unless expressly required by this Lease.  Landlord shall not be liable to the Tenant for any loss or damage caused by acts of the Landlord in remedying or attempting to remedy such default and the Tenant shall pay to the Landlord all expenses incurred by the Landlord in connection with remedying or attempting to remedy such default.  Any expenses incurred by Landlord shall accrue interest from the date of payment by Landlord until repaid by Tenant at the Default Rate.

 

8.3                                  COSTS.  Tenant shall pay to Landlord on demand all fees and costs incurred by Landlord, including attorneys’ fees and costs, (whether incurred in preparation for or at trial, on appeal, or in bankruptcy), incurred by Landlord in enforcing any of the obligations of Tenant under this Lease.  In addition, upon any default by Tenant, Tenant shall also be liable to Landlord for the expenses to which Landlord may be put in re-entering the Premises, reletting the Premises and putting the Premises into the condition necessary for such reletting (including attorneys’ fees and disbursements, marshall’s fees, and brokerage fees, in so doing), and any other expenses reasonably incurred by Landlord.  In the event of any dispute between Landlord and Tenant arising under the Terms of this Lease, the prevailing party in such dispute shall be entitled to recover reasonable attorneys’ fees and costs from the non-prevailing party.

 

8.4                                  WAIVER.  No delay or omission by Landlord in exercising a right or remedy shall exhaust or impair the same or constitute a waiver of, or acquiescence to, a default.

 

8.5                                  DEFAULT BY LANDLORD.  In the event of any default by Landlord, Tenant’s exclusive remedy shall be an action for damages, but prior to any such action Tenant will give Landlord written notice specifying such default with particularity, and Landlord shall have a period

 

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of thirty (30) days following the date of such notice in which to commence the appropriate cure of such default.  Unless and until Landlord fails to commence and diligently pursue the appropriate cure of such default after such notice or complete same within a reasonable period of time, Tenant shall not have any remedy or cause of action by reason thereof.  Notwithstanding any provision of this Lease, Landlord shall not at any time have any personal liability under this Lease so long as Landlord maintains equity in the Building of at least Eighty Percent (80%) of the fair market value thereof (“ Minimum Equity ”), and Tenant’s sole remedy with respect thereto shall be a suit for damages and not a termination of the Lease.  In the event of any breach or default by Landlord of any term or provision of this Lease, Tenant agrees to look solely to the equity or interest then-owned by Landlord in the Building, and in no event shall any deficiency judgment be sought or obtained against Landlord provided that Landlord maintains Minimum Equity.

 

9.                                        PROTECTION OF LENDERS

 

9.1                                  SUBORDINATION AND ATTORNMENT.  This Lease shall be subject and subordinated at all times to the terms of each and every ground or underlying lease which now exists or may hereafter be executed affecting the Premises under which Landlord shall claim, and to the liens of each and every mortgage and deed of trust in any amount or amounts whatsoever now or hereafter existing encumbering the Premises, Building or the Park, and to all modifications, renewals and replacements thereto without the necessity of having further instruments executed by Tenant to effect such subordination.  Tenant, upon demand, shall further evidence its subordination by executing a subordination and attornment agreement in form and substance acceptable to Landlord and its mortgagee or ground lessor, which subordination and attornment agreement may provide, at the option of such mortgagee or ground lessor, that so long as no default or event which with the passing of time or giving of notice would constitute a default exists under this Lease, the peaceable possession of Tenant in and to the Premises for the Term shall not be disturbed in the event of the foreclosure of the subject mortgage or termination of the subject ground or underlying lease affecting the Premises.  If Landlord’s interest in the Building and/or Park is acquired by any ground lessor, mortgagee, or purchaser at a foreclosure sale or transfer in lieu thereof, Tenant shall attorn to the transferee of or successor to Landlord’s interest in the Lease, Premises, Building or Park and recognize such transferee or successor as Landlord under this Lease.  Notwithstanding the foregoing, any mortgagee under any mortgage shall have the right at any time to subordinate any such mortgage to this Lease on such terms and subject to such conditions as the mortgagee in its discretion may consider appropriate.

 

9.2                                  ESTOPPEL CERTIFICATES.  Within fifteen (15) days of receipt of written request from Landlord, any lender, or at the request of any purchaser of the Building, Tenant shall deliver an estoppel certificate, attaching a true and complete copy of this Lease, including all amendments relative thereto, and certifying with particularity, among other things, (i) a description of any renewal or expansion options, if any; (ii) the amount of rent currently and actually paid by Tenant under this Lease; (iii) that the Lease is in full force and effect as modified; (iv) Tenant is in possession of the Premises; (v) stating whether either Landlord or Tenant is in default under the Lease and, if so, summarizing such default(s); and (vi) stating whether Tenant or Landlord has claims against the other party and, if so, specifying with particularity the nature and amount of such claim.  Landlord shall likewise deliver a similar

 

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estoppel certificate within fifteen (15) days of the request of Tenant, any lender or prospective lender of Tenant, or assignee approved by Landlord.

 

9.3                                  TENANT’S FINANCIAL CONDITION.  W ithin ten (10) days after written request from Landlord, Tenant shall deliver to Landlord such financial statements as are reasonably required by Landlord to verify the net worth of Tenant (the “ Financial Statements ”).  In addition, Tenant shall deliver to any lender designated by Landlord all Financial Statements required by such lender.  Tenant represents and warrants to Landlord that each such Financial Statement is a true and accurate statement as of the date of such statement.  All Financial Statements shall be confidential and shall be used only for the purposes set forth herein.  If there is a material, adverse change in Tenant’s financial condition, Tenant will give prompt notice of such change to Landlord.  Notwithstanding the foregoing to the contrary, Tenant shall not have any obligation to furnish the Financial Statements set forth above for so long as Tenant is a publicly traded company on a stock exchange which is subject to regulation by the Securities and Exchange Commission.

 

10.                                  TELECOMMUNICATIONS.  All telephone and telecommunications services desired by Tenant shall be ordered and utilized at the sole expense of Tenant.  All installations of telecommunications equipment and wires shall be accomplished pursuant to plans and specifications approved in advance in writing by Landlord.  Unless Landlord otherwise requests or consents in writing, all of Tenant’s telecommunications equipment shall be and remain solely in the Premises and the telephone closet(s) on the floor(s) on which the Premises is located, in accordance with rules and regulations adopted by Landlord from time to time.  Landlord shall have no responsibility for the maintenance of Tenant’s telecommunications equipment, including wire; nor for any wiring or other infrastructure to which Tenant’s telecommunications equipment may be connected.  Tenant agrees that, to the extent any such service is interrupted, curtailed or discontinued from any cause whatsoever, Landlord shall have no obligation or liability with respect thereto unless such interruption is caused by the negligence or willful misconduct of Landlord or its agents, employees or contractors.

 

Any and all telecommunications equipment installed in the Premises by or on behalf of Tenant, including wiring or other facilities for telecommunications transmittal, shall be removed prior to the expiration or earlier termination of the Term, by Tenant at its sole cost or, at Landlord’s election, by Landlord at Tenant’s sole cost.  Landlord shall have the right upon written notice to Tenant given no later than ten (10) days prior to the expiration of the Term or at any time after a default under this Lease, to require Tenant to abandon and leave in place, without additional payment to Tenant or credit against Base Rent or Additional Rent, any and all telecommunications wiring and related infrastructure, or selected components thereof, located in the Building.

 

Tenant hereby shall have the right to install, maintain and remove on the roof of the Building satellite dishes or other similar devices, such as antenna, for the purpose of receiving and sending radio, television, computer, telephone or other communication signals (and including the installation of all necessary cables, wires and transformers), together with the right to the use of the conduits, pipes, risers and shafts within the Premises for the installation of cables, wiring and other equipment therein in connection with the operation of all such devices

 

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(the foregoing facilities that are installed by or on behalf of Tenant are hereby called the “ Tenant’s Communications Equipment ”, which shall be deemed to include such similar equipment to be installed by any sublessee, provided, however, that, in no event may Landlord or Tenant allow any third parties (e.g., subtenants and licensees) to utilize the roof of the Building for the installation, maintenance and operation of Tenant’s Communication Equipment or other similar equipment, other than bona fide subtenants occupying all or a portion of the interior of the Premises pursuant to a permitted sublease or a sublease which has been approved by Landlord), subject to Tenant’s obligation to comply with all Applicable Laws with respect to the installation, maintenance and operation of the Tenant’s Communication Equipment or such other similar equipment.  Tenant shall advise the Landlord at least ten (10) business days in advance of the planned installation of Tenant’s Communications Equipment, and shall comply with any reasonable request of Landlord with respect to the installation thereof, which shall include, without limitation, the following requirements: (i) such installation be done by the roofing company which provides the roof warranty for the Building and in such a manner so as to not invalidate such warranty; and (ii) the Tenant’s Communications Equipment be screened so that the same shall not be visible from the street-level, in Landlord’s reasonable judgment.  Tenant shall be responsible for any damage to the Building caused by installing or maintaining the Tenant’s Communications Equipment.  At the expiration or earlier termination of this Lease, Tenant, at its expense, shall remove the Tenant’s Communications Equipment.  Any work required to restore the roof or any other part of the Building or Property from any damage occasioned by the installation, maintenance or removal of the Tenant’s Communications Equipment shall be borne by Tenant.  The installation, maintenance and removal of the Tenant’s Communications Equipment shall be subject to the obligations imposed upon the Tenant in this Lease with respect to the Tenant’s use and occupancy of the Premises; provided, however, that there shall be no additional consideration due from the Tenant with respect to the rights granted to the Tenant pursuant to this Section.

 

In the event that telecommunications equipment, wiring and facilities installed by or at the request of Tenant within the Premises causes interference to equipment used by another party, Tenant shall assume all liability related to such interference, Tenant shall use reasonable efforts, and shall cooperate with Landlord and other parties, to promptly eliminate such interference.  In the event that Tenant is unable to do so, Tenant shall substitute alternative equipment that remedies the situation.  If such interference persists, Tenant shall discontinue the use of such equipment, and, at Landlord’s discretion, remove such equipment according to foregoing specifications.

 

11.                                  MISCELLANEOUS PROVISIONS.

 

11.1                            LANDLORD’S LIABILITY; CERTAIN DUTIES.  As used in the Lease, the term “Landlord” means only the owner of the fee title to the Building or the leasehold estate under a ground lease of the Building at the time in question.  Each landlord is obligated to perform the obligations of Landlord under this Lease only during the time such landlord owns such interest or title.  Any landlord who transfers its title or interest is relieved of all liability with respect to the obligations of Landlord under this Lease to be performed on or after the date of transfer, provided that such transfer is not for the primary purpose of avoiding such obligations.  However, each

 

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landlord shall deliver to its transferee all funds previously paid by Tenant if such funds have not yet been applied under the terms of this Lease.

 

11.2                            SECURITY DEPOSIT.  Within fifteen (15) business day of the execution of this Lease, Tenant shall remit to Landlord a security deposit in the amount of $1,500,000.00 in cash or other form acceptable to Landlord in its sole discretion (“ Security Deposit ”); provided, however, that so long as (i) Tenant has not been in default beyond any applicable notice and cure periods, and (ii) Tenant’s Financial Statements reflect EBITDA of at least $10,000,000.00 for the four financial quarters preceding any such reduction date, commencing on the first day of the thirteenth (13 th ) full calendar month of the Term, and continuing on each succeeding anniversary thereof until fully depleted, the Security Deposit shall be reduced by the amount of $300,000.00, and Landlord shall return such amount of the Security Deposit being held by Landlord to Tenant within thirty (30) days after each anniversary of the Phase I Commencement Date.  The Security Deposit represents security for the faithful performance and observance by Tenant of each and every term of this Lease.  Landlord may apply all or part of the Security Deposit to any unpaid Rent or other charges due from Tenant or to cure any other default of Tenant.  The Security Deposit shall not constitute liquidated damages.  If Landlord uses any part of the Security Deposit, Tenant shall restore the Security Deposit to its full amount within ten (10) days after notice from Landlord. No interest shall accrue to or for the benefit of Tenant on the Security Deposit.  Landlord shall not be required to keep the Security Deposit separate from its other accounts, and no trust relationship is created with respect to the Security Deposit.  Landlord shall not be obligated to return the Security Deposit to Tenant upon the expiration or earlier termination of the Lease unless and until all of the following events occur: (i) the payment in full of all Rent due pursuant to the Lease; (ii) the repair of any and all damage to the Premises; and (iii) the reconciliation of Operating Expenses for the year in which the Lease expires or terminates.

 

Landlord agrees that Tenant may provide the Security Deposit in the form of an unconditional and irrevocable standby letter of credit in favor of Landlord having a term of not less than one (1) year (“ Letter of Credit ”).  Any such Letter of Credit shall:  (i) be in form and substance acceptable to Landlord in Landlord’s sole discretion; (ii) be issued by a national banking association maintaining offices in the United States of America acceptable to Landlord in Landlord’s sole discretion (“ Bank ”); (iii) be available for draw by Landlord at an office of the Bank located in the State of Florida; (iv) be governed by the International Standby Practices set by the International Chamber of Commerce; (v) provide that Landlord shall be entitled to draw upon the Letter of Credit upon demand, without prior notice to Tenant, upon presentation to the Bank of the Letter of Credit, or a copy thereof, by mail, courier or in person together with a statement by Landlord that Tenant is in uncured default under this Lease; (vi) permit partial drawings; and (vii) if the Letter of Credit contains an expiration date, then, prior to or upon such expiration date, the Letter of Credit shall automatically renew on the same terms and conditions so that the Letter of Credit continuously remains in full force and effect.

 

11.3                            INTERPRETATION.  The captions of the Articles or Sections of this Lease are to assist the parties in reading this Lease and are not a part of the terms or provisions of this Lease.  Whenever required by the context of this Lease, the singular shall include the plural and the plural

 

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shall include the singular.  The masculine, feminine and neuter genders shall each include the other.  In any provision relating to the conduct, acts or omissions of Tenant the term “Tenant” shall include Tenant’s agents, employees, contractors, invitees, successors or others using the Building or Park with Tenant’s expressed or implied permission.  This Lease will not be construed more or less favorably with respect to either party as a consequence of the Lease or various provisions hereof having been drafted by one of the parties hereto.

 

11.4                            INCORPORATION OF PRIOR AGREEMENTS; MODIFICATIONS.  This Lease is the only agreement between the parties pertaining to the lease of the Building and no other agreements either oral or otherwise are effective unless embodied herein.  All amendments to this Lease shall be in writing and signed by all parties.  Any other attempted amendment shall be void.

 

11.5                            NOTICES.  Any notice or document (other than rent) required or permitted to be delivered by the terms of this Lease shall be delivered by:  (i) hand delivery; (ii) certified mail, return receipt requested; or (iii) guaranteed overnight delivery service.  Notices to Tenant shall be delivered to the address specified in the introductory paragraph of this Lease, except that upon Tenant’s taking possession of the Premises, the Premises shall be Tenant’s address for notice purposes.  Notices to Landlord’s shall be delivered to Legal Department, 10151 Deerwood Park Boulevard, Building 100, Suite 330, Jacksonville, Florida 32256, with a copy to Flagler Development Company, LLC, Attn: Flagler Center Property Manager, 12724 Gran Bay Parkway W., Suite 140, Jacksonville, Florida 32258 .  All notices shall be effective upon delivery or attempted delivery during normal business hours.  Either party may change its notice address upon written notice to the other party, given in accordance herewith by an authorized officer, partner, or principal.

 

11.6                            RADON GAS NOTICE.  Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time.  Levels of radon that exceed federal and state guidelines have been found in buildings in Florida.  Additional information regarding radon and radon testing may be obtained from your county public health unit.

 

11.7                            WAIVERS.  All waivers must be in writing and signed by the waiving party.  Landlord’s failure to enforce any provision of this Lease or its acceptance of Rent shall not be a waiver and shall not prevent Landlord from enforcing that provision or any other provision of this Lease in the future.  No statement on a payment check from Tenant or in a letter accompanying a payment check shall be binding on Landlord.  Landlord may, with or without notice to Tenant, negotiate such check without being bound to the conditions of such statement.

 

11.8                            NO RECORDATION.  Tenant shall not record this Lease or any memorandum of lease without prior written consent from Landlord.

 

11.9                            JOINT AND SEVERAL LIABILITY.  All parties signing this Lease as Tenant shall be jointly and severally liable for all obligations of Tenant.

 

11.10                      FORCE MAJEURE.  The performance by either party to this Lease of its

 

22



 

obligations (except the payment of Rent or other sums of money) shall be excused by delays attributable to events beyond that party’s control for a period of time that is sufficient for the party to perform its obligations after the cessation of the Force Majeure event acting in a diligent, commercially reasonable manner.  Events beyond a party’s control include, but are not limited to, acts of the other party, acts of God, war, civil commotion, labor disputes, strikes, fire, flood or other casualty, failure of power, shortages of labor or material, government regulation or restriction (including extraordinary delay in the issuance of any permit) and unusually inclement weather conditions.  Events beyond a party’s control shall not include changes in economic or market conditions, or financial or internal problems of the non-performing party, or problems that can be satisfied by the payment of money.

 

11.11                      EXECUTION OF LEASE.  Submission or preparation of this Lease by Landlord shall not constitute an offer by Landlord or option for the Premises, and this Lease shall constitute an offer, acceptance or contract only as expressly specified by the terms of this Section 11.11.  In the event that Tenant executes this Lease first, such action shall constitute an offer to Landlord, which may be accepted by Landlord by executing this Lease, and once this Lease is so executed by Landlord, such offer may not be revoked by Tenant and this Lease shall become a binding contract.  In the event that Landlord executes this Lease first, such action shall constitute an offer to Tenant, which may be accepted by Tenant only by delivery to Landlord of a fully executed copy of this Lease, together with a fully executed copy of any and all guaranty agreements and addendums provided that in the event that any party other than Landlord makes any material or minor alteration of any nature whatsoever to any of said documents, then such action shall merely constitute a counteroffer, which Landlord, may, at Landlord’s election, accept or reject.  Notwithstanding that the Phase I Commencement Date and/or the Phase II Commencement Date may occur and the Term may commence after the date of execution of this Lease, upon delivery and acceptance of this Lease in accordance with the terms of this Lease, this Lease shall be fully effective, and in full force and effect and valid and binding against the parties in accordance with, but on and subject to, the terms and conditions of this Lease.

 

11.12                      AUTHORITY.

 

11.12.1    Tenant’s Authority .  As a material inducement to Landlord to enter into this Lease, Tenant (and, individually each party executing this Lease on behalf of Tenant), intending that Landlord rely thereon, represents and warrants to Landlord that:

 

(i)                                      Tenant and the party executing on behalf of Tenant are fully and properly authorized to execute and enter into this Lease on behalf of Tenant and to deliver this Lease to Landlord;

 

(ii)                                   This Lease constitutes a valid and binding obligation of Tenant, enforceable against Tenant in accordance with the terms of this Lease;

 

(iii)                                Tenant is duly organized, validly existing and in good standing under the laws of the state of Tenant’s organization and has full power and authority to enter into this

 

23



 

Lease, to perform Tenant’s obligations under this Lease in accordance with the terms of this Lease, and to transact business in the state in which the Premises are located; and

 

(iv)                               The execution of this Lease by the individual or individuals executing this Lease on behalf of Tenant, and the performance by Tenant of Tenant’s obligation under this Lease, have been duly authorized and approved by all necessary corporate or partnership action, as the case may be, and the execution, delivery and performance of this Lease by Tenant is not in conflict with Tenant’s bylaws or articles of incorporation (if a corporation), agreement of partnership (if a partnership), and other charters, agreements, rules or regulations governing Tenant’s business as any of the foregoing may have been supplemented or amended in any manner.

 

11.12.2  Landlord’s Authority .  As a material inducement to Tenant to enter into this Lease, Landlord (and, individually each party executing this Lease on behalf of Landlord), intending that Tenant rely thereon, represents and warrants to Tenant that:

 

(i)                                      Landlord and the party executing on behalf of Landlord are fully and properly authorized to execute and enter into this Lease on behalf of Landlord and to deliver this Lease to Tenant;

 

(ii)                                   This Lease constitutes a valid and binding obligation of Landlord, enforceable against Landlord in accordance with the terms of this Lease;

 

(iii)                                Landlord is duly organized, validly existing and in good standing under the laws of the state of Landlord’s organization and has full power and authority to enter into this Lease, to perform Landlord’s obligations under this Lease in accordance with the terms of this Lease, and to transact business in the state in which the Premises are located; and

 

(iv)                               The execution of this Lease by the individual or individuals executing this Lease on behalf of Landlord, and the performance by Landlord of Landlord’s obligation under this Lease, have been duly authorized and approved by all necessary corporate or partnership action, as the case may be, and the execution, delivery and performance of this Lease by Landlord is not in conflict with Landlord’s bylaws or articles of incorporation (if a corporation), agreement of partnership (if a partnership), and other charters, agreements, rules or regulations governing Landlord’s business as any of the foregoing may have been supplemented or amended in any manner

 

11.13  FLORIDA LAW.  This Lease shall be governed by the laws of the State of Florida.

 

11.14  COUNTERPART.  This Lease may be executed in multiple counterparts, each counterpart of which shall be deemed an original and any of which shall be deemed to be complete of itself and may be introduced into evidence or used for any purpose without the production of the other counterpart or counterparts.

 

11.15  HOLDING OVER.  If Tenant remains in possession of the Premises after expiration of the Term without Landlord’s written consent and without any express agreement between the

 

24



 

parties on an extension of the Term, Tenant shall be a tenant at sufferance as provided in § 83.04, Florida Statutes, and such tenancy shall be subject to the provisions thereof, except that Base Rent during the holdover period shall be one hundred fifty percent (150%) of the final payment of Base Rent in effect during the final month of the Term.  Nothing in this paragraph shall be construed as the consent of Landlord to Tenant’s possession of the Premises after the expiration of the Term.

 

11.16                      TIME IS OF THE ESSENCE.  Time is of the essence of this Lease and all provisions contained herein.

 

11.17                      APPROVAL OF PLANS AND SPECIFICATIONS.  Neither review nor approval by or on behalf of Landlord of any Tenant’s plans nor any plans and specifications for any Tenant Alterations or any other work shall constitute a representation or warranty by Landlord, any of Landlord’s beneficiaries, the managing agent of the Building or Park or any of their respective agents, partners or employees that such plans and specifications either (i) are complete or suitable for their intended purpose, or (ii) comply with Applicable Laws, it being expressly agreed by Tenant that neither Landlord, nor any of Landlord’s beneficiaries, nor the managing agent of the Building or Park nor any of their respective agents, partners or employees assume any responsibility or liability whatsoever to Tenant or to any other person or entity for such completeness, suitability or compliance.

 

11.18                      RELATIONSHIP.  Landlord and Tenant disclaim any intention to create a joint venture, partnership or agency relationship.

 

11.19                      BROKER’S FEE.  Tenant covenants, represents and warrants that Tenant had no dealings or negotiations with any broker or agent in connection with the consummation of this Lease.  Tenant agrees to indemnify Landlord against any loss, liability, or expense  (including attorney’s fees and costs) arising out of claims for fees or commissions from anyone with whom Tenant has dealt in connection with the lease of the Premises.  Landlord agrees to indemnify Tenant against any loss, liability, or expense (including attorney’s fees and costs) arising out of claims for fees or commissions from anyone other than Broker with whom Landlord has dealt in connection with the lease of the Premises.

 

11.20                      WAIVER OF TRIAL BY JURY.  LANDLORD AND TENANT EACH HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE.

 

11.21                      RIDERS AND EXHIBITS.  All Riders, Addenda and Exhibits attached hereto and executed both by Landlord and Tenant shall be deemed to be a part hereof and are hereby incorporated.

 

11.22                      TENANT ASSIGNMENT.  Tenant will not assign this Lease, in whole or in part, or sublease the Premises, in whole or in part, without the prior written consent of Landlord, which

 

25



 

consent will not be unreasonably withheld, subject to Landlord’s right of recapture set forth below, and in no event will Tenant be released from any obligation or liability under this Lease following any such assignment or sublease.  No sublessee of the Premises or any portion thereof, may further assign or sublease its interest in the Premises or any portion thereof.  Tenant agrees to pay Landlord the greater of (i) Two Hundred and Fifty Dollars and 00/100 ($250.00); or (ii) the actual legal fees and expenses incurred by Landlord, in connection with the review by Landlord of Tenant’s requested assignment or sublease pursuant to this Section, together with any legal fees and disbursements incurred in the preparation and/or review of any documentation, within thirty (30) days of invoice for payment thereof.  If the rent due and payable by any assignee or sublessee under any permitted assignment or sublease exceeds the Rent payable under this Lease for such space, Tenant will pay to Landlord all such excess rent and other excess consideration within ten (10) days following receipt thereof by Tenant.  Notwithstanding the foregoing, Tenant may assign this Lease to an affiliate at any time without Landlord’s consent; provided that the assignee has financial strength substantially equivalent to Tenant.

 

Within fifteen (15) days after Landlord’s receipt of Tenant’s request for Landlord’s consent to a proposed assignment or sublease, excluding any assignment or sublease to an affiliate of Tenant, Landlord shall have the right to require Tenant to reconvey to Landlord that portion of the Premises which Tenant is seeking to assign or sublet.  Tenant shall reconvey that portion of the Premises in consideration of Landlord’s release of Tenant from all future Rent and other obligations, which would not otherwise survive termination of the Lease, with respect to the portion of the Premises so reconveyed.  Any such reconveyance shall be evidenced by an agreement reasonably acceptable to Landlord and Tenant in form and substance.

 

11.23                      LANDLORD ASSIGNMENT.  Landlord will have the right to sell, transfer or assign, in whole or in part, its rights and obligations under this Lease.  Any such sale, transfer or assignment will operate to release Landlord from any and all liability under this Lease arising after the date of such sale, assignment or transfer.

 

11.24                      GOVERNMENTAL INCENTIVES.  Notwithstanding anything to the contrary contained herein, this Lease and all of Tenant’s obligations hereunder are conditional and contingent upon Tenant’s receipt of approval of Qualified Targeted Industry Tax Refund and Quick Response Training Program incentives by the Jacksonville Economic Development Commission (JEDC), the Jacksonville City Council, and the Office of Tourism, Trade, and Economic Development (OTTED) of the State of Florida in amount and form acceptable to Tenant in Tenant’s reasonable discretion (the “ Governmental Incentives ”).  If the Governmental Incentives are not obtained by February 15, 2008, then Tenant shall have the right to terminate this Lease by delivering written notice to Landlord on or before February 22, 2008, whereupon Landlord and Tenant shall have no further obligation or liability to each other pursuant to this Lease except for those obligations which expressly survive the expiration of the Lease.

 

[SIGNATURES ON FOLLOWING PAGE]

 

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IN WITNESS WHEREOF, Tenant and Landlord have caused this Lease to be duly executed as of the date first above written.

 

SIGNED, SEALED AND DELIVERED

IN THE PRESENCE OF:

 

 

 

Website Pros, Inc.

 

 

 

 

 

 

 /s/ Cynthia Israel

 

 

By:

  /s/ David L. Brown

Name:

  Cynthia Israel

 

 

Print Name:

 David L. Brown**

 

 

Its:

  CEO

 

 

 

/s/ Gary Cox

 

 

Date:

  December 3, 2008

Name:

Gary Cox

 

 

 

 

 

(Corporate Seal)

 

 

 

 

 

 

 

 

FDG Flagler Center I LLC

 

 

 

 

 

By:     Flagler Development Company, LLC,
a Florida limited liability company, its
Managing Member

 /s/ James A. Hoener

 

 

 

Name:

 James A. Hoener

 

 

 

 

 

By:

  /s/ Keith A. Tickell

 

 

              Keith A. Tickell

 

 

              Its Vice President

 /s/ Susan Blount

 

 

 

Name:

 Susan Blount

 

 

Date:

  December 4, 2008

 

 

 

 

 

(Company Seal)

 

**  If the individual signing the Lease is other than the Chief Executive Officer, President or Vice President of the Company, please attach Corporate Resolutions authorizing his/her signature on behalf of the Company.  Thank you.

 

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EXHIBIT A

 

PROPERTY LEGAL DESCRIPTION

 

PARCELS 8, 9 AND 10 OF “GRAN PARK AT JACKSONVILLE TRACT D REPLAT” ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 55, PAGE 69, OF THE PUBLIC RECORDS OF DUVAL COUNTY, FLORIDA.

 

A-1



 

EXHIBIT A-1

 

PARKING AREA

 

A-1-1



 

EXHIBIT A-2

 

LOCATION OF GENERATOR

 

A-2-1



 

EXHIBIT B

 

RULES AND REGULATIONS

 

1.             In the event of an emergency situation in the Park, such as an injury to a person, damage to property, persons in the Park acting in a suspicious or threatening manner, bomb threat, water leak or fire, any tenant who is aware of such emergency shall notify the Property Manager immediately.

 

2.             No tenant shall place any additional locks or similar devices upon any door, except for vaults and safes previously approved by the Property Manager.  No lock shall be changed except with prior written consent of Property Manager, which shall not be unreasonably withheld, conditioned or delayed.  All locks shall be compatible with the Property Manager’s master key.  Upon the termination of a lease, the tenant shall surrender all keys to its Premises to the Property Manager.

 

3.             Window coverings, which must be of such shape, color, material, quality and design as may be reasonably prescribed by the Property Manager, may not be installed without the Property Manager’s prior written consent which shall not be unreasonably withheld, conditioned or delayed. Landlord may withhold its consent if such coverings are visible from the exterior of the Premises.

 

4.             No tenant shall obstruct the sidewalks, entrances, lobbies, elevators, elevator lobbies, halls, or stairways in or about any building in the Park, and shall not use any such area for storage or for any purpose other than ingress and egress.  No tenant shall utilize any mechanical or electrical room for storage purposes.

 

5.             No tenant shall create or maintain a nuisance nor make or permit any noises or odors that are reasonably objectionable to another tenant to emanate from or about its Premises.

 

6.             Each tenant shall observe and obey all parking and traffic regulations, which may include among other things speed limits, stop signs, yielding to pedestrians at all times, no parking zones, tow away zones or parking decals, from time to time established by the Property Manager.  No vehicle shall be parked in a manner that utilizes more than one parking space.

 

7.             No tenant shall make any suite-to-suite canvass to solicit business from other tenants in the Park.  Property Manager may prohibit any other solicitation in the Park and require registration, satisfactory identification and credentials from all persons seeking access to any part of the Building or Park.  No tenant shall conduct or cause to be conducted any auctions or sales in its Premises or in the Park.

 

8.             No tenant shall display any sign, letter, picture, notice, advertisement or the like, whether temporary or permanent, in any common area, including lobbies and elevator lobbies, or in a manner that is visible from outside the Premises.

 

9.             No tenant may use the name of the Park or any building situated therein for any purpose

 

B-1



 

other than that of the business address of Tenant, and shall not use any picture or likeness of the Park or any building situated therein in any circulars, notices, advertisements or correspondence without Landlord’s prior written consent.

 

10.           No t enant shall bring any animal (excepting only dogs trained to assist handicapped persons) into the Park.  Bicycles, unicycles, motorcycles, mopeds, Segways, skateboards, scooters and all other vehicles are prohibited in or about the buildings and sidewalks of the Park.

 

11.           No tenant shall waste electricity or water.  Each tenant shall cooperate with the reasonable requests of Landlord’s property manager to utilize electricity and water in its Premises efficiently.  Each tenant shall ensure that no electrical circuit within its Premises is overloaded.  No tenant shall adjust any common HVAC controls other than room thermostats installed for specific use.  No tenant shall tie, wedge or otherwise fasten open any water faucet or outlet.  No tenant shall prop open any common corridor doors or exterior doors of any building.

 

12.           Tenant shall not overload any floor and shall not install any heavy safes, business machines, files or other heavy equipment without obtaining the approval of Landlord’s property manager.

 

13.           No tenant shall deface or damage any property of another tenant or property that is part of the Park, including but not limited to the buildings, fixtures and equipment.

 

14.           Smoking is prohibited in each building, within twenty-five feet of any building entrance, and in the Park common areas, except for smoking areas designated by the Property Manager.

 

15.           Each tenant shall use all improvements, equipment and fixtures within the buildings and common areas of the Park, including but not limited to restrooms, elevators, stairways, hallways, lobby, sidewalks, parking lots and landscape areas, in the manner and for the purposes for which they are designed.  Each tenant shall be responsible for any damage caused by its failure to do so.

 

16.           No machinery or apparatus other than computers, copiers, facsimile machines, paper shredders and other small office equipment shall be operated in the tenant’s Premises or anywhere in the Park without prior written approval of Landlord’s property manager (the “ Property Manager ”), which shall not be unreasonably withheld, conditioned or delayed.  No explosives, articles deemed hazardous because of flammability, or other materials of an intrinsically hazardous nature shall be brought into any building in the Park.

 

All references to tenant in these Rules and Regulations shall include the employees, agents, contractors, licensees or invitees of the tenant.

 

B-2



 

EXHIBIT C

 

 COMMENCEMENT AGREEMENT

 

THIS COMMENCEMENT AGREEMENT is made and entered into as of                 , 200    , by and between FDG Flagler Center I LLC (“Landlord”) and                                (“ Tenant”) with respect to that certain Lease Agreement between Landlord and Tenant dated as of                       , 200     (“Lease”), for the premises located at                                    , Florida 32       (“Premises”).

 

Landlord and Tenant hereby confirm that the Phase I Commencement Date for the Phase I Premises is                     , 200    .

 

IN WITNESS WHEREOF, Landlord and Tenant have executed this document as of the first date set forth in the first paragraph above.

 

 

 

FDG Flagler Center I LLC

 

 

 

By:  Flagler Development Company, LLC, its
Managing Member

 

 

By:

 

 

By:

 

Print Name:
 
 
Print Name:
 

As Its

 

 

As Its

 

President

 

 

Date:

 

 

Date:

 

 

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EXHIBIT D

 

WORK LETTER

 

1.             Landlord shall construct the improvements, including, but not limited to, cabling, sound masking, power generator, uninterruptible power supply, security system and special purpose HVAC, set forth in the Final Plans (as hereinafter defined) (the “ Tenant Improvements ”) and pay the cost of the Tenant Improvements up to, but not exceeding, $36.49 per rentable square foot of the Premises, the amount of which is agreed to be $4,098,045.94 (the “ Allowance ”).  The parties agree that no portion of the Allowance is available to be used by Tenant for the cost of any furniture, moving expenses (other than for the relocation to the Premises of Tenant’s generator), or other similar non-construction items Tenant may desire to be placed within the Premises, and that all such items shall be at Tenant’s sole cost and expense.  Tenant may contract for certain special purpose improvements as set forth in Tenant’s Plans (which may be paid for by the Allowance).  Any Tenant contracted improvements will be coordinated with the Landlord in accordance with the provisions of paragraph 5 below.

 

In the event that the cost of the Tenant Improvements exceeds the Allowance, then the entire amount of such excess (the “ Excess ”) shall be Tenant’s sole liability and Tenant shall pay the full amount of the Excess to Landlord as Additional Rent, together with all sales tax due thereon, within thirty (30) days after Tenant’s receipt of Landlord’s invoice for the Excess.

 

2.                                       All Tenant Improvements shall be performed and completed by Landlord’s contractor in accordance with the Final Plans (as hereinafter defined) and at the sole cost and expense of Tenant, subject to the Allowance.  All mechanical, structural, electrical, plumbing and fire sprinkler engineering required to furnish the Tenant Improvements requested by Tenant subsequent to Tenant’s approval of the Drawings (as hereinafter defined), shall be done by Landlord’s engineers at Tenant’s expense subject to the Allowance.

 

3.                                       Tenant has produced its basic layout drawings (“ Tenant’s Plans ”) to Landlord and are attached to this Lease as Exhibit D-1 .

 

If Tenant’s Plans indicate that Tenant shall be in violation of any floor load requirements, Landlord shall so notify Tenant within 15 business days after receipt of Tenant’s Plans, specifying all such violations, and Tenant shall correct such violations and resubmit Tenant’s Plans within 5 business days thereafter.  If Landlord does not notify Tenant within such time period, Tenant’s Plans shall thereafter be deemed to be in full compliance of all floor load requirements as required under the Lease.  Landlord shall at its expense then cause its architect to produce the construction drawings and its mechanical (sprinkler, air conditioning, heating, electric and plumbing) drawings covering all mechanical elements of the Tenant Improvements (together the “ Drawings ”).  Landlord shall submit the Drawings to Tenant for Tenant’s approval no later than thirty-five (35) business days after Landlord’s receipt from Tenant of Tenant’s Plans, and, within an

 

D-1



 

additional twenty (20) business days thereafter, shall submit an itemized budget (the “ Budget ”) for the Tenant Improvements and a statement specifying any “long lead time items” included as part of the Tenant Improvements and the alternatives which will avoid such delay.  Tenant shall approve or disapprove the Drawings, Budget and, if included, the statement within five (5) business days of their receipt.

 

4.                                      (a)                                   If Tenant approves the Budget or approves a Tenant Improvement item which Landlord has specified as a cause of delay, then Tenant shall be responsible for the cost of the Tenant Improvement as shown in the Budget in excess of the Allowance and there shall be no abatement of Rent due to any such delay (provided the delay is not caused by the intentional or negligent act or omission of Landlord, its agents, employees, or contractors).  If the cost of the Tenant Improvement as shown in the Budget shall exceed the Allowance, then upon completion Tenant shall deposit with Landlord such excess together with Tenant’s approval of the Budget.

 

(b)                                  If Tenant fails to either approve or disapprove the Drawings, Budget or, if included, the statement, within 5 business days of receipt thereof, such item shall be deemed approved.  If the Drawings, Budget or statement are disapproved, Tenant shall have 5 business days to submit revised Tenant’s Plans to Landlord and Landlord shall then have 15 business days to submit revised Drawings and a revised Budget and, if necessary, a revised statement.  Landlord shall not unreasonably refuse to satisfy any objections of Tenant to the Drawings, Budget and statement and Tenant shall not unreasonably withhold its approval.  The review and revision of the Drawings, Budget and statement shall continue until approved by Tenant.  The approved Drawings, Budget and statement (if any) are collectively referred to herein as the “ Final Plans ”.

 

5.                                      Upon no less than three (3) business days prior written notice to Landlord, and provided such early entry will not interfere with Landlord’s completion of the Tenant Improvements, Landlord shall permit Tenant and Tenant’s agents and contractors to enter said Premises prior to the Phase I Commencement Date in order that Tenant may do such other work as may be required by Tenant to make said Premises ready for Tenant’s use and occupancy thereof (“ Fit-Up Work ”).  Any such entry into and occupation of the premises by Tenant shall be deemed to be under all of the terms, covenants, conditions and provisions of the Lease except as to the covenant to pay Rent, and Landlord shall not be liable in any way for any injury, loss or damage to any Fit-Up Work prior to the Phase I Commencement Date, unless directly caused by an act or omission of Landlord, its agents, employees or contractors.  Landlord shall provide reasonable security to protect the Fit-Up Work.

 

6.                                      If Substantial Completion, as hereinafter defined, shall be delayed due to any act or omission of Tenant or Tenant’s Agents (including, but not limited to, (i) any delays due to Change Orders, or (ii) any delays by Tenant in the submission of plans, drawings, specifications or other information or in approving any working drawings or estimates or in giving any authorizations or approvals, or (iii) Tenant’s interference with the progress of the Tenant Improvements during any time that Tenant is given access to the Premises) (each, a “ Tenant Delay ”), then Substantial Completion shall be deemed to have occurred on the date when they would have been ready but for such Tenant Delay.   “ Substantial Completion ” shall mean the completion by Landlord of the construction of the Tenant Improvements in substantial accordance with the Final Plans in a good

 

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and workmanlike manner, and with the only additional construction to be effected being Punch List Items, as hereinafter defined.  Landlord shall have no obligation to attempt to mitigate, through expediting the prosecution of any work or changing the scope of the work or otherwise, the actual or presumed effects of a Tenant Delay on Landlord’s ability to achieve Substantial Completion; provided, however, that at Tenant’s request and with a written agreement by Tenant to pay any additional costs incurred by Landlord resulting therefrom, Landlord shall use all reasonable efforts to accelerate the performance of the work to mitigate the effects of any Tenant Delay.

 

7.                                      If, prior to the Phase I Commencement Date, Tenant shall require improvements or changes (individually or collectively, “ Change Orders ”) to the Premises in addition to, revision of, or substitution for the Tenant Improvements, Tenant shall deliver to Landlord for Landlord’s approval, plans and specifications for such Change Orders.  If Landlord does not approve of the plans for Change Orders, Landlord shall advise Tenant of the revisions required.  In addition to any other items reasonably required by Landlord, Landlord’s revisions may be based upon any other items reasonably required by Landlord, Landlord’s revisions may be based upon whether the plans and specifications: (i) affect or are not consistent with the base structural components or systems of the Building, (ii) are visible from outside the Premises, (iii) affect safety, (iv) have or could have the effect of increasing Operating Expenses, or (v) in Landlord’s judgment, are not consistent with quality and character of the Project.  Tenant shall revise and redeliver the plans and specifications to Landlord within five (5) business days of Landlord’s advice or Tenant shall be deemed to have abandoned its request for such Change Orders.  Tenant shall pay for all preparations and revisions of plans and specifications, and the net costs of the construction of all change Orders, subject to the Allowance.

 

8.                                      The Premises shall be conclusively presumed to be in satisfactory condition on the Phase I Commencement Date except for any minor or insubstantial details of construction, mechanical adjustment or decoration which remain to be performed, the non-performance of which do not materially interfere with Tenant’s use of the Premises (“ Punch List Items ”) and of which Tenant gives Landlord notice within thirty (30) days after the Phase I Commencement Date specifying such details with reasonable particularity which details Landlord shall repair within sixty (60) days of receipt of such notice.

 

D-3



 

RIDER NUMBER 1 TO LEASE

 

dated               , 2007

 

between FDG Flagler Center I LLC, as Landlord,

and Website Pros, Inc., as Tenant

 

OPTION TO RENEW

 

1.             Landlord hereby grants Tenant the option to renew (the “ Renewal Option ”) the initial Term (not to include, for purposes of this Rider only, any Renewal Term, as hereinafter defined) for two (2) additional terms of five (5) years (each, a “ Renewal Term ”), commencing as of the date immediately following the expiration of the then existing Term, such option to be subject to the covenants and conditions hereinafter set forth in this Rider.  If Tenant duly exercises its right to the Renewal Term, Landlord may elect that Tenant shall execute a lease on Landlord’s then-current lease form, to be applicable to the Renewal Term.  Following expiration of the Renewal Term as provided herein, Tenant shall have no further right to renew or extend the Lease.

 

2.             Tenant shall give Landlord written notice (the “ Renewal Notice ”) of Tenant’s election to exercise its Renewal Option not later than three hundred sixty five (365) days prior to the expiration of the then existing Term of the Lease; provided that Tenant’s failure to give the Renewal Notice by said date, whether due to Tenant’s oversight or failure to cure any existing defaults or otherwise, shall render the Renewal Option null and void.

 

3.             Tenant shall not be permitted to exercise any Renewal Option at any time during which Tenant is in default under the Lease, subject to applicable notice and grace periods (if any).  If Tenant fails to cure any default under the Lease prior to the commencement of the Renewal Term, subject to applicable notice and grace periods, the Renewal Term shall be immediately canceled, unless Landlord elects to waive such default, and Tenant shall forthwith deliver possession of the Premises to Landlord as of the expiration or earlier termination of the initial Term of the Lease.

 

4.             Tenant shall be deemed to have accepted the Premises in “as-is” condition as of the commencement of the Renewal Term, subject to any other repair and maintenance obligations of Landlord under the Lease, it being understood and agreed that Landlord shall have no additional obligation to renovate or remodel the Premises or any portion of the Building as a result of Tenant’s renewal of the Lease.

 

5.             The covenants and conditions of the Lease in force during the initial Term, as the same may be modified from time to time, shall continue to be in effect during the Renewal Term, except that the “Base Rent” for the Renewal Term shall be at the rate then prevalent in Jacksonville, Florida for similar properties, but in no event shall such rate be less than the Base Rent for the year immediately preceding the first year of such Renewal Term, and shall escalate annually at the rate of three percent (3%).

 

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6.             Tenant’s Renewal Option shall not be transferable by Tenant, except in conjunction with a permissible transfer in accordance with the applicable provisions of the Lease.

 

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Exhibit 31.1

 

CERTIFICATION

 

I, David L. Brown, certify that:

 

1.                        I have reviewed this quarterly report on Form 10-Q of Website Pros, Inc.;

 

2.                        Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.                        Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.                        The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal controls over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

(a)          Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b)          Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c)          Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d)          Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.                        The registrant’s other certifying officer(s) and I have disclosed, on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

(a)          All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b)          Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: May 12, 2008

 

 

 

By:

/s/    D AVID L. BROWN            

 

David L. Brown
Chief Executive Officer and Chairman of the Board
(Principal Executive Officer)

 

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Exhibit 31.2

 

CERTIFICATION

 

I, Kevin M. Carney, certify that:

 

1.                        I have reviewed this quarterly report on Form 10-Q of Website Pros, Inc.;

 

2.                        Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.                        Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.                        The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal controls over financial reporting as defined in Exchange Act Rules 13a-15(f) and 15d-15(f) for the registrant and have:

 

(a)          Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

(b)          Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

(c)          Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

(d)          Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.                        The registrant’s other certifying officer(s) and I have disclosed, on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

(a)          All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

(b)          Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Date: May 12, 2008

 

 

 

By:

/s/    K EVIN M. CARNEY        

 

Kevin M. Carney
Chief Financial Officer
(Principal Financial and Accounting Officer)

 

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Exhibit 32.1

 

CERTIFICATION

 

Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. Section 1350), David L. Brown, President and Chief Executive Officer of Website Pros, Inc., a Delaware corporation (the “Company”) hereby certifies that, to the best of his knowledge:

 

1.

 

The Company’s Quarterly Report on Form 10-Q for the period ended March 31, 2008, to which this Certification is attached as Exhibit 32.1 (the “Periodic Report”), fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act, and

 

 

 

2.

 

The information contained in the Periodic Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

IN WITNESS WHEREOF , the undersigned has set his hand hereto as of this 12th day of May 2008.

 

 

By: 

/s/    D AVID L. BROWN

 

David L. Brown

 

Chief Executive Officer and Chairman of the Board

 

(Principal Executive Officer)

 

This certification accompanies the Form 10-Q to which it relates, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of Website Pros, Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of the Form 10-Q), irrespective of any general incorporation language contained in such filing.

 

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Exhibit 32.2

 

CERTIFICATION

 

Pursuant to the requirement set forth in Rule 13a-14(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 1350 of Chapter 63 of Title 18 of the United States Code (18 U.S.C. Section 1350), Kevin M. Carney, Chief Financial Officer of Website Pros, Inc., a Delaware corporation (the “Company”) hereby certifies that, to the best of his knowledge:

 

1.

 

The Company’s quarterly report on Form 10-Q for the period ended March 31, 2008, to which this Certification is attached as Exhibit 32.1 (the “Periodic Report”), fully complies with the requirements of Section 13(a) or 15(d) of the Exchange Act, and

 

 

 

2.

 

The information contained in the Periodic Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

IN WITNESS WHEREOF , the undersigned has set his hand hereto as of this 12th day of May 2008.

 

 

By: 

/s/    K EVIN M. CARNEY

 

Kevin M. Carney

 

Chief Financial Officer

 

(Principal Financial and Accounting Officer)

 

This certification accompanies the Form 10-Q to which it relates, is not deemed filed with the Securities and Exchange Commission and is not to be incorporated by reference into any filing of Website Pros, Inc. under the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended (whether made before or after the date of the Form 10-Q), irrespective of any general incorporation language contained in such filing.

 

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