10-Q

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: June 30, 2013

OR

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

For the transition period from             to              

Commission file number 33-26787-D

Zynex, Inc.

(Exact name of registrant as specified in its charter)

NEVADA	90-0214497
(State or other jurisdiction of incorporation or organization)	(IRS Employer Identification No.)
9990 PARK MEADOWS DRIVE LONE TREE, COLORADO	80124
(Address of principal executive offices)	(Zip Code)

(303) 703-4906

(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.    Yes  x    No  ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes  x    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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check One):

Large accelerated filer	¨	Accelerated filer	¨
Non-accelerated filer	¨  (Do not check if a smaller reporting company)	Smaller reporting company	x

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

Indicate the number of shares outstanding of each of the issuer’s classes of common stock, as of the latest practicable date.

Class	Shares Outstanding as of August 13, 2013
Common Stock, par value $0.001	31,148,234

 1 

ZYNEX, INC. AND SUBSIDIARIES

INDEX TO FORM 10-Q

PART I—FINANCIAL INFORMATION

		Page
Item 1.	Financial Statements
	Condensed Consolidated Balance Sheets as of June 30, 2013 (unaudited) and December 31, 2012	3
	Unaudited Condensed Consolidated Statements of Operations for the three and six months ended June 30, 2013 and 2012	4
	Unaudited Condensed Consolidated Statement of Stockholders’ Equity for the six months ended June 30, 2013	5
	Unaudited Condensed Consolidated Statements of Cash Flows for the six months ended June 30, 2013 and 2012	6
	Unaudited Notes to Condensed Consolidated Financial Statements	7
Item 2.	Management’s Discussion and Analysis of Financial Condition and Results of Operations	16
Item 4.	Controls and Procedures	22
PART II—OTHER INFORMATION
Item 1.	Legal Proceedings	23
Item 1A.	Risk Factors	23
Item 6.	Exhibits	24
Signatures		25

       

 2 

ITEM 1. FINANCIAL STATEMENTS

ZYNEX, INC.

CONDENSED CONSOLIDATED BALANCE SHEETS

(AMOUNTS IN THOUSANDS, EXCEPT NUMBER OF SHARES)  

	June 30, 2013			December 31, 2012
	(UNAUDITED)
ASSETS
Current Assets:
Cash	$	445		$	823
Accounts receivable, net		9,775			12,224
Inventory		5,845			6,160
Prepaid expenses		194			243
Deferred tax assets		1,855			1,855
Other current assets		1,255			57
Total current assets		19,369			21,362
Property and equipment, net		3,849			3,851
Deposits		573			171
Deferred financing fees, net		73			98
Intangible assets, net		73			203
Goodwill		212			251
Total assets	$	24,149		$	25,936
LIABILITIES AND STOCKHOLDERS’ EQUITY
Current Liabilities:
Line of credit	$	6,870		$	5,906
Current portion of notes payable and capital lease obligations		131			144
Accounts payable		2,108			2,057
Income taxes payable		891			1,430
Accrued payroll and payroll taxes		799			899
Deferred rent		364			371
Current portion of contingent consideration		10			21
Other accrued liabilities		457			1,265
Total current liabilities		11,630			12,093
Notes payable and capital lease obligations, less current portion		135			114
Deferred rent		1,470			785
Deferred tax liabilities		786			786
Warranty liability		20			20
Contingent consideration, less current portion		21			83
Total liabilities		14,062			13,881
Stockholders’ Equity:
Preferred stock, $.001 par value, 10,000,000 shares authorized, no shares issued or outstanding		—			—
Common stock, $.001 par value, 100,000,000 shares authorized, 31,148,234 shares issued and outstanding at June 30, 2013, and December 31, 2012		31			31
Paid-in capital		5,522			5,453
Retained earnings		4,546			6,566
Total Zynex, Inc. stockholders’ equity		10,099			12,050
Noncontrolling interest		(12	)		5
Total Stockholders’ equity		10,087			12,055
Total liabilities and stockholders’ equity	$	24,149		$	25,936

See accompanying notes to unaudited condensed consolidated financial statements.

 3 

ZYNEX, INC.

CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS

(UNAUDITED, AMOUNTS IN THOUSANDS, EXCEPT SHARE AND PER SHARE DATA)

	Three months ended June 30,							Six months ended June 30,
	2013			2012			2013				2012
Net revenue:
Rental	$	1,643		$	2,437		$		3,322		$	4,499
Sales		3,829			7,589				9,818			14,471
		5,472			10,026				13,140			18,970
Cost of revenue:
Rental		398			273				699			531
Sales		1,485			1,513				3,375			3,068
		1,883			1,786				4,074			3,599
Gross profit		3,589			8,240				9,066			15,371
Selling, general and administrative expense		6,153			7,308				11,986			13,953
(Loss) income from operations		(2,564	)		932				(2,920	)		1,418
Other expense:
Interest expense		(214	)		(81	)			(344	)		(174	)
Other income (expense)		78			(7	)			72			(7	)
		(136	)		(88	)			(272	)		(181	)
(Loss) income before income tax		(2,700	)		844				(3,192	)		1,237
Income tax benefit (expense)		973			(371	)			1,155			(444	)
Net (loss) income		(1,727	)		473				(2,037	)		793
Plus: Net loss – noncontrolling interest		11			—				17			—
Net (loss) income – attributable to Zynex, Inc.:	$	(1,716	)	$	473		$		(2,020	)	$	793
Net (loss) income per share:
Basic	$	(0.06	)	$	0.02		$		(0.06	)	$	0.03
Diluted	$	(0.06	)	$	0.02		$		(0.06	)	$	0.03
Weighted average number of common shares outstanding:
Basic		31,148,234			31,091,900				31,148,234			30,986,478
Diluted		31,148,234			31,249,107				31,148,234			31,142,876

See accompanying notes to unaudited condensed consolidated financial statements.

 4 

ZYNEX, INC.

CONDENSED CONSOLIDATED STATEMENT OF STOCKHOLDERS’ EQUITY

(UNAUDITED, AMOUNTS IN THOUSANDS, EXCEPT SHARE DATA)

	Number of Shares		Common Stock		Paid in Capital		Retained Earnings			Noncontrolling Interest			Total
January 1, 2013		31,148,234	$	31	$	5,453	$	6,566		$	5		$	12,055
Employee stock-based compensation		—		—		69		—			—			69
Net loss		—		—		—		(2,020	)		(17	)		(2,037	)
June 30, 2013		31,148,234	$	31	$	5,522	$	4,546		$	(12	)	$	10,087

See accompanying notes to unaudited condensed consolidated financial statements

 5 

ZYNEX, INC.

CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

(UNAUDITED, AMOUNTS IN THOUSANDS) 

	Six months ended June 30,
	2013			2012
Cash flows from operating activities:
Net (loss) income	$	(2,037	)	$	793
Adjustments to reconcile net (loss) income to net cash used in operating activities:
Depreciation expense		417			432
Change in the value of contingent consideration		(70	)		6
Provision for losses on uncollectible accounts receivable		289			158
Amortization of intangible assets		30			18
Impairment of intangible assets		100			—
Impairment of goodwill		39			—
Amortization of financing fees		25			24
Provision for obsolete inventory		192			190
Deferred rent		678			(148	)
Employee stock-based compensation expense		69			90
Deferred tax expense		—			(57	)
Gain on asset disposal		(6	)		—
Changes in operating assets and liabilities, net of business acquisition (in 2012):
Accounts receivable		2,160			(1,317	)
Inventory		123			(2,093	)
Prepaid expenses		49			91
Deposit and other current assets		(1,601	)		3
Accounts payable		51			516
Accrued liabilities		(909	)		80
Income taxes payable		(539	)		172
Net cash used in operating activities		(940	)		(1,042	)
Cash flows from investing activities:
Purchases of equipment		(438	)		(718	)
Change in inventory used for rental		111			(18	)
Payments on contingent consideration		(3	)		—
Cash paid for acquisition		—			(245	)
Net cash used in investing activities		(330	)		(981	)
Cash flows from financing activities:
Net borrowings from line of credit		964			1,912
Issuance of common stock		—			10
Deferred financing fees		—			(2	)
Payments on notes payable and capital lease obligations		(72	)		(63	)
Net cash provided by financing activities		892			1,857
Net decrease in cash		(378	)		(166	)
Cash at beginning of period		823			789
Cash at end of period	$	445		$	623
Supplemental cash flow information:
Interest paid	$	315		$	152
Income taxes paid (including interest and penalties)	$	539		$	365
Supplemental disclosure of non-cash investing and financing activities:
Common stock issuances for business acquisition	$	—		$	158
Increase in contingent consideration for business acquisition	$	—		$	141
Equipment acquired through capital lease	$	137		$	—

See accompanying notes to unaudited condensed consolidated financial statements

   

 6 

ZYNEX, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(AMOUNTS IN THOUSANDS, EXCEPT NUMBER OF SHARES AND PER SHARE DATA)

SIX MONTHS ENDED JUNE 30, 2013 AND 2012

(1) UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS AND MANAGEMENTS’ PLANS

Zynex, Inc. (a Nevada corporation) and its subsidiaries, Zynex Medical, Inc. (ZMI) (a Colorado corporation, wholly-owned), Zynex NeuroDiagnostics, Inc. (ZND) (a Colorado corporation, wholly-owned), Zynex Monitoring Solutions Inc. (ZMS) (a Colorado corporation, wholly-owned), Zynex Billing and Consulting, LLC (ZBC) (a Colorado limited liability company, 80% majority-owned) and Zynex Europe, ApS (ZEU) (a Denmark corporation, wholly-owned), are collectively referred to as the “Company”.

The unaudited condensed consolidated financial statements included herein have been prepared by the Company pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”) and accounting principles generally accepted in the United States of America (“U.S. GAAP”). Certain information and footnote disclosures normally included in financial statements prepared in accordance with U.S. GAAP have been condensed or omitted pursuant to such rules and regulations, although the Company believes that the disclosures included herein are adequate to make the information presented not misleading. A description of the Company’s accounting policies and other financial information is included in the audited consolidated financial statements as filed with the SEC in the Company’s Annual Report on Form 10-K for the year ended December 31, 2012. Amounts as of December 31, 2012 are derived from those audited consolidated financial statements. These interim condensed consolidated financial statements should be read in conjunction with the annual audited financial statements, accounting policies and notes thereto, included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2012, which has previously been filed with the SEC.

In the opinion of management, the accompanying unaudited condensed consolidated financial statements contain all adjustments necessary to present fairly the financial position of the Company as of June 30, 2013 and the results of operations and cash flows for the periods presented. All such adjustments are of a normal recurring nature. The results of operations for the three and six months ended June 30, 2013 are not necessarily indicative of the results that may be achieved for a full fiscal year and cannot be used to indicate financial performance for the entire year.

For the six months ended June 30, 2013 and 2012, the Company reported negative cash flows from operations of $985 and $1,042, respectively. In addition, the Company’s line of credit increased from $5,906 at December 31, 2012 to $6,870 at June 30, 2013, primarily driven by the Company’s net loss and working capital requirements. Maximum borrowings under the line of credit are $7,000, subject to adjustments to its accounts receivable borrowing base, of which, as of June 30, 2013, the maximum amount the Company could borrow was $6,886. During the first half of 2013, the Company encountered challenges, specifically related to health care reform, including, the Affordable Care Act, that affected demand in its core electrotherapy business, ZMI. In response to these challenges, the Company has made reductions in its fixed expenses by cutting its annual employee costs by approximately $3.0 million dollars through headcount reductions. These headcount reductions were executed during the latter part of the second quarter of 2013 and thus the full financial impact will not be evident in our financial statements until future quarters of 2013.   The Company also renegotiated its existing building lease, under which, among other things, base rent has been lowered and the Company is now operating in an approximate twelve month free rent period.  Management estimates related cash savings over the next twelve months of approximately $1.5 million dollars.  The Company is monitoring the demand for its ZMI electrotherapy products and will make additional expense adjustments as necessary throughout the remainder of 2013.  Additionally, the Company recently added new products that are less impacted by insurance reimbursement to the Company’s ZMI sales channel and are pursuing other opportunities, which are capital goods and service based where revenues are much less dependent on insurance reimbursement in the Company’s other divisions. In ZND, the Company expanded the sales force and has been distributing electroencephalography (EEG) and sleep diagnostic products in the US and will begin distributing mobile sleep diagnostic products and a sleep apnea treatment device. The Company is also investing in the ZBC division where the Company expects increased service based revenue going forward. The Company believes these actions will serve to diversify the product mix and further reduce the dependency on insurance reimbursement.  Management believes that as a result of the restructuring activities completed during the second quarter of 2013, the Company’s cash flows from operating activities and limited borrowing availability under the line of credit will be sufficient to fund cash requirements through June 30, 2014.  

(2) SIGNIFICANT ACCOUNTING POLICIES

PRINCIPLES OF CONSOLIDATION

The accompanying unaudited condensed consolidated financial statements include the accounts of Zynex, Inc. and its subsidiaries. All intercompany balances and transactions have been eliminated in consolidation.

 7 

ZYNEX, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(AMOUNTS IN THOUSANDS, EXCEPT NUMBER OF SHARES AND PER SHARE DATA)

SIX MONTHS ENDED JUNE 30, 2013 AND 2012

(2) SIGNIFICANT ACCOUNTING POLICIES (continued)

NONCONTROLLING INTEREST

Noncontrolling interest in the equity of a subsidiary is accounted for and reported as stockholders equity. Noncontrolling interest represents the 20% ownership in the Company’s majority-owned subsidiary, ZBC. In 2012, the noncontrolling interest member contributed $10 of property and equipment to ZBC.

USE OF ESTIMATES

Preparation of financial statements in conformity with U.S. GAAP 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 the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates. The most significant management estimates used in the preparation of the accompanying condensed consolidated financial statements are associated with the allowance for contractual adjustments and uncollectible accounts receivable, the reserve for obsolete and damaged inventory, stock-based compensation, valuation of goodwill and other long-lived assets, and income taxes.

REVENUE RECOGNITION, ALLOWANCE FOR CONTRACTUAL ADJUSTMENTS AND COLLECTIBILITY

The Company recognizes revenue when each of the following four conditions are met 1) a contract or sales arrangement exists, 2) products have been shipped and title has transferred, or rental services have been rendered, 3) the price of the products or services is fixed or determinable, and 4) collectability is reasonably assured. Accordingly, the Company recognizes revenue, both rental and sales, when products have been delivered to the patient and the patient’s insurance (if the patient has insurance) has been verified. For medical products that are sold from inventories consigned at clinic locations, the Company recognizes revenue when it receives notice that the product has been prescribed and delivered to the patient and the patient’s insurance coverage has been verified or preauthorization has been obtained from the insurance company, when required. Revenue from the rental of products is normally on a month-to-month basis and is recognized ratably over the products’ rental period. Revenue from sales to distributors is recognized when the Company ships its products, which fulfills its order and transfers title. Revenue is reported net, after adjustments for estimated insurance company or governmental agency (collectively “Third-party Payors”) reimbursement deductions. The deductions are known throughout the health care industry as “contractual adjustments” whereby the Third-party Payors unilaterally reduce the amount they reimburse for the Company’s products.

A significant portion of the Company’s revenues are derived, and the related receivables are due, from Third-party Payors. The nature of these receivables within this industry has typically resulted in long collection cycles. The process of determining what products will be reimbursed by Third-party Payors and the amounts that they will reimburse is complex and depends on conditions and procedures that vary among providers and may change from time to time. The Company maintains an allowance for contractual adjustments and records additions to the allowance to account for the risk of nonpayment. Contractual adjustments result from reimbursements from Third-party Payors that are less than amounts claimed or where the amount claimed by the Company exceeds the Third-party Payors’ usual, customary and reasonable reimbursement rate. The Company determines the amount of the allowance, and adjusts it at the end of each reporting period, based on a number of factors, including historical rates of collection, the aging of the receivables, trends in the historical rates of collection and current relationships and experience with the Third-party Payors. If the rates of collection of past-due receivables recorded for previous fiscal periods changes, or if there is a trend in the rates of collection on those receivables, the Company may be required to change the rate at which it provides for additions to the allowance. A change in the rates of the Company’s collections can result from a number of factors, including experience and training of billing personnel, changes in the reimbursement policies or practices of Third-party Payors, or changes in industry rates of reimbursement. Accordingly, changes to the allowance for contractual adjustments, which are recorded in the income statement as a reduction of revenue, have historically fluctuated and may continue to fluctuate significantly from quarter to quarter.

Due to the nature of the industry and the reimbursement environment in which we operate, estimates are required to record net revenues and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of third-party billing arrangements and the uncertainty of reimbursement amounts for certain products or services from payors or an unanticipated requirement to refund payments previously received may result in adjustments to amounts originally recorded. Due to continuing changes in the health care industry and third-party reimbursement, as well as changes in our billing practices to increase cash collections, it is possible that management’s estimates could change in the near term, which could have an impact on our results of operations and cash flows. Any differences between estimated settlements and final determinations are reflected as an increase or a reduction to revenue in the period when such final determinations are known.

 8 

ZYNEX, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(AMOUNTS IN THOUSANDS, EXCEPT NUMBER OF SHARES AND PER SHARE DATA)

SIX MONTHS ENDED JUNE 30, 2013 AND 2012

(2) SIGNIFICANT ACCOUNTING POLICIES (continued)

The Company frequently receives refund requests from insurance providers relating to specific patients and dates of service. Billing and reimbursement disputes are very common in the Company’s industry. These requests are sometimes related to a limited number of patients or products; at other times, they include a significant number of refund claims in a single request. The Company reviews and evaluates these requests and determines if any refund request is appropriate. The Company also reviews these refund claims when it is rebilling or pursuing reimbursement from that insurance provider. The Company frequently has significant offsets against such refund requests, and sometimes amounts are due to the Company in excess of the amounts of refunds requested by the insurance providers. Therefore, at the time of receipt of such refund requests, the Company is generally unable to determine if a refund request is valid and should be accrued.

As of June 30, 2013, the Company believes it has an adequate allowance for contractual adjustments relating to all known insurance disputes and refund requests. However, no assurances can be given with respect to such estimates of reimbursements and offsets or the ultimate outcome of any refund requests.

In addition to the allowance for contractual adjustments, the Company records an allowance for uncollectible accounts receivable. Uncollectible accounts receivable are primarily a result of the following: non-payment from patients who have been direct billed for co-payments or deductibles, lack of appropriate insurance coverage and disallowances of charges by Third-party Payors. If there is a change to a material insurance provider contract or policy, application by a provider, a decline in the economic condition of providers or a significant turnover of Company billing personnel resulting in diminished collection effectiveness, the estimate of the allowance for uncollectible accounts receivable may not be adequate and may result in an increase in the future. At June 30, 2013 and December 31, 2012, the allowance for uncollectible accounts receivable is $1,837.

FAIR VALUE OF FINANCIAL INSTRUMENTS

The Company’s financial instruments at June 30, 2013 include cash, accounts receivable and accounts payable, for which current carrying amounts approximate fair value due to their short-term nature. Financial instruments at June 30, 2013 also include the line of credit and notes payable, the carrying value of which approximates fair value because the interest rates on the outstanding borrowings are at rates that approximate market rates for borrowings with similar terms and average maturities.

INVENTORY

Inventories, which primarily represent finished goods, are valued at the lower of cost (average) or market. Finished goods include products held at the Company’s headquarters and at different locations by health care providers or other parties for rental or sale to patients. Total (gross) inventories at June 30, 2013 included $5,618 of finished goods, $338 of parts, and $1,262 of supplies.

The Company monitors inventory for turnover and obsolescence, and records losses for excess and obsolete inventory as appropriate. At June 30, 2013, the Company had an allowance for obsolete and damaged inventory of approximately $1,373. The allowance for obsolete and damaged inventory was approximately $1,181 at December 31, 2012. The Company had $1,402 of open purchase commitments at June 30, 2013.

PROPERTY AND EQUIPMENT

Property and equipment are stated at cost. Products on rental contracts are placed in property and equipment and depreciated over their estimated useful life. The Company removes the cost and the related accumulated depreciation from the accounts of assets sold or retired, and the resulting gains or losses are included in the results of operations. Depreciation is computed using the straight-line method over the useful life of the asset. As rental inventory contributes directly to the revenue generating process, the Company classifies the depreciation of rental inventory in cost of revenue.

Repairs and maintenance costs are charged to expense as incurred.

 9 

ZYNEX, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(AMOUNTS IN THOUSANDS, EXCEPT NUMBER OF SHARES AND PER SHARE DATA)

SIX MONTHS ENDED JUNE 30, 2013 AND 2012

(2) SIGNIFICANT ACCOUNTING POLICIES (continued)

GOODWILL AND INTANGIBLE ASSETS

Goodwill represents the excess of the purchase price over the fair value of the net assets of the business acquired. Authoritative guidance requires that goodwill be assessed for impairment at the reporting unit level (operating segment or one level below an operating segment) on an annual basis and between annual tests when circumstances indicate that the recoverability of the carrying amount of goodwill may be in doubt. Application of the goodwill impairment assessment requires judgment, including the identification of reporting units, assigning assets and liabilities to reporting units, assigning goodwill to reporting units, and determining the fair value. Significant judgments are required to estimate the fair value of a reporting unit including estimating future cash flows, determining appropriate discount rates and other assumptions. When conducting its goodwill impairment assessment, the Company initially performs a qualitative evaluation to determine if it is more likely than not that the fair value of its reporting unit is less than its carrying amount as a basis for determining whether it is necessary to perform a two-step goodwill impairment test.

The Company has determined, based on its qualitative evaluation, that it was necessary to perform the two-step goodwill impairment test during the quarter, primarily because of the significant decline in sales in its ZMI electrotherapy products. In March 2012, the Company acquired substantially all of the assets and business of NeuroDyne Medical Corp. (NeuroDyne).  The Company modified its business forecast for NeuroDyne during the second quarter, resulting in reduced estimated sales and cash flow, as compared to the original business forecast at the time of the acquisition. Management, therefore performed the two-step goodwill impairment test during the second quarter of 2013, and determined that goodwill related to NeuroDyne was impaired and recorded a $39 goodwill impairment charge during the three months ended June 30, 2013.  Intangible assets with estimable lives are amortized in a pattern consistent with the asset’s identifiable cash flows or using a straight- line method over their remaining estimated benefit periods if the pattern of cash flows is not estimable. The Company reviews the carrying value of intangible and other long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of long-lived assets is measured by comparison of their carrying amounts to the undiscounted cash flows that the asset or asset group is expected to generate. If the carrying amount of the assets exceeds the undiscounted cash flows the impairment to be recognized is measured by the amount by which the carrying amount of the asset exceeds its fair value. The Company’s intangible assets primarily relate to the asset acquisition of NeuroDyne.  The Company modified its business forecast for NeuroDyne during the second quarter, resulting in reduced estimated sales and cash flow, as compared to the original business forecast at the time of the acquisition.  Therefore, the Company recorded an impairment charge of $100 during the second quarter related to certain NeuroDyne intangible assets.  The Company utilized a discounted cash flow (DCF) model to determine fair value for both goodwill and intangible assets as of June 30, 2013.

STOCK-BASED COMPENSATION

The Company accounts for stock-based compensation through recognition of the cost of employee services received in exchange for an award of equity instruments, which is measured based on the grant date fair value of the award that is ultimately expected to vest during the period. The stock-based compensation expenses are recognized over the period during which an employee is required to provide service in exchange for the award (the requisite service period, which in the Company’s case is the same as the vesting period).

(3) PROPERTY AND EQUIPMENT

Property and equipment as of June 30, 2013 and December 31, 2012 consist of the following:

	June 30, 2013			December 31, 2012			Useful lives
		(UNAUDITED)
Office furniture and equipment	$	2,302		$	1,836			3-7 years
Rental inventory		2,946			3,147			5 years
Vehicles		76			76			5 years
Leasehold improvements		375			375			2-6 years
Assembly equipment		171			168			7 years
		5,870			5,602
Less accumulated depreciation		(2,021	)		(1,751	)
	$	3,849		$	3,851

 10 

ZYNEX, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(AMOUNTS IN THOUSANDS, EXCEPT NUMBER OF SHARES AND PER SHARE DATA)

SIX MONTHS ENDED JUNE 30, 2013 AND 2012

(4) LEASES

The Company has commitments under various operating and capital leases that are payable in monthly installments. On June 18, 2013, the Company renegotiated its existing building lease and entered into a new lease agreement for its existing building in Lone Tree, Colorado, effective May 1, 2013. The lease, which expires in November 2023, provides for two five-year renewal options at the then market rental rate. Under the lease, no rental payments are due for the first six months. For the remaining months of the lease, base monthly rent begins at $129 and escalates at $3 per month (or $0.50 per square foot) every twelve months, resulting in a monthly rent of $157 by January 2023. The Company anticipates that for accounting purposes, it will have an annual rental expense of $1,420 throughout the term of the lease. The lease includes a $101 refund from the landlord for amounts previously overpaid for operating expenses, which amounts shall be deducted from the Company’s rent in November 2013. The lease also includes a tenant allowance of $1,130, of which $565 is to be used for leasehold improvements and $565 may be used to apply to rent in December 2013 and beyond. Such allowances are included in the Company’s deferred rent liability and deposit accounts. The lease contains customary events of default, termination, maintenance, indemnification and other lease terms.

(5) INTANGIBLE ASSETS

Intangible assets as of June 30, 2013 and December 31, 2012, consist of the following:

	June 30, 2013			December 31, 2012			Amortization Life Years
		(UNAUDITED)
Trade names	$	33		$	72			5
Non-compete agreement		26			26			5
Technology		74			135			5
Domain Name		18			18			1
Total intangible assets, gross		151			251
Less: accumulated amortization		(78	)		(48	)
Total intangible assets, net	$	73		$	203

(6) EARNINGS (LOSS) PER SHARE

Basic earnings (loss) per share is computed by dividing net income (loss) by the weighted-average number of common shares outstanding during the period. Diluted earnings per share is computed by dividing net income (loss) by the weighted-average number of common shares outstanding and the number of dilutive potential common share equivalents during the period, calculated using the treasury-stock method.

 11 

ZYNEX, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(AMOUNTS IN THOUSANDS, EXCEPT NUMBER OF SHARES AND PER SHARE DATA)

SIX MONTHS ENDED JUNE 30, 2013 AND 2012

(6) EARNINGS (LOSS) PER SHARE (continued)

The calculation of basic and diluted earnings (loss) per share for the three and six months ended June 30, 2013 and 2012 is as follows:

	Three months ended June 30,					Six months ended June 30,
	2013			2012			2013			2012
Basic:
Net (loss) income applicable to common stockholders	$	(1,716	)	$	473		$	(2,020	)	$	793
Weighted average shares outstanding—basic		31,148,234			31,091,900			31,148,234			30,986,478
Net (loss) income per share—basic	$	(0.06	)	$	0.02		$	(0.06	)	$	0.03
Diluted:
Net (loss) income applicable to common stockholders	$	(1,716	)	$	473		$	(2,020	)	$	793
Weighted average shares outstanding—basic		31,148,234			31,091,900			31,148,234			30,986,478
Dilutive securities		—			157,207			—			156,398
Weighted average shares outstanding—diluted		31,148,234			31,249,107			31,148,234			31,142,876
Net (loss) income per share—diluted	$	(0.06	)	$	0.02		$	(0.06	)	$	0.03

Potential common share equivalents as of June 30, 2012 of 1,041,000, related to certain outstanding stock options, were not included in the computation of diluted earnings per share during the three and six months ended June 30, 2013 because the effect would have been anti-dilutive, as the option exercise prices exceeded the average market price of the Company’s common stock. The effect of these shares, if any, on the diluted earnings per share calculation may vary significantly depending on fluctuations in the stock price.

The effects of potential common stock equivalents, related to certain outstanding options for the three and six months ended June 30, 2013 have not been included in the computation of diluted net loss per share because the impact of the potential shares would decrease the loss per share.

(7) STOCK-BASED COMPENSATION PLANS

The Company has reserved 3,000,000 shares of common stock for issuance under its 2005 Stock Option Plan (the “Option Plan”). Vesting provisions are determined by the Board of Directors. All stock options under the Option Plan expire no later than ten years from the date of grant.

In the three months ended June 30, 2013 and 2012, the Company recorded compensation expense related to stock options of $33 and $44, respectively. Stock-based compensation recorded in the accompanying condensed consolidated statement of operations for the six months ended June 30, 2013 and 2012 included $7 and $13, respectively, in cost of goods sold and $62 and $77, respectively, in selling, general and administrative expenses.

In the six months ended June 30, 2013 and 2012, the Company did not grant options to employees or any other person for the purchase of shares of common stock.

 12 

ZYNEX, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(AMOUNTS IN THOUSANDS, EXCEPT NUMBER OF SHARES AND PER SHARE DATA)

SIX MONTHS ENDED JUNE 30, 2013 AND 2012

(7) STOCK-BASED COMPENSATION PLANS (continued)

A summary of stock option activity under the Option Plan for the six months ended June 30, 2013 is presented below:

	Shares Under Option			Weighted Average Exercise Price		Weighted Average Remaining Contractual Life		Aggregate Intrinsic Value
Outstanding at January 1, 2013		1,501,500		$	0.95
Granted		—		$	—
Exercised		—		$	—
Forfeited		(127,250	)	$	0.86
Outstanding at June 30, 2013		1,374,250		$	0.96		6.4 years	$	20
Exercisable at June 30, 2013		908,871		$	1.08		5.6 years	$	17

A summary of status of the Company’s non-vested share awards as of and for the six months ended June 30, 2013 is presented below:

	Nonvested Shares Under Option			Weighted Average Grant Date Fair Value
Non-vested at January 1, 2013		690,877		$	0.69
Granted		—		$	—
Vested		(155,873	)	$	0.78
Forfeited		(69,625	)	$	0.71
Non-vested at June 30, 2013		465,379		$	0.66

As of June 30, 2013, the Company had approximately $142 of unrecognized compensation expense related to stock options that will be recognized over a weighted-average period of approximately 2.2 years.

(8) FAIR VALUE MEASUREMENTS

The Company measures certain assets and liabilities pursuant to accounting guidance which establishes a three-tier fair value hierarchy and prioritizes the inputs used in measuring fair value. Theses tiers include:

• Level 1: Quoted prices (unadjusted) in active markets that are accessible at the measurement date for identical assets or liabilities.

• Level 2: Observable prices that are based on inputs not quoted on active markets, but corroborated by market data.

• Level 3: Unobservable inputs are used when little or no market data is available.

The following table presents information about the Company’s financial assets and liabilities that are measured at fair value on a recurring basis as of June 30, 2013, and indicates the fair value hierarchy of the valuation techniques the Company utilized to determine such fair value:

	June 30, 2013		Significant Unobservable Inputs (Level 3)
Liabilities:
Contingent consideration	$	31	$	31

 13 

ZYNEX, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(AMOUNTS IN THOUSANDS, EXCEPT NUMBER OF SHARES AND PER SHARE DATA)

SIX MONTHS ENDED JUNE 30, 2013 AND 2012

(8) FAIR VALUE MEASUREMENTS (continued)

The fair value of the contingent consideration was determined using a discounted cash flow model at the acquisition date and is revalued at each reporting date or more frequently if circumstances dictate based on changes in the discount periods and rates, changes in the timing and amount of the revenue estimates and changes in probability assumptions with respect to the likelihood of achieving the obligations. The changes in the fair value of this obligation and the accretion expense related to the increase in the net present value of the contingent liabilities was $74 for the three months ended June 30, 2013. Contingent payments of $3 were made during the period.

Changes in the fair value of these obligations are recorded as income or expense within the line item "Other income (expense)" in the Company's consolidated statements of operations. Accretion expense related to the increase in the net present value of the contingent liabilities is also included in the line item "Other income (expense)" in the Company's consolidated statements of operations. The fair value measurement is based on significant inputs not observable in the market, which are referred to as Level 3 inputs.

Changes in the fair value of the Level 3 liabilities for the six months ended June 30, 2013:

Balance at beginning of 2013	$	104
Payments		(3	)
Accretion expense		4
Change in fair value of contingent consideration		(74	)
Balance at end of 2013	$	31

As of June 30, 2013 the Company modified its financial forecasts for NeuroDyne, resulting in reduced sales and cash flow since the acquisition in March 2012.  

(9) INCOME TAXES

The provision for income taxes is recorded at the end of each interim period based on the Company’s best estimate of its effective income tax rate expected to be applicable for the full fiscal year. The Company’s effective income tax rate for the three and six months ended June 30, 2013 was approximately 36%. The Company’s income tax expense for the six months ended June 30, 2012 was partially offset by a state income tax refund, which resulted in a lower effective tax rate for the period. The Company paid income taxes of $112 and $539 during the first three and six months of 2013, respectively, which was included in income taxes payable at December 31, 2012.

(10) LINE OF CREDIT

The Company has an asset-backed revolving credit facility of up to $7,000, subject to reserves and reductions to the extent of changes in the Company’s asset borrowing base, under a Loan and Security Agreement, as amended, (the “Doral Agreement”) with Doral Healthcare Finance, a division of Doral Money, Inc. Borrowings under the Doral Agreement bear interest at a variable rate equal to the greater of (i) the British Bankers’ Association LIBOR rate as published in The Wall Street Journal for dollar deposits in the amount of $1,000 with a maturity of one month or (ii) 3% per annum, plus, in each case, a margin of 3.75%. The Doral Agreement requires monthly interest payments in arrears on the first date of each month. The Doral Agreement will mature on December 19, 2014. The Company may terminate the Doral Agreement at any time prior to the maturity date upon thirty days’ prior written notice and upon payment in full of all outstanding obligations under the Doral Agreement. If the Company terminates the Doral Agreement, the Company must pay a specified early termination fee. As of June 30, 2013, $6,870 was outstanding under the Doral Agreement and $16 was available for borrowing based on the Company’s current borrowing base.

The Doral Agreement requires a lockbox arrangement whereby all receipts are swept daily to reduce borrowings outstanding. This arrangement causes the Doral Agreement to be classified as a current liability.

As of June 30, 2013, the effective interest rate under the Doral Agreement was 8% (7% interest rate and 1% fees).

 14 

ZYNEX, INC.

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(AMOUNTS IN THOUSANDS, EXCEPT NUMBER OF SHARES AND PER SHARE DATA)

SIX MONTHS ENDED JUNE 30, 2013 AND 2012

(10) LINE OF CREDIT (continued)

The Doral Agreement contains certain customary restrictive and financial covenants for asset-backed credit facilities.  As of June 30, 2013, the Company was not in compliance with one of the financial covenants under the Doral Agreement.  As a result, all amounts due under the credit agreement are callable by the lender. The Company is currently in discussions with the lender and expects to receive a waiver; however, no assurance can be given.  If a waiver is not obtained, in addition to demanding immediate payment of amounts outstanding under the Credit Agreement, the lender can restrict or prevent the Company from borrowing while in default, which could have a material adverse impact on the Company’s cash flow and liquidity.

(11) CONCENTRATIONS

The Company sourced approximately 24% and 22% of its electrotherapy products from one contract manufacturer during the three and six months ended June 30, 2013. Management believes that its relationships with suppliers are strong; however, if necessary these relationships can be replaced. If the relationships were to be replaced, there may be a short-term disruption to operations, a period of time in which products may not be available and additional expenses may be incurred.

The Company had receivables from a private health insurance carrier at June 30, 2013 that made up approximately 10% of the net accounts receivable balance. The same private health insurance carrier made up approximately 22% of net accounts receivable at December 31, 2012.

(12) LITIGATION

From time to time, the Company may become party to litigation and other claims in the ordinary course of business. To the extent that such claims and litigation arise, management would provide for them if losses are determined to be both probable and estimable.

The Company is currently not a party to any material pending legal proceedings.

(13) SEGMENT REPORTING

At June 30, 2013, the Company has determined that it has three reporting segments comprised of the following subsidiaries, ZMI and ZBC, ZND and ZEU, and ZMS. This determination was made based on the nature of the products and services offered to customers or the nature of the function in the organization. The accounting policies for each of these segments are the same as those described in Note 2, and inter-segment transactions are eliminated.

Net revenue was primarily generated from sales in the United States.

	ZMI & ZBC		ZND & ZEU		ZMS		TOTAL
THREE MONTHS ENDED JUNE 30, 2013
Sales	$	5,358	$	114	$	—	$	5,472
Gross profit		3,528		61		—		3,589
Total assets		23,142		986		21		24,149
THREE MONTHS ENDED JUNE 30, 2012
Sales	$	9,973		53	$	—	$	10,026
Gross profit		8,204		36		—		8,240
Total assets		24,724		762		8		25,494
SIX MONTHS ENDED JUNE 30, 2013
Sales	$	12,964	$	176	$	—	$	13,140
Gross profit		8,958		108		—		9,066
Total assets		23,142		986		21		24,149
SIX MONTHS ENDED JUNE 30, 2012
Sales	$	18,842		128	$	—	$	18,970
Gross profit		15,285		86		—		15,371
Total assets		24,724		762		8		25,494

   

 15 

ITEM 2.  MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

Cautionary Notice Regarding Forward-Looking Statements

This quarterly report contains statements that are forward-looking, such as statements relating to plans for future expansion and other business development activities, business trends, the impact of reimbursement trends, other capital spending and financing sources. Such forward-looking information involves important risks and uncertainties that could significantly affect anticipated results in the future and, accordingly, such results may differ from those expressed in any forward-looking statements made by or on behalf of the Company. These risks include the need for additional capital in order to grow our business, our ability to engage additional sales representatives, the need to obtain U.S. Food and Drug Administration (“FDA”) clearance and Certificate European (“CE”) marking of new products, the acceptance of new products as well as existing products by doctors and hospitals, our dependence on the reimbursement from insurance companies for products sold or rented to our customers, acceptance of our products by health insurance providers for reimbursement, larger competitors with greater financial resources, the need to keep pace with technological changes, our dependence on third-party manufacturers to produce our goods on time and to our specifications, implementation of our sales strategy including a strong direct sales force, and other risks described in our Annual Report on Form 10-K for the year ended December 31, 2012.

These interim financial statements should be read in conjunction with the annual audited financial statements, accounting policies and financial notes thereto, included in the Company’s 2012 Annual Report on Form 10-K, which has previously been filed with the Securities and Exchange Commission.

The Company currently has five subsidiaries; Zynex Medical, Inc. (ZMI), Zynex NeuroDiagnostics, Inc. (ZND), Zynex Monitoring Solutions Inc. (ZMS), Zynex Billing and Consulting, LLC (ZBC) and Zynex Europe, Aps (ZEU).

RESULTS OF OPERATIONS (Amounts in thousands):

Revenue

Our products may be rented on a monthly basis or purchased. Renters and purchasers are primarily patients and healthcare insurance providers on behalf of patients. Our products may also be purchased by dealers. If a patient is covered by health insurance, the Third-party Payor typically determines whether the patient will rent or purchase a unit depending on the anticipated time period for its use. If contractually arranged, a rental continues until an amount equal to the purchase price is paid when we transfer ownership of the product to the patient and cease rental charges.  We also sell consumable supplies, consisting primarily of surface electrodes and batteries that are used in conjunction with our electrotherapy products.  

Revenue is reported net, after adjustments for estimated insurance company reimbursement deductions. The deductions are known throughout the health care industry as “contractual adjustments” whereby the healthcare insurers unilaterally reduce the amount they reimburse for our products as compared to the rental rates and sales prices charged by us. The deductions from gross revenue also take into account the estimated denials of claims for our products placed with patients which may affect collectability. See Note 2 to the Unaudited Condensed Consolidated Financial Statements in this quarterly report for a more complete explanation of our revenue recognition policies.

During the first half of 2013, we encountered industry challenges related to health care reform, includingthe Affordable Care Act, that affected demand in our core electrotherapy business, ZMI.    The Affordable Care Act dramatically alters the United States health care system and is intended to decrease the number of uninsured Americans and reduce the overall cost of healthcare. The Affordable Care Act attempts to achieve these goals by, among other things, requiring most Americans to obtain health insurance, expanding Medicaid eligibility, reducing Medicare payments to providers, expanding the Medicare program's use of value-based purchasing programs and instituting certain private health insurance reforms. Although a majority of the measures contained in the Affordable Care Act do not take effect until 2014, certain measures have already become effective or will be implemented in 2013, and additional government policies designed to reduce the overall cost of the Medicare program through reduced reimbursement and reduced coverage for certain items and services have already become effective. These factors have resulted in reimbursement changes for durable medical equipment, which has caused uncertainty to exist at the medical practitioner level causing a delay and decline in demand for our ZMI electrotherapy products.  We  also have experienced reimbursement challenges from government and third party payors related to certain medical indications for our ZMI electrotherapy products, all of which have negatively impacted our revenue and financial results for the first half of 2013.It is difficult to predict the full impact of the Affordable Care Act because of its complexity, lack of implementing regulations and interpretive guidance, gradual and potentially delayed implementation, future potential legal challenges, and possible repeal and/or amendment, as well as the inability to foresee how individuals and businesses will respond to the choices afforded them by the Affordable Care Act. Further complicating predictions regarding the impact of the Affordable Care Act is

 16 

uncertainty surrounding individual State’s decisions to expand Medicaid, as contemplated by the Affordable Care Act, but made optional by the Supreme Court. As a result, it is difficult to predict the full impact that health care reform, including the Affordable Care Act, will have on our revenue and results of operations.  However, we anticipate continued depressed revenues and a net loss for the year.

In an effort to minimize the impact of health care reform, we have made reductions in our fixed expenses by cutting our annual employee costs by approximately $3.0 million dollars through headcount reductions. We also renegotiated our existing building lease and entered into a new agreement, in which, among other things, base rent has been lowered and we are now operating in an approximate twelve month free rent period, which results in cash savings over the next twelve months of approximately $1.5 million.  We are monitoring the demand for our ZMI electrotherapy products and will make additional expense adjustments as necessary throughout the remainder of 2013.  Additionally, we recently added new products that are less impacted by insurance reimbursement to our ZMI sales channel and are pursuing other opportunities, which are capital goods and service based where revenues are much less dependent on insurance reimbursement as in our other divisions. In ZND, we expanded our sales force and have been distributing electroencephalography (EEG) and sleep diagnostic products in the US and will begin distributing mobile sleep diagnostic products and a sleep apnea treatment device. We are also investing in our ZBC division where we expect increased service based revenue going forward. We believe these actions will serve to diversify our product mix and further reduce our dependency on insurance reimbursement.

Total Net Revenue (Rental and Sales).

	Three months ended				Six months ended
Total net revenue by type (in thousands):	June 30, 2013		June 30, 2012		June 30, 2013		June 30, 2012
Net Rental Revenue	$	1,643	$	2,437	$	3,322	$	4,499
Sales of electrotherapy and other privately-labeled distributed products		1,255		3,622		3,346		6,680
Sales of recurring consumable supplies		2,574		3,967		6,472		7,791
Total Net Sales Revenue		3,829		7,589		9,818		14,471
Total Net Revenue	$	5,472	$	10,026	$	13,140	$	18,970

Total net revenue decreased $4,554, or 45%, to $5,472 for the three months ended June 30, 2013, from $10,026 for the three months ended June 30, 2012. Total net revenue decreased $5,830, or 31%, to $13,140 for the six months ended June 30, 2013, from $18,970 for the six months ended June 30, 2012.

The decrease was primarily due to a 54% and 44% decrease in prescriptions (orders) for our electrotherapy products for the three months and six months ended June 30, 2013, respectively, as compared to the same periods in 2012. The overall decrease in total net revenue for the three and six months ended June 30, 2013 was also impacted by industry conditions driven by health care reform, and the related decrease in reimbursement rates as discussed above.   

Orders for our products lead to (1) rental income, which we anticipate receiving on a recurring basis over the time patients use our products, (2) direct sales of our products, and (3) corresponding recurring sales of electrodes and other supplies for our products, all of which are subject to our ability to collect payment due to contractual adjustments by insurers.  Our products are subject to reimbursement policies of Third-party Payors, which we may not be able to determine with any certainty.  These Third-party Payor policies typically dictate whether our products will be purchased or rented.  Therefore, our revenue mix of net rental and net sales revenue may fluctuate from time to time and may not be an indicator of the overall demand for our products.  We are unable to determine if the reimbursement policy trend towards purchasing rather than renting our products will continue or change in the future, as it is based on many market and Third-party Payor factors.  Shifts in our revenue mix may also have a material impact on our overall gross margin, as product sales result in a lower gross profit because their cost of sales is higher than that from rentals (cost of sales associated with rentals is primarily depreciation).

Net Rental Revenue

Net Rental Revenue decreased $794, or 33%, to $1,643 for the three months ended June 30, 2013, from $2,437 for the three months ended June 30, 2012.  Net Rental Revenue decreased $1,177, or 26%, to $3,322 for the six months ended June 30, 2013, from $4,499 for the six months ended June 30, 2012.  

 17 

The decrease was primarily due to a 54% and 44% decrease in prescriptions (orders) for our electrotherapy products for the three months and six months ended June 30, 2013 as compared to the same periods in 2012, driven by industry conditions related to health care reform, as discussed above.

Net Sales Revenue

Net Sales Revenue decreased $3,760, or 50%, to $3,829 for the three months ended June 30, 2013, from $7,589 for the three months ended June 30, 2012.  Net Sales Revenue decreased $4,653, or 32%, to $9,818 for the six months ended June 30, 2013, from $14,471 for the six months ended June 30, 2012.  

Net Sales Revenue for the three and six months ended June 30, 2013 represented 70% and 75% of total net revenue compared to 76% for the three and six months ended June 30, 2012.  Net Sales Revenue is comprised of two primary components: sales of electrotherapy devices and private-labeled distributed products, representing 23% and 25% of total net revenue for the three and six months ended June 30, 2013, respectively, and sales of recurring device consumables (batteries and electrodes), representing 47% and 49% of total net revenue for the three and six months ended June 30, 2013, respectively.  This compares to the sale of electrotherapy devices and private-labeled distributed products representing 36% and 35% of total net revenue for the three and six months ended June 30, 2012, respectively, and sale of device consumables representing 40% and 41% of total net revenue for the three and six months ended June 30, 2012, respectively,.  The decrease was primarily due to a 54% and 44% decrease in prescriptions (orders) for our electrotherapy products for the three and six months ended June 30, 2013 as compared to the same periods in 2012, driven by industry conditions related to health care reform, as discussed above.    

Gross Profit

Total gross profit for the three months ended June 30, 2013 was $3,589 (or 66% of total net revenue) compared to $8,240 (or 82% of total net revenue) in the three months ended June 30, 2012. Total gross profit for the six months ended June 30, 2013 was $9,066 (or 69% of total net revenue) compared to $15,371 (or 81% of total net revenue) in the six months ended June 30, 2012.

Total gross profit percentage for the three and six months ended June 30, 2013 decreased 16% and 12%, respectively, from the three and six months ended June 30, 2012.  The decrease in the gross profit percentage for the three and six months ended June 30, 2013 was primarily due to lower sales volume reported in the three and six months ended June 30, 2013, as we had less net revenue to cover manufacturing costs and incremental expenses incurred because of an increase to our allowance for obsolete inventory, due to excess quantities now in the field.   

Selling, General and Administrative (“SG&A”)

Total SG&A expenses decreased $1,155, or 16%, to $6,153 for the three months ended June 30, 2013 from $7,308 for the three months ended June 30, 2012.   Total SG&A expenses decreased $1,967, or 14%, to $11,986 for the six months ended June 30, 2013 from $13,953 for the six months ended June 30, 2012.    In an effort to minimize the impact of health care reform, we have made reductions in our fixed expenses by cutting our annual employee costs by approximately $3,000 through headcount reductions. These headcount reductions were executed during the latter part of the second quarter of 2013 and thus the full financial impact will not be evident on our financial statements until future quarters of 2013.   We also renegotiated our existing building lease, in which, among other things, base rent has been lowered and we are now operating in an approximate twelve month free rent period, which results in cash savings over the next twelve months of approximately $1,500.  These restructuring activities resulted in additional expenses of approximately $199 for the second quarter of 2013, primarily from severance and the write-off of the old lease building deposit.  We are monitoring the demand for our ZMI electrotherapy products and will make additional expense adjustments as necessary throughout the remainder of 2013.

 18 

A summary of expenses by department for the three and six months ended June 30, 2013 and 2012 is provided below:

		Three months ended									Six months ended
SG&A expense by department	June 30, 2013		% of Net Revenue			June 30, 2012		% of Net Revenue			June 30, 2013		% of Net Revenue			June 30, 2012		% of Net Revenue
Sales & Marketing	$	2,274		42	%	$	3,805		38	%	$	4,181		32	%	$	6,903		36	%
Reimbursement & Billing		2,037		37	%		2,047		20	%		4,268		32	%		4,144		22	%
General & Administrative		1,508		28	%		1,127		11	%		2,864		22	%		2,244		12	%
Engineering & Operations		334		6	%		329		3	%		673		5	%		662		3	%
Total SG&A expenses	$	6,153		112	%	$	7,308		72	%	$	11,986		91	%	$	13,953		73	%

Our sales and marketing expenses decreased by $1,531 and $2,722 for the three and six months ended June 30, 2013 over the same periods in 2012, primarily due to less commissions incurred during 2013 (total orders decreased 54% and 44% for the three and six months ended June 30, 2013 over the same periods in 2012) and changes made to our sales force, which included a reduction in direct sales employees and changes to compensation packages. Our reimbursement and billing expenses decreased by $10 for the three months ended June 30, 2013 as compared to the three months ended June 30, 2012 and increased by $124 for the six months ended June 30, 2013 as compared to the six months ended June 30, 2012, due to additional investments made in our reimbursement and billing department, consisting primarily of incremental system related expenses.  Our reimbursement and billing department relies on personnel, processes and systems to negotiate and collect from Third-party Payors. Therefore, we continue to evaluate and monitor the infrastructure in this department, as it is our primary function for cash collections, which may result in increased expenses in future periods.  Improvements in our reimbursement and billing function may lead to higher revenues, as better negotiations and collection efforts with Third-party Payors could result in an increase to our aggregate accounts receivable collection percentage. Our general and administrative expenses increased by $381 and $620 for the three and six months ended June 30, 2013 over the same periods in 2012, which was primarily the result of additional administrative infrastructure, including the addition of incremental regulatory personnel and administrative personnel to support the sales efforts in our ZND division and the write down of certain NeuroDyne Intangible Assets.  Engineering and operations increased by $5 and $11 for the three and six months ended June 30, 2013 over the same periods in 2012.  

Other Income (Expense)

Other expense is comprised of interest expense and other expense.

Interest expense for the three and six months ended June 30, 2013 was $214 and $344, respectively, compared to $81 and $174 for the same periods in 2012. The increase in interest expense is a result of our increased use of our revolving line of credit during the first six months of 2013, which resulted in a revolving line of credit balance of $6,870 as of June 30, 2013, versus a balance of $5,201 as of June 30, 2012.  

Other income for the three and six months ended June 30, 2013 was $78 and $72, respectively, as compared to other expense of $7 for the three and six months ended June 30, 2012.  Amounts for the three and six months ended June 30, 2013 include the change in the fair value of contingent consideration of approximately $70.

Income Tax Benefit (Expense)

Income tax benefit for the three and six months ended June 30, 2013 was $973 and $1,155 compared to income tax expense of ($371) and ($444) for the same periods in 2012.  Income tax benefit for the three and six months ended June 30, 2013 was the result of the Company generating a loss before income tax of ($2,700) and ($3,193), respectively.  Income tax expense for the three and six months ended June 30, 2012 was the result of the Company generating an income before income tax of $844 and $1,237, respectively.   The provision for income taxes is recorded at the end of each interim period based on the Company's best estimate of its effective income tax rate expected to be applicable for the full fiscal year.  The Company’s effective income tax rate for the three and six months ended June 30, 2013 was 36%.

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LIQUIDITY AND CAPITAL RESOURCES:

Line of Credit

We have an asset-backed revolving credit facility of up to $7,000, subject to reserves and reductions to the extent of changes in our asset borrowing base, under a Loan and Security Agreement (the “Doral Agreement”) with Doral Healthcare Finance, a division of Doral Money, Inc. Borrowings under the Doral Agreement bear interest at a variable rate equal to the greater of (i) the British Bankers’ Association LIBOR rate as published in The Wall Street Journal for dollar deposits in the amount of $1,000 with a maturity of one month or (ii) 3% per annum, plus, in each case, a margin of 3.75%. The Doral Agreement will mature on December 19, 2014. As of June 30, 2013, the effective interest rate under the Doral Agreement was 8% (7% interest rate and 1% fees). We may terminate the Doral Agreement at any time prior to the maturity date upon thirty (30) days’ prior written notice and upon payment in full of all outstanding obligations under the Doral Agreement. If we terminate the Doral Agreement, we must pay a specified early termination fee.

The availability of the line of credit depends upon our ongoing compliance with covenants, representations and warranties in the Doral Agreement and borrowing base limitations. Although the maximum amount of the line of credit is $7,000, the amount available for borrowing under the line of credit is subject to a ceiling based upon eligible receivables and other limitations, which may limit our ability to borrow the maximum amount. As of June 30, 2013, $6,870 was outstanding under the Doral Agreement and $16 was available for borrowing based on our current borrowing base.

The Doral Agreement contains certain customary restrictive and financial covenants for asset-backed credit facilities.  As of June 30, 2013, we were not in compliance with one of the financial covenants under the Doral Agreement.  As a result, all amounts due under the credit agreement are callable by the lender. We are currently in discussions with the lender and expect to receive a waiver; however, no assurance can be given.  If a waiver is not obtained, in addition to demanding immediate payment of amounts outstanding under the Credit Agreement, the lender can restrict or prevent us from borrowing while in default, which could have a material adverse impact on our cash flow and liquidity.

Limited Liquidity

Cash at June 30, 2013 was $445, compared to cash at December 31, 2012 of $823.

Cash used in operating activities was $940 for the six months ended June 30, 2013 compared to $1,042 of cash used in operating activities for the six months ended June 30, 2012. The primary uses of cash in operations for the six months ended June 30, 2013 was the result of the net loss reported for the period, an increase in deposits and other current assets and a decrease in accrued liabilities and income taxes, which were partially offset by a decrease in accounts receivable.  The primary uses of cash from operations for the six months ended June 30, 2012 was the result of decreases in collections on accounts receivable, including the impact of the industry Version 5010 electronic claims processing conversion, and increases in inventory required to support our increase in orders during the six months ended June 30, 2012, offset by increased net income and adjustments for non-cash items.  

Cash used in investing activities for the six months ended June 30, 2013 was $330 compared to cash used in investing activities of $981 for the six months ended June 30, 2012. Cash used in investing activities for the six months ended June 30, 2013 primarily represents purchases of equipment, partially offset by an increase in cash flows relating to the change in inventory held for rental, which reflects the change in our revenue mix towards selling rather than renting our products.  Cash used in investing activities for the six months ended June 30, 2012 primarily represents the purchase and in-house production of rental products, purchases of capital equipment and the purchase of the assets of NeuroDyne Medical Corp.  (See Note 5 of our Consolidated Financial Statements in our Annual Report on Form 10-K for the year-ended December 31, 2012 for additional information).  

Cash provided by financing activities was $892 for the six months ended June 30, 2013 compared with cash provided by financing activities of $1,857 for the six months ended June 30, 2012.  The primary financing sources of cash for the six months ended June 30, 2013 and 2012 were net borrowings under the line of credit, partially offset by payments on capital lease obligations and deferred financing fees.

Our limited liquidity is primarily a result of (a) the high level of outstanding accounts receivable because of deferred payment practices of Third-party Payors, (b) the required high levels of inventory kept with sales representatives held at the offices of health care providers that are standard in the electrotherapy industry, (c) the need for expenditures to continue to enhance the Company’s internal billing processes, (d) the delayed cost recovery inherent in rental transactions, and (e) expenditures required for on-going product development.  In addition, during the first half of 2013, we encountered industry challenges, specifically related to health care reform  that affected demand in our core electrotherapy business, ZMI. These factors have resulted in reimbursement changes for durable medical equipment, which has caused uncertainty to exist at the medical practitioner level causing a delay and decline in

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demand for our ZMI electrotherapy products.  We also have experienced reimbursement challenges from government and third party payors related to certain medical indications for our ZMI electrotherapy products, all of which have negatively impacted our revenue and financial results for the first half of 2013.  Limited liquidity may restrict our ability to carry out our current business plans and curtail our revenue growth.

For the six months ended June 30, 2013 and 2012, the Company reported negative cash flows from operations of $940 and $1,042, respectively. In addition, the Company’s line of credit increased from $5,906 at December 31, 2012 to $6,870 at June 30, 2013, primarily driven by the Company’s net loss and working capital requirements. Maximum borrowings under the line of credit are $7,000, subject to adjustments to its accounts receivable borrowing base, in which, as of June 30, 2013, the maximum amount the Company could borrow was $6,886. Management developed the Company’s operating plans for 2013 to emphasize cash flow, and under which the Company is making operational billing changes to increase cash collections as well as implementing various cost modifications to reduce expenses. In an effort to minimize the impact of health care reform, the Company has made reductions in its fixed expenses by cutting its annual employee costs by approximately $3,000 through headcount reductions. These headcount reductions were executed during the latter part of the second quarter of 2013 and thus the full financial impact will not be evident on our financial statements until future quarters of 2013.   The Company also renegotiated its existing building lease, under which, among other things, base rent has been lowered and the Company is now operating in an approximate twelve month free rent period, which is expected to result in cash savings over the next twelve months of approximately $1,500.  The Company is monitoring the demand for its ZMI electrotherapy products and will make additional expense adjustments as necessary throughout the remainder of 2013.  Management believes that through the restructuring activities completed during the second quarter of 2013 the Company’s cash flows from operating activities and borrowing available under the line of credit will be sufficient to fund cash requirements through June 30, 2014.

Our long-term business plan contemplates organic growth in revenues, through the addition of new products to our sales channel that could mitigate the decline in our ZMI electrotherapy products, and possible acquisitions. Therefore, in order to support a growth in revenue, we require, among other things, funds for the purchases of equipment (primarily for rental inventory), funds for the purchases of inventory and the payment of commissions to sales representatives, and funds for the expansion of our sales channel. On March 9, 2012, in an effort to diversify our product line and penetrate markets that our ZND subsidiary serves, we acquired substantially all NeuroDyne Medical Corp’s assets (See Note 5 of our Consolidated Financial Statements in our Annual Report on Form 10-K for the year-ended December 31, 2012 for additional information). Matters relating to the acquisition (including integration, operation and sales) have and will continue to require commitments of time and resources, which may detract and impede growth in other areas of our business. The NeuroDyne asset purchase agreement provides for a seven year contingent consideration, based on a declining percentage of net revenue generated by NeuroDyne products. The potential amount of all future payments that we could be required to make under the contingent consideration arrangement is between $0 and $52 based on a percentage of net revenue over the next  six years.

There is no assurance that our operations and available borrowings will provide enough cash for operating requirements or for increases in our inventory of products, as needed, for growth.  We may need to seek external financing through the issuance of debt or sale of equity, and we are not certain whether any such financing would be available to us on acceptable terms or at all.  Any additional debt would require the approval of Doral Healthcare Finance.

Our dependence on operating cash flow means that risks involved in our business can significantly affect our liquidity.  Contingencies such as unanticipated shortfalls in revenues or increases in expenses could affect our projected revenue, cash flows from operations and liquidity which may force us to curtail our operating plan or impede our growth.

We frequently receive, and expect to continue to receive, refund requests from insurance providers relating to specific patients and dates of service. Billing and reimbursement disputes are very common in our industry. These requests are sometimes related to a few patients and other times include a significant number of refund claims in a single request. We review and evaluate these requests and determine if any refund is appropriate. We also review claims where we are rebilling or pursuing additional reimbursement from that insurance provider. We frequently have significant offsets against such refund requests which may result in amounts that are due to us in excess of the amounts of refunds requested by the insurance providers. Therefore, at the time of receipt of such refund requests we are generally unable to determine if a refund request is valid and should be accrued as a liability.

As of June 30, 2013, we believe we have an adequate allowance for contractual adjustments relating to known insurance disputes and refund requests. However, no assurances can be given with respect to such estimates of reimbursements and offsets or the ultimate outcome of any refund requests.

CRITICAL ACCOUNTING POLICIES AND ESTIMATES:

There are several accounting policies that involve management’s judgments and estimates and are critical to understanding our

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historical and future performance, as these policies and estimates affect the reported amounts of revenue and other significant areas in our reported financial statements.

Please refer to the “Management’s Discussion and Analysis of Financial Condition and Results of Operation” located within our Annual Report on Form 10-K for the year ended December 31, 2012 filed with the Securities and Exchange Commission on March 28, 2013, and Note 2 to the Unaudited Condensed Consolidated Financial Statements in this Quarterly Report for further discussion of our “Critical Accounting Policies.”

ITEM 4. CONTROLS AND PROCEDURES

Disclosure Controls and Procedures

The Company, under the supervision and with the participation of the Company’s management, including the Company’s Chief Executive Officer and Chief Financial Officer, performed an evaluation of the effectiveness of the Company’s disclosure controls and procedures as of June 30, 2013. Based on that evaluation, the Chief Executive Officer and Chief Financial Officer concluded that the Company’s disclosure controls and procedures were effective as of June 30, 2013.

Changes in Internal Control Over Financial Reporting

There was no change in the Company’s internal control over financial reporting during the quarter ended June 30, 2013 that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

   

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PART II. OTHER INFORMATION

ITEM 1. LEGAL PROCEEDINGS

We are not a party to any material pending legal proceedings.

ITEM 1A. RISK FACTORS

Readers are encouraged to carefully consider the risk factors discussed in Part I, Item 1A. “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2012 (“2012 Annual Report”), which could materially affect our business, financial condition or future results. The risks described therein are not the only risks facing our Company. Additional risks and uncertainties not currently known to us or that we currently deem to be immaterial also may materially adversely affect our business, financial condition or operating results.  The risk factors set forth below supplements (and updates) the risk factors previously disclosed in the 2012 Annual Report:

THE PATIENT PROTECTION AND ACCOUNTABILITY ACT OF 2010 WILL HAVE AN IMPACT ON OUR BUSINESS WHICH MAY BE IN PART BENEFICIAL AND IN PART DETRIMENTAL.

In March 2010, broad federal health care reform legislation was enacted in the United States. This legislation did not become effective immediately in total, and may be modified prior to the effective date of some provisions. This legislation could have an impact on our business in a variety of ways including increased number of Medicaid recipients, increased number of individuals with commercial insurance, additional audits conducted by public health insurance plans such as Medicaid and Medicare, changes to the rules that govern employer group health insurance and other factors that influence the acquisition and use of health insurance from private and public payors. This legislation may result in a change in reimbursement for certain durable medical equipment. We believe the new healthcare legislation and these changes to reimbursement have caused uncertainty with prescribers, which we believe contributed to our drop in orders and revenue during the first half of 2013. We are currently unable to determine whether such trend will continue in future periods or whether the health care reform legislation will have other adverse consequences to our business and results of operations. To the extent prescribers write fewer prescriptions for our products or there is an adverse change to insurance reimbursement for our products, due to the new law or otherwise, our revenue and profitability will be materially adversely affected.

Effective this year, there is a 2.3% excise tax on the first sale of medical devices, with certain exceptions. We believe that a majority of our ZMI products are not subject to this tax but currently we can make no assurance.   We believe the majority of the products in our ZND division are subject to this tax.  For our products that are or become subject to this excise tax, we are uncertain of our ability to pass this tax on to third parties. Thus far this excise tax has not had a material impact on our financial results.  However, this tax may have a material impact on our business and financial results in future periods.  

Other reform measures changed the timeline to submit Medicare claims to one year from the date of service. We must expend resources to evaluate and potentially adjust our claims processing procedure to comply with Medicare’s faster filing requirements or risk denials of otherwise appropriate claims and the resulting diminished revenue.

Other reform measures were passed that allow Centers for Medicare and Medicaid (“CMS”) to place a moratorium on new enrollment of Medicare suppliers and to suspend payment to suppliers based upon a credible allegation of fraud from any source. It is unclear if CMS will use this new authority liberally, potentially impacting our cash-flow and revenue. Additional penalties were added for the knowing and improper retention of overpayments collected from government programs such as Medicare and Medicaid. Failure to identify and return overpayments within a specified time-frame can also implicate the federal False Claims Act with potential for fines and penalties all which could have a material adverse effect on our results of operations and cash flows.

HOSPITALS AND CLINICIANS MAY NOT BUY, PRESCRIBE OR USE OUR PRODUCTS IN SUFFICIENT NUMBERS, WHICH COULD RESULT IN DECREASED REVENUES AND PROFITS.

Hospitals and clinicians may not accept any of our products as effective, reliable, and cost-effective. Factors that could prevent such institutional customer acceptance include:

·   If customers conclude that the costs of these products exceed the cost savings associated with the use of these products;

·   If customers are financially unable to purchase these products;

·   If adverse patient events occur with the use of these products, generating adverse publicity;

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·   If we lack adequate resources to provide sufficient education and training to our customers;

·   If frequent product malfunctions occur, leading clinicians to believe that the products are unreliable; and

·   If physicians or other health care providers believe that our products will not be reimbursed by insurers or decide to prescribe competing products.

Because our sales are dependent on prescriptions from physicians, if any of these or other factors results in fewer prescriptions for our products being written, we will have reduced revenues and may not be able to fully fund operations. We experienced a steep decline in orders for our ZMI products during the first haf of 2013 and can make no assurances that demand for our products will not further decline in future periods.

ITEM 6. EXHIBITS

Exhibit Number	Description
3.1	Amended and Restated Articles of Incorporation (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed on October 7, 2008).
3.2	Amended and Restated Bylaws (incorporated by reference to Exhibit 10.2 of the Company’s Current Report on Form 8-K filed on October 7, 2008).
10.1*	Amendement No. 1 to Loan and Security Agreement, dated May 31, 2013, among Zynex, Inc., Zynex Medical, Inc., Zynex NeuroDiagnostics, Inc. Zynex Monitoring Solutions Inc., Zynex Billing and Consulting, LLC and Doral Healthcare Finance.
10.2*	Office Lease, effective May 1, 2013, between Public Service Credit Union and Zynex Medical, Inc.
31.1*	Certification of Chief Executive Officer Pursuant to Rule 13a-14(a)/15d-14(a) as Adopted Pursuant to Section 302 of Sarbanes-Oxley Act of 2002.
31.2*	Certification of Chief Financial Officer Pursuant to Rule 13a-14(a)/15d-14(a) as Adopted Pursuant to Section 302 of Sarbanes-Oxley Act of 2002.
32.1*	Certification of Chief Executive Officer and Chief Financial Officer Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101	The following financial statements, formatted in XBRL: (i) Condensed Consolidated Balance Sheets as of June 30, 2013 and December 31, 2012, (ii) Condensed Consolidated Statements of Operations for the three and six months ended June 30, 2013 and 2012 (iii) Condensed Consolidated Statements of Stockholders’ Equity as of June 30, 2013 (iv) Condensed Consolidated Statements of Cash Flows for the three and six months ended June 30, 2013 and 2012 and (v) Notes to Condensed Consolidated Financial Statements.

* Filed herewith.

   

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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.

		ZYNEX, INC.
Dated:	August 14, 2013	/s/ Thomas Sandgaard
		Thomas Sandgaard
		President, Chief Executive Officer and Treasurer
Dated:	August 14, 2013	/s/ Anthony A. Scalese
		Anthony A. Scalese
		Chief Financial Officer

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EX-10

Exhibit 10.1

AMENDMENT NO. 1 TO LOAN AND SECURITY AGREEMENT

This Amendment No. 1 to Loan and Security Agreement (“Amendment No. 1”) is executed by and between Doral Healthcare Finance, 10300 SW Greenburg Rd., Ste. 465, Portland, OR 97223, a division of Doral Money, Inc. (“Lender”); Zynex Billing and Consulting, LLC (“Zynex Billing and Consulting”); Zynex Europe, ApS (“Zynex Europe”); and Zynex Medical, Inc., Zynex, Inc., Zynex NeuroDiagnostics, Inc., and Zynex Monitoring Solutions Inc. (collectively, and jointly and severally, “Existing Borrower”) as of May 31, 2013, regardless of the date of signature.

Recitals

A.      Existing Borrower and Lender are parties to a Loan and Security Agreement, dated December 19, 2011 (the “Loan and Security Agreement”).

B.      Existing Borrower and Lender wish to add Zynex Billing and Consulting as an additional Borrower to the Loan and Security Agreement under the terms of this Amendment No. 1.

C.      Existing Borrower also wishes to amend the definition of Collateral in the Loan and Security Agreement so that the security interest granted to Lender under the Loan and Security Agreement includes not more than 65% of Existing Borrower’s or Zynex Billing and Consulting’s equity in any foreign subsidiary, including Zynex Europe.

D.      Lender has agreed to waive any Event of Default that resulted from the formation of Zynex Billing and Consulting.

E.      Lender also has agreed to waive any Event of Default that resulted from the formation of Zynex Europe so long as Existing Borrower, Zynex Billing and Consulting, and Zynex Europe comply with the money transfer restrictions to Zynex Europe as outlined in this Amendment No. 1.

Accordingly, the parties agree as follows:

Agreement

1.      Amendment. The Loan and Security Agreement is amended and  modified  in  the following respects:

a.    The definition of “Borrower” shall include, jointly and severally, Zynex Billing and Consulting.

b.    The following definitions are added to Section 1.1:

“ “Zynex Billing and Consulting, LLC” means Zynex Billing and Consulting, LLC, a limited liability company organized under the laws of the State of Colorado.”

“ “Zynex Europe, ApS” means Zynex Europe, ApS, a company organized under the laws of the country of Denmark.”

c.    The definition of “Collateral” is amended to read as follows:

“ “Collateral” means and includes all of Borrower’s now owned or hereafter acquired assets, whether tangible or intangible, including without limitation all of Borrower’s right, title, and interest in and to each of the following, wherever located and whether now existing or hereafter arising or acquired, including, without limitation, all of the following:

(a)	all Accounts;
(b)	all contract rights, including all Capitated Contract Rights and all proceeds therefrom;
(c)	all rights to payment for services rendered or work performed, but not yet billed;
(d)	all Patient Lists;
(e)	all inventory;
(f)	all equipment and fixtures;

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(g)	all federal, state, and local tax refunds;
(h)	all   general   intangibles,   including   without   limitation   payment intangibles and software;
(i)	all Intellectual Property;
(j)	all  Deposit  Accounts,  cash,  drafts,  certificates  of  deposit,  and general and special deposits;
(k)	all investment property and financial assets (other than margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System);
(l)	all instruments;
(m)	all  chattel  paper, including, without  limitation, electronic  chattel paper;
(n)	all goods and all accessions thereto;
(o)	all documents;
(p)	all letter of credit rights;
(q)	all insurance and certificates of insurance pertaining to any and all items of Collateral;
(r)	all books and records;
(s)	all files, correspondence, computer programs, tapes, disks, and related data processing software and other media which contain information identifying or pertaining to any of the Collateral or any Account Debtor or showing the amounts thereof or payments thereon or otherwise necessary or helpful in the realization thereon or the collection thereof;
(t)	all cash deposited with any Affiliate of Lender or with Doral Bank;
(u)	those commercial tort claims, if any, described on Schedule 1.1 hereto;
(v)	any and all products and replacements of the foregoing; and
(w)	all cash and non-cash proceeds of the foregoing (including, but not limited to, any claims to any items referred to in this definition and any claims against third parties for loss of, damage to, or destruction of any or all of the Collateral or for proceeds payable under or unearned premiums with respect to policies of insurance) in whatever form.

Notwithstanding the foregoing, Collateral shall include no more than 65% of equity having ordinary voting power in any foreign subsidiary of Borrower.”

d.Section 9.2 is amended and modified to read as follows:

“9.2    Prohibited Distributions and Payments, Etc. Borrower shall not, directly or indirectly, declare or make any Prohibited Distribution or Prohibited Payment, except, on the express condition that if there is no Default or Event of Default that has occurred or that would result therefrom, Borrower may make the following payments: (i) dividends or distributions declared, paid or made in favor of another Borrower or its subsidiaries, (ii) any purchase, redemption or retirement of equity interests of Borrower so long as the amount of such purchases, redemptions or retirements does not exceed $750,000 in the aggregate in any calendar year, (iii) payments with respect to any Permitted Acquisitions, (iv) payments for any earnout obligations incurred in connection with Permitted Acquisitions, (v) Borrower may make any Prohibited Distribution or Prohibited Payment pursuant to and in accordance with equity incentive plans or other benefit plans for directors, management or employees, and (vi) Borrower may transfer up to $100,000 in the aggregate in any calendar year to Zynex Europe, ApS.”

e.Section 9.5 is amended and modified to read as follows:

“9.5Loans. Borrower shall not make any loans or advances to or for the benefit of any officer, director, manager, shareholder, member, or partner of Borrower except advances for routine expense allowances in the ordinary course of business. Borrower shall not make or suffer to exist any loans or advances to or for the benefit of any Affiliate of Borrower, except for intercompany loans or advances to or for the benefit of another Borrower or its subsidiaries and Permitted Indebtedness. Notwithstanding the foregoing, Borrower shall not make any loans or advances to Zynex Europe, ApS that exceed $100,000 in the aggregate in any calendar year, and Zynex Europe, ApS shall not make any loans or advances to Borrower or any of its subsidiaries. Borrower shall not make any payment on any obligation owing to any officer,

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director, manager, shareholder, member, partner, or Affiliate of Borrower, except (i) payments of salary and payments to the holder of any Subordinated Indebtedness, if any, in accordance with the terms of the subordination agreement among such subordinated creditor, Borrower, and Lender or (ii) repayments of intercompany loans or advances with another Borrower or its subsidiaries permitted in this section 9.5.”

2.         Joinder. Zynex Billing and Consulting hereby agrees to be, jointly and severally, a Borrower under the Loan and Security Agreement, and shall abide by all of the terms applicable to the Borrower, except as follows: Zynex Billing and Consulting’s assets and liabilities (i) shall not be included in the Borrowing Base, and (ii) shall not be included or accounted for in the Borrowing Base Certificate.

3.         Distributions to Zynex Europe. Zynex Europe covenants and agrees that if Existing Borrower or Zynex Billing and Consulting attempts to transfer more than $100,000 in the aggregate in any calendar year to Zynex Europe, Zynex Europe shall reject the amount that is over $100,000 in the aggregate and immediately inform Lender of the attempted transfer.

4.         Waiver. Lender hereby waives, as of the date of formation, any Event of Default that resulted from the formation of Zynex Billing and Consulting or Zynex Europe. The waiver provided in this paragraph shall not, except as expressly set forth above, serve to otherwise waive, supplement or amend the Loan and Security Agreement, which Loan and Security Agreement with all other terms and conditions therein, shall, except as waived hereby, remain in full force and effect. The waiver provided in this paragraph shall not operate to waive any other existing or future defaults, potential defaults or Events of Default on the part of the Borrower, whether known or unknown to Lender. Under no circumstances shall this waiver entitle the Borrower to any other or further waiver in any similar or other circumstances.

5.         Grant of Security. Without limiting the generality of the effect of the joinder of Zynex Billing and Consulting as a Borrower in the preceding Section 2, to secure the payment and performance of the Obligations, Zynex Billing and Consulting hereby mortgages, pledges, and assigns to Lender, and as agent for its Affiliates, all of the Collateral and grants to Lender for itself, and as agent for its Affiliates, a security interest and Lien in and upon all Collateral owned by or in which Zynex Billing and Consulting has an interest.

6.         Amended Schedules 1.1 and 5.1. Attached is Amended Schedule 1.1 and Amended Schedule 5.1 under the Loan and Security Agreement, which includes Zynex Billing and Consulting’s information pursuant to its joinder under this Amendment No. 1. The attached Amended Schedule 1.1 and Amended Schedule 5.1 replace in their entirety initial Schedule 1.1 and initial Schedule 5.1 attached to the Loan and Security Agreement.

7.         Representations and Warranties. Zynex Billing and Consulting represents and warrants to Lender as follows:

a.	Organization;  Power;  Qualification. Zynex Billing and Consulting is duly organized, validly existing, and in good standing under the laws of its state of organization, and is authorized to do business in each state in which the nature of its properties or its activities requires such authorization, except where failure to be so authorized to do business would not reasonably be expected to result in a Material Adverse Change.
b.	Authorization; Enforceability.   Zynex Billing and Consulting has the power and authority to, and is duly authorized to, execute and deliver the Loan Documents to be executed by Zynex Billing and Consulting. All of the Loan Documents to which Zynex Billing and Consulting is a party constitute the legal, valid, and binding obligations of Zynex Billing and Consulting, enforceable in accordance with their terms, except as limited by bankruptcy, insolvency, or similar laws of general application relating to the enforcement of creditors’ rights generally.
c.	Subsidiaries; Ownership.Except as shown on Amended Schedule 5.1, Zynex Billing and Consulting does not have any subsidiaries. The membership interests of Zynex Billing and Consulting have been duly and validly issued and, if applicable, are fully paid and nonassessable.
d.	Conflicts.    Neither the execution and delivery of the Loan Documents, nor consummation of any of the transactions therein contemplated nor compliance with the terms and provisions thereof, will contravene any provision of law or any judgment, decree, license, order, or permit applicable to Zynex Billing and Consulting or will conflict with, or will result in any breach of, any agreement to which Zynex Billing and Consulting is a party or by which Zynex Billing and Consulting may be bound or subject, or violate any provision of the organizational documents of Zynex Billing and Consulting, except where such conflict or violation would not reasonably be expected to result in a Material Adverse Change.

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e.	Consents, Governmental Approvals, Etc.No governmental approval nor any consent or approval of any third Person (other than those which have been obtained prior to the date hereof or where the failure to obtain such consent or approval would not reasonably be expected to result in a Material Adverse Change) is required in connection with the execution, delivery, and performance by Zynex Billing and Consulting of the Loan Documents. Zynex Billing and Consulting is in compliance with all applicable governmental approvals and all applicable laws, except where noncompliance would not reasonably be expected to result in a Material Adverse Change.
f.	Amended Schedule 5.1. Amended Schedule 5.1 is complete, correct, accurate, and does  not fail to state a material fact necessary for Lender  to  complete its due diligence with respect to Zynex Billing and Consulting.
g.	Title; Liens. Except for items described in Amended Schedule 5.1 and for Permitted Liens, all of the properties and assets of Zynex Billing and Consulting are free and clear of all Liens, and Zynex Billing and Consulting has good and marketable title to such properties and assets. Each Lien granted, or intended to be granted, by Zynex Billing and Consulting to Lender pursuant to the Loan Documents is a valid, enforceable, perfected, first priority Lien and security interest.
h.	Indebtedness and Guaranties. Set forth on Amended Schedule 5.1 is a complete and correct listing of all of Zynex Billing and Consulting’s (i) Indebtedness for Money Borrowed, and (ii) guaranties and other contingent obligations.
i.	Litigation, Suits, Actions, Etc. Except as disclosed on Amended Schedule 5.1, as of the date of this Amendment, no litigation, arbitration, governmental investigation, proceeding, or inquiry is pending or, to the knowledge of Zynex Billing and Consulting, threatened against Zynex Billing and Consulting or that could affect any of the Collateral.
j.	Tax Returns and Payments. All tax returns required to be filed by Zynex Billing and Consulting in any jurisdiction have been filed and all taxes (including property taxes) have been paid prior to the time that such taxes could give rise to any lien, except taxes that are being contested in good faith by appropriate proceedings and for which Zynex Billing and Consulting has (i) set aside on its books reserves in amounts no less than required by GAAP, and (ii) notified Lender of the amount of tax in dispute. Upon Lender’s request, Zynex Billing and Consulting will provide Lender with a written analysis of the method by which the reserve has been determined.
k.	Financial Condition. Zynex Billing and Consulting has delivered to Lender copies of Zynex Billing and Consulting’s unaudited consolidated statements of operations, members’ equity and cash flow. The financial statements submitted shall fairly present the financial condition of Zynex Billing and Consulting as of the respective dates and shall have been prepared in accordance with GAAP (except, with respect to the unaudited statements, for the presentation of footnotes and for applicable normal year-end audit adjustments). There is no Indebtedness of Zynex Billing and Consulting which is not reflected in the financial statements, and no event or circumstance has occurred since the date of the financial statements which has had or could result in a Material Adverse Change.
l.	ERISA. Neither Zynex Billing and Consulting nor any Related Company maintains or contributes to any Benefit Plan other than those listed on Amended Schedule 5.1. Further, (i) no Reportable Event (as defined in ERISA) has occurred  and  is continuing with respect to any Benefit Plan of Zynex Billing and Consulting that when taken together with all other such Reportable Events for which liability is reasonably expected by Zynex Billing and Consulting to occur would reasonably be expected to result in a Material Adverse Change,  and  (ii) the  PBGC  has  not instituted proceedings to terminate any Benefit Plan of Zynex Billing and Consulting. Zynex Billing and Consulting and each Related Company has satisfied the minimum funding standards under ERISA with respect to its Benefit Plans and is in  compliance in all material respects with the presently applicable provisions of ERISA and the Code, and has not incurred any liability to the PBGC or a Benefit Plan under Title IV of ERISA other than a liability to the PBGC for premiums under Section 4007 of ERISA.
m.	Capitalization. Zynex Billing and Consulting’s membership interests are correctly listed on Amended Schedule 5.1.
n.	Defaults.  No Default or Event of Default has occurred and is continuing.
o.	Payroll Taxes. Zynex Billing and Consulting has made all payroll tax deposits for all of its employees on or before the date when due.
p.	Solvency. Zynex Billing and Consulting is Solvent. No transfer of property is being made by Zynex Billing and Consulting and no obligation is being incurred by Zynex Billing and Consulting in connection with the transactions contemplated by this Agreement or the other Loan Documents with the intent to hinder, delay, or defraud either present or future creditors of Zynex Billing and Consulting.

 4 

8.	Amendment Fee; Reimbursement of Expenses and Fees.  Borrower will  pay to Lender $3,000.00 for an amendment fee, plus all Expenses and Fees, including reasonable attorneys’ fees expended or incurred by Lender in connection with the negotiation and preparation of this Amendment No. 1 contemporaneously with the execution of this Amendment No. 1.
9.	Reaffirmation; Certification. Borrower hereby remakes all representations and warranties contained in the Loan and Security Agreement, as updated by Amended Schedule 5.1, and reaffirms all covenants set forth therein. Borrower further certifies that as of the date of this Amendment No. 1, except as specifically set forth herein, there exists no other Event of Default as defined in the Loan and Security Agreement, nor any condition, act or event which with the giving of notice or the passage of time or both would constitute any such Event of Default.
10.	Affirmation. Each Borrower (including without limitation, Zynex Billing and Consulting) reaffirms any and all of the Obligations owed by any of them to Lender under all of the Loan Documents, and each of them releases Bank of and from any and all claims, demands, damages, liabilities, obligations, actions arising out of, connected with or in any way related to any of the Loan Documents that may exist or have arisen, whether known or known, up to and including the date of this Amendment No. 1.
11.	No Other Changes. Except as specifically amended by this Amendment No. 1, all other terms and conditions of the Loan and Security Agreement shall remain in full force and effect, without waiver or modification. This Amendment No. 1 shall not, except as expressly set forth above, serve to otherwise waive, supplement or amend the Loan and Security Agreement, which Loan and Security Agreement with all other terms and conditions therein, shall, except as waived hereby, remain in full force and effect. This Amendment No. 1 represents the parties’ final and complete understanding of the amendments to the Loan and Security Agreement.
12.	Miscellaneous. This Amendment No. 1 may be executed in any number of counterparts, each of  which when executed and delivered shall be deemed to be an original, and all of which when taken together shall constitute one and the same Amendment No. 1. A facsimile or digital copy of  this Amendment No. 1 shall be deemed to be an original. Capitalized terms in this Amendment No. 1, not otherwise defined, shall have the meanings attributed to them in the Loan and Security Agreement.

[Signature page follows]

 5 

UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY A LENDER CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE BORROWER’S RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY THE LENDER TO BE ENFORCEABLE.

DORAL HEALTHCARE FINANCE, a division of Doral Money, Inc. By: /S/Jennifer Sheasgreen Name:  Jennifer Sheasgreen Title: Managing Director	ZYNEX MEDICAL, INC. By: /S/Anthony Scalese Name: Anthony Scalese Title: Chief Financial Officer
ZYNEX, INC. By: /S/Anthony Scalese Name: Anthony Scalese Title: Chief Financial Officer	ZYNEX NEURODIAGNOSTICS, INC. By: /S/Anthony Scalese Name: Anthony Scalese Title: Chief Financial Officer
ZYNEX MONITORING SOLUTIONS INC. By: /S/Anthony Scalese Name: Anthony Scalese Title: Chief Financial Officer	ZYNEX BILLING AND CONSULTING, LLC By: /S/Anthony Scalese Name: Title:
ZYNEX EUROPE, APS By: /S/Anthony Scalese Name: Anthony Scalese Title: Chief Financial Officer

 6 

Amended Schedule 1.1

Commercial Tort Claims

Borrower brought suit in District Court in Douglas County, Colorado, against James Fischer and Golden State Medical, Inc. alleging that they published defamatory statements of and concerning Borrower on an Internet website called InvestorsHub.com, and engaged in securities fraud. Borrower seeks unspecified damages to its reputation and market value of its publicly traded shares. The matter has not been set for trial. The main case is: Zynex v. Doe 1, Case No. 2011CV2401 (this is the main case). There is a related case to enforce an out of state subpoena, which is Zynex v. Doe 1, Case No. 2012CV457.

 7 

Amended Schedule5.1

Borrower Information, Liens, Indebtedness for Money Borrowed and Guaranties, Litigation, ERISA Benefit Plans

Borrower’s legal name:	Zynex, Inc. Zynex Medical, Inc. Zynex NeuroDiagnostics, Inc. Zynex Monitoring Solutions Inc. Zynex Billing and Consulting, LLC
Type of organization (e.g., corporation, partnership, limited liability company):	Zynex, Inc. – Corporation Zynex Medical, Inc. – Corporation Zynex NeuroDiagnostics, Inc. - Corporation Zynex Monitoring Solutions Inc. – Corporation Zynex  Billing  and  Consulting,  LLC  –  Limited Liability Company
Trade names, fictitious names, assumed names, “doing business as” names, and other legal names used by Borrower in preceding six (6) years:	Stroke Recovery Systems (no longer used) Zynex Medical Holdings
Borrower’s state of incorporation or formation:	Zynex, Inc. – Nevada Zynex Medical, Inc. – Colorado Zynex NeuroDiagnostics, Inc. – Colorado Zynex Monitoring Solutions Inc. – Colorado Zynex Billing and Consulting, LLC – Colorado
Borrower’s taxpayer identification number:	Zynex, Inc. – 90-0214497 Zynex Medical, Inc. – 84-1451963 Zynex NeuroDiagnostics, Inc. – 27-2414415 Zynex Monitoring Solutions Inc. – 27-2414516 Zynex Billing and Consulting, LLC – 46-1094008
Jurisdictions in which Borrower is qualified to do business as a foreign entity:	Zynex, Inc. – None Zynex Medical, Inc. – Alabama, Alaska, Arizona, California, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South Carolina, Texas, Utah, Virginia, Washington, West Virginia and Wyoming Zynex NeuroDiagnostics, Inc. – None Zynex Monitoring Solutions Inc. – None Zynex Billing and Consulting, LLC – None

 8 

Borrower’s federal employer identification number:	See tax identification numbers above.
Borrower’s subsidiaries and affiliates:	Zynex Medical, Inc. (subsidiary of Zynex, Inc.) Zynex NeuroDiagnostics, Inc. (subsidiary of Zynex, Inc.) Zynex Monitoring Solutions Inc. (subsidiary of Zynex, Inc.) Zynex Billing and Consulting, LLC (subsidiary of Zynex, Inc.) Zynex Europe, ApS (an Anpartsselskab (Denmark limited liability company) and a wholly-owned subsidiary of Zynex, Inc.)
Aggregate number of outstanding shares of capital stock/membership interests:	Zynex, Inc. – 31,148,234 outstanding shares of Common Stock, $0.001 par value; No shares of Preferred Stock outstanding (As of March 31, 2013) Zynex Medical, Inc. – 1,000,000 outstanding shares of Common Stock, $0.000001 par value (100% owned by Zynex, Inc.) Zynex NeuroDiagnostics, Inc. – 1,000,000 outstanding shares of Common Stock, no par value (100% owned by Zynex, Inc.) Zynex Monitoring Solutions Inc. – 1,000,000 outstanding shares of Common Stock, no par value (100% owned by Zynex, Inc.) Zynex Billing and Consulting, LLC – 100 outstanding units of membership interests (80% owned by Zynex, Inc.; 20% owned by Agnes Kilinski)
Liens against Borrower or any of Borrower’s assets (other than in favor of Doral Money, Inc.):	1.The following Uniform Commercial Code liens that exist on the assets of the Borrowers: ¨   Debtor: Zynex Medical, Inc. Security Party: CIT Technology Financing Services, Inc. State/UCC No./Filing Date: Colorado/2008F044486/April 30, 2008 ¨   Debtor: Zynex Medical, Inc. Security Party: Wells Fargo Financial Leasing, Inc. State/UCC No./Filing Date: Colorado/20132005506/January 17, 2013 ¨   Debtor: Zynex, Inc. Security Party: Xerox Corporation State/UCC No./Filing Date: Nevada/201001250-9/May 18, 2010
	¨   Debtor: Zynex, Inc. Security Party: Xerox Corporation State/UCC No./Filing Date: Nevada/2010028638-6/November 12, 2010

 9 

Borrower’s Fiscal Year-End	December 31
Borrower addresses for notices:	9990 Park Meadows Drive Lone Tree, CO 80124 Attention: Anthony Scalese Fax: (800) 495-6695 ascalese@zynexmed.com
Address of principal place of business or chief executive office of Borrower:	9990 Park Meadows Drive Lone Tree, CO 80124
Location of Borrower’s receivable files, Patient Lists, and books and records:	9990 Park Meadows Drive Lone Tree, CO 80124
List names, addresses, and states of incorporation or formation of all Subsidiaries:	Zynex Medical, Inc. – Colorado 9990 Park Meadows Drive Lone Tree, CO 80124 Zynex Monitoring Solutions Inc. – Colorado 9990 Park Meadows Drive Lone Tree, CO 80124 Zynex NeuroDiagnostics, Inc. – Colorado 9990 Park Meadows Drive Lone Tree, CO 80124 Zynex Billing and Consulting, LLC – Colorado 9990 Park Meadows Drive Lone Tree, CO 80124 Zynex Europe, ApS – Denmark Faelledvej 1, Box 19 (BDO Seidman Office) DK-5100 Odense C, Denmark
Names and titles of Authorized Representative:	Zynex, Inc. – Thomas Sandgaard (President and Chief Executive Officer), Anthony Scalese (Chief Financial Officer) Zynex Medical, Inc. – Thomas Sandgaard (President), Anthony Scalese (Chief Financial Officer) Zynex NeuroDiagnostics, Inc. – Thomas Sandgaard (President), Anthony Scalese (Chief Financial Officer) Zynex Monitoring Solutions Inc. – Thomas Sandgaard (President), Anthony Scalese (Chief Financial Officer) Zynex Billing and Consulting, LLC – Thomas Sandgaard (Chief Executive Officer), Anthony Scalese (Chief Financial Officer), Agnes Kilinski (President)
Addresses of all operating facilities of Borrower:	9990 Park Meadows Drive Lone Tree, CO 80124

 10 

Names and addresses of all landlords for any office, facility, or building leased by Borrower:	Spiral Lone Tree LLC 6909 West Ray Road, Suite 9 Chandler, AZ 85663 Borrower intends to enter into a new lease for the same property with Public Service Credit Union, with address of: c/o Cushman Wakefield PO Box 45258 San Francisco, CA 94145
Addresses of all locations of Collateral (if different or additional to above addresses):	9990 Park Meadows Drive Lone Tree, CO 80124 Note:  Inventory  is  also  held  by  numerous  sales representatives in multiple locations/states
List of all of Borrower’s Intellectual Property (include all trademarks, patents, copyrights, service marks, and licenses):	Trademarks:
	¨	NEUROMOVE (trademark pending with USPTO – filed 9/29/2011 – Serial No. 85435694)
	¨	NEUROMOVE (Reg. No. 003146784, filed with EU-OHIM by Stroke Recovery Systems on 5/19/2005)
	¨	Zynex Medical (Reg. No. 3,005,711, filed with USPTO by Zynex Medical, Inc. on 10/11/2005)
	¨	Zynex (Reg. No. 3,167,369, filed with USPTO by Zynex, Inc. on 11/7/2006)
	Service Marks:
	¨	TruWave
	¨	E-Wave
	¨	ValuTENS
	¨	ValuTENS II
	¨	IF 8000
	¨	IF 8100
	¨	NexWave
	Copyrights:
	¨	Firmware used in Zynex products
	¨	Promotional and instructional materials relating to products
	Patent:
	¨	Provisional patent for the development blood volume monitor
List all of Borrower’s Deposit Accounts (bank, account number, account name, authorized signers):	See attached Annex 1 (Bank Accounts) to Schedule 5.1.
Lockbox Account information:	See attached Annex 1 (Bank Accounts) to Schedule 5.1.

 11 

Name and Address of Borrower’s attorneys:	Perkins Coie LLP 1900 Sixteenth Street, Suite 1400 Denver, CO 80202 Attention: Jeffrey A. Beuche
Name and Address of Borrower’s accountants:	GHP Horwath, P.C. 1670 Broadway, Suite 3000 Denver, CO 80202
List all material contracts held by Borrower [For purposes of this response, list any agreement affecting the cash flow of Borrower’s business in an amount equal to or exceeding 0.25% of net annualized revenues]:	1.	Loan and Security Agreement, dated December 19, 2011, among Zynex, Inc., Zynex Medical, Inc., Zynex NueroDiagnostics, Inc., Zynex Monitoring Solutions Inc. and Doral Healthcare Finance.
	2.	Asset Purchase Agreement dated March 9, 2012 between Zynex NeuroDiagnostics, Inc., NeuroDyne Medical Corp. and Tahir Chaudry.
	3.	Premise Lease, dated November 12, 2009, between Zynex Medical, Inc. and Spiral Lone Tree, LLC.
	4.	Amended and Restated Employment Agreement, dated August 11, 2011, between Zynex, Inc. and Thomas Sandgaard.
	5.	Various employment agreements with consultants, independent contractors and sales representatives.
	6.	Various purchase orders payable by the Borrowers for inventory and other operating and fixed assets.
	7.	Lease Agreement, dated February 16, 2010, between Zynex Medical, Inc. and XEROX Corporation.
	8.	Lease Agreement, dated May 11, 2010, between Zynex Medical, Inc. and XEROX Corporation.
	9.	Lease Agreement, dated November 9, 2010, between Zynex Medical, Inc. and XEROX Corporation.
	10.	Employee health insurance plan with Anthem Blue Cross.
	11.	Premium Finance Agreement, dated December 1, 2010, between Zynex Medical, Inc. and Premium Financing Specialists Corp. (financing of D&O insurance) (agreement renewed as of December 1, 2012).
	12.	Lease Agreement, dated July 19, 2011, between Zynex, Inc. and Mercedes-Benz of Denver (Mercedes-Benz Financial Services USA LLC).
	13.	Lease Agreement, dated September 26, 2008, between Zynex Medical, Inc. and Pitney Bowes Global Financial Services (mail equipment).
	14.	Operating agreement for Zynex Billing and Consulting, LLC, dated November 19, 2012.
	15.	Management agreement between Zynex Billing and Consulting, LLC and Agnex Kilinski, dated November 19, 2012.
	16.	Purchase, supply and distribution agreement between Zynex NeuroDiagnostics Inc. and Neurovirtual USA Inc., dated March 12, 2013.

 12 

List all Indebtedness for Money Borrowed: all of Borrower’s (i) Indebtedness for Money Borrowed, and (ii) guaranties and other contingent obligations:	1.	Loan and Security Agreement, dated December 19, 2011, among Zynex, Inc., Zynex Medical, Inc., Zynex NueroDiagnostics, Inc., Zynex Monitoring Solutions Inc. and Doral Healthcare Finance.
	2.	Various purchase orders payable by the Borrowers for inventory and other operating and fixed assets.
	3.	Lease Agreement, dated February 16, 2010, between Zynex Medical, Inc. and XEROX Corporation.
	4.	Lease Agreement, dated May 11, 2010, between Zynex Medical, Inc. and XEROX Corporation.
	5.	Lease Agreement, dated November 9, 2010, between Zynex Medical, Inc. and XEROX Corporation.
	6.	Premium Finance Agreement, dated December 1, 2010, between Zynex Medical, Inc. and Premium Financing Specialists Corp. (financing of D&O insurance) (agreement renewed as of December 1, 2011).
	7.	Lease Agreement, dated July 19, 2011, between Zynex, Inc. and Mercedes-Benz of Denver (Mercedes-Benz Financial Services USA LLC).
	8.	Lease Agreement, dated September 26, 2008, between Zynex Medical, Inc. and Pitney Bowes Global Financial Services (mail equipment).
	9.	Line of Credit with Micro Center for the purchase of computer equipment.
	10.	Wells Fargo corporate credit card.
	11.	Purchase, supply and distribution agreement between Zynex NeuroDiagnostics Inc. and Neurovirtual USA Inc., dated March 12, 2013.
List all guaranties and other contingent obligations	Absolute Unconditional Lease Guaranty, dated
of Borrower:	November 12, 2009, between Zynex, Inc. and Spiral Lone Tree, LLC.
List all litigation, arbitrations, governmental investigations, proceedings, or inquiries pending or, to the knowledge of Borrower, existing or threatened against Borrower or that could affect any of the Collateral:	None.
List  all  ERISA  Benefit  Plans  of  Borrower  and Related Companies:	Zynex Inc. 401(k) Plan
Notice of Medicare Audit	Borrower was notified April 2, 2013 that it will be subject to a Medicare Pre-Payment audit for HCPCS codes E0720 (2 lead TENS), E0730 (4 lead TENS), and E0731 (Conductive garment). The audit will be conducted by Noridian Administrative Services, the Durable Medical Equipment Medicare Administrative Contractor (DME MAC) for Jurisdiction D.

 13 

Annex 1 to Amended Schedule 5.1 Bank Accounts

Company:	Zynex Medical, Inc.
Bank:	Wells Fargo Bank, N.A.
Branch:	Highlands Ranch, CO
Type:	Payroll Account
Acct:	334-2745365
Authorized Signers:	Thomas Sandgaard, Anthony Scalese
Company:	Zynex Medical, Inc.
Bank:	Wells Fargo Bank, N.A.
Branch:	Highlands Ranch, CO
Type:	Commercial Checking
Acct:	798-6031040**
Authorized Signers:	Thomas Sandgaard, Anthony Scalese
Company:	Zynex Medical, Inc.
Bank:	Wells Fargo Bank, N.A.
Branch:	Highlands Ranch, CO
Type:	Savings
Acct:	798-6031057**
Authorized Signers:	Thomas Sandgaard, Anthony Scalese
Company:	Zynex Medical, Inc.
Bank:	Wells Fargo Bank, N.A.
Branch:	Portland Regional Commercial Bank Office
Type:	Commercial Checking - Lockbox
Acct:	4123111684**
Authorized Signers:	Thomas Sandgaard, Anthony Scalese
Company:	Zynex Medical, Inc.
Bank:	Wells Fargo Bank, N.A.
Branch:	Portland Regional Commercial Bank Office
Type:	Commercial Checking – Government Lockbox
Acct:	4121772420**
Authorized Signers:	Thomas Sandgaard, Anthony Scalese
Company:	Zynex Medical, Inc.
Bank:	Wells Fargo Bank, N.A.
Branch:	Portland Regional Commercial Bank Office
Type:	401(k) Account
Acct:	4123819963**
Authorized Signers:	Thomas Sandgaard, Anthony Scalese
Company:	Zynex NeuroDiagnostics, Inc.
Bank:	Wells Fargo Bank, N.A.
Branch:	Portland Regional Commercial Bank Office
Type:	Commercial Checking
Acct:	4122029762
Authorized Signers:	Thomas Sandgaard, Anthony Scalese

 14 

Company:	Zynex Monitoring Solutions Inc.
Bank:	Wells Fargo Bank, N.A.
Branch:	Portland Regional Commercial Bank Office
Type:	Commercial Checking
Acct:	4122029770
Authorized Signers:	Thomas Sandgaard, Anthony Scalese
Company:	Zynex NeuroDiagnostics, Inc.
Bank:	Wells Fargo Bank, N.A.
Branch:	Portland Regional Commercial Bank Office
Type:	Commercial Checking
Acct:	4125504324
Authorized Signers:	Thomas Sandgaard, Anthony Scalese
Company:	Zynex Billing and Consulting, LLC.
Bank:	Wells Fargo Bank, N.A.
Branch:	Portland Regional Commercial Bank Office
Type:	Commercial Checking
Acct:	4122398993
Authorized Signers:	Thomas Sandgaard, Anthony Scalese

** Subject to an account control agreement.

   

 15 

EX-10

Exhibit 10.2

OFFICE LEASE

PARK MEADOWS CORPORATE CENTER IV

9990 PARK MEADOWS DRIVE

LONE TREE, COLORADO 80124

PUBLIC SERVICE CREDIT UNION,

a Colorado nonprofit corporation

(as Landlord)

and

ZYNEX MEDICAL, INC.

a Colorado corporation

(as Tenant)

   

TABLE OF CONTENTS

Section 1		BASIC LEASE PROVISIONS	1
	1.1	Date	1
	1.2	Landlord	1
	1.3	Tenant	1
	1.4	Premises	1
	1.5	Building	1
	1.6	Commencement Date	1
	1.7	Expiration Date	1
	1.8	Base Rent	1
	1.9	Base Year	1
	1.10	Address for Rent Payments	1
	1.11	Tenant’s Use	1
	1.12	Tenant’s Pro Rata Share	1
	1.13	Security Deposit	1
	1.14	Tenant Improvements Allowance	1
	1.15	Term	1
	1.16	Landlord’s Address for Notices	1
	1.17	Tenant’s Address for Notices	1
	1.18	Tenant’s Broker	2
	1.19	Landlord’s Broker	2
	1.20	Guarantor	2
Section 2		LEASE OF THE PREMISES	2
Section 3		COMMON AREAS	2
Section 4		TERM	3
	4.1	General	3
	4.2	Options to Extend	3
Section 5		TENANT IMPROVEMENTS	3
Section 6		RENT	3
	6.1	Base Rent	3
	6.2	Additional Rent	4
	6.3	Operating Expenses	4
	6.4	Operating Expenses Inclusions	4
	6.5	No Set Off	7
Section 7		PERSONAL PROPERTY TAXES	7
Section 8		INSURANCE	7
	8.1	Landlord’s Insurance	7
	8.2	Tenant’s Insurance	8
	8.3	Forms of the Policies	8
	8.4	Waiver of Right of Recovery	8
	8.5	Adequacy of Coverage	8
Section 9		LANDLORD’S SERVICES	8
	9.1	Maintenance	8
	9.2	Services	9
	9.3	Tenant Purchases	9
	9.4	Business Hours	9
	9.5	Tenant’s Costs	9
	9.6	Limitation on Liability	9

 i 

Section 10		USE OF PREMISES	10
	10.1	General	10
	10.2	Parking	10
	10.3	Signage	11
	10.4	Compliance With Law	12
Section 11		QUIET ENJOYMENT	12
Section 12		EFFECT OF SALE	12
Section 13		ALTERATIONS	12
	13.1(a)	Alterations; General	12
	13.1(b)	Initial Alterations	12
	13.2	Notice	13
	13.3	Freestanding Partitions	13
	13.4	Remodeling by Landlord	13
Section 14		MAINTENANCE AND REPAIR OF THE PREMISES	13
Section 15		MECHANICS’ LIENS	14
Section 16		CASUALTY AND RESTORATION OF PREMISES	14
	16.1	Substantial Damage	14
	16.2	Minor Damage	14
	16.3	Abatement	14
Section 17		CONDEMNATION	14
Section 18		HAZARDOUS MATERIALS	15
Section 19		ENTRY BY LANDLORD	15
Section 20		SUBLETTING AND ASSIGNMENT	15
	20.1	Landlord’s Consent Required	15
	20.2	No Waiver; Tenant’s Liability	15
	20.3	Intentionally Omitted	16
	20.4	Tenant’s Notice	16
	20.5	Fair Rental Value	16
	20.6	Landlord’s Review	16
	20.7	No Release or Waiver	16
Section 21		SUBORDINATION AND ATTORNMENT	16
	21.1	Subordination	16
	21.2	Mortgagee’s Right to Cure	17
	21.3	Subordination Documents	17
	21.4	Estoppel Documents	17
	21.5	Attornment	17
Section 22		INDEMNIFICATION, WAIVER AND RELEASE	17
	22.1	Indemnification	17
	22.2	Waiver and Release	18
Section 23		TENANT’S DEFAULT	18
	23.1	Events of Default	18
	23.2	Landlord’s Remedies	18
	23.3	Reentry	19
	23.4	Certain Damages	19
	23.5	Continuing Liability After Termination	19
	23.6	Cumulative Remedies	20

 ii 

0	23.7	Bankruptcy	20
	23.8	Late Payment Charge	20
	25.9	Waiver of Jury Trial	20
Section 24		LANDLORD’S DEFAULT	20
Section 25		SECURITY	21
Section 26		END OF LEASE	21
	26.1	Vacating Premises	21
	26.2	Abandoned Property	21
	26.3	Holding Over	21
	26.4	No Reinstatement	21
Section 27		MISCELLANEOUS	21
	27.1	No Business Relationship	21
	27.2	No Offset	21
	27.3	Landlord’s Liability Limited	21
	27.4	Consent	22
	27.5	No Easements for View or Light	22
	27.6	Intentionally Omitted	22
	27.7	Rules and Regulations	22
	27.8	Notice to Landlord	22
	27.9	Intentionally Omitted	22
	27.10	Use of Name	22
	27.11	No Recordation	22
	27.12	Force Majeure	22
	27.13	Intentionally Omitted	22
	27.14	Landlord’s Designated Authority	22
	27.15	Continuation of Obligations	22
	27.16	No Waiver	22
	27.17	Notices	23
	27.18	No Merger	23
	27.19	Time of the Essence	23
	27.20	Construction	23
	27.21	Financial Condition of Tenant and Guarantor	23
	27.22	OFAC	23
	27.23	Captions	23
	27.24	Severability	23
	27.25	Written Amendment Required	23
	27.26	No Option	23
	27.27	Authority	23
	27.28	Governing Law	23
	27.29	No Reliance	23
	27.30	Entire Agreement	24
	27.31	Brokers	24
	27.32	Binding Effect	24

EXHIBIT A	LEGAL DESCRIPTION
EXHIBIT B	INITIAL IMPROVEMENTS ESTIMATE
EXHIBIT C	RULES AND REGULATIONS
EXHIBIT D	SIGNAGE
EXHIBIT E	EXCLUDED SPACES

       

 iii 

PARK MEADOWS CORPORATE CENTER IV

OFFICE LEASE

This Lease is made and shall be effective as of this 1st day of May, 2013, by and between PUBLIC SERVICE CREDIT UNION, a Colorado nonprofit corporation (“Landlord”) and ZYNEX MEDICAL, INC., a Colorado corporation (“Tenant”) who agree as follows:

Section 1   BASIC LEASE PROVISIONS

1.1   Date:  May 1, 2013

1.2   Landlord:  PUBLIC SERVICE CREDIT UNION, a Colorado nonprofit corporation

1.3   Tenant:  ZYNEX MEDICAL, INC., a Colorado corporation

1.4   Premises:  All rentable space in the Building, having an area of 75,328 rentable square feet.

1.5   Building:  The building commonly known as 9990 Park Meadows Drive, Lone Tree, Colorado.

1.6   Property.  The Building and the land upon which the Building is constructed, as more fully described on Exhibit A.

1.7   Commencement Date:  May 1, 2013

1.8   Expiration Date:  November 30, 2023, if Tenant does not exercise the first Extension Option; November 30, 2028, if Tenant exercises the first Extension Option; and November 30, 2033, if Tenant exercises the second Extension Option.

1.9   Base Rent:

1-6 Lease Months 7-18 Lease Months 19-30 Lease Months 31-42 Lease Months 43-54 Lease Months 55-66 Lease Months 67-78 Lease Months 79-90 Lease Months 91-102 Lease Months 103-114 Lease Months 115-127 Lease Months $0.00 psf per year $20.50 psf per year $21.00 psf per year $21.50 psf per year $22.00 psf per year $22.50 psf per year $23.00 psf per year $23.50 psf per year $24.00 psf per year $24.50 psf per year $25.00 psf per year $0 per month $128,685.33 per month $131,824.00 per month $134,962.67 per month $138,101.33 per month $141,240.00 per month $144,378.67 per month $147,517.33 per month $150,656.00 per month $153,794.67 per month $156,933.33 per month

1.10   Base Year:  Calendar year 2013

1.11   Address for Rent Payments:	Business Partners LLC
	20131 Prairie Street, 2nd Floor
	Chatsworth, CA   91311

1.12   Tenant’s Use:  General office, storage, light assembly and testing, and uses incidental to such purposes, and any use permitted under applicable zoning laws.  Landlord shall only have the right to include Tenant’s name in any public relations, promotional or advertising materials or information with prior written consent from Tenant after Tenant’s review of the specifically proposed public relations or advertising material.

1.13   Tenant’s Pro Rata Share:  100%.

1.14   Security Deposit:  N/A

1.15   Tenant Improvements Allowance:  $15.00 per rentable square foot of the Premises as further described in Section 13.

1.16   Term:  The period beginning on the Commencement Date and ending on the Expiration Date, unless sooner terminated.

1.17   Landlord’s Address for Notices:	Public Service Credit Union
	c/o Business Partners LLC
	20131 Prairie Street, 2nd Floor
	Chatsworth, CA   91311
	Attn:  Mr. Peter Rowe

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1.18   Tenant’s Address for Notices:	The Premises
	Attn:  Mr. Anthony Scalese, CFO
	ascalese@zynex.com
With a copy at the same time to:

1.19   Tenant’s Broker:  Cresa Partners

1.20   Landlord’s Broker:  Cushman & Wakefield

1.21   Guarantor:	Zynex, Inc., a Nevada corporation
	8022 Southpark Circle, Suite 100
	Littleton,  CO  80120
	(303)703-4906

Section 2   LEASE OF THE PREMISES

Landlord leases the Premises to Tenant and Tenant leases the Premises from Landlord in accordance with and subject to the provisions of this Lease.  Simultaneously with execution of this Lease, Landlord and Tenant hereby acknowledge and agree that (1) Tenant’s prior Premises Lease with Spiral Lone Tree, LLC, as landlord, dated November 9, 2009 (the “Existing Lease”), is terminated effective as of the date hereof and shall be of no further force and effect (except for those obligations such as indemnities that survive the Existing Lease by its terms or by law), and (2) as consideration and a material inducement for Tenant to execute this Lease, Landlord will pay Tenant $100,694.00 for amounts Tenant previously overpaid pursuant to the Existing Lease which shall be deducted from Tenant’s Base Rent in the seventh (7th) month of the Lease, and the parties shall execute a Mutual Partial Release (the “Release”).  Nothing in this Lease or the Release shall constitute Tenant’s or Guarantor’s waiver of any of Tenant’s or Guarantor’s rights and remedies available against Spiral Lone Tree, LLC under the Existing Lease or at law or in equity and Tenant and Guarantor reserve all such rights.

Section 3   COMMON AREAS

Tenant shall have the non-exclusive right to use the areas and facilities outside the Premises and within the Property (the “Common Areas”), including without limitation sidewalks, throughways, loading areas, parking areas, roads and landscaped areas.  Such Common Areas shall be subject to Landlord’s rights stated in this Section and in other portions of this Lease.

Landlord shall maintain the Common Areas in good condition at all times.  Landlord shall have the right to:

(a)   establish and uniformly and non-discriminatorily enforce reasonable Rules and Regulations applicable to all tenants of the Building concerning the maintenance, management, use and operation of the Common Areas;

(b)   upon prior, written notice to Tenant, close any of the Common Areas to whatever extent required in the opinion of Landlord’s counsel to prevent a dedication of any part of the Common Areas to public use or the accrual of any rights in any person or in the public to any part of the Common Areas;

(c)   with at least fifteen (15) days’ advance notice to Tenant, close temporarily any part of the Common Areas for maintenance, renovation or modification, provided that Landlord will not deprive Tenant of more than fifty percent (50%) of its parking spaces at any one time;

(d)   with at least fifteen (15) days’ advance notice to Tenant, make any reasonable changes to the Common Areas, including without limitation changes in their size, use, shape or nature or the location of facilities, driveways, entrances, exits, parking spaces or parking areas or the decor of entrances, entrance lobbies, corridors or other areas, provided that Landlord will not deprive Tenant of more than 50% of its parking spaces at any one time;

(e)   permit or prohibit use of the Common Areas by any persons (including Tenant, its agents, employees, invitees or contractors) designated from time to time, specifically or generally, by Landlord so long as such prohibition in the case of Tenant does not materially adversely affect Tenant’s use and enjoyment of the Premises; and

(f)   remove areas from designation as Common Areas, erect one or more buildings on such areas, expanding existing structures to cover such areas, or add other areas inside or outside the Building as Common Areas, provided, however, that as long as Tenant leases 100% of the Building, Landlord will not make such changes without Tenant’s prior written consent.

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No action by Landlord pursuant to this Section shall entitle Tenant to abatement of rent, constitute actual or constructive eviction of Tenant or otherwise give rise to any liability of Landlord to Tenant.

Section 4   TERM

4.1   General.  The Term shall commence at 12:00 noon on the Commencement Date and unless terminated earlier shall terminate at 12:00 midnight on the Expiration Date, which shall be the last day of the month in which this Lease expires.  The first Lease Year shall begin on the Commencement Date and shall continue until the last day of the twelfth full calendar month later.  Each Lease Year shall begin on the annual anniversary of the Commencement Date.

4.2   Options to Extend.

4.2.1   Extension Periods.  So long as there is no Event of Default either at the time of exercise or at the time an Extension Period commences, Tenant will have the option (the “Extension Option”) to extend the Term for two additional periods of five (5) years (each an “Extension Period”) on the same terms, covenants, and conditions of this Lease, except that the Base Rent during each Extension Period will be determined pursuant to Section 4.2.2.  Tenant will exercise its option (if at all) by giving Landlord irrevocable written notice (the “Option Notice”) at least nine (9) months but not more than twelve (12) months prior to the expiration of the initial Term or the first Extension Period.

4.2.2   Extension Period Rent. The Rent for the Extension Period will be determined in this way:

4.2.2.1

Landlord and Tenant will have ninety (90) days after Landlord receives the Option Notice within which to agree on the then-fair market rental value of the Premises, as defined in Section 4.2.3, and rental increases to the Base Rent for the Extension Period. If they agree on the Base Rent and rental increases for the Extension Period within ninety (90) days, they will amend this Lease by stating the Base Rent and rental increases for the Extension Period.  Landlord and Tenant agree to use best efforts to reach agreement with respect to the then-fair market rental value of the Premises.

4.2.2.2

If they are unable to agree on the Base Rent and rental increases for the Extension Period within ninety (90) days, then, Tenant may elect (i) not to renew this Lease by providing written notice of the same to Landlord, or (ii) proceed with the determination of the then-fair market rental value of the Premises as follows, in which case Tenant and Landlord shall be obligated to renew this Lease.  The parties shall, within fifteen (15) days after the expiration of the 90-day period of good faith negotiation, select one (1) qualified real estate broker of good reputation, without any prior relationship to either party and having at least five (5) years’ experience in the southeast Denver  real estate market. Within fifteen (15) days after selection of the independent broker, each party shall submit to the broker a proposed fair market rental value.  The broker designated shall review each party’s proposed rate and shall thereafter independently make a determination as to which shall be the then-fair market rental value of the Premises.  Each party shall split the costs and fees of the broker selected.  If the then-fair market rental value of the Premises is determined by the independent broker as described above, then, on or before the commencement date of the Extension Option, Landlord and Tenant shall execute an amendment to this Lease using the rate as determined by the independent broker.

4.2.3   Fair Market Rental Value.  The “then-fair market rental value of the Premises” means what a landlord under no compulsion to lease the Premises and a tenant under no compulsion to lease the Premises would determine as rents (including Base Rent and rental increases) for the Extension Period, as of the commencement of the Extension Period, taking into consideration the uses permitted under this Lease, the quality, size, design, and location of the Premises, and the rent for comparable premises in the southeast Denver real estate market and all other relevant factors including but not limited to Tenant’s credit history, treatment of Operating Expenses and Taxes (e.g., Base Year), length of the renewal term, and tenant improvement allowances and other economic inducements made by Landlord.

Section 5   TENANT IMPROVEMENTS

Tenant shall perform the Initial Improvements as described in Section 13 and Exhibit B.  Tenant accepts the Premises in “AS IS” condition as it exists on the Commencement Date.

Section 6   RENT

6.1   Base Rent.  The Base Rent shall be payable in monthly installments in advance commencing on the Commencement Date and continuing thereafter on the first day of each month during the Term. If the Commencement Date is not the first day of a month, Base Rent for such partial month shall be prorated based on the actual number of days in such month based upon the Base Rent due for the first month of the Term, and shall be paid on or before the Commencement Date.

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6.2   Additional Rent.  In addition to the Base Rent, upon the Commencement Date and continuing thereafter throughout the Term, Tenant shall pay to Landlord as additional rent (“Additional Rent”) those sums denoted below as “Additional Rent”, in the amounts and at the times stated below, including but not limited to the “Escalation Rent” as set forth in Section 6.3.

6.3   Operating Expenses.  Tenant will pay to Landlord as Additional Rent the amount by which Tenant’s Pro Rata Share of Operating Expenses for each year after the Base Year exceeds Tenant’s Pro Rata Share of Operating Expenses for the Base Year, for any calendar year, or portion of a calendar year if the Term includes such portion (the “Escalation Rent”).  The Operating Expenses that vary with occupancy and that are attributable to any part of the Term in which less than 95% of the area of the Building is occupied by tenants will be adjusted by Landlord to the amount that Landlord reasonably believes they would have been in 95% of the area of the Building had been occupied.  Landlord covenants and agrees not to charge more than 3% of Base Rent for management fees.  Notwithstanding anything to the contrary, for each calendar year of the Term following the Base Year, increases in Controllable Operating Expenses over the Controllable Operating Expenses for the previous calendar year shall be limited to five percent (5%) per year (the “Cap on Increases”), on a compounding basis.  By way of example, if Controllable Operating Expenses for calendar year 2013 are $100,000, Controllable Operating Expenses for calendar years 2014, 2015, and 2016, shall be limited to $105,000.00, $110,250.00, and $115,762.50, respectively.  “Controllable Operating Expenses” means all Operating Expenses, excepting and excluding Uncontrollable Operating Expenses.  “Uncontrollable Operating Expenses” means, collectively, (i) taxes, (ii) utilities, (iii) insurance premiums, (iv) snow and ice removal costs, provided Landlord uses commercially reasonable efforts to manage and control the same; (v) security, (vi) costs (which may be capital expenses) incurred to comply with any new, modified or amended law, ordinance, rule, regulation or order of any governmental or quasi-governmental agency having jurisdiction over the Property, and (vii) goods and services subject to union or other collective bargaining agreements.

6.4   Operating Expenses Inclusions.   “Operating Expenses” or individually “Operating Expense” means without limitation all reasonable costs incurred by Landlord with respect to the Property, including without limitation related easements, access agreements, roadways, parking areas, landscaping, and Common Areas, in managing, operating, cleaning, equipping, protecting, lighting, heating, air-conditioning, repairing, replacing and maintaining all parts of the Property (regardless of whether such area is deemed to be a Common Area), including without limitation costs of electricity, natural gas, water, sewer, materials, supplies, janitorial and window cleaning services, rubbish removal, snow removal, landscaping, resurfacing, security, equipment (including elevator) inspection, repairs, maintenance, insurance premiums, including endorsements, and amounts paid for liability or casualty loss pursuant to insurance deductible amounts (but Tenant shall have no interest in any insurance proceeds, provided however costs reimbursed by insurance proceeds shall be excluded from operating expenses pursuant to Section 6.4.1 below); reasonable employee wages and fringe benefit costs; a reasonable reserve for repair and replacement of personal property and equipment used in the management, operation and maintenance of the Property; all Property Taxes, any personal property used in connection with the same, any tax or excise on rents, any tax or charge for governmental services (such as street maintenance and fire protection); management (but not more than 3% per annum), legal, accounting, engineering, inspection or consulting fees; costs, including without limitation financing costs, of improvements to or structural modifications or repairs of any part of the Property to effect labor or utility cost savings or required after the Commencement Date for the Building or Common Areas to be improved, modified or repaired by any new, modified or amended law, ordinance, rule, regulation or order of any governmental or quasi-governmental agency having jurisdiction over the Property; any costs to repair the Building HVAC systems;  and any other reasonable cost considered an operating, maintenance or management expense of the Property under prudent property management principles consistently applied during the Base Year and over the balance of the Lease Term.  Landlord shall be responsible for the operation, management, and maintenance of the Common Areas, the cost and manner of maintenance and the expenditures to be generally in keeping with similar buildings within the same geographical area of the Property.

6.4.1   Operating Expenses Exclusions.  Operating Expenses shall not include the following exclusions:

6.4.1.1	principal or interest on mortgages, deeds of trust, or any other debt costs, if any;
6.4.1.2	ground lease payments;
6.4.1.3	loan prepayment penalties, premiums, fees or charges;
6.4.1.4	attorneys’ fees and disbursements, recording costs, mortgage recording taxes, title insurance premiums, title closer’s gratuity and other similar costs, incurred in connection with any mortgage financing or refinancing or execution, modification or extension of any ground lease;
6.4.1.5	attorneys’ fees and disbursements, brokerage commissions, transfer taxes, recording costs and taxes, title insurance premiums, title closer’s fees and gratuities and other similar costs incurred in connection with the sale or transfer of an interest in Landlord or the Property;
6.4.1.6	leasing commissions and other marketing and leasing costs, including expenses incurred for leasing, renovating, or improving any tenant space;

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6.4.1.7	costs of advertising space for lease in the Building or any other promotional or marketing expenses;
6.4.1.8	legal fees incurred for negotiating leases or collecting rents;
6.4.1.9	fees, costs and expenses incurred by Landlord in connection with or relating to claims against or disputes with tenants of the Building or the negotiation of leases with tenants or prospective tenants, including, without limitation, legal fees and disbursements;
6.4.1.10	any costs actually reimbursed under the warranty of any general contractor, subcontractor, manufacturer, materialman, vendor, or supplier and realized by Landlord;
6.4.1.11	costs incurred in eminent domain proceedings;
6.4.1.12	costs for which Landlord is reimbursed therefore from any source, whether by insurance proceeds or otherwise, it being understood that any rent payments or other payments by tenants in the nature of additional rent shall not be deemed sources of reimbursement to Landlord for such costs;
6.4.1.13	the cost of excess or out of hours services purchased by or provided to other tenants under lease provisions to the effect of Section 9.3;
6.4.1.14	costs paid for by tenants under lease provisions to the effect of Section 9.5;
6.4.1.15	the costs of special services, tenant improvements and concessions, repairs, maintenance items or utilities separately chargeable to, or specifically provided for, individual tenants of the Property, including, without limitation, the cost of preparing any space in the Property for occupancy by any tenant or for altering, renovating, repainting, decorating, planning and designing spaces for any tenant in the Building in connection with the renewal of its Lease or costs of preparing or renovating any vacant space for lease in the Building (including permit, license and inspection fees);
6.4.1.16	costs incurred by Landlord for the original construction and development of the Building and, except as expressly provided for in this Lease, for the completion of any work relating to a zoning condition or requirement of any governmental agency in connection with the original approval of the construction and development of the Property;
6.4.1.17	any and all capital expenditures except as expressly permitted in this Lease;
6.4.1.18	any depreciation and amortization of capital expenditures (except as expressly provided in this Lease);
6.4.1.19	the purchase price or rental of sculptures, paintings, and other works of art (but not the reasonable costs of maintaining the same);
6.4.1.20	general corporate overhead and administrative expenses of Landlord or its managing agent that are not directly related to the operation, management, or maintenance of the Property;
6.4.1.21	taxes based on net income;
6.4.1.22	any form of personal or business income tax payable by Landlord or its constituents in connection with the ownership, operation, or sale of the Building;
6.4.1.23	salaries and all other compensation (including bonuses, fringe benefits and other direct and indirect personnel costs) of partners, officers and executives above the grade of asset manager or building manager of Landlord or the managing agent;
6.4.1.24	that portion of any costs or expenses that are paid to any entity affiliated with Landlord which amount to a kickback or commercially unreasonable charge in view of the services actually performed;
6.4.1.25	costs incurred as a result of Landlord’s breach of its obligations under this Lease;
6.4.1.26	costs (including costs, such as, but not limited to, attorneys’ fees and disbursements, associated with any court judgment or arbitration award obtained against Landlord) directly resulting from the negligence or willful misconduct of Landlord, its employees, agents and contractors;

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6.4.1.27	charitable or political contributions;
6.4.1.28	equipment rental charges, unless such rental charges are for equipment used for maintenance or operation of the Property;
6.4.1.29	compensation paid to clerks, attendants or other persons in commercial concessions operated by Landlord or by the operator thereof (i.e., newsstands, food and beverage sellers);
6.4.1.30	sums paid by Landlord for any indemnity, damages, fines, late charges, penalties or interest for any late payment or to correct violations of building codes or other applicable Laws or ordinances applicable to the Property, except for expenditures for repairs, maintenance and replacement or other items that would otherwise reasonably constitute Operating Expenses.  Without limiting the foregoing, Operating Expenses may include such things as fines, late charges, penalties and interest to the extent reasonably necessary in connection with the management of the Property, provided such charges were not the result of Landlord’s negligence or other malfeasance incurred as a result of the act or omission of Tenant, its agents, employees or contractors.
6.4.1.31	cost of any service furnished to any other occupant of the Property, which Landlord does not provide to Tenant hereunder;
6.4.1.32	any federal, state, or local income tax, and any franchise, gift, transfer, excise, or inheritance tax;
6.4.1.33	any costs incurred in connection with any corrective action, investigation of site conditions, cleanup, removal, remedial, or restorative work required pursuant to any environmental laws, unless such costs resulted from an act or omission of Tenant;
6.4.1.34	cost of any repair and replacement incurred in connection with any casualty or condemnation;
6.4.1.35	except as otherwise provided in this Lease, costs of any material changes or additions to the Property, after the date of this Lease, unless required by changes required by any Law;
6.4.1.36	increased insurance premiums caused by any occupant of the Building other than Tenant; and
6.4.1.37	costs incurred in excess of $5,000 in any calendar year for repair, remediation, restoration or replacement (as needed) for prevention of water infiltration.

6.4.2   Payment of Escalation Rent.  Additional Rent will be paid monthly on an estimated basis, with subsequent annual reconciliation, in accordance with the following procedures:

6.4.2.1

During December of the Base Year and December of each subsequent calendar year, or as soon after December as practicable, Landlord will give Tenant notice of its estimate of any Additional Rent due for the ensuing calendar year. On or before the first day of each month during the ensuing calendar year, Tenant will pay Landlord one twelfth (1/12th) of the estimated Escalation Rent; however, if the notice is not given in December, Tenant will continue to pay on the basis of the prior year’s estimate until the month after the notice is given. If at any time or times it appears to Landlord that the Escalation Rent for the current calendar year will vary from its estimate by more than five percent (5%), Landlord will, by notice to Tenant, revise its estimate for the year, and subsequent payments by Tenant for such year will be based upon the revised estimate.

6.4.2.2

The amount of Escalation Rent for any fractional year in the term will be appropriately prorated. The termination of this Lease will not affect the obligations of Landlord and Tenant pursuant to Section 6.4.2 to be performed after such termination.

6.4.3   Reconciliation.  On or before April 30^th of each calendar year of the Term, or as soon after such date as practicable, Landlord shall deliver to Tenant a statement of the amount paid by Tenant as Tenant’s Pro Rata Share of Operating Expenses under Section 6.4.2, for the immediately preceding calendar year (the “Reconciliation Statement”) compared to actual expenses incurred during such year.  Such Reconciliation Statement will be certified by Landlord and shall be final and binding on Landlord and Tenant except as determined in an audit pursuant to Section 6.4.5.  If such Reconciliation Statement shows an amount owing by Tenant that is less than the estimated payments previously made by Tenant for such calendar year, then Tenant may elect to (i) have the excess held by Landlord and credited against subsequent amounts due, or (ii) have Landlord pay Tenant the amount of the overpayment if it exceeds the next month’s Base Rent; however, if the Term has ended and Tenant was not in default at its end, Landlord shall refund the excess to Tenant.  If such Reconciliation Statement shows an amount owing by Tenant that is more than the estimated payments

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previously made by Tenant for such calendar year, Tenant shall pay the deficiency to Landlord within thirty (30) days after the delivery of such Reconciliation Statement.

6.4.4   Partial Term Reconciliation.  If for any reason other than the default of Tenant, this Lease expires or terminates on a day other than the last day of a calendar year, the amount of Tenant’s Pro Rata Share of Operating Expenses, if any, paid by Tenant applicable to the calendar year in which this Lease ends will be calculated on the basis of actual costs (including prorations and accruals) for the period up to the Expiration Date, or termination date, as the case may be.  With regard to the calendar year during which the Term expires, Landlord at its option, may either bill Tenant when the charges become payable or may charge Tenant an estimate of Tenant’s Pro Rata Share based on charges that have been previously paid by Tenant.

6.4.5   Audit.  So long as Tenant is not in default of any provision of this Lease, including the payment of Base Rent or Additional Rent, and this Lease is in full force and effect, and subject to the provisions in this Section, Tenant or Tenant’s designated agent may review Landlord’s records of Operating Expenses at the place that Landlord normally maintains such records during Landlord’s normal business hours.  Tenant shall, within thirty (30) days of Landlord’s delivery of a Reconciliation Statement, provide written notice to Landlord specifying the portions of such Reconciliation Statement that are claimed to be incorrect, and Tenant shall simultaneously pay all undisputed amounts due pursuant to such Reconciliation Statement (if there are any undisputed amounts).  Landlord shall then provide Tenant with reasonable access to the relevant portions of supporting data for such Reconciliation Statement.  Tenant acknowledges and agrees that any information reviewed under this Section constitutes confidential information and Tenant covenants not to disclose any such information whatsoever without the express, written consent of Landlord, except that Tenant may share such information with accountants, attorneys and other professionals bound by agreement or professional ethics to maintain the confidentiality of such information.  Further, Tenant shall have the right, after written notice to Landlord, to disclose the fact of an audit and such minimum amount of detail necessary in a judicial action, required securities disclosure or governmental action.  If the audit establishes that the Reconciliation Statement overstated the sums alleged to be due from Tenant by more than five percent (5%) of the sums actually due, then Landlord shall pay Tenant’s reasonable costs of the audit and shall provide an amended Reconciliation Statement.  If the sum due from Tenant on such amended Reconciliation Statement is less than zero, then Tenant shall elect to either (i) have Landlord credit all such overpayments by Tenant toward other sums due, or to become due under this Lease, or (ii) pay Tenant all sums due within thirty (30) days if it exceeds the next month’s Base Rent.  If the audit establishes that the Reconciliation Statement did not overstate Tenant’s amounts due by more than five percent (5%), then Tenant shall pay Landlord’s reasonable costs of such audit and forward any such amounts due immediately.  The audit rights of Tenant may only be exercised once for each Reconciliation Statement.  If Tenant fails to meet all of the above conditions as a prerequisite to the exercise of such right, the right of Tenant to audit pursuant to this Section shall be deemed waived.

6.5   No Set Off.  Except as otherwise provided herein, all Base Rent and Additional Rent shall be payable by Tenant to Landlord without notice, demand, set off, abatement or deduction of any kind at the address set forth in Section 1.16 or such other place as Landlord may designate to Tenant in writing from time to time.  In no event shall the sum of Base Rent and Additional Rent payable for any calendar year be less than the Base Rent stated in Section 6.1.

Section 7   PERSONAL PROPERTY TAXES

Tenant shall cause all personal property located in the Premises or belonging to it and located elsewhere (collectively, “Tenant’s Property”) to be assessed and billed separately from Landlord’s real and personal property, and shall pay before delinquency all taxes and assessments levied on Tenant’s Property, if any.  If any of Tenant’s Property shall be assessed with Landlord’s property, Landlord may pay the taxes levied on the basis of such assessment (whether valid or not), and Tenant shall pay Landlord as Additional Rent such taxes attributable to Tenant’s Property within fifteen (15) days after receipt of an invoice and reasonable supporting documentation from Landlord.

Section 8   INSURANCE

8.1   Landlord’s Insurance.  Landlord shall maintain during the Term:  special form property insurance covering 100% of the Building’s full replacement value, leasehold improvements in the Building and the Property’s equipment and Common Area furnishings, commercial general liability insurance for the Property, including all Common Area, which coverage shall include personal injury or property damage to third parties and Landlord’s agents or invitees, with an occurrence limit of not less than One Million Dollars ($1,000,000); and may maintain such other insurance, in such amounts from such companies and on such terms and conditions as Landlord deems appropriate from time to time.  The amount of Landlord insurance shall not limit the liability of Landlord nor be deemed to relieve Landlord of any obligations hereunder.  Tenant understands that Landlord will not carry insurance of any kind on any personal property, furnishings or removable fittings, fixtures or equipment installed with or without Landlord’s express consent, in, on or about the Premises, and Landlord shall have no liability for any damage to or loss of any such property.  Notwithstanding the foregoing, Tenant shall not be liable to Landlord or to any insurance company (by way of subrogation or otherwise) insuring Landlord for any loss or damage to the Building, Common Areas, or any structure or other tangible property on the Property, or any resulting loss of income and benefits, even though such loss or damage might have been occasioned by the negligence of Tenant, its agents or employees if any such loss or damage is covered by insurance benefiting Landlord or was required

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to be covered by insurance pursuant to this Lease. Landlord shall require its respective insurance companies to include a standard waiver of subrogation provision in its respective policies.  

8.2   Tenant’s Insurance.  Upon the Commencement Date, and at all times thereafter until the Expiration Date, Tenant shall carry and maintain at Tenant’s expense the following insurance, in the amounts specified below:

(a)   Special form property  insurance on all of Tenant’s property in the Premises including without limitation all furniture, fixtures and personal property;

(b)   Commercial general liability insurance including protection against bodily injury, personal injury and property damage with a combined single occurrence limit of not less than $1,000,000; all such insurance shall specifically include contractual liability coverage for the performance by Tenant of the indemnity agreements set forth in Section 22, as well as those set forth in Section 8.4; and

(c)   Worker’s compensation insurance insuring against and satisfying Tenant’s obligations and liabilities under the worker’s compensation laws of Colorado.

8.3   Forms of the Policies.  All policies of liability insurance which Tenant is obligated to maintain according to this Lease (other than worker’s compensation insurance) shall be written on an occurrence basis, shall name Landlord and such other persons or firms as Landlord specifies from time to time as additional insureds and shall contain a provision that Landlord and any other insureds shall be entitled to recover under such policies for any loss sustained by Landlord and the other additional insureds, and its and their agents and employees as a result of the acts or omissions of Tenant.  Originals or copies of original policies (together with copies of the endorsements naming Landlord and any others specified by Landlord as additional insureds) and evidence of the payment of all premiums of such policies shall be delivered to Landlord prior to Tenant’s occupancy of the Premises and from time to time at least thirty (30) days prior to the expiration of the term of each such policy.  All such policies shall provide that they may not be terminated or amended except after thirty (30) days’ prior written notice to Landlord.  All such policies shall be written as primary policies, not contributing with and not supplemental to the coverage that Landlord may carry.  If Tenant should fail to comply with the foregoing requirements relating to insurance, Landlord may obtain such insurance and Tenant shall pay to Landlord on demand as Additional Rent hereunder the premium cost thereof plus interest at the maximum contractual rate (but in no event to exceed 12 % per month) from the date of payment by Landlord until repaid by Tenant.

8.4   Waiver of Right of Recovery.  Landlord and Tenant each hereby waives and releases its rights of recovery against the other for: (a) any loss or damage to its property capable of being insured against by special form insurance coverage whether carried or not; and (b) all loss, cost, damage or expense arising out of or due to any interruption of business and all increased or additional costs of business and other costs or expenses whether similar or dissimilar, regardless of the cause therefore, which are capable of being insured against under business interruption insurance whether or not carried.  Each party shall apply to its insurers to obtain such waivers and obtain any special endorsements, if required by its insurer, to evidence compliance with this provision at its own cost.

8.5   Adequacy of Coverage.  Landlord, its agents and employees make no representation that the limits of liability and other insurance coverage specified to be carried by Tenant pursuant to this Section 8 are adequate to protect Tenant.  If Tenant believes that any such insurance coverage is inadequate, Tenant shall obtain, at Tenant’s sole expense, such additional insurance coverage as Tenant deems adequate.

Section 9   LANDLORD’S SERVICES

9.1   Maintenance.  .       Subject to Section 16, Landlord shall maintain in good order, repair and condition the Building and its structural parts, the standard mechanical, electrical and plumbing equipment of the Building, and the Common Areas, consistent with office buildings of comparable quality in the market area of the Building, except for damage caused by the willful or grossly negligent acts or omissions of Tenant or its employees, agents, subtenants, licensees, concessionaires, or invitees or by breach of the provisions of this Lease by Tenant.  Landlord shall notify Tenant of any such damage caused by the act or omission of Tenant, its agents, employees, contractors, or licensees and provide Tenant thirty (30) days to repair or commence efforts to repair the damage.  If Tenant fails to repair the damage or commence efforts to repair the damage in such time, Landlord may charge Tenant its cost to do so plus fifteen percent (15%) of such cost.  Tenant will pay the charge within fifteen (15) days after its receipt of a statement for it.  In the event that the Premises should become in need of repairs required to be made by Landlord hereunder, Tenant shall give immediate written notice thereof to Landlord.  Landlord shall not be responsible in any way for failure to make any such repairs unless, subject in each case to matters described in Section 27.12, either (i) fifteen (15) days shall have elapsed after receipt by Landlord of such written notice or after Landlord becomes otherwise aware of the need for such repair, without Landlord having commenced such repairs, or (ii) Landlord timely commences such repairs within such fifteen (15) day period but fails to prosecute them diligently; however, if Landlord has timely commenced such repairs within such fifteen (15) day period and is diligently pursuing such repair, then the time for completion for such repair shall be extended for so long as Landlord is diligently pursuing such repairs but not to exceed sixty (60) days from the date of commencement of the repair.  If, subject in each case to matters described in Section 27.12, Landlord either fails to commence such repairs in a timely manner or fails to prosecute their completion diligently within sixty (60) days from the date of commencement of the repair, Tenant may make such repairs and deduct from Base Rent the substantiated out-of-pocket

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expense  incurred to do so, but only if Tenant has given Landlord at least three (3) days’ prior notice of its intention to make the repairs and Landlord has not commenced them.  In addition, in the event of imminent threat of damage or injury to person or property and Landlord’s failure to commence the cure of the damage or the cause of the threat after its receipt of notice (which may be telephonic), Tenant may pay such amount as may be reasonably necessary to avoid or minimize the damage and if Landlord does not reimburse the reasonable substantiated cost incurred by Tenant within thirty (30) days after its receipt of an itemized and substantiated paid invoice, Tenant may deduct such cost from the Base Rent next due; however, Tenant will have no such right to reimbursement if the threat or damage arose from the affirmative negligent act or omission of Tenant, its agents, employees or contractors.

9.2   Services.  Landlord shall furnish the Premises with (a) electricity for lighting and the operation of low-wattage (500 watts or less) 110 volt single phase office machines not requiring self-contained HVAC units or other special ventilation or air conditioning (such as desktop computers, desktop calculators and typewriters), however, Landlord shall not be obligated to furnish more power to the Premises than is proportionally allocated to the Premises under the Building design; (b) heat and air conditioning reasonably required for the comfortable occupation of the Premises during Business Hours, or if the Premises are extraordinarily heated or cooled by Tenant’s equipment or non-Building standard lights, or if Tenant fails to comply with reasonable Property Rules and Regulations, including but not limited to Rules and Regulations concerning window coverings; (c) access and elevator service; (d) lighting replacement, but only for Building standard lights used during Business Hours; (e) restroom supplies; (f) window washing as often as may in Landlord’s judgment be reasonably required; and (g) daily cleaning service on weekdays, excluding Holidays and weekends, in the manner that such services are customarily furnished in comparable office buildings in the area.  Landlord shall give reasonable consideration to using any well-established provider of services or goods whom Tenant recommends and who provides equivalent quality services.

9.3   Tenant Purchases.  Tenant shall have the right to purchase for use during or outside of Business Hours the services described in clause (b) of Section 9.2, in excess of the amounts which Landlord has agreed to furnish, as long as (i) Tenant gives Landlord reasonable prior notice of its desire to do so; (ii) the excess services are reasonably available to Landlord and to the Premises; and (iii) Tenant pays as Additional Rent, at the time the next payment of Base Rent is due, the amount for provision of such excess or out-of-hours service from time to time charged by Landlord.  Notwithstanding the foregoing, so long as Tenant leases 100% of the Building, Landlord will not enforce this Section 9.3 as long as Tenant does not cause physical waste to the Premises or Building.

9.4   Business Hours.  The term “Business Hours” means 7:00 a.m. to 6:00 p.m. on Monday through Friday, except Holidays, and 8:00 a.m. to 1:00 p.m. on Saturdays, except Holidays.  The term “Holidays” means New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day and such other national holidays as may be established by the United States government.  Tenant understands that if Tenant is in need of HVAC at times other than Business Hours, there will be a reasonable charge based on the cost of operating such equipment.  If Tenant does not lease 100% of the Building should other tenants utilize the HVAC after hours, such charge shall be split proportionally between those tenants.  At all times whether or not Tenant leases 100% of the Building, Landlord will provide Tenant access to the Building and the Premises twenty-four (24) hours per day, seven (7) days per week.

9.5   Tenant’s Costs.  Whenever equipment or lighting, other than Building standard lighting, used in the Premises by Tenant affects the temperature otherwise normally maintained by the design of the Building air conditioning system, Landlord shall have the right, after notice to Tenant, to install supplementary air conditioning facilities in the Premises or otherwise modify the ventilating and air conditioning system serving the Premises, and the cost of such facilities and modifications plus five percent (5%) of such cost shall be paid to Landlord by Tenant as Additional Rent upon demand.  If Tenant installs lighting or equipment using power in excess of that furnished by Landlord pursuant to clause (a) of Section 9.2 as determined by Landlord in its reasonable judgment, Tenant shall pay as Additional Rent the cost of such excess power and the cost of installing any additional risers, meters or other facilities that may be necessary to furnish or measure such excess power to the Premises plus five percent (5%) of such cost.  Landlord’s costs for supervision of Tenant activities in accordance with the Rules and Regulations made a part of this Lease pursuant to Section 27.7 plus five percent (5%) of such cost shall be paid to Landlord by Tenant as Additional Rent upon demand.

9.6   Limitation on Liability

9.6.1   Services.  Landlord shall not be liable to Tenant or any other person or entity for damages or otherwise for any failure to supply, or for diminution of supply of any service Landlord has agreed to provide or supply under this Section or elsewhere in this Lease during any period when Landlord uses reasonable diligence to supply such service.  Landlord reserves the right temporarily to discontinue or diminish such services or any of them at such times as may be necessary by reason of accident; repairs, alterations or improvements; strikes, lockouts or other labor disputes; conditions of supply and demand which make any product unavailable; Landlord’s compliance with any mandatory governmental energy conservation, or environmental protection program, or any voluntary governmental energy conservation or security program at the request of or with the consent or acquiescence of Tenant; or any happening beyond the reasonable control of Landlord.  Tenant agrees that Landlord shall not be liable for unavailability of, interruption of, or interference with utilities and services for the Premises unless caused by Landlord’s gross negligence or willful misconduct.  Notwithstanding the foregoing, Landlord agrees that if there is an interruption of janitorial, sewer, water, natural gas, heating, air conditioning, or electricity services (the “Critical Services”) which results from the affirmative negligent act or omission of Landlord, its agents, employees, or contractors and such interruption renders the Premises unusable for Tenant’s specific use and

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continues for a period of three (3) business days or more consecutive days after Landlord receives notice from Tenant without Landlord’s commencement of steps to end the interruption (an “unauthorized Interruption”), Tenant may pay the substantiated out-of-pocket cost reasonably necessary to end the interruption.  If Landlord does not reimburse such cost within thirty (30) days after its receipt of an itemized and substantiated paid invoice, Tenant may deduct the amount of the invoice from the Base Rent next due.

9.6.2   Access.  Landlord shall not be liable to Tenant or any other person or entity for direct or consequential damages or otherwise resulting from the admission to or exclusion from the Property or the Premises of any person except if caused by Landlord’s gross negligence or willful misconduct.  In the event of public excitement or disorder or other circumstances rendering such action advisable in Landlord’s sole judgment, Landlord shall have the right to prevent access to the Property, the Premises, or any other portion of the Building during the continuance of the same by such means as Landlord, in its sole judgment, may deem appropriate, including without limitation locking doors and closing parking areas and other Common Areas.

9.6.3   Construction Activities.  Landlord shall not be liable to Tenant or any other person or entity for direct or consequential damages or otherwise resulting from construction activities conducted in or about the Property, whether adjacent to Tenant or elsewhere in the Property, by Landlord, by other tenants or by other parties conducted in accordance with Landlord’s Rules and Regulations.  Landlord reserves the right to enforce such Rules and Regulations as Landlord sees fit, in Landlord’s sole discretion, and notwithstanding any interpretation of the foregoing, Landlord shall have no liability to Tenant whatsoever for failure to enforce such Rules and Regulations.  Notwithstanding the foregoing, so long as Tenant leases 100% of the Building, Landlord shall not enforce this Section 9.6.3 unless Tenant causes physical waste to the Premises or Building.

9.6.4   Effect.  Notwithstanding anything to the contrary set forth in this Lease, no failure or diminution of supply or services; permission, restriction or denial of access; or construction activities described in this Section shall in any way be construed as an actual or constructive eviction of Tenant, permit an abatement of Rent except as set forth in Section 9.6.1, operate to release Tenant from any of Tenant’s obligations under this Lease, or be deemed a breach of Tenant’s quiet enjoyment and possession of the Premises unless caused by the gross negligence or willful misconduct of Landlord.

Section 10   USE OF PREMISES

10.1   General.  The Premises shall be used for Tenant’s Use.  Tenant shall not:  do or permit to be done in or about the Premises, or bring to, keep or permit to be brought or kept in the Premises or the Property, anything which is prohibited by or which will in any way conflict with any present or future law, statute, ordinance or governmental rule or regulation or which will cause an increase in the rates or cancellation of any insurance policy covering the Property or the Premises; use or allow the Premises to be used for any unlawful or objectionable purpose; cause, maintain or permit any nuisance in, on or about the Premises; or commit or permit to be committed any waste in, on or about the Premises.  Furthermore, Tenant shall have no right to install or operate any equipment producing radio frequencies, electrical or electromagnetic output or other signals, noise, or emissions within or from the Property, without the prior written consent of Landlord.  To the extent permitted by applicable law, Landlord reserves the right to restrict and control the use of such equipment.

10.2   Parking.  

10.2.1   Parking Privileges.  Tenant shall have the right to use the entire surface parking lot (except for the parking spaces designated on Exhibit E (the “Excluded Spaces”)) twenty-four (24) hours per day, seven (7) days per week, which shall have a minimum of five (5) unassigned parking spaces per 1,000 rentable square feet of the Premises for the use of Tenant’s employees, agents, contractors, assignees and sublessees, designated by Tenant to use the Parking Spaces (the “Designated Users”).  The rights of Tenant to the unassigned spaces (the “Parking Spaces”) as granted by Landlord are referred to as the “Parking Privileges.”

10.2.2   Term.  Tenant’s right to the Parking Privileges shall commence at the Commencement Date and shall continue for the Term.  The Parking Privileges shall automatically terminate upon the Expiration Date or earlier termination of the Lease.

10.2.3   No Charge.  Tenant’s rights to use the Parking Spaces will be at no charge.

10.2.4   Landlord’s Rights.  Landlord shall have the right at any time to change the arrangement or location or to regulate the use of the Parking Spaces without incurring any liability to Tenant.  Landlord acknowledges that the Parking Privileges cover all parking available on the Property except the Excluded Spaces and that no parking areas except the Excluded Spaces shall be designated for Landlord or its agents or other parties other than Tenant and Designated Users.  Notwithstanding the foregoing, so long as Tenant leases 100% of the Building, Landlord shall not enforce or exercise its rights under Section 10.2.4 and 10.2.5 in such a way as to have a material adverse affect on Tenant’s use of its Parking Spaces.

10.2.5   Parking Rules.  In addition to the Rules and Regulations set forth in Exhibit C to the Lease, Tenant’s use of the Parking Spaces is subject to the following rules:

10.2.5.1 As long as Tenant leases 100% of the Building, Tenant may designate use of the Parking Spaces to specific individuals employed by Tenant (“Designated Users”), but Tenant shall remain responsible for all other obligations hereunder.

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10.2.5.2	Within five (5) business days after Landlord’s request, Tenant agrees to provide Landlord with a listing of all vehicles of Designated Users, including names of vehicle owners, vehicle models, colors, and license plate numbers, and Tenant shall provide Landlord with revised listing promptly after any change to the listing.  Tenant shall deliver to Tenant’s Designated Users parking decals provided by Landlord which decals shall at all times be displayed prominently on the vehicles of Designated Users.  Landlord shall have the right to directly ban any Designated User from further use of any of the parking spaces for violation of the rules for the use of the Parking Spaces.  As long as Tenant leases 100% of the Building, Landlord shall not enforce the preceding parking Rules and Regulations unless Tenant causes physical waste to the Parking Spaces or Building.
10.2.5.3	Tenant and Designated Users shall park only in parking spaces and not on ramps, corridors, approaches, or other areas designated as “no parking” areas.
10.2.5.4	Tenant and Designated Users shall observe the special hours of opening, closing, and nonuse of the parking lot when closings are necessitated for repairs, cleaning, and rehabilitations.  Should any repair or rehabilitation result in Tenant not being provided the Parking Spaces in the parking lot or designated alternate parking facility, the abatement of Tenant’s obligation to pay any fee that may be due during the period the same are unavailable shall constitute Tenant’s sole remedy in the event of such unavailability.  Notwithstanding the foregoing, Landlord will give Tenant at least fifteen (15) days prior written notice of such repairs, cleaning and rehabilitations so as not to deprive Tenant of more than 50% of its parking spaces at any one time.
10.2.5.5	Tenant and Designated Users shall use the Parking Spaces only for automobile parking.
10.2.5.6	Tenant and Designated Users shall observe all posted vehicle height limitations.
10.2.5.7	Tenant and Designated Users shall not allow unauthorized vehicles to use the Parking Spaces and, except for emergencies, shall not repair or authorize service to vehicles parked in the parking lot.

10.2.6   Casualty; Condemnation.  If more than twenty-five percent (25%) of the surface lot shall be damaged by fire or other casualty or shall be taken by right of eminent domain or by condemnation or shall be conveyed in lieu of any such taking, then the Parking Privileges shall automatically cease and terminate.  Tenant thereupon shall surrender to Landlord and Parking Spaces and all interest therein, and Landlord may re-enter and take possession of the Parking Spaces.  If this should occur, Landlord will use commercially reasonable efforts to provide substitute parking places to Tenant.

10.2.7   No Assignment.  Tenant shall not be permitted to assign the Parking Spaces or any interest herein or permit the Parking Spaces or any part thereof to be used by parties other than Tenant or Designated Users without the prior written consent of Landlord, which consent may be granted or withheld in Landlord’s sole discretion.  Notwithstanding the foregoing, if a proposed assignee or user is a permitted assignee or sublessee under the terms of this Lease, Landlord’s consent to such assignment or sublease shall be deemed consent to the assignment or sublease of the Parking Spaces.  Tenant shall remain primarily liable for the performance of the obligations of the Tenant hereunder notwithstanding any assignment or occupancy or use arrangement permitted or consented to by Landlord.

10.2.8   Liability.  Neither Landlord nor its agents or employees shall be liable for any damage, fire, theft or loss to vehicles or other properties or injuries to persons occurring in the parking area or arising out of the use of the Parking Spaces whether caused by theft, collision, moving vehicle, explosion or any other activity of occurrence in such parking areas.  Tenant and/or its Designated Users of the Parking Spaces assume the risk of such loss or damage and shall indemnify, defend and hold Landlord, its agents and employees harmless from and against any and all claims and damages incurred by Landlord, its agents and employees arising from Tenant’s or its Designated Users’ use of the parking areas or the unassigned spaces, including all costs, reasonable attorneys’ fees, expenses and liability arising out of any such claim or action, except if caused by Landlord’s gross negligence or willful misconduct.

10.2.9   Excluded Spaces.  Landlord reserves the right to the Excluded Spaces and to access to and from them.  If Landlord decides to designate users other than Tenant for the Excluded Spaces, it will give Tenant no less than thirty (30) days’ prior written notice, and Tenant will cease its use of the Excluded Spaces.  Landlord may from time to time identify some or all of the Excluded Spaces as reserved for others.

10.3   Signage.  Tenant shall be entitled to place signage on the exterior of the Building and in the elevator lobbies of the Building or elsewhere on the Property provided that (a) Tenant pays all costs of the signage, (b) the Landlord approves the nature, location, size and configuration of the signage, which approval will not be unreasonably withheld, conditioned or delayed, and (c) the signage complies with any and all applicable laws, codes, ordinances, Rules and Regulations.  Notwithstanding the foregoing, Landlord hereby acknowledges that Landlord has approved the nature, location, size and configuration of Tenant’s existing exterior signage, as depicted on Exhibit D and any existing interior Building signage (“Tenant’s Existing Signage”), and Tenant’s Existing Signage

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requires no further Landlord approval.  Furthermore, Tenant, or any permitted sublessee or assignee, may install signage in addition to Tenant’s Existing Signage subject to the requirements of this Section 10.3.

10.4   Compliance With Law.  Tenant, at its expense, will comply with all applicable governmental laws and orders, with any direction of any public officer or officers according to law, and with any order of a court of competent jurisdiction.  Landlord and Tenant acknowledge that there are in effect federal, state, county and municipal laws, orders, rules, guidelines, directives and Laws (collectively referred to hereinafter as the “Laws”) and that additional Laws may hereafter be enacted or go into effect, relating to or affecting the Premises or the Property, concerning the impact on the environment of construction, land use, maintenance and operation of structures, and conduct of business.  Subject to the express rights granted to Tenant under the terms of this Lease, Tenant will not cause, or permit anything to be done that would violate any Laws.  Moreover, Tenant shall have no claim against Landlord by reason of any changes Landlord may make in the Premises or the Property pursuant to said Laws or any charges imposed upon Tenant, Tenant’s customers or other invitees pursuant to same.  Landlord hereby warrants and represents that to the best of its knowledge, it has not received written notice that the Premises, Building and Property are not in compliance with all applicable laws, including but not limited to ADA laws and environmental laws.

Section 11   QUIET ENJOYMENT

Subject to Section 9.6.3, Landlord agrees to provide quiet enjoyment and possession of the Premises during the Term of this Lease as long as Tenant complies with the provisions of this Lease.

Section 12   EFFECT OF SALE

A sale, conveyance or assignment of the Property shall operate to release Landlord from liability from and after the effective date of such sale, conveyance or assignment upon all of the covenants, terms and conditions of this Lease, express or implied, except those liabilities which arose prior to such effective date.  After such effective date, Tenant shall look solely to Landlord’s successor in interest in and to this Lease.  This Lease shall not be affected by any such sale, conveyance or assignment; Tenant shall attorn to Landlord’s successor in interest to this Lease; and Landlord shall cause Landlord’s successor to execute a specific assumption of Landlord’s interest in this Lease.

Section 13   ALTERATIONS

13.1   (a)   Alterations; General.  Tenant shall not make or allow to be made any alterations, additions or improvements to or of any part of the Premises or attach any fixtures, or equipment to the Premises other than typical office furnishings, without first obtaining Landlord’s written consent which consent shall not be unreasonably withheld, conditioned or delayed; however, Tenant may make minor cosmetic alterations such as carpet and paint that do not require a building permit or impact the structure or systems of the Building and do not cost more than One Hundred Thousand Dollars ($100,000.00) in any twelve (12) month period without prior Landlord written consent.  Any other alterations shall require Landlord consent which consent will not be unreasonably delayed, conditioned, or denied.  All alterations, additions, improvements and attachments requiring Landlord’s approval shall be performed (a) by contractors in a good and workmanlike manner; (b) in compliance with plans approved by Landlord, and, if required by Landlord, prepared by a licensed architect; (c) in compliance with all governmental Laws; and (d) subject to strict compliance with conditions specified by Landlord, which may include requiring the posting of a performance bond and a payment bond each in an amount equal to not less than one half of the total contract price or value.  Subject to Tenant’s rights in Section 13.3, all alterations, additions, fixtures and improvements attached to or otherwise forming part of the Premises shall immediately become Landlord’s property and at the end of the Term will remain on the Premises without compensation to Tenant, unless Landlord requests their removal, in which event Tenant shall remove the same and restore the Premises to their original condition at Tenant’s expense.  Notwithstanding the foregoing, upon Tenant’s request at the time it seeks Landlord’s consent to any alterations, additions or improvements, Landlord agrees to indicate in writing whether it will require such to be removed upon the expiration or earlier termination of the Lease, and Landlord shall only require removal if the alterations create a layout or finishes not customary at the time to office buildings.

(b)   Initial Alterations.  Landlord and Tenant hereby acknowledge and agree that Landlord shall provide Tenant an improvement allowance of Fifteen Dollars ($15.00) per rentable square foot of the Premises, which equals One Million One Hundred Twenty-Nine Thousand Nine Hundred Twenty Dollars ($1,129,920.00) (the “Tenant Improvement Allowance”) that shall be used in this order:  (i) first, to be paid by Landlord to Tenant for initial alterations that will consist of carpeting and repainting comparable to the scope of work listed in Exhibit B attached hereto and incorporated herein by this reference (the “Initial Improvements”); and (ii) second,  as a credit against Base Rent during the Lease Term up to a maximum of Seven Dollars and Fifty Cents ($7.50) per rentable square foot of the Premises, which equals Five Hundred Sixty-Four Thousand Nine Hundred Sixty Dollars ($564,960.00), and (iii) third, for alterations to be completed during the Lease Term in accordance with the procedures in this Section 13.1 following Tenant’s notice to Landlord that Tenant elects to complete such alterations.  Tenant shall not commence any work on the Initial Improvements until the earlier of either the date the Landlord sells the Building to an unaffiliated third party (the “Sale Date”) or November 1, 2013.  Landlord shall pay directly to Tenant’s general contractor, subcontractors or suppliers up to the amount of Tenant’s Improvement Allowance for the actual out-of-pocket expenses incurred in the construction of the Initial Improvements, an estimate of which is set forth in Exhibit B.  Landlord shall pay amounts due for the Initial Improvements within the time period specified on the invoice Landlord receives, so long as Tenant has submitted both the invoice at least ten (10) days before it is due (or if there is a discount

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available at least ten (10) days before it must be paid in order to earn the discount) and the related documentation required by this Section 13.1(b)  In the event that Landlord fails to pay any such properly submitted and substantiated invoice, Tenant shall have the right to pay the invoice directly and thereafter set off such amount from Base Rent thereafter due and owing.  Landlord’s payments for the Initial Improvements shall be conditioned on the following.  Landlord shall make monthly progress payments directly to the Tenant’s general contractor, subcontractors or suppliers, or to reimburse Tenant for amounts paid by Tenant pursuant to Sections 13.1(b)(i) within thirty (30) days after these conditions have been satisfied, or, in Landlord’s sole discretion, waived:

A.	In conjunction with each of Tenant’s invoices, Tenant will submit to Landlord (i) original invoices in connection with all actual construction work performed for Tenant on the Premises, and (ii) completed AIA Form G702, as necessary, approved by Tenant, and certified by Tenant’s general contractor and architect
B.	As a condition of final payment by Landlord, Tenant shall promptly submit to Landlord an affidavit of the general contractor indicating that it and all subcontractors, laborers and material suppliers have been paid in full;
C.	Prior to Landlord’s final payment, Tenant will (i) submit appropriate lien waivers from the general contractor, subcontractors and suppliers of the Premises conditioned upon Tenants receipt of Landlord’s final payment; (ii) if required by the appropriate governmental entity, submit the appropriate governmental entity’s certificate of occupancy including that construction work performed by accordance with local and state codes and that the Premises are acceptable for occupancy; and (iii) Tenant’s written acknowledgment that the Premises are accepted by Tenant and that the Initial Alterations have been completed to its satisfaction; and
D.	Tenant shall not be in arrears with regard to any Rent or other charges which might be due or owing, or no Event of Default shall exist.

13.2   Notice.  At least fifteen (15) days prior to the commencement of any work of any kind whatsoever, including but not limited to any alterations, additions, improvements or installations in or to the Premises by or for Tenant, Tenant shall give Landlord written notice of the proposed work and the names and addresses of the persons supplying labor and materials for the proposed work.  Landlord and any mortgagee of the Property shall have the right to post notices of non-responsibility or similar notices on the Premises in order to protect the Property against mechanic’s liens.

13.3   Freestanding Partitions.  Tenant shall have the right to install and relocate freestanding workstation partitions in the Premises without Landlord’s prior written consent, if no building or other governmental permit is required for their installation or relocation; however, if a permit is required, Landlord shall not unreasonably withhold its consent to such relocation or installation.  Tenant acknowledges that any installation or relocation of such partitions may affect the heating, cooling, power and lighting required by the Premises and any increased cost or additional charges attributable to such changes shall be payable by Tenant to Landlord as Additional Rent.  The freestanding workstation partitions for which Tenant pays shall be part of Tenant’s trade fixtures for all purposes under this Lease.

13.4   Remodeling by Landlord.  In the event that Landlord elects to remodel, expand or add additions to all or any portion of the Common Area or the Property, Tenant will cooperate with such remodeling (including the temporary removal of Tenant’s signs, if any, to facilitate such remodeling), provided that Landlord will give Tenant at least fifteen (15) days prior written notice of such repairs, cleaning and rehabilitations so as not to deprive Tenant of more than 50% of its parking spaces at any one time.  In the event of a material remodeling of the Common Area made available to Tenant by Landlord, Landlord shall provide Tenant with written notice, prior to any such remodeling.

Section 14   MAINTENANCE AND REPAIR OF THE PREMISES

Tenant agrees to keep the Premises in as good and safe order, condition and repair and in as orderly a state as they were on the Commencement Date, loss by fire or other casualty or ordinary wear excepted.  Subject to Landlord’s obligation to make repairs in the event of certain casualties, as stated in Section 16, Landlord shall have no obligation for the repair or replacement of any portion of the Premises which is damaged or wears out during the Term regardless of the cause, including but not limited to: carpeting; draperies; window coverings; wall coverings; painting; appliances; or any of Tenant’s property or improvements in the Premises.  Tenant shall immediately advise Landlord of any damage to the Premises or the Property of which it becomes aware.  All damage or injury to the Premises or the Property or to the fixtures, appurtenances, or equipment thereof either which is caused by Tenant, its agents, employees or invitees or for which Landlord has not been and will not be reimbursed by insurance may, at Landlord’s option, be repaired, restored or replaced by Landlord at the expense of Tenant and such expense (including a reasonable percentage, not to exceed fifteen percent (15%) of such expense for Landlord’s overhead) shall be paid by Tenant to Landlord as Additional Rent within fifteen (15) days after delivery to Tenant of a statement for such expense.

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Section 15   MECHANICS’ LIENS

Tenant shall pay or cause to be paid all costs and charges for work done by Tenant or caused to be done by Tenant in or to the Premises, and for all materials furnished for or in connection with such work.  Tenant shall indemnify Landlord against and hold Landlord, the Premises and the Property free, clear, and harmless from and against all mechanics’ liens and claims of liens and all other liabilities, liens, claims and demands on account of such work or materials by or on behalf of Tenant.  If any such lien at any time is filed of record against the Premises or any part of the Property, Tenant shall cause such lien to be removed of record within ten (10) days after the filing of such lien, except that if Tenant desires to contest such lien without filing a bond and removing the lien of record in accordance with statute, it shall furnish Landlord, within such ten (10) day period, security reasonably satisfactory to Landlord in an amount equal to at least one hundred fifty percent (150%) of the amount of the claim.  If a final judgment establishing the validity or existence of a lien for any amount is entered, Tenant shall pay and satisfy the same at once.  If Tenant fails to remove of record any such mechanics’ lien and has not given Landlord security as described above, Landlord may, at its option, pay such charge and related costs and interest in respect of such lien, and the amount so paid, together with reasonable attorneys’ fees incurred by Landlord in connection with such lien, shall be immediately due from Tenant to Landlord as Additional Rent.  Nothing contained in this Lease shall be deemed the consent or agreement of Landlord to subject Landlord’s interest in the Property to liability under any mechanics’ or other lien law.  If Tenant receives notice or otherwise becomes aware that a lien has been or is about to be filed against the Premises or the Property or any action affecting title to the Property has been or is about to be commenced on account of work done by or for or materials furnished to or for Tenant, it shall immediately give Landlord written notice of the same.

Section 16   CASUALTY AND RESTORATION OF PREMISES

16.1   Substantial Damage.  If the Premises or the Building shall be so damaged by fire or other casualty as to render the Premises wholly untenantable and if such damage shall be so great that an architect, in good standing, selected by Landlord shall certify in writing to Landlord and Tenant within sixty (60) days of said casualty that the Premises, with the exercise of reasonable diligence, cannot be made fit for occupancy within two hundred seventy (270) working days from the happening thereof, then this Lease shall terminate from the date of the occurrence of such damage.  Tenant shall thereupon surrender to Landlord the Premises and all interest it has under this Lease and Landlord may re-enter and take possession of the Premises and, if necessary, remove the Tenant from the Premises.  Tenant shall pay Base Rent and Additional Rent, duly apportioned, up to the time of such Lease termination.  If, however, the damage shall be such that the architect shall certify within said sixty (60) day period that the Premises can be made tenantable within a two hundred seventy (270) working day period, then, except as hereinafter provided, Landlord shall repair the damage so done with all reasonable speed.  If Landlord’s repairs are not completed within such two hundred seventy (270) working day period, then Tenant may terminate this Lease by delivering written notice to Landlord at any time until the restoration is completed.

16.2   Minor Damage.  If the Premises shall be slightly damaged by fire or other casualty, but not so as to render the same wholly untenantable or to require a repair period in excess of two hundred seventy (270) days, then Landlord, after receiving notice in writing of the occurrence of the casualty, shall, except as hereafter provided, cause the same to be repaired with reasonable promptness.  If the estimated repair period as established in accordance with the provisions of Section 16.1 exceeds two hundred seventy (270) days, then the provisions of Section 16.1 shall control, notwithstanding the fact that the Premises are not wholly untenantable.

16.3   Abatement.  Base Rent and Additional Rent shall abate during any such period of repair and restoration, in the same proportion that the part of the Premises rendered untenantable bears to the whole.

Section 17   CONDEMNATION

If all or substantially all of the Premises or any portion of the Building which shall render the Premises substantially unusable is taken by exercise of the power of condemnation or eminent domain, or conveyed by Landlord in lieu of such exercise, this Lease shall terminate on the day before (the “Condemnation Termination Date”) the earlier of the date upon which the condemning authority takes possession of the Premises or such portion of the Building, or the date on which title to the same is vested in the condemning authority.  If more than twenty-five percent (25%) of the Rentable Area of the Premises is so taken, Tenant shall have the right to terminate this Lease by written notice to Landlord given within twenty (20) days after the Condemnation Termination Date.  If more than twenty-five percent (25%) of the Building, but not the Premises, is so taken, Landlord may terminate this Lease by written notice to Tenant given within twenty (20) days after the Condemnation Termination Date.  If this Lease is not terminated under this Section, any such taking shall be deemed to be a Casualty to be treated under the provisions of Section 16.  In the event of any such taking, the entire award shall be paid to Landlord, and Tenant shall have no right or claim to any part of such award, including awards for the taking of Common Areas; and hereby assigns all such awards to Landlord; however, Tenant shall have the right to assert a claim against the condemning authority in a separate action, so long as Landlord’s award is not reduced by such claim, for (a) Tenant’s moving expenses; (b) leasehold improvements paid for by Tenant; (c) Tenant’s leasehold estate; and (d) any other award available from the condemning authority.  Tenant hereby expressly waives all claims against Landlord relating to a partial or total taking of Tenant’s leasehold estate by such condemning authority and all expenses and losses related thereto.

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Section 18   HAZARDOUS MATERIALS

Upon the Commencement Date and thereafter until the Expiration Date, Tenant shall comply with all statutes, ordinances, rules, orders, Laws and requirements of the federal, state, county and municipal governments, and all departments thereof, relevant to the presence, storage, use, maintenance and removal of toxic, hazardous or contaminated substances (collectively, “Hazardous Material”) or wastes in, on, or about the Premises and the Property, which presence, storage, use, maintenance or removal is caused or permitted by Tenant, it being expressly understood that Landlord in no way consents to, approves of, or acquiesces in such presence, storage, use, maintenance or removal of any Hazardous Material in, on, or about the Premises and the Property.  Tenant shall take all steps necessary to dispose of all wastes in a safe, lawful, and appropriate manner.  Tenant agrees to indemnify and forever hold harmless Landlord, its agents, successors, and assigns, and Landlord’s mortgagee(s), as their interests may appear, from all claims, losses, damages, expenses and costs, including, but not limited to, reasonable attorney’s fees and clean-up costs, incurred by reason of Tenant’s use, storage, maintenance or removal of Hazardous Material or wastes in, on, or about the Premises, or any part of the Property.  Notwithstanding anything in this Lease to the contrary, Tenant shall have no liability or obligation with respect to any matter otherwise indemnified against or arising out of Hazardous Material located or discovered in, on or under the Premises or Building which are present due to the acts of parties over whom Tenant has no control, or which occurred prior to Tenant’s occupancy of the Premises.  Further, Landlord represents and warrants to Tenant that Landlord has not received written notice that the Premises, Building and Property are not in compliance with all applicable laws, Rules and Regulations (including applicable environmental laws) as of the date of this Lease.  This Section 18 shall survive the termination or expiration of this Lease.

Section 19   ENTRY BY LANDLORD.

Landlord and its agents, employees and contractors may enter the Premises at any time in response to a bona fide emergency or at reasonable hours with reasonable prior notice to (a) inspect the Premises, (b) exhibit the Premises to prospective purchasers or lenders, (c) determine whether Tenant is complying with all its obligations under this Lease, (d) supply cleaning service and any other service to be provided by Landlord to Tenant according to this Lease, (e) post notices of nonresponsibility or similar notices, (f) exhibit the Premises to prospective tenants during the last six (6) months of the Term, or (g) make repairs required of Landlord under the terms of this Lease or repairs to any adjoining space or utility services or make repairs, alterations or improvements to any other portion of the Property; however all such work shall be done as promptly as reasonably possible and so as to cause as little interference to Tenant as reasonably possible.  Landlord shall at all times have and retain a key with which to unlock all of the doors in, on or about the Premises, excluding Tenant’s vaults, safes and similar areas designated in writing by Tenant in advance.  Landlord shall have the right to use any and all means which Landlord may deem proper to open doors in and to the Premises in an emergency in order to obtain entry to the Premises.  Any entry to the Premises obtained by Landlord by any means permitted under this Section and performance of the actions for which such entry is permitted shall not under any circumstances be construed or deemed to be a forcible or unlawful entry into or a detainer of the Premises or an eviction, actual or constructive, of Tenant from the Premises or any portion of the Premises, and Tenant shall not be entitled to damages or an abatement of Base Rent, Additional Rent or other charges which this Lease requires Tenant to pay.  Tenant waives any claim against Landlord and its agents, employees and contractors for damages for any injury or inconvenience to or interference with Tenant’s business and any loss of occupancy or quiet enjoyment of the Premises occasioned by any such entry or actions, and any other loss or damage whatsoever occasioned by such entry in response to an emergency.

Section 20   SUBLETTING AND ASSIGNMENT

20.1   Landlord’s Consent Required.  Tenant shall not assign this Lease or any interest therein, or sublet all or any part of the Premises, or suffer or permit the Premises or any part thereof to be occupied by others, by operation of law or otherwise, without the prior written consent of Landlord in each instance, which consent will not be unreasonably withheld provided that: (i) Tenant has complied with the provision of Section 20.4 below; (ii) the proposed subtenant or assignee is engaged in a business and the Premises will be used in a manner which is in keeping with the Landlord’s standards of the Property; (iii) the proposed subtenant or assignee is a reputable party of reasonable financial worth in light of the responsibilities involved and Tenant shall have provided Landlord with reasonable proof thereof; and (iv) no Event of Default exists under this Lease beyond any applicable cure period at the time it makes its request for such consent.  Notwithstanding the foregoing, Tenant shall have the right, without obtaining Landlord’s prior written consent to assign or sublease all or any portion of the Premises in a bona fide transaction that is not made for the purpose of evading this Section to the following parties: (1) any subsidiary or affiliate of Tenant; (2) any parent of Tenant; (3) any subsidiary or affiliate of Tenant’s parent entity; or (4) any entity into which Tenant may be merged or consolidated or which purchases all or substantially all of the assets or stock of Tenant, so long as, in each case, the assignee assumes and agrees to perform Tenant’s obligations under this Lease.

20.2   No Waiver; Tenant’s Liability.  If this Lease or any interest herein is assigned, or if the Premises or any part thereof be sublet or occupied by anybody other than Tenant, with or without the consent of Landlord having first been obtained, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant, and apply the net amount collected to the Base Rent and other sums due hereunder, but no collection shall be deemed a waiver of the provisions of this paragraph, or the acceptance of the assignee, subtenant or occupants as the tenant hereof, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant contained in this Lease.  The consent by Landlord to an assignment, subletting or occupancy arrangement shall not relieve

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Tenant from primary liability hereunder or from the obligation to obtain the express consent in writing of Landlord to any further assignment, subletting or occupancy arrangement.  Landlord’s consent to any requested sublease or assignment shall not waive Landlord’s right to refuse to consent to any other such request.  If Tenant collects any rental or other amounts from a subtenant or assignee in excess of the Base Rent and Tenant’s Pro Rata Share of increases in Operating Expenses, Tenant shall pay the Landlord fifty percent (50%) of all such excess amounts as and when received by Tenant minus any amount paid by Tenant for any allowance or concessions made in the sublease or assignment.

20.3   Intentionally omitted.

20.4   Tenant’s Notice.  Tenant hereby agrees that in the event it desires to sublease all or any portion of the Premises or assign this Lease to any party in whole or in part (herein “Assignment”), Tenant shall notify Landlord not less than thirty (30) days prior to the date Tenant desires to sublease such portion of the Premises or assign this Lease (“Tenant’s Notice”), except for those assignments and subleases permitted by Section 20.1.  Tenant’s Notice shall set forth the description of the portion of the Premises to be so sublet or assigned and the terms and conditions on which Tenant desires to sublet the Premises or assign this Lease, and shall include information sufficient for Landlord to assure itself of the creditworthiness and experience of the proposed assignee or subtenant.  Landlord shall notify Tenant whether Landlord consents to such sublet or assignment, which consent shall not be unreasonably withheld, within ten (10) days following receipt of Tenant’s Notice.  If Landlord consents to the proposed subletting or assignment, Tenant shall be free to sublet the portion of the Premises in question or assign the applicable portion of its interest in this Lease to the party identified in and on terms substantially identical to those described in Tenant’s Notice.  If Tenant is unable to sublet said portion of the Premises or assign the applicable portion of its interest in this Lease on such terms and conditions within one hundred eighty (180) days following its Tenant’s Notice to Landlord, Tenant’s right to proceed with subletting or assignment of the affected portion to that specified subtenant or assignee of the Premises shall terminate unless Landlord otherwise permits in writing.

20.5   Fair Rental Value.  Tenant covenants and agrees that Tenant shall not, and shall not allow any subtenant of Tenant to, enter into any sublease, license, concession or other agreement of use, occupancy or utilization of space in the Premises, which provides for a rental or other payment for such use, occupancy or utilization based in whole or in part on the income (other than gross income or gross receipts to be determined in a manner satisfactory to counsel for Landlord) or profits of any sublessee, licensee, concessionaire or other user or occupant, and further agrees that a breach of this covenant and agreement shall be a material breach of this Lease.  The provisions for any such rental in violation of this Section 20.5 shall be void at its inception and Tenant agrees that rent under the offending lease, sublease, license, concession or agreement shall be calculated at an amount equal to the fair rental value thereof.

20.6   Landlord’s Review.  All documents utilized by Tenant to evidence any subletting or assignment to which Landlord has consented shall be subject to prior approval by Landlord or its counsel.  Tenant shall pay on demand up to One Thousand Dollars ($1,000.00) toward Landlord’s out-of-pocket, third-party costs and expenses, including reasonable attorneys’ fees in determining whether or not to consent to any requested sublease or assignment and in reviewing and approving such documentation.

20.7   No Release or Waiver.  Regardless of any Landlord consent, except as expressly agreed in writing by Landlord, no subletting or assignment shall release Tenant of Tenant’s obligations to pay Base Rent, Additional Rent or perform any of Tenant’s obligations under this Lease.  Landlord’s acceptance of rent payments from any person or entity other than Tenant shall not be deemed a waiver by Landlord of any of its rights under this Lease.

Section 21   SUBORDINATION AND ATTORNMENT

21.1   Subordination.  This Lease, at Landlord’s option, shall be subordinate to any covenant, ground lease, mortgage or deed of trust existing now or after the date of this Lease placed upon all or any part of the Property, including any amendment, modification, restatement, consolidation, replacement or extension of any such document, and to all advances made under any mortgage or deed of trust, provided that Tenant agrees to the subordination in a commercially reasonable written instrument which provides that Tenant’s use or possession of the Premises shall not be disturbed, its obligations shall not be enlarged, and its rights shall not be abridged under this Lease by reason of any such transaction.  Tenant agrees that any mortgagee shall have the right at any time to subordinate its mortgage, deed of trust or other lien to this Lease; however, notwithstanding that this Lease may be superior to a mortgage, deed of trust or other lien, the mortgagee shall not be liable for prepaid rentals, security deposits and claims accruing during Landlord’s ownership; further provided that the provisions of a mortgage, deed of trust or other lien relative to the rights of the mortgagee with respect to proceeds arising from an eminent domain taking, including a voluntary conveyance by Landlord, and provisions relative to proceeds arising from insurance payable by reasons of damage to or destruction of the Premises shall be prior and superior to any contrary provisions contained in this instrument with respect to the payment or usage thereof.  Landlord is hereby irrevocably vested with full power and authority to subordinate this Lease to any mortgage, deed of trust or other lien hereafter placed upon the Premises or the Property, or the Building as a whole, and Tenant agrees upon demand to execute a commercially reasonable subordination, non-disturbance and attornment reasonably requested by Landlord’s lender, which provides that Tenant’s use or possession of the Premises shall not be disturbed, its obligations shall not be enlarged, and its rights shall not be abridged under this Lease by reason of any such transaction.  Upon Tenant’s written request to Landlord, Landlord shall obtain from any such mortgagee a written agreement that the rights of Tenant shall remain in full force and effect during the term of this Lease so long as Tenant shall continue to recognize and perform all of the covenants and conditions of this Lease.  If a mortgage lien currently affects the Building, Tenant’s execution of this

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Lease shall be conditional upon Tenant’s receipt of Landlord’s current lender’s subordination, non-disturbance and attornment agreement within ten (10) days after the date of Tenant’s execution.

21.2   Mortgagee’s Right to Cure.  At any time when the holder of an outstanding mortgage, deed of trust or other lien covering Landlord’s interest in the Premises has given Tenant written notice of its interest in this Lease, Tenant may not exercise any remedies for default by Landlord hereunder unless and until the holder of the indebtedness secured by such mortgage, deed of trust or other lien shall have received written notice of such default and a reasonable time, not less than thirty (30) days, shall thereafter have elapsed without the default having been cured.

21.3   Subordination Documents.  In confirmation of such subordinate or superior position of this Lease, as the case may be, Tenant agrees to execute and deliver such documents as may be required by Landlord or its mortgagee to evidence the subordination of Tenant’s interest in this Lease and in the Premises to the interest created by any of the documents described in Section 21.1 or to evidence that this Lease is prior to the lien of any mortgage or deed of trust, as the case may be, and failing to do so after two (2) written demands, each providing Tenant a minimum of ten (10) business days to comply, shall constitute an Event of Default.

21.4   Estoppel Documents.  Tenant agrees that it will from time to time within ten (10) days after request by Landlord execute and deliver to Landlord a written statement addressed to Landlord or to a party designated by Landlord, which statement shall identify Tenant and this Lease, shall certify that this Lease is unmodified and in full force and effect, or if there have been modifications, that the same is in full force and effect as so modified, shall confirm that Landlord is not in default as to any obligations of Landlord under this Lease, or if Landlord is in default, specifying any default, shall confirm Tenant’s agreements contained in this Section, and shall contain such other information or confirmations as Landlord may reasonably require.  Tenant’s failure to deliver estoppel documents after two (2) written demands, each providing Tenant a minimum of ten (10) business days to comply, shall constitute an Event of Default.

21.5   Attornment.  Tenant agrees to attorn to all successor owners of the Property, whether or not such ownership is acquired as a result of a sale, through foreclosure of a deed of trust or mortgage, or otherwise, and to execute and deliver such certificates as may be requested from time to time by Landlord certifying and acknowledging the existence, validity and terms and conditions of this Lease; the existence or absence of any Events of Default thereunder or other noncompliance by Landlord or Tenant with any terms or conditions of this Lease; stating the amount of rent, if any, paid in advance, and stating that such certificate may be relied upon by any person or entity specified by Landlord in its request.  Tenant’s failure to execute and deliver such a certificate within twenty (20) days after Landlord’s second request to do so shall make it conclusively binding upon Tenant that as of such twentieth day:  (i) this Lease is in full force and effect, without modification except as may be represented by Landlord; (ii) there are no uncured defaults in Landlord’s performance; and (iii) not more than one (1) month’s rent has been paid in advance.

Section 22   INDEMNIFICATION, WAIVER AND RELEASE

22.1   Indemnification.  Tenant shall neither hold nor attempt to hold Landlord or its employees or agents liable for, and Tenant shall indemnify and hold harmless Landlord and its employees and agents from and against any and all demands, claims, causes of action, fines, penalties, damages, including consequential damages, liabilities, judgments and expenses, including without limitation reasonable attorneys’ fees, incurred in connection with or arising from:

22.1.1   The use or occupancy or manner of use or occupancy of the Premises by Tenant or any person claiming under Tenant;

22.1.2   Any activity, work or thing done, permitted or suffered by Tenant in or about the Premises or the Property;

22.1.3   Any act, omission or negligence of Tenant or any person claiming under Tenant or any contractor, agent, employee, invitee or visitor of Tenant or of any such person (collectively “Tenant’s Persons”);

22.1.4   Any breach, violation or nonperformance by Tenant or any of Tenant’s Persons of any term, covenant or provision of this Lease or any law, ordinance or governmental requirement of any kind; and

22.1.5   Any injury or damage to the person, property or business of Tenant or any of Tenant’s Persons or any other person entering upon the Premises or the Property under the express or implied invitation of Tenant; except for any injury or damage to persons or property which is proximately caused by the willful misconduct or grossly negligent act or omission of Landlord or any of its employees.  

If any action or proceeding is brought against Landlord or any of its employees by reason of any such claim for which Tenant has indemnified Landlord, Tenant, upon notice from Landlord, shall defend the same at Tenant’s expense with counsel reasonably satisfactory to Landlord.

Notwithstanding the foregoing, to the fullest extent allowed by applicable Laws, Landlord shall protect, defend, indemnify and hold harmless Tenant and its agents, officers, directors, contractors, employees, parents, subsidiaries, successors and assigns from and against any demands, claims, causes of action, fines, penalties, damages, including consequential damages, liabilities, judgments and expenses, including without limitation reasonable attorneys’ fees, to the extent arising out of or attributable to Landlord’s or Landlord’s agents contractors, or employees grossly negligent actions or omissions or willful misconduct in connection with

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Landlord’s obligations under the Lease (including without limitation Landlord’s violation of all applicable environmental Laws). This indemnity shall survive the termination of this Lease.

22.2   Waiver and Release.  Tenant, as a material part of the consideration to Landlord for this Lease, waives and releases all claims against Landlord and its employees and agents with respect to all matters for which Landlord has disclaimed liability pursuant to the provisions of this Lease.  Except for any damage or injury to persons or property outside the Premises which is proximately caused by the willful misconduct or grossly negligent act or omission of Landlord or its employees, but subject to Sections 8.4 and 22.1, Tenant covenants and agrees that Landlord and its employees shall not at any time or to any extent whatsoever be liable, responsible or in any way accountable for any loss, injury, death or damage, including consequential damages, to persons, property or Tenant’s business occasioned by theft; act of God or public enemy; injunction; riot; strike or other labor disturbance; insurrection; war; court order; requisition; order of governmental body or authority; fire; explosion; falling objects; steam; water; rain; snow; ice; hail; wind; leak or flow of water or other liquid, including fluid from the elevator system, rain or snow from or into part of the Property or from the roof, street, subsurface or from any other place; dampness; breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Property; construction, repair or alteration in or taking of the Property or the Premises any acts or omissions of any other tenant, occupant or visitor of the Property; or from any cause beyond Landlord’s reasonable control; and Tenant hereby agrees to indemnify Landlord and hold Landlord harmless from any loss, expense or claims arising out of such damage or injury.

Section 23   TENANT’S DEFAULT

23.1   Events of Default.  Each one of the following events is an “Event of Default”:

23.1.1   Tenant fails in the due and punctual payment of Base Rent, Additional Rent or any other amount due under this Lease; however, not more than twice in any calendar year, Tenant may cure an Event of Default under this Section on or before the fifth (5th) day after receipt of written notice of such default from Landlord.  Except as so provided, if any amount owing under this Lease is not paid when due, an Event of Default shall have occurred and no notice or cure period shall be provided;

23.1.2   Tenant abandons or vacates the Premises, without payment of Rent;

23.1.3   This Lease or the estate of Tenant under this Lease is transferred to or passes to or devolves upon any other person or entity, or Tenant purports to assign any of its interest in this Lease or to sublet all or any part of the Premises, except as provided in Section 20;

23.1.4   Any interest in this Lease or any part of the Premises is taken upon execution or by other process of law directed against Tenant or is taken upon or subject to any attachment at the instance of any creditor of or claimant against Tenant and such attachment is not discharged or disposed of within fifteen (15) days after its levy or any lien is placed upon the Property as a result of the action or inaction of Tenant;

23.1.5   The filing of any petition or the commencement of any case or proceeding by Tenant under any provision or chapter of the Bankruptcy Code, or any other federal or state law relating to insolvency, bankruptcy or reorganization or the adjudication in any court that Tenant is insolvent or bankrupt or the entry of an order for relief under the Bankruptcy Code with respect to Tenant;

23.1.6   The filing of any petition or the commencement of any case or proceeding against Tenant under any provision or chapter of the Bankruptcy Code, or any other federal or state law relating to insolvency, bankruptcy or reorganization or the adjudication in any court that Tenant is insolvent or bankrupt or the entry of an order for relief under the Bankruptcy Code, unless such petition and all proceedings initiated by such petition are dismissed within sixty (60) days after the date of such filing; the filing of an answer by Tenant admitting the material allegations of any such petition; or the appointment of or taking possession by a custodian, trustee or receiver for all or any assets of Tenant, unless such appointment is vacated or dismissed within sixty (60) days after the date of such appointment;

23.1.7   The insolvency of Tenant or the execution by Tenant of an assignment for the benefit of creditors; the convening by Tenant of a meeting of substantially all or any class of its creditors for purposes of effecting a moratorium upon or extension or composition of its debts, or the failure of Tenant generally to pay its debts as they become due;

23.1.8   The admission in writing by Tenant, or any officer or director of Tenant, if Tenant is a corporation, manager, general partner, or other managing or executive officer if Tenant is some other form of entity, that such Tenant is unable to pay its debts as they become due or it is generally not paying its debts as they become due;

23.1.9   Tenant fails to perform or comply with any of the other agreements, terms, covenants or conditions which this Lease requires Tenant to perform or comply with, and such nonperformance or noncompliance continues for thirty (30) days after written notice of such nonperformance by Landlord to Tenant or, if such performance or compliance cannot reasonably be accomplished within such thirty (30) day period, Tenant does not in good faith commence such performance or compliance within such thirty (30) day period and diligently proceed to compliance or performance.

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23.2   Landlord’s Remedies.  If any Event of Default occurs then Landlord shall have the right at its election to pursue the following remedies in accordance with all applicable Laws:

23.2.1   to give Tenant written notice of Landlord’s intention to terminate this Lease on the earliest date permitted by law or on any later date specified in such notice, in which case Tenant’s right to possession of the Premises shall cease and this Lease shall terminate, except as to Tenant’s liability, as if the date of termination fixed in such notice were the end of the Term; or

23.2.2   without further demand or notice, to reenter and take possession of the Premises or any part of the Premises, repossess the same, expel Tenant and those claiming through or under Tenant, and remove the effects of both or either, using such force for such purposes as may be necessary, without being liable for prosecution, without being deemed guilty of any manner of trespass, and without prejudice to any remedies for arrears of Base Rent, Additional Rent or any other amounts payable under this Lease or as a result of any preceding breach of any agreements, covenants or conditions in this Lease; or

23.2.3   without further demand or notice, to cure any Event of Default and to charge Tenant for the cost of effecting such cure, including without limitation attorneys’ fees and interest on the amount so advanced at the rate stated in Section 23.8, but Landlord shall have no obligation to cure any such Event of Default.

23.3   Reentry.  If Landlord elects to reenter as provided in Section 23.2.2 or takes possession pursuant to legal proceedings or pursuant to any notice provided by law, Landlord may, from time to time, without terminating this Lease, relet the Premises or any part of the Premises in Landlord’s or Tenant’s name, but for the account of Tenant, for such term or terms, which may be greater or less than the then balance of the Term, and on such conditions and upon such other terms, which may include concessions of free rent, and alteration and repair of the Premises, as Landlord, in its sole discretion, may determine, and Landlord may collect and receive the rent, provided, however, that Landlord shall use commercially reasonable efforts to mitigate its damages.  Landlord shall in no way be responsible or liable for any failure to relet the Premises or any part of the Premises, or for any failure to collect any rent due upon such reletting.  No such reentry or taking possession of the Premises by Landlord may be construed as an election by Landlord to terminate this Lease unless a written notice of such intention is given to Tenant.  No notice from Landlord under this Section or under a forcible or unlawful entry and detainer statute or similar law shall constitute an election by Landlord to terminate this Lease unless such notice specifically so states.  Landlord reserves the right following any such reentry or reletting to exercise its right to terminate this Lease by giving Tenant such written notice, in which event this Lease shall terminate as specified in such notice.

23.4   Certain Damages.  If Landlord elects to take possession as provided in Section 23.2.1 hereinabove, Tenant shall pay to Landlord an amount equal to:  (a) Base Rent, Additional Rent and other sums as provided in this Lease which would be payable under this Lease if such repossession had not occurred, less (b) the net proceeds (“Reletting Net Proceeds”), if any, of any reletting of the Premises after deducting all of Landlord’s reasonable expenses in connection with such reletting, including without limitation all repossession costs, brokerage commissions, reasonable attorneys’ fees, expenses of employees, alteration and repair costs and other expenses of preparation of the Premises for such reletting.  If, in connection with any reletting, the new lease term extends beyond the existing Term, a fair apportionment of the rent received from such reletting and the expenses incurred in connection with such reletting as provided in this Section shall be made in determining the Reletting Net Proceeds, and any rent concessions shall be equally apportioned over the term of the new lease.  Tenant shall pay such rent and other sums to Landlord monthly on the day on which the Base Rent would have been payable under this Lease if possession had not been retaken, and Landlord shall be entitled to receive such rent and other sums from Tenant on each such day.

23.5   Continuing Liability After Termination.  If this Lease is terminated pursuant to the provisions of Section 23.2.1, Tenant shall remain liable to Landlord for damages in an amount equal to Base Rent, Additional Rent and other amounts which would have been owing by Tenant for the balance of the Term had this Lease not been terminated, less the Reletting Net Proceeds, if any. Landlord shall be entitled to collect such damages from Tenant monthly on the day on which Base Rent and other amounts would have been payable under this Lease if the Lease had not been terminated. Alternatively, at the option of Landlord, in the event this Lease is so terminated, Landlord shall be entitled to recover against Tenant as damages for loss of bargain, and not as a penalty the following amounts:

(a)   the worth at the time of the award of the unpaid Base Rent and Additional Rent that had been earned at the time of termination;

(b)   the worth at the time of the award of the amount by which the unpaid Base Rent and Additional Rent that would have been earned after termination until the time of the award exceeds the amount of the Base Rent and Additional Rent loss that Tenant proves could reasonably have been avoided;

(c)   the worth at the time of the award of the amount by which the unpaid Base Rent and Additional Rent for the balance of the Term after the award exceeds the amount of Base Rent and Additional Rent loss that Tenant proves could reasonably be avoided; and

(d)   any other amount necessary to compensate Landlord for the detriment arising from Tenant’s default.

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The “worth at the time of the award” of the amount referred to in clauses (A) and (B) is computed by allowing annual interest at the prime rate as published by the Wall Street Journal, or any successor thereto selected by Landlord (the “Prime Rate”) plus 2%.  The “worth at the time of the award” of the amount referred to in clause (C) shall be computed by discounting such amount to present worth at a discount rate equal to the percentage point above the discount rate then in effect at the Federal Reserve Bank nearest to the location of the Property.

23.6   Cumulative Remedies.  Suit or suits for recovery of the amounts and damages stated in Sections 23.4 and 23.5 may be brought by Landlord from time to time at Landlord’s election, and nothing in this Lease shall be deemed to require Landlord to await the date upon which the term would have expired had there occurred no Event of Default.  Each right and remedy provided for in this Lease is cumulative and is in addition to every other right or remedy provided for in this Lease or now or in the future existing at law or in equity, and the exercise or beginning of the exercise by Landlord of any one or more of such rights or remedies shall not preclude the simultaneous or later exercise by Landlord of any or all other such rights or remedies.  All costs incurred by Landlord in collecting any amounts and damages owing by Tenant pursuant to the provisions of this Lease or to enforce any provision of this Lease, including reasonable attorneys’ fees from the date any such matter is turned over to an attorney whether or not one or more actions are commenced by Landlord, shall also be recoverable by Landlord from Tenant.

23.7   Bankruptcy.  Nothing contained in this Section shall limit or prejudice the right of Landlord to prove and obtain as liquidated damages in any bankruptcy, insolvency, receivership, reorganization or dissolution proceeding an amount equal to the maximum allowed by any statute or rule of law governing such a proceeding and in effect at the time when such damages are to be proved, whether or not such amount be greater than, equal to or less than the amounts recoverable, either as damages or rent, referred to in any of the preceding Sections of this Section.  Landlord and Tenant understand that contrary to certain provisions of this Lease, a trustee or debtor in possession under the Bankruptcy Code may have certain rights to assume or assign this Lease.  Landlord and Tenant further understand that in any event Landlord is entitled under the Bankruptcy Code to Adequate Assurance of future performance of the terms and provisions of this Lease.  For purposes of any such assumption or assignment, the term “Adequate Assurance” shall include at least the following:

23.7.1   In order to assure Landlord that the proposed assignee will have the resources with which to pay the rent and other sums required by this Lease, any proposed assignee must have demonstrated to Landlord’s satisfaction, a net worth, as defined in accordance with generally accepted accounting principles, at least as great as the net worth of Tenant on the date of this Lease increased by seven percent (7%), compounded annually, for each Lease Year from the Commencement Date through the date of the proposed assignment.  The financial condition and resources of Tenant were a material inducement to Landlord in entering into this Lease.

23.7.2   Any proposed assignee of this Lease and the principal owners of such assignee, must assume and agree to be personally bound by the terms, provisions and covenants of this Lease.

23.8   Late Payment Charge.  Any rents or other amounts owing under this Lease which are not paid within five (5) days after the date they are due shall bear interest from the due date at the rate of four (4) percentage points over the Prime Rate or the highest rate permitted by applicable usury law, whichever is lower, until paid.  Further, Landlord and Tenant agree that in respect of each such late payment, Landlord will incur additional administrative expenses, the amount of which will be difficult if not impossible to determine.  Accordingly, Tenant shall pay to Landlord in addition to interest, a one-time late charge for each such late payment in the amount of five percent (5%) of such payment.

23.9   Waiver of Jury Trial.  Tenant hereby waives, to the extent allowed by law, any and all rights to a trial by jury in suit or suits brought to enforce any provision of this Lease or arising out of or concerning the provisions of this Lease.

Section 24   LANDLORD’S DEFAULT

In the event of any alleged default on the part of Landlord, Tenant shall give written notice to Landlord and shall afford Landlord a minimum of thirty (30) days to cure any such default or commence to diligently cure such default.  Notice to Landlord of any such alleged default shall be ineffective unless notice is simultaneously delivered to each holder of a mortgage or deed of trust affecting all or any portion of the Building or Property (“Mortgagee”), the name and address of which Tenant has been notified in writing prior to the giving of Tenant’s notice under this Section.  Tenant agrees that if Landlord shall have failed to cure such default or failed to have commenced to diligently cure such default within the time provided for in this Lease, then the Mortgagees shall have an additional thirty (30) days within which to cure such default or, if such default cannot be cured within that time, then such additional time as may be necessary if within such thirty (30) days any Mortgagee has commenced and is diligently pursuing the remedies necessary to cure such default, including but not limited to commencement of foreclosure proceedings if necessary to effect such cure, in which event this Lease shall not be terminated while such remedies are being so diligently pursued.  In no event will Landlord or any Mortgagee be responsible for any consequential damages incurred by Tenant as a result of any default, including without limitation lost profits or interruption of business, as a result of any alleged default by Landlord.  If a material default or breach by Landlord of a material provision of this Lease is not cured within the time periods provided for in this Section, Tenant may terminate this Lease by written notice to Landlord within fifteen (15) days after the expiration of the last applicable cure period.

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Section 25   SECURITY

Notwithstanding any other provision of this Lease, Landlord shall not be obligated to provide police or security services or equipment of any kind to the Building.  In the event that any such services or equipment are provided, Landlord shall not be responsible for any failure, inadequacy, or other consequences of the same.

Section 26   END OF LEASE

26.1   Vacating Premises.  Upon the expiration or other termination of the Term of this Lease, Tenant shall promptly quit and surrender to Landlord the Premises broom clean, in good order and condition, ordinary wear and tear and loss by fire or other casualty not caused by willful misconduct or grossly negligent act or omission of Tenant or its agents, contractors, employees or invitees excepted, and Tenant shall remove all of its movable furniture, trade fixtures and other personal property.  Tenant shall pay to Landlord on demand the cost of repairing all damage to the Premises or Property caused by removal of any trade fixtures, equipment, furniture or personal property of Tenant or improvements, which shall not be removed without Landlord’s written consent.  In the event Tenant fails to vacate the Premises on a timely basis as required, Tenant shall be responsible to Landlord for all costs incurred by Landlord as a result of such failure, including without limitation any amounts required to be paid to third parties who were to have occupied the Premises, plus fifteen percent (15%) of such costs.

26.2   Abandoned Property.  All movable furniture, trade fixtures and other personal property of Tenant not removed from the Premises upon its vacation without payment of rent or abandonment or within ten (10) days after the expiration or termination of the Term of this Lease for any cause whatsoever shall conclusively be deemed to have been abandoned and may be appropriated, sold, stored, destroyed or otherwise disposed of by Landlord without notice to Tenant or any other person and without obligation to account for such property, and Tenant shall pay Landlord on demand all expenses incurred in connection with the disposition of such property, plus fifteen percent (15%) of such expenses.

26.3   Holding Over.  Tenant shall have no right to remain in possession of any part of the Premises after the end of the Term of this Lease.  If, after the end of the Term, Tenant shall remain in possession of the Premises and continue to pay rent as provided in this Section, and Landlord shall accept such rent without any express written agreement as to such holding over, then such holding over shall be deemed a tenancy from month-to-month, subject to all the terms and conditions of this Lease on the part of Tenant to be observed and performed and at a monthly rent equal to one hundred fifty percent (150%) of the monthly installments of Base Rent and Additional Rent paid by Tenant immediately prior to such expiration, or the current market rental rate for the Premises, whichever is greater.  All such rent shall be payable in advance on the same day of each calendar month as the Base Rent was payable.  Such month-to-month tenancy may be terminated by either party upon ten (10) days’ notice prior to the end of any such monthly period.  Landlord shall not be obligated to accept any rental tendered by Tenant after the end of the Term nor shall Tenant be relieved of its liability under Section 26.1 without the express written agreement of Landlord.

26.4   No Reinstatement.  No payment of money by Tenant to Landlord after the termination or expiration of the Term of this Lease or after giving of any notice by Landlord to Tenant shall reinstate, continue or extend the Term of this Lease or affect any notice, other than a demand for payment of money, given to Tenant prior to the payment of such money.  After the service of notice or the commencement of a suit or final judgment granting Landlord possession of the Premises, Landlord may receive and collect any rent or other sums of money due under this Lease or otherwise exercise Landlord’s rights and remedies under this Lease, and the payment of such sums of money, whether as rent or otherwise, shall not waive, suspend, revoke or nullify such notice or in any manner affect any pending suit or any judgment obtained.

Section 27   MISCELLANEOUS

27.1   No Business Relationship.  Nothing in this Lease shall be deemed or construed by the parties hereto, nor by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the parties hereto, it being understood and agreed that neither the method of computation of rent, nor any other provision contained herein, nor any acts of the parties hereto, shall be deemed to create any relationship between the parties hereto other than the relationship of landlord and tenant.

27.2   No Offset.  Except as otherwise provided in this Lease (including but not limited to Sections 9.6.1 and 13.1(b)), Tenant shall not for any reason withhold or reduce Tenant’s required payments of rent and other charges provided in this Lease, it being agreed that the obligations of Landlord under this Lease are independent of Tenant’s obligations except as may be otherwise expressly provided.  The immediately preceding sentence shall not be deemed to deny Tenant the ability of pursuing all rights granted it under this Lease or at law; however, at the direction of Landlord, Tenant’s claims in this regard shall be litigated in proceedings different from any litigation involving rental claims or other claims by Landlord against Tenant, i.e., each party may proceed to a separate judgment without consolidation, counterclaim or offset as to the claims asserted by the other party.

27.3   Landlord’s Liability Limited.  The liability of Landlord to Tenant for any default by Landlord under the terms of this Lease shall be limited to the interest of Landlord in the Property; and Landlord, its officers, directors, shareholders, employees, and agents shall not be personally liable for any deficiency.  This Section shall not be deemed to limit or deny any remedies which Tenant may have in the event of default by Landlord hereunder, which do not involve the personal liability of Landlord.

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27.4   Consent.  In all circumstances under this Lease where the prior consent of one party (the “Consenting Party”), whether it be Landlord or Tenant, is required before the other party (the “Requesting Party”) is authorized to take any particular type of action, such consent shall not be withheld in a wholly unreasonable and arbitrary manner; however, the Requesting Party agrees that its exclusive remedy if it believes that consent has been withheld improperly, including, but not limited to, consent required from Landlord pursuant to Section 20, shall be required to institute litigation either for a declaratory judgment or for a mandatory injunction requiring that such consent be given, with the Requesting Party hereby waiving any claim for damages, attorney’s fees or any other remedy unless the Consenting Party refuses to comply with a court order or judgment requiring it to grant its consent.

27.5   No Easements for View or Light.  Tenant covenants and agrees that no diminution of light, air or view by any structure that may be erected, whether or not by Landlord, after the date of this Lease shall entitle Tenant to any reduction of rent or other charges under this Lease, result in any liability of Landlord to Tenant, or in any way affect this Lease or Tenant’s obligations under it.

27.6     Intentionally omitted.

27.7   Rules and Regulations.  The Rules and Regulations attached to this Lease as Exhibit C are made a part of this Lease.  Landlord may amend, modify, delete or add new and additional Rules and Regulations of the use and care of the Premises and the Property (including the parking garage thereof), without materially diminishing Tenant’s use of the Premises or materially altering Tenant’s obligations under this Lease.  Tenant agrees that Tenant’s employees and agents and any others permitted by Tenant to occupy or enter the Premises shall at all times abide by such Rules and Regulations.  In the event of any breach of any of such Rules and Regulations or any amendments, modifications or additions to any of them of which Tenant is given notice, Landlord shall have all remedies in this Lease as provided for Events of Default by Tenant.  At any time that Tenant does not lease 100% of the Building, Landlord shall apply the Rules and Regulations uniformly to all tenants of the Building and in a non-discriminatory manner.

27.8   Notice to Landlord.  Tenant shall notify Landlord or its representative promptly of any accidents or defects in, on or about the Premises or the Property of which Tenant becomes aware, including without limitation defects in pipes, electrical wiring, elevators and HVAC equipment, and of any matter or condition which may cause injury or damage to the Premises or the Property or to any person or property in, on or about any part of the Property.

27.9   Intentionally omitted.

27.10   Use of Name.  Tenant shall not use the name of the Property for any purpose other than as part of its business address unless otherwise authorized by Landlord and any such prohibited use shall be an Event of Default by Tenant under this Lease.

27.11   No Recordation.  Tenant’s recordation of this Lease or any memorandum or short form of it shall be void and shall constitute an Event of Default under this Lease.

27.12   Force Majeure.  Landlord shall have no liability to Tenant, nor shall Tenant have any right to terminate this Lease or abate Base or Additional Rent, or assert a claim for partial or total actual or constructive eviction because of Landlord’s failure to perform any of its obligations under this Lease if the failure is due to reasons beyond Landlord’s reasonable control, including without limitation strikes or other labor difficulties; inability to obtain necessary governmental permits and approvals, including building permits or certificates of occupancy; unavailability or scarcity of materials; war, riot; civil insurrection; acts of terrorism; accidents; acts of God; or governmental preemption in connection with a national emergency.   Tenant shall have no liability to Landlord, nor shall Landlord have any right to terminate this Lease or exercise Landlord’s remedies provided herein because of Tenant’s failure to perform any of its obligations under this Lease if the failure is due to reasons beyond Tenant’s reasonable control, including without limitation strikes or other labor difficulties; inability to obtain necessary governmental permits and approvals, including building permits or certificates of occupancy; unavailability or scarcity of materials; war, riot; civil insurrection; acts of terrorism; accidents; acts of God; or governmental preemption in connection with a national emergency.

27.13   .Intentionally omitted.

27.14   Landlord’s Designated Authority.  Landlord may act in any manner provided for in this Lease by or through any one or more persons or entities it may designate from time to time by notice to Tenant.

27.15   Continuation of Obligations.  This Lease shall continue in effect after termination or expiration of the Term to the extent of any provisions which require observance or performance by Landlord or Tenant subsequent to such termination or expiration and no liability of Landlord or Tenant which arose prior to such termination or expiration shall be extinguished by the same.

27.16   No Waiver.  The waiver by Landlord or failure by Landlord to insist upon the strict performance of any agreement, condition or provision contained in this Lease shall not be deemed to be a waiver of any subsequent breach of the same or any other agreement, condition or provision contained in this Lease, nor shall any custom or practice which may arise between the parties in the administration of the terms of this Lease be construed to waive or to lessen the right of Landlord to insist upon performance by Tenant in strict accordance with the terms of this Lease.  The subsequent acceptance of Base Rent or Additional Rent by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any agreement, condition or provision of this Lease, other than the failure

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of Tenant to pay the particular Rent so accepted, regardless of Landlord’s knowledge of such preceding breach at the time of acceptance of such Rent.

27.17   Notices.  Except in the case of any action in unlawful detainer, where delivery shall be governed by applicable statute, all notices, demands or other communication in connection with this Lease shall be in writing and shall be deemed properly given and received (i) upon delivery, if delivered in person with receipt acknowledged by the recipient thereof; (ii) one (1) business day after having been deposited for overnight delivery with any reputable overnight courier service, or (iii) three (3) business days after having been deposited in any post office or mail depository regularly maintained by the U.S. Postal Service and sent by registered or certified mail, postage prepaid, return receipt requested.  Either Landlord or Tenant may add a reasonable number of additional addresses.  Until notice in accordance with the foregoing, all notices, demands or other communications shall be sent to the addresses in Section 1.

This Section shall not prohibit notice being given as provided in Rule 4 of the Colorado Rules of Civil Procedure as amended from time to time and such notice shall be valid under this Lease.

27.18   No Merger.  The termination or mutual cancellation of this Lease shall not work a merger, and shall at the option of Landlord be exercised by notice to Tenant and all subtenants known to Landlord, prior to the tenth (10th) day after such termination or cancellation operate as an assignment to Landlord of any or all such subleases or subtenancies.

27.19   Time of the Essence.  Time is of the essence of each and every provision of this Lease.

27.20   Construction.  Landlord and Tenant acknowledge that each of them and their counsel have had an opportunity to review and discuss a draft of this Lease and that this Lease shall not be construed against Landlord merely because Landlord has prepared it.

27.21   Financial Condition of Tenant and Guarantor.  Tenant represents and warrants that as of the date of Tenant’s execution and delivery of this Lease (i) all financial information that has been furnished to Landlord pertaining to Tenant or Guarantor (if any) or any competent person or entity of Tenant fairly represents and accurately states the subject person or entity’s financial condition as at the date or period referenced therein in accordance with generally accepted accounting principles consistently applied, and (ii) there has not been a material adverse change in its financial condition following the time covered in such reports, and (iii) neither Tenant nor Guarantor (if any), nor any component person or entity of Tenant is a party to any suit, proceedings, legal investigation or other similar action (nor, to the best of Tenant’s knowledge, is any of the same threatened) which if determined adversely would materially affect the financial condition of the subject person or entity or the business to be conducted at the Premises.

27.22   OFAC.  Tenant hereby represents and warrants to Landlord that Tenant nor its affiliates, respective partners, members, shareholders, or other equity owners, and none of their respective employees, officers, directors, representatives or agents, is a person or entity with whom U.S. persons or entities are restricted from doing business with under Laws of the Office of Foreign Assets Control (“OFAC”) of the United States Department of Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action.

27.23   Captions.  The captions of the various Sections  of this Lease are for convenience only and shall not be considered in the construction of the contents of any such Sections or Sections.

27.24   Severability.  If any provision of this Lease proves to be illegal, invalid or unenforceable, the remainder of this Lease shall not be affected by such finding, and in lieu of such provision, a provision will be added as a part of this Lease as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.

27.25   Written Amendment Required.  No amendment, alteration or modification of or addition to this Lease shall be valid or binding unless expressed in writing and signed by Landlord and Tenant.  Tenant agrees to make any modifications of the terms and provisions of this Lease required or requested by any lending institution providing financing for which the Property is security, provided that no such modification shall materially adversely affect Tenant’s rights and obligations under this Lease.

27.26   No Option.  Submission of this instrument for examination or signature by Tenant does not constitute a reservation of or an option for lease, and it is not effective as a lease or otherwise until executed and delivered by both Landlord and Tenant.

27.27   Authority.  Tenant and the party executing this Lease on behalf of Tenant and Landlord and the party executing on behalf of Landlord hereby represent and warrant to each other that such party is authorized to do so by requisite action of the board of directors, by the members or partners, as the case may be, of Tenant and Landlord, and agree upon request to deliver to the other party a resolution or similar document to that effect.

27.28   Governing Law.  This Lease shall be governed by and construed pursuant to the laws of the State of Colorado.

27.29   No Reliance.  TENANT HEREBY ACKNOWLEDGES THAT IT IS NOT RELYING UPON ANY BROCHURE, RENDERING, INFORMATION, REPRESENTATION OR PROMISE OF LANDLORD, OR OF THE AGENT OR COOPERATING AGENT, IF ANY, EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS LEASE.

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27.30   Entire Agreement.  This Lease and the Exhibits contain the entire agreement between Landlord and Tenant.  No promises or representations, except as contained in this Lease, have been made to Tenant by any person respecting the condition of the Premises, or the manner of operating the Property, or otherwise.

27.31   Brokers.  Landlord and Tenant each represent and warrant to each other that there are no claims for brokerage commissions or finder’s fees in connection with this Lease except to the Brokers, and agree to indemnify each other and hold it harmless from all liabilities arising from any such claim, including, without limitation, the cost of reasonable attorneys’ fees in connection therewith from any other broker claiming through it.  Landlord will be responsible for compensation of the Brokers pursuant to a separate written agreement.  The agreements in this Section shall survive this Lease.

27.32   Binding Effect.  The covenants, conditions and agreements contained in this Lease will bind and inure to the benefit of Landlord and Tenant and their respective heirs, distributees, executors, administrators, successors and, except as otherwise provided in this Lease, permitted assigns.

Landlord and Tenant have executed and delivered this Lease as of the date shown in the first paragraph of this Lease.

LANDLORD		TENANT
PUBLIC SERVICE CREDIT UNION,		ZYNEX MEDICAL, INC.,
a Colorado nonprofit corporation		a Colorado corporation
By:	/S/Herb White	By:	/S/Anthony Scalese
Name:	Herb White	Name:	Anthony Scalese
Title:	SVP/CLO	Title:	CFO

       

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EXHIBIT A

LEGAL DESCRIPTION

Lot 14C Park Meadows Filing 2 Amendment 7 (6.152 acres M/L)

Known and numbered as:  9990 Park Meadows Drive, Lone Tree, Colorado 80124

       

Exhibit A

EXHIBIT B

INITIAL IMPROVEMENTS ESTIMATE

Exhibit B – Page  1 

Exhibit B – Page  2 

       

Exhibit B – Page  3 

EXHIBIT C

RULES AND REGULATIONS

PURPOSE:

The purpose of these Rules and Regulations is to provide each business within the Property with the quality of environment and visual appeal consistent with the high standards of a first class commercial building.  Capitalized terms not defined in these Rules and Regulations have the same meaning as set forth in the Lease.  In the event of a conflict between the Lease and these Rules and Regulations, the Lease will control.

A. PARKING:

Landlord shall have the right at any time to change the arrangement or location or to regulate the use of the Parking Spaces without incurring any liability to Tenant, provided that Landlord will give Tenant at least fifteen (15) days prior written notice of such repairs, cleaning and rehabilitations so as not to deprive Tenant of more than 50% of its parking spaces at any one time.

Tenant and Designated Users shall park only in parking spaces and not on ramps, corridors, approaches, or other areas designated as “no parking” areas.

Tenant and Designated Users shall observe the special hours of opening, closing, and nonuse of the parking lot when closings are necessitated for repairs, cleaning, and rehabilitations with Tenant’s prior written consent, which will not be unreasonably delayed, denied or conditioned, provided that Landlord will give Tenant at least fifteen (15) days prior written notice of such repairs, cleaning and rehabilitations so as not to deprive Tenant of more than 50% of its parking spaces at any one time.

Tenant and Designated Users shall observe the special hours of opening, closing, and nonuse of the parking lot when closings are necessitated for repairs, cleaning, and rehabilitations with Tenant’s prior written consent.  Should any repair or rehabilitation result in Tenant not being provided the Parking Spaces in the parking lot or designated alternate parking facility, the abatement of Tenant’s obligation to pay any parking fee that may be due during the period the same are unavailable shall constitute Tenant’s sole remedy in the event of such unavailability.  Landlord will give Tenant at least fifteen (15) days prior written notice of such repairs, cleaning and rehabilitations so as not to deprive Tenant of more than 50% of its parking spaces at any one time, and to limit the loss of Parking Space use to thirty (30) days.

Tenant and Designated Users shall use the Parking Spaces only for automobile parking.  Parking of automotive trucks and other large vehicles shall be restricted to areas designated by Landlord for such purpose.

Tenant and Designated Users shall observe all posted vehicle height limitations.

Tenant and Designated Users shall not allow unauthorized vehicles to use the Parking Spaces and, except for emergencies, shall not repair or authorize service to vehicles parked in the parking lot.

Landlord reserves the right to remove by towing any vehicle that may be obstructing any door or driveway, is improperly parked, obstructing other parked vehicles or is parked in a restricted area.  All towing expenses shall be paid by the vehicle owner.

Each vehicle owner shall be responsible for any damage caused by the operation or parking of such vehicle which causes damages to Landlord’s property, unless caused by Landlord’s gross negligence or willful misconduct.

Parking after normal business hours shall conform and comply with all Laws and ordinances of any agency or any regulatory authority.

So long as Tenant leases 100% of the Building, and except to the extent that enforcement is necessary to preserve Landlord’s rights with respect to the Excluded Spaces, Landlord shall not enforce the following parking Rules and Regulations unless Tenant causes physical waste to the Parking Spaces or Building:

Among other things, Landlord shall be entitled to assign designated areas of the surface lot for use by particular persons or groups of persons, and Tenant shall refrain from parking in such spaces.  Tenant acknowledges that the Parking Spaces will not be individually designated or reserved for use by Tenant, and that Tenant will use the Parking Spaces in common with all other parties who have rights to use the parking area.  Landlord may grant the right to use the parking area to others, but will not provide parking privileges to other tenants of the Building that are superior to those provided to Tenant.

Within five (5) business days after Landlord’s request, Tenant will provide Landlord with a listing of all vehicles of specific individuals employed by Tenant (“Designated Users”), including names of vehicle owners, vehicle models, colors, and license plate numbers, and Tenant shall provide Landlord with revised listing promptly after any change to the listing.  Tenant shall deliver to Tenant’s Designated Users parking decals provided by Landlord which decals shall at all times be displayed prominently on the vehicles of Designated Users.  Landlord shall have the right to directly ban any Designated User from further use of any of the parking spaces for violation of the rules for the use of the Parking Spaces

Exhibit C – Page  1 

B.   OUTDOOR STORAGE:

Tenant shall not store any materials, supplies, equipment, etc., outside the Premises.

Storage in trailers, whether attached to or detached from a driving unit is prohibited (except as is usual and customary for loading and unloading such trailers).  Parking of any vehicle within the Property for more than five continuous days is prohibited.

C.   WASTE REMOVAL:

With respect to waste other than customary office waste generated by Tenant, Tenant shall furnish its own sealable waste and refuse containers which must be located at all times within the area designated by Tenant if Tenant leases 100% of the Building and by Landlord if otherwise.  No other containers are permitted on site unless authorized by Landlord.  Enclosures provided by Landlord and container lids shall remain closed at all times when not actively in use.  Tenant is responsible for maintaining the assigned waste and refuse areas free and clean of all litter, obnoxious odors, insects, rodents, etc.  Any medical waste produced by Tenant or its employees, licensees, invitees, etc. shall be disposed of in accordance with all applicable Laws.  Any activity or expense incurred by Landlord in cleaning, maintaining, or otherwise preserving the concept of a clean environment shall be reimbursed to Landlord by Tenant plus fifteen (15%) percent for Landlord’s overhead and expenses.  Failure by Tenant to timely reimburse Landlord therefor shall be deemed a default of and cause for cancellation of the Lease if Tenant fails to cure such default.

Tenant shall comply with Landlord’s recycling program for the Property, or in the absence thereof, Tenant shall institute and maintain a recycling program for its waste in compliance with all applicable laws and requirements of any governmental agency or department having jurisdiction over the Premises.

D.   SIGN CONTROLS:

Except as otherwise provided in the Lease or approved by Landlord, Tenant may not paint or affix signs on any part of the outside of the Premises, the Property, windows or doors.  Free standing signs are not permitted outside of the Premises.  No sign, advertisement, notice or other lettering shall be exhibited, inscribed, painted or affixed by Tenant on the inside of the Premises if the same can be seen from outside of the Premises without the prior written consent of Landlord (which consent may be withheld by Landlord in its sole discretion), and then only of such color, size, character, style and materials and in such places as shall be approved and designated by Landlord.  In the event of a violation of the foregoing by Tenant, Landlord may remove same without any liability and may charge the expense incurred by such removal to Tenant.  Signs at entrances to the Premises shall be placed thereon by a contractor approved by Landlord and shall be paid for by Tenant.

E.   TRADE FIXTURES AND SECURITY SYSTEMS:

Except as otherwise provided in the Lease and for Tenant’s existing trade fixtures and security systems as of the date of the Lease, the installation of any trade fixtures or security systems shall be subject to the prior written approval of Landlord, which approval shall not be unreasonably withheld, conditioned or delayed.  Tenant shall remain liable for the cost of removing all such fixtures and systems upon the expiration or earlier termination of the Lease, as well as the cost of curing any and all damages to the Premises caused by the installation of such fixtures and systems.

F.   ON-SITE IMPROVEMENTS:

Tenant shall not be permitted to alter, move, maintain or disturb any part of the landscaping or other improvements located on or adjacent to the Premises or the common areas of the Property without the prior consent of Landlord when such improvements are necessary for Tenant’s operations as Tenant deems necessary.

G.   MISCELLANEOUS:

In addition to the Rules and Regulations above, Tenant shall comply with the following:

1.   Tenant, its officers, agents, servants and employees shall not block or obstruct any of the entries, passages, doors, hallways or stairways of the Property or the parking facilities, or place, empty or throw rubbish, litter, trash or material of any nature into such areas, or permit such areas to be used at any time except for the ingress or egress of Tenant, its officers, agents, servants, employees, patrons, licensees, customers, visitors or invitees.

2.   The movement of furniture, equipment, machines, merchandise or materials within, into or out of the Premises, the Property or the parking facilities shall be restricted to time, method and routing of movement as determined by Landlord upon request from Tenant , except when Tenant leases 100% of the Building in which case no prior Landlord approval is necessary for such movement.  Tenant shall assume all liability and risk to property, the Premises and the Property in such movement.  Except when Tenant leases 100% of the Building, Tenant shall not move furniture, machines, equipment, merchandise or materials within, into or out of the Property, the Premises or the parking facilities without having first obtained a written permit from Landlord at least twenty-four (24) hours in advance.  Safes, large files, electronic data processing equipment and other heavy equipment or machines shall be moved into the Premises, the Property, or the parking facilities only with Landlord’s prior written consent and shall be placed where directed by Landlord.

Exhibit C – Page  2 

3.   Landlord will not be responsible for lost or stolen personal property, equipment, money or any article taken from the Premises, the Property or the parking facilities regardless of how or when such loss occurs.

4.   Tenant, its officers, agents, servants and employees shall not install any new refrigerating, heating or air conditioning apparatus, or bring into the Premises, the Property or the parking facilities any inflammable fluids or explosives without written permission of Landlord.

5.   Tenant, its officers, agents, servants or employees shall not use the Premises, the Property or the parking facilities for housing, lodging or sleeping purposes or for the cooking or preparation of food without the prior written consent of Landlord.

6.   Tenant, its officers, agents, servants, employees, patrons, licensees, customers, visitors or invitees shall not bring into the parking facilities, the Property or the Premises, or keep on the Premises any fish, fowl, reptile, insect or animal without the prior written consent of Landlord.

7.   No additional locks shall be placed on any door in the Property without the prior written consent of Landlord.  Tenant will furnish two (2) keys to each lock on doors in the Premises.  Landlord may at all times keep a pass key to the Premises.  All keys shall be returned to Landlord promptly upon the expiration or earlier termination of the Lease.

8.   Except as otherwise provided in the Lease or already approved by Landlord in writing, Tenant, its officers, agents, servants, employees, patrons, licensees, customers, visitors or invitees shall do no painting or decorating in the Premises, or mark, paint or cut into, drive nails or screws into, nor in any way deface any part of the Premises or the Property without the prior written consent of Landlord.  If Tenant desires signal, communication, alarm or other utility or service connections installed or changed, such work shall be done at the expense of Tenant, with the prior written approval and under the direction of Landlord.

9.   Tenant, its officers, agents, servants, employees, patrons, licensees, customers, visitors or invitees shall not permit the operation of any musical or sound-producing instruments or device which may be heard outside the Premises (unless Tenant leases 100% of the Building in which case Landlord shall not enforce such restriction with regards to the Premises), the Property or the parking facilities, or which emanate electrical waves which will impair radio or television broadcasting, or reception from or in the Property.

10.   Tenant, its officers, agents, servants, employees, patrons, licensees, customers, visitors or invitees shall, before leaving the Premises unattended, close and lock all doors and shut off all utilities; damage resulting from failure to do so shall be paid for by Tenant.  Tenant, before the closing of the day and leaving the Premises, shall see that all doors are locked.

11.   All plate and other glass now in the Premises which is broken shall be replaced by Landlord at the expense of Tenant.

12.   Tenant shall give Landlord prompt notice of all accidents to, or defects in air conditioning equipment, plumbing, electric facilities, or any part of appurtenance of the Premises or the Property.

13.   The plumbing facilities shall not be used for any purpose other than that for which they are constructed, and no foreign substance of any kind shall be thrown therein, and the expense of any breakage, stoppage or damage resulting from a violation of this provision shall be borne by Tenant.

14.   Except as otherwise provided in the Lease, all contractors and/or technicians performing work for Tenant within the Premises, the Property or parking facilities shall be referred to Landlord for approval before performing such work.  This shall apply to all work including, without limitation, installation of telephones, telegraph equipment, electrical devices and attachments, and all installations affecting floors, walls, windows, doors, ceilings, equipment, or any other physical feature of the Property, the Premises or parking facilities.  None of this work shall be done or caused to be done by Tenant without Landlord’s prior written approval except as otherwise provided in the Lease.

15.   No showcases or other articles shall be put in front of or affixed to any part of the exterior of the Building without the prior written consent of Landlord.

16.   Glass panel doors that reflect or admit light into the passageways or into any place in the Building shall not be covered or obstructed by Tenant, and Tenant shall not permit, erect and/or place drapes, furniture, fixtures, shelving, display cases or tables, lights or signs and advertising devices in front of or in proximity of interior and exterior windows, glass panels or glass doors providing a view into the interior of the Premises, unless same shall have first been approved in writing by Landlord.  Notwithstanding the foregoing, so long as Tenant leases 100% of the Building, Landlord shall not enforce this rule unless Tenant causes physical waste to the Premises or Building.

17.   Canvassing, soliciting and peddling in the Property or the parking facilities are prohibited and Tenant shall cooperate to prevent the same.  In this respect, Tenant shall promptly report any such activities to Landlord’s property management office.

18.   There shall not be used in any space, or in the public halls of the Building, either by Tenant or by jobbers or others, in the delivery or the receipt of merchandise, any hand trucks except for those which are equipped with rubber tires and side guards.

Exhibit C – Page  3 

19.   Tenant and any officer, agent, employee, servant, patron, customer, visitor, licensee or invitee of Tenant shall not go upon the roof of the Building without the prior written consent of Landlord or Landlord’s designated representative.

20.   In the event Tenant must dispose of crates, boxes, etc., which will not fit into office wastepaper baskets, it will be the responsibility of Tenant to dispose of same in a manner consistent with the Lease and these Rules and Regulations.  In no event shall Tenant set such items in the public hallways or other areas of the Property, parking facilities or the Property, excepting Tenant’s own Premises for disposal.

21.   Tenant is cautioned in purchasing furniture and equipment in that the size of same should be limited to such as will pass through the doors of the Premises.  Large pieces should be made in parts and set up in the Premises.  Landlord reserves the right to refuse to allow furniture or equipment of any description not complying with the above conditions to be placed in the Property.

22.   Tenant will be responsible for any damage to the Premises, including, without limitation, carpeting and flooring, as a result of rust or corrosion of file cabinets, roller chairs, metal objects, or spills of any type of liquid.

23.   If the Premises should become infested with vermin, Landlord, at Tenant’s sole cost and expense, shall cause the Premises to be exterminated at such time and from time to time, to the satisfaction of Landlord.

24.   Tenant shall not install any antenna, aerial wires, satellite dishes, radio or television equipment, inside or outside of the Building without Landlord’s prior written approval and upon such terms and conditions as may be specified by Landlord in each and every instance, provided that Tenant shall be entitled to maintain any and all equipment existing as of the date of the Lease and to install television monitors and related equipment for training use without further Landlord approval.

2.   Tenant shall not make or permit any use of the Premises, the Property or the parking facility which, directly or indirectly, is forbidden by law, ordinance or governmental or municipal regulation, code or order, or which may be disreputable or dangerous to life, limb or property.

26.   Tenant shall not advertise the business, profession or activities of Tenant in any manner which violates the letter or spirit of any code of ethics adopted by any recognized association or organization pertaining thereto, nor shall Tenant use the name of the Building or the Property for any purpose other than that of the business address of Tenant, or use any picture or likeness of the Building or the Property, or the name of the Building or the Property on any letterhead, envelope, circular, notice, advertisement, container or wrapping material, without Landlord’s prior written consent thereto.

27.   Tenant shall not distribute any handbills or other advertising matter in automobiles parking in the parking facilities.

28.   Tenant shall not conduct its business and/or control its officers, agents, employees, servants, patrons, customers, licensees and visitors in such a manner as to create any nuisance, or interfere with, annoy or disturb any other tenant (if any) or Landlord in its operation of the Property (unless Tenant leases 100% of the Building in which case Landlord shall not enforce such provision), or commit waste, or suffer or permit waste to be committed in the Premises, the Building, or the Property.

29.   Tenant shall permit Landlord or its agent to enter upon the Premises during normal office hours to make inspections, repairs, alterations or additions in or to the Premises or the Property, and at any time in the event of an emergency, and shall permit Landlord to perform any acts related to the safety, protection, preservation, reletting or improvement of the Premises or the Property.  In every instance, except when emergency conditions do not permit, Landlord shall provide reasonable advance notice before entering the Premises, and shall permit a Tenant employee to be present for such entry.

30.   Tenant, without the prior written consent of Landlord, shall not install any linoleum or similar floor covering.

31.   Tenant acknowledges that Landlord has designated the Building as a “non-smoking” Building, and Tenant, its officers, agents, employees, servants, patrons, customers, licensees and visitors shall at all times refrain from smoking in the Building except for those areas of the Building, if any, specifically designated by Landlord as “smoking” areas.

32.   Tenant shall comply with all indoor air quality standards and requirements pertaining to the Property and the Premises, including those Laws promulgated by OSHA, as same may be amended from time to time.

       

Exhibit C – Page  4 

EXHIBIT D

SIGNAGE

       

Exhibit D

EXHIBIT E

EXCLUDED SPACES

       

EX-31

Exhibit 31.1

CERTIFICATION

I, Thomas Sandgaard, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Zynex, 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 control 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, based 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.

Dated:  August 14, 2013

/s/ THOMAS SANDGAARD

Thomas Sandgaard

President and Chief Executive Officer

Principal Executive Officer

EX-31

Exhibit 31.2

CERTIFICATION

I, Anthony A. Scalese, certify that:

1. I have reviewed this quarterly report on Form 10-Q of Zynex, 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 control 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, based 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.

Dated:  August 14, 2013

/s/ ANTHONY A. SCALESE

Anthony A. Scalese

Chief Financial Officer

Principal Financial Officer

EX-32

Exhibit 32.1

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO SECTION 906 OF THE

SARBANES-OXLEY ACT OF 2002

Each of the undersigned hereby certifies, for the purposes of Section 1350 of Chapter 63 of Title 18 of the United States Code, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, in his capacity as an officer of Zynex, Inc. (“Zynex”), that to his knowledge:

1.   Zynex’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2013 (the “10-Q Report”) fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

2.   The information contained in the 10-Q Report fairly presents, in all material respects, the financial condition and results of operations of Zynex for the period covered by the 10-Q Report.

Dated:  August 14, 2013

/s/ THOMAS SANDGAARD

Thomas Sandgaard

President and Chief Executive Officer

/s/ ANTHONY A. SCALESE

Anthony A. Scalese

Chief Financial Officer

XML

Concentrations

6 Months Ended

Jun. 30, 2013

Concentrations

(11)CONCENTRATIONS

The Company sourced approximately 24% and 22% of its electrotherapy products from one contract manufacturer during the three and six months ended June30, 2013. Management believes that its relationships with suppliers are strong; however, if necessary these relationships can be replaced. If the relationships were to be replaced, there may be a short-term disruption to operations, a period of time in which products may not be available and additional expenses may be incurred.

The Company had receivables from a private health insurance carrier at June30, 2013 that made up approximately 10% of the net accounts receivable balance. The same private health insurance carrier made up approximately 22% of net accounts receivable at December31, 2012.

XML

Condensed Consolidated Statements of Operations (Unaudited) (USD $) In Thousands, except Share data, unless otherwise specified	3 Months Ended		6 Months Ended
	Jun. 30, 2013	Jun. 30, 2012	Jun. 30, 2013	Jun. 30, 2012
Net revenue:
Rental	$ 1,643	$ 2,437	$ 3,322	$ 4,499
Sales	3,829	7,589	9,818	14,471
Total net revenue	5,472	10,026	13,140	18,970
Cost of revenue:
Rental	398	273	699	531
Sales	1,485	1,513	3,375	3,068
Total cost of revenue	1,883	1,786	4,074	3,599
Gross profit	3,589	8,240	9,066	15,371
Selling, general and administrative expense	6,153	7,308	11,986	13,953
(Loss) income from operations	(2,564)	932	(2,920)	1,418
Other expense:
Interest expense	(214)	(81)	(344)	(174)
Other income (expense)	78	(7)	72	(7)
Total other income (expense)	(136)	(88)	(272)	(181)
(Loss) income before income tax	(2,700)	844	(3,192)	1,237
Income tax benefit (expense)	973	(371)	1,155	(444)
Net (loss) income	(1,727)	473	(2,037)	793
Plus: Net loss – noncontrolling interest	11		17
Net (loss) income – attributable to Zynex, Inc.:	$ (1,716)	$ 473	$ (2,020)	$ 793
Net (loss) income per share:
Basic	$ (0.06)	$ 0.02	$ (0.06)	$ 0.03
Diluted	$ (0.06)	$ 0.02	$ (0.06)	$ 0.03
Weighted average number of common shares outstanding:
Basic	31,148,234	31,091,900	31,148,234	30,986,478
Diluted	31,148,234	31,249,107	31,148,234	31,142,876

XML

Leases

6 Months Ended

Jun. 30, 2013

Leases

(4) LEASES

The Company has commitments under various operating and capital leases that are payable in monthly installments. On June 18, 2013, the Company renegotiated its existing building lease and entered into a new lease agreement for its existing building in Lone Tree, Colorado, effective May 1, 2013. The lease, which expires in November 2023, provides for two five-year renewal options at the then market rental rate. Under the lease, no rental payments are due for the first six months. For the remaining months of the lease, base monthly rent begins at $129 and escalates at $3 per month (or $0.50 per square foot) every twelvemonths, resulting in a monthly rent of $157by January 2023. The Company anticipates that for accounting purposes, it will have an annual rental expense of $1,420 throughout the term of the lease. The lease includes a $101 refund from the landlord for amounts previously overpaid for operating expenses, which amounts shall be deducted from the Company’s rent in November 2013. The lease also includes a tenant allowance of $1,130, of which $565 is to be used for leasehold improvements and $565 may be used to apply to rent in December 2013 and beyond. Such allowances are included in the Company’s deferred rent liability and deposit accounts. The lease contains customary events of default, termination, maintenance, indemnification and other lease terms.

XML

Stock-Based Compensation Plans (Tables)

6 Months Ended

Jun. 30, 2013

Summary of Stock Option Activity Under the Option Plan

A summary of stock option activity under the Option Plan for the six months ended June30, 2013is presented below:

	Shares Under Option				Weighted Average Exercise Price		Weighted Average Remaining Contractual Life			Aggregate Intrinsic Value
Outstanding at January1, 2013		1,501,500		$		0.95
Granted		—		$		—
Exercised		—		$		—
Forfeited		(127,250	)	$		0.86
Outstanding at June30, 2013		1,374,250		$		0.96		6.4years	$		20
Exercisable at June30, 2013		908,871		$		1.08		5.6years	$		17

Summary of Status of the Company's Non-Vested Share Awards

A summary of status of the Company’s non-vested share awards as of and for the six months ended June30, 2013 is presented below:

	NonvestedShares UnderOption			WeightedAverage GrantDateFairValue
Non-vested at January 1, 2013		690,877		$	0.69
Granted		—		$	—
Vested		(155,873	)	$	0.78
Forfeited		(69,625	)	$	0.71
Non-vested at June 30, 2013		465,379		$	0.66

XML

Litigation

6 Months Ended

Jun. 30, 2013

Litigation

(12)LITIGATION

From time to time, the Company may become party to litigation and other claims in the ordinary course of business. To the extent that such claims and litigation arise, management would provide for them if losses are determined to be both probable and estimable.

The Company is currently not a party to any material pending legal proceedings.

XML

Fair Value Measurements (Details Textual) (USD $) In Thousands, unless otherwise specified	3 Months Ended
	Jun. 30, 2013
Fair Value Measurements (Textual) [Abstract]
Changes in fair value obligation and accretion expenses	$ 74
Contingent payments	$ 3

XML

Unaudited Condensed Consolidated Financial Statements and Managements' Plans (Details Textual) (USD $)	6 Months Ended
	Jun. 30, 2013	Jun. 30, 2012	Dec. 31, 2012
Unaudited Condensed Consolidated Financial Statements (Textual) [Abstract]
Percentage of limited liability	80.00%
Negative cash flows from operations	$ 940,000	$ 1,042,000
Maximum borrowings under line of credit	7,000,000
Line of credit	6,870,000		5,906,000
Current borrowing capacity under line of credit facility	6,886,000
Fixed expenses reduced by cutting annual employee costs through headcount reduction	3,000,000
Cash savings due to renegotiated existing building lease	$ 1,500,000

XML

Segment Reporting (Tables)

6 Months Ended

Jun. 30, 2013

Summarized Information about Reported Segment

Net revenue was primarily generated from sales in the United States.

	ZMI& ZBC		ZND& ZEU		ZMS		TOTAL
THREE MONTHS ENDED JUNE 30, 2013
Sales	$	5,358	$	114	$	—	$	5,472
Gross profit		3,528		61		—		3,589
Total assets		23,142		986		21		24,149
THREE MONTHS ENDED JUNE 30, 2012
Sales	$	9,973		53	$	—	$	10,026
Gross profit		8,204		36		—		8,240
Total assets		24,724		762		8		25,494
SIX MONTHS ENDED JUNE 30, 2013
Sales	$	12,964	$	176	$	—	$	13,140
Gross profit		8,958		108		—		9,066
Total assets		23,142		986		21		24,149
SIX MONTHS ENDED JUNE 30, 2012
Sales	$	18,842		128	$	—	$	18,970
Gross profit		15,285		86		—		15,371
Total assets		24,724		762		8		25,494

XML

Stock-Based Compensation Plans (Details 1) (USD $) In Thousands, except Share data, unless otherwise specified	6 Months Ended
	Jun. 30, 2013
Summary of stock option activity under the option Plan
Shares under option outstanding beginning balance	1,501,500
Shares under option, granted
Shares under option, exercised
Shares under option, forfeited	(127,250)
Shares under option outstanding ending balance	1,374,250
Shares under option, exercisable ending balance	908,871
Weighted average exercise price outstanding beginning balance	$ 0.95
Weighted average exercise price, granted
Weighted average exercise price, exercised
Weighted average exercise price, forfeited	$ 0.86
Weighted average exercise price outstanding ending balance	$ 0.96
Weighted average exercise price, exercisable ending balance	$ 1.08
Outstanding, weighted average exercise remaining contractual life	6 years 4 months 24 days
Exercisable, weighted average exercise remaining contractual life	5 years 7 months 6 days
Outstanding aggregate intrinsic value	$ 20
Exercisable aggregate intrinsic value	$ 17

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Income Taxes (Details) (USD $) In Thousands, unless otherwise specified	3 Months Ended	6 Months Ended
	Jun. 30, 2013	Jun. 30, 2013	Jun. 30, 2012
Income taxes (Textual) [Abstract]
Statutory rate	36.00%	36.00%
Income taxes paid	$ 112	$ 539	$ 365

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Intangible Assets (Details) (USD $) In Thousands, unless otherwise specified	6 Months Ended
	Jun. 30, 2013	Dec. 31, 2012
Acquisition of intangible assets
Total intangible assets, gross	$ 151	$ 251
Less: accumulated amortization	(78)	(48)
Total intangible assets, net	73	203
Trade names
Acquisition of intangible assets
Total intangible assets, gross	33	72
Amortization Life Years	5 years
Non-compete agreement
Acquisition of intangible assets
Total intangible assets, gross	26	26
Amortization Life Years	5 years
Technology
Acquisition of intangible assets
Total intangible assets, gross	74	135
Amortization Life Years	5 years
Domain Name
Acquisition of intangible assets
Total intangible assets, gross	$ 18	$ 18
Amortization Life Years	1 year

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Segment Reporting (Details) (USD $) In Thousands, unless otherwise specified	3 Months Ended		6 Months Ended
	Jun. 30, 2013	Jun. 30, 2012	Jun. 30, 2013	Jun. 30, 2012	Dec. 31, 2012
Segment Reporting Reconciling Item For Operating Profit Loss From Segment To Consolidated [Line Items]
Sales	$ 5,472	$ 10,026	$ 13,140	$ 18,970
Gross profit	3,589	8,240	9,066	15,371
Total assets	24,149	25,494	24,149	25,494	25,936
Zynex Medical
Segment Reporting Reconciling Item For Operating Profit Loss From Segment To Consolidated [Line Items]
Sales	5,358	9,973	12,964	18,842
Gross profit	3,528	8,204	8,958	15,285
Total assets	23,142	24,724	23,142	24,724
Zynex NeuroDiagnostics
Segment Reporting Reconciling Item For Operating Profit Loss From Segment To Consolidated [Line Items]
Sales	114	53	176	128
Gross profit	61	36	108	86
Total assets	986	762	986	762
Zynex Monitoring Solutions
Segment Reporting Reconciling Item For Operating Profit Loss From Segment To Consolidated [Line Items]
Sales
Gross profit
Total assets	$ 21	$ 8	$ 21	$ 8

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Fair Value Measurements (Tables)

6 Months Ended

Jun. 30, 2013

Fair Value of Assets and Liabilities on a Recurring Basis

The following table presents information about the Company’s financial assets and liabilities that are measured at fair value on a recurring basis as of June30, 2013, and indicates the fair value hierarchy of the valuation techniques the Company utilized to determine such fair value:

	June30,2013		Significant Unobservable Inputs (Level3)
Liabilities:
Contingent consideration	$	31	$	31

Changes in the Fair Value of the Level 3 Liabilities

Changes in the fair value of the Level 3 liabilities for the six months ended June 30, 2013:

Balance at beginning of 2013	$	104
Payments		(3	)
Accretion expense		4
Change in fair value of contingent consideration		(74	)
Balance at end of 2013	$	31

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Condensed Consolidated Statements of Cash Flows (Unaudited) (USD $) In Thousands, unless otherwise specified	6 Months Ended
	Jun. 30, 2013	Jun. 30, 2012
Cash flows from operating activities:
Net loss	$ (2,037)	$ 793
Adjustments to reconcile net (loss) income to net cash used in operating activities:
Depreciation expense	417	432
Change in the value of contingent consideration	(70)	6
Provision for losses on uncollectible accounts receivable	289	158
Amortization of intangible assets	30	18
Impairment of intangible assets	100
Impairment of goodwill	39
Amortization of financing fees	25	24
Provision for obsolete inventory	192	190
Deferred rent	678	(148)
Employee stock-based compensation expense	69	90
Deferred tax expense		(57)
Gain on asset disposal	(6)
Changes in operating assets and liabilities, net of business acquisition (in 2012):
Accounts receivable	2,160	(1,317)
Inventory	123	(2,093)
Prepaid expenses	49	91
Deposit and other current assets	(1,601)	3
Accounts payable	51	516
Accrued liabilities	(909)	80
Income taxes payable	(539)	172
Net cash used in operating activities	(940)	(1,042)
Cash flows from investing activities:
Purchases of equipment	(438)	(718)
Change in inventory used for rental	111	(18)
Payments on contingent consideration	(3)
Cash paid for acquisition		(245)
Net cash used in investing activities	(330)	(981)
Cash flows from financing activities:
Net borrowings from line of credit	964	1,912
Issuance of common stock		10
Deferred financing fees		(2)
Payments on notes payable and capital lease obligations	(72)	(63)
Net cash provided by financing activities	892	1,857
Net decrease in cash	(378)	(166)
Cash at beginning of period	823	789
Cash at end of period	445	623
Supplemental cash flow information:
Interest paid	315	152
Income taxes paid (including interest and penalties)	539	365
Supplemental disclosure of non-cash investing and financing activities:
Common stock issuances for business acquisition		158
Increase in contingent consideration for business acquisition		141
Equipment acquired through capital lease	$ 137

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Significant Accounting Policies

6 Months Ended

Jun. 30, 2013

Significant Accounting Policies

(2)SIGNIFICANT ACCOUNTING POLICIES

PRINCIPLES OF CONSOLIDATION

The accompanying unaudited condensed consolidated financial statements include the accounts of Zynex, Inc. and its subsidiaries. All intercompany balances and transactions have been eliminated in consolidation.

NONCONTROLLING INTEREST

Noncontrolling interest in the equity of a subsidiary is accounted for and reported as stockholders equity. Noncontrolling interest represents the 20% ownership in the Company’s majority-owned subsidiary, ZBC. In 2012, the noncontrolling interest member contributed $10 of property and equipment to ZBC.

USE OF ESTIMATES

Preparation of financial statements in conformity with U.S. GAAP 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 the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates. The most significant management estimates used in the preparation of the accompanying condensed consolidated financial statements are associated with the allowance for contractual adjustments and uncollectible accounts receivable, the reserve for obsolete and damaged inventory, stock-based compensation, valuation of goodwill and other long-lived assets, and income taxes.

REVENUE RECOGNITION, ALLOWANCE FOR CONTRACTUAL ADJUSTMENTS AND COLLECTIBILITY

The Company recognizes revenue when each of the following four conditions are met 1) a contract or sales arrangement exists, 2) products have been shipped and title has transferred, or rental services have been rendered, 3) the price of the products or services is fixed or determinable, and 4) collectability is reasonably assured. Accordingly, the Company recognizes revenue, both rental and sales, when products have been delivered to the patient and the patient’s insurance (if the patient has insurance) has been verified. For medical products that are sold from inventories consigned at clinic locations, the Company recognizes revenue when it receives notice that the product has been prescribed and delivered to the patient and the patient’s insurance coverage has been verified or preauthorization has been obtained from the insurance company, when required. Revenue from the rental of products is normally on a month-to-month basis and is recognized ratably over the products’ rental period. Revenue from sales to distributors is recognized when the Company ships its products, which fulfills its order and transfers title. Revenue is reported net, after adjustments for estimated insurance company or governmental agency (collectively “Third-party Payors”) reimbursement deductions. The deductions are known throughout the health care industry as “contractual adjustments” whereby the Third-party Payors unilaterally reduce the amount they reimburse for the Company’s products.

A significant portion of the Company’s revenues are derived, and the related receivables are due, from Third-party Payors. The nature of these receivables within this industry has typically resulted in long collection cycles. The process of determining what products will be reimbursed by Third-party Payors and the amounts that they will reimburse is complex and depends on conditions and procedures that vary among providers and may change from time to time. The Company maintains an allowance for contractual adjustments and records additions to the allowance to account for the risk of nonpayment. Contractual adjustments result from reimbursements from Third-party Payors that are less than amounts claimed or where the amount claimed by the Company exceeds the Third-party Payors’ usual, customary and reasonable reimbursement rate. The Company determines the amount of the allowance, and adjusts it at the end of each reporting period, based on a number of factors, including historical rates of collection, the aging of the receivables, trends in the historical rates of collection and current relationships and experience with the Third-party Payors. If the rates of collection of past-due receivables recorded for previous fiscal periods changes, or if there is a trend in the rates of collection on those receivables, the Company may be required to change the rate at which it provides for additions to the allowance. A change in the rates of the Company’s collections can result from a number of factors, including experience and training of billing personnel, changes in the reimbursement policies or practices of Third-party Payors, or changes in industry rates of reimbursement. Accordingly, changes to the allowance for contractual adjustments, which are recorded in the income statement as a reduction of revenue, have historically fluctuated and may continue to fluctuate significantly from quarter to quarter.

Due to the nature of the industry and the reimbursement environment in which we operate, estimates are required to record net revenues and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of third-party billing arrangements and the uncertainty of reimbursement amounts for certain products or services from payors or an unanticipated requirement to refund payments previously received may result in adjustments to amounts originally recorded. Due to continuing changes in the health care industry and third-party reimbursement, as well as changes in our billing practices to increase cash collections, it is possible that management’s estimates could change in the near term, which could have an impact on our results of operations and cash flows. Any differences between estimated settlements and final determinations are reflected as an increase or a reduction to revenue in the period when such final determinations are known.

The Company frequently receives refund requests from insurance providers relating to specific patients and dates of service. Billing and reimbursement disputes are very common in the Company’s industry. These requests are sometimes related to a limited number of patients or products; at other times, they include a significant number of refund claims in a single request. The Company reviews and evaluates these requests and determines if any refund request is appropriate. The Company also reviews these refund claims when it is rebilling or pursuing reimbursement from that insurance provider. The Company frequently has significant offsets against such refund requests, and sometimes amounts are due to the Company in excess of the amounts of refunds requested by the insurance providers. Therefore, at the time of receipt of such refund requests, the Company is generally unable to determine if a refund request is valid and should be accrued.

As of June 30, 2013, the Company believes it has an adequate allowance for contractual adjustments relating to all known insurance disputes and refund requests. However, no assurances can be given with respect to such estimates of reimbursements and offsets or the ultimate outcome of any refund requests.

In addition to the allowance for contractual adjustments, the Company records an allowance for uncollectible accounts receivable. Uncollectible accounts receivable are primarily a result of the following: non-payment from patients who have been direct billed for co-payments or deductibles, lack of appropriate insurance coverage and disallowances of charges by Third-party Payors. If there is a change to a material insurance provider contract or policy, application by a provider, a decline in the economic condition of providers or a significant turnover of Company billing personnel resulting in diminished collection effectiveness, the estimate of the allowance for uncollectible accounts receivable may not be adequate and may result in an increase in the future.At June 30, 2013 and December 31, 2012, the allowance for uncollectible accounts receivable is $1,837.

FAIR VALUE OF FINANCIAL INSTRUMENTS

The Company’s financial instruments at June30, 2013 include cash, accounts receivable and accounts payable, for which current carrying amounts approximate fair value due to their short-term nature. Financial instruments at June30, 2013 also include the line of credit and notes payable, the carrying value of which approximates fair value because the interest rates on the outstanding borrowings are at rates that approximate market rates for borrowings with similar terms and average maturities.

INVENTORY

Inventories, which primarily represent finished goods, are valued at the lower of cost (average) or market. Finished goods include products held at the Company’s headquarters and at different locations by health care providers or other parties for rental or sale to patients. Total (gross) inventories at June30, 2013 included $5,618 of finished goods, $338 of parts, and $1,262 of supplies.

The Company monitors inventory for turnover and obsolescence, and records losses for excess and obsolete inventory as appropriate. At June30, 2013, the Company had an allowance for obsolete and damaged inventory of approximately $1,373. The allowance for obsolete and damaged inventory was approximately $1,181 at December31, 2012. The Company had $1,402 of open purchase commitments at June30, 2013.

PROPERTY AND EQUIPMENT

Property and equipment are stated at cost. Products on rental contracts are placed in property and equipment and depreciated over their estimated useful life. The Company removes the cost and the related accumulated depreciation from the accounts of assets sold or retired, and the resulting gains or losses are included in the results of operations. Depreciation is computed using the straight-line method over the useful life of the asset. As rental inventory contributes directly to the revenue generating process, the Company classifies the depreciation of rental inventory in cost of revenue.

Repairs and maintenance costs are charged to expense as incurred.

GOODWILL AND INTANGIBLE ASSETS

Goodwill represents the excess of the purchase price over the fair value of the net assets of the business acquired. Authoritative guidance requires that goodwill be assessed for impairment at the reporting unit level (operating segment or one level below an operating segment) on an annual basis and between annual tests when circumstances indicate that the recoverability of the carrying amount of goodwill may be in doubt. Application of the goodwill impairment assessment requires judgment, including the identification of reporting units, assigning assets and liabilities to reporting units, assigning goodwill to reporting units, and determining the fair value. Significant judgments are required to estimate the fair value of a reporting unit including estimating future cash flows, determining appropriate discount rates and other assumptions. When conducting its goodwill impairment assessment, the Company initially performs a qualitative evaluation to determine if it is more likely than not that the fair value of its reporting unit is less than its carrying amount as a basis for determining whether it is necessary to perform a two-step goodwill impairment test.

The Company has determined, based on its qualitative evaluation, that it was necessary to perform the two-step goodwill impairment test during the quarter, primarily because of the significant decline in sales in its ZMI electrotherapy products. In March 2012, the Company acquired substantially all of the assets and business of NeuroDyne Medical Corp. (NeuroDyne). The Company modified its business forecast for NeuroDyne during the second quarter, resulting in reduced estimated sales and cash flow, as compared to the original business forecast at the time of the acquisition. Management, therefore performed the two-step goodwill impairment test during the second quarter of 2013, and determined that goodwill related to NeuroDynewas impaired and recorded a $39 goodwill impairment charge during the three months ended June 30, 2013.  Intangible assets with estimable lives are amortized in a pattern consistent with the asset’s identifiable cash flows or using a straight- line method over their remaining estimated benefit periods if the pattern of cash flows is not estimable. The Company reviews the carrying value of intangible and other long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of long-lived assets is measured by comparison of their carrying amounts to the undiscounted cash flows that the asset or asset group is expected to generate. If the carrying amount of the assets exceeds the undiscounted cash flows the impairment to be recognized is measured by the amount by which the carrying amount of the asset exceeds its fair value. The Company’s intangible assets primarily relate to the asset acquisition of NeuroDyne.  The Company modified its business forecast for NeuroDyne during the second quarter, resulting in reduced estimated sales and cash flow, as compared to the original business forecast at the time of the acquisition.  Therefore, the Company recorded an impairment charge of $100during the second quarter related to certain NeuroDyne intangible assets.  The Company utilized a discounted cash flow (DCF) model to determine fair value for both goodwill and intangible assets as of June 30, 2013.

STOCK-BASED COMPENSATION

The Company accounts for stock-based compensation through recognition of the cost of employee services received in exchange for an award of equity instruments, which is measured based on the grant date fair value of the award that is ultimately expected to vest during the period. The stock-based compensation expenses are recognized over the period during which an employee is required to provide service in exchange for the award (the requisite service period, which in the Company’s case is the same as the vesting period).

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Intangible Assets

6 Months Ended

Jun. 30, 2013

Intangible Assets

(5)INTANGIBLE ASSETS

Intangible assets as of June30, 2013 and December31, 2012, consist of the following:

	June30,2013			December31,2012			AmortizationLife Years
		(UNAUDITED)
Trade names	$	33		$	72			5
Non-compete agreement		26			26			5
Technology		74			135			5
Domain Name		18			18			1
Total intangible assets, gross		151			251
Less: accumulated amortization		(78	)		(48	)
Total intangible assets, net	$	73		$	203

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Property and Equipment

6 Months Ended

Jun. 30, 2013

Property and Equipment

(3)PROPERTY AND EQUIPMENT

Property and equipment as of June30, 2013 and December31, 2012 consist of the following:

	June30, 2013				December31, 2012			Useful lives
		(UNAUDITED)
Office furniture and equipment	$	2,302		$		1,836			3-7years
Rental inventory		2,946				3,147			5 years
Vehicles		76				76			5 years
Leasehold improvements		375				375			2-6years
Assembly equipment		171				168			7 years
		5,870				5,602
Less accumulated depreciation		(2,021	)			(1,751	)
	$	3,849		$		3,851

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Line of Credit (Details) (USD $) In Thousands, unless otherwise specified	6 Months Ended
	Jun. 30, 2013
Line of Credit (Textual) [Abstract]
Maximum borrowings under line of credit	$ 7,000
Line of Credit (Additional Textual) [Abstract]
Dollar deposits in amount	1,000
Base rate for variable interest rate for borrowings	3.00%
Basis spread on variable interest rate	3.75%
Line of credit agreement maturity notice period	30 days
Date of Maturity	Dec. 19, 2014
Dollar deposit maturity period	1 month
RLOC
Line of Credit (Textual) [Abstract]
Maximum borrowings under line of credit	7,000
Interest rate description	LIBOR rate as published in The Wall Street Journal for dollar deposits in the amount of $1,000 with a maturity of one month or (ii) 3% per annum, plus, in each case, a margin of 3.75%.
Outstanding amount on the Credit Agreement	6,870
Remaining amount available for borrowing	$ 16
Effective interest rate under the Credit Agreement	8.00%
Interest rate	7.00%
Fees include in effective interest rate under the credit agreement	1.00%

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Significant Accounting Policies (Details) (USD $) In Thousands, unless otherwise specified	6 Months Ended	12 Months Ended	3 Months Ended
	Jun. 30, 2013	Dec. 31, 2012	Jun. 30, 2013 NeuroDyne
Significant Accounting Policies (Textual) [Abstract]
Equity and Noncontrolling interest	20.00%
Noncontrolling interest member contributed		$ 10
Allowance for uncollectible accounts receivable	1,837	1,837
Inventory finished goods	5,618
Inventory parts	338
Inventory supplies	1,262
Reserve for obsolete and damaged inventory	1,373	1,181
Open purchase commitments	1,402
Impairment of goodwill	39		39
Impairment of intangible assets	$ 100		$ 100

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Earnings Per Share (Details) (USD $) In Thousands, except Share data, unless otherwise specified	3 Months Ended		6 Months Ended
	Jun. 30, 2013	Jun. 30, 2012	Jun. 30, 2013	Jun. 30, 2012
Basic:
Net (loss) income applicable to common stockholders	$ (1,716)	$ 473	$ (2,020)	$ 793
Weighted average shares outstanding - basic	31,148,234	31,091,900	31,148,234	30,986,478
Net (loss) income per share - basic	$ (0.06)	$ 0.02	$ (0.06)	$ 0.03
Diluted:
Net (loss) income applicable to common stockholders	$ (1,716)	$ 473	$ (2,020)	$ 793
Weighted average shares outstanding - basic	31,148,234	31,091,900	31,148,234	30,986,478
Dilutive securities		157,207		156,398
Weighted average shares outstanding - diluted	31,148,234	31,249,107	31,148,234	31,142,876
Net (loss) income per share - diluted	$ (0.06)	$ 0.02	$ (0.06)	$ 0.03

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Fair Value Measurements (Details) (Fair Value, Measurements, Recurring, USD $) In Thousands, unless otherwise specified	Jun. 30, 2013
Liabilities:
Contingent consideration	$ 31
Fair Value, Inputs, Level 3
Liabilities:
Contingent consideration	$ 31

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Condensed Consolidated Balance Sheets (Parenthetical) (USD $)	Jun. 30, 2013	Dec. 31, 2012
Statement Condensed Consolidated Balance Sheets Parenthetical [Line Items]
Preferred stock, par value	$ 0.001	$ 0.001
Preferred stock, shares authorized	10,000,000	10,000,000
Preferred stock, shares issued
Preferred stock, shares outstanding
Common stock, par value	$ 0.001	$ 0.001
Common stock, shares authorized	100,000,000	100,000,000
Common stock, shares issued	31,148,234	31,148,234
Common stock, shares outstanding	31,148,234	31,148,234

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Fair Value Measurements

6 Months Ended

Jun. 30, 2013

Fair Value Measurements

(8)FAIR VALUE MEASUREMENTS

The Company measures certain assets and liabilities pursuant to accounting guidance which establishes a three-tier fair value hierarchy and prioritizes the inputs used in measuring fair value. Theses tiers include:

Level 1: Quoted prices (unadjusted) in active markets that are accessible at the measurement date for identical assets or liabilities.

Level 2: Observable prices that are based on inputs not quoted on active markets, but corroborated by market data.

Level 3: Unobservable inputs are used when little or no market data is available.

The following table presents information about the Company’s financial assets and liabilities that are measured at fair value on a recurring basis as of June30, 2013, and indicates the fair value hierarchy of the valuation techniques the Company utilized to determine such fair value:

	June30,2013		Significant Unobservable Inputs (Level3)
Liabilities:
Contingent consideration	$	31	$	31

The fair value of the contingent consideration was determined using a discounted cash flow model at the acquisition date and is revalued at each reporting date or more frequently if circumstances dictate based on changes in the discount periods and rates, changes in the timing and amount of the revenue estimates and changes in probability assumptions with respect to the likelihood of achieving the obligations. The changes in the fair value of this obligation and the accretion expense related to the increase in the net present value of the contingent liabilities was $74 for the three months ended June30, 2013. Contingent payments of $3were made during the period.

Changes in the fair value of these obligations are recorded as income or expense within the line item "Other income (expense)" in the Company's consolidated statements of operations. Accretion expense related to the increase in the net present value of the contingent liabilities is also included in the line item "Other income (expense)" in the Company's consolidated statements of operations. The fair value measurement is based on significant inputs not observable in the market, which are referred to as Level 3 inputs.

Changes in the fair value of the Level 3 liabilities for the six months ended June 30, 2013:

Balance at beginning of 2013	$	104
Payments		(3	)
Accretion expense		4
Change in fair value of contingent consideration		(74	)
Balance at end of 2013	$	31

As of June 30, 2013 the Company modified its financial forecasts for NeuroDyne,resulting in reduced sales and cash flow since the acquisition in March 2012.

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Condensed Consolidated Statement of Stockholders' Equity (Unaudited) (USD $) In Thousands, except Share data	Total	Common Stock	Paid in Capital	Retained Earnings	Noncontrolling Interest
Balance at Dec. 31, 2012	$ 12,055	$ 31	$ 5,453	$ 6,566	$ 5
Balance, shares at Dec. 31, 2012	31,148,234	31,148,234
Employee stock-based compensation	69		69
Net loss	(2,037)			(2,020)	(17)
Balance at Jun. 30, 2013	$ 10,087	$ 31	$ 5,522	$ 4,546	$ (12)
Balance, shares at Jun. 30, 2013	31,148,234	31,148,234

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Condensed Consolidated Balance Sheets (USD $) In Thousands, unless otherwise specified	Jun. 30, 2013	Dec. 31, 2012
Current Assets:
Cash	$ 445	$ 823
Accounts receivable, net	9,775	12,224
Inventory	5,845	6,160
Prepaid expenses	194	243
Deferred tax assets	1,855	1,855
Other current assets	1,255	57
Total current assets	19,369	21,362
Property and equipment, net	3,849	3,851
Deposits	573	171
Deferred financing fees, net	73	98
Intangible assets, net	73	203
Goodwill	212	251
Total assets	24,149	25,936
Current Liabilities:
Line of credit	6,870	5,906
Current portion of notes payable and capital lease obligations	131	144
Accounts payable	2,108	2,057
Income taxes payable	891	1,430
Accrued payroll and payroll taxes	799	899
Deferred rent	364	371
Current portion of contingent consideration	10	21
Other accrued liabilities	457	1,265
Total current liabilities	11,630	12,093
Notes payable and capital lease obligations, less current portion	135	114
Deferred rent	1,470	785
Deferred tax liabilities	786	786
Warranty liability	20	20
Contingent consideration, less current portion	21	83
Total liabilities	14,062	13,881
Stockholders’ Equity:
Preferred stock, $.001 par value, 10,000,000 shares authorized, no shares issued or outstanding
Common stock, $.001 par value, 100,000,000 shares authorized, 31,148,234 shares issued and outstanding at June 30, 2013, and December 31, 2012	31	31
Paid-in capital	5,522	5,453
Retained earnings	4,546	6,566
Total Zynex, Inc. stockholders’ equity	10,099	12,050
Noncontrolling interest	(12)	5
Total Stockholders’ equity	10,087	12,055
Total liabilities and stockholders’ equity	$ 24,149	$ 25,936

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Property and Equipment (Details) (USD $) In Thousands, unless otherwise specified	6 Months Ended
	Jun. 30, 2013	Dec. 31, 2012
Property Plant And Equipment [Line Items]
Property and Equipment, Gross	$ 5,870	$ 5,602
Less accumulated depreciation	(2,021)	(1,751)
Property and Equipment, Net	3,849	3,851
Office furniture and equipment
Property Plant And Equipment [Line Items]
Property and Equipment, Gross	2,302	1,836
Office furniture and equipment | Minimum
Property Plant And Equipment [Line Items]
Property and Equipment Useful Life	3 years
Office furniture and equipment | Maximum
Property Plant And Equipment [Line Items]
Property and Equipment Useful Life	7 years
Rental inventory
Property Plant And Equipment [Line Items]
Property and Equipment, Gross	2,946	3,147
Property and Equipment Useful Life	5 years
Vehicles
Property Plant And Equipment [Line Items]
Property and Equipment, Gross	76	76
Property and Equipment Useful Life	5 years
Leasehold improvements
Property Plant And Equipment [Line Items]
Property and Equipment, Gross	375	375
Leasehold improvements | Minimum
Property Plant And Equipment [Line Items]
Property and Equipment Useful Life	2 years
Leasehold improvements | Maximum
Property Plant And Equipment [Line Items]
Property and Equipment Useful Life	6 years
Assembly equipment
Property Plant And Equipment [Line Items]
Property and Equipment, Gross	$ 171	$ 168
Property and Equipment Useful Life	7 years

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Earnings Per Share (Tables)

6 Months Ended

Jun. 30, 2013

Calculation of Basic and Diluted (Loss) Per Share

The calculation of basic and diluted earnings (loss) per share for the three and six months ended June30, 2013 and 2012 is as follows:

	Three months ended June 30,					Six months ended June 30,
	2013			2012			2013			2012
Basic:
Net (loss) income applicable to common stockholders	$	(1,716	)	$	473		$	(2,020	)	$	793
Weighted average shares outstanding - basic		31,148,234			31,091,900			31,148,234			30,986,478
Net (loss) income per share - basic	$	(0.06	)	$	0.02		$	(0.06	)	$	0.03
Diluted:
Net (loss) income applicable to common stockholders	$	(1,716	)	$	473		$	(2,020	)	$	793
Weighted average shares outstanding - basic		31,148,234			31,091,900			31,148,234			30,986,478
Dilutive securities		-			157,207			-			156,398
Weighted average shares outstanding - diluted		31,148,234			31,249,107			31,148,234			31,142,876
Net (loss) income per share - diluted	$	(0.06	)	$	0.02		$	(0.06	)	$	0.03

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Segment Reporting (Details Textual)	6 Months Ended
	Jun. 30, 2013 Segment
Segment Reporting (Textual) [Abstract]
Number of reporting segments	3

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Fair Value Measurements (Details 1) (USD $) In Thousands, unless otherwise specified	6 Months Ended
	Jun. 30, 2013
Changes in the fair value of the Level 3 liabilities
Balance at beginning of 2013	$ 104
Payments	(3)
Accretion expense	4
Change in fair value of contingent consideration	(74)
Balance at end of 2013	$ 31

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Stock-Based Compensation Plans (Details 2) (USD $)	6 Months Ended
	Jun. 30, 2013
Summary of status of the Company's non-vested share awards
Nonvested shares under option at January 1, 2013	690,877
Nonvested share under option, granted
Nonvested share under option, vested	(155,873)
Nonvested share under option, forfeited	(69,625)
Nonvested shares under option at June 30, 2013	465,379
Weighted average grant date fair value at January 1, 2013	$ 0.69
Weighted average grant date fair value, granted
Weighted average grant date fair value, vested	$ 0.78
Weighted average grant date fair value, forfeited	$ 0.71
Weighted average grant date fair value at June 30, 2013	$ 0.66

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Stock-Based Compensation Plans (Details Textual) (USD $) In Thousands, except Share data, unless otherwise specified	3 Months Ended		6 Months Ended
	Jun. 30, 2013	Jun. 30, 2012	Jun. 30, 2013	Jun. 30, 2012
Stock Based Compensation Plans (Additional Textual) [Abstract]
Employee stock-based compensation expense	$ 33	$ 44	$ 69	$ 90
Unrecognized compensation expense related to stock options	142		142
Weighted-average period of unrecognized compensation expense related to stock option			2 years 2 months 12 days
Stock-based compensation plans (Textual) [Abstract]
Share-based Compensation Arrangement by Share-based Payment Award, Number of Shares Authorized	3,000,000		3,000,000
Stock Options Under Option Plan Maximum Expiry Period			10 years
Cost of Sales
Stock-based compensation plans (Textual) [Abstract]
Stock based compensation including cost of good sold			7	13
Selling, General and Administrative Expenses
Stock-based compensation plans (Textual) [Abstract]
Stock based compensation including cost of good sold			$ 62	$ 77

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Stock-Based Compensation Plans

6 Months Ended

Jun. 30, 2013

Stock-Based Compensation Plans

(7)STOCK-BASED COMPENSATION PLANS

The Company has reserved 3,000,000 shares of common stock for issuance under its 2005 Stock Option Plan (the “Option Plan”). Vesting provisions are determined by the Board of Directors. All stock options under the Option Plan expire no later than ten years from the date of grant.

In the three months ended June30, 2013 and 2012, the Company recorded compensation expense related to stock options of $33 and $44, respectively. Stock-based compensation recorded in the accompanying condensed consolidated statement of operations for the six months ended June30, 2013 and 2012 included $7 and $13, respectively, in cost of goods sold and $62 and $77, respectively, in selling, general and administrative expenses.

In the six months ended June30, 2013 and 2012, the Company did not grant options to employees or any other person for the purchase of shares of common stock.

A summary of stock option activity under the Option Plan for the six months ended June30, 2013is presented below:

	Shares Under Option				Weighted Average Exercise Price		Weighted Average Remaining Contractual Life			Aggregate Intrinsic Value
Outstanding at January1, 2013		1,501,500		$		0.95
Granted		—		$		—
Exercised		—		$		—
Forfeited		(127,250	)	$		0.86
Outstanding at June30, 2013		1,374,250		$		0.96		6.4years	$		20
Exercisable at June30, 2013		908,871		$		1.08		5.6years	$		17

A summary of status of the Company’s non-vested share awards as of and for the six months ended June30, 2013 is presented below:

	NonvestedShares UnderOption			WeightedAverage GrantDateFairValue
Non-vested at January 1, 2013		690,877		$	0.69
Granted		—		$	—
Vested		(155,873	)	$	0.78
Forfeited		(69,625	)	$	0.71
Non-vested at June 30, 2013		465,379		$	0.66

As of June30, 2013, the Company had approximately $142 of unrecognized compensation expense related to stock options that will be recognized over a weighted-average period of approximately 2.2 years.

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Leases (Details) (USD $)	6 Months Ended
	Jun. 30, 2013
Leases (Textual) [Abstract]
Lease expiry year	2023-11
Lease renewal options	Two five-year renewal options
Base monthly rent expense	$ 129,000
Increase in base monthly rental expense per month	3
Increase in base monthly rental expenses per square foot	0.50
Monthly rent expense after January 2023	157,000
Lease rent escalation	2023-01
Annual rental expense	1,420,000
Refund from landlord	101,000
Tenant allowance	1,130,000
Allowance used for leasehold improvements	565,000
Amount used to apply to rent in month eight and beyond	$ 565,000

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Concentrations (Details)	3 Months Ended	6 Months Ended
	Jun. 30, 2013	Jun. 30, 2013	Dec. 31, 2012
Concentrations (Textual) [Abstract]
Purchased electrotherapy products Percentage	24.00%	22.00%
Accounts receivable received by the company from a private health insurance company	10.00%	10.00%	22.00%

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Line of Credit

6 Months Ended

Jun. 30, 2013

Line of Credit

(10)LINE OF CREDIT

The Company has an asset-backed revolving credit facility of up to $7,000, subject to reserves and reductions to the extent of changes in the Company’s asset borrowing base, under a Loan and Security Agreement, as amended, (the “Doral Agreement”) with Doral Healthcare Finance, a division of Doral Money, Inc. Borrowings under the Doral Agreement bear interest at a variable rate equal to the greater of (i)the British Bankers’ Association LIBOR rate as published in The Wall Street Journal for dollar deposits in the amount of $1,000 with a maturity of one month or (ii)3%per annum, plus, in each case, a margin of 3.75%. The Doral Agreement requires monthly interest payments in arrears on the first date of each month. The Doral Agreement will mature on December19, 2014. The Company may terminate the Doral Agreement at any time prior to the maturity date upon thirty days’ prior written notice and upon payment in full of all outstanding obligations under the Doral Agreement. If the Company terminates the Doral Agreement, the Company must pay a specified early termination fee. As of June30, 2013, $6,870 was outstanding under the Doral Agreement and $16 was available for borrowing based on the Company’s current borrowing base.

The Doral Agreement requires a lockbox arrangement whereby all receipts are swept daily to reduce borrowings outstanding. This arrangement causes the Doral Agreement to be classified as a current liability.

As of June30, 2013, the effective interest rate under the Doral Agreement was 8% (7% interest rate and 1% fees).

The Doral Agreement contains certain customary restrictive and financial covenants for asset-backed credit facilities. As of June 30, 2013, the Company was not in compliance with one of the financial covenants under the Doral Agreement. As a result, all amounts due under the credit agreement are callable by the lender. The Company is currently in discussions with the lender and expects to receive a waiver; however, no assurance can be given. If a waiver is not obtained, in addition to demanding immediate payment of amounts outstanding under the Credit Agreement, the lender can restrict or prevent the Company from borrowing while in default, which could have a material adverse impact on the Company’s cash flow and liquidity.

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Earnings Per Share

6 Months Ended

Jun. 30, 2013

Earnings (Loss) Per Share

(6) EARNINGS (LOSS) PER SHARE

Basic earnings (loss) per share is computed by dividing net income (loss) by the weighted-average number of common shares outstanding during the period. Diluted earnings per share is computed by dividing net income (loss) by the weighted-average number of common shares outstanding and the number of dilutive potential common share equivalents during the period, calculated using the treasury-stock method.

The calculation of basic and diluted earnings (loss) per share for the three and six months ended June30, 2013 and 2012 is as follows:

	Three months ended June 30,					Six months ended June 30,
	2013			2012			2013			2012
Basic:
Net (loss) income applicable to common stockholders	$	(1,716	)	$	473		$	(2,020	)	$	793
Weighted average shares outstanding - basic		31,148,234			31,091,900			31,148,234			30,986,478
Net (loss) income per share - basic	$	(0.06	)	$	0.02		$	(0.06	)	$	0.03
Diluted:
Net (loss) income applicable to common stockholders	$	(1,716	)	$	473		$	(2,020	)	$	793
Weighted average shares outstanding - basic		31,148,234			31,091,900			31,148,234			30,986,478
Dilutive securities		-			157,207			-			156,398
Weighted average shares outstanding - diluted		31,148,234			31,249,107			31,148,234			31,142,876
Net (loss) income per share - diluted	$	(0.06	)	$	0.02		$	(0.06	)	$	0.03

Potential common share equivalents as of June 30, 2012 of 1,041,000, related to certain outstanding stock options, were not included in the computation of diluted earnings per share during the three and six months ended June 30, 2013 because the effect would have been anti-dilutive, as the option exercise prices exceeded the average market price of the Company’s common stock. The effect of these shares, if any, on the diluted earnings per share calculation may vary significantly depending on fluctuations in the stock price.

The effects of potential common stock equivalents, related to certain outstanding options for the three and six months ended June 30, 2013 have not been included in the computation of diluted net loss per share because the impact of the potential shares would decrease the loss per share.

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Unaudited Condensed Consolidated Financial Statements and Managements' Plans

6 Months Ended

Jun. 30, 2013

Unaudited Condensed Consolidated Financial Statements and Managements' Plans

(1)UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS AND MANAGEMENTS’ PLANS

Zynex, Inc. (a Nevada corporation) and its subsidiaries, Zynex Medical, Inc. (ZMI) (a Colorado corporation, wholly-owned), ZynexNeuroDiagnostics, Inc. (ZND) (a Colorado corporation, wholly-owned), Zynex Monitoring Solutions Inc. (ZMS) (a Colorado corporation, wholly-owned), Zynex Billing and Consulting, LLC (ZBC) (a Colorado limited liability company, 80% majority-owned) and Zynex Europe, ApS (ZEU) (a Denmark corporation, wholly-owned), are collectively referred to as the “Company”.

The unaudited condensed consolidated financial statements included herein have been prepared by the Company pursuant to the rules and regulations of the Securities and Exchange Commission (“SEC”) and accounting principles generally accepted in the United States of America (“U.S. GAAP”). Certain information and footnote disclosures normally included in financial statements prepared in accordance with U.S. GAAP have been condensed or omitted pursuant to such rules and regulations, although the Company believes that the disclosures included herein are adequate to make the information presented not misleading. A description of the Company’s accounting policies and other financial information is included in the audited consolidated financial statements as filed with the SEC in the Company’s Annual Report on Form 10-K for the year ended December31, 2012. Amounts as of December31, 2012 are derived from those audited consolidated financial statements. These interim condensed consolidated financial statements should be read in conjunction with the annual audited financial statements, accounting policies and notes thereto, included in the Company’s Annual Report on Form 10-K for the year ended December31, 2012, which has previously been filed with the SEC.

In the opinion of management, the accompanying unaudited condensed consolidated financial statements contain all adjustments necessary to present fairly the financial position of the Company as of June30, 2013 and the results of operations and cash flows for the periods presented.All such adjustments are of a normal recurring nature.The results of operations for the three and six months ended June30, 2013 are not necessarily indicative of the results that may be achieved for a full fiscal year and cannot be used to indicate financial performance for the entire year.

For the six months ended June 30, 2013 and 2012, the Company reported negative cash flows from operations of $985 and $1,042, respectively. In addition, the Company’s line of credit increased from $5,906 at December 31, 2012 to $6,870 at June 30, 2013, primarily driven by the Company’s net loss and working capital requirements. Maximum borrowings under the line of credit are $7,000, subject to adjustments to its accounts receivable borrowing base, of which, as of June 30, 2013, the maximum amount the Company could borrow was $6,886. During the first half of 2013, the Company encountered challenges, specifically related to health care reform, including, the Affordable Care Act, that affected demand in its core electrotherapy business, ZMI. In response to these challenges, the Company has made reductions in its fixed expenses by cutting its annual employee costs by approximately $3.0 million dollars through headcount reductions. These headcount reductions were executed during the latter part of the second quarter of 2013 and thus the full financial impact will not be evident in our financial statements until future quarters of 2013.   The Company also renegotiated its existing building lease, under which, among other things, base rent has been lowered and the Company is now operating in an approximate twelve month free rent period.  Management estimates related cash savings over the next twelve months of approximately $1.5 million dollars.  The Company is monitoring the demand for its ZMI electrotherapy products and will make additional expense adjustments as necessary throughout the remainder of 2013.  Additionally, the Company recently added new products that are less impacted by insurance reimbursement to the Company’s ZMI sales channel and are pursuing other opportunities, which are capital goods and service based where revenues are much less dependent on insurance reimbursement in the Company’s other divisions. In ZND, the Company expanded the sales force and has been distributing electroencephalography (EEG) and sleep diagnostic products in the US and will begin distributing mobile sleep diagnostic products and a sleep apnea treatment device. The Company is also investing in the ZBC division where the Company expects increased service based revenue going forward. The Company believes these actions will serve to diversify the product mix and further reduce the dependency on insurance reimbursement.Management believes that as a result of the restructuring activities completed during the second quarter of 2013, the Company’s cash flows from operating activities and limited borrowing availability under the line of credit will be sufficient to fund cash requirements through June 30, 2014.

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Earnings Per Share (Details Textual)	6 Months Ended
	Jun. 30, 2012
Earnings Per Share (Textual) [Abstract]
Antidilutive securities excluded from computation of earnings per share	1,041,000

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Segment Reporting

6 Months Ended

Jun. 30, 2013

Segment Reporting

(13)SEGMENT REPORTING

At June30, 2013, the Company has determined that it has three reporting segments comprised of the following subsidiaries, ZMI and ZBC, ZND and ZEU, and ZMS. This determination was made based on the nature of the products and services offered to customers or the nature of the function in the organization. The accounting policies for each of these segments are the same as those described in Note 2, and inter-segment transactions are eliminated.

Net revenue was primarily generated from sales in the United States.

	ZMI& ZBC		ZND& ZEU		ZMS		TOTAL
THREE MONTHS ENDED JUNE 30, 2013
Sales	$	5,358	$	114	$	—	$	5,472
Gross profit		3,528		61		—		3,589
Total assets		23,142		986		21		24,149
THREE MONTHS ENDED JUNE 30, 2012
Sales	$	9,973		53	$	—	$	10,026
Gross profit		8,204		36		—		8,240
Total assets		24,724		762		8		25,494
SIX MONTHS ENDED JUNE 30, 2013
Sales	$	12,964	$	176	$	—	$	13,140
Gross profit		8,958		108		—		9,066
Total assets		23,142		986		21		24,149
SIX MONTHS ENDED JUNE 30, 2012
Sales	$	18,842		128	$	—	$	18,970
Gross profit		15,285		86		—		15,371
Total assets		24,724		762		8		25,494

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Income Taxes

6 Months Ended

Jun. 30, 2013

Income Taxes

(9)INCOME TAXES

The provision for income taxes is recorded at the end of each interim period based on the Company’s best estimate of its effective income tax rate expected to be applicable for the full fiscal year.The Company’s effective income tax rate for the three and six months ended June30, 2013 was approximately 36%. The Company’s income tax expense for the six months ended June30, 2012 was partially offset by a state income tax refund, which resulted in a lower effective tax rate for the period. The Company paid income taxes of $112 and $539 during the first three and six months of 2013, respectively, which was included in income taxes payable at December31, 2012.

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Intangible Assets (Tables)

6 Months Ended

Jun. 30, 2013

Acquisition of Intangible Assets

Intangible assets as of June30, 2013 and December31, 2012, consist of the following:

	June30,2013			December31,2012			AmortizationLife Years
		(UNAUDITED)
Trade names	$	33		$	72			5
Non-compete agreement		26			26			5
Technology		74			135			5
Domain Name		18			18			1
Total intangible assets, gross		151			251
Less: accumulated amortization		(78	)		(48	)
Total intangible assets, net	$	73		$	203

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Significant Accounting Policies (Policies)

6 Months Ended

Jun. 30, 2013

Principles of Consolidation

PRINCIPLES OF CONSOLIDATION

The accompanying unaudited condensed consolidated financial statements include the accounts of Zynex, Inc. and its subsidiaries. All intercompany balances and transactions have been eliminated in consolidation.

Noncontrolling Interest

NONCONTROLLING INTEREST

Noncontrolling interest in the equity of a subsidiary is accounted for and reported as stockholders equity. Noncontrolling interest represents the 20% ownership in the Company’s majority-owned subsidiary, ZBC. In 2012, the noncontrolling interest member contributed $10 of property and equipment to ZBC.

Use of Estimates

USE OF ESTIMATES

Preparation of financial statements in conformity with U.S. GAAP 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 the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates. The most significant management estimates used in the preparation of the accompanying condensed consolidated financial statements are associated with the allowance for contractual adjustments and uncollectible accounts receivable, the reserve for obsolete and damaged inventory, stock-based compensation, valuation of goodwill and other long-lived assets, and income taxes.

Revenue Recognition, Allowance for Contractual Adjustments and Collectibility

REVENUE RECOGNITION, ALLOWANCE FOR CONTRACTUAL ADJUSTMENTS AND COLLECTIBILITY

The Company recognizes revenue when each of the following four conditions are met 1) a contract or sales arrangement exists, 2) products have been shipped and title has transferred, or rental services have been rendered, 3) the price of the products or services is fixed or determinable, and 4) collectability is reasonably assured. Accordingly, the Company recognizes revenue, both rental and sales, when products have been delivered to the patient and the patient’s insurance (if the patient has insurance) has been verified. For medical products that are sold from inventories consigned at clinic locations, the Company recognizes revenue when it receives notice that the product has been prescribed and delivered to the patient and the patient’s insurance coverage has been verified or preauthorization has been obtained from the insurance company, when required. Revenue from the rental of products is normally on a month-to-month basis and is recognized ratably over the products’ rental period. Revenue from sales to distributors is recognized when the Company ships its products, which fulfills its order and transfers title. Revenue is reported net, after adjustments for estimated insurance company or governmental agency (collectively “Third-party Payors”) reimbursement deductions. The deductions are known throughout the health care industry as “contractual adjustments” whereby the Third-party Payors unilaterally reduce the amount they reimburse for the Company’s products.

A significant portion of the Company’s revenues are derived, and the related receivables are due, from Third-party Payors. The nature of these receivables within this industry has typically resulted in long collection cycles. The process of determining what products will be reimbursed by Third-party Payors and the amounts that they will reimburse is complex and depends on conditions and procedures that vary among providers and may change from time to time. The Company maintains an allowance for contractual adjustments and records additions to the allowance to account for the risk of nonpayment. Contractual adjustments result from reimbursements from Third-party Payors that are less than amounts claimed or where the amount claimed by the Company exceeds the Third-party Payors’ usual, customary and reasonable reimbursement rate. The Company determines the amount of the allowance, and adjusts it at the end of each reporting period, based on a number of factors, including historical rates of collection, the aging of the receivables, trends in the historical rates of collection and current relationships and experience with the Third-party Payors. If the rates of collection of past-due receivables recorded for previous fiscal periods changes, or if there is a trend in the rates of collection on those receivables, the Company may be required to change the rate at which it provides for additions to the allowance. A change in the rates of the Company’s collections can result from a number of factors, including experience and training of billing personnel, changes in the reimbursement policies or practices of Third-party Payors, or changes in industry rates of reimbursement. Accordingly, changes to the allowance for contractual adjustments, which are recorded in the income statement as a reduction of revenue, have historically fluctuated and may continue to fluctuate significantly from quarter to quarter.

Due to the nature of the industry and the reimbursement environment in which we operate, estimates are required to record net revenues and accounts receivable at their net realizable values. Inherent in these estimates is the risk that they will have to be revised or updated as additional information becomes available. Specifically, the complexity of third-party billing arrangements and the uncertainty of reimbursement amounts for certain products or services from payors or an unanticipated requirement to refund payments previously received may result in adjustments to amounts originally recorded. Due to continuing changes in the health care industry and third-party reimbursement, as well as changes in our billing practices to increase cash collections, it is possible that management’s estimates could change in the near term, which could have an impact on our results of operations and cash flows. Any differences between estimated settlements and final determinations are reflected as an increase or a reduction to revenue in the period when such final determinations are known.

The Company frequently receives refund requests from insurance providers relating to specific patients and dates of service. Billing and reimbursement disputes are very common in the Company’s industry. These requests are sometimes related to a limited number of patients or products; at other times, they include a significant number of refund claims in a single request. The Company reviews and evaluates these requests and determines if any refund request is appropriate. The Company also reviews these refund claims when it is rebilling or pursuing reimbursement from that insurance provider. The Company frequently has significant offsets against such refund requests, and sometimes amounts are due to the Company in excess of the amounts of refunds requested by the insurance providers. Therefore, at the time of receipt of such refund requests, the Company is generally unable to determine if a refund request is valid and should be accrued.

As of June 30, 2013, the Company believes it has an adequate allowance for contractual adjustments relating to all known insurance disputes and refund requests. However, no assurances can be given with respect to such estimates of reimbursements and offsets or the ultimate outcome of any refund requests.

In addition to the allowance for contractual adjustments, the Company records an allowance for uncollectible accounts receivable. Uncollectible accounts receivable are primarily a result of the following: non-payment from patients who have been direct billed for co-payments or deductibles, lack of appropriate insurance coverage and disallowances of charges by Third-party Payors. If there is a change to a material insurance provider contract or policy, application by a provider, a decline in the economic condition of providers or a significant turnover of Company billing personnel resulting in diminished collection effectiveness, the estimate of the allowance for uncollectible accounts receivable may not be adequate and may result in an increase in the future.At June 30, 2013 and December 31, 2012, the allowance for uncollectible accounts receivable is $1,837.

Fair Value of Financial Instruments

FAIR VALUE OF FINANCIAL INSTRUMENTS

The Company’s financial instruments at June30, 2013 include cash, accounts receivable and accounts payable, for which current carrying amounts approximate fair value due to their short-term nature. Financial instruments at June30, 2013 also include the line of credit and notes payable, the carrying value of which approximates fair value because the interest rates on the outstanding borrowings are at rates that approximate market rates for borrowings with similar terms and average maturities.

Inventory

INVENTORY

Inventories, which primarily represent finished goods, are valued at the lower of cost (average) or market. Finished goods include products held at the Company’s headquarters and at different locations by health care providers or other parties for rental or sale to patients. Total (gross) inventories at June30, 2013 included $5,618 of finished goods, $338 of parts, and $1,262 of supplies.

The Company monitors inventory for turnover and obsolescence, and records losses for excess and obsolete inventory as appropriate. At June30, 2013, the Company had an allowance for obsolete and damaged inventory of approximately $1,373. The allowance for obsolete and damaged inventory was approximately $1,181 at December31, 2012. The Company had $1,402 of open purchase commitments at June30, 2013.

Property and Equipment

PROPERTY AND EQUIPMENT

Property and equipment are stated at cost. Products on rental contracts are placed in property and equipment and depreciated over their estimated useful life. The Company removes the cost and the related accumulated depreciation from the accounts of assets sold or retired, and the resulting gains or losses are included in the results of operations. Depreciation is computed using the straight-line method over the useful life of the asset. As rental inventory contributes directly to the revenue generating process, the Company classifies the depreciation of rental inventory in cost of revenue.

Repairs and maintenance costs are charged to expense as incurred.

Goodwill and Intangible Assets

GOODWILL AND INTANGIBLE ASSETS

Goodwill represents the excess of the purchase price over the fair value of the net assets of the business acquired. Authoritative guidance requires that goodwill be assessed for impairment at the reporting unit level (operating segment or one level below an operating segment) on an annual basis and between annual tests when circumstances indicate that the recoverability of the carrying amount of goodwill may be in doubt. Application of the goodwill impairment assessment requires judgment, including the identification of reporting units, assigning assets and liabilities to reporting units, assigning goodwill to reporting units, and determining the fair value. Significant judgments are required to estimate the fair value of a reporting unit including estimating future cash flows, determining appropriate discount rates and other assumptions. When conducting its goodwill impairment assessment, the Company initially performs a qualitative evaluation to determine if it is more likely than not that the fair value of its reporting unit is less than its carrying amount as a basis for determining whether it is necessary to perform a two-step goodwill impairment test.

The Company has determined, based on its qualitative evaluation, that it was necessary to perform the two-step goodwill impairment test during the quarter, primarily because of the significant decline in sales in its ZMI electrotherapy products. In March 2012, the Company acquired substantially all of the assets and business of NeuroDyne Medical Corp. (NeuroDyne). The Company modified its business forecast for NeuroDyne during the second quarter, resulting in reduced estimated sales and cash flow, as compared to the original business forecast at the time of the acquisition. Management, therefore performed the two-step goodwill impairment test during the second quarter of 2013, and determined that goodwill related to NeuroDynewas impaired and recorded a $39 goodwill impairment charge during the three months ended June 30, 2013.  Intangible assets with estimable lives are amortized in a pattern consistent with the asset’s identifiable cash flows or using a straight- line method over their remaining estimated benefit periods if the pattern of cash flows is not estimable. The Company reviews the carrying value of intangible and other long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset may not be recoverable. Recoverability of long-lived assets is measured by comparison of their carrying amounts to the undiscounted cash flows that the asset or asset group is expected to generate. If the carrying amount of the assets exceeds the undiscounted cash flows the impairment to be recognized is measured by the amount by which the carrying amount of the asset exceeds its fair value. The Company’s intangible assets primarily relate to the asset acquisition of NeuroDyne.  The Company modified its business forecast for NeuroDyne during the second quarter, resulting in reduced estimated sales and cash flow, as compared to the original business forecast at the time of the acquisition.  Therefore, the Company recorded an impairment charge of $100during the second quarter related to certain NeuroDyne intangible assets.  The Company utilized a discounted cash flow (DCF) model to determine fair value for both goodwill and intangible assets as of June 30, 2013.

Share-based Compensation

STOCK-BASED COMPENSATION

The Company accounts for stock-based compensation through recognition of the cost of employee services received in exchange for an award of equity instruments, which is measured based on the grant date fair value of the award that is ultimately expected to vest during the period. The stock-based compensation expenses are recognized over the period during which an employee is required to provide service in exchange for the award (the requisite service period, which in the Company’s case is the same as the vesting period).

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Document and Entity Information	6 Months Ended
	Jun. 30, 2013	Aug. 13, 2013
Document Document And Entity Information [Line Items]
Entity Registrant Name	ZYNEX INC
Entity Central Index Key	0000846475
Document Type	10-Q
Document Period End Date	Jun. 30, 2013
Amendment Flag	false
Document Fiscal Year Focus	2013
Document Fiscal Period Focus	Q2
Current Fiscal Year End Date	--12-31
Entity Filer Category	Smaller Reporting Company
Entity Common Stock, Shares Outstanding		31,148,234

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Property and Equipment (Tables)

6 Months Ended

Jun. 30, 2013

Property and Equipment

Property and equipment as of June30, 2013 and December31, 2012 consist of the following:

	June30, 2013				December31, 2012			Useful lives
		(UNAUDITED)
Office furniture and equipment	$	2,302		$		1,836			3-7years
Rental inventory		2,946				3,147			5 years
Vehicles		76				76			5 years
Leasehold improvements		375				375			2-6years
Assembly equipment		171				168			7 years
		5,870				5,602
Less accumulated depreciation		(2,021	)			(1,751	)
	$	3,849		$		3,851