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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K
FOR ANNUAL AND TRANSITION REPORTS
PURSUANT TO SECTIONS 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended: December 31, 1997
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 No.: 0-28494
Millennium Pharmaceuticals, Inc.
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(Exact Name of registrant as Specified in its Charter)
Delaware 04-3177038
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
640 Memorial Drive, Cambridge, Massachusetts 02139
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (617) 679-7000
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.001 par value
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Title of class
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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
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Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of voting Common Stock held by non-affiliates
of the registrant was $542,397,943, based on the last reported sale price of the
Common Stock on the Nasdaq Stock Market on March 13, 1998.
Number of shares outstanding of the registrant's class of Common
Stock as of March 13, 1998: 29,312,329.
Documents incorporated by reference:
Annual Report to Stockholders for fiscal year ended December 31, 1997 - Part II
Proxy Statement for the 1998 Annual Meeting of Stockholders - Part III
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PART I
ITEM 1. BUSINESS
GENERAL
Millennium Pharmaceuticals, Inc., a Delaware corporation organized in 1993
("Millennium" or the "Company", which terms include, except where the context
otherwise requires, the Company's subsidiaries), is applying a comprehensive
platform of genomics and related technologies to pursue multiple business
opportunities in the discovery and development of life-science-based products
and services. Most of the Company's activities currently are directed at the
field of human healthcare. A principal objective of the Company is to enable and
accelerate the discovery and development of new, proprietary therapeutic and
diagnostic products capable of addressing major diseases at their root causes,
rather than simply identifying and treating disease symptoms.
The Company's technology platform incorporates advanced capabilities in
genetics, genomics, molecular biology, cell biology, biochemistry, chemistry and
analytical instrumentation. Using these capabilities and advanced robotics and
informatics technologies, the Company has created a series of high-throughput
processes that the Company believes have the potential to transform the
discovery and development of life-science-based products and services by
significantly improving both the speed of the discovery and development process
and the value of its output.
Millennium's strategy is to pursue its multiple business opportunities
through divisions and subsidiaries that specialize in particular areas, but
cooperate closely with one another. Millennium believes that these dedicated
units allow it to pursue each opportunity with appropriate focus, maintain an
entrepreneurial environment within each unit and attract high-caliber employees.
The Company has established formal and informal relationships between the
various units to provide each unit within the overall group with access to
Company assets or capabilities that are relevant to the business of the
particular unit.
From its inception in 1993 until 1996, Millennium's main focus was the
development of its technology platform and the application of this platform to
the early stages of drug discovery for important human diseases. During 1997,
Millennium significantly expanded the scope and scale of its operations. The
Company's key objectives in this expansion were to increase its capabilities and
involvement in the later stages of drug discovery and to establish new focused
business units to pursue additional business opportunities. Key steps in the
expansion included:
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o The acquisition of ChemGenics Pharmaceuticals, Inc. ("ChemGenics")
in February 1997. This acquisition significantly extended
Millennium's capabilities in drug discovery to encompass later
stages of the discovery process. It also provided the Company with
new research expertise in important infectious diseases and two
additional strategic partnerships.
o The establishment of the Company's pharmaceuticals division,
MPharma, focused on the development of small-molecule drugs.
o The establishment in May 1997 of a new 82% owned subsidiary,
Millennium BioTherapeutics, Inc. ("MBio"), focused on the
development of therapeutic proteins and antibodies, vaccines and
gene therapy and antisense products. MBio entered into a strategic
alliance in the area of therapeutic proteins with Eli Lilly and
Company ("Lilly") and obtained a $20 million equity investment from
Lilly.
o The establishment of the Company's new wholly-owned subsidiary,
Millennium Predictive Medicine, Inc. ("MPMx"), focused on Diagnomics
(genomics-based diagnostics) and pharmacogenomics (correlation of
patient genotypes to drug responses).
o The incorporation of the Company's new wholly-owned subsidiary,
Millennium Information, Inc. ("MInfo"), to focus on generating and
integrating diverse biomedical data to provide products and services
to the healthcare industry.
In addition to these units, the Company has established significant
internal groups internally focused on its technology platform. These groups are
responsible for the continuing development and integration of the platform and
for facilitating use of the platform within the Company and its subsidiaries as
well as by the Company's and its subsidiaries' strategic partners.
The commercialization strategy of the Company and its subsidiaries is to
form strategic alliances with major current participants in the relevant
marketplaces. The Company has formed alliances based upon the transfer of its
technology platform, alliances which combine technology transfer with a focus on
a specific disease or therapeutic approach and alliances focused on a disease or
specific therapeutic approach. To date, Millennium has entered into eight
alliances focused on a specific disease or therapeutic approach. The MPharma
division is a party to seven of these alliances, and MBIO is a party to one. The
alliances being managed by the MPharma division are based upon MPharma's most
advanced drug-discovery programs. They include an alliance with Hoffmann-La
Roche Inc. ("Roche") in obesity and type II diabetes; two separate alliances
with Lilly covering certain cardiovascular diseases and select areas within
oncology; an alliance with Astra AB ("Astra") in
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inflammatory respiratory diseases; two separate alliances with American Home
Products Corporation ("AHP") in certain diseases of the central nervous system
and in bacterial diseases; and an alliance with Pfizer, Inc. ("Pfizer") in
fungal diseases.
The Company's business strategy also includes the formation of significant
alliances based on the transfer of its technology platform to other companies
that wish to apply this platform within their own discovery and development
programs. In October 1997 the Company entered into a major strategic alliance
with Monsanto Company ("Monsanto") under which Monsanto will apply Millennium's
technology platform in plant agriculture and human healthcare. Technology
transfer from Millennium is also a component of certain of the Company's
disease-focused alliances. Millennium believes that its technology platform can
have a significant impact on the discovery and development of products and
services in other life- science-based industries.
To ensure the continual improvement of its technology platform, Millennium
also forms collaborations which bring emerging technologies into the Company. As
part of this strategy, the Company established a corporate consortium in April
1997 with Bristol-Myers Squibb Company ("BMS") and Affymetrix, Inc.
("Affymetrix") to fund a five-year research program in functional genomics at
the Whitehead Institute/Massachusetts Institute of Technology Center for Genome
Research.
BACKGROUND
DISCOVERY AND DEVELOPMENT PROCESSES FOR LIFE-SCIENCE-BASED PRODUCTS AND
SERVICES
PHARMACEUTICALS
TRADITIONAL APPROACH. The great majority of drugs in use today consist of
relatively small chemical compounds. Such drugs are often referred to as "small-
molecule drugs," to distinguish them from protein and other biotherapeutic drugs
which are significantly larger molecules. As used herein, the term
"pharmaceuticals" refers only to "small-molecule drugs," and the term
"biotherapeutics" is used to describe protein and other biotherapeutic drugs.
The discovery of new small-molecule drugs for a particular disease
typically involves several steps. The first step is the identification of a drug
"target" for therapeutic intervention - - a molecule or structure somewhere in
the body, inside or on the surface of cells, which is either directly involved
in the disease or lies in a biochemical pathway leading to the disease. The next
step is to identify compounds which interact with this drug target and modulate
the drug target's activity in a manner that might help reverse, inhibit or
prevent the disease process. This step is normally accomplished by screening
large collections (or "libraries") of synthetic chemicals and natural products
in a trial and error process designed to identify those
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compounds that can interact with the drug target. The most promising compounds
to emerge from this process are advanced to the next stage, in which synthetic
derivatives of these compounds are generated and tested to arrive at one or a
few "lead compounds." The interactions of these lead compounds with the drug
target and their activity in animal and/or cellular models of the disease
suggest that they could be developed successfully into new drugs. The best of
these lead compounds are then subjected to rigorous testing, first in animals
and then in humans, to establish their safety and efficacy as drugs.
Because of the absence of any suitable technology for the systematic
identification and characterization of molecules and structures involved in
disease mechanisms, the selection of new targets for drug discovery historically
has been a haphazard process. Drug targets have often been selected based on
speculation that they might be involved in disease processes, rather than
because of any clear, well-documented association with specific diseases. As a
result, many drug candidates fail during clinical trials because they turn out
to be ineffective and/or unsafe, and many drugs which do reach the market treat
only the symptoms of diseases rather than their underlying causes.
IMPACT OF GENOMICS AND RELATED TECHNOLOGIES. Every human disease
ultimately has an underlying genetic basis. The initiation, continuation and
progression of the disease reflects some aspect of the structure or expression
of the patient's genes and/or those of a pathogen. Systematic study of human
genes in the context of disease should therefore lead to the identification of
those genes which underlie important diseases. These genes, their protein
products and/or the biochemical pathways in which they lie should be attractive
drug targets for therapeutic intervention.
In the past, however, systematic study of genes in the context of disease
has been extremely difficult. Each person carries a very large number of genes
on his or her chromosomes - - according to current estimates, in excess of
100,000 different genes (known collectively as the "human genome"). Because of
the numbers involved, the identification of individual genes or sets of genes
correlated with specific diseases has posed major technological challenges.
In recent years, this situation has changed dramatically. Fueled by broad
interest in determining the entire DNA sequence of the human genome, major
improvements have been made in the technologies available for identifying and
cataloguing genes in complex organisms. These technologies include high-
throughput methods for sequencing genes, for monitoring and comparing their
expression in different situations and for following their inheritance in
families prone to particular diseases. These technologies depend crucially on
the integration of molecular biology with robotics, informatics and analytical
instrumentation. The integration of these disciplines provides powerful
capabilities for generating,
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capturing and analyzing large volumes of data concerning genes and their
expression - - making it possible for the first time to mount a systematic
search to discover and characterize the genes and biochemical pathways which
underlie human diseases. At Millennium, this search is providing many new drug
targets with well-validated roles in various diseases. The Company believes
that compounds active against these targets may be highly effective and specific
in treating the underlying causes of these diseases.
Major advances have also been made in the technologies available for
screening chemical and natural-product libraries to identify compounds active
against specific drug targets and for the subsequent generation of lead
compounds optimized for their activity against these drug targets. Intelligent
integration of robotics, informatics and analytical instrumentation has again
played an enabling role in these advances - in this arena, coupled with novel
combinatorial approaches to the synthesis of chemical libraries. The Company
believes that the combined effect of these developments will permit more rapid
identification of higher-quality lead compounds.
Taken together, these new approaches to selecting drug targets, developing
lead compounds and understanding drug responses may deliver whole new classes of
drugs which are safe and effective for treating a broad range of important
diseases in diverse individuals.
BIOTHERAPEUTICS AND PREDICTIVE MEDICINE
Genomics and related technologies have major applications in human
healthcare beyond the discovery of small-molecule drugs. Key additional
applications include the identification of important new biotherapeutic products
and the development of novel approaches to the prediction, diagnosis and
management of diseases.
Biotherapeutics are proteins or nucleic acids administered directly to
patients for therapeutic benefit. Protein biotherapeutics in current use
include: secreted proteins, such as interferons, erythropoietin, insulin and
human growth hormone; therapeutic antibodies, such as OKT3 and ReoPro(R); and
vaccines, such as the vaccine for hepatitis B. In 1997, biotherapeutic products
generated over $8 billion in annual worldwide sales. Nucleic acid
biotherapeutics fall into two general classes: gene therapy products and
antisense products. Although no product in either nucleic acid class has yet
reached the marketplace, a number are currently in development.
There are multiple ways in which genomics technologies can contribute to
the development of novel biotherapeutics. High-throughput gene-discovery
programs can lead to the rapid identification of novel genes. Through the use of
informatics and functional genomics strategies, these genes and/or their protein
products can be
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identified as potential candidates for therapeutic protein or gene therapy
applications or as potential targets for development of therapeutic antibodies,
antisense or vaccine-based drugs.
In the realm of predictive medicine, genomics technologies can be used to
identify genes that predispose individuals to disease, participate in the
initiation, progression and resolution of disease and determine individual
responses to different treatments that may be available. As a result, the
identification of such genes can form the basis for novel strategies and
products for the prediction, diagnosis and management of diseases.
The Company believes that improved methods for the discovery of drug
targets and the development of lead compounds will lead to safer and more
effective new drugs. Efficacy and safety may be enhanced even further by another
important application of genomics technologies, referred to as
"pharmacogenomics." The goal of pharmacogenomics is to understand why a
particular drug may be more effective in some people than in others and/or have
more pronounced side-effects in certain people. Differences in the way people
respond to a drug are believed to reflect genetic differences between them;
different people may have slightly different versions of the genes involved in
the beneficial and/or the adverse effects of the drug. Millennium believes that
genomics technologies will permit the identification of the genetic differences
that underlie variability in responses to drugs and that, as a result, it will
be possible to individualize the selection of drugs for patients so that each
patient receives only those drugs likely to be effective and safe for him or
her.
OTHER BUSINESSES
The fundamental power of genomics technologies is their ability to
identify, in a rapid and comprehensive manner, genes that underlie complex
biological traits. In human healthcare, the traits of interest are diseases.
Outside of human healthcare, there are many traits of economic importance to
which genomics technologies can be successfully applied. In plant agriculture,
for example, these include the yields, nutritional content, disease-resistance
and drought-tolerance of crop plants and the susceptibility of pests, pathogens
and weeds to agrochemicals. Similarly, important traits can be identified in
other major life-science-based industries, such as animal agriculture and
industrial enzymes.
THE MILLENNIUM STRATEGY
Millennium's business strategy is to develop a comprehensive, integrated
platform of genomics and related technologies and to use this platform to pursue
multiple opportunities in life-science-based industries. The Company's primary
current focus is on opportunities relating to the discovery and development of
new products and services in the healthcare industry. To pursue multiple
business
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opportunities simultaneously, the Company has established focused units
(divisions or subsidiaries) specializing in particular areas, believing that
each unit can then address its designated area with the energy and drive of a
start-up enterprise. At the same time, the Company recognizes the importance of
enabling each unit to take advantage of the combined capabilities of the overall
organization.
The Company and MBio have entered into an agreement whereby each party has
assigned or licensed to the other party technology and rights in the other
party's core area of interest. See " -- Millennium BioTherapeutics Inc.--
Overview." The Company anticipates entering into similar arrangements with MPMx,
MInfo and other subsidiaries that it may establish in the future, although the
precise terms of such arrangements have not been finalized and may vary from the
terms of the agreements between the Company and MBio.
In general, the Company's strategy for pursuing business opportunities is
to form alliances with major participants in the relevant markets. The Company
focuses in these alliances on the discovery of innovative new products, relying
on its partners for the development and marketing of these products. The
Company's revenues from these alliances come in the form of fixed up-front
payments and research funding, with the right to milestone payments and
royalties (or a share of profits) based on the success of any products that
result from the alliance. The Company also forms alliances based on the transfer
of its technology platform to partners. Revenues in such alliances may include
up-front payments and fees associated with the successful transfer of
technology. In some instances, the Company has also obtained access to its
partners' technologies (such as libraries of chemical compounds) to enhance the
Company's operations outside of the alliance.
With these approaches, the Company believes that it is well positioned to
capture value from a broad array of opportunities in diverse life-science-based
industries.
TECHNOLOGY PLATFORM
Millennium's broad technology platform reflects the Company's strong
belief that success in genomics-based product discovery and development requires
the use of multiple parallel approaches, accelerated and integrated through the
latest advances in informatics and "process technologies" (i.e., automation,
miniaturization, and analytical instrumentation).
The Company has established dedicated technology groups responsible for
developing and maintaining the Company's technology platform and for supporting
the use of this platform by Millennium, its subsidiaries and its strategic
partners.
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GENE IDENTIFICATION STRATEGIES
GENETIC APPROACHES
HUMAN GENETICS. Genetic studies of families and populations prone to
particular diseases can identify genes involved in these diseases. "Markers"
spaced at regular intervals along the human chromosomes are studied in affected
and unaffected individuals, a process known as genotyping. If specific markers
are co- inherited more frequently in affected than in unaffected individuals,
these markers define a chromosomal region (or a "map position") containing a
gene or genes involved in the disease. The genes in question may then be
identified by some combination of three approaches: higher-resolution mapping
(repeating the co- inheritance studies with additional markers known to fall in
the region of interest but located more closely to one another than those used
for the initial "genome scan"); "positional cloning" (isolation of microbial
clones of human DNA corresponding to the map position which has been
identified); and high-throughput sequencing (to identify protein-encoding
regions (i.e. genes) in this region, and to compare them in normal and affected
individuals).
To gain access to suitable families and populations around the world,
Millennium has entered into a number of collaborations with academic centers.
The Company's capabilities in human genetics include the design and proper
clinical management of appropriate studies, technology for automated
high-throughput genotyping and sequencing, custom-developed software for data
capture and analysis and positional cloning. With these capabilities, the
Company has made significant progress in the mapping and positional cloning of
genes implicated in a number of important human diseases.
These capabilities in human genetics can be readily adapted and applied to
the identification of genes underlying traits of interest in other species -
such as diseases in mice, as described below, or economically important traits
in plants and animals.
MOUSE GENETICS. Genetic studies in mice can often provide faster
identification of human disease genes than corresponding studies in humans. This
is because genes and diseases in mice are often closely similar to their human
counterparts, but the association between them can be studied more rapidly since
mice (unlike humans) can be bred rapidly and selectively. To capitalize on the
advantages of working with mice, the Company has built substantial expertise in
mouse genetics. This includes the development of proprietary markers, genetic
maps, advanced breeding strategies and a significant animal facility. In
combination with technologies adapted from the Company's activities in human
genetics, this expertise has allowed the Company relatively rapidly to identify
murine genes whose human counterparts may play significant roles in important
diseases. Examples of such genes and their human counterparts that the Company
has identified include the tub
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and db/OB-R genes, believed to be important in obesity. During 1997, Millennium
was issued a United States Patent covering the tub gene.
MICROBIAL GENETICS. Genetic and genomic studies of microbes, such as
bacteria and yeast, are important for two reasons. First, these studies may
result in the identification of genes essential for microbial growth, which
should provide attractive drug targets for new antibiotics for the treatment of
infectious diseases caused by such microbes. Second, such studies can help
determine the functions of human genes, many of which have counterparts in
microbial systems. In fact, the study of these microbial counterparts is
particularly useful because microbial genes are significantly easier to
understand and manipulate than human genes.
Millennium has developed considerable expertise in genetic investigation
and manipulation of a broad range of bacterial and fungal species, including
pathogens important for humans, animals and plants. The Company has employed
this expertise to identify a significant number of drug targets in its
antifungal and antibacterial research programs. During 1997, the Company was
issued a United States patent covering one of its novel approaches to antifungal
drug discovery.
NON-GENETIC APPROACHES
TRANSCRIPTIONAL PROFILING. Genes contain encoded information instructing
cells how to make proteins. Each gene encodes one protein. For that protein to
be made by a cell, the gene must first be transcribed into a copy known as
messenger RNA (mRNA). This transcript then directs synthesis of the encoded
protein in a process known as translation. Cells differ from one another because
each cell type makes a different spectrum of proteins - - and along the way, a
different population of mRNA transcripts. Similarly, diseased cells differ from
normal cells by virtue of the spectrum of proteins, and the population of
transcripts, which they produce. Comparison of transcript populations in normal
and diseased cells and tissues can therefore identify the transcripts, and thus
the genes, associated with a particular disease.
For this reason, Millennium has developed or accessed a number of powerful
approaches for examining and comparing transcript populations in different cells
and tissues representing normal and diseased conditions. Many of these
approaches involve conversion of mRNA transcripts into DNA copies known as
complementary DNA (cDNA), which is easier to handle than mRNA and can be
amplified by the polymerase chain reaction (PCR). The approaches include RADE, a
high-throughput method for comparing amplified cDNAs (and thus mRNAs) from
different samples, and the use of cDNA "microarrays" (multiple different cDNAs
placed in high-density arrays on solid surfaces) to determine whether samples of
interest contain corresponding mRNAs. Crucial to the success of these approaches
are customized
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software tools developed by Millennium for tracking experiments, generating
microarrays and capturing and analyzing data.
The Company has applied its transcriptional profiling technologies to
identify a number of genes with potentially significant roles in various
diseases. For example, the Company applied transcriptional profiling to identify
the gene that encodes melastatin, a protein which appears to suppress metastasis
in malignant melanomas.
HIGH-THROUGHPUT SEQUENCING. The information carried within genes to direct
the synthesis of proteins resides within the DNA sequences of those genes. Each
gene is part of a polymeric chain built from four nucleotide monomers
(represented by the letters A, C, G and T). The sequence of these monomers in
the chain specifies what protein should be made. Accordingly, to identify and
assign function to the large number of genes in the human and other genomes, it
is essential to have very high-capacity methods for determining, storing and
analyzing DNA sequence information.
Millennium has developed comprehensively automated processes for high-
throughput DNA sequencing as well as a proprietary suite of software tools for
the capture, storage and analysis of large volumes of DNA sequence data
(including Millennium's proprietary Sequence Explorer(TM) software package). The
Company uses these capabilities to support its multiple approaches to gene
discovery, including: positional cloning projects in human and mouse genetics
programs; sequencing of genomic regions surrounding known genes to identify
unknown relatives derived by gene-duplication events; and sequencing of cDNA
copies made from mRNAs extracted from various cells and tissues.
EXPRESSION CLONING. Among the most interesting proteins in any organism
are those that are secreted or that reside on cell surfaces. Secreted proteins
often carry signals from one cell/tissue to another. Cell-surface proteins often
serve as the receptors for such signals. Most currently approved biotherapeutics
are secreted proteins; many current small-molecule drugs exert their effects
through cell-surface receptors.
Millennium has developed high-throughput methodologies specifically to
clone genes that encode secreted and cell-surface proteins and is applying these
methodologies to identify such genes and proteins in significant numbers. For
example, Millennium has used these methodologies in its discovery of the gene
that encodes ob-r, the receptor for the hormone leptin, which is a fundamental
regulator of weight and appetite.
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FUNCTIONAL GENOMICS/DRUG TARGET VALIDATION
Genes discovered by the methods described above may already be implicated
in a disease or some other biological trait of interest. However, significant
additional study is often required in order to establish more precisely the
specific functions of these genes and the roles they play in the disease or
trait of interest. The process of ascribing function to genes is known as
functional genomics.
In a pharmaceutical project, the main purpose of functional genomics is to
validate specific genes or their products as appropriate targets for new drugs.
Such drug "target validation" requires a demonstration that modulation of the
function of the putative drug target gene (or its product) is likely to have a
beneficial therapeutic effect. For non-pharmaceutical projects, the specifics of
what is meant by "validation" will clearly be different, but the general
principle will remain the same - - a demonstration will be required that some
function or information essential for a successful commercial product can be
derived by the use, modulation or monitoring of the gene (or protein encoded by
the gene) for further development as a product.
Conversion of newly identified genes into validated drug targets or
product candidates is a key step in the overall process of genomics-based
product discovery. Efficiency and greater productivity at this stage can provide
a significant competitive advantage. Accordingly, Millennium has dedicated a
substantial portion of its research and development activities to functional
genomics and drug target validation.
One of the major challenges in functional genomics is quickly to reduce
the relatively large numbers of potential drug targets (or product candidates)
that typically emerge from a high-throughput gene-discovery program to a
relatively small number of high-priority candidates for further investigation.
Millennium addresses this challenge with a staged approach, starting with
high-throughput techniques that require relatively little effort per gene, then
gradually increasing the effort that it expends on each potential drug target as
the total number of drug targets decreases.
The high-throughput techniques used for initial prioritization include
computational biology and microarray-based transcriptional profiling. Candidates
which appear promising in these initial studies are then evaluated further by
approaches, such as histology-based expression profiling, pathway profiling and
cellular and animal models, until sufficient information has been gathered to
nominate one or more of these candidates as targets for drug discovery or, in
the case of non-pharmaceutical projects, as being suitable for further
development into products. These techniques are described in greater detail
below.
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COMPUTATIONAL BIOLOGY
With appropriate software tools, much may be inferred about the function
of a gene from its sequence. Information gathered about previously known genes
over many years by scientists from around the world can be accessed instantly,
and homologies identified between these and newly discovered genes which suggest
what functions may be ascribed to the latter. Of particular interest are
homologies suggesting that a newly discovered gene falls into the same class as
genes with known medical or commercial utility, such as those encoding the
receptors, ion channels and enzymes that are the targets of many current
small-molecule drugs.
Millennium's Sequence Explorer software provides powerful tools for
accessing and interpreting both public and private Millennium databases of DNA
sequence information. The Company is continually developing enhanced
computational capabilities for "mining" DNA sequence data in order to extract
the function of the gene (and its protein product) encoded by such DNA sequence.
BENCH BIOLOGY
EXPRESSION PROFILING. The pattern of expression of a newly discovered gene
- - - where and when it is transcribed and translated, in which cells and tissues
and under what circumstances - - provides vital clues to the function of that
gene. Expression patterns can be determined using a variety of approaches
directed towards either the transcription or the translation stage of
expression. Ideally, both stages should be monitored for two reasons. First, not
all mRNAs are translated, and it may be important to know which ones are and
which ones are not. Secondly, many proteins undergo significant
"post-translational" modifications after being synthesized. These modifications
cannot be detected by monitoring transcripts and often have crucial effects on
the activities of the proteins under investigation.
At the mRNA level, expression can be monitored in cells or tissue samples
using cDNA microarrays and other transcriptional profiling technologies, as
described above. Alternatively, transcripts can be localized more precisely to
specific cells and sub-cellular organelles by a technique known as in situ
hybridization, which involves the microscopic examination of tissue slices that
have been treated to highlight the presence and location of specific
transcripts.
Similar options are available for monitoring expression at the protein
level. The locations of proteins within tissue slices can be determined using
specially stained antibodies (a technique known as immunocytochemistry). In
addition, the population of proteins present in a cell or tissue extract can be
examined using "proteomics," technologies designed to identify all of the
different protein species within a cell or tissue sample and/or those protein
species which are present in one sample but not in another.
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Millennium's platform includes an integrated set of technologies for
investigating expression patterns at both the mRNA and the protein level,
including cDNA microarrays, in situ hybridization and immunocytochemistry. The
Company has also invested significant resources in building an extensive
collection of normal and diseased tissue samples in which the expression
patterns of genes of interest can be studied. These technologies and tissue
samples have played a significant role in the validation by Millennium of a
number of genes/gene products as targets for drug discovery. The Company is also
actively developing new proteomics technologies to ascertain differences in
expression at the level of translated proteins and/or post- translational
modification status.
PATHWAY PROFILING. Any given property of an organism usually reflects the
coordinated activity of a set of genes (proteins) acting in concert, rather than
the isolated activity of an individual gene (protein). Stated another way, most
processes within an organism take place via pathways in which signals or
metabolites are processed in a defined sequence by different proteins acting in
succession. Accordingly, each gene emerging from a discovery effort has a
two-fold significance. First, it may prove useful as a drug target (or product
candidate) in its own right. Secondly, it represents an entry point into a
pathway composed of additional, possibly superior, potential drug targets. To
take advantage of this latter possibility, appropriate technologies are required
for the identification of other proteins in the pathway, a process known as
"pathway profiling."
Millennium has developed various pathway profiling capabilities, including
the use of yeast two- and three-hybrid systems and BIAcore biosensors
(technologies which can detect and monitor interactions between different
proteins lying in a biochemical pathway) and the application of transcriptional
profiling to identify sets of genes transcribed in a coordinated manner, which
indicates that they may participate in a common biochemical pathway.
CELLULAR AND ANIMAL MODELS. Important information about the function of a
gene can be derived by arranging for that gene to be expressed in specific cells
or tissues, or in the organism as a whole, at levels higher or lower than usual.
For experiments of this type, Millennium has developed significant expertise in
the construction and utilization of specialized gene-delivery systems, and in
the generation of transgenic and knockout microbes and mice. A "transgenic"
organism is one carrying a gene from another species. A "knockout" organism is
one in which a particular gene has been disabled. The Company also has broad
experience in a variety of the biochemical and cell-biology assays required to
interpret such experiments.
LEAD DISCOVERY
HIGH-THROUGHPUT SCREENING. In the discovery process for small-molecule
drugs, gene products (that is, proteins) which have been validated as suitable
targets
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for therapeutic intervention are configured into screening systems for testing
large libraries of compounds to identify those capable of interacting with these
drug targets in a useful manner. Various skills are required for success in this
process. Each screen must be configured so that it has an easily detectable
readout, can be performed economically, is capable of high throughput, is robust
enough to process samples of widely differing purity and quality and has
appropriate sensitivity and specificity. Implementation of the screen then
requires diverse skills in sample tracking, automation, data capture and
analysis.
Millennium's technology platform incorporates a broad range of skills in
the configuration and implementation of high-throughput screens. The Company
currently performs all high-throughput screening for the antifungal and
antibacterial programs which are the subjects of its collaborations with Pfizer
and AHP as well as to screen proprietary Millennium drug targets.
CHEMICAL DIVERSITY. Also key to success in drug discovery is the
availability of large, diverse libraries of chemical compounds. Ideally, these
libraries encompass both synthetic and natural compounds, since both classes are
well represented in the current pharmacopoeia.
For its drug-discovery programs, Millennium has secured access to a broad
range of chemical compounds and natural products. The Company's sources of
synthetic chemicals include libraries made available by Lilly and AHP under the
terms of Millennium's collaborations with these companies (see " -- Strategic
Alliances -- Technology Alliances"), novel combinatorial libraries synthesized
at Millennium and compounds purchased from various sources.
The Company is currently expanding its efforts to generate additional
proprietary synthetic chemistry libraries. The Company believes that such
libraries will be particularly useful sources of pharmacologically active
compounds.
Millennium's sources of natural products include a proprietary collection
of over 50,000 fungal species collected from numerous sites around the world as
well as proprietary transgenic fungi. These transgenic fungi are readily
culturable fungi which the Company has engineered to synthesize compounds which
are normally made only in fungi that are difficult or impossible to culture.
These transgenic fungi provide Millennium with access to a rich diversity of
naturally occurring compounds which has not previously been accessible to the
pharmaceutical industry.
During 1997 the Company was issued a United States patent on an approach
for generating novel sources of natural compounds involving crossing two
incompatible strains of the fungus Aspergillus, resulting in synthesis of
compounds not found in either of the parent strains.
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INFORMATICS AND ADVANCED PROCESS TECHNOLOGIES. Successful application of
genomics to the discovery of new drugs and other products requires the
simultaneous deployment of multiple different technologies across a broad array
of experimental procedures. This multi-disciplinary approach presents numerous
challenges, ranging from the diversity and complexity of the overall process to
the sheer volume of data which must be captured and interpreted.
To address these challenges, Millennium places a heavy emphasis on the use
of advanced informatics and process technologies to integrate and accelerate the
many diverse activities of its genomics programs. Accordingly, the Company's
technology platform includes a number of custom-developed informatics tools that
enable users to capture, track and interpret large volumes of data from various
activities, such as genotyping, DNA sequencing and expression profiling, and to
incorporate data from both Millennium's own programs and published sources into
their analyses. The Company's technology platform also incorporates a high
degree of automation, controlled in many cases by proprietary software, and
advanced capabilities in analytical instrumentation such as fluorimetry and mass
spectrometry.
PHARMACEUTICAL DIVISION (MPHARMA)
OVERVIEW
Through the application of the Company's integrated platform of genomics
and related technologies, the Company is engaged through its MPharma division in
the discovery of novel drug targets and lead compounds which may be developed
into new small-molecule drugs for major human diseases. Such drugs are the
mainstay of the traditional pharmaceutical industry. Characteristically amenable
to formulation for oral administration, they are particularly appropriate for
the treatment of chronic diseases that often require the daily administration of
medications over many years.
In accordance with its overall commercialization strategy, the Company has
entered into a number of alliances focused on drug discovery with pharmaceutical
partners that have substantial resources and expertise in research, preclinical
and clinical development, regulatory issues and marketing. The Company intends
to pursue additional such alliances as appropriate.
DISEASE PROGRAMS
OBESITY
In the field of obesity, the Company is conducting gene identification and
drug target validation activities and has entered into a strategic alliance with
Roche. See " -- Strategic Alliances -- Disease Program Alliances -- Hoffmann-La
Roche Inc."
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Approximately 34 million individuals in the United States may be
classified as obese (greater than 20% above ideal body weight). This serious
medical condition has limited therapeutic alternatives and can increase the risk
of additional serious medical conditions, such as coronary heart disease,
certain cancers and type II diabetes. Although obesity is believed to have
multiple contributing causes, studies of identical twins suggest that genetic
factors are a principal cause of the disease.
The MPharma division is currently undertaking several projects in the
field of obesity, employing animal models, mouse genetics, human genetics and
other components of Millennium's technology platform. These have led to the
identification of a number of genes responsible for obesity in animal models or
strongly implicated in the disease, including: the gene encoding ob-r, the
receptor for the hormone leptin, a fundamental regulator of weight and appetite;
the gene encoding the uncoupling protein homologue (UCPH), which regulates
metabolism and energy expenditure; and the gene encoding the melanocortin
4-receptor (MC4-R), a G-protein coupled receptor which is an important regulator
of body weight. The MPharma division and Roche are currently conducting drug
target identification, validation and development programs with respect to these
and other genes. In addition, through collaborations with academic
investigators, MPharma is conducting human genetics studies in appropriate
populations in the American Midwest and the rural Anhui province of China.
In July 1996, the Company and Roche announced the acceptance into Roche's
small-molecule screening program of a drug target identified by Millennium, an
achievement for which Millennium received a milestone fee pursuant to its
strategic alliance agreement with Roche.
During 1997, the Company was awarded United States patents relating to the
tub and UCPH genes which were discovered in the Company's obesity program.
TYPE II DIABETES
In its type II diabetes research program, the Company is principally
employing a gene identification strategy based on human genetics and has entered
into a strategic alliance with Roche. See " -- Strategic Alliances -- Disease
Program Alliances -- Hoffmann-La Roche Inc."
Approximately 14 million persons in the United States are affected by type
II diabetes, also known as adult-onset or non-insulin dependent diabetes
mellitus (NIDDM). The disease is the seventh leading cause of death in the
United States. Studies of identical twins indicate that type II diabetes is
primarily due to genetic factors. This condition is a complex disorder involving
a combination of factors, including the inability of certain tissues to respond
to insulin and an inability of the pancreas to produce appropriate levels of
insulin.
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Millennium's human genetics studies in type II diabetes are designed to
identify disease genes involved in both of these disease processes. These
studies have led to the mapping of a gene, NIDDM2, which may be associated with
the development of a form of adult-onset diabetes linked to low insulin
secretion.
In November 1996, the Company and Roche announced the achievement of a
research milestone associated with the identification of a gene implicated in
the development of type II diabetes.
CARDIOVASCULAR DISEASE
The MPharma division's research program in cardiovascular disease includes
projects in atherosclerosis and congestive heart failure. The Company has
entered into a strategic alliance with Eli Lilly concerning these projects. See
" -- Strategic Alliances -- Disease Program Alliances -- Eli Lilly and Company."
Heart disease has a prevalence in the United States of approximately 18
million individuals. Its major cause is atherosclerosis. Risk factors for
atherosclerosis include gender, elevated cholesterol levels, smoking, high blood
pressure, diabetes mellitus and severe obesity. Studies indicate that a person's
genetic make-up, as indicated by a family history of heart disease, is the
single most significant risk factor for early onset of the disease. However, the
genetic basis of atherosclerosis remains largely unclear. Approximately 5
million Americans suffer from heart failure and an additional 500,000 cases are
diagnosed annually. The mortality rate from heart disease is extremely high. Few
effective therapies are available.
The MPharma division's program in atherosclerosis utilizes three different
approaches to novel gene discovery in atherosclerotic vascular disease: human
genetics, mouse genetics and transcriptional profiling. The human genetics
program, being conducted through collaborations with academic investigators,
aims to identify genes responsible for, respectively, early-onset vascular
disease and inherited lipid defects in children that promote atherosclerosis in
adulthood. The mouse genetics approach focuses on a knockout-mouse model of
atherosclerosis, with the goal of identifying genes that modify or protect
against developing the disease. The transcriptional profiling approaches include
an investigation of how biomechanical forces affect gene expression in cells
from the walls of blood vessels. This latter program has led to the discovery of
several genes which appear to play a role in protecting blood vessels from the
formation of atherosclerotic lesions. These genes have been the subject of
several scientific papers authored by Millennium and its collaborators,
including papers published in 1997 in The Proceedings of the National Academy of
Sciences and Cell.
The MPharma division initiated a program in congestive heart failure in
1997. In this program, MPharma is using proprietary cDNA technologies to
identify novel genes in critical pathways involved in the transition from
healthy to failing
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myocardium (a layer of muscle in the heart). In September 1997, Millennium and
Lilly expanded their alliance in cardiovascular disease to include congestive
heart failure.
INFLAMMATORY RESPIRATORY DISEASES
In the field of inflammatory respiratory diseases, the MPharma division is
conducting gene identification and drug target validation activities and has
entered into a strategic alliance with Astra. See " -- Strategic Alliances --
Disease Program Alliances -- Astra AB."
Asthma affects approximately 12 million individuals in the United States.
Current treatments for moderate to severe asthma, while effective in managing
symptoms of the disease, are known to have significant side-effects over the
long term. Although asthma has both genetic and environmental factors, a number
of studies have indicated that asthma is substantially attributable to a genetic
component.
The MPharma division currently is undertaking several projects in the
field of inflammatory respiratory diseases through human genetics, mouse
genetics and cDNA approaches. The human genetics program is being conducted in
appropriate populations in China and northern New England. The mouse genetics
and cDNA- based programs are focused on the identification of key genes that
control immunological conditions important in inflammatory respiratory diseases,
including asthma. In the mouse program, MPharma is also analyzing a strain of
mice with a defect in a pathway believed to be important for inflammatory
responses. In the cDNA-based program, RADE and expression cloning are being used
extensively to identify critical regulatory genes in inflammatory pathways. The
MPharma division has also established several animal disease models expressing
physiologic and inflammatory disease markers for use in both gene discovery and
gene validation. These programs are generating knowledge and information useful
in understanding both respiratory and non-respiratory inflammatory diseases.
ONCOLOGY
In the field of oncology, the Company is conducting gene identification
activities related to a variety of cancers, including prostate, breast and
colorectal cancer and melanoma, and has entered into a strategic alliance with
Lilly with respect to select areas within oncology, including prostate cancer
and multiple-drug resistance. See " -- Strategic Alliances -- Disease Program
Alliances -- Eli Lilly and Company."
Over one million new cancer cases are reported in the United States
annually. Cancers of all types result in over 500,000 deaths in the United
States each year, making cancer the second leading cause of death in the United
States. In addition to
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surgery and radiotherapy, there are nearly 50 FDA-approved drug therapies for
the treatment of a variety of cancers. Many of these therapies have severe
adverse side effects.
The MPharma division is currently undertaking several projects focusing on
the areas of hormone-refractory prostate cancer, multi-drug resistant tumors,
melanomas and breast cancer using both human genetics and cDNA approaches.
MPharma is also employing RADE and other transcriptional profiling technologies
to identify genes that function in the progression of a variety of different
types of cancer. The Company has entered into collaborations with major medical
centers to gain access to tumor samples. Millennium has identified drug target
candidates in multi-drug resistant tumors, and genes implicated in the
initiation and progression of melanomas. MPharma has commenced drug target
validation studies on these genes, including gene transfer into animal models of
cancer progression. The knowledge and information being generated in these
projects is relevant to cancers both within and outside the scope of the
Company's alliance with Lilly.
During 1997 the Company was issued two United States patents covering a
gene encoding melastatin, a protein which appears to suppress metastasis in
malignant melanomas.
DISEASES OF THE CENTRAL NERVOUS SYSTEM
In the field of central nervous system diseases, the Company is
principally employing human genetics to identify the genes responsible for
affective disorders and schizophrenia and has entered into a strategic alliance
with AHP. In addition, the Company is using cDNA approaches to identify genes
potentially implicated in the initiation and/or progression of generalized
depression, epilepsy and neurodegeneration. See " -- Strategic Alliances --
Disease Program Alliances -- American Home Products Corporation."
Bipolar affective disorder, also known as manic depression, affects at
least 2 million people in the United States, while the related disorder, common
depression, may affect up to 13 million persons. Siblings of individuals
affected with bipolar affective disorder appear tenfold more likely to develop
the disease than siblings in the general population, suggesting an underlying
genetic basis. Schizophrenia is a debilitating disease of the central nervous
system, characterized by severe cognitive impairment, which affects
approximately 2.5 million persons in the United States.
For its studies on the genetics of bipolar affective disorder, the MPharma
division is collaborating with academic investigators who have access to
appropriate populations. Genetic linkages have been identified in these
populations, and positional cloning efforts are in progress to identify the
disease genes which these linkages represent.
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In the area of schizophrenia and schizoaffective disorders, the MPharma
division is collaborating with a consortium of academic clinicians who have
access to populations of schizophrenia-prone families which have undergone
extensive clinical characterization. Genotyping of individuals in these
populations is in progress.
FUNGAL INFECTIONS
In the field of fungal infections, the MPharma division is engaged in the
identification and validation of new targets for antifungal drugs and in high-
throughput screening to identify potential lead compounds. MPharma is conducting
these activities in a collaboration with Pfizer. See " -- Strategic Alliances --
Disease Program Alliances -- Pfizer."
Approximately 2 million systemic fungal infections occur annually
worldwide. The proportion of hospital-acquired infections in the United States
due to fungi (as opposed to other pathogens) nearly doubled from 1980 to 1990,
from 6% to over 10% of all such infections. The increasing incidence of systemic
fungal infections is due in part to the growing number of patients whose immune
systems are compromised due to HIV infection, chemotherapy treatments, increased
use of immunosuppressive drugs or aging. Despite current approaches to
treatment, the mortality rate in patients with systemic fungal infections is
extremely high, ranging from 30% to 80%, depending on the disease.
Only two major classes of antifungal drugs are in use today, both of which
have significant inadequacies. One class of antifungal drugs, which includes
Amphotericin-B, while generally effective against Candida, Aspergillus, and
Cryptococcus, must be administered intravenously and has serious side effects in
many patients. The other major class of antifungal drugs is the azoles. Azoles
are well tolerated and available in orally active forms. However, they are
ineffective against important pathogenic species such as Aspergillus. Moreover,
strains of fungal infections that are resistant to the azoles have emerged,
particularly in patients with AIDS.
Using its expertise in fungal genetics and genomics and in lead-discovery
technologies, the Company has identified significant numbers of genes that are
essential for the growth of pathogenic fungi, prioritized these genes on the
basis of their likely suitability as targets for novel antifungal drugs,
configured screens to identify compounds active against the most promising
antifungal drug targets and conducted several high-throughput screens of large
chemical libraries. These activities have led to the discovery of several series
of lead compounds that are the subject of ongoing research.
During 1997 the Company was issued a United States patent relating to
novel methods for discovering inhibitors of fungal pathogenicity (the
disease-causing ability of fungi).
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BACTERIAL INFECTIONS
In the field of bacterial infections, the MPharma division is engaged in
the identification and validation of new targets for antibacterial drugs and in
high- throughput screening to identify potential lead compounds. MPharma has
entered into a collaboration with AHP in this field. See " -- Strategic
Alliances -- Disease Program Alliances -- American Home Products Corporation."
Infectious diseases are the third leading cause of death in the United
States, and account for 25% of all physician visits. Antibiotics are the second
most frequently prescribed class of drugs. Bacterial resistance to antibiotics
is a serious problem. For example, drug-resistant pneumococci cause 15,000 cases
of meningitis each year in the United States, 7,000 cases of sepsis/bacteremia,
150,000 cases of pneumonia and over 1 million cases of otitis media. Between 3
and 35% of pneumococcal illness is due to drug-resistant strains, depending on
geographical location and season of the year. Mortality and hospital length of
stay are at least doubled for resistant strains of bacterial organisms compared
with strains responsive to treatment. Only one antibiotic, vancomycin, remains
effective against hospital- acquired staphylococcal infections.
The MPharma division is applying its expertise in bacterial genetics and
genomics to identify significant numbers of genes that are essential for the
growth of pathogenic bacteria, prioritize these genes on the basis of their
likely suitability as targets for novel antibacterial drugs and pinpoint the
molecular targets of compounds identified by other means as having antibacterial
activity. These activities led to the acceptance by AHP during 1997 of three
novel targets for antibacterial drug discovery identified by MPharma.
HELICOBACTER PYLORI ("H. PYLORI")
H. pylori is a bacterium that is generally considered to be the primary
cause of gastric ulcer disease and chronic gastritis. H. pylori has been
implicated in cancer of the stomach as well as other cancers. Approximately 5
million people in the Unites States suffer from peptic ulcers, and a further 2.5
million from gastritis. It has been estimated that 50% of the United States
population is infected with H. pylori. Current antibiotic treatments for H.
pylori suffer from sub-optimal success rates, the development of resistance and
poor patient compliance.
The MPharma division is using proprietary bacterial gene-discovery
approaches to identify novel targets for antibiotic drugs designed to eradicate
H. pylori from infected individuals with enhanced efficacy and reduced
side-effects compared with current therapies. MPharma has configured and
conducted screens of novel drug targets and identified a number of potential
lead compounds. The
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MPharma division currently is seeking a pharmaceutical company partner to form
an alliance to continue this program.
OTHER PROGRAMS
In addition to the foregoing disease research programs, the MPharma
division is conducting additional research efforts in the fields of
osteoporosis, non-respiratory inflammation and autoimmune diseases.
STRATEGIC ALLIANCES
DISEASE PROGRAM ALLIANCES
The Company has entered into a total of seven strategic alliances in
connection with disease research programs being conducted by the MPharma
division. In calendar year 1997, the Company recognized total revenues of
approximately $46.3 million under these alliances. In each of these alliances,
Millennium generally has agreed not to conduct certain research, independently
or with any commercial third party, which is in the same field as that covered
by the alliance agreement. The Company has retained commercialization rights to
certain therapeutic and diagnostic applications of the discoveries resulting
from these funded research programs. See " -- Retained Commercialization
Rights."
Each of the agreements governing the strategic alliances for the MPharma
division's disease research programs is subject to certain contingencies
including, in certain instances, early termination rights. In the event that
specified additional research, product development and associated regulatory
milestones are achieved, the Company's strategic partners will be obligated to
make milestone payments to the Company. Generally, each of these agreements also
entitles the Company to royalties and/or a share of the profits on product
sales, which are payable for the longer of the life of the applicable patent or
a period of time specified in each agreement.
HOFFMANN-LA ROCHE INC.
In March 1994, the Company and Roche entered into a strategic alliance in
the fields of obesity and type II diabetes. Under the terms of a related stock
purchase agreement, F. Hoffmann-La Roche Ltd. (Basel, Switzerland), an affiliate
of Roche, made a $6.0 million equity investment in the Company. Roche also
agreed to fund a five-year program of obesity and type II diabetes research by
the Company. Unless extended, this program is due to terminate in March 1999.
The agreement provides Roche with exclusive worldwide royalty-bearing
rights to develop and commercialize small molecule therapeutics for obesity and
type II diabetes based on the Company's gene discoveries arising from the
collaboration. Roche has an exclusive royalty-bearing right to develop and
commercialize
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therapeutic proteins, antisense drugs, oligonucleotides and gene therapy for
obesity and type II diabetes outside of North America. Within North America,
Millennium has retained the right to develop and commercialize therapeutic
proteins, antisense drugs, oligonucleotides and gene therapy for obesity and
type II diabetes, subject to Roche's right to co-promote such products.
The agreement with Roche is subject to termination by Roche at any time
after the completion of the five-year research program in March 1999 on six
months' notice, as well as upon three months' notice upon a sale of majority
control of the Company, the sale of all or substantially all of Millennium's
assets or the sale of all or substantially all of Millennium's assets to which
the agreement with Roche relates.
ELI LILLY AND COMPANY
In October 1995, the Company and Lilly entered into a strategic alliance
in the field of atherosclerosis (the "Atherosclerosis Agreement") and in March
1996, Millennium and Lilly entered into a strategic alliance in select areas
within oncology (the "Oncology Agreement"). Under the terms of the
Atherosclerosis Agreement, Lilly made an $8.0 million equity investment in the
Company. Lilly also agreed to fund five-year programs of atherosclerosis and
cancer research by the Company starting in, respectively, October 1995 and March
1996. Lilly may elect to extend the funding of the Company's research in either
or both of these fields for a further three years. In September 1997, Lilly and
Millennium expanded the scope of the atherosclerosis research program to include
congestive heart failure.
Each of the agreements provides Lilly with exclusive worldwide
royalty-bearing rights to develop and commercialize small-molecule drugs and
therapeutic proteins and co-exclusive rights to develop and commercialize gene
therapy products for atherosclerosis, congestive heart failure or cancer based
on the Company's gene discoveries in the alliance research programs. Millennium
has retained exclusive rights to all diagnostic and antisense drug applications
arising from the strategic alliance research programs. In addition, Millennium
has granted Lilly a right of first negotiation with respect to research programs
in the cardiovascular area falling outside of the field of atherosclerosis.
Lilly has granted the Company non-exclusive rights to use select
combinatorial chemistry libraries and high-throughput screening technologies
controlled by Lilly to conduct a limited number of screens with the Company's
drug targets to identify product candidates for medical indications other than
specific medical indications designated by Lilly as being of strategic
importance to Lilly. The Company has exclusive worldwide rights to develop and
commercialize such product candidates. The Company will be obligated to pay
Lilly royalties on the sale of products identified by the Company using Lilly's
combinatorial chemistry libraries. The Company also has granted Lilly a
non-exclusive right to use certain genomics technologies (see " -- Strategic
Alliances -- Technology Alliances").
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Lilly originally had the right to terminate the Atherosclerosis Agreement
at any time after October 1998, provided that if Millennium had met specified
research objectives Lilly would be required to provide 90 days' notice and one
additional year of research funding. In September 1997, on the basis of
achievements in several key areas of the program during its first two years,
Lilly waived this right and accelerated its commitment to fund the program for a
full five years. Lilly has the right to terminate the Oncology Agreement at any
time after April 1999, again provided that if Millennium has met specified
research objectives Lilly would be required to provide 90 days' notice and one
additional year of research funding. Lilly also has the right to terminate its
research funding obligations under each agreement under various circumstances.
ASTRA AB
In December 1995, the Company and Astra entered into a strategic alliance
in the field of inflammatory respiratory diseases. Astra has agreed to fund a
five-year program of inflammatory respiratory diseases research by the Company.
Astra also may elect to extend its funding of the Company's research in this
field for an additional two years. Astra has the right to terminate the research
program in early 1999 in the event that Millennium fails to achieve specified
research objectives.
The agreement provides Astra with exclusive worldwide royalty-bearing
rights to develop and commercialize small-molecule drugs in the inflammatory
respiratory diseases field based on the Company's gene discoveries arising from
the collaboration. Millennium and Astra have agreed to explore opportunities to
jointly develop and commercialize therapeutic proteins identified in the
research program in the field of inflammatory respiratory diseases. In the
absence of an agreement on joint development, Astra has exclusive worldwide
rights for therapeutic proteins in the field of inflammatory respiratory
diseases delivered by oral inhalation or nasal administration. Millennium and
Astra also have agreed to explore opportunities to jointly develop and
commercialize antisense drugs identified in the research program. In the absence
of an agreement on joint development, Astra has exclusive worldwide rights in
the field of inflammatory respiratory diseases for antisense drugs delivered by
oral inhalation or nasal administration, as well as co-exclusive worldwide
rights in such field for antisense drugs not delivered by oral inhalation or
nasal administration. The Company also has granted Astra a non-exclusive right
to use certain genomics technologies. Millennium has retained exclusive rights
to all diagnostic and gene therapy applications arising from the strategic
alliance research program.
AMERICAN HOME PRODUCTS CORPORATION
CENTRAL NERVOUS SYSTEM DISORDERS. In August 1996, the Company entered into
a strategic alliance with American Home Products Corporation to discover and
develop targets and assays to identify small molecule drugs and vaccines for
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treatment and prevention of disorders of the central nervous system. The
strategic alliance with AHP consists of three major components: central nervous
system ("CNS") disease drug-discovery research, informatics technology and
support and technology exchange. See " -- Strategic Alliances -- Technology
Alliances."
The Company has initially focused the CNS drug discovery research program
on psychiatric disorders including anxiety, depression and schizophrenia, with
future programs envisioned in additional CNS disorders of high unmet medical
need, such as Alzheimer's disease, certain forms of stroke, substance abuse and
epilepsy. The Wyeth-Ayerst division of AHP will be responsible for the worldwide
development and marketing of any small molecule drugs and vaccines arising from
the collaboration for the prevention and treatment of CNS diseases and
disorders. The Company generally retains rights relating to the worldwide
development and marketing of antisense drugs and diagnostic products and
services arising from the collaboration. Millennium has granted a right of first
refusal to AHP with respect to further opportunities for the joint development
of non-vaccine therapeutic proteins and gene therapy products in the CNS field
identified in the research program.
ANTIBACTERIALS. Through its acquisition of ChemGenics in February 1997,
Millennium became engaged in a strategic alliance with AHP to discover novel
drug leads for treating bacterial infections in humans. Under the terms of the
alliance, AHP is funding and collaborating with Millennium on a five-year
program of antibacterial research which is due to conclude in November 2001.
During 1997, AHP accepted three antibacterial drug targets from Millennium
for drug candidate screening. As a result, AHP made a milestone payment to
Millennium for each drug target and a bonus payment for delivering three drug
targets in the first year of the alliance.
The alliance agreement provides AHP with exclusive worldwide
royalty-bearing rights to develop and commercialize small-molecule drugs arising
from the collaboration for human bacterial diseases other than H. pylori
infections. Commencing one year after the end of the research term, Millennium
will have certain rights to develop and commercialize Millennium or AHP products
arising from the collaboration if AHP is not developing a product from the
collaboration with the same activity profile.
AHP has the right to terminate the agreement if certain research
objectives have not been met by November 1999.
PFIZER
Through its acquisition of ChemGenics, Millennium also became engaged in a
strategic alliance with Pfizer to discover novel drug leads for treating fungal
infections in human. Under the terms of this alliance, Pfizer is funding and
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collaborating with Millennium on a four-year program of antifungal research
which is due to conclude in December 1999. Effective October 1997, Pfizer agreed
to expand the scope of the program for the remainder of its term.
The agreement provides Pfizer the option for a period ending one year
after the end of the research program to acquire exclusive royalty-bearing
worldwide rights to develop and commercialize products to treat human fungal
infections discovered as part of the collaboration. If the option is not
exercised for a particular candidate product and Pfizer is not developing
another product with a similar profile of activity arising from the
collaboration, Millennium will be permitted to develop and commercialize that
candidate itself or with third parties. If Millennium or a licensee of
Millennium sells any such product, a royalty payment to Pfizer may be required.
TECHNOLOGY ALLIANCES
To realize value from its investment in technology development, and to
access additional resources for such development, Millennium has agreed to
transfer components of its technology platform to its partners as part of
certain of its strategic alliances. These alliances are with companies operating
primarily in the pharmaceutical and plant agriculture industries. The Company
believes that its technology platform potentially is applicable to a
significantly broader range of life-science-based industries, including the
biotechnology, animal health, chemical and enzyme industries. Millennium is
actively pursuing additional technology alliances in these industries as well as
in the pharmaceutical industry.
LILLY, ASTRA, AHP
Millennium's alliances with Lilly, Astra and AHP in connection with,
respectively, atherosclerosis, inflammatory respiratory diseases and central
nervous system diseases each include a significant component of technology
transfer. In each case, Millennium has granted rights to use, and has undertaken
to transfer, certain genomics technologies to its partner, primarily
technologies for high-throughput sequencing, informatics and transcriptional
profiling. Millennium also made certain commitments to provide continuing
support for technology it has transferred. Under certain circumstances,
Millennium may receive royalties on certain products in whose discovery or
development Millennium technologies have played a role. See " -- Disease Program
Alliances."
The Company has obtained certain rights to screen its own drug targets
against small molecule compound libraries owned by AHP as part of a technology
exchange program with AHP. The Company has also obtained certain rights to use
high-throughput drug screening and combinatorial chemistry library technologies
from Lilly. See " -- Disease Program Alliances -- Eli Lilly and Company."
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MONSANTO
In October 1997, Millennium entered into a broad five-year collaborative
agreement with Monsanto relating to the application of genomics technologies in
Monsanto's life-science-based businesses. In connection with this agreement,
Monsanto has established a wholly-owned subsidiary, Cereon Genomics LLC
("Cereon"), which is based in Cambridge, Massachusetts. Millennium granted
Cereon and Monsanto an exclusive license to use Millennium's genomics
technologies in plant agriculture and certain aspects of dairy agriculture and
agreed to collaborate exclusively with Cereon and Monsanto in these fields.
Millennium agreed not to compete or grant licenses to others in these fields for
a period of ten years after the five-year term of the collaboration. The Company
also granted a non-exclusive license to Monsanto to apply Millennium's genomics
technologies outside of these fields.
Monsanto agreed to pay Millennium $118 million in up-front, licensing and
technology-transfer fees over the five-year term of the agreement, of which $38
million was paid in December 1997. The agreement also provides for further
payments by Monsanto to Millennium of up to $100 million over five years for
achieving mutually determined research objectives and for the payment of
royalties to Millennium on the sale of certain products originating from
research conducted by Cereon. Millennium was also granted non-exclusive rights
outside the field of agriculture to use certain discoveries and technologies
developed within Cereon and Monsanto.
Monsanto has the right to terminate the agreement in the event that a
company with sales exceeding $1 billion in plant agriculture and certain aspects
of dairy agriculture acquires more than a specified percentage of the combined
voting power of the outstanding securities of Millennium or acquires all or
substantially all of Millennium's assets.
FUNCTIONAL GENOMICS CONSORTIUM
In April 1997, the Company joined a corporate consortium with BMS and
Affymetrix to fund a five-year research program in functional genomics at the
Whitehead Institute/Massachusetts Institute of Technology Center for Genome
Research (the "Genome Center"). BMS is a major pharmaceutical company, and
Affymetrix is a biotechnology company focused on high-density microarray
technologies and their applications in genomics and genetics.
Under the terms of the agreements, BMS, Affymetrix and Millennium have
agreed to support a program of investigator-initiated research at the Genome
Center to develop the next generation of genomics technologies. The consortium
members have agreed to provide approximately $8 million per year for five years
to the Genome Center. In addition, Affymetrix and Millennium have agreed to
provide the
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Genome Center with access to certain of their technologies. In return, the
consortium members, including Millennium, will be entitled to certain license
rights to developments funded by the consortium or resulting from the use of
contributed technology.
RETAINED COMMERCIALIZATION RIGHTS
The Company has retained a broad range of rights to commercialize certain
therapeutic and diagnostic applications of discoveries resulting from the
disease- focused research programs which are funded by its strategic partners.
These retained rights fall broadly into three categories - - small-molecule
drugs, biotherapeutics and diagnostics.
In each of its strategic alliances, Millennium has retained the
co-exclusive right to use the molecular drug targets that result from the funded
research programs to identify and develop small-molecule drugs to treat medical
indications that fall outside of the field(s) covered by the alliance from which
the target originated. The Company is using a number of these drug targets and
retained rights as the basis for additional drug-discovery programs which it is
conducting by itself and may conduct with additional partners.
Millennium has also retained certain exclusive or co-exclusive rights to
develop and market therapeutic proteins and antibodies, vaccines and gene
therapy and antisense products stemming from discoveries made in the MPharma
division's disease-focused drug-discovery alliances. These rights have been
transferred to, and are being utilized by, the Company's MBio subsidiary.
Millennium has retained rights to develop and market diagnostic products
and services resulting from the research programs conducted by the MPharma
division under the strategic alliances with Roche, Lilly, Astra, AHP and Pfizer.
These rights are being transferred to the Company's MPMx subsidiary.
MILLENNIUM BIOTHERAPEUTICS, INC.
OVERVIEW
Millennium BioTherapeutics was organized in May 1997 to discover and
develop novel lead product candidates for new biotherapeutics to treat major
human diseases. As of March 1, 1998, MBio had approximately 60 full-time
employees and was contracting with other units within the Company for the
services of approximately 30 additional full-time equivalent employees. To
secure funding for its program in therapeutic proteins and to provide for the
further development and commercialization of discoveries made in this program,
MBio has entered into a strategic alliance with Lilly. MBio has retained the
right to develop and commercialize half of all the therapeutic products
discovered in this alliance. MBio
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also has retained all rights to therapeutic antibodies, vaccines and gene
therapy and antisense products as well as certain other protein product
opportunities. MBio intends to pursue further strategic alliances as
appropriate.
Biotherapeutics constitute a significant and growing class of therapeutic
products. Biotherapeutics are used to treat and prevent a variety of important
conditions, such as diabetes, anemia, complications of chemotherapy, heart
attacks, strokes and a broad range of infectious diseases. MBio believes that
genomics-based approaches will significantly accelerate the discovery and
development of novel biotherapeutic products for a wide range of diseases. MBio
further believes that it can gain a competitive advantage in the discovery and
development of such products through the application of Millennium's integrated
platform of genomics and related technologies.
The Company has generally agreed to assign to MBio all product development
opportunities and technology rights (including opportunities and rights arising
under the Company's collaboration agreements) in MBio's core area of interest
(i.e. biotherapeutic proteins and antibodies, vaccines, and gene therapy and
antisense products), and MBio has generally agreed to assign to the Company all
product development opportunities and technology rights outside MBio's core area
of interest. In addition, the Company has granted to MBio a royalty-free
non-exclusive, non- sublicensable license to the Company's process technologies
and a royalty-free, exclusive sublicensable license to certain product-related
technology, in each case within MBio's core area of interest. Similarly, MBio
has granted to the Company a royalty-free, non-exclusive, non-sublicensable
license to MBio's process technologies and a royalty-free, exclusive,
sublicensable license to certain product-related technology, in each case
outside MBio's core area of interest.
BIOTHERAPEUTICS
Biotherapeutics fall into five main product classes: therapeutic proteins,
therapeutic antibodies, gene therapy products, antisense products and vaccines.
Most therapeutic proteins now available are produced from cloned genes.
These proteins may represent biotechnology's biggest contribution to date to
human healthcare. Examples of therapeutic protein products include: Humulin(R)
(human insulin); Humatropin(R) (human growth hormone); Neupogen(R) (granulocyte
colony-stimulating factor, G-CSF); Epogen(R) (erythropoietin); Intron-A(R)
(interferon alpha); Betaseron(R) and Avonex(R) (interferon beta); Kogenate(R)
(factor VIII); Activase(R) (tissue plasminogen activator, TPA); and Ceredase(R)
(glucocerebrosidase).
Therapeutic proteins are often divided into two main categories. The first
category, which may be termed "replacement therapies," are proteins which
supplement or replace proteins whose absence or deficiency is an underlying
cause of the disease in question. Examples include glucocerebrosidase in
Gaucher's disease
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and factor VIII in hemophilia. The second category, which may be termed
"pharmacologic therapies," are proteins which stimulate natural processes within
the body for therapeutic effect, but whose absence is not an underlying cause of
the disease. Examples of pharmacologic therapies include G-CSF, which stimulates
the regeneration of neutrophils following cancer chemotherapy, thereby
protecting patients against infection, and TPA, which stimulates the breakdown
of dangerous blood clots in heart-attack and stroke patients. MBio believes that
genomics technologies will enable the identification of many new potential
products in both of these categories.
Therapeutic uses of antibodies are based on the unique ability of
antibodies to recognize and bind potently to specific molecular shapes. In some
cases, the antibody targets a protein or process in the body which will
otherwise have adverse effects. For example, by blocking the aggregation of
platelets, ReoProR inhibits potentially dangerous blood clotting after
angioplasty. In other cases, the antibody binds specifically to the surface of
unwanted cells, such as tumor cells, and initiates the destruction of these
cells by the body's immune system. In an alternative but similar approach, a
toxin or radioactive label is coupled with the antibody and used to destroy the
unwanted cells. MBio believes that genomics technologies will enable the
identification of a new generation of targets whose neutralization or
recognition by antibodies could have a beneficial therapeutic effect.
Gene therapy consists of the administration to a patient of a gene that
encodes a protein having a therapeutic benefit. Gene therapy may have potential
advantages in situations in which there is a need for prolonged administration
of therapeutic proteins or for their delivery only to defined sites within the
body. For example, a protein that is chronically deficient in a particular
disease might be provided by relatively infrequent administration of the gene
encoding that protein, rather than by frequent intravenous or subcutaneous
administration of the purified protein. Alternatively, a disease might most
appropriately be treated by localized administration of a specific protein to a
particular organ system, which is difficult to achieve with injectable proteins
but expected to be achievable by gene therapy. MBio believes that genomics
technologies will be successful in enabling the identification of many genes
that will be good candidates for use in gene therapy products.
Antisense therapy can be viewed as the opposite of gene therapy. Instead
of providing a gene that encodes a protein whose effect is beneficial, the goal
of antisense therapy is to block the activity of a gene that encodes a protein
whose effect is harmful. The gene's activity is blocked using a synthetic DNA-
or RNA-like molecule which by virtue of its sequence is capable of binding to
mRNA transcripts copied from the gene. This binding prevents translation of the
mRNA, and thereby inhibits synthesis of the harmful protein. Genomics
technologies have the capability to identify genes and transcripts whose
activities it would be beneficial to block. Such genes and transcripts represent
potential targets for antisense therapies.
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A vaccine is a preparation which sufficiently resembles a pathogen to
provoke an immune response, but which does not cause disease. Vaccination primes
the immune system to mount a vigorous response upon subsequent exposure to the
pathogen in question, preventing development or progression of the disease that
the pathogen causes. Historically, the main targets of vaccines have been
infectious diseases. Accordingly, the target pathogens have been viruses and
bacteria, such as poliovirus and the bacteria which cause diphtheria, pertussis
and tetanus. More recently there has been a strong interest in developing both
preventive and therapeutic cancer vaccines, for which the target "pathogens" are
cancer cells. Whatever the nature of the pathogen, proteins that are present on
its exterior surface and unique to the pathogen have the potential to provoke
pathogen-specific immune responses. Such proteins therefore represent potential
constituents of vaccines. MBio believes that genomics technologies will be
useful in identifying such proteins.
DISCOVERY PROGRAMS
Discovery research efforts at MBio are currently focused on two major
product categories - - therapeutic proteins and therapeutic antibodies. In the
field of therapeutic proteins, MBio has entered into a strategic alliance with
Lilly. See " -- Strategic Alliances -- Eli Lilly and Company." MBio is not
currently engaged in efforts directed specifically to the discovery of gene
therapy, antisense or vaccine products, although it anticipates initiating
programs in these areas in the future.
MBio's alliance with Lilly is directed toward the discovery of novel
therapeutic proteins, in particular novel members of the families to which
existing "pharmacologic therapy" proteins belong, such as hormones, cytokines
and growth factors. The program utilizes approaches based on cDNA sequencing,
expression cloning, transcriptional profiling and genomic sequencing for gene
discovery. MBio's strategy for determining biological function is to move as
rapidly as possible from gene discovery to in vivo evaluation of gene biology.
Accordingly, MBio employs high-throughput biological validation approaches, such
as informatics and expression profiling in diseased tissues, followed by
medium-throughput approaches, such as in vivo over-expression of genes of
interest in mice. As necessary, MBio applies lower- throughput approaches, such
as generation of transgenic and/or knock-out mice and production of protein
supplies for cell biology assays. MBio has discovered and is engaged in research
on a number of therapeutic protein candidates.
MBio also has identified and expects to continue to identify potential
targets for therapeutic antibodies as part of its discovery effort for
therapeutic proteins. The approaches being used by MBio in this area to identify
drug targets include transcriptional profiling in diseased tissues. MBio is also
developing high-throughput technologies for functional validation of potential
therapeutic antibodies.
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STRATEGIC ALLIANCES
ELI LILLY AND COMPANY. In May 1997, MBio and Lilly entered into a
strategic alliance in the field of therapeutic proteins. Under the terms of this
alliance, Lilly and MBio each provides half of the funding for a research
program at MBio to discover therapeutic proteins, and each receives exclusive
rights to half of the therapeutic proteins discovered. Therapeutic antibodies
and certain other proteins are excluded from the alliance. In conjunction with
the formation of this alliance, Lilly made an equity investment of $20 million
in MBio, for which it received approximately 18% of MBio's capital stock. In the
event that specified research, product development and associated regulatory
milestones are achieved by Lilly in its development of proteins resulting from
the alliance, Lilly will be obligated to make milestone payments to MBio. Lilly
also will be obligated to pay royalties to MBio on the sale of certain
therapeutic products that may result from the alliance.
Candidate therapeutic proteins identified in the jointly-funded research
program which meet certain specified criteria become available for selection by
either Lilly or MBio for further development. Each company is entitled to select
an equal number of the proteins from the pool of qualified candidates, with the
companies taking alternating turns to select candidates for further development.
Each company is under obligations of diligence to develop each protein it has
selected. Any protein which is not diligently developed may be returned to the
selection pool, or be transferred to the other partner. Each company has
exclusive worldwide rights, sub- licensable under certain conditions, and
royalty-bearing in the case of Lilly, to develop and commercialize therapeutic
proteins it has selected. MBio and Lilly each has royalty-bearing worldwide
rights to use proteins from the jointly funded program as drug targets to
discover small-molecule drugs. MBio has transferred these rights to Millennium
for use by the MPharma division.
Lilly has the right to terminate the research program on each of its third
and its fourth anniversary upon at least 120 days' written notice. Either party
may terminate the agreement at any time upon 30 days' written notice if majority
control of the other party is acquired by any pharmaceutical or other health
care company.
MILLENNIUM PREDICTIVE MEDICINE, INC.
OVERVIEW
Millennium Predictive Medicine was organized in September 1997 to discover
and develop novel products and services for pharmaceutical companies, diagnostic
companies and healthcare providers seeking to optimize the prevention,
diagnosis, treatment and management of diseases. As of March 1, 1998, MPMx had
approximately 10 full-time employees. MPMx initially is focusing its efforts in
two areas, pharmacogenomics and Diagnomics. MPMx intends to seek strategic
alliances in each of these areas.
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Despite tremendous advances during the twentieth century, much medical
care is still suboptimal. Many diseases are diagnosed using tests which provide
only a snapshot of current symptoms, rather than a predictive assessment of
underlying causes. In addition, many diseases are treated with drugs which,
while safe and effective in some patients, may be ineffective and even dangerous
in others. The Company believes that genomics and related technologies can make
a fundamental contribution to the optimization of medical care by providing
tests which report informatively on the underlying causes and likely outcomes of
diseases and predict accurately the responses of individual patients to drugs.
The Company further believes that MPMx can gain a competitive advantage in
developing such tests and related services through the application of
Millennium's integrated platform of genomics and related technologies.
Diagnostic products and services generally have shorter product
development and regulatory approval time than therapeutic products. Therefore,
Millennium believes that products and services developed by MPMx may be among
the first arising from the Company's genomics programs to generate sales
revenues.
PHARMACOGENOMICS
Different people often respond in different ways to the same drug. A drug
which is safe and effective in one patient may be toxic and ineffective in
another. MPMx believes that such differences in response reflect genetic
differences between the individuals concerned. Pharmacogenomic studies seek to
establish correlations between specific genetic variations and specific
responses to drugs. By establishing such correlations, pharmacogenomics may
permit both new and existing drugs to be targeted to those patients in which
they are most likely to be both effective and safe. MPMx therefore expects that
the pharmacogenomics products and services it is developing will enable
pharmaceutical companies to accelerate clinical trials, improve the success rate
of such trials and realize significant extra value from existing drugs and
failed clinical development candidates. MPMx further expects that these products
and services will allow healthcare organizations to provide improved patient
care at the same or lower cost.
DIAGNOMICS
Many current diagnostic tests are directed towards the symptoms, rather
than the causes, of the diseases they are used to monitor. As a result, these
tests generally provide information only about a patient's current condition. In
contrast, Diagnomics are intended to be genomics-derived molecular diagnostics
which assess the underlying causes of diseases rather than just their symptoms.
In MPMx's view, Diagnomics will provide information with inherent prognostic,
therapeutic and economic implications, enabling a shift in medical care towards
planned and cost-effective treatment of the underlying causes of disease. The
initial focus for MPMx's
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Diagnomics program will be cancer, chemotherapy, cardiovascular and CNS
disorders.
MILLENNIUM INFORMATION, INC.
MInfo was incorporated in September 1997 to use the Company's integrated
platform of genomics and related technologies to generate and integrate diverse
biomedical data in order to provide high-value information products and services
to the healthcare industry. MInfo is currently in the process of hiring its
initial staff. For its first generation of products and services, MInfo expects
to integrate genomics information with data linking transcriptional and protein
profiles to small molecules. The Company believes that this integrated
information will have significant commercial value in the pharmaceutical and
other healthcare industries.
RESEARCH AND DEVELOPMENT
The Company's total research and development expenses were $17,838,000,
$34,803,000 and $74,828,000 for 1995, 1996 and 1997, respectively. Collaborative
research and development revenues totalled $22,880,000, $31,764,000 and
$89,933,000 in 1995, 1996 and 1997, respectively.
SIGNIFICANT CUSTOMERS
Substantially all of the Company's revenues are derived from its strategic
alliances. In 1997, revenues from the Company's strategic alliances with
Monsanto, Lilly, AHP and Roche accounted for approximately 42%, 18%, 17% and
11%, respectively, of the Company's total revenues. The Company has three
alliances with Lilly and two alliances with AHP. A loss of any of these
strategic alliance partners could have a material adverse effect on the
Company's business, financial condition and results of operations. See " --
Strategic Alliances -- Disease Program Alliances" and " -- Technology Alliances"
and " -- Factors That May Affect Results -- Reliance on Strategic Partners."
PATENTS AND PROPRIETARY RIGHTS
As of March 1, 1998, Millennium and its subsidiaries had more than 200
pending U.S. and international patent applications and seven issued U.S.
patents. The Company seeks United States and international patent protection for
the drug leads, genes and proteins it discovers, as well as therapeutic and
diagnostic products and processes, drug screening methodologies, transgenic
animals and other inventions based on such drug leads or genes. The Company's
commercial success will depend in part on obtaining such patent protection. The
Company also intends to seek patent protection or rely upon trade secret rights
to protect certain other technologies which may be used to discover and
characterize drug leads, genes and proteins and which may be used to develop
novel therapeutic and diagnostic products and processes.
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The patent positions of pharmaceutical, biopharmaceutical and
biotechnology companies, including Millennium, are generally uncertain and
involve complex legal and factual questions. There can be no assurance that any
of the Company's pending patent applications will result in issued patents, that
the Company will develop additional proprietary technologies that are
patentable, that any patents issued to the Company or its strategic partners
will provide a basis for commercially viable products or will provide the
Company with any competitive advantages or will not be challenged by third
parties, or that the patents of others will not have an adverse effect on the
ability of the Company to do business. In addition, patent law relating to the
scope of claims in the technology fields in which the Company operates is still
evolving. The degree of future protection for the Company's proprietary rights,
therefore, is uncertain. Furthermore, there can be no assurance that others will
not independently develop similar or alternative technologies, duplicate any of
the Company's technologies, or design around the patented technologies developed
by the Company. In addition, the Company could incur substantial costs in
litigation if it is required to defend itself in patent suits brought by third
parties or if it initiates such suits.
The Company has applied for patent protection for novel genes, partial
gene sequences ("ESTs") of novel genes and novel uses for known genes identified
through its research programs. There is substantial uncertainty regarding the
patentability of ESTs or full-length genes absent biological data demonstrating
functional relevance. Based on recent technological advances in gene sequencing
technology, a number of groups other than the Company are attempting to rapidly
identify ESTs and full-length genes, whose functions have not been
characterized. Washington University, for example, is currently identifying ESTs
through partial sequencing pursuant to funding provided by Merck & Co., Inc.,
and depositing the ESTs identified in a public database. The public availability
of EST information prior to the time the Company applies for patent protection
on a corresponding full-length gene could adversely affect the Company's ability
to obtain patent protection with respect to such gene. The Company routinely
conducts searches of publicly available databases to determine whether other
parties have previously cloned ESTs corresponding to the various ESTs and
full-length genes discovered by the Company. To the extent any patents issue to
other parties on such partial or full-length genes, the risk increases that the
potential products and processes of the Company or its strategic partners may
give rise to claims of patent infringement.
Others may have filed and in the future are likely to file patent
applications covering genes or gene products that are similar or identical to
those of the Company. No assurance can be given that any such patent application
will not have priority over patent applications filed by the Company. Any legal
action against the Company or its strategic partners claiming damages and
seeking to enjoin commercial activities relating to the affected products and
processes could, in addition to subjecting the Company to potential liability
for damages, require the Company or its strategic partner to obtain a license in
order to continue to
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manufacture or market the affected products and processes. There can be no
assurance that the Company or its strategic partners would prevail in any such
action or that any license required under any such patent would be made
available on commercially acceptable terms, if at all. The Company believes that
there may be significant litigation in the industry regarding patent and other
intellectual property rights. If the Company becomes involved in such
litigation, it could consume a substantial portion of the Company's managerial
and financial resources.
There is substantial uncertainty concerning whether human clinical data
will be required for issuance of patents for human therapeutics. If such data is
required, the Company's ability to obtain patent protection could be delayed or
otherwise adversely affected. Although the United States Patent and Trademark
Office ("USPTO") issued new utility guidelines in July 1995 that address the
requirements for demonstrating utility for biotechnology inventions,
particularly for inventions relating to human therapeutics, utility will be
determined on a case-by-case basis. Moreover, there can be no assurance that the
USPTO's position will not change with respect to what is required to establish
utility for gene sequences and products and methods based on such sequences.
The Company relies upon trade secret protection for its confidential and
proprietary information. The Company believes that it has developed proprietary
technology for use in gene discovery and characterization, including proprietary
genetic marker sets, proprietary software (including proprietary software for
the capture, storage and analysis of DNA and protein sequence data) and an
integrated informatics system. The Company has not sought patent protection for
these technologies. In addition, the Company has developed databases of
proprietary gene sequences and biological information which are updated on an
ongoing basis. The Company has taken security measures to protect its data and
continues to explore ways to further enhance the security for its data. There
can be no assurance, however, that such measures will provide adequate
protection for the Company's trade secrets or other proprietary information.
While the Company requires employees, academic collaborators and consultants to
enter into confidentiality agreements, there can be no assurance that
proprietary information will not be disclosed, that others will not
independently develop substantially equivalent proprietary information and
techniques or otherwise gain access to the Company's trade secrets or disclose
such technology, or that the Company can meaningfully protect its trade secrets.
The Company's academic collaborators have certain rights to publish data
and information in which the Company has rights. While the Company believes that
the limitations on publication of data developed by its collaborators pursuant
to its collaboration agreements will be sufficient to permit the Company to
apply for patent protection, there is considerable pressure on academic
institutions to publish discoveries in the genetics and genomics fields. There
can be no assurance that such
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publication would not affect the Company's ability to obtain patent protection
for some inventions in which it may have an interest.
The Company is a party to various license agreements which give it rights
to use certain technologies in its research and development processes. There can
be no assurance that the Company will be able to continue to license such
technology on commercially reasonable terms, if at all. Failure by the Company
to maintain rights to such technology could have a material adverse effect on
the Company's business, financial condition and results of operations.
GOVERNMENT REGULATION
The Company is applying its technologies to the discovery and development
of therapeutic and diagnostic products including: small-molecule drugs,
biotherapeutic proteins and antibodies, vaccines, gene therapy and antisense
products and genomic-based and proteomic-based diagnostic and pharmacogenomic
products. The Company and these proposed products are subject to comprehensive
regulations by the FDA in the United States and by comparable authorities in
other countries. These regulatory authorities and other federal, state, and
local entities will regulate, among other things, the preclinical and clinical
testing, safety, effectiveness, approval, clearance, manufacture, labeling,
marketing, export, storage, record keeping, advertising, and promotion of the
Company's proposed products.
FDA approval or clearance of the Company's proposed products, including a
review of the manufacturing processes and facilities used to produce such
products, will be required before such products may be marketed in the United
States. The process of obtaining approvals or clearance from the FDA can be
costly, time consuming, and subject to unanticipated delays. There can be no
assurance that approvals or clearances of the Company's proposed products,
processes, or facilities will be granted on a timely basis, or at all. Any
failure to obtain or delay in obtaining such approvals or clearances would
adversely affect the ability of the Company to market its proposed products.
Moreover, even if regulatory approval or clearance is granted, such approval or
clearance may include significant limitations on indicated uses for which a
product could be marketed and could be subject to withdrawal under certain
circumstances.
Any diagnostic testing products that the Company may develop will be
regulated in the United States as medical devices. Prior to introduction into
interstate commerce, medical devices must be found "substantially equivalent" to
a legally marketed Class I or Class II device or to a Class III device for which
the FDA has not required premarket approval. If a manufacturer cannot
demonstrate substantial equivalence in its premarket notification submission,
the manufacturer will be required to submit a premarket approval application or
PMA, which generally requires preclinical and clinical trial data, to prove the
safety and effectiveness of the device. Certain devices may be exempt from
premarket notification, but other
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regulatory requirements will apply, including the Food, Drug and Cosmetic Act's
general controls, for example, the Quality System Regulations. Permission to
market may be suspended or withdrawn if compliance with regulatory standards is
not maintained or if problems occur following initial marketing.
The process required by the FDA before the Company's drug or biological
products may be approved for marketing in the United States generally involves
(i) preclinical laboratory and animal tests, (ii) submission to the FDA of an
IND, which must become effective before clinical trials may begin, (iii)
adequate and well- controlled human clinical trials to establish the safety and
efficacy of the product for its intended indication, (iv) submission to the FDA
of a marketing application and (v) FDA review of the marketing application in
order to determine, among other things, whether the product is safe and
effective for its intended uses. There is no assurance that the FDA review
process will result in product approval on a timely basis, or at all.
An IND is a submission which the sponsor of a clinical trial of an
investigational new drug or biological product (such as a vaccine) must make to
the FDA, and which must become effective before clinical trials may commence.
The IND submission must include, among other things, a description of the
sponsor's investigational plan; protocols for each planned study; chemistry,
manufacturing, and control information; pharmacology and toxicology information;
and a summary of previous human experience with the investigational drug or
biological product.
A New Drug Application ("NDA") is an application to the FDA to market a
new drug. A Biologics License Application ("BLA") is an application to the FDA
to market a biological product. An NDA or BLA, depending on the submission, must
contain, among other things, information on chemistry, manufacturing controls
and potency and purity; nonclinical pharmacology and toxicology; human
pharmacokinetics and bioavailability; and clinical data. The new drug or
biologic may not be marketed in the United States until the FDA has approved the
NDA or BLA, as the case may be. In addition, for both NDAs and BLAs, the
application will not be approved until the FDA conducts a manufacturing
inspection and approves the applicable manufacturing process for the drug or
biologic.
Preclinical tests include laboratory evaluation of product chemistry and
animal studies to gain preliminary information about a product's pharmacology
and toxicology and to identify any safety problems that would preclude testing
in humans. Products must generally be manufactured according to cGMP and
preclinical safety tests must be conducted by laboratories that comply with FDA
regulations regarding good laboratory practices. The results of the preclinical
tests are submitted to the FDA as part of an IND and are reviewed by the FDA
prior to the commencement of human clinical trials. Unless the FDA objects to,
or makes comments or raises questions concerning, an IND, the IND will become
effective 30 days following its receipt by the FDA and initial clinical studies
may begin, although
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companies often obtain affirmative FDA approval before beginning such studies.
There can be no assurance that submission of an IND will result in FDA
authorization to commence clinical trials.
Clinical trials involve the administration of the investigational new drug
or biologic to healthy volunteers and to patients under the supervision of a
qualified principal investigator. Clinical trials must be conducted in
accordance with the FDA's Good Clinical Practice requirements under protocols
that detail, among other things, the objectives of the study, the parameters to
be used to monitor safety, the effectiveness criteria to be evaluated and a
statistical plan to evaluate the study results. Each protocol must be submitted
to the FDA as part of the IND. Further, each clinical study must be conducted
under the authority of an Institutional Review Board ("IRB"). The IRB will
consider, among other things, ethical factors, the safety of human subjects, the
possible liability of the institution and the informed consent disclosure which
must be made to participants in the clinical trial.
Clinical trials are typically conducted in three sequential phases,
although the phases may overlap. During Phase I, when the drug or biologic is
initially administered, often to healthy human subjects, the product is tested
for safety, dosage tolerance, absorption, metabolism, distribution, and
excretion. Phase II involves studies in a limited patient population to (i)
evaluate preliminarily the efficacy of the product for specific, targeted
indications, (ii) determine dosage tolerance and optimal dosage, and (ii)
identify possible adverse effects and safety risks. When a new product is found
to have an effect and to have an acceptable safety profile in Phase II
evaluation , Phase III trials are undertaken in order to further evaluate
clinical efficacy and to further test for safety within an expanded patient
population. The FDA may suspend clinical trials at any point in this process if
it concludes that clinical subjects are being exposed to an unacceptable health
risk.
The results of the preclinical studies and clinical studies, the chemistry
and manufacturing data, and the proposed labeling, among other things, are
submitted to the FDA in the form of an NDA or BLA, approval of which must be
obtained prior to commencement of commercial sales. The FDA may refuse to accept
the NDA or BLA for filing and substantive review if certain administrative and
content criteria are not satisfied, and even after accepting the NDA or BLA for
review, the FDA may require additional testing or information before approval of
the NDA or BLA. In any event, the FDA must deny an NDA or BLA if applicable
regulatory requirements are not ultimately satisfied. Moreover, if regulatory
approval of a product is granted, such approval may be made subject to various
conditions, including post-marketing testing and surveillance to monitor the
safety of the product, or may entail limitations on the indicated uses for which
it may be marketed. Finally, product approvals may be withdrawn if compliance
with regulatory standards is not maintained or if problems occur following
initial marketing.
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In November 1997, Congress amended the Food and Drug Modernization Act of
1997 and eliminated certain previously required filings including Product
License Applications (PLAs), which were previously required to market biologic
products, and Establishment License Applications (ELAs), which were previously
required to obtain biologic manufacturing establishment licenses. All biologic
products are now subject only to the BLA process. The FDA is currently
undertaking to further develop and define the regulations for BLAs. Although the
FDA's intent in promulgating new regulations for biologics has been, in part, to
lessen the burdens of the regulatory approval process, there can be no assurance
that any new regulations, if applicable to the Company's proposed products, will
have the intended effect of reducing review times.
Both before and after approval or clearance is obtained, a product, its
manufacturer, and the sponsor of the marketing application for the product are
subject to comprehensive regulatory oversight. Violations of regulatory
requirements at any stage, including the preclinical and clinical testing
process, the approval or clearance process, or thereafter (including after
approval or clearance) may result in various adverse consequences, including FDA
delay in approving, clearing or refusal to approve or clear a product,
withdrawal of an approved or cleared product from the market and/or the
imposition of criminal penalties against the manufacturer and/or sponsor. In
addition, later discovery of previously unknown problems may result in
restrictions on such product, manufacturer, or sponsor, including withdrawal of
the product from the market. Also, new government requirements may be
established that could delay or prevent regulatory approval or clearance of the
Company's products under development.
Whether or not FDA approval has been obtained, approval of a therapeutic
product by comparable government regulatory authorities in foreign countries
must be obtained prior to marketing such product in such countries. The approval
procedure varies from country to country, and the time required may be longer or
shorter than that required for FDA approval. Although there are some procedures
for unified filing for certain European countries, in general, each country has
its own procedures and requirements. The Company does not currently have any
facilities or personnel outside the United States.
In addition to regulations enforced by the FDA, the Company also is
subject to regulation under the Occupational Safety and Health Act, the
Environmental Protection Act, the Toxic Substances Control Act, the Resource
Conservation and Recovery Act and other present and potential future federal,
state or local regulations. The Company's research and development involves the
controlled use of hazardous materials, chemicals and various radio active
compounds. Although the Company believes that its safety procedures for storing,
handling, using an disposing of such materials comply with the standards
prescribed by applicable regulations, the risk of accidental contaminations or
injury form these materials cannot be completely eliminated. In the event of
such an accident, the Company could be held liable for
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any damages that result and any such liability could have a material adverse
effect of the Company.
COMPETITION
Millennium faces, and will continue to face, intense competition from
organizations such as large pharmaceutical, biotechnology, and diagnostic
companies, as well as academic and research institutions and government
agencies. The Company is subject to significant competition from organizations
that are pursuing the same or similar technologies as those which constitute the
Company's technology platform and from organizations that are pursuing
pharmaceutical or diagnostic products that are competitive with the Company's
potential products. Most of the organizations competing with the Company have
greater capital resources, research and development staffs and facilities, and
greater experience in drug discovery and development, obtaining regulatory
approval and pharmaceutical product manufacturing and marketing capabilities
than the Company.
In addition, research in the field of genomics is highly competitive.
Competitors of the Company in the genomics area include a number of public and
private companies, including major pharmaceutical companies. Universities and
other research institutions, including those receiving funding from the
federally funded Human Genome Project, also compete with Millennium. A number of
entities are attempting to rapidly identify and patent randomly sequenced genes
and gene fragments, typically without specific knowledge of the function of such
genes or gene fragments. In addition, certain other entities are pursuing a gene
identification, characterization and product development strategy based on
positional cloning. The Company's competitors may discover, characterize or
develop important genes in advance of Millennium, which could have a material
adverse effect on any related Millennium disease research program. The Company
also faces competition from these and other entities in gaining access to DNA
samples used in its research and development projects. The Company expects
competition to intensify in genomics research as technical advances in the field
are made and become more widely known.
The Company relies on its strategic partners for support in its disease
research programs and intends to rely on its strategic partners for preclinical
evaluation and clinical development of its potential products and manufacturing
and marketing of any products. Each of the Company's strategic partners is
conducting multiple product development efforts within each disease area that is
the subject of its strategic alliance with the Company. Generally, the Company's
strategic alliance agreements do not restrict the strategic partner from
pursuing competing development efforts. Any product candidate of the Company,
therefore, may be subject to competition with a potential product under
development by a strategic partner.
EMPLOYEES
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As of March 1, 1998, the Company and its subsidiaries had approximately
520 full-time employees, of whom approximately 145 hold Ph.D. or M.D. degrees
and approximately 120 hold other advanced degrees, approximately 390 are engaged
in research and development activities and approximately 130 are engaged in
business development, finance, operations support and administration. The
Company and its subsidiaries currently plan to hire up to approximately 200
additional employees by the end of 1998.
FACTORS THAT MAY AFFECT RESULTS
This Annual Report on Form 10-K contains forward-looking statements. For
this purpose, any statements contained herein that are not statements of
historical fact may be deemed to be forward-looking statements. Without limiting
the foregoing, the words "believes," "anticipates," "plans," "expects,"
"intends," and similar expressions are intended to identify forward-looking
statements. There are a number of important factors that could cause the
Company's actual results to differ materially from those indicated by such
forward-looking statements. Those factors include, without limitation, those set
forth below and elsewhere in this Annual Report on Form 10-K.
UNCERTAINTIES RELATING TO TECHNOLOGICAL APPROACHES; RISKS RELATED TO
PRODUCT DEVELOPMENT. To date, the Company has not developed or commercialized
any products or services based on its genomics and related technologies. The
Company's lead programs and development focus have been primarily directed to
complex polygenic and multifactorial diseases in the field of human healthcare.
There is limited scientific understanding generally relating to the role of
genes in these diseases and relatively few products and services based on gene
discoveries have been developed and commercialized. There can be no assurance
that the Company's technological approach to gene identification and target
validation will consistently enable the Company to successfully identify and
characterize genes that predispose individuals to diseases.
Any therapeutic and diagnostic products and services based on the
Company's gene discoveries which may in the future be developed by the Company
or any of its current and future strategic partners will require significant
research, development, testing and regulatory approvals prior to
commercialization. The development of these products and services will be
subject to the risks of failure inherent in the development of products and
services based on new technologies. These risks include the possibilities that
any products or services based on these technologies will be found to be
ineffective, unreliable or unsafe, or otherwise fail to receive necessary
regulatory approvals; that products or services, if safe and effective, will be
difficult to manufacture on a large scale or will be uneconomical to market;
that proprietary rights of third parties will preclude the Company or its
strategic partners from
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marketing products or services; and that third parties will market superior or
equivalent products or services.
Accordingly, even if the Company is successful in identifying genes
associated with specific diseases, there can be no assurance that its gene
discoveries will lead to the development of therapeutic and diagnostic products
and services capable of addressing these diseases. The failure to successfully
commercialize products based on Company-discovered genes would have a material
adverse effect on the Company's business, financial condition and operating
results.
HISTORY OF OPERATING LOSSES; ANTICIPATION OF FUTURE LOSSES; UNCERTAINTY OF
ADDITIONAL FUNDING. To date, substantially all of the Company's revenues have
resulted from payments from strategic partners. The Company has not yet
generated any therapeutic or diagnostic products or services which have entered
preclinical studies or generated any revenue from therapeutic or diagnostic
product or service sales. The Company anticipates that it will be a number of
years, if ever, before it will recognize revenue from therapeutic or diagnostic
product or service sales or royalties.
As of December 31, 1997, the Company had an accumulated deficit of
approximately $99,366,000 (including a non-recurring charge of $83,800,000 for
acquired in-process research and development related to the acquisition of
ChemGenics). Even if the Company succeeds in developing a therapeutic or
diagnostic product or service, the Company expects to incur losses for at least
the next several years and that such losses are likely to increase as the
Company expands its infrastructure and its research and development activities.
To achieve profitability, the Company, alone or with others, must successfully
develop therapeutic or diagnostic products or services, conduct clinical trials,
obtain required regulatory approvals and successfully manufacture, market and
sell such therapeutic or diagnostic products or services. The time required to
reach commercial revenue and profitability is highly uncertain and there can be
no assurance that the Company will be able to achieve any such revenue and
profitability on a sustained basis, if at all.
The Company's approach of applying a comprehensive platform of genomics
and related technologies in the discovery of life-science based products and
services has required that Millennium establish a substantial scientific
infrastructure. The Company has consumed substantial amounts of cash to date and
expects capital and operating expenditures to increase over the next several
years as it expands its infrastructure and its research and development
activities.
The Company believes that existing cash and investment securities and
anticipated cash flow from existing strategic alliances will be sufficient to
support the Company's operations through at least 1999. The Company's actual
future capital requirements, however, will depend on many factors, including
progress of its
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development and discovery programs, the number and breadth of these programs,
achievement of milestones under strategic alliance arrangements, the ability of
the Company to establish and maintain additional strategic alliance and
licensing arrangements, and the progress of the development efforts of the
Company's strategic partners. Other factors that may affect the Company's future
capital requirements include the level of the Company's activities relating to
commercialization rights it has retained in its strategic alliance arrangements,
competing technological and market developments, costs associated with acquiring
rights to technologies developed outside the Company, costs associated with
facility expansion, costs associated with collection of patient information and
DNA samples, costs involved in enforcing patent claims and other intellectual
property rights and the costs and timing of regulatory approvals.
The Company expects that it will require significant additional financing
in the future, which it may seek to raise through public or private equity
offerings, debt financings or additional strategic alliance and licensing
arrangements. Such additional financing may not be available when needed, or may
not be available on terms favorable to the Company or its stockholders. To the
extent the Company raises additional capital by issuing equity securities,
ownership dilution to stockholders will result. To the extent that the Company
raises additional funds through strategic alliance and licensing arrangements,
the Company may be required to relinquish rights to certain of its technologies
or product candidates, or to grant licenses on terms that are not favorable to
the Company, either of which could have a material adverse effect on the
Company's business, financial condition and results of operations. In the event
that adequate funds are not available, the Company's business would be adversely
affected.
RELIANCE ON STRATEGIC PARTNERS. The Company's strategy for development and
commercialization of therapeutic and diagnostic products and services based upon
its gene discoveries depends upon the formation of various strategic alliances,
such as the Company's strategic alliances with Roche, Lilly, Astra, AHP, Pfizer
and Monsanto. There can be no assurance that the Company will be able to
establish additional strategic alliance or licensing arrangements necessary to
develop and commercialize products and services based upon the Company's
discovery and development programs, that any such arrangements or licenses will
be on terms favorable to the Company or that the current or any future strategic
alliances or licensing arrangements ultimately will be successful.
In certain of its strategic alliances, the Company is dependent on its
strategic partners for the preclinical study, clinical development, regulatory
approval, manufacturing, marketing and sale of therapeutic and diagnostic
products and services based on the results of these collaborative programs. The
agreements with these strategic partners allow them significant discretion in
electing whether to pursue any of these activities. The Company cannot control
the amount and timing of resources its strategic partners devote to the
Company's discovery and
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development programs or to the potential products or services which may result
from these programs. If any of the Company's strategic partners were to breach
or terminate its agreement with the Company or otherwise fail to conduct its
collaborative activities successfully in a timely manner, the Company's
discovery and development programs, including the preclinical or clinical
development or commercialization of products or services, would be delayed or
terminated. Any such delay or termination could have a material adverse effect
on the Company's business, financial condition and results of operations.
The Company relies on its strategic partners for significant funding in
support of the Company's discovery and development programs. See " --
Significant Customers." The Company could be required to devote additional
internal resources to its product and service development, or scale back or
terminate certain development programs or seek alternative collaborative
partners, if funding from one or more of its collaborative programs were reduced
or terminated.
Disputes may arise in the future with respect to the ownership of rights
to any technology developed with strategic partners. These and other possible
disagreements between strategic partners and the Company could lead to delays in
the collaborative research, development or commercialization of certain products
and services, or could require or result in litigation or arbitration, which
could be time-consuming and expensive, in which case it would have a material
adverse effect on the Company's business, financial condition and results of
operations.
Recently there have been a significant number of consolidations among
pharmaceutical companies. Any such consolidation involving a company with which
the Company is collaborating could result in the diminution or termination of,
or delays in, the development or commercialization of products or research
programs under one or more of the Company's strategic alliances.
In each of its strategic alliances, the Company generally agrees not to
conduct certain research and development, independently or with any commercial
third party, that is in the same field as the research and development conducted
under the alliance agreement. Consequently, these arrangements may have the
effect of limiting the areas of research and development the Company may pursue,
either alone or with others. The Company's strategic partners, however, may
develop, either alone or with others, products and services that are similar to
or competitive with the products and services that are the subject of the
Company's collaborations with such partners. Competing products and services,
either developed by a strategic partner or to which the strategic partner has
rights, may result in the partner withdrawing financial and related support for
the Company's product and service candidates, which could have a material
adverse effect on the Company's business, financial condition and results of
operations.
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All of the Company's strategic alliance agreements are subject to
termination under various circumstances. Each strategic partner has the right to
terminate its agreement with the Company (while maintaining rights and licenses
to certain Company discoveries) should the Company fail to meet certain
performance criteria specified in the relevant strategic alliance agreement.
Certain of the Company's strategic alliance agreements provide that, upon
expiration of a specified period after commencement of the agreement, its
strategic partner has the right to terminate the agreement on short notice
without cause. Certain of the Company's strategic alliance agreements have
initial terms that expire in the next 12 months, including its strategic
alliance agreements with Astra (expiring in December 1998), Pfizer (expiring in
December 1998), Roche (expiring in March 1999) and Lilly in the area of oncology
(expiring in April 1999). There can be no assurance that the Company will be
able to successfully negotiate a continuation of such agreements, if it seeks to
do so. The termination or non-renewal of any strategic alliance could have a
material adverse effect on the Company's business, financial condition and
results of operations.
RISKS ASSOCIATED WITH ESTABLISHMENT OF DIVISIONS AND SUBSIDIARIES.
Millennium has adopted a strategy of establishing business divisions and
subsidiaries in order to pursue multiple business opportunities and increase its
capabilities and involvement in the later stages of drug discovery and
development. In 1997, the Company organized MPharma, its pharmaceutical
division, and three subsidiaries, MBio, MPMx and MInfo. The Company does not
hold all of the equity in one of these subsidiaries and anticipates that there
will be minority stockholders in other subsidiaries in the future.
Millennium has sought to develop both informal and formal relationships
between and among subsidiaries and divisions to provide each unit within the
overall group with access to the assets and capabilities of the overall group
that are relevant to the business of the particular unit. However, conflicts
could arise in the future between or among Millennium and its divisions and
subsidiaries with respect to, among other things, future business opportunities
and the sharing of technologies, facilities, administrative services or other
resources.
Certain officers and directors of the Company, including Mark Levin, Chief
Executive Officer and Chairman of the Board of Directors of the Company, and
Steven Holtzman, Chief Business Officer of the Company, currently serve as
directors of each of the subsidiaries. Mr. Levin also serves as the President of
MBio. The Company's present executive officers and managers may assume other
positions within Millennium's current or future subsidiaries, causing them to be
unavailable to serve the Company or to reduce the amount of time they devote to
the affairs of the Company. Furthermore, members of the Board of Directors of
Millennium and the officers of Millennium who are also affiliated with one or
more of the subsidiaries will be required to consider not only the short-term
and long-term impact of operating decisions on the Company, but also the impact
of such decisions on the subsidiaries. In some cases, the impact of such
decisions could be disadvantageous
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to the Company or to any or all of the subsidiaries. Conflicts which may arise
among the Company and such divisions or subsidiaries could have a material
adverse effect on the Company's business, financial condition or results of
operations.
EXPANSION OF OPERATIONS; MANAGEMENT OF GROWTH. The Company recently has
significantly increased the scale of its operations to support the expansion of
its disease research programs and its strategic alliances, including expansion
due to the acquisition of ChemGenics in February 1997, the organization during
1997 of three new subsidiaries, MBio, MPMx and MInfo, and the initiation of a
major strategic alliance with Monsanto in October 1997. This expansion has
included the hiring of a significant number of additional personnel. As of March
1, 1998, the Company and its subsidiaries had approximately 520 full-time
employees, an increase of 160 employees since March 1, 1997. The Company plans
to hire up to approximately 200 new employees by the end of 1998. In addition to
hiring new employees, the Company's growth has and will require the acquisition
of significant amounts of additional equipment, including software and
informatics resources, and the leasing of additional facilities.
The Company's growth has resulted in an increase in responsibilities
placed upon the Company's management and has placed added pressures on the
Company's operational and financial systems. The Company's ability to manage
such growth effectively will depend upon its ability to broaden its management
team and to attract, hire and retain skilled employees. The Company's success
will also depend on the ability of its officers and key employees to continue to
implement and improve its operational, management information and financial
control systems and to expand, train and manage its employee base. Inability to
manage growth effectively could have a material adverse effect on the Company's
business, financial condition and operating results.
INTENSE SCIENTIFIC AND COMMERCIAL COMPETITION. The field of genomics is
highly competitive. Competitors of the Company in the genomics area include,
among others, public companies, private biotechnology and diagnostic companies
and major pharmaceutical companies. Universities and other research
institutions, including those receiving funding from the federally funded Human
Genome Project, also compete with Millennium. A number of entities are
attempting to rapidly identify and patent randomly sequenced genes and gene
fragments, typically without specific knowledge of the function of such genes or
gene fragments. In addition, certain other entities are pursing a gene
identification, characterization and product development strategy based on
positional cloning and other genomics technologies.
Many of the organizations competing against the Company have greater
capital resources, research and development staffs and facilities, and greater
experience in drug discovery and development, obtaining regulatory approvals and
product manufacturing and greater marketing capabilities than the Company. The
Company's competitors may discover, characterize or develop therapeutic or
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diagnostic products or services for important genes in advance of Millennium or
may make discoveries which render non-competitive or obsolete the products or
services that the Company or its strategic alliance partners may seek to
develop, any of which could have a material adverse effect on any related
Millennium disease research program. The Company expects competition to
intensify in genomics research as technical advances in the field are made and
become more widely known.
Generally, the Company's strategic alliance agreements do not restrict the
strategic partner from pursuing competing development efforts. Any product
candidate of the Company, therefore, may be subject to competition with a
potential product under development by a strategic partner.
PATENTS AND PROPRIETARY RIGHTS; THIRD PARTY RIGHTS. The Company's
commercial success will depend in part on obtaining patent protection on gene
discoveries and on products, methods and services based on such discoveries. As
of March 1, 1998, Millennium and its subsidiaries had more than 200 pending
United States and foreign patent applications and seven issued United States
patents. The patent positions of pharmaceutical, biopharmaceutical and
biotechnology companies, including Millennium, are generally uncertain and
involve complex legal and factual questions. There can be no assurance that any
of the Company's pending patent applications will result in issued patents, that
the Company will develop additional proprietary technologies that are
patentable, that any patents issued to the Company or its strategic partners
will provide a basis for commercially viable products or will provide the
Company with any competitive advantages or will not be challenged by third
parties, or that the patents of others will not have an adverse effect on the
ability of the Company to do business. In addition, patent law relating to the
scope of claims in the technology fields in which the Company operates is still
evolving. The degree of future protection for the Company's proprietary rights,
therefore, is uncertain. Furthermore, there can be no assurance that others will
not independently develop similar or alternative technologies, duplicate any of
the Company's technologies, or design around the patented technologies developed
by the Company. In addition, the Company could incur substantial costs in
litigation if it is required to defend itself in patent suits brought by third
parties or if it initiates such suits.
The Company has applied for patent protection for novel genes, partial
gene sequences ("ESTs") of novel genes and novel uses for known genes identified
through its research programs. There is substantial uncertainty regarding the
patentability of ESTs or full-length genes absent biological data demonstrating
functional relevance. Based on recent technological advances in gene sequencing
technology, a number of groups other than the Company are attempting to rapidly
identify ESTs and full-length genes, the functions of which have not been
characterized. Washington University, for example, is currently identifying ESTs
through partial sequencing pursuant to funding provided by Merck & Co., Inc.,
and depositing the ESTs identified in a public database. The public availability
of EST information prior to the time the Company applies for patent protection
on a
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corresponding full-length gene could adversely affect the Company's ability to
obtain patent protection with respect to such gene. To the extent any patents
issue to other parties on such partial or full-length genes, the risk increases
that the potential products and processes of the Company or its strategic
partners may give rise to claims of patent infringement.
Others may have filed and in the future are likely to file patent
applications covering genes or gene products that are similar or identical to
those of the Company. No assurance can be given that any such patent application
will not have priority over patent applications filed by the Company. Any legal
action against the Company or its strategic partners claiming damages and
seeking to enjoin commercial activities relating to the affected products and
processes could, in addition to subjecting the Company to potential liability
for damages, require the Company or its strategic partner to obtain a license in
order to continue to manufacture or market the affected products and processes.
There can be no assurance that the Company or its strategic partners would
prevail in any such action or that any license required under any such patent
would be made available on commercially acceptable terms, if at all. The Company
believes that there may be significant litigation in the industry regarding
patent and other intellectual property rights. If the Company becomes involved
in such litigation, it could consume a substantial portion of the Company's
managerial and financial resources.
There is substantial uncertainty concerning whether human clinical data
will be required for issuance of patents for human therapeutics. If such data is
required, the Company's ability to obtain patent protection could be delayed or
otherwise adversely affected. Although the United States Patent and Trademark
Office ("USPTO") issued new utility guidelines in July 1995 that address the
requirements for demonstrating utility for biotechnology inventions,
particularly for inventions relating to human therapeutics, utility will be
determined on a case-by-case basis. Moreover, there can be no assurance that the
USPTO's position will not change with respect to what is required to establish
utility for gene sequences and products and methods based on such sequences.
Furthermore, the enactment of the legislation implementing the General Agreement
on Trade and Tariffs has resulted in certain changes to United States patent
laws that became effective on June 8, 1995. Most notably, the term of patent
protection for patent applications filed on or after June 8, 1995 is no longer a
period of seventeen years from the date of grant. The new term of United States
patents will commence on the date of issuance and terminate twenty years from
the earliest effective filing date of the application. Because the time from
filing to issuance of biotechnology patent applications is often more than three
years, a twenty-year term from the effective date of filing may result in a
substantially shortened term of patent protection, which may adversely impact
the Company's patent position. If this change results in a shorter period of
patent coverage, the Company's business could be adversely affected to the
extent that the duration and level of the royalties it is entitled to receive
from its strategic partners is based on the existence of a valid patent.
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The Company relies upon trade secret protection for its confidential and
proprietary information. The Company believes that it has developed proprietary
technology for use in gene discovery and characterization, including proprietary
genetic marker sets, proprietary software (including proprietary software for
the capture, storage and analysis of DNA and protein sequence data) and an
integrated informatics system. The Company has not sought patent protection for
these technologies. In addition, the Company has developed databases of
proprietary gene sequences and biological information which are updated on an
ongoing basis. The Company has taken security measures to protect its data and
continues to explore ways to further enhance the security for its data. There
can be no assurance, however, that such measures will provide adequate
protection for the Company's trade secrets or other proprietary information.
While the Company requires employees, academic collaborators and consultants to
enter into confidentiality agreements, there can be no assurance that
proprietary information will not be disclosed, that others will not
independently develop substantially equivalent proprietary information and
techniques or otherwise gain access to the Company's trade secrets or disclose
such technology, or that the Company can meaningfully protect its trade secrets.
The Company's academic collaborators have certain rights to publish data
and information in which the Company has rights. While the Company believes that
the limitations on publication of data developed by its collaborators pursuant
to its collaboration agreements will be sufficient to permit the Company to
apply for patent protection, there is considerable pressure on academic
institutions to publish discoveries in the genetics and genomics fields. There
can be no assurance that such publication would not affect the Company's ability
to obtain patent protection for some inventions in which it may have an
interest.
The Company is party to various license agreements which give it rights to
use certain technologies in its research and development processes. There can be
no assurance that the Company will be able to continue to license such
technology on commercially reasonable terms, if at all. Failure by the Company
to maintain rights to such technology could have a material adverse effect on
the Company's business, financial condition and results of operations.
UNCERTAINTY OF GOVERNMENT REGULATORY APPROVALS. The FDA and comparable
agencies in foreign countries impose substantial requirements upon the
manufacturing and marketing of human therapeutic, diagnostic and vaccine
products and services such as those proposed to be developed by the Company or
its strategic alliance partners. The process of obtaining FDA and other required
regulatory approvals is lengthy and expensive. The time required for FDA and
other approvals is uncertain and typically takes a number of years, depending on
the complexity and novelty of the product. The Company and/or its strategic
alliance partners may encounter significant delays or excessive costs in their
efforts to secure necessary approvals or licenses.
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Because certain of the products likely to result from the Company's
research and development programs involve the application of new technologies
and may be based on a new therapeutic approach, such products may be subject to
substantial additional review by various governmental regulatory authorities
and, as a result, regulatory approvals may be obtained more slowly than for
products using more conventional technologies. For example, proposals to conduct
clinical research involving gene therapy at institutions supported by the
National Institutes of Health ("NIH") must be approved by the Recombinant DNA
Advisory Committee ("RAC") and the NIH. In addition, the U.S. Government has
recently established a working group to assess whether additional regulations in
the area of genetic testing may be appropriate, which could result in further
regulation.
There can be no assurance that FDA or other approvals will be obtained in
a timely manner, if at all. Any delay in obtaining, or the failure to obtain,
such approvals could materially adversely affect the Company's ability to
generate product or service or royalty revenues. Even if FDA or other approvals
are obtained, the marketing and manufacturing of diagnostic and therapeutic
products are subject to continuing FDA and other regulatory review. Later
discovery of previously unknown problems with a product, manufacturer or
facility may result in restrictions on the product or manufacturer, including
withdrawal of the product from the market. Additional governmental regulations
may be promulgated which could delay regulatory approval of the Company's or a
strategic partner's potential products. The Company cannot predict the impact of
adverse governmental regulations which might arise from future legislative or
administrative action.
The Company's research and development activities involve the controlled
use of hazardous materials, chemicals and various radioactive materials. The
Company is subject to federal, state and local laws and regulations governing
the use, storage, handling and disposal of such materials and certain waste
products. Although the Company believes that its safety procedures for handling
and disposing of such materials comply with the standards prescribed by federal,
state and local laws and regulations, the risk of accidental contamination or
injury from these materials cannot be completely eliminated. In the event of
such an accident, the Company could be held liable for any damages that result
and any liability could exceed the resources of the Company.
UNCERTAINTY ASSOCIATED WITH PRECLINICAL AND CLINICAL TESTING. The grant of
regulatory approval for the commercial sale of any of the Company's potential
products will depend in part on the Company and/or its strategic alliance
partner successfully conducting extensive preclinical and clinical testing to
demonstrate the product's safety and efficacy in humans. The Company has limited
experience in conducting preclinical and clinical development activities.
Neither the Company nor any strategic alliance partner has submitted an IND to
the FDA for any product candidate under development by the Company.
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<PAGE> 54
The results of preclinical studies by the Company and/or its strategic
alliance partners may be inconclusive and may not be indicative of results that
will be obtained in human clinical trials. In addition, results attained in
early human clinical trials relating to the products under development by the
Company may not be indicative of results that will be obtained in later clinical
trials. As results of particular preclinical studies and clinical trials are
received, the Company and/or its strategic alliance partners may abandon
projects which they might otherwise have believed to be promising.
There can be no assurance that the Company will be permitted to undertake
and complete human clinical trials of any of the Company's potential products,
either in the U.S. or elsewhere. If such trials are permitted, there can be no
assurance that the products under development will not have undesirable side
effect or other characteristics that may prevent them from being approved or
limit their commercial use if approved. Clinical testing is very expensive, and
the Company and/or its strategic alliance partners will have to devote
substantial resources for the payment of clinical trial expenses.
In certain circumstances the Company may rely, in part, on its strategic
alliance partners, academic institutions and on clinical research organizations
to conduct and monitor certain clinical trials. There can be no assurance that
such entities will conduct the clinical trials successfully. Furthermore, the
Company will have less control over such trials than if the Company were the
sole sponsor thereof. As a result, there can be no assurance that these trials
will commence or be completed as planned. Failure to commence or complete any of
its planned clinical trials could have a material adverse effect on the
Company's business, financial condition or results of operations.
ABSENCE OF SALES AND MARKETING EXPERIENCE; LIMITED MANUFACTURING
CAPABILITY. Although Millennium plans to rely significantly on strategic
alliance partners for the marketing and distribution of its products and
services, the Company may market and sell certain of its products and services
directly and may engage in certain other marketing activities in collaboration
with its strategic alliance partners. The Company has no experience in sales,
marketing or distribution. The Company does not expect to establish a direct
sales capability until such time as it has one or more products or services in
development which are approaching marketing approval.
To the extent the Company enters into marketing or distribution
arrangements with strategic alliance partners, any revenues the Company receives
will depend upon the efforts of third parties. There can be no assurance that
any third party would market the Company's products and services successfully or
that any third-party collaboration would be on terms favorable to the Company.
If any marketing partner did not market a product or service successfully, the
Company's business would be materially adversely affected. If Millennium's plan
to rely on
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<PAGE> 55
strategic alliance partners for significant aspects of marketing and selling the
Company's products were unsuccessful for any reason, Millennium would need to
recruit and train a marketing and sales force which would entail the incurrence
of significant additional costs.
There can be no assurance that the Company would be able to attract and
build a sufficient marketing staff or sales force, that the cost of establishing
such a marketing staff or sales force would be justifiable in light of any
product or service revenues or that the Company's direct sales and marketing
efforts would be successful. In addition, if the Company succeeds in bringing
one or more products or services to market, it may compete with other companies
that currently have extensive and well-funded marketing and sales operations.
There can be no assurance that the Company's marketing and sales efforts would
enable it to compete successfully against such other companies.
The Company lacks commercial-scale facilities to manufacture any products
under development in accordance with current Good Manufacturing Practices
("GMP") requirements prescribed by the FDA. The Company expects to be dependent
on third party manufacturers or collaborative partners for all of its clinical
trials and commercial production of products. In the event that the Company were
unable to obtain contract manufacturing, it may not be able to commercialize its
products. Where third-party arrangements are established, the Company will
depend upon such third parties to perform their obligations in a timely manner.
There can be no assurance that third parties depended upon by the Company would
perform and any failures by third parties could delay clinical trial development
or the submission of products for regulatory approval, impair the Company's
ability to commercialize its products as planned and deliver products on a
timely basis, or otherwise impair the Company's competitive position, which
could have a material adverse effect on the Company' business, financial
condition or result or operation.
If the Company determined to develop its own manufacturing capabilities,
it would need to recruit qualified personnel and build or lease the requisite
facilities and equipment because it has no experience in manufacturing on a
commercial scale and no facilities or equipment therefor. There can be no
assurance that Millennium would be able to successfully develop its own
manufacturing capabilities in a cost-effective or timely manner. In addition,
the manufacture of any products by the Company is subject to regulation by the
FDA and comparable agencies in foreign countries. Delay in complying or failure
to comply with such manufacturing requirements could materially adversely affect
the marketing of the Company's products and the Company's business, financial
condition and results of operations.
AVAILABILITY OF, AND COMPETITION FOR, FAMILY RESOURCES. The Company's gene
identification strategy includes genetic studies of families and populations
prone to particular diseases. These studies are based upon statistical analyses
of disease inheritance patterns and require the collection of large numbers of
DNA samples
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<PAGE> 56
from affected individuals, their families and other suitable populations. The
Company is dependent upon collaborations with a number of academic centers for
the identification of donor populations and the collection and supply of the DNA
samples used in its human disease gene research programs. The availability of
DNA samples from large, family-based or other suitable populations is therefore
critical to the Company's ability to discover the genes responsible for human
diseases through human genetic approaches. The competition for these resources
is intense and certain of the Company's competitors have obtained rights to
significantly more family resources than the Company. There can be no assurance
that the Company will be able to obtain access to DNA samples necessary to
support its human gene discovery programs and any material lack of availability
of such DNA samples would have an adverse effect on the Company's business.
ATTRACTION AND RETENTION OF KEY EMPLOYEES AND CONSULTANTS. The Company is
highly dependent on the principal members of its management and scientific
staff, none of whom is bound by a long-term employment agreement with the
Company. The loss of services of any of these personnel could impede
significantly the achievement of the Company's development objectives and could
have a material adverse effect on the Company's business, financial condition
and operating results. Furthermore, recruiting and retaining qualified
scientific personnel to perform research and development work in the future will
also be critical to the Company's success. There is intense competition among
pharmaceutical and health care companies, universities and nonprofit research
institutions for experienced scientists, and there can be no assurance that the
Company will be able to attract and retain personnel on acceptable terms.
In addition, the Company relies on its scientific advisors to assist the
Company in formulating its discovery and developing strategy. All of the
scientific advisors are employed by employers other than the Company and have
commitments to other entities that may limit their availability to the Company.
Some of the Company's scientific advisors also consult for companies that may be
competitors of the Company.
DEPENDENCE ON RESEARCH COLLABORATORS AND SCIENTIFIC ADVISORS. The Company
has relationships with collaborators at academic and other institutions who
conduct research at the Company's request. Such collaborators are not employees
of the Company. All of Millennium's consultants are employed by employers other
than the Company and may have commitments to, or consulting or advisory
contracts with, other entities that may limit their availability to the Company.
As a result, the Company has limited control over their activities and, except
as otherwise required by its collaboration and consulting agreements, can expect
only limited amounts of their time to be dedicated to the Company's activities.
The Company's ability to discover genes involved in human disease and
commercialize products based on those discoveries may depend in part on
continued collaborations with researchers at academic and other institutions.
There can be no assurance that the Company will be
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<PAGE> 57
able to negotiate additional acceptable collaborations with collaborators at
academic and other institutions or that its existing collaborations will be
successful.
The Company's research collaborators and scientific advisors sign
agreements which provide for confidentiality of the Company's proprietary
information and results of studies. There can be no assurance, however, that the
Company will be able to maintain the confidentiality of its technology and other
confidential information in connection with every collaboration, and any
unauthorized dissemination of the Company's confidential information could have
an adverse effect on the Company's business.
UNCERTAINTY OF THERAPEUTIC AND DIAGNOSTIC PRICING, REIMBURSEMENT AND
RELATED MATTERS. The Company's business, financial condition and results of
operations may be materially adversely affected by the continuing efforts of
government and third party payors to contain or reduce the costs of health care
through various means. For example, in certain foreign markets pricing and
profitability of prescription pharmaceuticals are subject to government control.
In the United States, the Company expects that there will continue to be a
number of federal and state proposals to implement similar government control.
In addition, increasing emphasis on managed care in the United States will
continue to put pressure on the pricing of therapeutic and diagnostic products
and services. Cost control initiatives could decrease the price that the Company
or any of its strategic partners receives for any therapeutic and diagnostic
products or services in the future and have a material adverse effect on the
Company's business, financial condition and results of operations. Further, to
the extent that cost control initiatives have a material adverse effect on the
Company's strategic partners, the Company's ability to commercialize its
products and to realize royalties may be adversely affected.
The ability of the Company and any strategic partner to commercialize
therapeutic and diagnostic products and services may depend in part on the
extent to which reimbursement for the products and services will be available
from government and health administration authorities, private health insurers
and other third party payors. Significant uncertainty exists as to the
reimbursement status of newly approved health care products and services. Third
party payors, including Medicare, increasingly are challenging the prices
charged for medical products and services. Government and other third party
payors are increasingly attempting to contain health care costs by limiting both
coverage and the level of reimbursement for new therapeutic and diagnostic
products and services and by refusing in some cases to provide coverage for uses
of approved products for disease indications for which the FDA has not granted
labeling approval. There can be no assurance that any third party insurance
coverage will be available to patients for any products and services discovered
and developed by the Company or its strategic partners. If adequate coverage and
reimbursement levels are not provided by government and other third party payors
for the Company's products and services, the market acceptance of these products
and services may be reduced, which may have a
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material adverse effect on the Company's business, financial condition and
results of operations.
PRODUCT LIABILITY EXPOSURE. Clinical trials, manufacturing, marketing and
sale of any of the Company's or its strategic partners' potential therapeutic
products may expose the Company to liability claims from the use of such
therapeutic products. The Company currently does not carry product liability
insurance. There can be no assurance that the Company or its strategic partners
will be able to obtain such insurance or, if obtained, that sufficient coverage
can be acquired at a reasonable cost. An inability to obtain sufficient
insurance coverage at an acceptable cost or otherwise to protect against
potential product liability claims could prevent or inhibit the
commercialization of therapeutic products developed by the Company or its
strategic partners. A product liability claim or recall could have a material
adverse effect on the business or financial condition of the Company. While
under certain circumstances the Company is entitled to be indemnified against
losses by its strategic partners, there can be no assurance that this
indemnification would be available or adequate should any such claim arise.
RISKS ASSOCIATED WITH ACQUISITIONS. As part of its business strategy, the
Company may from time to time acquire assets and businesses principally relating
to or complementary to its operations, including for the purpose of acquiring
specific technology. Any acquisitions by the Company will be accompanied by the
risks commonly encountered in acquisitions of companies. Such risks include,
among other things, potential exposure to unknown liabilities of acquired
companies or to acquisition costs and expenses exceeding amounts anticipated for
such purposes, the difficulty and expense of assimilating the operations,
acquired technology and personnel of the acquired businesses, the potential
disruption of the Company's ongoing business and diversion of management time
and attention, and the potential failure to achieve anticipated financial,
operating and strategic benefits from such acquisitions.
In order to finance any such acquisition, it may be necessary for the
Company to raise additional funds through public or private financing. Such
financing, if available at all, may be on terms which are not favorable in the
Company, and, in the case of equity financings, may result in dilution to the
Company's stockholders.
There can be no assurance that the Company would be successful in
overcoming these risks or any other problems encountered in connection with any
such acquisitions. If the Company is unsuccessful in doing so, its business,
financial condition and results of operations could be materially and adversely
affected.
ITEM 2. PROPERTIES
The Company's facilities currently consist of an aggregate of
approximately 242,000 square feet of office, research and laboratory space and
an animal facility in
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several locations in Cambridge, Massachusetts, pursuant to leases that expire
from 1999 through 2003.
In addition, the Company has a commitment to lease approximately 175,000
square feet of laboratory and office space to be located in Cambridge,
Massachusetts. This facility is under construction. The Company plans to
commence occupancy in the first half of 1999. The lease is for a 15 year term
beginning upon occupancy.
ITEM 3. LEGAL PROCEEDINGS
The Company is not a party to any legal proceedings.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders of the Company,
through solicitation of proxies or otherwise, during the last quarter of the
year ended December 31, 1997.
EXECUTIVE OFFICERS OF THE COMPANY
The following table sets forth the names, ages and positions of the
executive officers of the Company.
<TABLE>
<CAPTION>
NAME AGE POSITION
- ---- --- --------
<S> <C> <C>
Mark J. Levin 47 Chairman of the Board, Chief Executive
Officer and Director
Steven H. Holtzman 44 Chief Business Officer
Frank D. Lee, Ph.D. 46 Chief Research Technology Officer
Michael Pavia, Ph.D. 42 Chief Technology Development Officer
</TABLE>
- ----------
Mark J. Levin has served as Chairman of the Board of Directors since March
1996, Chief Executive Officer of the Company since November 1994, and as a
director of the Company since inception. From 1987 to 1994, Mr. Levin was a
partner at Mayfield Fund ("Mayfield") a venture capital firm, and co-director of
its Life Science Group. While employed with Mayfield, Mr. Levin was the founding
Chief Executive Officer of several biotechnology and biomedical companies,
including Cell Genesys Inc., CytoTherapeutics Inc., Tularik Inc. and Focal, Inc.
Mr. Levin holds an M.S. in Chemical and Biomedical Engineering from Washington
University. Mr. Levin also serves on the Board of Directors of CytoTherapeutics
Inc.
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<PAGE> 60
Steven H. Holtzman has served as Chief Business Officer of the Company
since May 1994. From 1986 to 1993, Mr. Holtzman was with DNX Corporation
("DNX"), a biomedical company, and its subsidiaries. He was a founder and the
first employee of DNX, served as a member of the Board of Directors, and held
several senior management positions including, from 1992 to 1993, President of
DNX Biotherapeutics Inc., a subsidiary of DNX, and from 1990 to 1993, Executive
Vice President of DNX. Mr. Holtzman received his graduate B.Phil. degree in
Philosophy from Oxford University, which he attended as a Rhodes Scholar. Mr.
Holtzman currently serves as co-chairperson of the Biotechnology Industry
Organization's Bioethics Committee and is a member of the National Bioethics
Advisory Commission.
Frank D. Lee, Ph.D. joined the Company in July 1994 as Vice President,
Research, became Chief Scientific Officer in January 1996 and became Chief
Research Technology Officer in November 1997. From 1989 to 1994, Dr. Lee served
as Director of Molecular Biology at DNAX Research Institute of Molecular and
Cellular Biology, Inc., a subsidiary of Schering-Plough Corporation, a
pharmaceutical company ("DNAX"), and from 1981 to 1989 he served as a Senior
Staff Scientist at DNAX. Dr. Lee received his Ph.D. from Stanford University and
did his postdoctoral research at Stanford University School of Medicine in the
Department of Pharmacology and was a Senior Fellow of the American Cancer
Society. Dr. Lee also did postdoctoral research at the Massachusetts Institute
of Technology's Center for Cancer Research as a fellow of the Helen Hay Whitney
Foundation.
Michael Pavia, Ph.D. has served as Chief Technology Development Officer of
the Company since September 1997. From 1993 to 1997, he was employed by Sphinx
Pharmaceuticals, a division of Eli Lilly & Company, where he was most recently
Vice President-Cambridge Research. From 1992 to 1993, Dr. Pavia was Vice
President of Chemistry at Genesis Pharmaceuticals, Inc., a drug development
company. Dr. Pavia also worked in senior scientific positions in the Department
of Chemistry at the Parke-Davis Pharmaceutical Research Division of
Warner-Lambert Co., a pharmaceutical company. He holds a B.S. in Chemistry from
Lehigh University and a Ph.D. in Organic Chemistry from the University of
Pennsylvania.
PART II
ITEM 5. MARKET FOR THE COMPANY'S COMMON EQUITY AND
RELATED STOCKHOLDER MATTERS
(a) MARKET PRICE OF AND DIVIDENDS ON THE COMPANY'S COMMON STOCK AND
RELATED STOCKHOLDER MATTERS
The Common Stock of Millennium has been traded on the Nasdaq National
Market under the symbol MLNM since May 6, 1996. Prior to May 6, 1996, the
Company's Common Stock was not publicly traded. On March 13, 1998, the closing
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price for the sale of a share of the Company's Common Stock on the Nasdaq Stock
Market was $19.75. The following table sets forth for the periods indicated the
high and low closing prices per share of the Common Stock as reported by the
Nasdaq National Market.
<TABLE>
<CAPTION>
1996
----
HIGH LOW
---- ---
<S> <C> <C>
Second Quarter ............................. $24.00 $15.50
(May 6 through June 30, 1996)
Third Quarter .............................. $19.12 $11.50
Fourth Quarter ............................. $21.75 $16.12
</TABLE>
<TABLE>
<CAPTION>
1997
----
HIGH LOW
---- ---
<S> <C> <C>
First Quarter .............................. $21.50 $13.625
Second Quarter ............................. $17.50 $13.00
Third Quarter .............................. $21.125 $12.50
Fourth Quarter ............................. $21.25 $16.75
</TABLE>
On March 13, 1998, the Company had approximately 402 stockholders of
record. The Company has never declared or paid any cash dividends on its Common
Stock. The Company currently intends to reinvest earnings, if any, to support
the development of its business and does not expect to pay cash dividends for
the foreseeable future.
(b) USE OF PROCEEDS
The following information is provided pursuant to Rule 463 under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Company's first registration statement filed pursuant to the
Securities Act:
On May 6, 1996, the Securities and Exchange Commission declared effective
a registration statement of Form S-1 (333-2490) (the "Registration Statement")
registering 4,500,000 shares (the "Shares") of the Company's Common Stock, $.001
par value per share ("Common Stock"). An offering of such shares (the
"Offering") commenced on the same date. The managing underwriters for the
Offering were Goldman, Sachs &
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Co. and Robertson Stephens & Company. The Offering terminated after the sale of
all of the Shares. All of the Shares were sold on behalf of the Company and the
aggregate offering price of the Shares was $54.0 million.
The following is a reasonable estimate of the amount of expenses incurred
for the Company's account in connection with the issuance and distribution of
the securities registered for each of the following:
<TABLE>
<S> <C>
Underwriting discounts and commissions: $ 4,347,000
Finders fees: 0
Expenses paid to or for Underwriters: 0
Other expenses: 650,000
-----------
Total expenses: $ 4,997,000
===========
Net offering proceeds to the Company after
deducting total expenses: $57,103,000
</TABLE>
None of the foregoing expenses were direct or indirect payments to
directors, officers, general partners of the Company or their associates;
persons owning 10 percent (10%) or more of any class of equity securities of the
Company; or affiliates of the Company.
The Company has not segregated cash proceeds of the Offering from other
funds of the Company. For the purpose of making the estimates set forth in this
section, the Company has assumed that all of the cash proceeds of the Offering
were used to support ongoing operations, exclusive of research funding received
through its strategic alliances. The estimated use of proceeds for working
capital includes operating expenses for research and development and for general
and administrative activities. Set forth below is a reasonable estimate of the
amount of net offering proceeds to the Company used for each of the following:
<TABLE>
<S> <C>
Construction of plant, building and facilities: $ 0
Purchase and installation of machinery and equipment: 3,132,000
Purchases of real estate: 0
Acquisition of other businesses: 4,500,000
Repayment of indebtedness: 6,147,000
Working capital: 43,324,000
Temporary investments: 0
</TABLE>
There are no other purposes for which at least the lessor of five percent
(5%) of the issuer's total offering proceeds or $100,000 has been used.
Moreover, none of such uses of the net offering proceeds were direct or indirect
payments to directors, officers, general partners of the Company or their
associates; persons owning 10 percent (10%) or more of any class of equity
securities of the issuer; or affiliates of the
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Company. Such payments did not represent a material change in the use of
proceeds described in the prospectus contained in the Registration Statement.
ITEM 6. SELECTED FINANCIAL DATA
Incorporated by reference from the Company's 1997 Annual Report to
Shareholders under the heading "Selected Financial Data", which appears in
Exhibit 13 to this Annual Report on Form 10-K.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Incorporated by reference from the Company's 1997 Annual Report to
Stockholders under the heading "Management's Discussions and Analysis of
Financial Condition and Results of Operations", which appears in Exhibit 13 to
this Annual Report on Form 10-K.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The financial statements filed as part of this Annual Report on Form 10-K
are listed under Item 14 below and are incorporated by reference from the
Company's 1997 Annual Report to Stockholders under the heading "Financial
Statements and Notes Thereto", which appears in Exhibit 13 to this Annual Report
on Form 10-K.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE
During the Company's two most recent fiscal years there have been no
disagreements with the Company's independent accountants on accounting and
financial disclosure matters.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS
The information required by this item (with respect to Directors) is
incorporated by reference from the information under the captions "Election of
Directors" and "Section 16(a) Beneficial Ownership Reporting Compliance"
contained in the Company's Proxy Statement to be filed with the Securities and
Exchange Commission in connection with the solicitation of proxies for the
Company's 1998 Annual Meeting of Stockholders to be held on June 2, 1998 (the
"Proxy Statement").
The required information concerning Executive Officers of the Company is
contained in Part I of this Annual Report on Form 10-K under the heading
"Executive Officers of the Company."
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<PAGE> 64
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item is incorporated by reference from
the information under the captions "Election of Directors -- Compensation for
Directors," "Executive Compensation," "Report of the Compensation Committee" and
"Compensation Committee Interlocks and Insider Participation" contained in the
Proxy Statement.
ITEM 12. STOCK OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The information required by this item is incorporated by reference from
the information under the caption "Stock Ownership of Certain Beneficial Owners
and Management" contained in the Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item is incorporated by reference from
the information contained under the caption "Certain Transactions" contained in
this Proxy Statement.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS
ON FORM 8-K
(a) The following documents are included as part of this Annual Report on
Form 10-K or are incorporated by reference from the Company's 1997 Annual Report
to Stockholders.
1. The following financial statements (and related notes) of the
Company are incorporated by reference from the 1997 Annual
Report to Stockholders.
Report of Independent Auditors on Financial
Statements 35*
Consolidated Balance Sheets at December 31, 1997
and 1996 36*
Consolidated Statements of Operations for the years
ended December 31, 1997, 1996, and 1995 37*
Consolidated Statements of Cash Flows for the years
ended December 31, 1997, 1996, and 1995 38*
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<PAGE> 65
Statements of Stockholders' Equity for the years
ended December 31, 1997, 1996 and 1995 39*
Notes to Financial Statements 41*
*Refers to page number of 1997 Annual Report to Stockholders
2. All schedules are omitted as the information required is
inapplicable or the information is presented in the
consolidated financial statements or the related notes.
3. The Exhibits listed in the Exhibit Index immediately preceding
the Exhibits are filed as a part of this Annual Report on Form
10-K.
(b) The following Current Reports on Form 8-K were filed by the Company
during the last quarter of the period covered by this report:
1. Current Report on Form 8-K filed with the Securities and
Exchange Commission on November 4, 1997.
-----------------------
The following trademarks of the Company are mentioned in this Annual
Report on Form 10-K: Millennium, Millennium Pharmaceuticals, Millennium
Predictive Medicine, Millennium Information, Millennium BioTherapeutics, MBio,
MPMx, MInfo, Diagnomics, RADE and Sequence Explorer. Other trademarks used in
this Annual Report on Form 10-K are the property of their respective owners.
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<PAGE> 66
SIGNATURES
Pursuant to the requirements of the Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
MILLENNIUM PHARMACEUTICALS, INC.
By: /S/ MARK J. LEVIN
------------------------------------
Mark J. Levin
Chief Executive Officer
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the Company
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/S/ MARK J. LEVIN Chief Executive Officer and March 25, 1998
- ---------------------------- Director (Principal Executive
Mark J. Levin Officer)
/S/ STEVEN H. HOLTZMAN Chief Business Officer March 25, 1998
- ----------------------------
Steven H. Holtzman
/S/ JANET C. BUSH Vice President of Finance March 25, 1998
- ---------------------------- (Principal Financial and
Janet C. Bush Accounting Officer)
/S/ JOSHUA BOGER Director March 25, 1998
- ----------------------------
Joshua Boger, Ph.D.
/S/ EUGENE CORDES Director March 25, 1998
- ----------------------------
Eugene Cordes, Ph.D.
/S/ A. GRANT HEIDRICH Director March 25, 1998
- ----------------------------
A. Grant Heidrich, III
/S/ WILLIAM W. HELMAN Director March 25, 1998
- ----------------------------
William W. Helman
</TABLE>
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<PAGE> 67
<TABLE>
<S> <C> <C>
/S/ Raju Kucherlapati Director March 25, 1998
- ----------------------------
RAJU KUCHERLAPATI
/S/ ERIC S. LANDER Director March 25, 1998
- ----------------------------
Eric S. Lander, Ph.D.
</TABLE>
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<PAGE> 68
Exhibit Index
The following exhibits are filed as part of this Annual Report on Form
10-K.
EXHIBIT NO. DESCRIPTION
- ----------- -----------
(2)3.1 Amended and Restated Certificate of Incorporation of the Company
(2)3.2 Amended and Restated Bylaws of the Company
(1)4.1 Specimen Certificate for shares of Common Stock, $.001 par value,
of the Company
(8)(1)10.1 1996 Director Option Plan
(1)10.2 Third Amended and Restated Investors' Rights Agreement, as amended,
dated February 1, 1996 by and among the Company and the persons
named on the signature pages thereto.
(1)10.3 Agreement dated as of August 10, 1995 by and between the Company
and Joshua Boger.
(1)10.4 Agreement dated as of August 10, 1995 by and between the Company
and Eugene Cordes.
(1)10.5 Agreement dated as of April 21, 1993, by and between the Company
and Raju Kucherlapati.
(1)10.6 Letter Agreement dated November 30, 1994 by and between the Company
and Mark J. Levin.
(1)10.7 Letter Agreement dated April 14, 1994 by and between the Company
and Steven H. Holtzman.
(1)10.8 Promissory Note dated March 15, 1996 made in favor of the Company
by Steven H. Holtzman.
(1)10.9 Master Lease Agreement dated March 22, 1993 by and between the
Company and Comdisco, Inc.
(1)10.10 Loan and Security Agreement dated October 28, 1994 by and between
the Company and MMC/GATX Partnership No. 1
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(1)10.11 Master Equipment Lease Agreement dated July 14, 1995 by and between
the Company and Lighthouse Capital Partners, L.P.
(1)10.12 Loan Agreement dated February 15, 1996 by and between the Company
and Lighthouse Capital Partners, L.P.
(4)10.13 Form of Master Equipment Lease Financing Agreement, as amended,
dated September 19, 1996 by and between the Company and GE Capital
Corporation.
(7)10.14 Amendment to Master Equipment Lease Agreement dated June 16, 1997
by and between the Company and GE Capital Corporation.
(1)10.15 Lease Agreement dated August 25, 1993, as amended, by and between
the Company and the Massachusetts Institute of Technology.
(4)10.16 Lease Agreement dated October 26, 1996 by and between the Company
and Fort Washington Limited Partnership
(5)10.17 Lease Agreement between the Company and Old Cambridge Realty Trust,
Inc.
(5)10.18 Form of Sub-Lease Agreement, dated June 28, 1996, by and between
the Company (as successor to ChemGenics) and PerSeptive Biosystems,
Inc.
(6)10.19 Lease dated March 28, 1997 by and between the Company and Old
Cambridge Property LLC
(6)10.20 Subordination Non-Disturbance and Attornment Agreement dated March
28, 1997 by and among LaSalle National Bank, as Trustee for Asset
Securitization Corporation Commercial Mortgage Pass-Through
Certificates, Series D-4, Old Cambridge Property LLC and the
Company.
(7)10.21 Lease dated May 15, 1997 by and between the Company and
Massachusetts Institute of Technology.
10.22 Lease dated November 17, 1997 by and between the Company and FC
45/75 Sidney, Inc.
+(1)10.23 Sponsored Research Agreement dated March 25, 1994 by and between
the Company and F. Hoffman-La Roche Ltd.
+(1)10.24 Research and License Agreement dated October 3, 1995 by and between
the Company and Eli Lilly and Company.
-69-
<PAGE> 70
+(1)10.25 Research and License Agreement dated December 9, 1995 by and
between the Company and Astra AB.
+(1)10.26 Research and License Agreement dated April 8, 1996 by and between
the Company and Eli Lilly and Company.
+(3)10.27 CNS Research, Collaboration and License Agreement effective as of
August 1, 1996 by and between American Home Products Corporation
and the Company.
+(3)10.28 Bioinformatics Access and License Agreement effective as of August
1, 1996 by and between American Home Products Corporation and the
Company.
+(3)10.29 Transcription Profiling Technology Access and License Agreement
effective as of August 1, 1996 by and between American Home
Products Corporation and the Company.
+(5)10.30 Collaborative Research Agreement, dated as of January 1, 1995, by
and between the Company (as successor to ChemGenics) and Pfizer,
Inc.
+(5)10.31 License Option, License and Royalty Agreement, dated as of January
1, 1995, by and between the Company (as successor to ChemGenics)
and Pfizer, Inc.
+(5)10.32 Collaborative Research and License Agreement, dated as of November
1, 1996, by and between the Company (as successor to ChemGenics)
and American Home Products Corporation, represented by its
Wyeth-Ayerst Laboratories division.
+(5)10.33 License Agreement, dated as of June 28, 1996, by and between the
Company (as successor to ChemGenics) and PerSeptive Biosystems,
Inc.
(5)10.34 Master Agreement, dated as of May 7, 1996, by and between the
Company (as successor to ChemGenics) and PerSeptive Biosystems,
Inc.
(5)10.35 Amendment, dated November 22, 1996, to the Master Agreement dated
May 7, 1996 between the Company (as successor to ChemGenics) and
PerSeptive Biosystems, Inc.
(5)10.36 Omnibus Amendment Agreement dated December 18, 1996 between the
Company (as successor to ChemGenics) and PerSeptive Biosystems,
Inc.
-70-
<PAGE> 71
(5)10.37 Consulting and Interim Services Agreement dated as of June 28,
1996, by and between the Company (as successor to ChemGenics) and
PerSeptive Biosystems, Inc.
(5)10.38 Confidentiality and Non-Competition Agreement dated as of June 28,
1996, by and between the Company (as successor to ChemGenics) and
PerSeptive Biosystems, Inc.
(5)10.39 Amendment, Consent and Waiver dated January 18, 1997 by and among
the Company, ChemGenics and American Home Products Corporation
acting through its Wyeth-Ayerst Division ("Wyeth-Ayerst").
(5)10.40 Letter Agreement dated January 18, 1997 by and among the Company,
ChemGenics and Pfizer, Inc.
(5)10.41 Letter Agreement dated January 18, 1997 by and among the Company,
ChemGenics and PerSeptive Biosystems, Inc.
(5)10.42 Amendment to Collaborative Research and License Agreement dated
March 20, 1997 by and among the Company, ChemGenics and Wyeth-
Ayerst.
+(7)10.43 Sponsored Research Agreement by and among Whitehead Institute for
Biomedical Research, Affymetrix, Inc., Bristol-Myers Squibb Company
and the Company dated April 28, 1997.
+(7)10.44 Consortium Member Agreement by and among Affymetrix, Inc., Bristol-
Myers Squibb Company and the Company dated April 28, 1997.
+(7)10.45 Collaboration Agreement by and among the Company, Millennium
BioTherapeutics, Inc. ("MBIO") and Eli Lilly and Company dated as
of May 28, 1997.
+(7)10.46 Technology Transfer and License Agreement by and between the
Company and MBIO dated as of May 28, 1997.
+(7)10.47 Rights Exchange Agreement by and between the Company and MBIO dated
as of May 28, 1997.
+(9)10.48 Agreement dated October 27, 1997 by and among the Company, Monsanto
Company and Cereon Genomics Inc. (formerly Monsanto Agricultural
Genomics II LLC).
-71-
<PAGE> 72
(10)10.49 Agreement and Plan of Merger dated January 20, 1997 by and among
the Company, CPI Acquisition Corp. and ChemGenics Pharmaceuticals,
Inc.
13 1997 Annual Report to Stockholders (which shall be deemed filed
only with respect to those portions specifically incorporated by
reference herein).
21 Subsidiaries of the Company.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
27.1 Financial Data Schedule for year ended December 31, 1997.
27.2 Restated Financial Data Schedule for year ended December 31, 1996.
- --------------------------
(1) Incorporated herein by reference to the Company's Registration Statement
on Form S-1, as amended (File No. 333-2490).
(2) Incorporated herein by reference to the Company's 10-Q for the quarter
ending March 31, 1996.
(3) Incorporated herein by reference to the Company's 10-Q for the quarter
ending June 30, 1996.
(4) Incorporated herein by reference to the Company's 10-Q for the quarter
ending September 30, 1996.
(5) Incorporated herein by reference to the Company's 10-K for the fiscal year
ending December 31, 1996.
(6) Incorporated herein by reference to the Company's 10-Q for the quarter
ending March 31, 1997.
(7) Incorporated herein by reference to the Company's 10-Q for the quarter
ending June 30, 1997.
(8) Management contract or compensatory plan or arrangement filed as an
exhibit to this Form pursuant to Items 14(a) and 14(c) of Form 10-K.
(9) Incorporated hereby by reference to the Company's Amendment No. 1 to
Current Report on Form 8-K, filed with the SEC on January 30, 1998.
(10) Incorporated herein by reference to the Company's Current Report on Form
8-K, filed with the SEC on February 20, 1997.
-72-
<PAGE> 73
+ Confidential treatment requested as to certain portions.
-73-
<PAGE> 1
EXHIBIT 10.22
LEASE
45 Sidney Street
and
75 Sidney Street
Cambridge, Massachusetts
LANDLORD
FC 45/75 SIDNEY, INC.
TENANT
MILLENNIUM PHARMACEUTICALS, INC.
Dated: November 17, 1997
<PAGE> 2
Table of Contents
<TABLE>
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<S> <C>
ARTICLE I
RECITALS AND DEFINITIONS............................................................................. 1
Section 1.1 Recitals........................................................................... 1
Section 1.2 Definitions........................................................................ 1
ARTICLE II
PREMISES AND TERM.................................................................................... 3
Section 2.1 Premises........................................................................... 3
Section 2.2 (a) Appurtenant Rights............................................................. 4
Section 2.3 Landlord's Reservations............................................................ 4
Section 2.4 Parking; Construction of Garage.................................................... 5
Section 2.5 Commencement Date; Scheduled Rent Commencement Date; Rent
Commencement Date.................................................................. 6
Section 2.6 Extension Options.................................................................. 7
Section 2.7 Expansion Options.................................................................. 9
ARTICLE III
RENT AND OTHER PAYMENTS.............................................................................. 15
Section 3.1 Annual Fixed Rent.................................................................. 15
Section 3.2 Real Estate Taxes.................................................................. 15
Section 3.3 Operating Expenses................................................................. 18
Section 3.4 Other Utility Charges.............................................................. 21
Section 3.5 Above-standard Services............................................................ 21
Section 3.6 No Offsets......................................................................... 22
Section 3.7 Net Lease.......................................................................... 22
ARTICLE IV
ALTERATIONS.......................................................................................... 22
Section 4.1 Consent Required for Tenant's Alterations.......................................... 22
Section 4.2 Ownership of Alterations........................................................... 23
Section 4.3 Construction Requirements for Alterations.......................................... 24
Section 4.4 Payment for Tenant Alterations..................................................... 25
ARTICLE V
RESPONSIBILITY FOR CONDITION OF BUILDING AND PREMISES................................................ 25
</TABLE>
(i)
<PAGE> 3
<TABLE>
<CAPTION>
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<S> <C>
Section 5.1 Maintenance of Building and Common Areas by Landlord............................... 25
Section 5.2 Maintenance of Premises by Tenant.................................................. 26
Section 5.3 Tenant-Provided Services........................................................... 26
Section 5.4 Delays in Landlord's Services...................................................... 27
Section 5.5 Tenant's Responsibilities Regarding Hazardous Materials............................ 27
Section 5.6 Landlord's Responsibilities Regarding Hazardous Materials.......................... 28
Section 5.7 Cross Indemnification.............................................................. 28
ARTICLE VI
TENANT COVENANTS..................................................................................... 29
Section 6.1 Permitted Uses..................................................................... 29
Section 6.2 Laws and Regulations............................................................... 29
Section 6.3 Rules and Regulations; Signs....................................................... 29
Section 6.4 Safety Compliance.................................................................. 30
Section 6.5 Landlord's Entry................................................................... 30
Section 6.6 Floor Load......................................................................... 31
Section 6.7 Personal Property Tax.............................................................. 31
Section 6.8 Assignment and Subleases........................................................... 31
ARTICLE VII
INDEMNITY AND INSURANCE.............................................................................. 34
Section 7.1 Indemnity.......................................................................... 34
Section 7.2 Liability Insurance................................................................ 35
Section 7.3 Personal Property at Risk.......................................................... 35
Section 7.4 Landlord's Insurance............................................................... 36
Section 7.5 Waiver of Subrogation.............................................................. 36
Section 7.6 Policy Requirements................................................................ 36
ARTICLE VIII
CASUALTY AND EMINENT DOMAIN.......................................................................... 36
Section 8.1 Restoration Following Casualties; Termination for Failing to Maintain
Parking............................................................................ 36
Section 8.2 Landlord's Termination Election.................................................... 37
Section 8.3 Tenant's Termination Election...................................................... 37
Section 8.4 Casualty at Expiration of Lease.................................................... 38
Section 8.5 Eminent Domain..................................................................... 38
Section 8.6 Rent After Casualty or Taking...................................................... 39
Section 8.7 Temporary Taking................................................................... 39
Section 8.8 Taking Award....................................................................... 39
</TABLE>
(ii)
<PAGE> 4
<TABLE>
<CAPTION>
Page
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<S> <C>
ARTICLE IX
DEFAULT.............................................................................................. 40
Section 9.1 Tenant's Default................................................................... 40
Section 9.2 Damages............................................................................ 41
Section 9.3 Cumulative Rights.................................................................. 41
Section 9.4 Landlord's Self-help............................................................... 42
Section 9.5 Enforcement Expenses; Litigation................................................... 42
Section 9.6 Late Charges and Interest on Overdue Payments...................................... 42
Section 9.7 Landlord's Right to Notice and Cure; Tenant's Self-Help Rights..................... 43
ARTICLE X
MORTGAGEES' AND GROUND LESSORS' RIGHTS............................................................... 43
Section 10.1 Subordination...................................................................... 43
Section 10.2 Prepayment of Rent not to Bind Mortgagee........................................... 44
Section 10.3 Tenant's Duty to Notify Mortgagee: Mortgagee's Ability to Cure..................... 44
Section 10.4 Estoppel Certificates.............................................................. 44
ARTICLE XI
SECURITY DEPOSIT..................................................................................... 46
ARTICLE XII
MISCELLANEOUS........................................................................................ 49
Section 12.1 Notice of Lease.................................................................... 49
Section 12.2 Notices............................................................................ 49
Section 12.3 Successors and Limitation on Liability............................................. 49
Section 12.4 Waivers by the Landlord............................................................ 50
Section 12.5 Acceptance of Partial Payments of Rent............................................. 50
Section 12.6 Interpretation and Partial Invalidity.............................................. 50
Section 12.7 Quiet Enjoyment.................................................................... 50
Section 12.8 Brokerage.......................................................................... 51
Section 12.9 Surrender of Premises and Holding Over............................................. 51
Section 12.10 Ground Lease....................................................................... 51
Section 12.11 Financial Reporting................................................................ 52
Section 12.12 Cambridge Employment Plan.......................................................... 52
Section 12.13 Truck Delivery Routes; Traffic Mitigation Measures................................. 52
Section 12.14 Laboratory Animals................................................................. 52
Section 12.15 No Consequential Damages........................................................... 52
Section 12.16 Governing Law...................................................................... 53
Section 12.17 Termination Rights for Failure of Conditions....................................... 53
</TABLE>
(iii)
<PAGE> 5
EXHIBIT A - Basic Lease Terms
EXHIBIT B - Legal Description
EXHIBIT B-1 - Depiction of Premises
EXHIBIT B-2 - Map of University Park
EXHIBIT B-3 - Preferred Expansion Space
EXHIBIT C - Work Letter
EXHIBIT D - Standard Services
EXHIBIT D-1 - Allocation of Maintenance and Repair Services
EXHIBIT E - Rules and Regulations
EXHIBIT F - Standard Tenant System Allocations and Capacities
EXHIBIT G - Measurement Method
EXHIBIT H - Form of MIT Non-Disturbance Agreement
EXHIBIT I - Form of Lender's SNDA
EXHIBIT J - Dispute Resolution Process
EXHIBIT K - Construction Lender's SNDA
EXHIBIT L - Millennium Completion Guaranty
(iv)
<PAGE> 6
LEASE
ARTICLE I
RECITALS AND DEFINITIONS
Section 1.1 Recitals. This Lease (this "Lease") is entered into this 17th
day of November, 1997 by and between FC 45/75 Sidney, Inc. (the "Landlord"), a
Massachusetts corporation, and Millennium Pharmaceuticals, Inc. (the "Tenant"),
a Delaware corporation.
In consideration of the mutual covenants herein set forth, the Landlord
and the Tenant do hereby agree to the terms and conditions set forth in this
Lease.
Section 1.2 Definitions. The following terms shall have the meanings
indicated or referred to below:
"Additional Rent" means all charges payable by the Tenant pursuant to this
Lease other than Annual Fixed Rent, including without implied limitation the
Tenant's parking charges as provided in Section 2.4; the Tenant's Tax Expense
Allocable to the Premises as provided in Section 3.2; the Tenant's Operating
Expenses Allocable to the Premises in accordance with Section 3.3; amounts
payable to Landlord for separately submetered utilities and services pursuant to
Section 3.4; amounts payable for special services pursuant to Section 3.5; costs
for alterations or additions to the Original Premises exceeding the Tenant's
Allowance (as described in the Work Letter); and the Landlord's share of any
sublease or assignment proceeds pursuant to Section 6.8.
"Annual Fixed Rent" - See Exhibit A, and Section 3.1.
"Base Building Improvements" - See the Workletter.
"Building" means collectively the building located at 45 Sidney Street,
Cambridge, Massachusetts (the "45 Sidney Building") and the building located at
75 Sidney Street, Cambridge, Massachusetts (the "75 Sidney Building"), in which
the Premises are located.
"Commencement Date" - See Section 2.5.
"Common Building Areas" means those portions of the Building which are not
part of the Premises and to which the Tenant has appurtenant rights pursuant to
Section 2.2.
"Consolidated Net Available Cash" - See Section 11.4.
"Expansion Premises" - See Section 2.7.
"Extension Term" - See Section 2.6.
"Excusable Delay" - See the Workletter.
<PAGE> 7
"External Causes" means, when referring to a party's responsibilities
under this Lease, collectively (i) Acts of God, war, civil commotion, fire,
flood or other casualty, strikes or other extraordinary labor difficulties,
shortages of labor or materials or equipment in the ordinary course of trade,
extraordinary weather conditions, government order or regulations or other cause
not reasonably within the control of such party, and not due to the fault or
neglect of such party, and (ii) any act, failure to act or neglect of the other
party or the other party's servants, agents, employees, licensees or, which in
the case of the Tenant shall include, without limitation, its sublessees,
licensees or other occupants deriving their rights under Tenant, which delays
such party in the performance of any act required to be performed by such party
under this Lease.
"First Rent Commencement Date" - The earlier of the Rent Commencement Date
with respect to the 75 Sidney Building or the Rent Commencement Date with
respect to the 45 Sidney Building.
"Initial Term" - See Exhibit A.
"Land" means the parcels of land situated in Cambridge, Massachusetts,
described in Exhibit B.
"Landlord's Original Address" - See Exhibit A.
"Lease Year" means each period of one year during the Term commencing on
the First Rent Commencement Date or on any anniversary thereof.
"Leasehold Improvements" - See the Workletter.
"Net Working Capital" - See Section 11.4.
"Original Premises" - See Exhibit A.
"Permitted Uses" - See Exhibit A.
"Premises" means that portion of the Building which the Tenant is leasing
at any given time pursuant to the provisions of this Lease. See Exhibit A and
Section 2.1.
"Property" means the Land and the Building.
"Removable Alterations" - See Section 4.2.
"Rent Commencement Date" - See Section 2.5.
"Scheduled Rent Commencement Date" - See Exhibit A.
"Substantial Completion" - See the Workletter.
2
<PAGE> 8
"Tenant's Original Address" - See Exhibit A.
"Term" means the Initial Term together with any Extension Term for which
an extension option is timely exercised by the Tenant under Section 2.6.
"University Park" means the area in Cambridge, Massachusetts, bounded on
the Northside by Massachusetts Avenue, Green and Blanche Streets, on the East
side by Lansdowne, Cross and Purrington Streets, on the South side by Pacific
Street and on the West side by Brookline Street.
"Work Letter" means the letter agreement of even date herewith between the
Landlord and Tenant relating to the construction of the Building and the
leasehold improvements in the Premises attached hereto and made a part hereof as
Exhibit C.
ARTICLE II
PREMISES AND TERM
Section 2.1 Premises. The Landlord hereby leases to the Tenant, and the
Tenant hereby leases from the Landlord, for the Term, the Original Premises. The
Premises shall exclude the entry and main lobby of the Building, first floor
elevator lobby, first floor mail room, the common stairways and stairwells,
elevators and elevator wells, sprinklers, sprinkler rooms, elevator rooms,
mechanical rooms, loading and receiving areas, electric and telephone closets,
janitor closets, loading docks and bays, rooftop mechanical penthouses to the
extent they house Building equipment, and pipes, ducts, conduits, wires and
appurtenant fixtures and equipment serving exclusively or in common other parts
of the Building. If the Premises at any time includes less than the entire
rentable floor area of any floor of the Building, the Premises shall also
exclude the common corridors, vestibules, elevator lobby and toilets located on
such floor. At any time during which the Premises includes the entire rentable
floor area of the 75 Sidney Building or the 45 Sidney Building or both of such
buildings, then with respect to the building(s) the rentable floor area of which
is fully leased by the Tenant, the Premises shall also include the following
otherwise common areas: the entry and main lobby of such building, first floor
elevator lobby, first floor mailroom, the common stairways and stairwells,
elevators and elevator wells, rooftop mechanical penthouse areas to the extent
they serve the remainder of the Premises exclusively, loading and receiving
areas, loading docks and bays, and pipes, ducts, conduits, wires and appurtenant
fixtures and equipment servicing exclusively such building. The Tenant
acknowledges that, except as expressly set forth in this Lease, there have been
no representations or warranties made by or on behalf of the Landlord with
respect to the Premises, the Building or the Property or with respect to the
suitability of any of them for the conduct of the Tenant's business. Promptly
following the First Rent Commencement Date, the Landlord shall deliver to the
Tenant a statement from the Landlord's architect setting forth the rentable
floor area of the Premises and the total rentable floor area of the Building as
computed in accordance with Exhibit G. The Landlord and the Tenant shall, after
such determination at the request of either party, confirm in writing the
rentable square feet of floor area in the Premises, rentable square
3
<PAGE> 9
feet of floor area in the Building, initial Annual Fixed Rent and the total
number of parking spaces guaranteed to the Tenant hereunder.
Section 2.2 (a) Appurtenant Rights. Subject to the provisions of Section
2.1, at any time during which the Premises does not include the entire rentable
floor area of either the 75 Sidney Building or the 45 Sidney Building, the
Tenant shall have as to such building as appurtenant to the Premises, the
nonexclusive right to use in common with others, subject to reasonable rules of
general applicability to occupants of the Building from time to time made by the
Landlord of which the Tenant is given notice, the following areas and facilities
in such building: (i) the entry, vestibules and main lobby of the Building,
first floor mailroom, the common stairways, elevators, elevator wells, elevator
rooms, sprinkler rooms, mechanical rooms, electric and telephone closets,
janitor closets, loading docks and bays, and the pipes, sprinklers, ducts,
conduits, wires and appurtenant fixtures and equipment serving the Premises in
common with others, (ii) common walkways and driveways necessary or reasonably
convenient for access to the Building, (iii) access to loading area and freight
elevator subject to rules and regulations then in effect, and (iv) if the
Premises at any time include less than the entire rentable floor area of any
floor, the common toilets, corridors, vestibules, and elevator lobby of such
floor.
If the Tenant occupies the entire rentable floor area of the 75 Sidney
Building, the entire rentable floor area of the 45 Sidney Building or both, then
with respect to the fully occupied building(s) only, the Tenant shall have the
right to install a controlled access system reasonably approved by the Landlord
controlling access to all elevators, stairwells and roof areas of such building;
provided, however, that the Landlord shall at all times have access to the
Building and the Premises, as contemplated under Section 2.3 and Section 6.5.
(b) Roof Rights. The Tenant shall have, as appurtenant to the Premises
(and exclusively for use in connection with the occupancy of the Premises), the
nonexclusive right of access to and use of the roof for the purpose of
installing and maintaining mechanical equipment, antennae and dishes which, in
each case, have been pre-approved by the Landlord as part of the initial
construction of the Building or as otherwise approved by the Landlord under
Article IV, subject however, to reasonable rules of general applicability to
occupants of the Building from time to time made by the Landlord of which the
Tenant is given notice, but only to the extent that the Tenant has assumed
responsibility for maintenance and repair of certain Building equipment and
mechanical systems serving exclusively the Premises pursuant to Section 5.2.
Section 2.3 Landlord's Reservations. The Landlord reserves the right from
time to time, without unreasonable interference with the Tenant's use (including
the specialized needs of Tenant's operations which Landlord hereby
acknowledges): (a) to access, install, use, maintain, repair, replace and
relocate for service to the Premises and other parts of the Building, or either,
pipes, ducts, conduits, wires and appurtenant fixtures and equipment, wherever
located in the Premises or the Building, and (b) to alter or relocate any other
common facility provided that substitutions are substantially equivalent or
better. Any such actions taken by the Landlord shall be without undue
interference by the Tenant so long as such actions are: (i) consistent with the
Tenant's reasonable security requirements, (ii) carried out at times reasonably
satisfactory to the
4
<PAGE> 10
Tenant, (iii) effected in a good and workmanlike manner, and (iv) at no
additional cost to the Tenant.
Section 2.4 Parking; Construction of Garage. The Landlord shall provide
and the Tenant shall pay for parking privileges for use by the Tenant's
employees and business invitees and visitors in accordance with Exhibit A. The
Landlord shall use diligent, good faith efforts to cause to be constructed on or
before the First Rent Commencement Date, and shall operate, or cause to be
operated, at the location depicted on Exhibit B-2, a first-class parking garage
(the "101 Pacific Street Garage") to serve the Building and other buildings. In
the event the 101 Pacific Street Garage is not completed on or before the First
Rent Commencement Date, the Landlord shall designate alternative temporary
parking at one or more of the locations shown on Exhibit B-2 for the Tenant's
use until the 101 Pacific Street Garage is completed. Such temporary parking
shall include the number of parking spaces guaranteed by the Landlord to the
Tenant in Exhibit A, and shall be maintained in good order and repair together
with security comparable to other parking areas provided in the University Park
development. If such temporary parking includes surface parking spaces, the
charge for each surface space shall be the lesser of: (a) the market rate for
comparable surface parking spaces in the City of Cambridge, or (b) whatever
amount the Landlord charges for comparable surface parking spaces within
University Park. When the 101 Pacific Street Garage is completed, the Landlord
shall relocate any parking spaces contemplated under Exhibit A to be located in
the 101 Pacific Street Garage to such garage. The Tenant's parking privileges
shall be on a nonexclusive basis (i.e., no reserved spaces); provided, however,
the Landlord agrees that the 101 Pacific Street Garage, upon completion, shall
be operated so as to maintain therein sufficient spaces to accommodate the
Tenant's parking privileges described in Exhibit A. The Tenant agrees that it
and all persons claiming by, through and under it, shall at all times abide by
the reasonable rules and regulations promulgated by the Landlord, of which the
Tenant is given written notice, with respect to the use of the parking
facilities provided by the Landlord pursuant to this Lease.
Charges for the Tenant's parking privileges hereunder shall constitute
Additional Rent and shall be payable monthly to the Landlord, during the Term,
from and after (i) the First Rent Commencement Date with respect to two (2)
parking spaces per 1,000 rsf of floor area in the portion of the Premises
demised as of the First Rent Commencement Date and (ii) from and after the Rent
Commencement Date with respect to the remaining floor area in the Premises with
respect to the remaining parking spaces to which reference is made in Exhibit A,
at the time and in the fashion in which Annual Fixed Rent under this Lease is
payable. At the option of the Landlord, the Tenant shall enter into a separate
lease agreement for such parking rights upon the same terms and conditions
contained in this Lease (and cross-defaulted, both as to the Landlord's and
Tenant's obligations, with this Lease) for a period which shall have the same
expiration date as the Term and which, if this Lease provides for options on the
part of the Tenant to extend, shall be automatically extended upon the exercise
of any of such options.
At any time during the Term the Landlord shall have the right to assign
the Landlord's obligations to provide parking, as herein set forth, together
with the Landlord's right to receive Additional Rent for such parking spaces as
herein provided, to a separate entity created for the purpose of providing the
parking privileges set forth herein. In such event, the Landlord and the
5
<PAGE> 11
Tenant agree to execute and deliver appropriate documentation, including
documentation with the new entity, reasonably necessary to provide for the new
entity to assume the Landlord's obligations to provide the parking privileges to
the Tenant as specified herein and for the Tenant to pay the Additional Rent
attributable to the parking privileges directly to the new entity, provided,
however, the Landlord shall at all times remain obligated to the Tenant for the
Tenant's parking privileges hereunder as an obligation of the Landlord under
this Lease, notwithstanding that a new entity is providing the same to the
Tenant pursuant to separate documentation.
Section 2.5 Commencement Date; Scheduled Rent Commencement Date; Rent
Commencement Date. "Commencement Date" means the date on which the Tenant is
first provided access to any portion of the Premises for the construction of the
Leasehold Improvements. "Scheduled Rent Commencement Date" for each of the 75
Sidney Building and the 45 Sidney Building shall be the respective dates
specified therefor in Exhibit A hereto. "Rent Commencement Date" for each of the
75 Sidney Building and the 45 Sidney Building shall mean the earlier of (i) the
Scheduled Rent Commencement Date therefor specified in Exhibit A hereto or (ii)
the date upon which the Tenant commences occupancy for the conduct of business
of fifty percent (50%) or more of the rentable square footage of the Premises
located therein ("Commencement of Occupancy"). Notwithstanding the foregoing,
upon the following terms and conditions, but not otherwise, if (i) the Tenant is
delayed beyond the Scheduled Rent Commencement Date set forth in Exhibit A
hereto in its construction of the Leasehold Improvements, or the Landlord is
delayed beyond the Scheduled Rent Commencement Date set forth in Exhibit A
hereto in causing Substantial Completion of the Base Building Improvements, and
(ii) that to the extent of such delay, the Tenant cannot occupy the Premises in
the building in question, there shall be a postponement of the Scheduled Rent
Commencement Date and/or the Rent Commencement Date as follows:
(a) if the cause of such delay is Excusable Delay other than Tenant
Delay affecting the Substantial Completion of the Base Building
Improvements, then the Scheduled Rent Commencement Date shall be postponed
by the number of days such right to occupancy is so delayed on account of
such Excusable Delay; and
(b) if the cause of such delay is Landlord Delay affecting the
Substantial Completion of the Base Building Improvements or construction
by the Tenant of the Leasehold Improvements, then (i) the Scheduled Rent
Commencement Date shall be postponed by the number of days such right to
occupy is so delayed on account of such Landlord Delay and (ii) the Tenant
shall be entitled to commence occupancy of the portions of the Premises in
question for the conduct of its business, without triggering the
occurrence of the Rent Commencement Date with respect to the building in
question, for one (1) day for each day the Tenant's right to occupy was so
delayed on account of such Landlord Delay.
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Notwithstanding the foregoing, in no event shall the Rent Commencement Date
occur sooner than 225 days following the Tenant Construction Readiness Date
unless the conditions to the Commencement of Occupancy by the Tenant have been
achieved, whereupon the Rent Commencement Date shall occur, subject to clause
(b) above.
Without limitation of the foregoing, there shall be no postponement of the
Scheduled Rent Commencement Date or the Rent Commencement Date to the extent
Substantial Completion of the Base Building Improvements is delayed on account
of Tenant Delay (there would, however, be a postponement of the Scheduled Rent
Commencement Date to the extent Substantial Completion of the Base Building
Improvements is delayed on account of Excusable Delay or Landlord Delay), nor
shall there be any postponement of the Scheduled Rent Commencement Date or the
Rent Commencement Date to the extent Tenant's construction of the Leasehold
Improvements is delayed due to Excusable Delay or Tenant Delay. The postponement
of the Rent Commencement Date, set forth in clause (b) above, shall constitute
the sole and liquidated damages with respect to damages associated with any
delay in the Tenant's ability to occupy the Premises by virtue of Landlord Delay
and, except as expressly otherwise provided in Article 9 of the Workletter, the
Tenant shall have no right to terminate this Lease on account thereof. Nothing
in this paragraph is intended to derogate from Tenant's right to terminate this
Lease under Section 12.17(e).
Section 2.6 Extension Options. Provided that there has been no Event of
Default which is uncured and continuing on the part of the Tenant and the Tenant
is, as of the date of exercise and as of the commencement date of each Extension
Term, actually occupying at least sixty percent (60%) of the Premises for its
own business purposes, the Tenant shall have the right to extend the Term hereof
for two (2) successive periods of five (5) years each (each such five (5) year
period an "Extension Term") on the following terms and conditions:
(a) Such right to extend the Term shall be exercised by the giving
of notice by Tenant to Landlord at least twelve (12) months prior to the
expiration of the Initial Term or the then current Extension Term, as
applicable. Upon the giving of such notice, this Lease and the Term hereof
shall be extended for an additional term of five (5) years without the
necessity for the execution of any additional documents except a document
memorializing the Annual Fixed Rent for the Extension Term to be
determined as set forth below. Time shall be of the essence with respect
to the Tenant's giving notice to extend the Term. In no event may the
Tenant extend the Term under this Section 2.6 for more than ten (10) years
after the expiration of the Initial Term.
(b) Each Extension Term shall be upon all the terms, conditions and
provisions of this Lease except the Annual Fixed Rent during each five (5)
year Extension Term shall be the then Extension Fair Rental Value of the
Premises for such Extension Term to be determined under Section 2.6(c)
below, but in no case less than the Annual Fixed Rent that was applicable
thereto immediately preceding the Extension Term with respect to which the
Extension Fair Rental Value is to be established (the "Then Applicable
Annual Fixed Rental Rate"). If the Tenant makes a written request to the
Landlord for a proposal for the Extension Fair Rental Value for an
Extension Term,
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the Landlord shall make such a written proposal to the Tenant within
thirty (30) days after receipt of the Tenant's request therefor, but in no
event shall the Landlord be required to deliver such a proposal sooner
than fifteen (15) months prior to the date as of which such proposal is to
become effective. Alternatively, the Landlord may, at its election,
propose an Extension Fair Rental Value to the Tenant without any request
having been made.
(c) For purposes of this Section 2.6, the Extension Fair Rental
Value of the Premises shall mean the then current fair market annual rent
for leases of other space similarly improved, taking into account the
condition to which such premises have been improved (excluding Removable
Alterations) and the economic terms and conditions specified in this Lease
that will be applicable thereto, including the savings, if any, due to the
absence or reduction of brokerage commissions. The Landlord and the Tenant
shall endeavor to agree upon the Extension Fair Rental Value of the
Premises within forty five (45) days after the Tenant has exercised an
option for an Extension Term. If the Extension Fair Rental Value of the
Premises is not agreed upon by the Landlord and the Tenant within this
time frame, each of the Landlord and the Tenant shall retain a real estate
professional with at least ten (10) years continuous experience in the
business of appraising or marketing similar commercial real estate in the
Cambridge, Massachusetts area who shall, within thirty (30) days of his or
her selection, prepare a written report summarizing his or her conclusion
as to the Extension Fair Rental Value. The Landlord and the Tenant shall
simultaneously exchange such reports; provided, however, if either party
has not obtained such a report within ninety (90) days after the last day
of the forty-five (45) day period referred to above in this Section
2.6(c), then the determination set forth in the other party's report shall
be final and binding upon the parties. If both parties receive reports
within such time and the lower determination is within ten percent (10%)
of the higher determination, then the average of these determinations
shall be deemed to be the Extension Fair Rental Value for the Premises. If
these determinations differ by more than ten percent (10%), then the
Landlord and the Tenant shall mutually select a person with the
qualifications stated above (the "Final Professional") to resolve the
dispute as to the Extension Fair Rental Value for the Premises. If the
Landlord and the Tenant cannot agree upon the designation of the Final
Professional within thirty (30) days of the exchange of the first
valuation reports, either party may apply to the American Arbitration
Association, the Greater Boston Real Estate Board, or any successor
thereto, for the designation of a Final Professional. Within ten (10) days
of the selection of the Final Professional, the Landlord and the Tenant
shall each submit to the Final Professional a copy of their respective
real estate professional's determination of the Extension Fair Rental
Value for the Premises. The Final Professional shall not perform his or
her own valuation, but rather shall, within thirty (30) days after such
submissions, select the submission which is closest to the determination
of the Extension Fair Rental Value for the Premises which the Final
Professional would have made acting alone. The Final Professional shall
give notice of his or her selection to the Landlord and the Tenant and
such decision shall be final and binding upon the Landlord and the Tenant.
Each party shall pay the fees and expenses of its real estate professional
and counsel, if any, in connection with any proceeding under this
paragraph, and one-half of the fees and
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expenses of the Final Professional. In the event that the commencement of
the Extension Term occurs prior to a final determination of the Extension
Fair Rental Value therefor (the "Extension Rent Determination Date"), then
the Tenant shall pay the Annual Fixed Rent at the greater of (i) the rate
specified by the Landlord in its proposed Extension Fair Rental Value or
(ii) the Then Applicable Fixed Rental Rate. If the Annual Fixed Rent for
the Extension Term is determined to be greater than the Annual Fixed Rent
paid with respect to the Premises prior to the Extension Rent
Determination Date, then the Tenant shall pay to the Landlord the amount
of such underpayment within ten (10) days of the Expansion Rent
Determination Date, and if the Annual Fixed Rent for the Extension Term is
determined to be less than the Annual Fixed Rent paid with respect to the
Premises prior to the Extension Rent Determination Date, then the Landlord
shall credit the amount of such overpayment against the monthly
installments of Annual Fixed Rent thereafter coming due.
Section 2.7 Expansion Options. Provided that there has been no Event of
Default which is uncured and continuing on the part of the Tenant and the Tenant
is, as of the date of exercise of its rights under this Section 2.7, actually
occupying a minimum of seventy-five percent (75%) of the Premises for its own
business purposes, Tenant shall have the following rights with respect to the
remaining space in the Building not included in the Premises at any given time
(hereinafter the "Expansion Space"):
(a) From time to time following the mutual execution and delivery of
this Lease, upon the request of the Tenant, the Landlord shall inform the
Tenant of the progress the Landlord is making regarding the initial
leasing of the Expansion Space to third parties. Additionally, the
Landlord shall give the Tenant not less than ten (10) business days'
advance written notice prior to making any bona fide formal lease proposal
to a prospective third party tenant for any of the Preferred Expansion
Space (as defined in Section 2.7(b)) identified on Exhibit B-3 attached
hereto and not less than five (5) business days' advance written notice
prior to making any bona fide formal lease proposal to a prospective third
party tenant for all other space in the 45 Sidney Building not part of
such Preferred Expansion Space, each such notice being hereinafter
referred to as a "Landlord's Prospect Notice;" provided, however, the
Landlord shall not offer any space on the balance of the fourth floor of
the 45 Sidney Building not included in the Original Premises or the third
floor of the 45 Sidney Building (such space being hereinafter referred to
as the "Early Expansion Space") to potential third party tenants until
after November 1, 1997. Unless and until the Landlord, after expiration of
the five (5) or ten (10) day advance notice period, as applicable, has
entered into either a letter of intent (but only if such letter of intent
is formalized thereafter as a binding lease between the Landlord and the
other party to such letter of intent) or a lease with a third party for
any of the Expansion Space ("Third Party Commitment"), but subject to the
Landlord's right thereafter to enter into a Third Party Commitment during
the Prospect Negotiation Period specified below in this Section 2.7(a),
following the mutual execution and delivery of this Lease the Tenant may,
by written notice to Landlord (the "Initial Expansion Election Notice"),
elect to lease all or any portion (provided the configuration which the
Tenant desires is reasonably acceptable to the Landlord) of the Expansion
Space that has
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not earlier been made subject of a Third Party Lease pursuant to this
Section 2.7(a). Tenant's election to lease any Expansion Space that falls
within the scope of a Landlord's Prospect Notice must, in order to qualify
as a validly exercised election, be an election to lease all of the square
footage specified in such Landlord's Prospect Notice. With respect to any
Expansion Space that is incorporated into the Premises under this Section
2.7(a), the terms and conditions applicable to such Expansion Space shall
be the same terms and conditions set forth in this Lease except for the
Tenant Allowance and Annual Fixed Rent payable with respect thereto, which
shall instead be, respectively: (i) $25.00 per square foot for the Tenant
Allowance and the Expansion Fair Rental Value of such Expansion Space,
determined in accordance with Section 2.7(f) below for the Annual Fixed
Rent, with respect to all space not part of the Early Expansion Space or
any portion of the Early Expansion Space for which the Landlord has not
received from the Tenant an Initial Expansion Election Notice on or before
November 1, 1997; or (ii) $50.00 per square foot for the Tenant Allowance
and $30.00 per rentable square foot for Lease Years one (1) through five
(5) and $33.00 per rentable square foot for Lease Years six (6) through
fifteen (15) for the Annual Fixed Rent, with respect to any portion of the
Early Expansion Space for which the Landlord has received from the Tenant
an Initial Expansion Election Notice on or before November 1, 1997.
However, if all or any part of the Expansion Space specified in the
Initial Expansion Election Notice given by the Tenant includes space
specified in a Landlord's Prospect Notice with respect to which the Tenant
did not timely elect to lease, then any Initial Expansion Election Notice
shall be subject to the Landlord reaching a Third Party Commitment for
such space with the party (or any affiliate thereof) to whom reference is
made in Landlord's Prospect Notice until the date which is sixty (60) days
after the expiration of the Tenant's five (5) or ten (10) day advance
notice period, as applicable, (such period being hereinafter referred to
as the "Prospect Negotiation Period"). If the Tenant elects to lease any
Expansion Space under this Section 2.7(a), the Tenant shall begin to pay
Annual Fixed Rent and Additional Rent allocable to such Expansion Space on
the later to occur of: (i) the date which is one hundred twenty (120) days
after the Landlord receives the Tenant's Initial Expansion Election
Notice, or (ii) the Rent Commencement Date. At any time prior to the
Landlord receiving from the Tenant an Initial Expansion Election Notice as
hereinbefore provided, but always after the five (5) or ten (10) day
advance notice period, as applicable, the Landlord may lease (the "Initial
Third Party Lease") all or any part of such Expansion Space to one or more
third parties (the "Initial Third Party Tenants") without notice to or
approval from the Tenant, provided, however, that any request for
information made by the Tenant for information regarding the progress the
Landlord is making in the initial leasing of the Expansion Space to third
parties shall specify the expiration date of the term of each such Initial
Third Party Lease and the part of such Expansion Space which is subject to
each such Initial Third Party Lease. In the event the Landlord enters into
any Initial Third Party Lease(s), the remainder of the Expansion Space not
so leased to Initial Third Party Tenants shall remain subject to the
Tenant's rights under this Section 2.7(a).
(b) The Landlord agrees that, in the Landlord's negotiation of any
Initial Third Party Lease, or any subsequent third party lease
(collectively a "Third Party Lease"), which relates to approximately
25,000 rentable square feet of the Expansion
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Space located on the first and fourth floors of the 45 Sidney Building and
identified on the plan attached hereto as Exhibit B-3 (such space being
hereinafter referred to as the "Preferred Expansion Space"), the Landlord
shall not permit the expiration date thereof to extend beyond the last day
of the seventh Lease Year of this Lease.
(c) From time to time during the Term of this Lease, upon the
request of the Tenant, the Landlord shall provide to the Tenant a list of
all Third Party Leases, including the location of the spaces so leased and
the date of expiration of each such Third Party Lease. The Tenant shall
have the right of first opportunity to lease the Expansion Space
(including, without limitation, the Preferred Expansion Space) which is
subject to a Third Party Lease effective upon the earlier of the
expiration or earlier termination of the term of such Third Party Lease.
With respect to the Preferred Expansion Space only, should any such space
become available after the last day of the fourth Lease Year of this
Lease, and Tenant fails to timely exercise its right to incorporate such
space into the Premises under this Section 2.7(c), then the Tenant shall
be deemed to have waived its option to incorporate such space into the
Premises under Section 2.7(d). The Tenant shall exercise its right to
incorporate into the Premises any Expansion Space which has been earlier
made subject to a Third Party Lease under this Section 2.7(c) as follows:
the Tenant shall give the Landlord written notice of its desire to lease
such Expansion Space not less than twelve (12) months prior to the date of
expiration of the term of the Third Party Lease. Not later than ten (10)
business days following such notice from the Tenant, or in the event the
Third Party Lease is being terminated prior to the expiration of its term,
the Landlord shall promptly give written notice to the Tenant (the
"Expansion Opportunity Notice") describing such Expansion Space, the date
of its expected availability and the Landlord's proposal for the Expansion
Fair Rental Value therefor. The Tenant shall, by giving written notice to
Landlord within ten (10) business days after receipt of the Expansion
Opportunity Notice, either (i) elect by written notice ("Vacancy Expansion
Election Notice") to lease such Expansion Space under this Section 2.7(c),
or (ii) waive its right to lease such Expansion Space under this Section
2.7(c) until the expiration or earlier termination of the next Third Party
Lease executed with respect thereto, whereupon the Tenant's rights under
this Section 2.7(c) shall again apply. If the Tenant does not timely elect
to exercise its right to lease such Expansion Space under this Section
2.7(c), by timely giving the Landlord a Vacancy Expansion Election Notice,
then the Tenant will be deemed to have waived its rights to lease such
Expansion Space under this Section 2.7(c) and the Landlord may lease such
Expansion Space without restrictions of any kind; provided, however, that
the Tenant shall at all times during the Term of this Lease have the right
of first opportunity to lease such Expansion Space under this Section
2.7(c) effective upon the earlier of the date of expiration or earlier
termination of the term of the next and any future Third Party Lease for
such Expansion Space as provided hereunder.
If the Tenant timely elects to lease any Expansion Space under this
Section 2.7(c), such Expansion Space shall be included as part of the
Premises for purposes of this Lease effective as of the date upon which
the Third Party Lease expires, is earlier terminated, or such later date
as the Landlord is able to deliver the space for the Tenant's occupancy,
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and the terms and conditions applicable to such Expansion Space shall be
the same terms and conditions set forth in this Lease except for the
condition of the space, the Tenant Allowance and the Annual Fixed Rent
payable with respect thereto. Instead, the Expansion Space shall be
delivered by the Landlord in a then "as is" condition, there shall be no
Tenant Allowance and the Annual Fixed Rent with respect thereto shall be
the Expansion Fair Rental Value therefor as determined in accordance with
Section 2.7(f) below.
(d) Unless and to the extent the Tenant has earlier incorporated the
same into the Premises or waived its option to incorporate the same into
the Premises under Section 2.7(d) pursuant to the terms and conditions of
Section 2.7(c), the Tenant shall have the option to incorporate into the
Premises the Preferred Expansion Space as follows: the Landlord shall give
the Tenant written notice at least twelve (12) months prior to the
availability of the Preferred Expansion Space (the "Preferred Expansion
Space Notice") setting forth the date of its expected availability and the
Landlord's proposal for the Expansion Fair Rental Value therefor. The
Landlord agrees that the aforesaid date of expected availability shall not
occur earlier than the first day of the fifth (5th) Lease Year nor later
than the first day of the eighth (8th) Lease Year. The Tenant shall, by
giving written notice to the Landlord within ten (10) business days after
receipt of the Preferred Space Expansion Notice, either (i) elect to lease
such Preferred Expansion Space under this Section 2.7(d) by giving notice
to the Landlord to such effect, or (ii) waive its right to lease such
Preferred Expansion Space under this Section 2.7(d) until the expiration
or earlier termination of the next Third Party Lease executed with respect
thereto, whereupon the Tenant's rights under Section 2.7(c) shall apply.
If the Tenant does not timely elect to exercise its right to lease the
Preferred Expansion Space under this Section 2.7(d), then the Tenant will
be deemed to have waived its rights to lease such Preferred Expansion
Space under this Section 2.7(d) and the Landlord may lease such Preferred
Expansion Space without restrictions of any kind; provided, however, that
the Tenant shall at all times during the Term of this Lease have the right
of first opportunity to lease such Preferred Expansion Space effective
upon the earlier of the date of expiration or earlier termination of the
term of the next and any future Third Party Lease for such Preferred
Expansion Space as provided in Section 2.7(c) above.
If the Tenant timely elects to lease any Preferred Expansion Space,
under this Section 2.7(d), such Preferred Expansion Space shall be
included as part of the Premises for purposes of this Lease effective as
of the date upon which the Third Party Lease expires, is earlier
terminated (but in no event shall the effective date occur prior to the
first day of the fifth Lease Year of this Lease), or such later date as
the Landlord is able to deliver the space for occupancy by the Tenant, and
the terms and conditions applicable to such Preferred Expansion Space
shall be the same terms and conditions set forth in this Lease except for
the condition of the space, the Tenant Allowance and the Annual Fixed Rent
payable with respect thereto. Instead, Preferred Expansion Space shall be
delivered by the Landlord in its then "as is" condition, there shall be no
Tenant Allowance and the Annual Fixed Rent with respect thereto shall be
the Expansion Fair Rental Value therefor as determined in accordance with
Section 2.7(f) below.
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(e) Notwithstanding anything to the contrary provided herein, if the
remaining Term of this Lease would be less than five (5) years at the time
that any Expansion Space is to be incorporated into the Premises pursuant
to this Section 2.7, the Tenant shall have no right to lease such space
unless the Tenant elects pursuant to Section 2.6 to extend the Term for
the next Extension Term. However, if there are no further such Extension
Terms available to the Tenant under Section 2.6, then the Tenant shall not
have the right to lease the Expansion Space in question under this Section
2.7.
(f) For purposes of this Section 2.7, the Expansion Fair Rental
Value of Expansion Space shall mean the then current fair market annual
rent for leases of space improved to the same level as the Premises and
taking into account the condition to which such premises have been
improved (excluding Removable Alterations) and the economic terms and
conditions specified in this Lease that will be applicable thereto (e.g.
the amount of the fit-up allowance), including the savings, if any, due to
the absence of brokerage commissions and the absence of any rent-free
period for construction of leasehold improvements, determined as provided
below in this Section 2.7(f). The Landlord and the Tenant shall endeavor
to agree upon the Expansion Fair Rental Value of Expansion Space within
forty five (45) days after the Tenant's election to lease such Expansion
Space by giving the Landlord either its Initial Expansion Election Notice
or its Vacancy Expansion Election Notice, as the case may be (the "Rental
Determination Commencement Date"). If the Expansion Fair Rental Value of
such Expansion Space is not agreed upon by the Landlord and the Tenant
within this time frame, each of the Landlord and the Tenant shall retain a
real estate professional with at least ten (10) years continuous
experience in the business of appraising or marketing similar commercial
real estate in the Cambridge, Massachusetts area who shall, within thirty
(30) days of his or her selection, prepare a written report summarizing
his or her conclusion as to the Expansion Fair Rental Value. The Landlord
and the Tenant shall simultaneously exchange such reports; provided,
however, if either party has not obtained such a report within ninety (90)
days after the Rental Determination Commencement Date, then the
determination set forth in the other party's report shall be final and
binding upon the parties. If both parties receive reports within such time
and the lower determination is within ten percent (10%) of the higher
determination, then the average of these determinations shall be deemed to
be the Expansion Fair Rental Value for such Expansion Space. If these
determinations differ by more than ten percent (10%), then the Landlord
and the Tenant shall mutually select a person with the qualifications
stated above (the "Final Professional") to resolve the dispute as to the
Expansion Fair Rental Value for such Expansion Space. If the Landlord and
the Tenant cannot agree upon the designation of the Final Professional
within thirty (30) days of the exchange of the first valuation reports,
either party may apply to the American Arbitration Association, the
Greater Boston Real Estate Board, or any successor thereto, for the
designation of a Final Professional. Within ten (10) days of the selection
of the Final Professional, the Landlord and the Tenant shall each submit
to the Final Professional a copy of their respective real estate
professional's determination of the Expansion Fair Rental Value for such
Space. The Final Professional shall not perform his or her own valuation,
but rather shall, within thirty (30) days after such submissions, select
the submission which is closest to the
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determination of the Expansion Fair Rental Value for such Expansion Space
which the Final Professional would have made acting alone. The Final
Professional shall give notice of his or her selection to the Landlord and
the Tenant and such decision shall be final and binding upon the Landlord
and the Tenant. Each party shall pay the fees and expenses of its real
estate professional and counsel, if any, in connection with any proceeding
under this paragraph, and one-half of the fees and expenses of the Final
Professional. In the event that the Tenant commences occupancy of any
Expansion Space prior to a final determination of the Expansion Fair
Rental Value therefor (the "Expansion Rent Determination Date"), then the
Tenant shall pay the Annual Fixed Rent at the rate specified in the
Expansion Opportunity Notice until the Expansion Fair Rental Value is
established. If the Expansion Fair Rental Value is determined to be
greater than the Annual Fixed Rent paid with respect to the Expansion
Space prior to the Expansion Rent Determination Date, then the Tenant
shall pay to the Landlord the amount of such underpayment within ten (10)
days of the Expansion Rent Determination Date, and if the Expansion Fair
Rental Value is determined to be less than the Annual Fixed Rent paid with
respect to the Expansion Space prior to the Expansion Rent Determination
Date, then the Landlord shall credit the amount of such overpayment
against the monthly installments of Annual Fixed Rent thereafter coming
due.
(g) The Tenant's election to lease any Expansion Space under this
Section 2.7 shall automatically increase the Premises to include the same
in accordance herewith. No amendment to this Lease shall be necessary to
effect the exercise of the Tenant's rights pursuant to this Section 2.7.
(h) Notwithstanding anything to the contrary contained in this
Section 2.7, the Landlord may grant to other third party tenants occupying
space within the Building first priority expansion rights for additional
space located on the remainder of the first floor of the 45 Sidney
Building which is not part of the Preferred Expansion Space identified in
Exhibit B-3 attached hereto, in which case Tenant's right of first
opportunity to lease such space shall arise only upon the failure of the
third party tenant to exercise its expansion rights with respect to such
space prior to the expiration of such third party tenant's lease.
ARTICLE III
RENT AND OTHER PAYMENTS
Section 3.1 Annual Fixed Rent. From and after the First Rent Commencement
Date (as defined in Exhibit A), the Tenant shall pay, without notice or demand,
monthly installments of one-twelfth (1/12th) of the Annual Fixed Rent in effect
and applicable to the Premises in advance for each full calendar month of the
Term following the First Rent Commencement Date and of the corresponding
fraction of said one-twelfth (1/12th) for any fraction of a calendar month at
the First Rent Commencement Date. The Annual Fixed Rent applicable to the
Premises during the Initial Term shall be as set forth in Exhibit A.
Notwithstanding the foregoing, during the period from the First Rent
Commencement Date until the day prior to the
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occurrence of the Rent Commencement Date with respect to the remaining building
in which the Premises is located, such payments shall be pro rata on the basis
of the portion of the Premises with respect to which the Rent Commencement Date
has occurred.
Section 3.2 Real Estate Taxes. From and after the First Rent Commencement
Date, during the Term, the Tenant shall pay to the Landlord, as Additional Rent,
the Tenant's Tax Expenses Allocable to the Premises (as such term is hereinafter
defined) in accordance with this Section 3.2. Notwithstanding the foregoing,
during the period from the First Rent Commencement Date until the day prior to
the occurrence of the Rent Commencement Date with respect to the remaining
building in which the Premises is located, such payments shall be pro rata on
the basis of the portion of the Premises with respect to which the Rent
Commencement Date has occurred. The terms used in this Section 3.2 are defined
as follows:
(a) "Fiscal Year" means the 12-month period beginning February 1
each year, or such other fiscal period of twelve (12) consecutive months
hereinafter adopted by Landlord for lease administration purposes.
(b) "The Tenant's Tax Expense Allocable to the Premises" means (i)
that portion of the Landlord's Tax Expenses for a Fiscal Year which bears
the same proportion thereto as the Rentable Floor Area of the Premises
(from time to time) bears to the Total Rentable Floor Area of the Building
and (ii) in the event that the Premises are improved to a standard which
is higher or lower than other portions of the Property, such portion of
the Real Estate Taxes on the Property with respect to any Fiscal Year as
is appropriate so that the Tenant bears the portion of the Real Estate
Taxes which are properly allocable to the Premises, as reasonably
determined by Landlord based on assessment values and other information
with respect to the Premises and the Building made available by the
assessing authorities. If the Tenant disagrees with any adjustment that
the Landlord has made in its determination of the Tenant's Tax Expense
Allocable to the Premises by virtue of clause (ii), above, then it shall,
within sixty (60) days after its receipt of documentation establishing
Tenant's Tax Expense Allocable to the Premises, send written notice of
such disagreement to the Landlord. After Landlord's receipt of such
notice, the Landlord and the Tenant shall have thirty (30) days within
which to resolve such controversy after which such controversy shall be
resolved by submittal to the binding Dispute Resolution Process described
in Exhibit J attached hereto and made a part hereof.
(c) "The Landlord's Tax Expenses" with respect to any Fiscal Year
means the aggregate Real Estate Taxes on the Property with respect to that
Fiscal Year, reduced by any abatement receipts with respect to that Fiscal
Year.
(d) "Real Estate Taxes" means (i) all taxes and special assessments
of every kind and nature assessed by any governmental authority on the
applicable property; and (ii) reasonable expenses of any proceedings for
abatement of such taxes or special assessments. Any special assessments to
be included within the definition of "Real Estate Taxes" shall be limited
to the amount of the installment (plus any interest thereon)
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of such special tax or special assessment (which shall be payable over the
longest period permitted by law) required to be paid during the Fiscal
Year in respect of which such taxes are being determined. The Landlord
hereby represents and warrants that, as of the date hereof, it has no
knowledge of any special assessments affecting either the Premises or
University Park. There shall be excluded from such taxes all income,
estate, succession, inheritance, excess profit, franchise and transfer
taxes, all so-called linkage payments and delinquency interest or
penalties; provided, however, that if at any time during the Term the
present system of ad valorem taxation of real property shall be changed so
that in lieu of the whole or any part of the ad valorem tax on real
property, there shall be assessed on the Landlord a capital levy or other
tax on the gross rents received with respect to the Property, or a
federal, state, county, municipal or other local income, franchise, excise
or similar tax, assessment, levy or charge (distinct from any now in
effect) based, in whole or in part, upon any such gross rents, then any
and all of such taxes, assessments, levies or charges, to the extent so
based, shall be deemed to be included within the term "Real Estate Taxes,"
based on the Building being the Landlord's only property. There shall also
be excluded from the definition of "Real Estate Taxes" any taxes on the 75
Sidney Building or the 45 Sidney Building, to the extent such building is
occupied entirely by the Tenant as part of the Premises, relating to
capital improvements not approved by the Tenant; provided, however, that
Landlord may make any improvements or repairs as it may determine in its
reasonable discretion are necessary in order to maintain the Building in
the condition required under Section 5.1, without regard to the tax impact
of such improvements and repairs.
Payments by the Tenant on account of the Tenant's Tax Expenses Allocable
to the Premises shall be made monthly at the time and in the fashion herein
provided for the payment of Annual Fixed Rent and shall be in an amount of the
greater of (i) one-twelfth (1/12th) of the Tenant's Tax Expenses Allocable to
the Premises for the current Fiscal Year as reasonably estimated by the
Landlord, or (ii) an amount reasonably estimated by any ground lessor of the
Land or holder of a first mortgage on the Property, to be sufficient, if paid
monthly, to pay the Landlord's Tax Expenses on the dates due to the taxing
authority.
Not later than ninety (90) days after the Landlord's Tax Expenses are
determinable for the first Fiscal Year of the Term or fraction thereof and for
each succeeding Fiscal Year or fraction thereof during the Term, the Landlord
shall render the Tenant a statement in reasonable detail showing for the
preceding year or fraction thereof, as the case may be, real estate taxes on the
Property, and any abatements or refunds of such taxes. Reasonable expenses
incurred in obtaining any tax abatement or refund not previously charged may be
charged against such tax abatement or refund before the adjustments are made for
the Fiscal Year. If at the time such statement is rendered it is determined with
respect to any Fiscal Year, that the Tenant has paid (i) less than the Tenant's
Tax Expenses Allocable to the Premises or (ii) more than the Tenant's Tax
Expenses Allocable to the Premises, then, in the case of (i) the Tenant shall
pay to the Landlord, as Additional Rent, within fifteen (15) days of such
statement the amount of such underpayment and, in the case of (ii) the Landlord
shall credit the amount of such overpayment against the monthly installments of
the Tenant's Tax Expenses Allocable to the Premises next thereafter
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coming due (or refund such overpayment within fifteen (15) days if the Term has
expired and the Tenant has no further obligation to the Landlord).
To the extent that real estate taxes shall be payable to the taxing
authority in installments with respect to periods less than a Fiscal Year, the
statement to be furnished by the Landlord shall be rendered and payments made on
account of such installments. Notwithstanding the foregoing provisions, no
decrease in Landlord's Tax Expenses with respect to any Fiscal Year shall result
in a reduction of the amount otherwise payable by the Tenant if and to the
extent said decrease is attributable to vacancies in the Building, rather than
to a reduction in the assessed value of the Property as a whole or a reduction
in the tax rate. The Landlord shall so notify the Tenant if a decrease in
Landlord's Tax Expense is attributable to vacancies in the Building as opposed
to a reduction in either the assessed value of the Property or the tax rate. In
such case, the Tenant shall have sixty (60) days after receipt of such notice to
challenge, in writing, the Landlord's contention. Thereafter, the Landlord and
Tenant shall have thirty (30) days within which to resolve the disagreement,
after which such controversy shall be submitted to the binding Dispute
Resolution Process described in Exhibit J. Landlord shall, upon Tenant's request
therefor, provide Tenant with copies of all applicable tax bills, statements,
records and the like, as well as copies of Landlord's calculations and all other
relevant information.
At the reasonable request of the Tenant, the Landlord shall use reasonable
efforts to contest or seek abatement of any Real Estate Taxes affecting the
Premises. Should the Landlord contest or seek abatement of such taxes, then it
shall do so with diligence and shall keep the Tenant appropriately informed, in
the Landlord's reasonable discretion, as to such action.
Section 3.3 Operating Expenses. From and after the First Rent Commencement
Date, during the Term the Tenant shall pay to the Landlord, as Additional Rent,
the Tenant's Operating Expenses Allocable to the Premises, as hereinafter
defined, in accordance with this Section 3.3. Notwithstanding the foregoing,
during the period from the First Rent Commencement Date until the day prior to
the occurrence of the Rent Commencement Date with respect to the remaining
building in which the Premises is located, such payments shall be pro rata on
the basis of the portion of the Premises with respect to which the Rent
Commencement Date has occurred. The terms used in this Section 3.3 are defined
as follows:
(a) "The Tenant's Operating Expenses Allocable to the Premises"
means that portion of the Operating Expenses for the Property which bears
the same proportion thereto as the Rentable Floor Area of the Premises
(from time to time) bears to the Total Rentable Floor Area of the
Building.
(b) "Operating Expenses for the Property" means the Landlord's
reasonable cost of operating, cleaning, maintaining and repairing the
Property, the roads, driveways and walkways for providing access to the
Building and shall include without limitation, the cost of fulfilling the
maintenance and repair obligations required to be performed by Landlord
under Section 5.1 and the cost of services specified on Exhibit D;
premiums for insurance carried pursuant to Section 7.4; the reasonable
amount deductible from any insurance claim of the Landlord; reasonable
compensation including, without limitation,
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reasonable fringe benefits, worker's compensation insurance premiums and
payroll taxes paid to, for or with respect to all persons (University
Park/Building general manager and below) directly engaged in the
operating, maintaining or cleaning of the Property; interior landscaping
and maintenance; steam, water, sewer, gas, oil electricity, telephone and
other utility charges (excluding such utility charges either separately
metered or separately chargeable to tenants for either measured or
additional or special services); cost of providing conditioned water for
HVAC services; cost of building and cleaning supplies; the costs of
routine environmental management programs operated by Landlord; market
rental costs for equipment used in the operating, cleaning, maintaining or
repairing of the Property, or the amortized cost of equipment owned by the
Landlord; cost of cleaning; cost of maintenance, repairs and replacements
(other than repairs and replacements reimbursed from contractors under
guarantees or made by the Landlord pursuant to the Work Letter); cost of
snow removal; cost of landscape maintenance; security services; payments
under service contracts with independent contractors; management fees at
reasonable rates consistent with comparable single-tenant or multi-tenant
buildings, as applicable, in the Cambridge market with the type of
occupancy and services rendered; the cost of any capital repair or
improvement: (i) required by any law or regulation enacted or promulgated
after the issuance of a building permit for the construction of the
Building, (ii) which is required in order to maintain the Property in the
condition it is required to be kept and maintained under Section 5.1
(excluding those repairs, however, which are necessitated by Landlord's
negligence or willful misconduct or the errors or omissions by the
Landlord's base building architect or contractor(s) to the extent such
errors and omissions are covered by insurance or are otherwise recovered
by the Landlord), (iii) which reduces the Operating Expenses for the
Property, or (iv) which improves the management and operation of the
Property in a manner reasonably acceptable to Tenant (all such capital
costs to be amortized in accordance with generally accepted accounting
principles, together with interest on the unamortized balance at the base
lending rate announced by a major commercial bank designated by the
Landlord, or such higher rate as may have been paid by the Landlord on
funds borrowed for the purpose of constructing such capital improvements,
with only the annual amortization amount being included in Operating
Expenses with respect to any Fiscal Year); charges equitably and
reasonably allocated to the Building for the operating, cleaning,
maintaining, securing and repairing of University Park common areas and
amenities; and all other reasonable and necessary (in the Landlord's
reasonable judgment) expenses paid in connection with the operation,
cleaning, maintenance and repair of the Property. If, for any reason
portions of the rentable area of the Building not included in the Premises
were not occupied by tenants or the Landlord was not supplying all tenants
with the services being supplied under the Lease or any tenants in the
Building were supplied with a lesser level of standard services than those
supplied to the Tenant under this Lease, Landlord's Operating Expenses for
the Property shall include the amounts reasonably determined by Landlord
which would have been incurred if all of the rentable area in the Building
were occupied and were supplied with the same level of standard services
as supplied to the Tenant under this Lease. Likewise, if any tenants in
the Building were supplied with a higher level of standard services than
those supplied to the Tenant, Landlord's Operating Expenses for the
Property shall be reduced to an amount reasonably determined by the
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Landlord which would have been incurred if all tenants in the Building
were supplied with the same level of services as supplied to the Tenant
under this Lease. Tenant acknowledges that the Building is comprised of
two (2) distinct buildings, and that one or more of the Operating Expenses
for the Property may be allocated by Landlord other than based solely on
the respective square footage in each such building in appropriate
circumstances if the services with respect to which such Operating
Expenses relate disproportionally benefit one building or the other (e.g.
Operating Expenses associated with a lobby attendant located in one
building but not in the other may be allocated solely to the building in
which such lobby attendant is located). Any such disproportional
allocation, however, shall be reasonably determined by the Landlord.
Operating Expenses for the Property shall not include the following:
the amortized cost of capital improvements expressly not allowed pursuant
to the preceding paragraph unless otherwise approved by the Tenant; the
Landlord's Tax Expense; cost of repairs or replacements (i) resulting from
eminent domain takings, (ii) to the extent reimbursed by insurance or
otherwise, (iii) resulting from correcting defects in the work for which
the Landlord is obligated pursuant to the Work Letter, or (iv) resulting
from Landlord's negligence or willful misconduct; replacement or
contingency reserves; ground lease rents or payment of debt obligations;
legal and other professional fees for matters not relating to the normal
administration and operation of the Property, such as those fees incurred
in connection with eviction proceedings and rent collection; promotional,
advertising, public relations or brokerage fees and commissions paid in
connection with services rendered for securing or renewing leases; lease
up and tenant improvement costs for space other than the Premises in the
Building; interest or penalties for late payments; depreciation and other
non-cash charges; and separately metered or submetered utilities, which
will be the subject of separate charges to each of the applicable tenants
of the Building.
Notwithstanding anything to the contrary contained in this Section
3.3(b), the reasonable costs of the Tenant-Provided Services (as defined
in Section 5.3) shall be excluded from the calculation of the Tenant's
Operating Expenses Allocable to the Premises.
Payments by the Tenant for its share of the Operating Expenses for the
Property shall be made monthly at the time and in the fashion herein provided
for the payment of Annual Fixed Rent. The amount so to be paid to the Landlord
shall be an amount from time to time reasonably estimated by the Landlord to be
sufficient to aggregate a sum equal to the Tenant's share of the Operating
Expenses for the Property for each Fiscal Year.
Not later than one hundred twenty (120) days after the end of each Fiscal
Year or fraction thereof during the Term or fraction thereof at the end of the
Term, the Landlord shall render the Tenant a statement in reasonable detail and
according to usual accounting practices certified by an officer of the Landlord,
showing for the preceding Fiscal Year or fraction thereof, as the case may be,
the Operating Expenses for the Property and the Tenant's Operating Expenses
Allocable to the Premises. Said statement to be rendered to the Tenant also
shall show for the preceding
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Fiscal Year or fraction thereof, as the case may be, the amounts of Operating
Expenses already paid by the Tenant. If at the time such statement is rendered
it is determined with respect to any Fiscal Year, that the Tenant has paid (i)
less than the Tenant's Operating Expenses Allocable to the Premises or (ii) more
than the Tenant's Operating Expenses Allocable to the Premises, then, in the
case of (i) the Tenant shall pay to the Landlord, as Additional Rent, within
thirty (30) days of such statement the amounts of such underpayment and, in the
case of (ii) the Landlord shall credit the amount of such overpayment against
the monthly installments of the Tenant's Operating Expenses Allocable to the
Premises next thereafter coming due (or refund such overpayment within thirty
(30) days if the Term has expired and the Tenant has no further obligation to
the Landlord).
The Tenant may examine or audit the accounts and original bills for
Landlord's Operating Expenses upon ten (10) days' prior written notice to the
Landlord, but no more often than one (1) time in any Fiscal Year. The Landlord
agrees that it will make available to the Tenant in the Landlord's office in
University Park, during regular business hours, such information as the Landlord
has available at such office. In similar manner, the Tenant may examine such
further records as the Landlord (or its affiliates) may have, but such matters
will be conducted where the Landlord customarily keeps such records, which may
be at the headquarters of the Landlord's parent company. The Tenant shall bear
the cost of any such audit, unless the same discloses a discrepancy in excess of
three percent (3%) of the Tenant's Operating Expenses Allocable to the Premises,
in which event the Landlord shall reimburse the Tenant for such costs reasonably
incurred. For any given Fiscal Year of the Landlord, the Tenant must make any
such audit within two (2) years after the Tenant's receipt of itemized
statements (and any supporting documentation requested by the Tenant) referred
to in the preceding paragraph. The Tenant must further make any claim for
revision of Tenant's Operating Expenses Allocable to the Premises for such
Fiscal Year by written notice to the Landlord within said two (2) year period.
Section 3.4 Other Utility Charges. During the Term, the Tenant shall pay
directly to the provider of the service all separately metered charges for
steam, heat, gas, electricity, fuel and other services and utilities furnished
to the Premises, and shall pay to Landlord as Additional Rent its pro rata share
of any utilities or services such as but not limited to water and sewer which
are measured based on submetered usage in the Premises. The Tenant shall cause
all electricity and gas service (specifically serving the Premises and not the
common areas) provided by a public utility to be furnished on a separately
metered basis.
Section 3.5 Above-standard Services. If the Tenant requests and the
Landlord elects to provide any services to the Tenant in addition to those
described in Exhibit D, the Tenant shall pay to the Landlord, as Additional
Rent, the amount billed by Landlord for such services at Landlord's standard
rates as from time to time in effect, so long as such rates are consistent with
comparable services in comparable buildings within the Cambridge market. If the
Tenant has requested that such services be provided on a regular basis, the
Tenant shall, if requested by the Landlord, pay for such services at their
actual cost to Landlord, including, without limitation, a reasonable overhead
component, at the time and in the fashion in which Annual Fixed Rent under this
Lease is payable. Otherwise, the Tenant shall pay for such additional services
within fifteen (15) days after receipt of an invoice from the Landlord.
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Section 3.6 No Offsets. Annual Fixed Rent and Additional Rent shall be
paid by the Tenant without offset, abatement or deduction except as provided
herein.
Section 3.7 Net Lease. It is understood and agreed that this Lease is a
net lease and that the Annual Fixed Rent is absolutely net to the Landlord
excepting only the Landlord's obligations to pay any debt service or ground rent
on the Property, to provide the Landlord's services, to repair or restore the
Premises after any casualty or condemnation as provided in Article VIII hereof,
and to pay the real estate taxes and operating expenses which the Tenant is not
required to pay under this Lease.
ARTICLE IV
ALTERATIONS
Section 4.1 Consent Required for Tenant's Alterations. The Tenant shall
not make alterations or additions to the Premises except in accordance with the
Tenant Design and Construction Manual, and with plans and specifications
therefor first approved by the Landlord, which approval shall not be withheld
unreasonably. Notwithstanding the foregoing, the Tenant may, from time to time
without the Landlord's prior consent and at the Tenant's own expense, make
interior non-structural alterations and changes in and to the Premises costing
less than $50,000.00 in each instance, provided that such alterations or changes
(i) do not materially diminish the value of the Building, (ii) are not
incompatible with existing mechanical or electrical, plumbing, HVAC or other
systems in the Building, or use more than the Tenant's pro rata share of
Building capacities as outlined in Exhibit F attached hereto, or (iii) do not
affect the exterior appearance of the Building, in each case, as reasonably
determined by the Landlord. Whether or not the Tenant's changes and/or
alterations require the Landlord's consent pursuant to this paragraph, the
Tenant shall give reasonable prior notice to the Landlord of any alterations and
changes in and to the Premises which the Tenant intends to undertake, together
with a reasonable description of the proposed work and such plans and
specifications, if any, as the Tenant has therefor. Tenant shall furnish
Landlord an "as-built" set of plans and specifications of the Premises annually,
on the first day of each Fiscal Year, in addition to any other plans and
specifications furnished by Tenant to Landlord from time to time. The Landlord
shall not be deemed unreasonable for withholding approval of any alterations or
additions which (i) involve or might affect any structural or exterior element
of the Building, any area or element outside of the Premises (including, without
limitation, interior alterations or additions that affect the exterior
appearance of the Building), or any facility serving any area of the Building
outside of the Premises or any publicly accessible major interior features of
the Building; (ii) will require unusual expense to readapt the Premises to
normal use as a biotechnology office and research and development facility
unless the Tenant first gives assurance acceptable to the Landlord that such
readaptation will be made prior to such termination without expense to the
Landlord; or (iii) would not be compatible with existing mechanical or
electrical, plumbing, HVAC or other systems in the Building, or use more than
the Tenant's pro rata share of Building capacities as outlined in Exhibit F
attached hereto and made a part hereof, in each case, as reasonably determined
by the Landlord; provided, however, with respect to clause (iii), the Landlord
shall
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not withhold its approval if the Tenant agrees to, at its own cost and expense
and within a reasonable period of time as determined by the Landlord, make such
alterations or additions compatible with all Building systems and equipment.
Neither the Landlord's failure to object to any proposed alterations or
additions, nor the Landlord's approval of any plans and specifications furnished
by Tenant to Landlord, shall be construed as superseding in any respect, or as a
waiver of Landlord's right to enforce, the Tenant's obligation to fulfill all of
the terms and conditions of this Lease applicable to any work contemplated
thereby.
Notwithstanding anything to the contrary contained in this Section 4.1, if
any of the Tenant's proposed alterations and/or additions affect the roof or the
envelope of the Building, the following additional conditions shall apply:
(a) Such alterations and changes will not in any way interfere with
the proper functioning of and Landlord's access to other equipment located
on the roof of the Building; and
(b) Adequate measures are taken to screen and otherwise reduce the
visibility and noise of such mechanical equipment, antennae and dishes
consistent with the appearance and design scheme required by the City of
Cambridge and other structures in University Park.
Section 4.2 Ownership of Alterations. All alterations and additions shall
be part of the Building and owned by the Landlord, except for certain
biotechnology laboratory equipment that is to be installed in the Premises,
which shall be deemed to be independent of the real property, and which have
been identified as Removable Alterations (as defined herein) in accordance with
the terms of this Section 4.2 and by mutual agreement between the Landlord and
Tenant either at the time of the Tenant's initial occupancy of the Premises or
from time to time thereafter; provided, however, that the Landlord may require
removal by Tenant of all or any portion of all other alterations and additions
so long as Landlord advised Tenant of such requirement prior to the installation
of the alteration or addition by Tenant. If the Tenant fails to inform the
Landlord, in writing, at least ten (10) days prior to the installation of the
alteration or addition, thereby preventing the Landlord from making a
determination as to whether it will want such addition or alteration removed
from the Premises prior to its installation, then the Landlord may require such
removal without exception. All movable equipment and furnishings not attached to
the Premises shall remain the property of the Tenant and shall be removed by the
Tenant upon termination or expiration of this Lease. Notwithstanding anything to
the contrary contained in this Section 4.2, any alterations and additions funded
by the Landlord and installed as part of the Leasehold Improvements (as defined
in the Work Letter) (the "Landlord Funded Alterations") shall be part of the
Building and owned by the Landlord; all alterations and additions which are
necessary for the use of the Premises as an operational biotechnology laboratory
(the "Base Laboratory Alterations"), regardless of who funded their acquisition
and installation, shall in no event constitute Removable Alterations; and all
alterations and additions which: (i) are not Landlord Funded Alterations; (ii)
are not Base Laboratory Alterations; and (iii) have been designated as Removable
Alterations by mutual agreement from time to time established between the
Landlord and the Tenant (such items being hereinafter collectively referred to
as the "Removable
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Alterations") shall remain the property of the Tenant and shall be removed by
the Tenant upon termination or expiration of this Lease, unless the Landlord
elects to purchase all or a portion of such Removable Alterations from the
Tenant for a price equal to the then depreciated book value thereof established
on the Tenant's books maintained in accordance with generally accepted
accounting principals consistently applied. If the Landlord terminates this
Lease on the basis of a default by the Tenant and, the Landlord elects to
purchase all or a portion of the Removable Alterations as provided above, then
the Landlord will credit such amounts due to the Tenant against any sums owed by
Tenant to Landlord, whether overdue Annual Fixed Rent, Additional Rent, damages
or otherwise. In connection with any removal by the Tenant of the Removable
Alterations, the Tenant shall cap off all utility connections behind the
adjacent interior finish and restore such interior finish to the extent
necessary so that the Premises are left with complete wall, ceiling and floor
finishes.
The Tenant shall have the right to subject the Removable Alterations to a
prior security interest in connection with the financing of its Leasehold
Improvements (as defined in the Work Letter) so long as the security agreement
evidencing the secured party's interest in such Removable Alterations:
(a) Requires the secured party to offer the Removable Alterations to
the Landlord prior to offering them to third parties in the case of a
default by the Tenant as part of the secured party's remedy under such
security agreement;
(b) Prohibits the sale of any Removable Alterations at the Premises;
and
(c) Provides that the secured party agrees to fulfill the Tenant's
restoration and repair obligations as a condition to recovering possession
of the Removable Alterations.
Section 4.3 Construction Requirements for Alterations. All construction
work by the Tenant shall be done in a good and workmanlike manner employing only
first-class materials and in compliance with Landlord's construction rules and
regulations and with all applicable laws and all lawful ordinances, regulations
and orders of Governmental authority and insurers of the Building. The Landlord
or Landlord's authorized agent may (but without any implied obligation to do so)
inspect the work of the Tenant at reasonable times and shall give notice of
observed defects. All of the Tenant's alterations and additions and installation
of furnishings shall be coordinated with any work being performed by the
Landlord and in such manner as to maintain harmonious labor relations and not to
damage the Building or interfere with Building construction or operation and,
except for installation of furnishings, shall be performed by the Landlord's
general contractor or by contractors or workmen first approved by the Landlord,
which approval the Landlord agrees not to unreasonably withhold or delay. The
Tenant, before starting any work, shall receive and comply with Landlord's
construction rules and regulations and shall cause Tenant's contractors to
comply therewith, shall secure all licenses and permits necessary therefor and
shall deliver to the Landlord a statement of the names of all its contractors
and subcontractors and the estimated cost of all labor and material to be
furnished by them and security satisfactory to the Landlord in its reasonable
discretion and consistent with the security
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requirements for comparable work in comparable buildings in the Cambridge market
protecting the Landlord against liens arising out of the furnishing of such
labor and material; and cause each contractor to carry worker's compensation
insurance in statutory amounts covering all the contractors' and subcontractors'
employees and comprehensive general public liability insurance with limits of
$1,000,000 (individual ) and $5,000,000 (occurrence), or in such lesser amounts
as Landlord may accept, covering personal injury and death and property damage
(all such insurance to be written in companies approved reasonably by the
Landlord and insuring the Landlord, such individuals and entities affiliated
with the Landlord as the Landlord may designate, and the Tenant as well as the
contractors and to contain a requirement for at least thirty (30) days' notice
to the Landlord prior to cancellation, nonrenewal or material change), and to
deliver to the Landlord certificates of all such insurance.
Section 4.4 Payment for Tenant Alterations. The Tenant agrees to pay
promptly when due the entire cost of any work done on the Premises by the
Tenant, its agents, employees or independent contractors, and not to cause or
permit any liens for labor or materials performed or furnished in connection
therewith to attach to the Premises or the Property and promptly to discharge or
bond over any such liens which may so attach. If any such lien shall be filed
against the Premises or the Property and the Tenant shall fail to cause such
lien to be discharged within fifteen (15) days after receipt by the Tenant of
notice of the filing thereof, the Landlord after a further five (5) days'
written notice may cause such lien to be discharged by payment, bond or
otherwise without investigation as to the validity thereof or as to any offsets
or defenses which the Tenant may have with respect to the amount claimed. The
Tenant shall reimburse the Landlord, as additional rent, for any cost so
incurred and shall indemnify and hold harmless the Landlord from and against any
and all claims, costs, damages, liabilities and expenses (including reasonable
attorneys' fees) which may be incurred or suffered by the Landlord by reason of
any such lien or its discharge.
ARTICLE V
RESPONSIBILITY FOR CONDITION OF BUILDING AND PREMISES
Section 5.1 Maintenance of Building and Common Areas by Landlord. Except
as otherwise provided in Section 5.3 and Article VIII, the Landlord shall make
such repairs to the major structural elements of the Building, including the
roof, exterior walls and floor slabs as may be necessary to keep and maintain
the same in good condition and maintain and make such repairs to the Common
Building Areas as may be necessary to keep them in good order, condition and
repair, including without limitation, the glass in the exterior walls of the
Building, and all mechanical systems and equipment serving the Building and not
exclusively serving the Premises. The Landlord shall further perform the
services designated as Landlord's Services on Exhibit D. The Landlord shall in
no event be responsible to the Tenant for any condition in the Premises, the
Building or the Land caused by an act or neglect of the Tenant, or any invitee
or contractor or agent of the Tenant. Landlord's costs in performing such
services shall be reimbursed by the Tenant to the extent provided in Section
3.3.
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Section 5.2 Maintenance of Premises by Tenant. The Tenant shall keep neat
and clean and maintain in good order, condition and repair the Premises and
every part thereof and all Building and mechanical equipment exclusively serving
the Premises, reasonable wear and tear excepted and further excepting those
repairs for which the Landlord is responsible pursuant to Sections 5.1, 8.1 and
8.5, and shall surrender the Premises and all alterations and additions thereto,
at the end of the Term, in such condition, first removing all goods and effects
of the Tenant and, to the extent specified by the Landlord by notice to the
Tenant, all alterations and additions, including the Removable Alterations, made
by the Tenant, which Tenant has not elected to retain in accordance with the
terms of Sections 4.2 and 5.2, and repairing any damage caused by such removal
and restoring the Premises and leaving them clean and neat. If the Tenant elects
to provide the Tenant-Provided Services, identified as such in Section 5.3, the
Tenant shall perform the Tenant-Provided Services promptly, as necessary and
appropriate, with due diligence and in accordance with the standards therefor
established under Section 5.3. The Tenant shall not permit or commit any damage
(waste), and the Tenant shall be responsible for the cost of repairs which may
be made necessary by reason of damages to common areas in the Building by the
Tenant, or any of the contractors or invitees of the Tenant. Mechanical, HVAC,
and all laboratory systems and equipment shall be maintained in good order,
condition and repair consistent with prevailing standards at comparable
first-class biotechnology facilities.
Section 5.3 Tenant-Provided Services. Notwithstanding anything to the
contrary contained in this Article V, the Tenant may choose to provide, at its
own cost and expense, in lieu of the Landlord providing the same under this
Lease, any of the building services within the Premises, including the services
specified in Exhibit D and such other services as may be hereafter approved by
the Landlord in its reasonable discretion. Such services which are paid for and
provided by the Tenant are hereinafter referred to as the "Tenant-Provided
Services." The provision by Tenant of Tenant-Provided Services shall be subject
to reasonable standards imposed by Landlord for the purpose of assuring the
fulfillment of the requirements of any ground lessee, mortgagee, tenant,
governmental authority or other third party pertaining to the maintenance and
operation of the Building in good order, condition and repair and in compliance
with all legal requirements.
With respect to HVAC and certain other Building equipment at both the 45
Sidney Building and the 75 Sidney Building, the Tenant and the Landlord shall
provide maintenance services in accordance with the terms set forth in Exhibit
D-1 attached hereto and made a part hereof. The terms of Exhibit D-1 may be
modified from time to time by mutual reasonable agreement between the parties
hereto. In connection with the maintenance of HVAC and other Building Equipment,
both the Landlord and Tenant agree to provide to each other, within a reasonable
period of time after receipt thereof, access to all inspection records and
reports pertaining to such equipment.
Section 5.4 Delays in Landlord's Services. The Landlord shall not be
liable to the Tenant for any compensation or reduction of rent by reason or
inconvenience or annoyance or for loss of business arising from the necessity of
the Landlord or its agents entering the Premises for any purposes authorized in
this Lease, or for repairing the Premises or any portion of the Building. In
case the Landlord is prevented or delayed from making any repairs, alterations
or
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improvements, or furnishing any services or performing any other covenant or
duty to be performed on the Landlord's part, by reason of any External Cause,
the Landlord shall not be liable to the Tenant therefor, nor, except as
expressly otherwise provided in this Lease, shall the Tenant be entitled to any
abatement or reduction of rent by reason thereof, nor shall the same give rise
to a claim in the Tenant's favor that such failure constitutes actual or
constructive, total or partial, eviction from the Premises.
The Landlord reserves the right to stop any service or utility system the
Landlord provides or causes to be provided under this Lease (i.e. exclusive of
any Tenant-Provided Services or other obligations of the Tenant under this
Lease) when necessary by reason of accident or emergency, until necessary
repairs have been completed; provided, however, that in each instance of
stoppage, the Landlord shall exercise reasonable diligence to eliminate the
cause thereof. Except in case of emergency repairs, the Landlord will schedule
contemplated stoppages at times reasonably approved by the Tenant and will use
reasonable efforts to avoid unnecessary inconvenience to the Tenant by reason
thereof. To the extent that the Landlord is providing or causing to be provided
heat, light or any utility or service, in no event shall the Landlord have any
liability to the Tenant for the unavailability of the same to the extent that
such unavailability is caused by External Causes, provided, however, that the
Landlord is obligated to exercise reasonable efforts to restore such services or
utility systems' operation. The Landlord agrees to carry rent interruption
insurance in commercially reasonable amounts which, to the extent commercially
reasonable, permits recovery within five (5) days after the insured peril. If
the unavailability of heat, light or any utility or service provided or caused
to be provided by the Landlord other than the unavailability of the same due to
the Tenant's acts or omissions renders all or any portion of the Premises
untenantable, and the Tenant ceases to occupy the same for the conduct of its
business, the Tenant shall receive an abatement of rent as reasonably determined
by the Landlord, taking into account the extent of Tenant's loss of use of the
Premises and the loss of use suffered by other tenants of the Building,
commencing with the day following the expiration of the deductible period
provided in Landlord's rent interruption insurance. For all purposes of this
Lease, if Tenant has responsibility for maintenance and repair of any aspect of
the Building or any equipment or system therein, the functioning and performance
of the same shall be the responsibility of the Tenant under this Lease, and
shall in no event constitute a service or utility system that the Landlord
provides or causes to be provided under this Lease.
Section 5.5 Tenant's Responsibilities Regarding Hazardous Materials. The
Tenant covenants and agrees that the Tenant shall not use, generate, store or
dispose, nor shall the Tenant suffer or permit the use, generation, storing or
disposal in the Premises or otherwise by any of Tenant's contractors, licensees,
invitees, agents or employees, of any oil, toxic substances, hazardous wastes or
hazardous materials (collectively, "Hazardous Materials") in, on or about the
Premises, the Building or the Land, except for Hazardous Materials that are
necessary for Tenant's operation of an office and research facility, and in all
cases which Hazardous Materials must be used, generated, stored and disposed of
in compliance with all applicable law and regulations. The Tenant covenants and
agrees that no dumping, flushing or other introduction of Hazardous Materials
into the septic, sewage or other waste disposal systems serving the Premises
shall occur, except as specifically permitted by law and subject to the
conditions and qualifications imposed by any governmental license or permit. The
Tenant shall provide to the
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Landlord copies of all licenses and permits that the Tenant has been required to
obtain prior to the handling of any such Hazardous Materials, and the Tenant
must obtain all of such licenses and permits prior to the commencement of
operations in the Premises requiring the same. From time to time during the Term
of this Lease, and thereafter during which the Tenant occupies any portion of
the Premises, the Tenant shall provide the Landlord with such reasonable
substantiation of the Tenant's compliance with the requirements of this Section
5.5 and any additional requirements set forth in Section 6.2 as the Landlord may
reasonably request. The Tenant covenants and agrees that the Tenant shall, at
its sole cost, promptly remove or remediate all Hazardous Materials that are
found upon the Premises, the Building or the Land by virtue of the failure of
the foregoing covenants and agreements to have been fulfilled, or otherwise as
the result of the act or omission of Tenant or its contractors, licensees,
invitees, agents or employees, in a manner complying with all applicable laws
and regulations and the provisions of this Lease. If the Tenant should have any
responsibility under this Section 5.5 to remove or remediate Hazardous
Materials, the Tenant shall keep the Landlord reasonably informed as to the
status of the environmental condition at issue, promptly furnish to the Landlord
copies of all regulatory filings with any governmental regulatory agencies in
connection therewith, and substantiate the performance of its obligations under
this Section 5.5.
Section 5.6 Landlord's Responsibilities Regarding Hazardous Materials.
During the Term of this Lease, if the removal or remediation of Hazardous
Materials from the Premises, Building or Land is required to be undertaken, then
except to the extent such obligation is the responsibility of the Tenant under
Section 5.5 hereof, the Landlord covenants and agrees to undertake the same.
Without limitation of the foregoing, if necessary to comply with any applicable
legal requirements, should the existing environmental condition of the Land
require the removal or remediation of Hazardous Materials, such removal or
remediation is expressly intended herein to be the Landlord's responsibility
under this Section 5.6. The Landlord shall keep the Tenant reasonably informed
as to the status of the environmental condition at issue, promptly furnish to
the Tenant copies of all regulatory filings with any governmental regulatory
agencies in connection therewith, and substantiate the performance of its
obligations under this Section 5.6.
Section 5.7 Cross Indemnification. Each of the Landlord and the Tenant
shall defend and indemnify the other and hold the other harmless from and
against any damages, liability or expense associated with claims by governmental
or other third parties arising out of the presence, removal or remediation of
Hazardous Materials for which the indemnifying party is responsible for removal
or remediation under this Lease.
ARTICLE VI
TENANT COVENANTS
The Tenant covenants during the Term and for such further time as the
Tenant occupies any part of the Premises:
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Section 6.1 Permitted Uses. The Tenant shall occupy the Premises only for
the Permitted Uses, and shall not injure or deface the Premises or the Property,
nor permit in the Premises any auction sale. The Tenant shall give written
notice to the Landlord, within twenty (20) days after the First Rent
Commencement Date and thereafter once annually within twenty (20) days of each
anniversary of the First Rent Commencement Date, of any materials on OSHA's
right to know list or which are subject to regulation by any other federal,
state, municipal or other governmental authority and which the Tenant intends to
have present at the Premises. The Tenant shall comply with all requirements of
public authorities and of the Board of Fire Underwriters in connection with
methods of storage, use and disposal thereof although nothing herein shall
prevent the Tenant from challenging the validity of such requirements. The
Tenant shall not permit in the Premises any nuisance, or the emission from the
Premises of any objectionable noise, odor or vibration, nor use or devote the
Premises or any part thereof for any purpose which is contrary to law or
ordinance, or liable to invalidate or increase premiums (above those normally
incurred for Permitted Uses) for any insurance on the Building or its contents
(unless the Tenant pays for any such increase in premiums and provided such
actions do not interfere with the use and enjoyment of the Building by the
Landlord, other tenants, visitors or invitees of University Park) or liable to
render necessary any alteration or addition to the Building, nor commit or
permit any waste in or with respect to the Premises.
Section 6.2 Laws and Regulations. The Tenant shall comply with all
federal, state and local laws, regulations, ordinances. executive orders,
federal guidelines, and similar requirements in effect from time to time,
including, without limitation, City of Cambridge ordinances numbered 1005 and
1086 and any subsequently adopted ordinance for employment and animal
experimentation with respect to animal experiments and hazardous waste and any
such requirements pertaining to employment opportunity, anti-discrimination and
affirmative action. Tenant shall have the right to contest any notice of
violation for any of the foregoing by appropriate proceedings diligently
conducted in good faith.
Section 6.3 Rules and Regulations; Signs. The Tenant shall not obstruct in
any manner any portion of the Property not hereby leased; shall not permit the
placing of any signs, curtains, blinds, shades, awnings, aerials or flagpoles,
or the like, visible from outside the Premises; and shall comply with all
reasonable rules and regulations of uniform application to all occupants of the
Building now or hereafter made by the Landlord, of which the Tenant has been
given notice, for the care and use of the Property and the parking facilities
relating thereto. The Landlord shall not enforce rules and regulations in a
discriminatory manner, nor shall the Landlord be liable to the Tenant for the
failure of other occupants of the Building to conform to any such rules and
regulations.
The Landlord shall provide in any multi-tenant building in which a portion
of the Premises is located a directory in the lobby thereof with the Tenant's
name and floor locations within such building listed thereon. Notwithstanding
anything contained in this Lease (including all exhibits) to the contrary, the
Tenant shall have the right to install a sign with its corporate logo on the
Sidney Street facade of the 75 Sidney Building and signage in such building's
main lobby according to plans agreed to by the parties hereto. Any exterior
sign, however, shall be
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subject to prior approval by the City of Cambridge and all signs must be
consistent with both the University Park signage guidelines then in effect and
all applicable legal requirements.
Section 6.4 Safety Compliance. The Tenant shall keep the Premises equipped
with all safety appliances required by law or ordinance or any other regulations
of any public authority because of the manner of use made by the Tenant and to
procure all licenses and permits so required because of such manner of use and,
if requested by the Landlord, do any work so required because of such use, it
being understood that the foregoing provisions shall not be construed to broaden
in any way the Tenant's Permitted Uses. Tenant shall conduct such periodic
tests, evaluations or certifications of safety appliances and laboratory
equipment as are required or recommended in accordance with generally accepted
standards for good laboratory practice to ensure that such safety appliances and
equipment remain in good working order, and shall, upon Landlord's reasonable
request but not more often than two (2) times in any Fiscal Year, provide to
Landlord copies of such reports, evaluations and certifications.
Section 6.5 Landlord's Entry. The Tenant shall permit the Landlord and it
agents, after reasonable notice except in the case of emergencies, to enter the
Premises at all reasonable hours for the purpose of inspecting or making repairs
to the same, monitoring Tenant's compliance with the requirements and
restrictions set forth in this Lease, and for the purpose of showing the
Premises to prospective purchasers and mortgagees at all reasonable times and to
prospective tenants within twelve (12) months of the end of the Term provided
that in connection with such entry, Tenant may provide procedures reasonably
designed so as not to jeopardize Tenant's trade secrets, proprietary technology
or critical business operations, including accompaniment of all such persons by
an employee of the Tenant. In case of an emergency, the Landlord shall make good
faith efforts to notify the Tenant in person or by telephone prior to such
entry, and in any event, the Landlord shall notify Tenant promptly thereafter
such entry.
Section 6.6 Floor Load. The Tenant shall not place a load upon any floor
in the Premises exceeding the floor load per square foot of area which such
floor was designed to carry and which is allowed by law as set forth in Exhibit
F attached hereto. The Tenant's machines and mechanical equipment shall be
placed and maintained by the Tenant at the Tenant's expense in settings
sufficient to absorb or prevent vibration or noise that may be transmitted to
the Building structure or to any other space in the Building.
Section 6.7 Personal Property Tax. The Tenant shall pay promptly when due
all taxes which may be imposed upon personal property (including, without
limitation, fixtures and equipment) in the Premises to whomever assessed. Tenant
shall have the right to contest the validity or amount of any such taxes by
appropriate proceedings diligently conducted in good faith.
Section 6.8 Assignment and Subleases. The Tenant shall not assign this
Lease or sublet (which term, without limitation, shall include granting of
concessions, licenses and the like) the whole or any part of the Premises (each
a "Transfer") without, in each instance, having first received the consent of
the Landlord which consent shall not be unreasonably withheld or delayed;
provided, however, that a Transfer shall include an assignment only to the
extent that it
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is an assignment of the Lease to a successor tenant and not a collateral
assignment. Tenant shall have no right to transfer its roof rights granted under
Section 2.2(b) other than in connection with a Transfer of the whole or any part
of the Premises for purposes of enabling the transferee to occupy the same for
the conduct of its business therein (provided that the occupancy of part of the
Premises in service of a business the substantial orientation of which is roof
communications shall not qualify as such an occupancy). Except as specifically
permitted herein, any Transfer made without such consent shall be void, and in
no event shall the Tenant have the right to mortgage, pledge, hypothecate or
otherwise transfer this Lease. The Landlord shall not be deemed to be
unreasonable in withholding its consent to any proposed Transfer by the Tenant
based on any of the following factors:
(a) If the manner in which the proposed occupant conducts its
business operations is not consistent, in Landlord's reasonable opinion,
with the image and character of the University Park development as a
first-class office/research and development park then the Landlord may
reasonably withhold its consent.
(b) If at the time of the contemplated consummation of the proposed
Transfer the Tenant's Consolidated Net Available Cash and Net Working
Capital are not, in Landlord's reasonable judgment, sufficient to support
its obligations under this Lease, then: (i) in the event of a proposed
Transfer constituting an assignment of this Lease, the Landlord may
reasonably withhold its consent if the proposed assignee is not
sufficiently creditworthy in the reasonable opinion of the Landlord based
on a comparison of the creditworthiness of other companies in the same
industry as the proposed occupant and (ii) in the event of a proposed
Transfer constituting a sublease, if, as a result of the consummation of
the proposed sublease, the then Tenant shall no longer be in occupancy of
at least seventy five percent (75%) of the rentable floor area of the
Premises (e.g. any sublease that would result in more than twenty five
percent (25%) of the rentable floor area of the Premises being subject to
a sublease or subleases), then the Landlord may reasonably withhold its
consent if the proposed sublessee is not sufficiently creditworthy in the
reasonable opinion of Landlord based on a comparison of the
creditworthiness of other companies in the same industry as the proposed
occupant.
(c) If the proposed occupant has already initiated discussions with
either the Landlord or any affiliate of the Landlord regarding space
within University Park that is or is to become available for lease, then
the Landlord may reasonably withhold its consent.
If the Tenant desires to contest the Landlord's withholding of consent to any
proposed Transfer based on any of the foregoing factors, then Tenant shall,
within sixty (60) days after receipt of the Landlord's notice withholding
consent, send written notice of such disagreement to the Landlord. After the
Landlord's receipt of such notice, the Landlord and the Tenant shall have thirty
(30) days within which to resolve such controversy after which such controversy
shall be resolved by submittal to the binding Dispute Resolution Process
described in Exhibit J attached hereto and made a part hereof.
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Notwithstanding anything to the contrary contained in this Section, Tenant
shall have the right to assign or otherwise transfer this Lease or the Premises,
or part of the Premises, without obtaining the prior consent of Landlord, (a) to
its parent entity or to a majority owned subsidiary or to an entity which is
wholly owned by the same entity which wholly owns Tenant, provided that (i) the
transferee shall, subject to applicable law, regulation or prior binding
agreement, prior to the effective date of the transfer, deliver to Landlord
instruments evidencing such transfer and its agreement to assume and be bound by
all the terms, conditions and covenants of this Lease to be performed by Tenant,
all in form reasonably acceptable to Landlord, and (ii) at the time of such
transfer there shall not be an uncured Event of Default under this Lease; or (b)
to the purchaser of at least fifty percent (50%) of its assets or stock, or to
any entity into which the Tenant may be merged or consolidated (along with all
or substantially all of its assets) (the "Acquiring Company"), provided that (i)
the net worth of the Acquiring Company upon the consummation of the transfer or
merger shall not be less than the net worth of the Tenant at the time
immediately prior to such transfer or merger, (ii) the Acquiring Company
continues to operate the business conducted in the Premises consistent with the
Permitted Uses described in Exhibit A hereto, (iii) the Acquiring Company shall
assume in writing, in form acceptable to Landlord, all of Tenant's obligations
under this Lease, (iv) Tenant shall provide to Landlord such additional
information regarding the Acquiring Company as Landlord shall reasonably
request, and (v) Tenant shall pay Landlord's reasonable out-of-pocket expenses
incurred in connection therewith. Unless Landlord shall have objected to such
assignment or transfer by Tenant within ten (10) business days following
Landlord's receipt of the information or items described in (b)(i) and (iii)
above, Landlord shall be deemed to have waived its right to object thereto. Each
of the transfers described in this paragraph is referred to hereinafter as
"Permitted Transfers." In no event shall any transaction consummated for the
purpose of evading Tenant's obligation to obtain Landlord's consent under this
Section 6.8 be construed as a Permitted Transfer, notwithstanding that such
transaction otherwise qualifies as a Permitted Transfer.
Whether or not the Landlord consents, or is required to consent, to any
Transfer, the Tenant named herein shall remain fully and primarily liable for
the obligations of the tenant hereunder, including, without limitation, the
obligation to pay Annual Fixed Rent and Additional Rent provided under this
Lease.
The Tenant shall give the Landlord notice of any proposed Transfer,
whether or not the Landlord's consent is required hereunder, specifying the
provisions thereof, including (i) the name and address of the proposed
subtenant, assignee, mortgagee or other transferee, (ii) a copy of the proposed
subtenant's, assignee's, mortgagee's or other transferee's most recent annual
financial statement, (iii) all of the terms and provisions upon which the
proposed Transfer is to be made including, without limitation, all of the
documentation effectuating such Transfer (which shall be subject to the
Landlord's approval not to be unreasonably withheld) and such other reasonable
information concerning the proposed Transfer or concerning the proposed
subtenant, assignee, mortgagee or other transferee as the Tenant has obtained in
connection with the proposed Transfer. The Tenant shall reimburse the Landlord
promptly for reasonable legal and other expenses incurred by the Landlord in
connection with any request by the Tenant for consent to any Transfer. If this
Lease is assigned, or if the Premises or any part thereof is sublet
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or occupied by anyone other than the Tenant, or there is otherwise a Transfer
after an event of default the Landlord may, at any time and from time to time,
collect rent and other charges from the assignee, sublessee, occupant, mortgagee
or transferee and apply the net amount collected to the rent and other charges
herein reserved, but no such assignment, subletting, occupancy or collection
shall be deemed a waiver of the prohibitions contained in this Section 6.8 or
the acceptance of the assignee, sublessee or occupant as a tenant or a release
of the Tenant from the further performance by the Tenant of covenants on the
part of the Tenant herein contained. The Tenant shall pay to the Landlord fifty
percent (50%) of any amounts the Tenant receives from any subtenant, assignee,
mortgagee or other transferee as rent, additional rent or other forms of
compensation or reimbursement other than those which are less than or equal to
the aggregate of (i) the then due and payable (present valued in a manner
reasonably satisfactory to Landlord in the case of an assignment or similar
Transfer) proportionate monthly share of Annual Fixed Rent, Additional Rent and
all other monies due to Landlord pursuant to this Lease (allocable in the case
of a sublease to that portion of the Premises being subleased), (ii) the
reasonable transaction costs associated with such a transaction, which shall
include brokerage commissions, fees for legal services and any expenses of
preparing the Premises or applicable portion thereof for occupancy by such
subtenant, assignee, mortgagee or other transferee (provided that only the
monthly amortization of the expenses incurred in preparing the space for
occupancy by such transferee, utilizing an interest component reasonably
satisfactory to Landlord, may be included in this calculation in case of a
sublease or similar Transfer) and (iii) any fees the Tenant receives for
services provided to any such transferee, such as glass washing. The preceding
sentence shall not apply to any Permitted Transfers. Neither the fact that the
Landlord's consent may not be required in order for the Tenant to effectuate a
Permitted Transfer, nor the consent by the Landlord to a Transfer for which the
Landlord's consent is required shall be construed to relieve the Tenant from
obtaining the express consent in writing of the Landlord to any further Transfer
whether by the Tenant or by anyone claiming by, through or under the Tenant
including, without limitation, any assignee, subtenant, mortgagee or other
transferee, excluding any Permitted Transfer.
Landlord may elect, within thirty (30) days of receipt of written notice
from Tenant of any proposed assignment of this Lease, sublease of all of the
Premises or sublease of the remainder of the Premises then occupied by the
Tenant (in the case where the Tenant has theretofore sublet a portion of the
Premises), prior to approving or disapproving any such proposed assignment or
sublease, to repossess the Premises (or in the case where Tenant has theretofore
sublet a portion of the Premises, the portion of the Premises not then subject
to sublease). Landlord may thereafter lease the Premises (or the portion thereof
repossessed) in such a manner as the Landlord may in its sole discretion
determine. In the event Landlord elects to repossess the Premises as provided
above, then all of the Tenant's rights and obligations hereunder with respect to
the portion of the Premises repossessed by the Landlord shall cease and shall be
of no further force and effect. The provisions of this paragraph shall not apply
to Permitted Transfers.
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ARTICLE VII
INDEMNITY AND INSURANCE
Section 7.1 Indemnity. The Tenant shall indemnify and save harmless the
Landlord and the Landlord's ground lessees, mortgagees and managing agent for
the Building from and against all claims, loss, or damage of whatever nature
arising from (i) any breach by Tenant of any obligation of Tenant under this
Lease, or (ii) from any negligence or misconduct of the Tenant, or the Tenant's
contractors, licensees, invitees, agents, servants or employees, or (iii)
arising from any accident, injury or damage whatsoever caused to any person or
property in or about the Premises, occurring after the date that possession of
the Premises is first delivered to the Tenant and until the end of the Term and
thereafter, so long as the Tenant is in occupancy of any part of the Premises,
provided that the foregoing indemnity shall not include any claims, loss or
damage to the extent arising from any negligence or misconduct of the Landlord,
or the Landlord's contractors, licensees, agents, servants or employees or the
Landlord's ground lessees, mortgagees or managing agent for the Building.
The Landlord shall indemnify and save harmless the Tenant from and against
all claims, loss, or damage of whatever nature arising from (i) any breach by
Landlord of any obligation of Landlord under this Lease or (ii) from any
negligence or misconduct of the Landlord, or the Landlord's contractors,
licensees, agents, servants or employees, provided that the foregoing indemnity
shall not include any claims, loss or damage to the extent arising from any act,
omission or negligence of the Tenant, or the Tenant's contractors, licensees,
invitees, agents, servants or employees.
The foregoing indemnity and hold harmless agreements shall include
indemnity against reasonable attorneys' fees and all other costs, expenses and
liabilities incurred in connection with any such claim or proceeding brought
thereon, and the defense thereof, but shall be subject to the limitation
specified in Section 12.15.
Section 7.2 Liability Insurance. The Tenant agrees to maintain in full
force from the date upon which the Tenant first enters the Premises for any
reason, throughout the Term, and thereafter, so long as the Tenant is in
occupancy of any part of the Premises, a policy of comprehensive general
liability insurance under which the Landlord (and any individuals or entities
affiliated with the Landlord, any ground lessor and any holder of a mortgage on
the Property of whom the Tenant is notified by the Landlord) and the Tenant are
named as insureds, and under which the insurer provides a contractual liability
endorsement insuring against all cost, expense and liability arising out of or
based upon any and all claims, accidents, injuries and damages described in
Section 7.1, in the broadest form of such coverage from time to time available.
Each such policy shall be noncancellable and nonamendable (to the extent that
any proposed amendment reduces the limits or the scope of the insurance required
in this Lease) with respect to the Landlord and such ground lessors and
mortgagees without thirty (30) days' prior notice to the Landlord and such
ground lessors and mortgagees and at the election of the Landlord, either a
certificate of insurance or a duplicate original policy shall be delivered to
the Landlord. The minimum limits of liability of such insurance as of the
Commencement Date
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shall be Ten Million Dollars ($10,000,000.00) for combined bodily injury (or
death) and damage to property (per occurrence) with an aggregate annual limit of
liability of Ten Million Dollars ($10,000,000.00), and from time to time during
the Term such limits of liability shall be increased to reflect such higher
limits as are customarily required pursuant to new leases of space in the
Boston-Cambridge area with respect to similar properties.
Section 7.3 Personal Property at Risk. The Tenant agrees that all of the
furnishings, fixtures, equipment, effects and property of every kind, nature and
description of the Tenant and of all persons claiming by, through or under the
Tenant which, during the continuance of this Lease or any occupancy of the
Premises by the Tenant or anyone claiming under the Tenant which, during the
continuance of this Lease or any occupancy of the Premises by the Tenant or
anyone claiming under the Tenant, may be on the Premises or elsewhere in the
Building or on the Lot or parking facilities provided hereby, shall be at the
sole risk and hazard of the Tenant, and if the whole or any part thereof shall
be destroyed or damaged by fire, water or otherwise, or by the leakage or
bursting of water pipes, steam pipes, or other pipes. by theft or from any other
cause, no part of said loss or damage is to be charged to or be borne by the
Landlord, except that the Landlord shall in no event be exonerated from any
liability to the Tenant or to any person, for any injury, loss, damage or
liability to the extent caused by Landlord's or its employees', agents' or
contractors' negligence or willful misconduct.
Section 7.4 Landlord's Insurance. The Landlord shall carry such all risk
casualty and liability insurance upon and with respect to operations at the
Building as may from time to time be deemed reasonably prudent by the Landlord
with deductibles in amounts carried at comparable buildings with similar uses
within the Cambridge market or required by any mortgagee holding a mortgage
thereon or any ground lessor of the Land, in an amount equal to the replacement
cost of the Building, including all leasehold improvements, exclusive of
foundations, site preparation and other nonrecurring construction costs.
Section 7.5 Waiver of Subrogation. Any insurance carried by either party
with respect to the Building, Land, Premises, parking facilities or any property
therein or occurrences thereon shall, without further request by either party,
if it can be so written without additional premium, or with an additional
premium which the other party elects to pay, include a clause or endorsement
denying to the insurer rights of subrogation against the other party to the
extent rights have been waived by the insured prior to occurrence of injury or
loss. Each party, notwithstanding any provisions of this Lease to the contrary,
hereby waives any rights of recovery against the other for injury or loss,
including, without limitation, injury or loss caused by negligence of such other
party, due to hazards covered by insurance containing such clause or endorsement
to the extent of the indemnification received thereunder.
Section 7.6 Policy Requirements. Any required insurance may be in the form
of blanket coverage, so long as the coverage required herein is maintained. Each
party shall cause a certificate, providing such information as reasonably
requested by the other party, evidencing the existence and limits of its
insurance coverage with respect to the Premises and the Building, as the case
may be, to be delivered to such other party upon the commencement of the Term.
Thereafter, each party shall cause similar certificates evidencing renewal
policies to be delivered
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to such other party at least thirty (30) days prior to the expiration of the
term of each policy and at such other times as reasonably requested by the other
party. The insurance policies and certificates required by this Article VII
shall contain a provision requiring the insurance company to furnish Landlord
and Tenant, as the case may be, thirty (30) days' prior written notice of any
cancellation or lapse, or the effective date of any reduction in the amounts or
scope of coverage.
ARTICLE VIII
CASUALTY AND EMINENT DOMAIN
Section 8.1 Restoration Following Casualties; Termination for Failing to
Maintain Parking. If, during the Term, the Building, the Premises or the 101
Pacific Street Garage shall be damaged by fire or casualty, subject to
termination rights of the Landlord and the Tenant provided below in this Article
VIII, the Landlord shall proceed promptly to exercise diligent efforts to
restore, or cause to be restored, the Building, the Premises or the 101 Pacific
Street Garage, as the case may be, to substantially the condition thereof just
prior to time of such damage, but the Landlord shall not be responsible for
delay in such restoration which may result from External Causes. The Landlord
shall have no obligation to expend in the reconstruction of the Building, the
Premises or the 101 Pacific Street Garage more than the sum of the amount of any
deductible and the actual amount of insurance proceeds made available to the
Landlord by its insurer. Any restoration of the Building, the Premises or the
101 Pacific Street Garage shall be altered to the extent necessary to comply
with then current and applicable laws and codes. The Landlord shall designate by
notice to the Tenant, as soon as reasonably practicable following any casualty
to the 101 Pacific Street Garage, alternative parking within University Park
that shall be used for the parking of the automobiles of the employees and
invitees of the Tenant during restoration of the 101 Pacific Street Garage. The
Tenant shall pay the market rate from time to time in effect for such
alternative parking facilities. If the Landlord shall reasonably determine that
the amount of insurance proceeds available to the Landlord is insufficient by
more than the amount of any deductible to cover the cost of restoring the 101
Pacific Street Garage, or if the Landlord reasonably determines it will be
unable to restore the 101 Pacific Street Garage within twenty four (24) months
from the date of the casualty, the Landlord shall so notify the Tenant in
writing. In such event, the Tenant shall have the right, as its sole remedy, to
terminate this Lease by notice to the Landlord of its desire to do so, provided
such notice is given not later than thirty (30) days after such notice is given
to the Landlord. Such termination shall be effective thirty (30) days after such
notice is given to the Landlord, or such later date specified by the Tenant in
such notice not exceeding one hundred twenty (120) days after such notice is
given.
Section 8.2 Landlord's Termination Election. If the Landlord reasonably
determines, based upon certification by its architect or other design
professional, that (a) the amount of insurance proceeds available to the
Landlord is insufficient (by more than the amount of any deductible) to cover
the cost of restoring the Building, or (b) the Landlord will be unable to
restore the Building within twelve (12) months from the date of the casualty,
then the Landlord may terminate this Lease by giving notice to the Tenant. Any
such termination shall be effective on the date designated in such notice from
the Landlord, but in any event not later than sixty (60) days after such notice,
and if no date is specified, effective upon the delivery of such notice.
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Failure by the Landlord to give the Tenant notice of termination within ninety
(90) days following the occurrence of the casualty shall constitute the
Landlord's agreement to restore the Building as contemplated in Section 8.1.
Section 8.3 Tenant's Termination Election. If the Landlord has not
terminated this Lease under Section 8.2, but the Landlord has failed to restore
the Premises, within twelve (12) months from the date of the casualty or taking,
such period to be subject, however, to extension where the delay in completion
of such work is due to External Causes, the Tenant shall have the right to
terminate this Lease at any time after the expiration of such 12-month period
(as extended by delay due to External Causes), as the case may be, until the
restoration is substantially completed, such termination to take effect as of
the date of the Tenant's notice. However, if the Landlord reasonably determines
at any time, and from time to time, during the restoration, based upon
certification by its architect or other design professional, that such
restoration will not be able to be completed before the deadline date after
which the Tenant may terminate this Lease under this Section 8.3, and the
Landlord specifies in a notice to Tenant to such effect a later date that the
Landlord estimates will be the date upon which such restoration will be
completed, then the Tenant may terminate this Lease within ten (10) days of the
Landlord's notice as aforesaid, failing which the deadline date shall be
extended to the date set forth in Landlord's notice (as extended by delay due to
External Causes). The Landlord shall exercise reasonable efforts to keep the
Tenant advised of the status of restoration work from time to time, and promptly
following any request for information during the course of the performance of
the restoration work.
Section 8.4 Casualty at Expiration of Lease. If the Premises shall be
damaged by fire or casualty in such a manner that the Premises cannot, in the
ordinary course, reasonably be expected to be repaired within one hundred twenty
(120) days from the commencement of repair work and such damage occurs within
the last eighteen (18) months of the Term (as the same may have been extended
prior to such fire or casualty), either party shall have the right, by giving
notice to the other not later than sixty (60) days after such damage, to
terminate this Lease, whereupon this Lease shall terminate as of the date of
such notice. Notwithstanding the foregoing, the Landlord shall not have the
right to terminate this Lease as aforesaid provided that the Tenant shall have
exercised its right to extend the Term of this Lease pursuant to Section 2.6
hereof not later than forty-five (45) days after the date of damage to the
Premises.
Section 8.5 Eminent Domain. Except as hereinafter provided, if the
Premises, or such portion thereof as to render the balance (if reconstructed to
the maximum extent practicable in the circumstances) unsuitable for the Tenant's
purposes as contemplated under this Lease, shall be taken by condemnation or
right of eminent domain, the Landlord or the Tenant shall have the right to
terminate this Lease and any separate parking lease by notice to the other of
its desire to do so, provided that such notice is given not later than thirty
(30) days after receipt by the Tenant of notice of the effective date of such
taking. If so much of the Building shall be so taken that the Landlord
reasonably determines that it would be reasonably necessary to raze or
substantially alter the Building, the Landlord shall have the right to terminate
this Lease by giving notice to the Tenant of the Landlord's desire to do so not
later than thirty (30) days after the effective date of such taking.
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Should any part of the Premises be so taken or condemned during the Term,
and should this Lease be not terminated in accordance with the foregoing
provisions, the Landlord agrees to use reasonable efforts to put what may remain
of the Premises into proper condition for use and occupation as nearly like the
condition of the Premises prior to such taking as shall be practicable, subject,
however, to applicable laws and codes then in existence.
If the 101 Pacific Street Garage, or such portion thereof as to render the
Tenant's parking privileges therein impossible or impracticable in the
Landlord's reasonable determination, shall be taken by condemnation or right of
eminent domain, then the Landlord shall designate, if available and promptly
following any such taking, alternative parking within University Park that shall
be used for the parking of the automobiles of the employees and invitees of the
Tenant. All such alternative parking shall be allocated proportionately among
all tenants, including the Tenant, then currently leasing parking spaces within
the 101 Pacific Street Garage; provided, however, the number of the Tenant's
parking spaces guaranteed by the Landlord in Exhibit A shall not change. The
Tenant shall pay the market rate from time to time in effect for such
alternative parking facilities. In the event the Landlord is unable to secure
for the Tenant such alterative parking, the Tenant shall have the right, as its
sole remedy, to terminate this Lease and any separate parking lease by notice to
Landlord of its desire to do so, provided such notice is given not later than
the later of thirty (30) days after the effective date of such taking or thirty
(30) days after the Tenant has notice of the effective date of such taking. Such
termination shall be effective thirty (30) days after such notice is given to
the Landlord, or such later date specified by the Tenant in such notice not
exceeding one hundred twenty (120) days after such notice is given.
Section 8.6 Rent After Casualty or Taking. If the Premises shall be
damaged by fire or other casualty, until the Lease is terminated or the Premises
is restored, the Annual Fixed Rent and Additional Rent shall be justly and
equitably abated and reduced according to the nature and extent of the loss of
use thereof suffered by the Tenant. In the event of a taking which permanently
reduces the area of the Premises, a just proportion of the Annual Fixed Rent
shall be abated for the remainder of the Term.
Section 8.7 Temporary Taking. In the event of any taking of the Premises
or any part thereof for a temporary use not in excess of twelve (12) months, (i)
this Lease shall be and remain unaffected thereby and Annual Fixed Rent and
Additional Rent shall not abate, and (ii) the Tenant shall be entitled to
receive for itself such portion or portions of any award made for such use with
respect to the period of the taking which is within the Term.
Section 8.8 Taking Award. Except as otherwise provided in Section 8.7, the
Landlord shall have and hereby reserves and accepts, and the Tenant hereby
grants and assigns to the Landlord, all rights to recover for damages to the
Building and the Land, and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking, damage or
destruction, as aforesaid, and by way of confirming the foregoing, the Tenant
hereby grants and assigns to the Landlord, all rights to such damages or
compensation. Nothing contained herein shall be construed to prevent the Tenant
from prosecuting in any condemnation
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proceedings a claim for relocation expenses and improvements made by the Tenant
in the Premises that constitute Tenant's personal property, including the
Removable Alterations.
ARTICLE IX
DEFAULT
Section 9.1 Tenant's Default. Each of the following shall constitute an
Event of Default:
(a) Failure on the part of the Tenant to pay the Annual Fixed Rent,
Additional Rent or other charges for which provision is made herein on or
before the date on which the same become due and payable, if such
condition continues for five (5) business days after written notice that
the same are due; provided, however if Tenant shall fail to pay any of the
foregoing when due two (2) times in any period of twelve (12) consecutive
months, then Landlord shall not be required to give notice to Tenant of
any future failure to pay during the remainder of the Term and any
extension thereof, and such failure shall thereafter constitute an Event
of Default if not cured within five (5) days after the same are due.
(b) Failure on the part of the Tenant to perform or observe any
other term or condition contained in this Lease if the Tenant shall not
cure such failure within thirty (30) days after written notice from the
Landlord to the Tenant thereof, provided that in the case of breaches that
are not reasonably susceptible to cure within thirty (30) days through the
exercise of due diligence, then so long as the Tenant commences such cure
within thirty (30) days, and the Tenant diligently pursues such cure to
completion, such breach shall not be deemed to create an Event of Default.
(c) The taking of the estate hereby created on execution or by other
process of law; or a judicial declaration that the Tenant is bankrupt or
insolvent according to law; or any assignment of the property of the
Tenant for the benefit of creditors; or the appointment of a receiver,
guardian, conservator, trustee in bankruptcy or other similar officer to
take charge of all or any substantial part of the Tenant's property by a
court of competent jurisdiction, which officer is not dismissed or removed
within ninety (90) days; or the filing of an involuntary petition against
the Tenant under any provisions of the bankruptcy act now or hereafter
enacted if the same is not dismissed within ninety (90) days; the filing
by the Tenant of any voluntary petition for relief under provisions of any
bankruptcy law now or hereafter enacted.
If an Event of Default shall occur, then, in any such case, whether or not
the Term shall have begun, the Landlord lawfully may, immediately or at any time
thereafter, give notice to the Tenant specifying the Event of Default and this
Lease shall come to an end on the date specified therein as fully and completely
as if such date were the date herein originally fixed for the
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expiration of the Lease Term, and the Tenant will then quit and surrender the
Premises to the Landlord, but the Tenant shall remain liable as hereinafter
provided.
Section 9.2 Damages. In the event that this Lease is terminated, the
Tenant covenants to pay to the Landlord forthwith on the Landlord's demand, as
compensation, an amount (the "Lump Sum Payment") equal to the excess, if any, of
the discounted present value of the total rent reserved for the remainder of the
Term over the then discounted present fair rental value of the Premises for the
remainder of the Term. The discount rate for calculating such sum shall be the
then current rate of United States Treasury securities having a maturity date as
close as possible to the end of the Term (had the Lease not been terminated). In
calculating the rent reserved, there shall be included, in addition to the
Annual Fixed Rent and all Additional Rent, the value of all other considerations
agreed to be paid or performed by the Tenant over the remainder of the Term. In
addition, the Tenant shall pay punctually to the Landlord all the sums
("Periodic Payments") and perform all the obligations which the Tenant covenants
in this Lease to pay and to perform in the same manner and to the same extent
and at the same time as if this Lease had not been terminated until such time as
the entire Premises has been relet and the term under the new lease has
commenced. In calculating the amounts to be paid by the Tenant under the
foregoing covenant, the Tenant shall be credited with the net proceeds of any
rent obtained by reletting the Premises, after deducting all the Landlord's
expenses in connection with such reletting, including, without limitation, all
repossession costs, brokerage commissions, fees for legal services and expenses
of preparing the Premises for such reletting. The Tenant shall also be entitled
to credit against the last periodic payments which would otherwise become due
the amount, if any, paid to the Landlord as a Lump Sum Payment. The Landlord may
(i) relet the Premises, or any part or parts thereof, for a term or terms which
may, at the Landlord's option, exceed or be equal to or less than the period
which would otherwise have constituted the balance of the Term, and may grant
such concessions and free rent as the Landlord in its reasonable commercial
judgment considers advisable or necessary to relet the same and (ii) make such
alterations, repairs and improvements in the Premises as the Landlord in its
reasonable commercial judgment considers advisable or necessary to relet the
same. No action of the Landlord in accordance with foregoing or failure to relet
or to collect rent under-reletting shall operate to release or reduce the
Tenant's liability. The Landlord shall be entitled to seek to rent other
properties of the Landlord prior to reletting the Premises. Notwithstanding the
foregoing, the Landlord shall offer such Premises to lease in the same manner as
the Landlord offers other vacant space for lease in University Park.
Section 9.3 Cumulative Rights. The specific remedies to which the Landlord
may resort under the terms of this Lease are cumulative and are not intended to
be exclusive of any other remedies or means of redress to which it may be
lawfully entitled in case of any breach or threatened breach by the Tenant of
any provisions of this Lease. In addition to the other remedies provided ir this
Lease, the Landlord shall be entitled to seek the restraint by injunction of the
violation or attempted or threatened violation of any of the covenants,
conditions or provisions of this Lease or to a decree compelling specific
performance of any such covenants, conditions or provisions. Nothing contained
in this Lease shall limit or prejudice the right of the Landlord to prove for
and obtain in proceedings for bankruptcy, insolvency or like proceedings by
reason of the termination of this Lease, an amount equal to the maximum allowed
by any
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statute or rule of law in effect at the time when, and governing the proceedings
in which, the damages are to be proved, whether or not the amount be greater,
equal to, or less than the amount of the loss or damages referred to above.
Section 9.4 Landlord's Self-help. If there shall be an Event of Default or
circumstances which, upon the giving of notice or passage of time would
constitute an Event of Default by the Tenant in the performance of any
obligation under this Lease, then the Landlord shall have the right, but not the
obligation, after the giving by the Landlord of notice thereof to the Tenant and
the expiration of any applicable cure period (except in case of emergency in
which case no notice need be given nor must any applicable cure period expire)
and upon reasonable, but in no event more than ten (10) days' notice to the
Tenant (except in case of emergency in which case no such additional notice need
be given), to perform such obligation (including, without limitation, stopping
any service or utility system until necessary repairs have been completed). In
the event the Landlord exercises its rights under this Section 9.4 in case of
emergency, the Landlord shall notify the Tenant as soon as reasonably possible
after the taking of such action. The Landlord may exercise its rights under this
Section without waiving any other of its rights or releasing the Tenant from any
of its obligations under this Lease. The Tenant shall be liable to the Landlord
for all of the Landlord's reasonable costs associated with effecting such cure.
Section 9.5 Enforcement Expenses; Litigation. Each party hereto shall
promptly reimburse the other for all costs and expenses, including without
limitation legal fees, incurred by such party in exercising and enforcing its
rights under this Lease following the other party's failure to comply with its
obligations hereunder, whether or not such failure constitutes an Event of
Default pursuant to Sections 9.1 or 9.7 hereof.
If either party hereto be made or becomes a party to any litigation
commenced by or against the other party by or against a third party, or incurs
costs or expenses related to such litigation, involving any part of the Property
and the enforcement of any of the rights, obligations or remedies of such party,
then the party becoming involved in any such litigation because of a claim
against such other party hereto shall receive from such other party hereto all
costs and reasonable attorneys' fees incurred by such party in such litigation.
Section 9.6 Late Charges and Interest on Overdue Payments. In the event
that any payment of Annual Fixed Rent or Additional Rent shall remain unpaid for
a period of five (5) days following notice by the Landlord to the Tenant that
such payment is overdue, there shall become due to the Landlord from the Tenant,
as Additional Rent and as compensation for the Landlord's extra administrative
costs in investigating the circumstances of late rent, a late charge of two
percent (2%) of the amount overdue. In addition, any Annual Fixed Rent and
Additional Rent not paid when due shall bear interest from the date due to the
Landlord until paid at the variable rate (the "Default Interest Rate") equal to
the higher of (i) the rate at which interest accrues on amounts not paid when
due under the terms of the Landlord's financing for the Building, as from time
to time in effect, and (ii) one hundred and twenty-five percent (125%) of the
rate from time to time announced by BankBoston N.A. as its base rate, or if such
rate can no longer be determined, one hundred and twenty-five percent (125%) of
the rate from time to time
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announced by a major commercial bank selected by the Landlord as the rate
charged to creditworthy commercial clients for short-term unsecured borrowings.
Section 9.7 Landlord's Right to Notice and Cure; Tenant's Self-Help
Rights. The Landlord shall in no event be in default in the performance of any
of the Landlord's obligations hereunder unless and until the Landlord shall have
failed to perform such obligations within thirty (30) days, or such additional
time as is reasonably required to correct any such default, after notice by the
Tenant to the Landlord expressly specifying wherein the Landlord has failed to
perform any such obligation. If Landlord has failed to make any repair which
results in a material risk of damage or injury to persons or property within the
Premises within thirty (30) days or such additional time as is required to make
such repair, then the Tenant shall have the right, after providing an additional
ten (10) days' written notice to the Landlord, to perform such obligation so
long as the same may be done solely on the Property or within the common areas
of the Building. Notwithstanding the foregoing, in the case of an emergency, the
Tenant shall have the right to perform any such obligation without regard to the
thirty (30) day notice period, so long as (a) the Tenant makes a good faith
attempt to notify the Landlord prior to taking such action and (b) notifies the
Tenant as soon as possible thereafter. The Landlord shall be liable to the
Tenant for all of the Tenant's reasonable costs associated with effecting such
cure, provided that in no event shall the Tenant be entitled to abate any Annual
Fixed Rent or Additional Rent or otherwise offset such costs against sums due
the Landlord under this Lease.
ARTICLE X
MORTGAGEES' AND GROUND LESSORS' RIGHTS
Section 10.1 Subordination. This Lease shall, at the election of the
holder of any mortgage or ground lease on the Property, be subject and
subordinate to any and all mortgages or ground leases on the Property, so that
the lien of any such mortgage or ground lease shall be superior to all rights
hereby or hereafter vested in the Tenant, provided that such mortgagee or ground
lessor shall have entered into a subordination non-disturbance and attornment
agreement with Tenant, the form of which shall be furnished by the mortgagee or
ground lessor, as the case may be, with such reasonable modifications as Tenant
shall request within a reasonable time period. The form of non-disturbance and
attornment agreement attached hereto as Exhibit H is acceptable to Tenant in
connection with the Ground Lease held by MIT (as such terms are defined in
Section 12.10). The form of subordination, non-disturbance and attornment
agreement attached hereto as Exhibit I is acceptable to the Tenant with respect
to any such agreement to be entered into during the period following Substantial
Completion of the Premises, and the form of subordination, non-disturbance and
attornment agreement attached hereto as Exhibit K is acceptable to the Tenant
with respect to any such agreement to be entered into during the period prior
thereto, in connection with any mortgage to which this Lease shall be
subordinated.
Section 10.2 Prepayment of Rent not to Bind Mortgagee. No Annual Fixed
Rent, Additional Rent, or any other charge payable to the Landlord shall be paid
more than thirty (30)
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days prior to the due date thereof under the terms of this Lease and payments
made in violation of this provision shall (except to the extent that such
payments are actually received by a mortgagee or ground lessor) be a nullity as
against such mortgagee or ground lessor and the Tenant shall be liable for the
amount of such payments to such mortgagee or ground lessor.
Section 10.3 Tenant's Duty to Notify Mortgagee: Mortgagee's Ability to
Cure. No act or failure to act on the part of the Landlord which would entitle
the Tenant under the terms of this Lease, or by law, to be relieved of the
Tenant's obligations to pay Annual Fixed Rent or Additional Rent hereunder or to
terminate this Lease, shall result in a release or termination of such
obligations of the Tenant or a termination of this Lease unless (i) the Tenant
shall have first given written notice of the Landlord's act or failure to act to
the Landlord's mortgagees or ground lessors of record, if any, of whose identity
and address the Tenant shall have been given notice, specifying the act or
failure to act on the part of the Landlord which would give basis to the
Tenant's rights; and (ii) such mortgagees or ground lessors, after receipt of
such notice, have failed or refused to correct or cure the condition complained
of within a reasonable time thereafter; which shall include a reasonable time
for such mortgagee or ground lessors, but in no event more than thirty (30) days
after receipt of such notice, to obtain possession of the Property if possession
is necessary for the mortgagee or ground lessor to correct or cure the condition
and if the mortgagee or ground lessor notifies the Tenant of its intention to
take possession of the Property and correct or cure such condition; provided,
however, nothing contained in this Section 10.3 shall affect Tenant's right (a)
to terminate this Lease under Sections 8.3, 8.4 or 8.5 or (b) to exercise its
self-help rights under Section 9.7.
Section 10.4 Estoppel Certificates. The Tenant shall from time to time,
upon not less than fifteen (15) days' prior written request by the Landlord,
execute, acknowledge and deliver to the Landlord a statement in writing
certifying to the Landlord or an independent third party, with a true and
correct copy of this Lease attached thereto, to the extent such statements
continue to be true and accurate, (i) that this Lease is unmodified and in full
force and effect (or, if there have been any modifications, that the same is in
full force and effect as modified and stating the modifications); (ii) that the
Tenant has no knowledge of any defenses, offsets or counterclaims against its
obligations to pay the Annual Fixed Rent and Additional Rent and to perform its
other covenants under this Lease (or if there are any defenses, offsets, or
counterclaims, setting them forth in reasonable detail); (iii) that there are no
known uncured defaults of the Landlord or the Tenant under this Lease (or if
there are known defaults, setting them forth in reasonable detail); (iv) the
dates to which the Annual Fixed Rent, Additional Rent and other charges have
been paid; (v) that the Tenant has accepted, is satisfied with, and is in full
possession of the Premises, including all improvements, additions and
alterations thereto required to be made by Landlord under the Lease; (vi) that
the Landlord has satisfactorily complied with all of the requirements and
conditions precedent to the occurrence of the Rent Commencement Date with
respect to the entire Building; (vii) that the Tenant has been in occupancy
since the First Rent Commencement Date and paying rent since the specified
dates; (viii) that no monetary or other considerations, including, but not
limited to, rental concessions for Landlord, special tenant improvements or
Landlord's assumption of prior lease obligations of Tenant have been granted to
Tenant by Landlord for entering into Lease, except as specified; (ix) that
Tenant has no notice of a prior assignment, hypothecation, or pledge of rents or
of the Lease; (x) that the Lease represents the
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entire agreement between Landlord and Tenant; (xi) that no prepayment or
reduction of rent and no modification, termination or acceptance of Lease will
be valid as to the party to whom such certificate is addressed without the
consent of such party; (xii) that any notice to Tenant may be given it by
certified or registered mail, return receipt requested, or delivered, at the
Premises, or at another address specified; and (xiii) such other matters with
respect to the Tenant and this Lease as the Landlord may reasonably request. On
or following each Rent Commencement Date to occur hereunder, the Tenant shall,
within ten (10) days after receipt of Landlord's request therefor, promptly
execute, acknowledge and deliver to the Landlord a statement in writing that the
Rent Commencement Date has occurred with respect to a portion of the Premises,
that the Annual Fixed Rent has begun to accrue with respect thereto, and that
the Tenant has taken occupancy of such portion of the Premises. Any statement
delivered pursuant to this Section may be relied upon by any prospective
purchaser, mortgagee or ground lessor of the Premises and shall be binding on
the Tenant.
Landlord shall from time to time, upon not less than fifteen (15) days'
prior written request by the Tenant, execute, acknowledge and deliver to the
Tenant a statement in writing certifying to the Tenant or an independent third
party, with a true and correct copy of this Lease attached thereto, to the
extent such statements continue to be true and accurate (i) that this Lease is
unmodified and in full force and effect (or, if there have been any
modifications, that the same is in full force and effect as modified and stating
the modifications); (ii) that the Landlord has no knowledge of any defenses,
offsets or counterclaims against its obligations to perform its covenants under
this Lease (or if there are any defenses, offsets, or counterclaims, setting
them forth in reasonable detail); (iii) that there are no known uncured defaults
of the Tenant or the Landlord under this Lease (or if there are known defaults,
setting them forth in reasonable detail); (iv) the dates to which the Annual
Fixed Rent, Additional Rent and other charges have been paid; (v) that the
Tenant is in full possession of the Premises; (vi) that Landlord has no notice
of a prior assignment of the Lease or sublease of space therein; (vii) that the
Lease represents the entire agreement between Landlord and Tenant; (viii) that
any notice to Landlord may be given if by certified or registered mail, return
receipt requested, or delivered to the Landlord's address listed on Exhibit A,
or at another address specified; and (xii) such other matters with respect to
the Tenant and this Lease as the Tenant may reasonably request. Any statement
delivered pursuant to this Section may be relied upon by any prospective
assignee or sublessee of Tenant and shall be binding on the Landlord.
ARTICLE XI
SECURITY DEPOSIT
Section 11.1 Concurrently with the mutual execution and delivery of this
Lease by the Landlord and the Tenant, the Tenant has deposited with the
Landlord, and thereafter throughout the Term, the Tenant shall maintain with the
Landlord, a security deposit (the "Lease Security Deposit") equal to the product
of (i) six (6) times (ii) the aggregate of (a) the then applicable monthly
installment of Annual Fixed Rent payable by the Landlord to the Tenant under
this Lease and (b) the then applicable monthly installment of the Tenant's Tax
Expenses Allocable to
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the Premises. The Landlord may draw upon any letter of credit (if deposited as a
letter of credit) and apply such deposit, including all interest thereon accrued
but not yet paid to the Tenant, as provided in this Article XI, upon any Event
of Default by the Tenant hereunder or any default of the Tenant with respect to
which the Landlord may exercise its self-help rights under Section 9.4. Provided
there is no then subsisting default by the Tenant under this Lease with respect
to which the Landlord has given the Tenant notice, and thereafter only at such
time as there is no such default by the Tenant then subsisting: (i) on each
anniversary of the date upon which the Rent Commencement Date has occurred with
respect to the entire Original Premises, all interest which shall have
theretofore accrued on the Lease Security Deposit shall be disbursed to Tenant
and (ii) within thirty (30) days after the expiration of this Lease, any
remaining portion of the Lease Security Deposit not theretofore applied shall be
disbursed to Tenant. However, upon any termination of this Lease the Lease
Security Deposit may first be applied by the Landlord to any amounts for which
the Tenant is liable under this Lease. In the event the Landlord draws down on
any letter of credit or applies any funds constituting the Lease Security
Deposit, the Tenant shall deliver to the Landlord as Additional Rent, within ten
(10) days after invoice therefor, either a replacement or supplemental letter of
credit, or the amount of the Lease Security Deposit applied by the Landlord,
such that the balance of the Lease Security Deposit shall be restored to the
appropriate amount specified herein. Failure by the Tenant to timely make the
Lease Security Deposit shall constitute a condition to the effectiveness of this
Lease, failure of which to be timely satisfied by the Tenant shall entitle the
Landlord to terminate this Lease.
Section 11.2 On or before the respective dates specified below in this
Section 11.2, the Tenant shall deposit an additional amount (collectively, the
"TI Security Deposit") that, in the aggregate, equals fifty-seven percent (57%)
of the lesser of (i) fifty percent (50%) of Tenant's Allowance or (ii)
$7,437,500, as follows:
(a) One Million Three Hundred Thousand Dollars ($1,300,000) upon the
Architect's notice to the Tenant that construction of the Building has
commenced ("Construction Commencement Date"); plus
(b) One Million Dollars ($1,000,000) on or before the date which is
three (3) months following the Construction Commencement Date; plus
(c) One Million Dollars ($1,000,000) on or before the date which is
ten (10) months following the Construction Commencement Date; plus
(d) the balance of the TI Security Deposit upon the occurrence of
the First Rent Commencement Date.
Additionally, the TI Security Deposit shall be increased to the amount by
which (x) fifty percent (50%) of Tenant's Allowance exceeds (y) the aggregate of
the amounts set forth in clauses (a), (b), (c) and (d) above, if the
circumstances contemplated under Section 11.4 should occur. Once deposited by
the Tenant in accordance with the aforesaid schedule, the TI Security Deposit
shall be maintained by the Tenant and held by the Landlord, whether in cash or
by letter
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of credit, on the same terms and conditions, and subject to being applied by the
Landlord in accordance with such terms and conditions, as pertain to the Lease
Security Deposit.
Section 11.3 The Lease Security Deposit and TI Security Deposit
(collectively, the "Security Deposits") may be made and maintained by the
Tenant, at its election, either in the form of a clean, unconditional and
irrevocable letter of credit in form and substance satisfactory in all respects
to the Landlord, and from a commercial bank having an AA rating by Standard and
Poors or from an institution that is a wholly owned subsidiary of a bank having
an AA rating by Standard and Poors or in cash. If and to the extent the Security
Deposits are held in the form of a letter of credit, the Landlord may pledge its
right, title and interest in and to such letter of credit to any mortgagee or
ground lessor and, in order to perfect such pledge, have such letter of credit
held in escrow by such mortgagee or ground lessee. If and to the extent the
Security Deposits are held in the form of cash, the Landlord may pledge its
right and interest in and to such cash to any mortgagee or ground lessor and, in
order to perfect such pledge, have such cash held in escrow by such mortgagee or
ground lessee or grant such mortgagee or ground lessee a security interest
therein. In connection with any such pledge or grant of security interest by the
Landlord to a mortgagee or ground lessee ("Security Deposit Pledgee"), Tenant
covenants and agrees to cooperate as reasonably requested by the Landlord, in
order to permit the Landlord to implement the same on terms and conditions
reasonably required by such mortgagee or ground lessee including, without
limitation, providing in any letter of credit that the Tenant elects to give
under this Article XI any necessary and appropriate language that will permit
the implementation of such pledge. If and to the extent the Security Deposits
are or are hereafter held in the form of cash, and whether or not a Security
Deposit Pledgee shall have a security interest therein, such cash shall be
deposited in a separately maintained and accounted escrow account established
with a bank or other financial institution reasonably acceptable to the Tenant
(the "Escrow Holder"), and all monies held therein shall be invested and
reinvested by the Escrow Holder in the name of the Escrow Holder or its nominee
in cash equivalents or other investments approved by the Landlord and the Escrow
Holder. The Tenant agrees that any Security Deposit Pledgee may be the Escrow
Holder so long as the Security Deposit Pledgee is a bank or other financial
institution. The Landlord and the Tenant agree that a separate three-party
escrow agreement, in form and substance satisfactory to the Landlord, the Tenant
and the Escrow Holder, will be entered into prior to the date upon which the
Tenant may deposit any such sums in cash, and the Tenant agrees to reasonably
cooperate from time to time as requested by the Landlord in order to effectuate
the holding of any cash amount comprising a portion of the Security Deposits (as
defined below) by the Escrow Holder in accordance with terms and conditions
reasonably required by such Escrow Holder. Notwithstanding anything in this
Lease to the contrary, the Security Deposits shall at all times constitute the
property of the Tenant and title to the Security Deposits shall remain with the
Tenant. To the extent, if any, the Security Deposits are deemed to be held by
the Landlord they shall be deemed to be held in trust for the benefit of the
Tenant, in all cases, subject however to the Landlord's rights pursuant to this
Article XI. None of the Security Deposits shall be available for the use of the
Landlord for any reason other than in accordance with the exercise of the
Landlord's rights pursuant to this Article XI.
Section 11.4 The TI Security Deposit shall be immediately increased by the
Tenant by the additional amount specified in Section 11.2 (the "Security Deposit
Covenant Amount") in the
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event that either (i) the Tenant's Consolidated Net Available Cash falls below
Thirty Million Dollars ($30,000,000) or (ii) the Tenant's Net Working Capital
falls below an amount equal to one hundred fifty percent (150%) of the Security
Deposit Covenant Amount; provided, however, if the Tenant's Consolidated Net
Available Cash thereafter rises to a level above Thirty Million Dollars
($30,000,000.00) or the Tenant's Net Working Capital rises to a level above an
amount equal to one hundred fifty percent (150%) of the Security Deposit
Covenant Amount for six (6) consecutive months, the Tenant shall be entitled to
a refund of the Security Deposit Covenant Amount within thirty (30) days after
the end of such six (6) month period. For purposes of this Lease, the Tenant's
"Consolidated Net Available Cash" shall be the sum of the Tenant's (A) cash and
cash equivalents and (B) marketable securities as reported on the consolidated
balance sheets contained in the Tenant's quarterly reports on Form 10-Q and
Annual Report on Form 10-K. For purposes of this Lease, the Tenant's "Net
Working Capital" shall mean current assets minus current liabilities, as
reported on the consolidated balance sheets contained in the Tenant's quarterly
reports on Form 10-Q and the Annual Report on Form 10-K. The Tenant shall
provide the Landlord with such reports as soon as practicable but in no case
later than five (5) business days following the filing of same with the
Securities and Exchange Commission. The Tenant shall promptly notify the
Landlord in the event that (A) the Tenant's Consolidated Net Available Cash
falls below Thirty Million Dollars ($30,000,000.00) or (B) the Tenant's Net
Working Capital falls below an amount equal to one hundred fifty percent (150%)
of the Security Deposit Covenant Amount. The Tenant shall be required to provide
monthly reporting of its Consolidated Net Available Cash during any quarterly
period following a quarter in which Tenant's Consolidated Net Available Cash is
less than Thirty Five Million Dollars ($35,000,000.00) or Tenant's Net Working
Capital is less than an amount equal to one hundred fifty percent (150%) of the
Security Deposit Covenant Amount.
Section 11.5 Provided there is no then subsisting default by the Tenant
under this Lease with respect to which the Landlord has given the Tenant notice,
and thereafter only at such time as there is no such default by the Tenant then
subsisting, the required TI Security Deposit under this Section 11 shall be
reduced on the first anniversary of the date upon which the Rent Commencement
Date has occurred with respect to the entire Original Premises, and on each
following anniversary of the Commencement Date, by One Million Dollars
($1,000,000). However, if the Security Deposit Covenant Amount has been
required, but has not theretofore been deposited by the Tenant as part of the TI
Security Deposit held by the Landlord, then the retirement of the TI Security
Deposit obligation contemplated under this Section 11.4 shall first be applied
to the Security Deposit Covenant Amount until fully retired, and thereafter to
the TI Security Deposit held by the Landlord under this Section 11.5
ARTICLE XII
MISCELLANEOUS
Section 12.1 Notice of Lease. The Tenant agrees not to record this Lease,
but upon request of either party, both parties shall execute and deliver a
memorandum of this Lease in form appropriate for recording or registration, an
instrument acknowledging the Commencement
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Date of the Term, and if this Lease is terminated before the Term expires, an
instrument in such form acknowledging the date of termination.
Section 12.2 Notices. Whenever any notice, approval, consent, request,
election, offer or acceptance is given or made pursuant to this Lease, it shall
be in writing. Communications and payments shall be addressed, if to the
Landlord, at the Landlord's Address for Notices as set forth in Exhibit A or at
such other address as may have been specified by prior notice to the Tenant; and
if to the Tenant, at the Tenant's Original Address or at such other place as may
have been specified by prior notice to the Landlord. Any communication so
addressed shall be deemed duly given on the earlier of (i) the date received,
(ii) on the third business day following the day of mailing if mailed by
registered or certified mail, return receipt requested, or (iii) on the next
business day if sent by a nationally recognized overnight courier service. If
the Landlord by notice to the Tenant at any time designates some other person to
receive payments or notices, all payments or notices thereafter by the Tenant
shall be paid or given to the agent designated until notice to the contrary is
received by the Tenant from the Landlord.
Section 12.3 Successors and Limitation on Liability. The obligations of
this Lease shall run with the land, and this Lease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns, except that the original Landlord named herein and each successor
Landlord shall be liable only for obligations accruing during the period of its
ownership. The obligations of the Landlord under this Lease shall be binding
upon the assets of the Landlord consisting of an equity ownership of the
Property (and including any proceeds realized from the sale of such Property)
but not upon other assets of the Landlord and neither the Tenant, nor anyone
claiming by, under or through the Tenant, shall be entitled to obtain any
judgment in enforcing the terms and conditions of this Lease creating personal
liability on the part of the Landlord or enforcing any obligations of the
Landlord against any assets of the Landlord other than an equity ownership of
the Property. The obligations of the Tenant under this Lease shall be binding
upon the assets of the Tenant and neither the Landlord, nor anyone claiming by,
under or through the Landlord, shall be entitled to obtain any judgment in
enforcing the terms and conditions of this Lease creating personal liability on
the part of any of Tenant's, officers, employees, directors or shareholders.
Section 12.4 Waivers by the Landlord. The failure of the Landlord or the
Tenant to seek redress for violation of, or to insist upon strict performance
of, any covenant or condition of this Lease, shall not be deemed a waiver of
such violation nor prevent a subsequent act, which would have originally
constituted a violation, from having all the force and effect of an original
violation. The receipt by the Landlord of Annual Fixed Rent or Additional Rent
with knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No provision of this Lease shall be deemed to have been
waived by the Landlord or the Tenant, as the case may be, unless such waiver be
in writing signed by the Landlord or the Tenant, as the case may be. No consent
or waiver, express or implied, by the Landlord or Tenant to or of any breach of
any agreement or duty shall be construed as a waiver or consent to or of any
other breach of the same or any other agreement or duty.
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Section 12.5 Acceptance of Partial Payments of Rent. No acceptance by the
Landlord of a lesser sum than the Annual Fixed Rent and Additional Rent then due
shall be deemed to be other than a partial installment of such rent due, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment as rent be deemed an accord and satisfaction, and the Landlord
may accept such check or payment without prejudice to the Landlord's right to
recover the balance of such installment or pursue any other remedy in this Lease
provided. The delivery of keys to any employee of the Landlord or to the
Landlord's agent or any employee thereof shall not operate as a termination of
this Lease or a surrender of the Premises.
Section 12.6 Interpretation and Partial Invalidity. If any term of this
Lease, or the application thereof to any person or circumstances, shall to any
extent be invalid or unenforceable, the remainder of this Lease, or the
application of such term to persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each
term of this Lease shall be valid and enforceable to the fullest extent
permitted by law. The titles of the Articles are for convenience only and not to
be considered in construing this Lease. This Lease contains all of the
agreements of the parties with respect to the subject matter thereof and
supersedes all prior dealings between them with respect to such subject matter.
Section 12.7 Quiet Enjoyment. So long as the Tenant pays Annual Fixed Rent
and Additional Rent, performs all other Tenant covenants of this Lease and
observes all conditions hereof, the Tenant shall peaceably and quietly have,
hold and enjoy the Premises free of any claims by, through or under the
Landlord.
Section 12.8 Brokerage. Each party represents and warrants to the other
that it has had no dealings with any broker or agent other than Meredith & Grew,
Incorporated and Lynch, Murphy, Walsh & Partners (collectively, the "Broker") in
connection with this Lease and shall indemnify and hold harmless the other from
claims for any brokerage commission (other than by the Broker) arising out a
breach of the foregoing representations. Landlord shall be responsible for any
commission due to the Broker pursuant to the terms of a separate agreement.
Section 12.9 Surrender of Premises and Holding Over. The Tenant shall
surrender possession of the Premises on the last day of the Term and the Tenant
waives the right to any notice of termination or notice to quit. The Tenant
covenants that upon the expiration or sooner termination of this Lease, it
shall, without notice, deliver up and surrender possession of the Premises in
the same condition in which the Tenant has agreed to keep the same during the
continuance of this Lease and in accordance with the terms hereof, normal wear
and tear and damage by fire or other casualty excepted, first removing therefrom
all goods and effects of the Tenant and any leasehold improvements Landlord
specified for removal pursuant to Section 4.2, and repairing all damage caused
by such removal. Upon the expiration of this Lease or if the Premises should be
abandoned by the Tenant, or this Lease should terminate for any cause, and at
the time of such expiration, vacation, abandonment or termination, the Tenant or
Tenant's agents, subtenants or any other person should leave any property of any
kind or character on or in the Premises, the fact of such leaving of property on
or in the Premises shall be conclusive
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evidence of intent by the Tenant, and individuals and entities deriving their
rights through the Tenant, to abandon such property so left in or upon the
Premises, and such leaving shall constitute abandonment of the property.
Landlord shall have the right and authority without notice to the Tenant or
anyone else, to remove and destroy, or to sell or authorize disposal of such
property, or any part thereof, without being in any way liable to the Tenant
therefor and the proceeds thereof shall belong to the Landlord as compensation
for the removal and disposition of such property.
If the Tenant fails to surrender possession of the Premises upon the
expiration or sooner termination of this Lease, the Tenant shall pay to
Landlord, as rent for any period after the expiration or sooner termination of
this Lease an amount equal to one hundred fifty percent (150%) of the Annual
Fixed Rent and the Additional Rent required to be paid under this Lease as
applied to any period in which the Tenant shall remain in possession. Acceptance
by the Landlord of such payments shall not constitute a consent to a holdover
hereunder or result in a renewal or extension of the Tenant's rights of
occupancy. Such payments shall be in addition to and shall not affect or limit
the Landlord's right of re-entry, Landlord's right to collect such damages as
may be available at law, or any other rights of the Landlord under this Lease or
as provided by law.
Section 12.10 Ground Lease. The Land is owned by the Massachusetts
Institute of Technology ("MIT"). MIT as lessor and the Landlord as lessee (or a
limited partnership of which the Landlord would be the general partner (the
"Limited Partnership") and to whom all of the Landlord's rights and obligations
under this Lease may be assigned in the Landlord's sole discretion) shall enter
into a ground lease (the "Ground Lease") of the Land, and this Lease shall in
all respects be subject to such Ground Lease. If the Ground Lease shall
terminate during the Term for any reason whatsoever, except as may otherwise be
agreed between MIT and the Tenant, this Lease shall terminate with the same
force and effect as if such termination date had been named herein as the date
of expiration hereof. However, this Lease is subject to the execution by MIT,
the Tenant and the Landlord of a non-disturbance agreement in the form attached
hereto as Exhibit H. Each party shall pay its own expenses related to such
non-disturbance agreement. The Landlord represents and warrants to the Tenant
that, upon execution of the Ground Lease by the Landlord, or upon assignment of
this Lease to the Limited Partnership and the execution of the Ground Lease by
the Limited Partnership, the Landlord or the Limited Partnership, as the case
may be, shall have the full right and authority to grant the estate demised
herein and the appurtenant rights granted herein.
Section 12.11 Financial Reporting. Tenant shall from time to time (but not
less frequently than quarterly) provide Landlord with financial statements of
Tenant, together with related statements of Tenant's operations for Tenant's
most recent fiscal year then ended, certified by an independent certified public
accounting firm. Tenant's financial statements shall, in any event, specify the
Tenant's Consolidated Net Available Cash and Net Working Capital.
Notwithstanding the foregoing, so long as the Tenant is a public company, it
shall be in compliance with its financial reporting obligations provided that it
submits all 10-Q and 10- K reports to the Landlord within ten (10) business days
of filing the same with the Securities and Exchange Commission.
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Section 12.12 Cambridge Employment Plan. The Tenant agrees to sign an
agreement with the Employment and Training Agency designated by the City Manager
of the City of Cambridge as provided in subsections (a)-(g) of Section 24-4 of
Ordinance Number 1005 of the City of Cambridge, adopted April 23, 1984.
Section 12.13 Truck Delivery Routes; Traffic Mitigation Measures. Tenant
agrees to exercise good faith efforts to cooperate with any efforts by the City
of Cambridge to direct truck traffic to certain streets and away from certain
other streets, in connection with the making of deliveries to the Premises, and
to comply with any traffic mitigation measures of the City of Cambridge, and
Tenant shall otherwise comply with all legal requirements of the City of
Cambridge pertaining thereto.
Section 12.14 Laboratory Animals. The Landlord acknowledges that the
Tenant will be conducting biotechnology research and development at the Premises
and as such may require the use of certain laboratory animals at the Premises in
order to carry out such research and development.
Section 12.15 No Consequential Damages. In no event shall either Landlord
or Tenant be liable to the other for consequential damages, provided that
damages incurred by the Landlord in connection with any holding over by Tenant
in the Premises, including without limitation those associated with loss, cost,
liability or expense arising by virtue of the existence of aggrieved third
parties (e.g. lenders and prospective tenants), shall not constitute
consequential damages.
Section 12.16 Governing Law. This Lease shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
Section 12.17 Termination Rights for Failure of Conditions. The
effectiveness of this Lease shall be subject to the timely satisfaction of each
of the conditions specified below, unless the satisfaction of a condition is
waived or deemed waived, on or before the deadline date specified below for the
satisfaction thereof:
(a) Tenant's Title Due Diligence: That the Tenant is reasonably
satisfied, on or before November 21, 1997, that any matters specified in
that certain ALTA leasehold title insurance commitment with respect to
this Lease and a boundary survey of the Land specifying the location of
any easements or restrictions, which have been heretofore furnished by the
Landlord to the Tenant, will not materially and adversely interfere with
Tenant's use of the Premises, and the timely occupancy thereof as
contemplated under this Lease, for the Permitted Uses. The Tenant's
failure to terminate this Lease under this clause (a) on the basis of the
condition herein described, on or before November 24, 1997, shall
constitute a waiver by the Tenant of such condition.
(b) Lender's Zoning Opinion: that the Tenant has been furnished with
a copy of the zoning opinion given by the Landlord's counsel to the lender
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making the construction loan to which reference is made in clause (c)
below on or before the closing of such construction loan, which opinion
does not reveal, in the Tenant's reasonable judgment, any issues that will
materially and adversely interfere with Tenant's use of the Premises and
the timely occupancy thereof as contemplated in this Lease for the
Permitted Uses.
(c) Closing of Construction Loan: that a loan financing construction
of the Building shall have closed on or before March 1, 1998, which
condition shall be for the benefit of both the Landlord and the Tenant,
and cannot be waived as a condition unless waived by both the Landlord and
the Tenant. If the construction loan is not closed on or before March 1,
1998, this Lease may be terminated by either the Landlord or the Tenant
upon notice to such effect to the other.
(d) Subordination, Non-Disturbance and Attornment Agreement: that
the Tenant has been furnished with a subordination, non-disturbance and
attornment agreement, substantially in the form attached hereto as Exhibit
K on or before the closing of the construction loan to which reference is
made in clause (c) above.
(e) Commencement of Construction: that the commencement of
construction of the Building will be able to be, and is, commenced on or
before March 1, 1998, which condition shall be for the benefit of both the
Landlord and the Tenant, and cannot be waived as a condition unless waived
by both the Landlord and the Tenant. If the construction of the Building
is not commenced on or before March 1, 1998, this Lease may be terminated
by either the Landlord or the Tenant upon notice to such effect to the
other.
(f) Forest City Enterprises Guaranty of Completion: that a guaranty
of completion for the benefit of the Tenant, in the form attached hereto
as Exhibit L (the "Millennium Completion Guaranty") is furnished to the
Tenant on or before the closing of the construction loan to which
reference is made in clause (c) above, provided that paragraph 2(c)(ii) of
Exhibit A thereto may be further modified so long as such modification
does not adversely affect the rights of Tenant under the Millennium
Completion Guaranty.
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Upon any termination of this Lease under this Section 12.17, neither party shall
have any further rights or obligations under this Lease, which shall have no
further force or effect.
IN WITNESS WHEREOF, this Lease has been executed and delivered as of the
date first above written as a sealed instrument.
LANDLORD:
FC 45/75 SIDNEY, INC.
By:
-------------------------
Gayle W. Friedland
Vice President
TENANT:
MILLENNIUM PHARMACEUTICALS,
INC.
By:
-------------------------
Title:
----------------------
52
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EXHIBIT A
Basic Lease Terms
Annual Fixed Rent
for the Initial Term: Lease Years One (1) through Five (5): $35.00
per rentable square foot.
Lease Years Six (6) through Fifteen (15):
$38.00 per rentable square foot.
Security Deposit: See Section 11.
Initial Term: Approximately fifteen (15) years,
commencing on the First Rent Commencement
Date, and expiring on the last day of the
month during which the fifteenth (15th)
anniversary of the First Rent Commencement
Date occurs.
Extension Options: Tenant shall have two (2) options to extend
the term of this Lease for an additional
five (5) years each, all as described in
Section 2.6 of the Lease.
Landlord's Original
Address: FC 45/75 Sidney, Inc.
10800 Brookpark Road
Cleveland, Ohio 44130
Attention: James Ratner
Landlord's Address for
Notices: FC 45/75 Sidney, Inc.
38 Sidney Street
Cambridge, Massachusetts 02139-4234
Attention: Gayle Friedland
With a copy to:
Forest City Commercial Management
38 Sidney Street
Cambridge, Massachusetts 02139-4234
Attention: General Manager
Original Premises: Approximately 175,000 total rentable square
feet ("rsf") of space as depicted on Exhibit
B-1, as such calculation may be adjusted in
accordance with Section 2.1 of the Lease.
A-1
<PAGE> 59
Parking Privileges: During the Term, Landlord shall provide in
parking garages located in University Park
the aggregate of (i) two (2) parking spaces
per 1,000 rsf of floor area of the Premises
and (ii) an additional seventy (70) parking
spaces; provided that at least two (2)
parking spaces per 1,000 rsf of floor area
contained in the Original Premises shall be
located in the 101 Pacific Street Garage,
subject to the terms and conditions of this
Lease pertaining to alternative temporary
parking spaces. However, with respect to the
seventy (70) parking spaces to which
reference is made in clause (ii) above, and
any additional parking spaces that Tenant
shall be entitled to by virtue of its
expansion beyond 175,000 rentable square
feet of floor area (the "Expansion Parking
Spaces"), such parking spaces shall be
located in the 101 Pacific Street Garage
unless and until construction of a building
on parcel #8 as shown on the Map of
University Park at Exhibit B-2 hereto is
complete, at which time the Landlord may
designate other comparable spaces within
University Park as some or all of such
parking spaces. The Tenant shall pay the
market rate from time to time in effect for
all of the parking spaces provided by
Landlord. The market rate for the first
Lease Year is established to be $140.00 per
month per parking space. Tenant shall have
the right to lease additional spaces, as
available, on a month to month basis. Tenant
shall have 24-hour access, by security card
or other similar means, to the 101 Pacific
Street Garage and any other parking facility
in which it has designated spaces. With
respect to the 101 Pacific Street Garage,
the Landlord shall not provide to other
tenants of the Building more than two (2)
parking spaces per 1,000 rsf of floor area
unless such tenant occupies less than 10,000
rsf of floor area in the Building.
Permitted Uses: General business and administrative offices,
pharmaceutical research and manufacturing,
and customary accessory uses supporting the
foregoing, all as permitted by law.
Commencement Date: See Section 2.5.
Scheduled Rent
Commencement Date: February 15, 1999 with respect to the 75
Sidney Building and March 15, 1999 with
respect to the 45 Sidney Building.
Rent Commencement Date: See Section 2.5.
A-2
<PAGE> 60
Tenant's Original
Address: Millennium Pharmaceuticals, Inc.
238 Main Street
Cambridge, Massachusetts 02142
Tenant's Address for
Notices: Millennium Pharmaceuticals, Inc.
75 Sidney Street
Cambridge, Massachusetts 02139-4211
Attention: Mark Levin
With a copy to:
Joel R. Bloom, Esq.
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
Total Rentable Floor
Area of Building: Approximately 175,000 rsf of which 137,712
rsf is contained in the 45 Sidney Street
building and 37,288 rsf is contained in the
75 Sidney Street building, as such
calculations may be adjusted in accordance
with Section 2.1 of this Lease.
A-3
<PAGE> 61
EXHIBIT B
Legal Description
B-1
<PAGE> 62
EXHIBIT B-1
Depiction of Premises
B-1-1
<PAGE> 63
EXHIBIT B-2
Map of University Park
B-2-1
<PAGE> 64
EXHIBIT C
Workletter
All capitalized terms used herein and not otherwise defined shall have
the meaning ascribed to said terms in the Lease to which this Work Letter is
attached as EXHIBIT C. This Work Letter is expressly subject to the provisions
of the Lease and supplements the Lease. The provisions herein should be read
consistently with the Lease, provided, however, in the event of any
inconsistency between this Work Letter and the Lease, the terms and conditions
of the Lease shall, in all instances, and for all purposes, control.
ARTICLE XIII
Definitions
Section 13.1 Definitions. The following terms shall have the meanings
indicated or referred to below:
"Architect" -- means Tsoi Kobus Associates (or replacement
therefor in accordance with Section 2.1).
"Base Building Plans and Specs" -- See Section 3.1.
"Base Building Schematic Plans and Specs" means the schematic
plans and outline specifications prepared by the Architect for the Base Building
Improvements identified on SCHEDULE C1 attached hereto.
"Base Building Improvements" means the base building shell and
core and base building mechanical systems contemplated by the Project Work
Allocation and the Base Building Plans and Specs.
"Building Standards" means the essential qualities associated
with the Base Building Improvements specified in the Project Work Allocation and
the Mechanical Systems Capacities Exhibit.
"Construction Progress Schedule" -- See Section 4.7.
"Contractor" -- means JMA/Siena Joint Venture (or replacement
therefor in accordance with Section 4.1).
"Design and Construction Commencement Schedule" -- See Section
3.1.
"Developer's Administrative Fee" means a fee of Fifty Five
Thousand Dollars ($55,000.00), to be charged against the Leasehold Improvement
Allowance by Forest City Development for construction administration services,
in eleven (11) equal monthly installments
C-1
<PAGE> 65
of Five Thousand Dollars ($5,000.00) each, commencing on the first day of the
month following the date upon which Landlord commences construction of the
Building.
"Eligible Leasehold Improvement Expenses" -- See Section 6.2.
"Excusable Delay" means any delay in the satisfaction of the
conditions in question to the extent the same is a consequence of External
Causes including, without limitation, any governmental embargo restrictions, or
actions or inactions of local, state or federal governments (such as, without
limitation, any delays in issuing building permits, certificates of occupancy or
other similar permits or certificates).
"Landlord Delay" -- See Section 7.4.
"Leasehold Improvement Allowance" -- See Section 6.1
"Leasehold Improvements" means the build-out of the Premises
(and, if applicable, work performed by Tenant in areas not part of the Premises)
into a first class biotechnology research and development laboratory and office
facility as contemplated by the Project Work Allocation and the Tenant's Plans
and Specs.
"Mechanical Systems Capacities Exhibit" -- See Section 3.2.
"Millennium Project" means, collectively, the Base Building
Improvements and the Leasehold Improvements.
"Project Work Allocation" means the schedule denoting aspects
of the Millennium Project and the allocation thereof to either Landlord or
Tenant (or partially to Landlord and the balance to Tenant) attached hereto as
SCHEDULE C2.
"Substantial Completion" -- See Section 7.1.
"Tenant Base Building Change Order" -- See Section 5.1.
"Tenant Leasehold Improvement Change Order" -- See Section
5.5.
"Tenant Construction Readiness Date"-- See Section 4.6.
"Tenant Delay" -- See Section 7.3.
"Tenant's Plans and Specs" -- See Section 3.1.
"Tenant's Schematic Plans and Specs" means the schematic plans
and outline specifications prepared by the Architect for the Leasehold
Improvements identified on SCHEDULE C3 attached hereto.
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"Tenant's Representative" -- See Section 2.2.
"Termination Notice" -- See Section 9.1.
ARTICLE XIV
Engagement of Architect and Tenant's Representative
Section 14.1 Landlord and Tenant have, under separate arrangements with
the Architect, engaged the Architect to develop schematic plans, drawings and
specifications for the Base Building Improvements and the Leasehold
Improvements, respectively. Landlord and Tenant shall hereafter enter into
separate formal architect's contracts with the Architect pursuant to which the
Architect will be engaged separately by Landlord and Tenant to prepare more
fully developed plans, drawings and specifications, work with Landlord and
Tenant through the bid process and supervise the construction of the Base
Building Improvements and Leasehold Improvements, respectively. Landlord and
Tenant agree to work together to engage the Architect's services under contracts
that properly allocate the responsibility of the Architect to each of Landlord
and Tenant, and to assure that the construction of the Millennium Project is
well coordinated. In order to assure such coordination, Landlord shall furnish a
copy of its architect's contract to Tenant, and it is intended by the parties
that Landlord's architect's contract shall serve as a guide for the preparation
of Tenant's architect's contract. Tenant shall furnish a copy of its proposed
architect's contract with the Architect to Landlord prior to its execution for
Landlord's review and approval, which shall not be unreasonably withheld or
delayed. In either case, purely economic terms that a party may reasonably
believe is appropriately confidential may be redacted. If either Landlord or
Tenant should elect to replace the Architect and engage a replacement Architect
to fulfill the responsibilities contemplated to be undertaken by the Architect
on behalf of such party, and the parties agree that such a replacement of the
Architect will not be implemented without good cause, the identity of the
replacement shall be subject to the other party's approval, which shall not be
unreasonably withheld or delayed.
Section 14.2 Tenant has entered into an agreement with The Carlisle
Consulting Group, Inc. ("Tenant's Representative") pursuant to which Tenant's
Representative will perform certain services for and on behalf of Tenant during
the design and construction phases of the Leasehold Improvements. Tenant shall,
at its sole cost and expense, and in accordance with the terms and conditions of
its agreement with Tenant's Representative, compensate Tenant's Representative
for providing such services. Landlord hereby agrees that Tenant's Representative
shall receive copies of all notices to which reference is made in this EXHIBIT C
given by Landlord to Tenant. Tenant hereby agrees that Tenant's Representative
shall have authority to act as Tenant's representative in connection with its
participation in meetings and otherwise, and that except to the extent Landlord
has been given contrary instructions in writing from Tenant with respect to any
matter with which Tenant's Representative has been involved, Landlord is
entitled to rely on Tenant's Representative as the party having authority to
make decisions and establish schedules for the performance of work. Tenant
agrees further to continue to engage Tenant's Representative to render the
services contemplated hereunder, or a qualified successor subject to
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Landlord approval, which shall not be unreasonably withheld, until such time as
final completion of the Leasehold Improvements and occupancy by Tenant in the
Premises has been achieved.
ARTICLE XV
Plans and Specifications
Section 15.1 Landlord shall, at its sole cost and expense (except as
provided in Section 3.4 and Article 5), as soon as reasonably possible, but in
any event in substantial conformity with the Design and Construction
Commencement Schedule, cause the completion of the Base Building Schematic Plans
and Specs as necessary to permit construction of the Base Building Improvements
to commence on or before the date contemplated therefor, and thereafter finally
complete the Base Building Plans and Specs as necessary to permit construction
of the Base Building Improvements to proceed expeditiously. For all purposes
hereof, the "Base Building Plans and Specs" means the plans, specifications and
working drawings for the completion of the Base Building Improvements, as the
same may be modified consistently with the terms and conditions hereof. Tenant
shall at its sole cost and expense (except as provided in Section 3.4 and
Article 5), as soon as reasonably possible, but in any event in substantial
conformity with the "Design and Construction Commencement Schedule" attached
hereto as SCHEDULE C4, cause the completion of the Tenant's Schematic Plans and
Specs as necessary to permit construction of the Leasehold Improvements to
commence on the Tenant Construction Readiness Date for each of the 75 Sidney
Building and the 45 Sidney Building, and thereafter to finally complete the
Tenant's Plans and Specs as necessary to permit construction of the Leasehold
Improvements to proceed expeditiously. For all purposes hereof, the "Tenant's
Plans and Specs" means the plans, specifications and working drawings for the
completion of the Leasehold Improvements approved by Landlord as herein
provided, as the same may be modified consistently with the terms and conditions
hereof.
Section 15.2 Landlord, Tenant, and Architect have been working together
to create design concepts, plans and specifications for the Millennium Project
that will be mutually satisfactory to Landlord and Tenant. The results of such
efforts as of the date of this Lease are the Project Work Allocation, the
standard tenant system allocations and capacities specified in Exhibit F to this
Lease (the "Mechanical Systems Capacities Exhibit"), the designs for the Base
Building Improvements set forth in the Base Building Schematic Plans and Specs,
the designs for the Leasehold Improvements set forth in Tenant's Schematic Plans
and Specs and the inventory of standard installed laboratory equipment
identified on SCHEDULE C5 attached hereto. The parties agree diligently and in
good faith to work together with the Architect and any other retained design
professionals to finalize the Base Building Plans and Specs and Tenant's Plans
and Specs in the manner contemplated by the Design and Construction Commencement
Schedule. Landlord and Tenant agree to furnish in timely fashion to each other
such information as may be requested by the other party, to promptly "sign off"
or specify objections or concerns as to matters where a "sign off" is requested
by one party or the other and to otherwise undertake all such actions as are
reasonably necessary in order to assure the timely commencement of the
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construction of the Base Building Improvements and, upon the Tenant Construction
Readiness Date, the Leasehold Improvements.
Section 15.3 Tenant's Plans and Specs, including without limitation
each iteration thereof, and each change proposal with respect thereto, through
and including the "as-built" version thereof, and the work contemplated to be
performed in accordance therewith, shall be subject to Landlord's prior
approval, which approval shall not be unreasonably withheld or delayed. Without
limitation of the foregoing, Landlord shall not be deemed to be unreasonable for
requiring that the standards provided in Article IV of this Lease are being
fulfilled, for withholding approval to any material variance of the Tenant's
Plans and Specs with Tenant's Schematic Plans and Specs, or for withholding
approval with respect to any aspect of Tenant's Plans and Specs that are
inconsistent or incompatible with the Base Building Plans and Specs, unless
Tenant proposes a Tenant Base Building Change Order to remedy such inconsistency
or incompatibility, to which Landlord has no objection under Section 5.1.
Neither the requirement that Tenant's Plans and Specifications be submitted to
Landlord nor Landlord's or Landlord's agents actual or implied review of
Tenant's Plans and Specs on changes thereto shall in any way be deemed to be an
agreement by Landlord that (i) the work contemplated thereby or any other aspect
thereof complies with legal or other requirements, (ii) that the Tenant's Plans
and Specs will be approved by any governmental agency having jurisdiction
thereover, (iii) that Tenant's Plans and Specs are free from errors, omissions
or inconsistencies or are coordinated with the Base Building Plans and Specs or
within Tenant's Plans and Specs, and without limitation, any delay associated
with any of the foregoing (i), (ii) and (iii) shall constitute Tenant's Delay.
Section 15.4 The Base Building Plans and Specs developed by Landlord
under Section 3.1 shall always remain consistent with the Building Standards
and, if during the development and completion of the Base Building Plans and
Specs, Landlord desires to make any change that would not be so consistent (a
"Major Change"), such Major Change shall be subject to Tenant's consent, which
shall not be unreasonably withheld or delayed. If, during the development and
completion of the Base Building Plans and Specs, Tenant desires to propose a
Major Change, Tenant shall undertake responsibility for having the Architect
prepare any necessary modifications to the Base Building Plans and Specs, and
any such Major Change shall be subject to Landlord's approval, which Landlord
shall not unreasonably withhold or delay. Without limitation of the foregoing,
Landlord shall not be deemed to be unreasonable for withholding consent to any
Major Change which would diminish the quality of the Base Building Improvements,
would cause any delay in the Substantial Completion of the Base Building
Improvements, or which Landlord would be entitled to reject under Article IV of
this Lease. Landlord may, in any event, condition its approval to a Major Change
proposed by Tenant upon Tenant's expressly acknowledging its responsibility for
any increase in the costs associated with the Base Building Improvements
resulting from such Major Change and depositing Landlord's estimate thereof,
based on input from the Contractor, with Landlord for application by Landlord to
the cost thereof as contemplated in Section 6.3. If Landlord should approve
Tenant's proposed Major Change, Tenant shall cause all plans and specifications
associated therewith to be furnished to Landlord for approval. Neither the
requirement that Tenant submit such plans and specifications to Landlord nor
Landlord's or Landlord's agents' actual or implied review thereof shall in any
way be an agreement by Landlord that (i) the work contemplated thereby or
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any other aspect thereof complies with legal or other requirements, (ii) that
such plans and specifications will be approved by any governmental authority
having jurisdiction thereover, (iii) that the plans and specifications are free
from errors, omissions or inconsistencies, or are coordinated with the Base
Building Plans and Specs or within themselves, and without limitation, any delay
associated with any of the foregoing (i), (ii) or (iii) or any delay in
Landlord's ability to cause the Tenant Construction Readiness Date or the date
upon which Substantial Completion of the Base Building Improvements occurs shall
constitute Tenant's Delay. Tenant acknowledges that Landlord has made no
representation or warranty with respect to the Base Building Improvements being
suitable for any particular use or purpose, Tenant having the responsibility to
make such determination.
ARTICLE XVI
Construction of the Project
Section 16.1 Landlord and Tenant shall, under separate contracts,
engage the Contractor, and enter into such other arrangements as are
appropriate, to cause the Base Building Improvements and Leasehold Improvements,
respectively, to be timely constructed, installed and completed. Tenant shall
furnish a copy of its proposed construction contract with the Contractor, prior
to its execution for Landlord's review and approval, which shall not be
unreasonably withheld or delayed. It is contemplated that Tenant's construction
contract with the Contractor be consistent with the terms and conditions set
forth in Landlord's contract with the Contractor, and due to the fact that the
construction of the Base Building Improvements and Leasehold Improvements are to
be performed contemporaneously in significant respects, the coordination of the
construction process and the proper undertaking of responsibility by the
Contractor on behalf of Landlord and Tenant is critically important. In
furtherance of such coordination, Landlord shall furnish Tenant a copy of
Landlord's construction contract, and it is intended by the parties that
Landlord's construction contract shall serve as a guide for the preparation of
Tenant's construction contract. In the case of both Landlord's and Tenant's
delivery of their respective construction contracts to the other, purely
economic terms that a party may reasonably believe is appropriately confidential
may be redacted. However, in no event shall the economic terms associated with
the pricing of change orders be considered appropriately confidential, as under
certain circumstances each party may be responsible for increases in cost
incurred by the other party in connection with change orders. If either Landlord
or Tenant should elect to replace the Contractor to fulfill the responsibilities
contemplated to be undertaken by the Contractor on behalf of such party, and the
parties agree that such a replacement of the Contractor will not be implemented
without good cause, the identity of the replacement shall be subject to the
other party's approval, which shall not be unreasonably withheld or delayed.
Each of Landlord and Tenant agree to notify the other party in the event such
party or the Contractor should seek to terminate, or terminates, a construction
contract entered into by such party and the Contractor.
Section 16.2 Landlord shall install, furnish and perform, as the case
may be, with reasonable diligence and in a good and workmanlike manner and at
its sole cost and expense
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(except as otherwise expressly provided herein to the contrary), the facilities,
materials, labor, supplies and work required for the construction of the Base
Building Improvements in accordance with the Base Building Plans and Specs.
Section 16.3 Tenant shall install, furnish, and perform, as the case
may be, with reasonable diligence and in a good and workmanlike manner and at
its own cost and expense (except as otherwise expressly provided to the contrary
herein) the facilities, materials, labor, supplies and work required for the
construction of the Leasehold Improvements in accordance with the Tenant's Final
Plans and Specs or otherwise as approved by Landlord. The Leasehold Improvements
shall commence to be constructed promptly following the Tenant Construction
Readiness Date, and be constructed, installed and performed in accordance with
the Rules and Regulations for Tenant Construction which are set forth as
SCHEDULE C6 and with any and all reasonable requirements of Landlord's lender in
connection with the loan documents, including without limitation, inspection
procedures, funding payment procedures, and retainage. As construction of the
Base Building Improvements and the Leasehold Improvements will, to a certain
extent, be conducted contemporaneously, each of Landlord and Tenant expressly
acknowledge that in conducting their respective work, due care must be exercised
to avert interference in the conduct by the other party of its work, and each
party covenants and agrees to exercise reasonable efforts to avert such
interference.
Section 16.4 All building permits, certificates of occupancy and other
governmental approvals required to construct the Base Building Improvements
shall be obtained by Landlord at Landlord's sole cost and expense (except as
expressly otherwise provided herein). All building permits, certificates of
occupancy, and other governmental approvals required to construct the Leasehold
Improvements and to occupy and operate Tenant's business in the Premises shall
be obtained by Tenant at Tenant's sole cost and expense.
Section 16.5 Landlord and Tenant agree to work together cooperatively
so as to coordinate the management, administration, and scheduling of the Base
Building Improvements and the Leasehold Improvements. Such cooperation shall
include without limitation, regular meetings during the construction period with
the Contractor, the attendance at such meetings to include authorized
representatives of Landlord and Tenant's Representative. Landlord and Tenant
each agree that they shall respectively assure the availability of such
representatives at reasonable times after reasonable notice. For the foregoing
purposes, Landlord has initially designated Allison Nichols as Landlord's
representative.
Section 16.6 The Base Building Improvements shall for all purposes
hereof be deemed at the stage of completion sufficient to permit Landlord to
establish that the "Tenant Construction Readiness Date" has occurred on such
date as the Base Building Improvements are in such condition, with floor slab
concrete poured and fireproofing installed, that Tenant can reasonably commence
construction of the mechanical, electrical, and plumbing rough-in portions of
the Leasehold Improvements on at least two (2) contiguous floors of the
Premises. Landlord shall diligently proceed with the construction of the Base
Building Improvements and endeavor to achieve the stage of completion sufficient
to permit Landlord to cause the Tenant Construction
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Readiness Date to occur (i) on or before July 5, 1998, for the 75 Sidney
Building; and (ii) on or before August 2, 1998 for the 45 Sidney Building.
Section 16.7 Landlord and Tenant have jointly prepared a construction
progress schedule (the "Construction Progress Schedule") for construction and
completion of the Millennium Project, which specifies the material activities
and events that will occur during each phase of the Millennium Project and sets
forth key dates and certain aspects of construction that are anticipated to be
substantially completed thereby in order that the Millennium Project is timely
completed. The Construction Progress Schedule will be updated mutually by
Landlord and Tenant as necessary to reflect the then expectations of the parties
including, without limitation, following the occurrence of circumstances
reasonably anticipated to affect the progress of construction. The Construction
Progress Schedule will indicate, without limitation, the anticipated Tenant
Construction Readiness Date. No modification of the Construction Progress
Schedule as hereinabove contemplated, or otherwise as permitted hereunder, shall
necessarily result in a postponement of the Scheduled Rent Commencement Date or
the Rent Commencement Date. The only circumstances resulting in a postponement
of either of such dates shall be the circumstances contemplated in Section 2.5
of the Lease.
ARTICLE XVII
Changes in the Work
Section 17.1 Tenant may request changes, subject to the Landlord's
approval as hereinafter provided, in the Base Building Improvements consisting
of additions or deletions to, or other revisions in, the Base Building Plans and
Specs, with an appropriate adjustment, if any, to the Construction Progress
Schedule and with appropriate provisions for payments by Tenant as herein
provided. Any such changes in the Base Building Plans and Specs which are
approved by Landlord and authorized by Tenant by written change order are herein
referred to as a "Tenant Base Building Change Order". Landlord's rights with
respect to approving or withholding approval to a proposed Tenant Base Building
Change Order, and the allocation of responsibility in paying any increase in the
cost of the Base Building Improvements resulting therefrom, shall be governed by
the same criteria as are applicable to requested change to the Base Building
Plans and Specs under Section 3.4.
Section 17.2 If Landlord determines that a Tenant Base Building Change
Order will result in an increase in the cost of the Base Building Improvements,
as calculated below, Landlord shall advise Tenant of Landlord's estimate thereof
and permit Tenant, in accordance with Section 5.3 below, to decide whether or
not to give Landlord notice that Tenant desires that Landlord proceed with such
Tenant Base Building Change Order. Such increase in the cost of the Base
Building Improvements ("Tenant Base Building Change Order Cost") shall be equal
to the sum of (a) all so-called "hard costs" as specified in Landlord's contract
with Contractor reasonably and necessarily incurred with the subject change,
plus (b) all reasonable, actually incurred so-called third party "soft costs" in
connection with the subject change (including, without limitation, interest and
other carrying costs), plus (c) reasonable, actually incurred so-called "general
conditions", plus (d) Contractor's overhead and profit, and (e) all reasonable,
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actually incurred design and engineering costs in connection with the design of
such change. Landlord shall provide Tenant with an estimate accompanied by
reasonable substantiation of all costs attributed to Tenant Base Building Change
Orders, including, without limitation, material and labor quantity estimates,
unit costs and contractor and subcontractor quotations. Such costs charged to
Tenant should not exceed the actual cost to be incurred by Landlord.
Additionally, Landlord shall give Tenant notice of its estimate of any effect
that Tenant's Base Building Change Order will have on the Construction Progress
Schedule.
Section 17.3 Within five (5) business days after such notification,
Tenant shall, in turn, notify Landlord as to whether Tenant wishes to proceed
with the Tenant Base Building Change Order in question and, if the decision is
to proceed, accompanied by payment equal to Landlord's estimated Tenant Base
Building Change Order Cost. In the event that Tenant fails to notify Landlord
within such five (5) business day period, Tenant shall automatically be deemed
not to desire the Tenant Base Building Change Order, and Landlord shall not be
obligated to implement the same. If Tenant timely gives Landlord notice to
implement the Tenant Base Building Change Order, then Tenant shall be
responsible for the full Tenant Base Building Change Order Cost (whether greater
or less than the amount of Landlord's estimate which Tenant shall have paid to
Landlord as a condition to landlord's having implemented the same) and any delay
in the occurrence of the Tenant Construction Readiness Date and/or Substantial
Completion of the Base Building Improvements caused thereby, whether greater or
less than the delay estimated by Landlord, shall be deemed Tenant Delay for all
purposes hereof.
Section 17.4 Notwithstanding anything to the contrary otherwise
provided in this Article 5, if Tenant should propose a Tenant Base Building
Change Order that is approved by Landlord in accordance with this Article 5 and
approved by Tenant to be implemented by Landlord, and if the calculation of the
Tenant Base Building Change Order Cost with respect thereto results in a
decrease in the cost to the Owner to construct the Base Building Improvements
("Base Building Change Order Savings"), then such Base Building Change Order
Savings, until fully applied, may be applied by Tenant to any future Tenant Base
Building Change Order Costs thereafter incurred by Tenant hereunder. However,
Tenant shall not be entitled to any credit whatsoever for unapplied Base
Building Change Order Savings, as Base Building Change Order Savings may not be
applied other than to Tenant Base Building Change Order Costs.
Section 17.5 Tenant may, subject to obtaining the Landlord's approval
as hereinafter provided, make changes to the Leasehold Improvements consisting
of additions or deletions to, or other revisions in the Tenant Plans and Specs,
with an appropriate adjustment, if any, to the cost of the Leasehold
Improvements and to the Construction Progress Schedule ("Tenant Leasehold
Improvement Change Order"). Landlord's rights with respect to approving or
withholding approval to a proposed Tenant Leasehold Improvement Change Order
shall be governed by the same criteria as are applicable to the approval of
Tenant's Plans and Specs under Section 3.3.
5.6 If Landlord elects to make a discretionary change (e.g. not changes
dictated by legal requirements or agreements with municipal authorities, changes
which Landlord is advised
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should be adopted in order to serve good construction practice or other changes
that otherwise are required to serve some other non-discretionary purpose) to
the Base Building Plans and Specs that would have the effect of requiring that
Tenant modify Tenant's Plans and Specs, and increase the cost to Tenant of
constructing the Leasehold Improvements, then Landlord agrees that the Leasehold
Improvement Allowance shall be increased by the amount of such increase. Nothing
in the preceding sentence is intended to impose the burden upon Tenant of any
violation by Landlord in its preparation of the Base Building Plans and Specs of
any applicable legal requirements in effect at the time Landlord obtained the
building permit therefor, or any breach by Landlord of any existing agreements
with municipal authorities. Tenant shall specify based on input from the
Contractor whether the cost of constructing the Leasehold Improvements would be
increased by virtue of such change in the Base Building Plans and Specs promptly
after Landlord's inquiry to such effect, specifying the amount of such increase.
If any such change constitutes a Major Change, Tenant shall not be deemed
unreasonable for withholding approval thereto on the condition that Landlord
agrees to such an increase in the Leasehold Improvement Allowance.
Notwithstanding the foregoing, if Landlord should implement a change in the Base
Building Plans and Specs, but such change has the effect of reducing the cost to
Tenant of constructing the Leasehold Improvements ("Leasehold Improvement Change
Order Savings"), then such Leasehold Improvement Change Order Savings, until
fully applied, may be applied by Landlord to any future increases in the cost of
the Leasehold Improvements resulting from discretionary changes by Landlord in
the Base Building Plans and Specs as aforesaid. However, Landlord shall not be
entitled to any credit whatsoever for unapplied Leasehold Improvement Change
Order Savings.
ARTICLE XVIII
Payment of Costs; Leasehold Improvement Allowance
Section 18.1 Landlord has established an allowance (the "Leasehold
Improvements Allowance") equal to the product of Eighty Five and 00/100 Dollars
($85.00) times the rentable square footage of the Original Premises, but limited
to a maximum of $14,875,000, for purposes of being applied to certain costs and
expenses, more particularly set forth below, incurred by or on behalf of Tenant
in connection with the performance of the Leasehold Improvements. If Tenant
incurs costs in connection with the construction of the Leasehold Improvements
in excess of the Leasehold Improvement Allowance, then except as otherwise
expressly provided in Section 5.6 and Section 7.6, all costs shall be borne by
Tenant, and shall be deposited with Landlord in accordance with the terms and
conditions specified in Section 6.3 below.
Section 18.2 The application of the Leasehold Improvement Allowance by
Landlord shall be limited to payment of the following costs and expenses
incurred by or on behalf of Tenant in connection with the Leasehold Improvements
(collectively "Eligible Leasehold Improvement Expenses"): (i) the actual
documented and verified cost of the labor and materials, together with the
associated contractor's overhead and profit and general conditions and the
Developer's Administrative Fee, incurred in the construction of the Leasehold
Improvements contemplated by Tenant's Plans and Specs, except for the making of
Removable Alterations or other improvements, installation of fixtures or
incorporation of other items which (x) by virtue of
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their quantity or quality (whether greater or less) would not be of general
utility to other laboratory tenants that might later occupy the Premises,
whether at the expiration of the Term or by virtue of the earlier termination of
this Lease, (y) otherwise are not of a nature, scope or capacity consistent with
a first class office and laboratory facility or (z) are moveable rather than
permanent improvements, examples of which are furniture, telephone and security
systems and bench-top laboratory equipment items such as microscopes. In the
event that, upon Substantial Completion of the Millennium Project, there remains
unapplied funds from the Leasehold Improvement Allowance, then architectural and
engineering design fees, up to an aggregate of the product of Five Dollars
($5.00) times the rentable square footage of the Premises, but limited to a
maximum of $875,000, shall be deemed Eligible Leasehold Improvement Expenses.
Section 18.3 Upon the execution by Tenant of the construction contract
with the Contractor for performance of the Leasehold Improvements, the
anticipated cost and expense of performing the Leasehold Improvements shall be
established by Landlord and Tenant (the "Leasehold Improvement Cost Budget"). If
the anticipated cost and expense established in the Leasehold Improvement Cost
Budget for the Leasehold Improvements exceeds the lesser of (i) so much of such
costs that will constitute Eligible Leasehold Improvement Expenses or (ii) the
Leasehold Improvement Allowance ("Excess Leasehold Improvement Costs"), such
amount shall be deposited in escrow (the "Tenant Construction Escrow") with
Landlord pursuant to the escrow requirements set forth in Article XI of this
Lease. If for any reason the anticipated cost and expense of performing the
Leasehold Improvements should change, the Tenant's Leasehold Improvement Cost
Budget shall be changed accordingly and Tenant shall deposit into the Tenant
Construction Escrow consistent with such reasonable requirements as may be
imposed upon Landlord by Landlord's construction lender with respect to the Base
Building Improvements any increase in the Excess Leasehold Improvement Costs so
that the amount which is so held in escrow shall always equal the amount by
which the then cost of completing the Leasehold Improvements exceeds the
aggregate of (x) the unadvanced Leasehold Improvement Allowance available to pay
the then budgeted Eligible Leasehold Improvement Expenses and (y) the then
amount held in the Tenant Construction Escrow.
Section 18.4 During the construction of the Leasehold Improvements and
in accordance with the terms and conditions imposed upon the Landlord pursuant
to the loan agreement with Landlord's lender pertaining to the construction of
the Base Building Improvements, Tenant shall, on a monthly basis (as the
Contractor submits to Tenant its application for payment less retainage of not
less than five percent (5%) together with lien waivers), deliver to Landlord a
requisition for payment showing the cost of the Leasehold Improvements and the
amount of the current payment requested from Landlord. Each of the requisitions
for payment shall also show the amounts paid to date and the percent complete of
the total Leasehold Improvements scope. It is Landlord's expectation that
Landlord will deliver such requisition to the Lender together with its own
requisition for payment of costs associated with Base Building Improvements, and
shall promptly, but in any event within (30) days, pay directly to the
Contractor the amount specified in such Contractor's requisition. Following the
completion of the Leasehold Improvements, Tenant shall deliver to the Landlord,
within fifteen (15) days of completion, a statement showing the final costs of
the Leasehold Improvements, the total of Tenant's excess costs, the amounts paid
to date to, or on behalf of the Tenant, and any amounts available for release of
retainage.
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Landlord shall endeavor, in good faith, to ensure that its construction lender
advances monies properly and duly owed to Contractor for the Leasehold
Improvements.
Section 18.5 Payments made to Contractor on account of Tenant's
requisitions shall be made from the Leasehold Improvement Allowance and the
Tenant Construction Escrow account on a proportionate basis consistent with the
ratio of (i) the lesser of (x) the Eligible Leasehold Improvement Expenses set
forth in the Leasehold Improvement Cost Budget established as of the Tenant
Construction Readiness Date and (y) the Leasehold Improvement Allowance to (ii)
the total Leasehold Improvement Cost Budget established as of the Tenant
Construction Readiness Date. If Tenant should increase the Leasehold Improvement
Cost Budget by authorizing Leasehold Improvement Change Orders, then the
increased costs shall be deposited by Tenant in the Tenant Construction Escrow
account when due, and such increased costs shall be paid exclusively from the
Tenant Construction Escrow account, in order to maintain the same ratio of
Landlord's advances from the Leasehold Improvement Allowance to the total of
Tenant's requisition as the ratio of the Eligible Leasehold Improvement Expenses
to the total Leasehold Improvement Cost Budget.
6.6 All of the payments to be made by Landlord and Tenant described in
this Article 6, shall be made based upon the rentable floor area of the Premises
calculated by the Architect in accordance with EXHIBIT A to the Lease on the
basis of the Tenant's Plans and Specs as of the Tenant Construction Readiness
Date. After a final determination of such rentable floor area pursuant to
Section 2.1 of the Lease, the aforesaid payments shall be adjusted between the
parties within thirty (30) days of such final determination.
ARTICLE XIX
Substantial Completion; Delays
Section 19.1 For all purposes hereof, "Substantial Completion" of the
Base Building Improvements shall be deemed to have taken place once the Base
Building Improvements have been substantially completed in substantial
accordance with the Base Building Plans and Specs, notwithstanding that minor or
insubstantial details of construction, mechanical adjustment, balancing or
decorating remain to be performed, and notwithstanding that any other work upon
which a temporary certificate of occupancy for the Premises is not contingent,
and the failure of which to complete by Landlord will not materially and
adversely affect Tenant in occupying and conducting business therein remains to
be performed. Once Substantial Completion of the Base Building Improvements has
occurred, upon the completion of the Leasehold Improvements, the "Substantial
Completion" of the Millennium Project will be deemed to have been achieved.
Section 19.2 It is contemplated by Landlord and Tenant that Landlord
and Tenant shall respectively complete final iterations of Landlord's Plans and
Specs and Tenant's Plans and Specs, and respectively execute construction
contracts with the Contractor, permitting construction of the Base Building
Improvements to occur on or before the date contemplated therefor in the
Construction Progress Schedule. Assuming the foregoing is achieved, Landlord
contemplates the Tenant Construction Readiness Date for each of the 75 Sidney
Building and the
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45 Sidney Building occurring on or before the dates respectively projected
therefor, and that Landlord shall cause Substantial Completion of the Base
Building Improvements with respect to the 75 Sidney Building and the 45 Sidney
Building on the dates set forth as the respective Scheduled Rent Commencement
Dates in the Lease. Tenant shall have the period commencing on the Tenant
Construction Readiness Date until the Scheduled Rent Commencement Date for each
of the aforesaid buildings during which Tenant may cause the Leasehold
Improvements to be constructed prior to the commencement of the rental and other
obligations that accrue thereafter.
Section 19.3 As used herein, "Tenant Delay" shall mean any delay in the
satisfaction of the condition in question (e.g. the Tenant Construction
Readiness Date or the date upon which Substantial Completion of the Base
Building Improvements is achieved) to the extent the same is a consequence of
any act, omission or neglect of Tenant, of Architect (in connection with
Tenant's Plans and Specs or Tenant Base Building Change Orders), or of any other
employee, agent, Contractor (in its performance of the Leasehold Improvements),
subcontractor, sub-subcontractor, agent or representative of Tenant, including
without limitation, any errors, omissions or inconsistencies in Tenant's Plans
and Specs or the lack of coordination of Tenant's Plans and Specs with the Base
Building Plans and Specs, delays attributable to any Tenant Base Building Change
Orders, or otherwise from interference that could reasonably have been averted
in the manner by which Tenant's construction of the Leasehold Improvements is
conducted.
Section 19.4 As used in this Work Letter, "Landlord Delay" shall mean
any delay in the satisfaction of the condition in question (e.g. the Tenant
Construction Readiness Date or the date upon which Substantial Completion of the
Base Building Improvements is achieved) to the extent the same is a consequence
of any act, omission or neglect of Landlord, of Architect (in connection with
Base Building Plans and Specs or discretionary Base Building change orders made
by Landlord), or of any other employee, agent, Contractor (in its performance of
the Base Building Improvements), subcontractor, sub-subcontractor, agent or
representative of Landlord, including without limitation from interference that
could reasonably have been averted in the manner in which Landlord's
construction of the Base Building Improvements is conducted.
Section 19.5 In the event of a condition causing delay as set forth in
this Article 7, the party affected by such condition shall give written notice
to the other party within five (5) days following the commencement of such
condition indicating the cause of delay and the probable duration thereof.
Section 19.6 If Landlord must incur change order costs under its
construction contract with the Contractor with respect to the Base Building
Improvements by virtue of Tenant Delay, such costs shall be payable by Tenant as
an additional cost of its Leasehold Improvements. If Tenant must incur change
order costs under its construction contract with the Contractor with respect to
the Leasehold Improvements by virtue of Landlord Delay, the Leasehold
Improvement Allowance shall be increased by the amount of such costs.
ARTICLE XX
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Completion of Basic Building Improvements; Punch List
Section 20.1 Notwithstanding that Substantial Completion of the Base
Building Improvements shall be deemed to have occurred with respect to one or
both of the 75 Sidney Building and the 45 Sidney Building, subject to the
provisions of this Section 8, Landlord shall with reasonable diligence cause the
remaining Base Building Improvements to be completed.
Section 20.2 During the five (5) business days immediately preceding
the occupancy of all or any portion of each of the 75 Sidney Building or the 45
Sidney Building by Tenant, Tenant shall conduct an inspection of the Base
Building Improvements with respect thereto, giving Landlord prior notice and an
opportunity to attend the same, and furnish to Landlord a notice ("Punch List
Notice") specifying any aspect of Base Building Improvements which remains to be
completed or which, if completed, is not substantially in accordance with the
Base Building Plans and Specs. Landlord shall cause any incomplete work to be
completed and/or remedy any such work not substantially in accordance with the
Base Building Plans and Specs promptly following the establishment of the
punchlist. In no event shall Landlord be obligated to repair or cause the repair
of any damage to the Base Building Improvements caused by Tenant, its employees,
agents or contractors. Nothing in this Section 8.2 shall limit any of Tenant's
rights or Landlord's obligations under the Lease with respect to the maintenance
or operation of the Building.
Section 20.3 If Tenant shall fail to conduct an inspection of Base
Building Improvements and timely give to Landlord a Punch List Notice as
provided in Section 8.1 above, then it shall be deemed that, except for latent
defects, and work which cannot be inspected or tested due to seasonal factors,
the Base Building Improvements with respect to the building in question has been
fully completed in accordance with the Base Building Plans and Specs. If Tenant
shall conduct an inspection and give Landlord a Punch List Notice as provided in
Section 8.1, then except for the items specified in the Punch List Notice,
latent defects and work which cannot be inspected due to seasonal factors, the
Base Building Improvements with respect to the building in question has been
fully completed in accordance with the Base Building Plans and Specs. Nothing in
this Section 8.3 shall limit any of Tenant's rights or Landlord's obligations
under the Lease with respect to the maintenance of operation of the Building.
Section 20.4 Tenant shall furnish Landlord, promptly after the
Substantial Completion of the Millennium Project, an "as built" iteration of
Tenant's Plans and Specs.
ARTICLE XXI
Right to Terminate for Failure to Achieve Tenant Construction Readiness Date
Section 21.1 Notwithstanding anything to the contrary provided in this
Lease, Tenant shall have the right, in accordance with the terms of this Section
9.1, to terminate this Lease in the event that the Tenant Construction Readiness
Date has not been achieved, with respect to either the 75 Sidney Building or the
45 Sidney Building by October 15, 1998, as such date may
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be extended by Landlord, but not beyond December 31, 1998, by virtue of
Excusable Delay, or extended without limitation as to the duration of such
extension, by virtue of Tenant Delay (the "Deadline Date"). Any termination as
set forth herein shall become effective immediately upon receipt of the
Termination Notice; provided, however, that if Tenant has not given the
Termination Notice to Landlord on or before the tenth (10th) day following the
occurrence of the Deadline Date, then Tenant's right to terminate the Lease
under this Section 9.1 shall automatically expire and be of no further force and
effect.
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EXHIBIT D
Standard Services
The building standard services shall be defined by the Landlord and its
Management Agent. A listing of services shall be as promulgated from time to
time by the Landlord and shall be further described in the Tenant Handbook.
The following services are provided by the Landlord:
A. Regular maintenance of interior, exterior and parking lot
landscaping and University Park common areas.
B. Regular maintenance, sweeping and snow removal of building
exterior areas such as roadways, driveways, sidewalks, parking
areas and courtyard paving.
C. Complete interior and exterior cleaning of all windows two
times per year.
D. Daily, weekday maintenance of hallways, passenger elevators,
common area bathrooms, lobby areas and vestibules.
E. Periodic cleaning of stairwells, freight elevators, and back
of house areas.
F. Daily, weekday rubbish removal of all tenant trash
receptacles.
G. Daily, weekday cleaning of Tenant space to building standard.
H. Maintenance and repair of base building surveillance and alarm
equipment, elevators, mechanical, electrical, plumbing and
life safety systems.
I. Building surveillance and alarm system operation and live
monitoring service to building standard specifications.
J. Chilled water and ventilation air for HVAC purposes shall be
provided to the Premises from central mechanical equipment at
all times during the appropriate seasons. The Tenant's usage
shall be measured and allocated appropriately.
K. Utilities for all interior Common areas and exterior building
and parking lighting.
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EXHIBIT D-1
Terms of Maintenance and Repair Services
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EXHIBIT E
Rules and Regulations
DEFINITIONS
Wherever in these Rules and Regulations the word "Tenant" is used, it
shall be taken to apply to and include the Tenant and its agents, employees,
invitees, licensees, contractors, any subtenants and is to be deemed of such
number and gender as the circumstances require. The word "Premises" is to be
taken to include the space covered by the Lease. The word "Landlord" shall be
taken to include the employees and agents of Landlord. Other capitalized terms
used but not defined herein shall have the meanings set forth in the Lease.
GENERAL USE OF BUILDING
A. Space for admitting natural light into any public area or
tenanted space of the Building shall not be covered or
obstructed by Tenant except in a manner approved by Landlord.
B. Toilets, showers and other like apparatus shall be used only
for the purpose for which they were constructed. Any and all
damage from misuse shall be borne by Tenant.
C. Except as otherwise permitted in the Lease, Landlord reserves
the right to determine the number of letters allowed Lessee on
any directory it maintains.
D. No sign, advertisement, notice or the like, shall be used in
the Building by Tenant (other than at its office and then only
as approved by Landlord in accordance with building
standards). If Tenant violates the foregoing, Landlord may
remove the violation without liability and may charge all
costs and expenses incurred in so doing to Tenant.
E. Tenant shall not throw or permit to be thrown anything out of
windows or doors or down passages or elsewhere in the
Building, or bring or keep any pets therein, or commit or make
any indecent or improper acts or noises. In addition, Tenant
shall not do or permit anything which will obstruct, injure or
interfere with other tenants or those having business with
them.
F. Unless expressly permitted by the Landlord in writing:
(1) No locks or similar devices shall be attached to any
door or window which are not on the master key system
maintained by the Landlord. If more than two keys for
one lock are desired by the Tenant, the Landlord may
provide the same upon payment by the Tenant, or the
Tenant may have additional
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keys made so long as it uses the Landlord's
designated locksmith. Upon termination of this lease
or of the Tenant's possession, the Lessee hall
surrender all keys to tie Premises and shall explain
to the Landlord all combination locks on safes,
cabinets and vaults.
(2) In order to insure proper use and care of the
Premises Tenant shall not install any shades, blinds,
or awnings or any interior window treatment without
consent of Landlord. Blinds must be building
standard.
(3) All doors to the Premises are to be kept closed at
all times except when in actual use for entrance to
or exit from such Premises. The Tenant shall be
responsible for the locking of doors to the Premises.
Any damage or loss resulting from violation of this
rule shall be paid for by the Tenant.
(4) All equipment of any electrical or mechanical nature
shall be placed in settings which absorb and prevent
any vibration, noise or annoyance.
G. Landlord shall designate the time when and the method whereby
freight, small office equipment, furniture, safes and other
like articles may be brought into, moved or removed through
any common lobbies or loading docks shared with other tenants
of the Building.
H. In order to insure proper use and care of the Premises, Tenant
shall not allow anyone other than Landlord's employees or
contractors to clean the Premises without Landlord's
permission, which shall not be unreasonably withheld or
delayed.
I. The Premises shall not be defaced in any way. No material
changes in the HVAC, electrical or plumbing systems or other
appurtenances of said Premises shall be made without the prior
approval of Landlord and in accordance with Landlord's
construction rules and regulations, except in accordance with
the Lease.
J. For the general welfare of all tenants and the security of the
Building, Landlord may require all persons entering and/or
leaving the Building through common entries and/or lobbies
shared with other tenants on weekends and holidays and between
the hours of 6:00 p.m. and 8:00 a.m. to register with the
Building attendant or custodian by signing his name and
writing his destination in the Building, and the time of entry
and actual or anticipated departure, or other procedures
deemed necessary by Lessor. Landlord may deny entry during
such hours to any person who fails to provide satisfactory
identification.
K. No animals (other than those used for research purposes),
birds, pets, and no bicycles or vehicles of any kind shall be
brought into or kept in or about said Premises or the lobby or
halls of the Building. Tenant shall not cause or permit
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any unusual or objectionable odors, noises or vibrations to be
produced upon or emanate from said Premises.
L. Unless specifically authorized by Landlord, employees or
agents of Landlord shall not perform for nor be asked by
Tenant to perform work other than their regularly assigned
duties.
M. Landlord shall have the right to prohibit any advertising by
Tenant which, in Landlord's opinion, tends to impair the
reputation of the Building or its desirability as an office
and research and development building and, upon written notice
from Landlord, Tenant shall promptly discontinue such
advertising.
N. Canvassing, soliciting and peddling in the Building is
prohibited and Tenant shall cooperate to prevent the same from
occurring.
O. All parking, Building operation, or construction rules and
regulations which may be established from time to time by
Landlord on a uniform basis shall be obeyed.
P. Intentionally omitted.
Q. Intentionally omitted.
R. Landlord shall have the right to make such other and further
reasonable rules and regulations as in the judgment of
Landlord, may from time to time be needful for the safety,
appearance, care and cleanliness of the Building and for the
preservation of good order therein. Landlord shall not be
responsible to Tenant for any violation of rules and
regulations by other tenants except that Landlord shall use
good faith efforts to uniformly enforce such rules and
regulations.
S. The access road and loading areas, parking areas, sidewalks,
entrances, lobbies, halls, walkways, elevators, stairways and
other common area provided by Landlord shall not be obstructed
by Tenant, or used for other purpose than for ingress and
egress.
T. In order to insure proper use and care of the Premises Tenant
shall not install any call boxes or communications systems or
wiring of any kind (except within the Premises and within
those lobby or service areas which it solely controls) without
Landlord's permission and direction.
U. In order to insure proper use and care of the Premises Tenant
shall not prepare or dispense for sales any foods or
beverages, tobacco, flowers, or other commodities or articles,
except vending machines for the benefit of employees and
invitees of Tenant, without the written consent of Landlord.
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V. In order to insure use and care of the Premises, except with
respect to any building occupied entirely by the Tenant,
Tenant shall not enter any janitors' closets, mechanical or
electrical areas, telephone closets, loading areas, roof or
Building storage areas without the written consent of
Landlord, which shall not be unreasonably withheld.
W. In order to insure proper use and care of the Premises Tenant
shall not place door mats in public corridors without consent
of Landlord.
Notwithstanding anything to the contrary contained herein. Landlord
acknowledges that Tenant maintains animal care facilities on the Premises as
part of its operations, and the presence of animals utilized in the operations
of Tenant shall not constitute a violation of the Lease or the aforesaid
regulations; provided, however, Tenant shall at all times comply with all
applicable local, state and federal codes, regulations and laws relating to such
facilities.
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EXHIBIT F
45 and 75 Sidney Street
Standard Tenant System Allocations and Capacities
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EXHIBIT G
Measurement Method
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EXHIBIT H
Form of MIT Non-Disturbance Agreement
Agreement dated as of October __, 1997, by and between MASSACHUSETTS
INSTITUTE OF TECHNOLOGY, a Massachusetts educational corporation chartered by
Massachusetts law (the "Ground Lessor"), FC 45/75 SIDNEY, INC., a Massachusetts
corporation ("Landlord") and MILLENNIUM PHARMACEUTICALS, INC., a Delaware
corporation ("Tenant").
BACKGROUND
Ground Lessor and Landlord are parties, as landlord and tenant
respectively, to a Construction and Lease Agreement ("Ground Lease") dated
________________, 1997, for certain real property located at 45/75 Sidney Street
in Cambridge, Massachusetts, as more particularly described on Exhibit A
attached hereto ("Land"). A Notice of Lease pertaining to the Ground Lease has
been recorded at the Middlesex South District Registry of Deeds and filed for
registration in the Middlesex South Registry District of the Land Court.
Landlord intends to construct two (2) buildings (collectively, the "Building")
on the Land. Tenant has entered into a lease dated as of _______________, 1997
("Lease") with Landlord for certain premises in the Building ("Premises"), the
Premises being more particularly described in the Lease.
AGREEMENTS
1. Non-Disturbance. If the Ground Lease is terminated, for any reason,
Ground Lessor shall not disturb Tenant in Tenant's possession of the Premises
and without any hindrance or interference from the Ground Lessor, shall permit
Tenant peaceably to hold and enjoy the Premises for the remainder of the
unexpired term of the Lease, together with any extension periods provided for
therein, upon and subject to the same terms, covenants and conditions as are
contained in the Lease, and shall recognize the Lease as modified hereby. The
foregoing is on the condition that Tenant is not in default under the Lease
beyond any applicable notice and grace periods contained in the Lease.
2. Attornment. Tenant hereby agrees that if the Ground Lease is
terminated for any reason, Tenant shall attorn to Ground Lessor and shall be
liable to and recognize Ground Lessor as Landlord under the Lease for the
balance of the term of the Lease upon and subject to all of the terms and
conditions thereof. In such case, upon receipt of notice from Ground Lessor
setting forth the effective date of the termination of the Ground Lease, Tenant
shall pay to the Ground Lessor all obligations required to be paid and performed
by Tenant under the Lease arising after the date of termination. The Lease shall
continue in full force and effect as a direct lease between Ground Lessor and
Tenant.
3. Additional Conditions. Tenant agrees that Ground Lessor shall not
be: (i) liable for any act or omission of any person or party who may be
landlord under the Lease prior to any
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termination of the Ground Lease ("Prior Landlord"); (ii) subject to any offsets
or defenses which Tenant might have against Prior Landlord; (iii) bound by any
prepayment of rent or additional rent, or any other charge which Tenant might
have paid to Prior Landlord for more than the then current month (other than a
bona fide security deposit paid by Tenant to Landlord under the Lease or other
rent, additional rent or charge which has been received by Ground Lessor); and
(iv) bound by any amendment, modification or termination of the Lease made
without Ground Lessor's express agreement when such agreement is required under
the Ground Lease. Tenant additionally agrees with Ground Lessor that Tenant
shall not enter into any assignment of the Lease or sublease of all or any part
of the Premises in cases where Landlord's consent is required thereto, unless
Ground Lessor shall have also given its consent thereto, which consent shall not
be unreasonably withheld or delayed. Nothing herein, however, shall constitute a
waiver of tenant's rights as against such individual or entity which is the
landlord under the Lease as of the time of any event or circumstances which may
give rise to a claim of the Tenant against such individual or entity. In
addition, nothing herein shall relieve any successor landlord under the Lease
from its obligation to comply with those obligations of a Landlord under the
Lease during the period for which it is the owner of the Landlord's interest in
the Lease.
4. Landlord's Defaults. Tenant hereby agrees that, if Tenant provides
Landlord with any notice of default or claimed default on the part of Landlord
under the Lease, Tenant shall concurrently therewith send a copy of such notice
to Ground Lessor. In such event, Ground Lessor shall be permitted (but not
obligated) to cure any such default within the period of time allotted thereto
in the Lease. If Landlord shall fail to cure such default within the period of
time allocated thereto in the Lease (or, if Landlord shall not within such time
period have commenced diligent efforts to remedy a default that cannot be fully
cured within such time period) then Tenant shall provide Ground Lessor with
notice of such failure. Upon receipt of such notice of Landlord's failure to
cure, Ground Lessor shall be granted an additional thirty (30) days during which
it shall be permitted (but not obligated) to cure such default. In the case of a
default, which cannot with diligence be remedied by Ground Lessor within thirty
(30) days, Ground Lessor shall have such additional period of time as may be
reasonably necessary in order for Ground Lessor to remedy such default with
diligence and continuity of effort, provided that Ground Lessor has commenced to
cure such default within such thirty (30) day period.
5. Notices. Duplicates of all notices delivered by any party to another
party and required by this Agreement shall be delivered concurrently to all
other parties to this Agreement. All notices shall be written, delivered by
certified or registered mail, and sent, if to Ground Lessor, to 238 Main Street,
Suite 200, Cambridge, Massachusetts 02142, Attention: Director of Real Estate,
if to Tenant to 238 Main Street, Cambridge, Massachusetts 02142, Attention: Mr.
Mark Levin, before the commencement of Tenant's occupancy in the Premises, and
to the Premises after the Rent Commencement Date shall have occurred with
respect to the entire Original Premises, and if to Landlord to 38 Sidney Street,
Cambridge, MA 02139-4234, Attention: Ms. Gayle W. Friedland, or such addresses
as may, from time to time, be set forth in notices to the other parties
hereunder.
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6. Exculpation of Ground Lessor. Ground Lessor shall not be personally
liable hereunder. Tenant agrees to look to Ground Lessor's interest in the Land
and Building only for satisfaction of any claim against Ground Lessor hereunder.
7. Successors and Assigns. This Agreement shall bind Tenant, its
successors and assigns, and shall benefit Tenant and only such successor and
assigns of Tenant as are permitted by the Lease and shall bind and benefit
Ground Lessor and its successors and assigns (provided that after transfer of
Ground Lessor's entire interest in the Land to another party, Ground Lessor
shall have no liability for any act or omission of such party) and shall bind
and benefit Landlord and its successors and assigns.
EXECUTED as an instrument under seal as of the date set forth above.
MASSACHUSETTS INSTITUTE OF
TECHNOLOGY
Ground Lessor
By:
--------------------------------------
Philip A. Trussell, Director of
Real Estate and Associate Treasurer
MILLENNIUM PHARMACEUTICALS, INC.
Tenant
By:
--------------------------------------
FC 45/75 SIDNEY, INC.
Landlord
By:
--------------------------------------
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COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF MIDDLESEX )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the MASSACHUSETTS INSTITUTE OF TECHNOLOGY, by Philip A. Trussell, its
Director of Real Estate and Associate Treasurer, who acknowledged that he did
sign the foregoing instrument and that the same is his free act and deed and the
free act and deed of said corporation.
IN TESTIMONY HEREOF, I set my hand and official seal at
__________________, this _____ day of _______________, ____.
___________________________________________
Notary Public
My Commission Expires:_____________________
COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF MIDDLESEX )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named MILLENNIUM PHARMACEUTICALS, INC., by
______________________ who acknowledged that he/she did sign the foregoing
instrument and that the same is his/her free act and deed and the free act and
deed of said corporation.
IN TESTIMONY HEREOF, I set my hand and official seal at
__________________, this _____ day of _______________, ____.
___________________________________________
Notary Public
My Commission Expires:_____________________
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COMMONWEALTH OF MASSACHUSETTS )
) ss:
COUNTY OF MIDDLESEX )
BEFORE ME, a Notary Public in and for said County and State, personally
appeared the above-named FC 45/75 SIDNEY, INC., by _______________________ who
acknowledged that he/she did sign the foregoing instrument and that the same is
his/her free act and deed and the free act and deed of said corporation.
IN TESTIMONY HEREOF, I set my hand and official seal at
__________________, this _____ day of _______________, ____.
___________________________________________
Notary Public
My Commission Expires:_____________________
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EXHIBIT I
Form of Lender's SNDA
SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT made as of the ____ day of ___________, 1997
between ____________________________________, a
_________________________________, having an office at
________________________________________________________ ("Mortgagee"), FC 45/75
SIDNEY, INC., a Massachusetts corporation, having an office at 1100 Terminal
Tower, 50 Public Square, Cleveland, Ohio 44113 ("Landlord"), and MILLENNIUM
PHARMACEUTICALS, INC., a Delaware corporation, having an office at 238 Main
Street, Cambridge, Massachusetts ("Tenant").
W I T N E S S E T H:
WHEREAS, Tenant has entered into a lease dated _____________,
1997 between Landlord, as landlord, and Tenant, as tenant, with respect to
certain space (the "Demised Premises") in the buildings located at 45 and 75
Sidney Street, Cambridge, Massachusetts (said lease, as hereafter amended and
supplemented, subject to Paragraph 7 hereof, is hereinafter called the "Lease");
capitalized terms used herein and not otherwise defined herein shall have the
same meanings set forth in the Lease; and
WHEREAS, Mortgagee is the holder of the Leasehold Mortgage
with Assignments of Rents, Security Agreement and Fixture Filing dated
____________, 1997 from Landlord to Mortgagee (the "Mortgagee"), which encumbers
the land and improvements more particularly described in Exhibit A hereto (the
"Premises"), of which the Demised Premises are a part, and Landlord's interest
in the Lease; and
WHEREAS, Mortgagee, Landlord and Tenant desire to enter into
this Agreement upon the terms, covenants and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and the
agreements of the parties contained herein, the parties agree as follows:
1. The Lease and all of Tenant's rights thereunder are and
shall be at all times and in all respects subject and subordinate to the lien of
the Mortgage, and to all advances now or hereafter made under or secured by the
Mortgage, and all renewals, modifications, consolidations, replacements,
substitutions, additions and extensions of the Mortgage and to any subsequent
mortgages or assignments with which the Mortgage may be spread and/or
consolidated.
2. Provided Tenant complies with this Agreement and if Tenant
shall not be in default under the Lease beyond the applicable period of grace,
if any, provided therein with
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respect to the default in question as of the date Mortgagee commences a
foreclosure action, (i) Tenant shall not be named as a party in any action or
proceeding to enforce the Mortgage, unless such joinder shall be required under
applicable law, and in which case Mortgagee shall not seek affirmative relief
from Tenant in such action or proceeding, nor shall the Lease be cut off or
terminated nor Tenant's possession thereunder be disturbed in any such action or
proceeding, and (ii) subject to the provisions of Paragraph 4 of this Agreement,
Mortgagee will recognize the Lease and Tenant's rights thereunder.
3. Upon any foreclosure of the Mortgage or other acquisition
of the leasehold estate in the Premises, Tenant shall attorn to Mortgagee or any
other party acquiring the leasehold estate in the Premises or so succeeding to
Landlord's rights (collectively, the "Successor Landlord") and shall recognize
the Successor Landlord as its landlord under the Lease and Tenant shall promptly
execute and deliver any instrument that the Successor Landlord may reasonably
request in writing to evidence further said attornment.
4. Upon such attornment or other acquisition of the leasehold
estate in the Premises, the Lease shall continue as a direct lease between the
Successor Landlord and Tenant upon all terms, covenants and conditions thereof
as are then applicable except that the Successor Landlord shall not be (i)
liable for any previous act or omission of Landlord under the Lease, (ii)
subject to any offsets, defenses, claims or counterclaims that Tenant may have
against Landlord, (iii) bound by any covenant to perform or complete any
construction in connection with the Demised Premises or the Premises or to pay
any sums to Tenant in connection therewith, (iv) bound by any prepayment of more
than one (1) month's rent or other charges under the Lease unless such payment
shall have been expressly approved in writing by Mortgagee, (v) bound by any
amendment, modification, extension, expansion, termination, cancellation or
surrender of the Lease unless approved in writing by Mortgagee, or (vi) liable
for any security deposit given by Tenant under the Lease, unless and to the
extent in Mortgagee's possession on or after the date that Successor Landlord
succeeds to the interest of Landlord under the Lease.
5. The attornment provided for in Paragraph 3 of this
Agreement shall inure to the benefit of Mortgagee or any Successor Landlord,
shall be self-operative, and no further instrument shall be required to give
effect to the attornment. Tenant, however, upon demand of Mortgagee or any
Successor Landlord, as the case may be, agrees to execute, from time to time,
instruments in confirmation thereof, reasonably satisfactory to Mortgagee or any
such Successor Landlord, acknowledging such attornment and setting forth the
terms and conditions of its tenancy. Nothing contained in this Paragraph shall
be construed to impair any right otherwise exercisable by Mortgagee or any such
Successor Landlord.
6. Tenant from and after the date hereof shall send a copy of
any notice of default or notice in connection with the commencement of any
action to terminate the Lease or similar statement under the Lease to Mortgagee
at the same time such notice or statement is sent to Landlord under the Lease
and agrees that, notwithstanding any provisions of the Lease to the contrary,
such notice shall not be effective unless Mortgagee shall have been given such
notice and shall have failed to cure such default as hereinafter provided. Such
notices shall be sent by
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<PAGE> 94
certified or registered mail, postage prepaid, return receipt requested, or
shall be delivered to Mortgagee at the following address (or at such other
address as Mortgagee shall specify in a written notice to Tenant at the address
specified above for Tenant):
--------------------------------
--------------------------------
--------------------------------
--------------------------------
Any such notice of default shall be deemed to be given to Mortgagee on the
earlier to occur of (a) the day of receipt (as evidenced by a receipt signed by
Mortgagee or the refusal to accept delivery by Mortgagee) or (b) three (3) days
after deposit in the mail. With respect to the commencement by Tenant of any
action to terminate the Lease, Mortgagee shall have the right, but not the
obligation, to cure any default on the part of Landlord which is the basis for
such action within a reasonable time (including the time required for Mortgagee
to foreclose the Mortgage and obtain possession of the Premises if such
possession is necessary to effect such cure) after receipt of the notice by
Tenant with respect to such action, so long as Mortgagee is diligently
prosecuting such cure and/or the foreclosure of the Mortgagee if possession of
the Premises is necessary to effect such cure. Mortgagee's right to cure shall
not apply to the exercise by Tenant of its right to terminate the Lease pursuant
to Section 12.17 thereof or Article 9 of the Workletter, and shall not affect
Tenant's rights under Section 2.5 of the Lease.
7. Tenant shall not change, or consent to a change in, the
terms, covenants, conditions and agreements of the Lease in any manner which
would be binding on Mortgagee without the express consent in writing of
Mortgagee. No exercise by Landlord of any right to terminate the Lease, and no
acceptance of any termination, surrender or cancellation of the Lease (except as
otherwise expressly referred to in Paragraph 6 above), shall be effective unless
Mortgagee shall have expressly consented thereto in writing.
8. Anything herein or in the Lease to the contrary
notwithstanding, in the event that Successor Landlord shall acquire title to the
Premises, Successor Landlord shall have no obligation, nor incur any liability,
beyond Successor Landlord's then interest, if any, in the Premises and Tenant
shall look exclusively to such interest of Successor Landlord, if any, in the
Premises for the payment and discharge of any obligations imposed upon Successor
Landlord hereunder or under the Lease and Successor Landlord is hereby released
or relieved of any other liability hereunder and under the Lease. Tenant agrees
that with respect to any money judgment which may be obtained or secured by
Tenant against Successor Landlord, Tenant shall look solely to the estate or
interest owned by Successor Landlord in the Premises and Tenant will not collect
or attempt to collect any such judgment (i) from any officer, director,
shareholder, partner, employee, agent or representative of Successor Landlord or
(ii) out of any assets of Successor Landlord other than Successor Landlord's
estate or interest in the Premises.
9. (a) Tenant acknowledges that it has notice that Landlord's
interest under the Lease and the rent and all other sums due thereunder have
been assigned to Mortgagee, pursuant to the Mortgage as part of the security for
the obligations secured by the Mortgage. In
I-3
<PAGE> 95
the event that Mortgagee notifies Tenant of a default under the Mortgage and
demands that Tenant pay its rent and all other sums due under the Lease to
Mortgagee, Tenant agrees that it shall pay its rent and all other sums due under
the Lease to Mortgagee or as Mortgagee shall direct in writing to Tenant at its
address for notices set forth in Section 12.2 of the Lease.
(b) Tenant hereby acknowledges receipt of a notice
from Landlord directing Tenant to pay, inter alia, all Annual Fixed Rent and
Additional Rent directly to account #__________ at
______________________________. Tenant shall not make any payment under the
Lease contrary to the aforementioned direction without the written consent of
Mortgagee.
(c) Landlord hereby indemnifies and holds Tenant
harmless from and against all claims, loss or damage of whatever nature arising
from Tenant's compliance with Paragraphs 9(a) and (b) above.
10. Landlord hereby consents to the terms and provisions of
this Agreement, including, without limitation, Paragraph 9 hereof.
11. This Agreement may not be modified, amended or terminated
unless in writing and duly executed by the party against whom the same is sought
to be asserted and constitutes the entire agreement between the parties with
respect to the subject matter hereof.
12. This Agreement shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
13. Notwithstanding anything to the contrary contained in
Section 12.10 of the Lease, the Lease shall not terminate upon or as a result of
the termination of the Ground Lease if Mortgagee exercises its rights under the
Ground Lease to request that MIT (or its successors and assigns) enter into a
"new lease" for the Premises. The entering into of any such "new lease" shall
have the same effect as the acquisition of the leasehold estate in the Premises
for purposes of Paragraphs 3 and 4 hereunder.
14. Tenant agrees that Tenant shall from time to time, upon
not less than fifteen (15) days' prior written request by Mortgagee, execute,
acknowledge, deliver and certify to Mortgagee a statement in the form set forth
in Section 10.4 of the Lease.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
MORTGAGEE:
___________________________________________
By:________________________________________
I-4
<PAGE> 96
Name:
Title:
TENANT:
MILLENNIUM PHARMACEUTICALS, INC.
By:________________________________________
Name:
Title:
LANDLORD:
FC 45/75 SIDNEY, INC.
By:
By:_____________________________________
Name:
Title:
[ACKNOWLEDGEMENTS TO BE ADDED]
I-5
<PAGE> 97
Exhibit A
Description of the Premises
A-1
<PAGE> 98
EXHIBIT J
Dispute Resolution Process
Any dispute or determination by a party hereto which, pursuant to the
terms of this Lease, may be resolved by the "Dispute Resolution Process," shall
be undertaken in accordance with the following provisions:
(a) In the event of any such dispute, the complaining party (the
"Claimant") shall serve upon the other party (the "Respondent") by registered
mail or hand delivery a written demand for arbitration (the "Dispute Notice"),
setting forth with particularity the nature of the dispute. The Claimant shall
simultaneously serve any request (the "Document Request") for production of
relevant documents from the Respondent. The service of such Dispute Notice and
Document Request shall be effective upon receipt thereof. Failure to serve a
Document Request shall constitute a waiver by the Claimant of any right to
demand documents from the Respondent, except as provided in Subparagraph (c)
below. The Dispute Notice shall also be delivered to J.A.M.S./Endispute, 73
Tremont Street, 4th floor, Boston, Massachusetts 02108, for mediation as part of
that firm's national mediation services expertise. J.A.M.S./Endispute shall
select a member of the company to conduct the arbitration (hereinafter the
"Arbitrator"), the choice of which shall be binding on the parties. If
J.A.M.S./Endispute believes it has a material conflict of interest with any of
the parties, it shall select an alternative nationally recognized firm to
conduct the arbitration, within ten (10) business days of receipt of the Dispute
Notice. If J.A.M.S./Endispute shall cease to exist and/or shall decline to serve
under this Lease as to all or any particular dispute submitted thereto for
arbitration, and within ten (10) business days of receipt of a Dispute Notice,
shall fail to select an alternative nationally recognized firm, then, and in any
such event, the parties shall mutually select an alternative arbitrator for
their dispute(s) and, in the absence of agreement within a period of ten (10)
days, either party shall have the right, on notice to the other, to apply to the
President of the Boston Bar Association for selection of an independent
arbitrator.
(b) Response by Respondent. Within ten (10) business days of receipt of
a Dispute Notice and Document Request, the Respondent shall serve a detailed
written response to the Dispute Notice, including any arbitrable counterclaims,
and shall produce all non-privileged documents called for in the Document
Request. At the same time, Respondent shall serve any Document Request on
Claimant, failing which Respondent shall be deemed to have waived any right to
demand documents from Claimant. Within two (2) business days of delivery of the
response, all undisputed amounts shall be paid by Respondent by wire transfer.
(c) Response by Claimant. Within ten (10) business days of receipt of
such written response, the Claimant shall serve a reply to any counterclaims
asserted by Respondent and shall produce all non-privileged documents requested
by Respondent. At the same time, the Claimant may serve a second Document
Request limited to documents relevant to Respondent's counterclaim. Within two
(2) business days of delivery of the reply to any counterclaims, all undisputed
amounts shall be paid by the Claimant by wire transfer.
J-1
<PAGE> 99
(d) Response by Respondent. Respondent shall produce all non-privileged
documents called for in any such second Document Request within ten (10)
business days of service thereof.
(e) Appearance Before Arbitrator. Within thirty-five (35) business days
of service of the Dispute Notice, any arbitrable dispute shall be submitted to
the Arbitrator, whose decision shall be final, binding and non-appealable, and
may be entered and enforced as a judgment by any court of competent
jurisdiction. The Arbitrator shall consider and determine only matters properly
subject to arbitration pursuant to this Lease.
The Arbitrator shall, in consultation with the parties, establish such
further procedures, including hearings, as he or she deems appropriate,
provided, however, that a decision of the dispute (including counterclaims)
shall be rendered no later than sixty (60) business days after service of the
Dispute Notice.
(f) Final Decision; Fees and Expenses. The Arbitrator's decision shall
be in writing, and shall include findings of fact and a concise explanation of
the reasons for the decision. The decision shall be delivered to the parties
immediately. The Arbitrator's fees and expenses shall be borne by one or both of
the parties in accordance with the direction of the Arbitrator, who shall be
guided in such determination by the results of the arbitration. If any party
refuses to appear before the Arbitrator or to respond as required in
subparagraphs (a) through (e) above, the Arbitrator shall decide the matter as
by default against the non-appearing party, and such decision shall be final,
binding and non-appealable to the same extent as a decision rendered with the
full participation of such party.
J-2
<PAGE> 100
EXHIBIT K
Construction Lender's SNDA
K-1
<PAGE> 101
EXHIBIT L
Millennium Completion Guaranty
L-1
<PAGE> 1
Millennium Pharmaceuticals, Inc.
SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
Year Ended December 31, 1993 1994 1995 1996 1997
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Statements of Operations Data:
(in thousands, except share and per share data)
Revenue under strategic alliances $ -- $ 7,963 $ 22,880 $ 31,764 $ 89,933
Costs and expenses:
Research and development 2,859 10,990 17,838 34,803 74,828
General and administrative 1,530 3,240 3,292 7,973 16,517
Acquired in-process R&D -- -- -- -- 83,800
Amortization of intangible asset -- -- -- -- 2,397
- ---------------------------------------------------------------------------------------------------------------------
4,389 14,230 21,130 42,776 177,542
- ---------------------------------------------------------------------------------------------------------------------
Income (loss) from operations (4,389) (6,267) 1,750 (11,012) (87,609)
Interest income (expense), net 101 (105) (466) 2,244 2,977
Minority Interest -- -- -- -- 3,410
- ---------------------------------------------------------------------------------------------------------------------
Net income (loss) $ (4,288) $ (6,372) $ 1,284 $ (8,768) $ (81,222)
- ---------------------------------------------------------------------------------------------------------------------
Basic net income (loss) per share
(pro forma in 1995 and 1996) $ 0.09 $ (0.40) $ (2.87)
Shares used in computing basic net
income (loss) per share 13,851,639 21,696,894 28,322,722
Diluted net income (loss) per share
(pro forma in 1995 and 1996) $ 0.07 $ (0.40) $ (2.87)
Shares used in computing diluted net
income (loss) per share 17,853,914 21,696,894 28,322,722
</TABLE>
<TABLE>
<CAPTION>
Year Ended December 31, 1993 1994 1995 1996 1997
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Consolidated Balance Sheet Data:
(in thousands)
Cash, cash equivalents and
marketable securities $4,629 $ 6,105 $17,847 $63,848 $ 96,557
Working capital 3,517 3,151 10,498 60,273 85,571
Total assets 6,156 10,101 25,105 87,744 144,513
Long-term debt, net of current portion -- 3,067 1,467 -- --
Capital lease obligations, net of
current portion 826 2,359 2,499 9,308 19,809
Stockholders' equity $4,164 $ 1,559 $13,096 $66,639 $ 91,755
</TABLE>
The net income (loss) per share amounts prior to 1997 have been restated as
required to comply with Statement of Financial Accounting Standards (FAS) No.
128, "Earnings per Share."
[29]
<PAGE> 2
Millennium Pharmaceuticals, Inc.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
Millennium Pharmaceuticals, Inc. ("Millennium" or "the Company") is applying a
comprehensive platform of genomics and related technologies to pursue multiple
opportunities in the discovery and development of life-science-based products
and services. Most of the Company's activities currently are directed at the
field of human healthcare. During 1997, the Company expanded its capabilities
and extended the application of its core technologies through an acquisition,
establishment of three subsidiaries, and a major alliance with Monsanto Company
("Monsanto").
On February 10, 1997, the Company acquired ChemGenics Pharmaceuticals Inc.
("ChemGenics") for 4,783,688 shares of Company Common Stock at $21.50 per share,
approximately $103 million in the aggregate, in exchange for all outstanding
shares of common stock of ChemGenics. In addition, a principal shareholder of
ChemGenics received approximately $4 million in settlement of a promissory note
and repurchase of warrants previously issued by ChemGenics, and outstanding
warrants were purchased from another shareholder of ChemGenics for approximately
$.5 million. Upon the closing of the acquisition, ChemGenics became a
wholly-owned subsidiary of Millennium. In May 1997, ChemGenics was merged into
Millennium and ceased to be a separate company. At the time of the acquisition,
ChemGenics had approximately 70 employees and occupied approximately 11,500
square feet of laboratory and office space in Cambridge, Massachusetts.
In May 1997, the Company established Millennium BioTherapeutics, Inc. ("MBio"),
a subsidiary whose mission is to discover and develop therapeutic proteins and
antibodies, vaccines, gene therapy, and antisense products. Pursuant to a
Technology Transfer and License Agreement, the Company transferred and/or
licensed certain technology to MBio in exchange for 9,000,000 shares of the
subsidiary's Series A Convertible Preferred Stock. At that time, MBio entered
into a strategic alliance with Eli Lilly and Company ("Lilly") for the discovery
and development of novel therapeutic proteins. Under the terms of a related
stock purchase agreement, Lilly made an equity in vestment of $20 million of
Series B Convertible Preferred Stock of MBio. Lilly owns approximately 18%
of the outstanding capital stock of MBio.
In September 1997, the Company established two wholly-owned subsidiaries,
Millennium Predictive Medicine, Inc. ("MPMx"), whose mission is to develop
products and services to optimize the prevention, diagnosis, treatment and
management of disease, and Millennium Information, Inc. ("MInfo"), whose mission
is to generate and integrate biomedical data and develop information products
and services for use by the healthcare industry. MPMx and MInfo devoted
substantially all their activities in 1997 to establishing business plans and
recruiting key employees.
In October 1997, the Company entered into a collaborative agreement with
Monsanto under which the Company granted to Monsanto exclusive rights to its
technologies in the field of plant agriculture, as well as a non-exclusive
license to its technologies outside the plant agriculture field. Under this
agreement, Millennium agreed to collaborate exclusively with a new subsidiary of
Monsanto in the application of those technologies.
[30]
<PAGE> 3
To date, all of the Company's revenues have resulted from payments from
strategic partners and United States government research grants. The Company has
not received any revenue from the sale of products.
The Company has entered into several strategic alliances: in March 1994 with
Hoffmann-La Roche, Inc. ("Roche") in obesity and type II diabetes; in October
1995, March 1996 and, through MBio, in May 1997 with Eli Lilly and Company
("Lilly") in atherosclerosis, select areas of oncology, and therapeutic
proteins, respectively; in December 1995 with Astra AB ("Astra") in inflammatory
respiratory diseases; in July 1996 with the Wyeth-Ayerst Division of American
Home Products ("AHP") in certain disorders of the central nervous system; and in
October 1997 with Monsanto in plant agriculture. In addition, through its
acquisition of ChemGenics the Company became engaged in alliances with Pfizer,
Inc. ("Pfizer") in the area of antifungal treatments and with AHP in the area of
bacterial diseases. These agreements have provided the Company with various
combinations of equity investments, up-front and follow-on fees and research
funding and may provide certain additional payments contingent upon the
attainment of research and regulatory milestones and royalty and/or profit
sharing payments based on sales of any products resulting from the
collaborations. From inception through December 31, 1997, the Company has
received approximately $185 million in revenues and equity payments under all of
its alliances.
The Company intends to enter into additional strategic alliances. The Company
expects to incur increasing expenses and may incur increasing operating losses
for at least the next several years, primarily due to expansion of its
facilities and its research and development programs. The receipt of payments
under strategic alliance and licensing arrangements will be subject to
significant fluctuation in both timing and amounts, which may result in periods
of profitability and periods of losses. Therefore, the Company's results of
operations for any period may not be comparable to the results of operations for
any other period.
RESULTS OF OPERATIONS
Years Ended December 31, 1997 and December 31, 1996
Revenue under strategic alliances increased to $89.9 million for the year ended
December 31, 1997 (the "1997 Period") from $31.8 million for the year ended
December 31, 1996 (the "1996 Period"). During the 1997 Period, the Company
recognized revenue from six partners, Roche, Lilly, Astra, AHP, Pfizer and
Monsanto, in nine alliances. During the 1996 Period, the Company recognized
strategic alliance revenue from four partners, Roche, Lilly, Astra, and AHP, in
five alliances. The 1997 Period included a $38.0 million up-front payment from
Monsanto received in December, as well as a full year of research funding under
five alliances, revenues under the former ChemGenics alliances beginning
February 1997, and an up-front payment and funding under the MBio-Lilly alliance
beginning in May 1997. The 1996 Period included an up-front license fee from AHP
and various research milestone payments. Effective March 1996, Lilly exercised
its option to enter into a strategic alliance with the Company in select areas
of oncology. As a result, the Company recognized $2.8 million of revenue that
had been previously deferred.
Research and development expenses increased to $74.8 million for the 1997 Period
from $34.8 million for the 1996 Period. The increase was primarily attributable
to increased payroll and personnel expenses associated with staffing growth due
to the ChemGenics acquisition, the establishment and staffing of MBio, and other
additional research and development personnel. Related to these costs were
increases in facilities expenses, increases in expenditures for the purchase of
laboratory supplies, and increased equipment depreciation. The Company expects
research and development expenses to continue to increase as personnel are added
and as
[31]
<PAGE> 4
research and development facilities are expanded to accommodate the Company's
existing strategic alliances and additional commitments that the Company may
undertake in the future.
General and administrative expenses increased to $16.5 million for the 1997
Period from $8.0 million for the 1996 Period. The increase was primarily
attributable to increased payroll and personnel expenses as the Company hired
additional management and administrative personnel, as well as to increases in
facilities expenses, consulting, and other professional fees associated with the
expansion and increased complexity of the Company's operations and business
development efforts. The Company anticipates that general and administrative
expenses will continue to increase as the Company continues to grow.
In connection with the ChemGenics acquisition, the Company incurred a
non-recurring charge of $83.8 million for acquired in-process research and
development, as well as amortization expense of $2.4 million. The in-process
research and development was charged to operations because in management's
opinion technological feasibility for the acquired research and development has
not been established and will require a significant amount of additional
expenditures over a number of years.
The Company had net interest income of $3.0 million for the 1997 Period and net
interest income of $2.2 million for the 1996 Period. The increase in net
interest income was attributable to an increase in interest income resulting
from an increase in the Company's average cash balance offset in part by an
increase in interest expense resulting from additions to obligations under
capitalized leases during 1997. The minority interest of $3.4 million represents
the entire net loss of MBio. This loss is attributed completely to the minority
stockholder because the minority stockholder has provided all equity funding for
MBio.
Years Ended December 31, 1996 and December 31, 1995
Revenue under strategic alliances increased to $31.8 million for the 1996 Period
from $22.9 million for the year ended December 31, 1995 (the "1995 Period").
During the 1996 Period, the Company recognized strategic alliance revenue from
four partners, Roche, Lilly, Astra, and AHP. During the 1995 Period, strategic
alliance revenue was primarily received from Roche, however in the fourth
quarter of 1995, the Company received license fees from new collaborations with
Lilly and Astra. The 1996 Period also included an up-front license fee from AHP
and various research milestone payments. Effective March 1996, Lilly exercised
its option to enter into a strategic alliance in select areas of oncology. In
connection with the execution of this agreement, the Company recognized $2.8
million of revenue that had been previously deferred.
Research and development expenses increased to $34.8 million for the 1996 Period
from $17.8 million for the 1995 Period. The increase was primarily attributable
to increased payroll and personnel expenses as the Company hired additional
research and development personnel, increased purchases of laboratory supplies,
increased equipment depreciation and facilities expenses in connection with the
expansion of the Company's research efforts and increased costs associated with
the collection of patient information and DNA samples.
General and administrative expenses increased to $8.0 million for the 1996
Period from $3.3 million for the 1995 Period. The increase was primarily
attributable to increased payroll and personnel expenses as the Company hired
additional management and administrative personnel, and professional fees in
connection with the overall scale-up of the Company's operations and business
development efforts.
The Company had net interest income of $2.2 million for the 1996 Period and net
interest expense of $.5 million for the 1995 Period. The transition to net
interest income was due to increased interest income earned on higher balances
of cash and investment securities.
[32]
<PAGE> 5
LIQUIDITY AND CAPITAL RESOURCES
The Company has financed its operations since inception primarily through
strategic alliances, a public offering, private placement of equity securities,
and issuance of debt and capital leases. Through December 31, 1997, the Company
recognized approximately $152 million of revenue under strategic alliances. In
May 1996, the Company completed an initial public offering of common stock
resulting in proceeds, net of underwriting discounts and offering costs, of
$57.1 million. The private placement of equity securities has provided the
Company with aggregate gross proceeds of approximately $45.9 million. The
Company has obtained $4.0 million in long-term debt, $33.8 million in capital
lease financings, and $1.1 million to finance the build-out of an 8,000 square
foot in-house animal facility. As of December 31, 1997, the Company had
approximately $96.6 million in cash, cash equivalents and marketable securities.
During 1997 the Company acquired assets under capital leases totaling $17.4
million and expended an additional $4.3 million for equipment and leasehold
improvements. At December 31, 1997 the aggregate outstanding commitments under
capital lease obligations was $25.7 million. The Company expects capital
expenditures to continue at a level at least as significant as expenditures in
1997 over the next several years as it expands facilities and acquires equipment
to support increased research and development efforts. In addition, the Company
has entered into commitments to provide security deposits associated with
facilities leases of approximately $7.4 million during 1998.
As of December 31, 1997, the Company had net operating loss carryforwards of
approximately $14.4 million to offset future federal and state taxable income
through 2012. Due to the degree of uncertainty related to the ultimate
realization of such prior losses, no benefit has been recognized as of December
31, 1997. Moreover, utilization of such losses in future years may be limited
under the change of stock ownership rules of the Internal Revenue Service.
The Company believes that existing cash and marketable securities and
anticipated cash payments from its strategic alliances will be sufficient to
support the Company's operations until at least the end of 1999. The Company's
forecast of the period of time through which its financial resources will be
adequate to support its operations is forward-looking information, and, as such,
actual results may vary. Factors that may cause actual results to vary include
those set forth below under the heading "Factors Affecting Future Operating
Results."
IMPACT OF YEAR 2000
Based on a recent assessment, the Company determined that it will not be
required to modify or replace significant portions of its software so that
its computer systems will function properly with respect to dates in the year
2000 and thereafter. The Company's systems are based upon technology acquired
in the last few years. Therefore, the Company presently believes that no signi-
ficant modifications to existing software are needed based on presently
available information.
FACTORS AFFECTING FUTURE OPERATING RESULTS
This Annual Report to Stockholders contains forward-looking statements. For this
purpose, any statements contained herein that are not statements of historical
fact may be deemed to be forward-looking statements. Without limiting the
foregoing, the words "believes," "anticipates," "plans," "expects," "intends,"
and similar expressions are intended to identify forward-looking statements.
There are a number of important factors that could cause the Company's actual
results to differ materially from those indicated by such forward-looking
statements. These factors include, without limitation, those set forth below and
elsewhere in this Annual Report to Stockholders and in the Section titled
"Business-Factors which May Affect Results" in the Company's Annual Report on
Form 10-K for the year ended December 31, 1997, as filed with the Securities and
Exchange Commission, which Section is incorporated herein by reference.
[33]
<PAGE> 6
To date, the Company has not developed or commercialized any products or
services based on its technological approaches. There can be no assurance that
these approaches will enable the Company to successfully discover and develop
life-science-based products and services. In addition, the Company faces intense
competition from commercial and academic organizations, many of which are larger
and better financed.
The Company has a substantial accumulated deficit. The Company expects that it
may incur losses for at least the next several years and that such losses may
increase as the Company expands its research and development activities. The
Company will require substantial additional funds for its research and
development programs, operating expenses, the pursuit of regulatory approvals
and expansion of its production, sales and marketing capabilities. Adequate
funds for these purposes, whether through equity or debt financings,
collaborative or other arrangements with corporate partners or from other
sources, may not be available when needed or on terms acceptable to the Company.
Insufficient funds could require the Company to delay, scale back or eliminate
certain of its research and product development programs or to license third
parties to commercialize products or technologies that the Company would
otherwise develop or commercialize itself.
The Company's strategy for development and commercialization of therapeutic and
diagnostic products based upon its discoveries and technologies depends upon the
formation of various strategic alliances, licensing and technology transfer
arrangements. There can be no assurance that current or any future strategic
alliances, licensing, or technology transfer arrangements ultimately will be
successful. If any of the Company's strategic partners were to breach or
terminate its agreement with the Company or otherwise fail to conduct its
collaborative activities successfully in a timely manner, such breach,
termination or other failure could have a material adverse effect on the
Company's business, financial condition and results of operations.
Proprietary rights relating to the products, methods and services of the Company
will be protected from unauthorized use by third parties only to the extent that
they are covered by valid and enforceable patents or are maintained in
confidence as trade secrets. There can be no assurance that any pending patent
applications relating to the products, methods and services of the Company will
result in patents being issued or that any such patents will afford protection
against competitors with similar technology. There may be pending or issued
third-party patents relating to the methods and services of the Company and the
Company may need to acquire licenses to, or to contest the validity of, any such
patents. It is likely that significant funds would be required to defend any
claim that the Company infringes a third-party patent. There can be no assurance
that any license required under any such patent would be made available.
During 1997, the Company significantly increased the scale of its operations to
support the expansion of its disease research programs and alliances, including
the acquisition of ChemGenics Pharmaceuticals Inc. in February 1997, the
establishment of subsidiaries, and the establishment of a major technology
transfer arrangement with Monsanto. The resulting growth in personnel and
facilities could place significant strains on the Company's management,
operations and systems. Inability to manage such growth effectively could have a
material adverse effect on the Company's business, financial position and
results of operations.
Other factors that may affect the Company's future operating results include the
inherent risk of product liability claims which may result from testing,
marketing and sale of pharmaceutical products, fluctuations in the Company's
quarterly operating results, the Company's ability to continue to attract and
retain qualified management and scientific staff, and the ability of the
Company's alliance partners or the Company to obtain on a timely basis
regulatory approvals for marketing and sale of products and to compete
successfully in the market.
[34]
<PAGE> 7
Millennium Pharmaceuticals, Inc.
REPORT OF INDEPENDENT AUDITORS
Board of Directors and Stockholders
Millennium Pharmaceuticals, Inc.
We have audited the accompanying consolidated balance sheets of Millennium
Pharmaceuticals, Inc. as of December 31, 1997 and 1996, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
each of the three years in the period ended December 31, 1997. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the consolidated financial position of
Millennium Pharmaceuticals, Inc. at December 31, 1997 and 1996, and the
consolidated results of operations, stockholders' equity and cash flows for each
of the three years in the period ended December 31, 1997, in conformity with
generally accepted accounting principles.
/s/ Ernst & Young LLP
February 12, 1998
Boston, Massachusetts
[35]
<PAGE> 8
Millennium Pharmaceuticals, Inc.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31, 1997 1996
(in thousands, except par value and shares)
- ---------------------------------------------------------------------------------------------
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents $ 69,236 $ 10,088
Marketable securities 27,321 53,760
Due from strategic partners 778 5,710
Prepaid expenses and other current assets 4,595 2,513
- ---------------------------------------------------------------------------------------------
Total current assets 101,930 72,071
Property and equipment, net 29,030 15,191
Restricted cash and other assets 5,140 482
Intangible asset, net 8,413 --
- ---------------------------------------------------------------------------------------------
Total assets $144,513 $ 87,744
Liabilities and Stockholders' Equity
Current liabilities:
Accounts payable $ 3,165 $ 2,262
Accrued expenses 4,294 1,284
Deferred revenue 3,053 3,543
Current portion of long-term debt -- 1,467
Current portion of capital lease obligations 5,847 3,241
- ---------------------------------------------------------------------------------------------
Total current liabilities 16,359 11,797
Capital lease obligations, net of current portion 19,809 9,308
Minority interest 16,590 --
Commitments and contingencies
Stockholders' equity:
Preferred Stock, $0.001 par value;
5,000,000 shares authorized, none issued -- --
Common Stock, $0.001 par value;
100,000,000 shares, authorized; 29,169,398 shares in 1997 and
23,914,151 shares in1996 issued and outstanding 29 24
Additional paid-in capital 193,254 87,790
Deferred compensation (1,992) (2,768)
Notes receivable from officers (166) (245)
Unrealized loss on marketable securities (4) (18)
Accumulated deficit (99,366) (18,144)
- ---------------------------------------------------------------------------------------------
Total stockholders' equity 91,755 66,639
- ---------------------------------------------------------------------------------------------
Total liabilities and stockholders' equity $144,513 $ 87,744
</TABLE>
[36]
<PAGE> 9
Millennium Pharmaceuticals, Inc.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Year Ended December 31, 1997 1996 1995
(in thousands, except per share and share data)
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Revenue under strategic alliances $ 89,933 $ 31,764 $ 22,880
Costs and expenses:
Research and development 74,828 34,803 17,838
General and administrative 16,517 7,973 3,292
Acquired in-process R&D 83,800 -- --
Amortization of intangible asset 2,397 -- --
- -------------------------------------------------------------------------------------------------
177,542 42,776 21,130
- -------------------------------------------------------------------------------------------------
Income (loss) from operations (87,609) (11,012) 1,750
Interest income 4,412 3,131 358
Interest expense (1,435) (887) (824)
Minority interest 3,410 -- --
- -------------------------------------------------------------------------------------------------
Net income (loss) $ (81,222) $ (8,768) $ 1,284
- -------------------------------------------------------------------------------------------------
Basic net income (loss) per share
(pro forma in 1995 and 1996) $ (2.87) $ (0.40) $ 0.09
Shares used in computing basic net
income (loss) per share 28,322,722 21,696,894 13,851,639
Diluted net income (loss) per share
(pro forma in 1995 and 1996) $ (2.87) $ (0.40) $ 0.07
Shares used in computing diluted
net income (loss) per share 28,322,722 21,696,894 17,853,914
</TABLE>
[37]
<PAGE> 10
Millennium Pharmaceuticals, Inc.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Year Ended December 31, 1997 1996 1995
(in thousands)
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Operating activities
Net income (loss) $(81,222) $ (8,768) $ 1,284
Adjustments to reconcile net income (loss) to cash
provided by (used in) operating activities:
Acquired in-process R&D 83,800 -- --
Depreciation and amortization 12,168 3,867 1,726
Minority interest (3,410) -- --
Net loss on asset disposal 433 199 --
Amortized interest income -- (280) --
Stock compensation 1,614 795 --
Changes in operating assets and liabilities:
Prepaid expenses and other current assets (1,706) (1,818) (533)
Due from strategic partners 4,932 (3,967) (1,463)
Restricted cash and other assets (4,465) (288) (18)
Accounts payable and accrued expenses 2,962 1,856 442
Deferred revenue (1,480) 433 3,110
- --------------------------------------------------------------------------------------------
Net cash provided by (used in) operating activities 13,626 (7,971) 4,548
Investing activities
Purchase of property and equipment (4,256) (3,210) (760)
Sale of marketable securities 58,728 52,595 1,172
Purchase of marketable securities (30,778) (99,113) (8,432)
- --------------------------------------------------------------------------------------------
Net cash provided by (used in) investing activities 23,694 (49,728) (8,020)
Financing activities
Proceeds from sale of Common Stock and warrants -- 57,403 110
Proceeds from sale of subsidiary stock 20,000 -- --
Acquisition of ChemGenics, net of cash acquired 7,087 -- --
Net proceeds from employee stock purchases 2,039 653 --
Loan to officer 79 (21) --
Payments on long-term debt (1,467) (1,600) (934)
Payments of capital lease obligations (5,910) (2,734) (1,473)
Proceeds from sale of Preferred Stock -- 3,500 10,250
- --------------------------------------------------------------------------------------------
Net cash provided by financing activities 21,828 57,201 7,953
Increase (decrease) in cash and cash equivalents 59,148 (498) 4,481
Cash and cash equivalents at beginning of year 10,088 10,586 6,105
- --------------------------------------------------------------------------------------------
Cash and cash equivalents at end of year $ 69,236 $ 10,088 $10,586
- --------------------------------------------------------------------------------------------
Non-cash investing and financing activities:
Equipment acquired under capital leases $ 17,426 $ 11,142 $ 2,215
</TABLE>
[38]
<PAGE> 11
Millennium Pharmaceuticals, Inc.
Statements of Stockholders' Equity
<TABLE>
<CAPTION>
(in thousands, except shares) Convertible Preferred Stock Common Stock
- -----------------------------------------------------------------------------------------------------
shares amount shares amount
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Balance at December 31, 1994 9,700,000 $ 10 2,963,280 $ 3
Issuance of Series B
Convertible Preferred Stock 750,000 1
Issuance of Series C
Convertible Preferred Stock 1,333,333 1
Issuance of Common Stock in
exchange for note from officer 533,364
Issuance of Common Stock 1,047,543 1
Repurchase of Common Stock (332,261)
Net income
- -----------------------------------------------------------------------------------------------------
Balance at December 31, 1995 11,783,333 12 4,211,926 4
Issuance of Series D
Convertible Preferred Stock 388,888
Conversion of Convertible Preferred
Stock to Common Stock (12,172,221) (12) 12,172,221 12
Issuance of Common Stock 5,175,000 5
Repurchase of Common Stock (342,818)
Exercise of stock warrants 300,000 1
Employee stock purchases 2,343,197 2
Issuance of Common Stock in
exchange for note from officer 54,625
Forgiveness of notes from officers
Deferred stock compensation
Stock compensation earned
Unrealized loss on marketable securities
Net loss
- -----------------------------------------------------------------------------------------------------
Balance at December 31, 1996 -- -- 23,914,151 24
Issuance of Common Stock 4,783,688 5
Repurchase of Common Stock (87,130)
Exercise of stock warrants 123,589
Employee stock purchases 415,312
Forgiveness of notes from officers
Stock compensation expense
Write off deferred stock compensation
Stock compensation earned
Unrealized gain on marketable securities
401K stock match 19,788
Net loss
- -----------------------------------------------------------------------------------------------------
Balance at December 31, 1997 29,169,398 $ 29
</TABLE>
[39]
<PAGE> 12
<TABLE>
<CAPTION>
Unrealized
Note Loss on Total
(in thousands, except shares) Additional Deferred Receivable Marketable Accumulated Stockholders'
Paid-in Capital Compensation From Officers Securities Deficit Equity
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Balance at December 31, 1994 $ 12,206 $(10,660) $ 1,559
Issuance of Series B
Convertible Preferred Stock 2,249 2,250
Issuance of Series C
Convertible Preferred Stock 7,999 8,000
Issuance of Common Stock in
exchange for note from officer 159 $(266) (107)
Issuance of Common Stock 109 110
Repurchase of Common Stock
Net income 1,284 1,284
- ----------------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1995 22,722 (266) (9,376) 13,096
Issuance of Series D
Convertible Preferred Stock 3,500 3,500
Conversion of Convertible Preferred
Stock to Common Stock
Issuance of Common Stock 57,097 57,102
Repurchase of Common Stock (3) (3)
Exercise of stock warrants 300 301
Employee stock purchases 654 656
Issuance of Common Stock in
exchange for note from officer 33 (54) (21)
Forgiveness of notes from officers 75 75
Deferred stock compensation 3,487 $(3,487)
Stock compensation earned 719 719
Unrealized loss on marketable securities $(18) (18)
Net loss (8,768) (8,768)
- ----------------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1996 87,790 (2,768) (245) (18) (18,144) 66,639
Issuance of Common Stock 102,844 (247) 102,602
Repurchase of Common Stock (23) (23)
Exercise of stock warrants
Employee stock purchases 2,062 2,062
Forgiveness of notes from officers 79 79
Stock compensation expense 370 370
Write off deferred stock compensation (119) 119
Stock compensation earned 904 904
Unrealized gain on marketable securities 14 14
401K stock match 330 330
Net loss (81,222) (81,222)
- ----------------------------------------------------------------------------------------------------------------------------------
Balance at December 31, 1997 $ 193,254 $(1,992) $(166) $(4) $(99,366) $91,755
</TABLE>
[40]
<PAGE> 13
Millennium Pharmaceuticals, Inc.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 1997
[1] BASIS OF PRESENTATION
The Company
The Company, incorporated in January 1993, is applying a comprehensive platform
of genomics and related technologies in the discovery and development of
life-science-based products and services, primarily in the field of human
healthcare. The consolidated financial statements include the accounts of the
Company and its 82% owned subsidiary, Millennium BioTherapeutics, Inc. ("MBio"),
as well as its wholly-owned subsidiaries, Millennium Predictive Medicine, Inc.
("MPMx") and Millennium Information, Inc. ("MInfo"). As more fully described in
Note 3, the consolidated financial statements include the accounts of ChemGenics
Pharmaceuticals Inc. ("ChemGenics") subsequent to February 10, 1997. All
intercompany transactions have been eliminated in consolidation.
Risks and Uncertainties
The preparation of financial statements in accordance with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and the disclosure of
contingent assets and liabilities at the date of the financial statements, as
well as the reported amounts of revenue and expenses during the reporting
period. Actual results could differ from those estimates.
[2] SIGNIFICANT ACCOUNTING POLICIES
Cash Equivalents and Marketable Securities
Cash equivalents consist principally of money market funds and corporate bonds
with original maturities of three months or less at the date of purchase. Cash
equivalents and marketable securities at December 31, 1997 and 1996 are
classified as available-for-sale.
Concentrations of Credit Risk
Financial instruments that potentially subject the Company to concentrations of
credit risk consist principally of cash equivalents and marketable securities.
The Company's cash equivalents and marketable securities are held by high-credit
quality financial institutions. By policy, the Company limits the credit
exposure to any one financial institution. At December 31, 1997, the Company had
no significant concentrations of credit risk.
Property and Equipment
Equipment consists principally of assets held under capitalized leases and is
stated at the present value of future minimum lease obligations. Depreciation is
recorded over the shorter of the estimated useful life or the term of the lease
using the straight-line method. Leasehold improvements are stated at cost and
are amortized over the remaining life of the building lease.
Intangible Asset
Goodwill recorded in connection with the ChemGenics acquisition (See Note 3) is
being amortized over a period of four years.
[41]
<PAGE> 14
Revenue Recognition
The Company recognizes revenue under strategic alliances as research services
are performed, reimbursable expenses are incurred, certain milestones are
achieved or license fees are earned.
Stock-Based Compensation
The Company has elected to follow Accounting Principles Board Opinion No. 25,
"Accounting for Stock Issued to Employees" (APB 25) in accounting for its
stock-based compensation plans, rather than the alternative fair value
accounting method provided for under Financial Accounting Standards Board
("FASB") Statement No. 123, "Accounting for Stock-Based Compensation," as this
alternative requires the use of option valuation models that were not developed
for use in valuing employee stock options. Under APB 25, when the exercise price
of options granted under these plans equals the market price of the underlying
stock on the date of grant, no compensation expense is required.
Accounting Pronouncements
In June 1997, the FASB issued SFAS No. 130, "Reporting Comprehensive Income" and
SFAS No. 131, "Disclosures About Segments of an Enterprise and Related
Information." Both SFAS No. 130 and SFAS No. 131 are effective for fiscal years
beginning after December 15, 1997. The Company believes that the adoption of
these new accounting standards will not have a material impact on the Company's
financial statements.
Income Taxes
The liability method is used to account for income taxes. Deferred tax assets
and liabilities are determined based on differences between financial reporting
and income tax bases of assets and liabilities, as well as net operating loss
carryforwards, and are measured using the enacted tax rates and laws that will
be in effect when the differences reverse. Deferred tax assets may be reduced by
a valuation allowance to reflect the uncertainty associated with their ultimate
realization.
Fair Value of Financial Instruments
The carrying amounts reported in the Company's balance sheets for other current
assets and long-term debt approximate their fair value. The fair values of the
Company's long-term debt are estimated using discounted cash flow analyses,
based on the Company's current incremental borrowing rates for similar types of
borrowing arrangements.
Net Income (Loss) Per Share
In 1997, the FASB issued Statement No. 128, "Earnings per Share." Statement 128
replaced the calculation of primary and fully diluted earnings per share with
basic and diluted earnings per share. Unlike primary earnings per share, basic
earnings per share excludes any dilutive effects of options, warrants and
convertible securities. Diluted earnings per share is very similar to the
previously reported fully diluted earnings per share. Pursuant to the previous
requirements of the Securities and Exchange Commission ("SEC"), common shares
and common share equivalents issued by the Company during the twelve-month
period prior to the initial public offering of the Company's common stock had
been included in the calculations as if they were outstanding for all periods
prior to the offering in May 1996 whether or not they were anti-dilutive. In
February 1998, the SEC issued Staff Accounting Bulletin 98 which, among other
things, conformed prior SEC requirements to Statement 128 and eliminated
inclusion of such shares in the computation of earnings per share. All earnings
per share amounts for all periods have been presented, and where appropriate,
restated to conform to the Statement 128 and SEC requirements.
[42]
<PAGE> 15
Net loss per share for 1997 is computed using the weighted average number of
common shares outstanding. Pro forma income (loss) per share for 1996 and 1995
is computed using the weighted average number of common shares, convertible
preferred shares assuming conversion at date of issuance, and dilutive
equivalent shares from stock options and warrants using the treasury stock
method. At December 31, 1995, the difference between basic and diluted shares
used in the computation of earnings per share is the 4,002,275 weighted average
common equivalent shares resulting from outstanding common stock options and
warrants. Historical earnings per share for 1996 and 1995 have not been
presented since such amounts are not deemed meaningful due to the significant
change in the Company's capital structure that occurred in connection with the
initial public offering.
Reclassifications
Certain balances reported in previous years have been reclassified to conform to
the 1997 presentation.
[3] MERGER
On February 10, 1997, the Company acquired ChemGenics for 4,783,688 shares of
Common Stock at $21.50 per share, approximately $103 million in the aggregate.
In addition, a principal shareholder of ChemGenics received approximately $4
million in settlement of a promissory note and repurchase of warrants previously
issued by ChemGenics, and outstanding warrants were purchased from another
shareholder of ChemGenics for approximately $.5 million. The transaction has
been recorded as a purchase for accounting purposes. Consequently, the operating
results of ChemGenics have been included in the Company's financial statements
from the date of acquisition, and the fair value of the issued shares has been
allocated to the assets purchased and liabilities assumed based upon their
respective fair values. The acquisition resulted in goodwill of $10.8 million
which is being amortized over a period of four years. The 1997 amortization
expense recorded was $2.4 million. In connection with the acquisition, the
Company incurred a non-recurring charge of $83.8 million for acquired in-process
research and development which was charged to operations because in management's
opinion technological feasibility for the acquired research and development had
not been established.
The following unaudited pro forma consolidated results of operations have been
prepared as if the acquisition of ChemGenics had occurred at the beginning of
1997 and 1996:
<TABLE>
<CAPTION>
Year ended December 31, 1997 December 31, 1996
(in thousands, except share and per share amounts)
- ---------------------------------------------------------------------------------------------
<S> <C> <C>
PRO FORMA:
Revenues under strategic alliances $ 90,426 $ 35,337
Net loss $ (82,386) $ (107,171)
Net loss per share $ (2.86) $ (4.05)
Shares used in calculating net loss per share 28,860,068 26,480,582
</TABLE>
The pro forma net loss and net loss per share amounts for each period above
include the acquired in-process research and development charge. The pro forma
consolidated results do not purport to be indicative of results that would have
occurred had the acquisition been in effect for the periods presented, nor do
they purport to be indicative of the results that will be obtained in the
future.
[4] SUBSIDIARIES
Millennium BioTherapeutics, Inc.
In May 1997, the Company established Millennium BioTherapeutics, Inc. ("MBio")
as a subsidiary and, pursuant to a Technology Transfer and License Agreement,
transferred and/or
[43]
<PAGE> 16
licensed certain technology to MBio in exchange for 9,000,000 shares of the
subsidiary's Series A Convertible Preferred Stock. At that time, MBio entered
into a strategic alliance with Eli Lilly and Company ("Lilly") for the discovery
and development of novel therapeutic proteins (Footnote 5). Under the terms of a
related stock purchase agreement, Lilly purchased $20 million of Series B
Convertible Preferred Stock of MBio for an approximate 18% equity interest in
MBio. The accompanying consolidated financial statements include the accounts of
MBio since inception. The minority interest included in the accompanying
consolidated balance sheet reflects the equity interest of Lilly in MBio as of
the balance sheet date, and the minority interest included in the accompanying
consolidated statement of operations represents the minority stockholder's
interest in the net loss of MBio for the year ended December 31, 1997. Since the
minority stockholder has provided all equity funding, the entire net loss of
MBio is attributed to the minority stockholder.
The Company is not required to provide any funds for the operations of MBio, but
has entered into certain agreements with this subsidiary to provide specific
services and facilities at negotiated fees. Such fees amounted to $5.6 million
in 1997. All such intercompany transactions have been eliminated in
consolidation.
Millennium Predictive Medicine, Inc. and Millennium Information, Inc. In
September 1997, the Company established a wholly-owned subsidiary, Millennium
Predictive Medicine, Inc. ("MPMx") to develop products and services to optimize
the prevention, diagnosis, treatment and management of disease. In addition, in
September 1997 the Company incorporated Millennium Information, Inc. ("MInfo")
to generate and integrate biomedical data and develop information products and
services for use by the healthcare industry. These subsidiaries devoted
substantially all their activities in 1997 to establishing business plans and
recruiting key employees. Any intercompany expenses with these subsidiaries have
been eliminated in consolidation.
[5] REVENUES--STRATEGIC ALLIANCES
The Company has formed strategic alliances with major participants in
marketplaces where its discovery expertise and technology platform are
applicable. These agreements include alliances based on the transfer of the
Company's technology platform, alliances which combine technology transfer with
a focus on a specific disease or therapeutic approach, and disease-based
programs under which the Company conducts research funded by its partners.
Technology-based alliance
In October 1997, the Company entered into its major technology transfer alliance
through a collaborative agreement with Monsanto Company ("Monsanto"). Under this
agreement, the Company granted to Monsanto exclusive rights to its technologies
in the field of plant agriculture, as well as a non-exclusive license to its
technologies outside the plant agriculture field. Millennium has agreed to
collaborate exclusively with Monsanto in the application of those technologies
through the establishment of a subsidiary, wholly-owned by Monsanto. Monsanto
has agreed to pay $118 million in up-front, licensing, and technology transfer
fees over the five year term of the agreement. The agreement also provides for
payments from Monsanto to the Company of up to $100 million over five years
contingent upon achieving mutually agreed upon research objectives, and provides
further that Millennium will receive royalty payments from the sale of products,
if any, originating from the research conducted by the Monsanto subsidiary. The
Company received $38 million in revenues under this agreement in 1997.
MBio alliance
In May 1997, the Company, through its MBio subsidiary, entered into a
collaborative agreement with Eli Lilly and Company ("Lilly") in connection with
its program to discover and
[44]
<PAGE> 17
develop therapeutic proteins. The agreement covers an initial three year period
during which Lilly will provide $8 - $10 million annually in research funding,
with a two year renewal option at the same funding level. Under the terms of the
agreement, MBio and Lilly will jointly fund the collaborative program and each
company will share the rights to use and commercialize the resulting
discoveries. Additional licensing fees, development milestones and royalties
will be payable by Lilly in connection with specific therapeutic protein product
candidates identified through the collaboration and licensed by Lilly. MBio
received approximately $5.5 million in revenues under this alliance in 1997.
Disease-based/technology alliances
The Company's disease-based alliances and alliances which combine
technology-transfer with a disease focus are generally structured as research
collaborations. Under these arrangements, the Company performs research in a
specific disease area aimed at discoveries leading to novel pharmaceutical
(small molecule) products. These alliances generally provide research funding
over an initial period, with renewal provisions which vary by agreement. Under
these agreements, the Company's partners are required to make additional
payments upon the achievement of specific research and product development
milestones, and will pay royalties or in some cases profit-sharing payments to
the Company based upon any product sales resulting from the collaboration. The
Company realized revenues of approximately $46.3 million from seven such
alliances in 1997, $31.8 million from five such alliances in 1996, and $22.9
million from three such alliances in 1995.
Alliances beginning in 1997
Through its merger with ChemGenics, the Company became engaged in an alliance
with the Wyeth-Ayerst Division of American Home Products ("AHP") to discover and
develop antibacterial drugs for human use, as well as a collaboration with
Pfizer, Inc. ("Pfizer") to discover and develop antifungal treatments for human
use. Under the terms of the AHP agreement, as amended in 1997, AHP is funding
and collaborating with the Company over a five year period ending in December
2001. Under the terms of the Pfizer agreement, as amended in 1997, Pfizer is
funding a discovery program through December 1998.
Alliances beginning in 1996
In July 1996, the Company entered into a strategic alliance with AHP to discover
and develop targets and assays to identify and develop small molecule drugs and
vaccines for treatment and prevention of disorders of the central nervous
system. In addition, this agreement provides for the license and transfer of
certain technology to AHP. If certain specified research objectives are not met,
AHP may terminate the agreement after three years or five years.
Alliances beginning in 1995
In December 1995, the Company entered into a strategic alliance with Astra AB in
the field of inflammatory respiratory diseases. After three years, Astra has the
option to continue the strategic alliance through the fifth year, or extend the
agreement through seven years. In October 1995, the Company entered into a
strategic alliance with Lilly in the field of atherosclerosis. Under the terms
of this agreement, Lilly purchased $8 million of Series C Convertible Preferred
Stock, subsequently converted into 1,333,333 shares Common Stock. The Lilly
alliance included an option permitting Lilly to fund research in other fields.
Effective March 1996, Lilly exercised this option and entered into a strategic
alliance with the Company in select areas of oncology. If certain specified
research objectives are not met, Lilly may terminate these agreements after
three years. Moreover, these agreements may be voluntarily terminated by Lilly
at any time after three years.
[45]
<PAGE> 18
Alliances beginning in 1994
In March 1994, the Company entered into a five-year strategic alliance with
Hoffmann-La Roche Inc. ("Roche") in the fields of obesity and type II diabetes.
Under the terms of a related stock purchase agreement, an affiliate of Roche
purchased $6 million of Series B Convertible Preferred Stock, subsequently
converted into 2,000,000 shares of Common Stock.
[6] MARKETABLE SECURITIES
Marketable securities consist of high-grade corporate bonds, which are carried
at fair value, with the unrealized gains and losses reported in a separate
component of stockholders' equity. At December 31, 1997 and 1996 these
securities had a cost of $27.3 million and $53.8 million, and an estimated fair
value of $27.3 million and $53.8 million, resulting in gross unrealized gains of
$4 thousand and $12 thousand and gross unrealized losses of $8 thousand and $30
thousand respectively. There have been no realized gains or losses on sales of
any securities in 1997, 1996, or 1995.
The amortized cost and estimated fair value of debt securities at December 31,
by contractual maturity, are shown below ($ in thousands).
<TABLE>
<CAPTION>
1997 1996
- --------------------------------------------------------------------------------------
Estimated Estimated
Cost Fair Value Cost Fair Value
- --------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Due in one year or less $27,325 $27,321 $43,637 $43,639
Due in one year to two years -- -- 10,141 10,121
- --------------------------------------------------------------------------------------
$27,325 $27,321 $53,778 $53,760
</TABLE>
[7] PROPERTY AND EQUIPMENT
Property and equipment consists of the following at December 31 ($ in
thousands):
<TABLE>
<CAPTION>
1997 1996
- --------------------------------------------------------------------------------
<S> <C> <C>
Equipment $37,452 $18,827
Leasehold improvements 4,576 2,468
- --------------------------------------------------------------------------------
42,028 21,295
Less accumulated depreciation and amortization 12,998 6,104
- --------------------------------------------------------------------------------
$29,030 $15,191
</TABLE>
[8] COMMITMENTS
Lease commitments
The Company conducts the majority of its operations in leased facilities with
leased equipment. At December 31, 1997 and 1996, respectively, the Company
has capitalized leased equipment totaling $33.5 million and $17.3 million,
with related accumulated amortization of $12.0 million and $6.0 million.
The Company leases its primary laboratory and office space under an operating
lease agreement with a fixed term of ten years and a five-year renewal option.
The Company leases additional laboratory and office facilities under operating
leases expiring in 1998, 1999, 2000, and 2003, with various renewal options. In
November 1997, the Company entered into a lease commitment for a new laboratory
and office facility to be constructed during 1998 and planned for occupancy in
the first quarter of 1999, with a fifteen year term beginning upon occupancy. In
addition to minimum lease commitments, these lease agreements require payment of
the Company's pro rata share of property taxes and building operating expenses.
At December 31, 1997, the Company has pledged $4.3 million of marketable
securities as security for two letters of credit for the same amount with the
purpose of securing leased facilities.
[46]
<PAGE> 19
At December 31, 1997, future minimum commitments under leases with
non-cancelable terms of more than one year are as follows ($ in thousands):
<TABLE>
<CAPTION>
Capital Leases Operating Leases
- ---------------------------------------------------------------------------------
<S> <C> <C>
Year
1998 $ 7,494 $ 5,494
1999 7,678 3,165
2000 6,326 2,332
2001 5,870 2,180
2002 3,025 2,180
Thereafter 5 2,078
- ---------------------------------------------------------------------------------
Total $30,398 $17,429
Less amount representing interest 4,742
- ---------------------------------------------------------------------------------
Present value of minimum lease payments 25,656
Less current portion of capital lease obligations 5,847
- ---------------------------------------------------------------------------------
Capital lease obligations $19,809
</TABLE>
Total rent expense was $4.2 million in 1997, $2.4 million in 1996 and $1.5
million in 1995. Sublease rental income in the amount of $.4 million was
recorded in 1995. Interest paid under all financing and leasing arrangements
during 1997, 1996 and 1995 approximated interest expense.
External Collaborations
In April 1997 the Company joined a corporate consortium with Affymetrix Inc. and
Bristol-Myers Squibb to fund a five-year research program in functional genomics
at the Whitehead Institute for Biomedical Research. Under this agreement, the
Company receives certain licensing rights to developments arising from the
consortium. In addition, the Company funds research efforts of various academic
collaborators in connection with its research and development programs. Total
future commitments under these agreements are approximately $4.4 million in
1998, $3.5 million in 1999, $2.5 million in 2000, $2.5 million in 2001, and $1.3
million in 2002.
[9] STOCKHOLDERS' EQUITY
Preferred Stock
The Company has 5,000,000 authorized shares of Preferred Stock, $0.001 par
value, issuable in one or more series, each of such series to have such rights
and preferences, including voting rights, dividend rights, conversion rights,
redemption privileges and liquidation preferences, as shall be determined by the
Board of Directors.
Common Stock Warrants
At December 31, 1997, the Company has outstanding exercisable warrants to
purchase 385,470 shares of Common Stock with a weighted average exercise
price of $3.46 per share which expire through 2004.
Stock Option Plans
The 1993 Incentive Stock Plan (the 1993 Plan) allows for the granting of
incentive and nonstatutory options to purchase up to 5,400,000 shares of Common
Stock. Incentive options granted to employees generally vest over a four-year
period. Nonstatutory options granted to consultants and other nonemployees
generally vest over the period of service to the Company.
In December 1995, the Company amended the terms of outstanding option agreements
to allow option holders the right to immediately exercise outstanding options,
with the subsequent
[47]
<PAGE> 20
share issuances being subject to a repurchase option by the Company under
certain conditions according to the original option vesting schedule and
exercise price. At December 31, 1997, 759,111 shares issued under the 1993 Plan
are subject to the Company's repurchase option.
The 1996 Equity Incentive Plan (the 1996 Plan) effectively succeeded the 1993
Plan. The terms and conditions of the 1996 Plan are substantially consistent
with those of the 1993 Plan and provide for the granting of options to purchase
4,100,000 shares of Common Stock, effective March 13, 1997.
The 1996 Director Option Plan (the Director Plan) provides that upon adoption,
each then eligible non-employee director be granted a nonstatutory option to
purchase 20,000 shares of Common Stock. Thereafter, each new non-employee
director will be granted a nonstatutory option to purchase 30,000 shares of
Common Stock upon election to the Board of Directors. Upon completion of the
vesting of each option grant under the Director Plan, each non-employee director
will be granted a new nonstatutory option to purchase 20,000 shares of Common
Stock. All options will be issued at the then fair market value of the Common
Stock, vest ratably over four years and expire ten years after date of grant. A
total of 250,000 shares of Common Stock have been reserved for issuance under
the Director Plan.
Under the Employee Stock Purchase Plan (the Stock Purchase Plan), eligible
employees may purchase Common Stock at a price per share equal to 85% of the
lower of the fair market value of the Common Stock at the beginning or end of
each offering period. Participation in the offering is limited to 10% of the
employee's compensation or $25,000 in any calendar year. The first offering
period commenced on October 1, 1996. A total of 350,000 shares of Common Stock
have been reserved for issuance under the Purchase Plan. At December 31, 1997,
subscriptions were outstanding for an estimated 25,000 shares at $15.89 per
share.
On March 13, 1997, the Board of Directors adopted the Company's 1997 Equity
Incentive Plan (the 1997 Plan) covering 2,000,000 shares of Common Stock. The
terms and conditions of the 1997 Plan are substantially consistent with those of
the 1993 Plan and the 1996 Plan.
On May 27, 1997, the Board of Directors of MBio adopted the MBio 1997 Equity
Incentive Plan (the MBio 1997 Plan). The plan allows for the granting of
incentive and nonstatutory options to purchase up to 1,000,000 shares of Common
Stock of MBio. Incentive options granted to employees generally vest over a
four-year period and may be exercised sooner subject to stock repurchase
provisions that vest over the same period as the original option grant.
Nonstatutory options granted to consultants and other nonemployees generally
vest over the period of service to the Company.
On November 3, 1997, the Board of Directors of MPMx adopted the MPMx 1997 Equity
Incentive Plan (the MPMx 1997 Plan). The plan allows for the granting of
incentive and nonstatutory options to purchase up to 1,200,000 shares of Common
Stock of MPMx. Incentive options granted to employees generally vest over a
four-year period and may be exercised sooner subject to stock repurchase
provisions that vest over the same period as the original option grant.
Nonstatutory options granted to consultants and other nonemployees generally
vest over the period of service to the Company.
Upon employment in 1994, the chief executive officer was granted an option to
purchase 533,364 shares of Common Stock for $0.30 per share. In connection
therewith, the Company agreed to loan the officer up to $267,000 at 7% per
annum, upon exercise of the option. In November 1995, the officer exercised this
option and was issued the Common Stock, subject
[48]
<PAGE> 21
to a repurchase option by the Company that lapses over four years. The resulting
loan, secured by a pledge of all shares issued under the option, and related
interest, is being forgiven ratably over 48 months subject to the officer's
continued employment.
During 1995 and 1996, the Company granted options to purchase 1,580,682 shares
of Common Stock at exercise prices below the deemed fair value for accounting
purposes of the stock options at the date of grant. The Company recorded an
increase to additional paid-in capital and a corresponding charge to deferred
compensation in the amount of approximately $3.5 million to recognize the
aggregate difference between such deemed fair value and the exercise price. The
deferred compensation is being amortized over the option vesting period of four
years.
The following table presents the combined activity of the 1993 Plan, 1996 Plan,
1997 Plan and the Director Plan for the years ended December 31, 1997, 1996, and
1995:
<TABLE>
<CAPTION>
1997 1996 1995
- -------------------------------------------------------------------------------------------------------------
Weighted Weighted Weighted
Average Average Average
Exercise Exercise Exercise
Shares Price Shares Price Shares Price
- -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Outstanding at January 1 2,762,156 $ 9.19 2,724,261 $ .24 3,134,529 $ .14
Granted 3,436,163 $14.79 2,497,958 $10.23 1,349,974 $ .36
Exercised (338,903) $ 3.46 (2,398,265) $ .29 (1,580,907) $ .17
Canceled (395,781) $11.49 (61,798) $ 2.42 (179,335) $ .10
- -------------------------------------------------------------------------------------------------------------
Outstanding at December 31 5,463,635 $12.92 2,762,156 $ 9.19 2,724,261 $ .24
Options exercisable at
December 31 1,821,654 $ 5.91 1,251,982 $ 1.78 2,148,851 $ .24
</TABLE>
The weighted average per share fair value of options granted during 1997, 1996
and 1995 was $14.79, $6.01 and $0.16, respectively.
The following table presents weighted average price and life information about
significant option groups outstanding at December 31, 1997 for the above plans:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
- ----------------------------------------------------------------------------------------------------------
Weighted Average
Remaining Weighted Weighted
Range of Contractual Life Average Average
Exercise Prices Number (Yrs.) Exercise Price Number Exercise Price
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$ 0.10-$ 0.30 419,995 6.96 $ 0.21 419,995 $ 0.21
$ 0.45-$ 3.60 838,307 7.12 $ 1.32 768,512 $ 1.31
$ 4.21-$10.00 258,309 8.30 $ 7.25 100,356 $ 6.97
$12.00-$16.00 1,087,118 9.23 $14.58 210,425 $14.63
$16.50-$18.75 1,834,616 9.20 $17.05 204,897 $17.38
$19.00-$22.13 1,025,290 9.43 $19.90 117,469 $19.86
- ----------------------------------------------------------------------------------------------------------
5,463,635 1,821,654
</TABLE>
At December 31, 1997, 7,722,440 shares of Common Stock were reserved for
issuance upon exercise of stock options and warrants.
In 1997, the MBio 1997 Plan and the MPMx 1997 Plan granted a combined 1,271,535
options to purchase common shares at a weighted exercise price of $.45, all of
which were outstanding at December 31, 1997. At December 31, 1997, options for
64,314 shares at a weighted average exercise price of $.71 were exercisable.
[49]
<PAGE> 22
The following table presents weighted average price and life information about
significant option groups outstanding at December 31, 1997 for the MBio and MPMx
plans:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
- --------------------------------------------------------------------------
Weighted Average
Remaining
Contractual Life
Exercise Prices Number (Yrs.) Number
- --------------------------------------------------------------------------
<C> <C> <C> <C>
$0.05 678,000 9.84 14,098
$0.90 593,535 9.75 50,216
- --------------------------------------------------------------------------
1,271,535 64,314
</TABLE>
FAS 123 Disclosures
Pursuant to the requirements of FAS 123, the following are the pro forma
consolidated net income (loss) and consolidated net income (loss) per share for
1997, 1996 and 1995 as if the compensation cost for the stock option and stock
purchase plans had been determined based on the fair value at the grant date for
grants in 1997, 1996 and 1995 ($ in thousands):
<TABLE>
<CAPTION>
1997 1996 1995
- ---------------------------------------------------------------------------------------------------------
As Reported Pro Forma As Reported Pro Forma As Reported Pro Forma
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Net income (loss) $(81,222) $(94,668) $(8,768) $(12,096) $1,284 $1,250
Net income (loss) per share $ (2.87) $ (3.34) $ (0.40) $ (0.54) $ 0.09 $ 0.07
</TABLE>
The fair value of stock options and common shares issued pursuant to the Stock
Option and Stock Purchase Plans at the date of grant were estimated using the
Black-Scholes model with the following weighted average assumptions:
<TABLE>
<CAPTION>
Stock Options Stock Purchase Plan
- -------------------------------------------------------------------------------------------------
1997 1996 1995 1997 1996 1995
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Expected life (years) 4.5 3.7 2.4 .5 .5 n/a
Interest rate 6.12% 5.94% 6.19% 6.14% 6.14% n/a
Volatility .5 .7 .7 .7 .7 n/a
</TABLE>
The Company has never declared dividends on any of its capital stock and does
not expect to do so in the foreseeable future.
The effects on 1995, 1996 and 1997 pro forma net income (loss) and net income
(loss) per share of expensing the estimated fair value of stock options and
common shares issued pursuant to the Stock Option and Stock Purchase Plans are
not necessarily representative of the effects on reported results of operations
for future years as the periods presented include only one, two and three years,
respectively, of option grants and share purchases under the Company's plans.
[10] INCOME TAXES
In 1997 and 1995, the Company utilized $.2 million and $.5 million respectively
of carry forward tax benefits to offset the current period income tax provision.
In 1996, the Company incurred net losses.
The difference between the Company's "expected" tax provision (benefit), as
computed by applying the U.S. federal corporate tax rate of 34% to income (loss)
before provision for income taxes, and actual tax is reconciled in the following
chart ($ in thousands):
[50]
<PAGE> 23
<TABLE>
<CAPTION>
1997 1996 1995
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Expected tax provision (benefit) at 34% $ (28,710) $(2,981) $ 420
State tax provision (benefit) net of federal benefit (5,067) (526) 74
Write off of purchased research and development 33,520 -- --
Amortization of goodwill 958 -- --
Change in valuation allowance for deferred tax assets
allocated to tax expense (175) 3,492 (515)
Other (558) -- --
Non deductible expense 32 15 21
- -------------------------------------------------------------------------------------------------
$ -- $ -- $ --
</TABLE>
At December 31, 1997, the Company has unused net operating loss carryforwards of
approximately $14.4 million available to reduce federal and state taxable
income, and research and development tax credits of approximately $6.0 million
available to offset federal income taxes, both of which expire through 2012. Due
to the degree of uncertainty related to the ultimate use of the loss
carryforwards and tax credits, the Company has fully reserved these tax
benefits.
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial reporting
purposes and the amounts used for income tax purposes. Significant components of
the Company's deferred tax assets as of December 31 are as follows ($ in
thousands):
<TABLE>
<CAPTION>
1997 1996
- ------------------------------------------------------------------------
<S> <C> <C>
Net operating loss carryforward $ 5,758 $ 6,709
Research and development tax credit carryforward 6,422 2,342
Capitalized research costs 7,640 --
Property and other intangible assets 1,315 --
Other 1,255 598
- ------------------------------------------------------------------------
Total deferred tax assets 22,390 9,649
Valuation allowance $(22,390) $(9,649)
Net deferred tax assets $ -- $ --
</TABLE>
The valuation allowance increased by $12.7 million during 1997 due primarily to
the increase in research and development tax credits and the addition of various
deferred tax assets related to the ChemGenics merger offset by the utilization
of net operating loss carryforwards. The valuation allowance increased by $3.7
million during 1996 due primarily to the increase in net operating losses and
research and development tax credits. The deferred tax assets acquired from
ChemGenics are subject to review and possible adjustments by the Internal
Revenue Service and may be limited due to the change in ownership provisions of
the Internal Revenue Code.
Any subsequently recognized tax benefits relating to the valuation allowance for
deferred tax assets as of December 31, 1997 would be allocated as follows ($ in
thousands):
<TABLE>
<CAPTION>
<S> <C>
Reported in the statement of operations $21,175
Reported in additional paid-in-capital 1,215
- --------------------------------------------------------------------------------
$22,390
</TABLE>
[11] SUBSEQUENT EVENTS
In January 1998, the Company extended the term of one facility lease from
October 1998 to September 1999. Additional future minimum lease commitments,
exclusive of property taxes and other charges are $1.3 million and $1.4 million
in 1998 and 1999, respectively.
[51]
<PAGE> 1
EXHIBIT 21
SUBSIDIARIES OF MILLENNIUM PHARMACEUTICALS, INC.
------------------------------------------------
<TABLE>
<CAPTION>
NAME OF SUBSIDIARY JURISDICTION OF ORGANIZATION
------------------ ----------------------------
<S> <C>
Millennium BioTherapeutics, Inc. Delaware
Millennium Predictive Medicine, Inc. Delaware
Millennium Information, Inc. Delaware
</TABLE>
-74-
<PAGE> 1
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Annual Report (Form 10-K)
of Millennium Pharmaceuticals, Inc. of our report dated February 12, 1998,
included in the 1997 Annual Report to Shareholders of Millennium
Pharmaceuticals, Inc.
We also consent to the incorporation by reference in the Registration Statements
(Form S-8 No. 333-15355), pertaining to the 1993 Incentive Stock Option Plan,
(Form S-8 Nos. 333-15353 and 333-29321), pertaining to the 1996 Equity Incentive
Plan, (Form S-8 No. 333-15349), pertaining to the 1996 Director Option Plan,
(Form S-8 333-15357), pertaining to the 1996 Employee Stock Purchase Plan and
(Form S-8 No. 333-29319), pertaining to the 1997 Equity Incentive Plan of
Millennium Pharmaceuticals, Inc. of our report dated February 12, 1998, with
respect to the consolidated financial statements of Millennium Pharmaceuticals,
Inc. incorporated herein by reference in the Annual Report (Form 10-K) for the
year ended December 31, 1997.
/s/ Ernst & Young LLP
Boston, Massachusetts
March 24, 1998
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> DEC-31-1997
<EXCHANGE-RATE> 1
<CASH> 69,236,000
<SECURITIES> 27,321,000
<RECEIVABLES> 778,000
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 101,930,000
<PP&E> 42,028,000
<DEPRECIATION> 12,998,000
<TOTAL-ASSETS> 144,513,000
<CURRENT-LIABILITIES> 16,359,000
<BONDS> 0
0
0
<COMMON> 29,000
<OTHER-SE> 91,726,000
<TOTAL-LIABILITY-AND-EQUITY> 144,513,000
<SALES> 0
<TOTAL-REVENUES> 89,933,000
<CGS> 0
<TOTAL-COSTS> 177,542,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,435,000
<INCOME-PRETAX> (81,222,000)
<INCOME-TAX> 0
<INCOME-CONTINUING> (81,222,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (81,222,000)
<EPS-PRIMARY> (2.87)
<EPS-DILUTED> (2.87)
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<RESTATED>
<MULTIPLIER> 1
<CURRENCY> US DOLLARS
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-START> JAN-01-1996
<PERIOD-END> DEC-31-1996
<EXCHANGE-RATE> 1
<CASH> 10,088,000
<SECURITIES> 53,760,000
<RECEIVABLES> 5,710,000
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 72,071,000
<PP&E> 21,295,000
<DEPRECIATION> 6,104,000
<TOTAL-ASSETS> 87,744,000
<CURRENT-LIABILITIES> 11,797,000
<BONDS> 0
0
0
<COMMON> 24,000
<OTHER-SE> 66,615,000
<TOTAL-LIABILITY-AND-EQUITY> 87,744,000
<SALES> 0
<TOTAL-REVENUES> 31,764,000
<CGS> 0
<TOTAL-COSTS> 42,776,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 887,000
<INCOME-PRETAX> (8,768,000)
<INCOME-TAX> 0
<INCOME-CONTINUING> (8,768,000)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (8,768,000)
<EPS-PRIMARY> (0.40)
<EPS-DILUTED> (0.40)
</TABLE>
