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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K
(Mark One)
[X] Annual Report Pursuant to Section 13 or 15(d) of The Securities Exchange Act
of 1934.
For the Fiscal Year Ended: March 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
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Commission File Number: 0-27798
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Workgroup Technology Corporation
(Exact name of registrant as specified in its charter)
Delaware 04-3153644
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
91 Hartwell Ave., Lexington, MA 02173
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (617) 674-2000
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, $.01 par value
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(Title of class)
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this Form 10-K. [ ]
The aggregate market value of the voting stock held by nonaffiliates of the
registrant as of June 16, 1997 (based on the closing price as quoted by Nasdaq
National Market as of such date) was $21,350,000.
As of June 16, 1997, 8,133,675 shares of the registrant's common stock were
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Company's Proxy Statement relating to the Company's Annual
Meeting of Stockholders to be held on July 31, 1997 are incorporated by
reference into Part III hereof.
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PART I
ITEM 1. BUSINESS
General
Founded in 1992, Workgroup Technology Corporation ("Workgroup Technology" or
the "Company") designs, develops, markets and supports CMS, a product family of
client/server product data management ("PDM") software solutions that
facilitates the management of product information and work processes performed
by multi-functional product development teams. Workgroup Technology's CMS
enables companies to improve their product development competitiveness by
solving complex business problems one process at a time. CMS captures the
detailed processes and work instructions for all project deliverables. This
enables companies to capture and reuse their product "know-how," and helps
eliminate the loss of critical knowledge from employee turnover and attrition.
Ultimately, this means improved product development competitiveness through
reduced development cycle time, greater development time predictability and
improved innovation.
The CMS product family is designed to manage the deliverables produced during
product development, with particular emphasis on the design control phase where
innovation, time to market and quality are most influenced. CMS manages the
processes which create, modify and distribute the project deliverables
throughout the enterprise. These deliverables may include any type of
electronic data, such as computer aided design ("CAD") models, bills of
material, word processing, spreadsheet, voice, video and multimedia files.
The Company was incorporated in the State of Delaware in May 1992. The
Company's principal executive offices are located at 91 Hartwell Avenue,
Lexington, Massachusetts 02173, and its telephone number is (617) 674-2000.
References herein to "Workgroup Technology" and "the Company" include Workgroup
Technology Corporation and its wholly-owned subsidiaries, Workgroup Technology
GmbH, Workgroup Technology Corporation Limited and Workgroup Technology SRL.
From time to time, information provided by the Company or statements made by
its employees may contain "forward looking" information which involve risks and
uncertainties. In particular, the statements set forth under the heading "The
Workgroup Technology Solution" below regarding the Company's objectives to
expand its technological leadership and product offerings, broaden the
applicability of its products and increase its use of third-party distribution
channels are "forward looking" statements. The Company's actual results may
vary significantly from those stated in any forward looking statements. Factors
that may cause such differences include, but are not limited to, the risks,
uncertainties and other information discussed within this Form 10K as well as
the accuracy of the Company's internal estimates of revenue and operating
expense levels.
Industry Background
Competitive pressures are forcing companies to improve product design and
quality, shorten time-to-market and reduce total product cost. At the same time,
the globalization of markets and competition demands consistent product quality
with an ability to tailor product features to suit local and regional market
conditions. These pressures are forcing companies to reengineer their approach
to the management of the product lifecycle - the conceptual design, engineering,
production, marketing, support and service, and retirement of their products. At
the heart of managing the product lifecycle is the complex challenge of
coordinating the activities of workgroups within the organization and with
suppliers, vendors and customers, as the information and processes related to
each product evolve.
Managing the product lifecycle imposes significant demands on information
systems. Companies must be able to manage product information within global
organizations and distribute this information to support decision making in
remote locations and across functional areas. Increasingly, product
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information is created and stored electronically by a wide range of disparate
applications and systems such as CAD systems; word processing, document
management and spreadsheet applications; relational database management systems
("RDBMS"); and enterprise manufacturing resource planning ("MRP") systems.
Companies have also invested in LAN, WAN and Intranet infrastructures to
facilitate information sharing. Although such network infrastructure has been
installed, many workgroups still operate as "islands of automation." This is
primarily due to a proliferation of hardware and software platforms and
applications from multiple vendors that create and store data in incompatible
formats and data types, resulting in limited system-to-system data sharing
capability. Consequently, PDM is often a manual, paper-intensive process.
Systems designed to coordinate the activities of team members working
concurrently on a product or project, and to manage the information concerning
the interrelationships among the components, processes and documentation
associated with the product or project, are crucial to managing the product
lifecycle. Accurate and timely access to product information such as product
specifications, CAD models, manufacturing instructions, technical manuals,
regulatory submissions and marketing and financial information is critical to
success at each stage of the product lifecycle. However, lacking an effective
means of locating and revising information, team members are often forced to
recreate or use an outdated version of information, thereby duplicating efforts
and increasing errors. Additional complexity is added by the processes
themselves, which often require cross-functional collaboration by geographically
dispersed teams using different hardware platforms and software applications.
The lack of effective tools for communicating and sharing information in a
secure manner, and for automating the work processes, can make group
collaboration especially time-consuming and error prone.
There has been a growing awareness that, although CAD technology improves the
productivity of individual engineers and designers, it does little to improve
the productivity of the overall enterprise. CAD tools create the "source"
information used throughout the product lifecycle, utilizing sophisticated and
proprietary file formats with complex object configurations. However, such tools
do not address the needs of the large numbers of diverse personnel who need to
access product information. Early PDM systems were developed to manage the
information created by mechanical CAD ("MCAD"), electronic CAD ("ECAD") and
technical publishing tools. These systems were either internally developed,
purchased from MCAD, ECAD and technical publishing systems vendors or provided
by independent PDM companies. Typically, internally developed systems lack
flexibility and functionality and become increasingly difficult and expensive to
maintain. PDM modules from MCAD, ECAD and technical publishing system vendors
tend to focus only on managing information created by their own application. PDM
offerings provided by software and system vendors are generally designed as
"toolkit" frameworks which require significant customization, lack integration
with MCAD, ECAD and technical publishing tools, require lengthy and costly
implementations and are not user-friendly. The Company believes the market
demands a tailorable, packaged PDM software solution that facilitates management
of product data, work processes, and product development programs throughout the
entire product lifecycle.
The Workgroup Technology Solution
Workgroup Technology's CMS family of client/server software products is
designed to automate and accelerate the creation, capture, modification, control
and reuse of product and process information. CMS is designed to enhance the
efficient management of the product lifecycle, thereby shortening time-to-
market, increasing the productivity and creativity of team members and enhancing
design and production accuracy. The Company offers two product lines to meet
the PDM needs of its customers.
CMS 6 Series
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The Company's CMS 6 Series of products is targeted at customers in need of an
electronic design warehouse. The CMS 6 Series is a flexible PDM solution that
has the ability to integrate with widely-used desktop automation tools to
capture information at creation, provide secure storage, version control and
release management of stored information, and support controlled and efficient
information
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distribution capabilities across an existing information technology
infrastructure. With over 400 installations, the CMS 6 Series is a production
proven solution designed to be easily implemented providing a fast return on
investment. The product is ideal for workgroups and can be scaled to address the
electronic design warehouse requirements of the global enterprise.
CMS 7 Series
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In April 1997, the Company announced its new product line, the CMS 7 Series.
The CMS 7 Series is targeted at customers who are interested in managing their
product development processes and programs in addition to the product definition
data. The CMS 7 Series is based on patent-pending Collaborative Work
Management/TM/, an enabling technology developed by the Company. Collaborative
Work Management transforms product development into a truly collaborative
streamlined process where everyone on the team shares, manages and controls
product information as it is being created. This reduces development errors and
cycle times, improves program predictability, fosters innovation, supports reuse
of best practices and maintains an audit trail for regulatory compliance.
Conventional PDM and workflow systems have proven to be too task oriented, rigid
and disconnected from the actual work to successfully automate product
development. The CMS 7 Series with Collaborative Work Management, on the other
hand, employs a new approach based upon project milestones and deliverables
which closely matches the methodology currently employed by discrete
manufacturers. Scheduled for release in the summer of 1997, the CMS 7 Series
offers product developers the first integrated data, process and program
management solution.
The Company's CMS family of products are differentiated by the following:
Ease of Adoption. CMS enables quick and easy customer adoption through a
tailorable, off-the-shelf solution and scaleable architecture. Instead of
imposing a solution that revamps the entire enterprise, the Company advocates a
scaleable and phased product implementation approach. This enables customers to
implement data and process management solutions aimed at solving specific
problems, then link these solutions to create an enterprise information
environment. Incremental implementation is more manageable for customers;
solves the greatest problems first; is up and running and producing measurable
results fast; and does not require a large initial investment.
Integration with Desktop Automation Tools. CMS's architecture is designed for
easy integration with widely-used desktop automation tools. The CMS 6 Series is
currently integrated with such desktop automation tools as Parametric Technology
Corporation's Pro/ENGINEER, Mentor Graphics Boardstation and Design Architect
and Zuken, Inc.'s CR5000. The Company is also planning integrations with the
CMS 7 Series. Through CMS, the complexity of the managed data becomes virtually
transparent to the user, enabling CMS to integrate smoothly with established
business practices.
Efficient Information Distribution. CMS enables customers to automatically
distribute information managed and controlled by CMS across LANs, WANs and/or
the Internet/Intranet in accordance with a set of customer-defined rules for
individual users, groups and classes of information.
Leverage Existing Systems and Data. CMS allows users to access information
from existing desktop platforms, applications, databases and network
infrastructure. CMS is designed to manage any type of electronic data, including
CAD models, bills of material and word processing, spreadsheet, voice, video and
multimedia files regardless of its file format or location.
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The CMS 7 Series with Collaborative Work Management also offers the following
additional advantages:
Focus on Design Control. The CMS 7 Series allows people to effectively
collaborate during all phases of product development - including the early pre-
release stages, which have been largely ignored by PDM providers up until now.
Traditional task-oriented workflow products are too static and inflexible to
handle the dynamic and unpredictable nature of the creative design phases.
Workflow defines specific tasks that the user must follow and, ultimately,
constrain creativity. The CMS 7 Series, by contrast, can manage these dynamic
phases because its lifecycle approach identifies key project stages and control
gates within which engineers can iterate to reach a solution. With the CMS 7
Series, each team member can see all product deliverables, what state they are
in, where they are physically located, identify who is working on them and
determine their interdependence.
Empowerment of Process Owners. The CMS 7 Series empowers process owners by
allowing them to define and tightly couple the lifecycle process for each
deliverable they control. These deliverables become process building blocks
which can be aggregated into a process hierarchy. This enables project managers
to assemble and synchronize the required processes into a cohesive project,
ultimately providing greater flexibility for adding, modifying and reconfiguring
processes. This bottom-up approach to process definition is not possible with
conventional workflow solutions, and allows CMS customers to solve complex
business problems one process at a time.
Targeted Industry Solutions. The Company's product development software is
designed to specifically address the process driven requirements in implementing
ISO 9001, QS-9000, US FDA Quality System Regulations and European CE Mark
Medical Device Directives. Industries such as medical devices, high-technology
manufacturers and automobile suppliers are under regulatory pressure to document
processes and maintain proof that the processes were followed. The CMS 7 Series
helps provide this through its ability to model and institutionalize processes,
maintain audit trails and keep process and product information tightly coupled.
The Company believes the following case studies are illustrative of the
manner in which CMS is used by its customers.
ADC Telecommunications, Inc.
ADC Telecommunications, Inc. ("ADC") is a manufacturer of cable, fiber,
transmission and network management products with revenues of $828 million
during its fiscal year ended October 31, 1996. Since July 1994, ADC has used CMS
to manage over 200 gigabytes of CAD data generated by its Pro/ENGINEER MCAD
systems and has reduced part data redundancy and increased engineering
productivity. ADC selected CMS because of its Pro/ENGINEER integration
capabilities, comprehensive platform support and scaleability. ADC uses CMS to
manage the electronic master models of its products and provide functional
groups within ADC and its key suppliers with immediate access to product data.
AlliedSignal, Inc.-Aerospace Division
The Aerospace Division of AlliedSignal, Inc. ("AlliedSignal Aerospace") is a
global manufacturer of aerospace components and systems with 35 locations in 17
countries. Since its initial implementation of CMS in October 1994, AlliedSignal
Aerospace has standardized on CMS to control large volumes of product definition
data and automate critical processes, enabling significant reductions in time-
to-market. AlliedSignal Aerospace selected CMS because of its user-friendly
interface, integration with Pro/ENGINEER and ease of implementation. As of March
31, 1997, AlliedSignal Aerospace has expanded its usage of CMS to more than 25
locations around the world.
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Eaton Corporation
Eaton Corporation ("Eaton") is a global manufacturer of products for the
automotive, industrial, construction, commercial, aerospace and marine markets
with 150 manufacturing sites in 18 countries. Since its initial implementation
of CMS in 1992, Eaton's Semiconductor Equipment Division has automated its
engineering change review and engineering change order processes. Eaton selected
CMS because of the scaleability it provided to meet the needs of both the
divisions and the corporate IT organization. In 1995, Eaton signed a corporate
license agreement for the Company's CMS product family and standardized on CMS
in support of Eaton's concurrent engineering initiative, Simultaneous
Product/Process Development.
Whirlpool Corporation
Whirlpool Corporation ("Whirlpool") is one of the world's leading
manufacturers and marketers of major home appliances. Since 1994, Whirlpool has
used CMS to manage and distribute the product data utilized by manufacturing
locations around the world. Whirlpool selected CMS because of CMS's user-
friendly interface and ease of implementation. In 1994, Whirlpool signed a
corporate license agreement for the Company's CMS product family to support
integration and exchange of design and best practices information among
Whirlpool's global locations.
Strategy
The Company's objective is to become the leading worldwide supplier of PDM
software solutions. To achieve this objective, the Company is pursuing the
following strategies:
Extend Technological Leadership. The Company believes it has certain core
competencies that can be leveraged to extend the Company's technological
leadership in the PDM market. The Company has developed significant expertise in
engineering and manufacturing processes, product version control and
configuration management, program management and data storage and distribution.
The Company plans to build upon its technological base by adding new features
and functionality to its CMS family of products, including additional platform
support and support for other information delivery vehicles such as the World
Wide Web. The Company also plans to leverage the unique Collaborative Work
Management technology and is awaiting a decision on its US patent application.
Broaden Application Solutions. The Company believes there is significant
opportunity to increase the number of users of the Company's family of products
by integrating CMS with additional software tools and other business critical
applications. The Company has established a third-party developers program, the
Workgroup Partners Program ("WPP"), which provides third-party software
developers with access to software designed to assist them in developing
complementary applications.
Enable Customers to Succeed. By designing products that are easily
implemented and are easily integrated with the customer's existing computing
systems, the Company seeks to assist its customers in building a PDM system
without disrupting their computer infrastructure or work processes. The Company
has a comprehensive service and support organization that is designed to ensure
customers' successful implementation and use of CMS. The Company believes its
customers' success in implementing and using the Company's products to improve
business processes is crucial to attaining a highly referenceable customer base
and repeat orders. As of March 31, 1997, the Company's software has been
licensed to over 300 companies in over 400 locations worldwide and the Company
has historically licensed additional products and services to existing customers
as they have extended their deployment of CMS while building their enterprise
PDM solution.
Utilize Multiple Distribution Channels. The Company markets CMS in the United
States and Europe through its direct sales force and through value added
resellers ("VARs") with vertical market
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expertise. The Company also has OEM relationships with Mentor Graphics
Corporation, Sietec Consulting GmbH & Co. OHG, a subsidiary of Siemens-Nixdorf
Informationssyteme AG, Hitachi, Ltd. and Zuken, Inc. The Company intends to
focus increased efforts on expanding both direct and indirect distribution
channels on a worldwide basis by hiring additional direct sales personnel and
recruiting additional VARs and OEM partners.
Products
CMS is a family of client/server software products designed to address the
PDM requirements of a business enterprise. The Company's CMS family of products
comprises the CMS product information engine and a series of modules and related
products that enhance the features and functionality of its core product
offering.
The principal features of CMS include the following:
. Enterprise Distributed Vault. CMS provides controlled access to product
information from authorized people located anywhere with a customer's network
and accounts for all changes to that information. Work objects may be
reviewed, checked-in and out, organized by classes or associations, and
modified from the client desktop. CMS automatically provides version control
and rollback facilities, ensuring that users can return to previous versions
of a particular configuration.
. Concurrent Engineering. CMS permits multi-functional product development
teams to work on the same project concurrently, ensuring that all team
members are working on the latest version ("version control") of a particular
component or assembly of components. Each team member is automatically
notified by electronic mail of changes made by other team members once the
changed item is checked-in to the CMS database. Items checked-out for change
are locked for modification by other team members, although they may utilize
reference-only copies as a basis for complementary design activities.
. Configuration Management. CMS provides the ability to group work objects
together to define product configurations which can be maintained through the
various stages of the product lifecycle. Authorized users have the ability to
create "snapshots" of the configuration when required during the product
lifecycle. This capability provides an audit trail which enables the
gathering of relevant data should an engineering change be required and
facilitates ISO 9001 certification.
. Release Management. CMS provides the ability to freeze product
configuration at appropriate stages of the product lifecycle for approval and
release. Participants in the approval process are notified automatically
through electronic mail of the status of the product configuration during
various stages of the approval and release cycle. This electronic release
process saves significant time over traditional sign-off processes which
entail routing a package of paper documents.
. Transparent Access. Through CMS, the complexity of the managed data
becomes virtually transparent to the user, enabling CMS to integrate smoothly
with established business practices.
. Security and Administration. CMS controls the access to work objects based
on customer-defined rules for individual users, groups and classes of
information. (The CMS 7 Series also controls access by role at each stage of
the process.) This system is designed to ensure that information is not lost
or altered by unauthorized personnel. CMS also supports traditional database
administration such as backup/restore, system archival and reporting. Users
also have the ability to query the database and format information using
standard SQL scripts.
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The CMS 7 Series also adds the following features:
. Intelligent Deliverables. The CMS 7 Series tightly couples a deliverable
with the process it will follow through its lifecycle. The deliverable
becomes "intelligent" and "knows" what stages it must follow. This approach
enables complex processes to be built from a configuration of deliverables and
supports process reuse by reconfiguring deliverables in new products.
. Process Configuration Management. Collaborative Work Management supports
the aggregation of individual deliverables with their processes into a process
hierarchy. This enables project managers to assemble the required processes,
synchronize them and build dependencies between them. The result is a
cohesive process configuration with built-in rules governing its execution.
. Project Tracking and Analysis. Collaborative Work Management records the
progress of each deliverable as it moves through its lifecycle. This real
time status is available from any user's desktop so that work progress is now
visible for the first time. This is particularly valuable on large projects
where many people are collaborating from various geographic locations.
. User Tailorable Desktops. The CMS 7 Series enables the customer to define
individual user environments without custom programming, including commonly
used function and preferred views of information.
. Process Synchronization. The CMS 7 Series allows the customer to prevent
a process from proceeding to the next step if certain predetermined
conditions are not met. This ensures that downstream stages are based on
accurate and complete information.
. Intelligent Forms. The intelligent forms within the CMS 7 Series
dynamically change at each stage of a process. They identify required and
optional information needed at that stage and suppress irrelevant
information, thus greatly simplifying what the user sees.
CMS Application Modules
The Company has also developed several add-on modules and applications which
enhance the features and functionality of the CMS product information engine.
These modules include the following:
CMS/Work Management. CMS/Work Management is a process management application
that enables collaboration in the product development process by making the
work of all team members visible to each member in real time.
CMS/ReplicationServer. CMS/ReplicationServer supports the duplication and
synchronization of work objects stored in multiple locations to enhance
system performance.
CMS/Launch. CMS/Launch registers any object type and automatically launches
the appropriate application when a given work object is accessed for viewing,
printing or modification.
CMS/Workflow. CMS/Workflow models any business process, and automates work
processes by routing work requests and related information to appropriate
individuals and groups.
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CMS/Pro. CMS/Pro automatically captures work objects and complex
configurations defined within Pro/ENGINEER and transfers the information to
the CMS/Server for secure storage.
CMS/API. CMS/API provides customers and development partners with C language
programming access to certain of CMS's functions to develop customized CMS
extensions. CMS/API in the CMS 7 Series also provides C++ language
programming.
CMS for Mentor Graphics. CMS for Mentor Graphics automatically captures work
objects and complex configurations defined within Mentor Graphics' Board
Station and transfers the information to the CMS/Server for secure storage.
The above modules are currently available on the CMS 6 and CMS 7 Series as
shown below:
<TABLE>
<CAPTION>
Module CMS 6 Series CMS 7 Series
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<S> <C> <C>
CMS/Work Management a
CMS/ReplicationServer a a
CMS/Launch a a
CMS/Workflow a
CMS/Pro a
CMS/API a a
CMS for Mentor Graphics a
</TABLE>
The Company is also developing internally or negotiating licenses for several
new modules to enhance the features and functionality of CMS/Client and
CMS/Server.
Technical Environments
CMS products are available on Sun Microsystems, Hewlett-Packard, IBM, Digital
and Silicon Graphics Unix and Windows NT servers (CMS 7 Series only), with Unix
and Windows (3.1, 95, NT) clients and the Oracle and Sybase (CMS 6 Series only)
database.
Professional Services
Professional services, including customer training and implementation
services, are an important component of the total solution the Company seeks to
provide to its customers. System-level training is provided to customers' system
administrators and database administrators to prepare them for successful
implementation of CMS. Implementation services are offered to those customers
who request assistance in installing software, designing databases, organizing
data and developing workflow processes. The Company also provides software
maintenance which includes central call center support, all maintenance releases
of products and all major upgrades of products.
Technology
CMS is based on a three-tier client/server architecture designed to maximize
system and network performance and flexibility. The Company believes that its
architecture enables CMS to handle large amounts of complex, unstructured data
types without a degradation in performance.
The base tier comprises the vault server and the relational database server.
The vault server, which may be distributed over LANS and WANS, is a permanent
repository that stores and controls all versions of files. The relational
database server stores data describing the files and work objects within the
vault servers, such as access permissions, versions, associations to other work
objects and other attributes. Although CMS currently utilizes databases provided
by Oracle and Sybase, CMS is designed to be database independent.
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The middle tier includes the CMS application server which performs all of the
PDM applications, including work object management, configuration management,
release management and process management. The middle tier also utilizes the
Company's integration technology to enable the client interfaces to access and
utilize data stored in the base tier.
The top tier includes the clients that supply the user interface to CMS on
the user's platform of choice. CMS supports tool, task-specific and web clients
that are tailored to the needs of a specific type of user.
CMS/OpenLink, a layer of proprietary software, is utilized by the Company and
its WPP partners to efficiently develop CMS clients that are integrated with
desktop application products. The Company believes that CMS/OpenLink provides it
and its WPP partners with the ability to quickly integrate CMS with new releases
or versions from application software vendors.
Customers
As of March 31, 1997, the Company's products had been licensed to over 300
customers in over 400 sites worldwide. The following is a representative list of
users of the Company's products that the Company believes to be typical of the
Company's overall customer base by virtue of the industries they represent and
the products they develop. Each of these users has at least 25 CMS licenses or
has purchased over $10,000 in licenses and services during the last three years.
<TABLE>
<S> <C> <C>
Aerospace Electronic Products Medical Products
AlliedSignal, Inc. 3Com Corporation Boehringer Mannheim
Sandia National Laboratories Bay Networks, Inc. Medrad Inc.
Cummins Electronics Company, Inc. United States Surgical Corp.
Automotive Fuji Zimmer Inc.
Eaton Corporation General Electric Company
Harmon International Hitachi, Ltd. Telecom/Utility
Hyundai Corporation LSI Logic Corporation ADC Telecommunications, Inc.
New Venture Gear, Inc. Mitsubishi Corporation Digital Switch Corporation
Siemens Energy & Automation, Inc. Indianapolis Power & Light Co.
Consumer Products Siemens Rolm Communications, Inc. Williams Energy Services
Case Corporation Sony
Delta Faucet Corporation Stratus Computer, Inc. Other
Hasbro Corporation Sun Microsystems, Inc. Federal Express
Herman Miller, Inc. Medrad Inc.
Moen Incorporated United Defense L.P.
Whirlpool Corporation United States Army
</TABLE>
In fiscal 1997, revenue from Case Corporation represented 11% of the
Company's revenue. In fiscal 1996, revenue from Hitachi, Ltd. accounted for 17%
of the Company's total revenue. The revenue from Hitachi resulted from a one-
time license of source code for a version of the Company's PDM software, after
Hitachi expressed an interest in developing its own PDM product for markets
outside the Company's primary market. Hitachi has no right to upgrades or new
versions of the licensed source code.
Sales and Marketing
The Company has implemented a multi-channel sales strategy including direct
sales, VARs and OEM partners to efficiently address the global market for its
products.
The Company has established a direct sales organization in the United States
and Europe to sell to new customers as well as to expand installations within
its existing customer base. The Company
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provides installation and post-sale consulting services to facilitate customer
implementations and to build long-term customer relationships. As of March 31,
1997, the Company's sales and marketing organization consisted of 33 people
located in the Company's headquarters in Lexington, Massachusetts and in ten
locations throughout the United States and Europe. The Company's total revenue
for fiscal 1995, 1996 and 1997 was primarily derived from the efforts of the
Company's direct sales force. The Company does not believe that its revenue is
materially impacted by seasonality.
The Company utilizes VARs in North America and Europe to complement its
direct sales force. These VARs have vertical market expertise and focus their
efforts on selling CMS within those markets to new customers as well as to their
own installed base. To avoid channel conflict, direct sales personnel are
compensated both on their performance and that of the VARs in their territory.
As of March 31, 1997, the Company had 9 VARs located throughout North America
and Europe.
The Company utilizes OEM relationships to complement its direct sales and VAR
channels. The Company has an OEM partnership with Mentor Graphics Corporation.
In addition, the Company has two OEM partners in the Far East, Zuken, Inc. and
Hitachi, Ltd., and one OEM partner in Europe, Sietec Consulting GmbH & Co. OHG,
a subsidiary of Siemens-Nixdorf Informationssysteme AG. Zuken is one of Japan's
largest independent software suppliers, focused on the ECAD marketplace. All
OEM partners provide vertical market expertise and sell to customers generally
not targeted by or geographically accessible to the Company's direct sales
force.
The Company's VARs and OEM partners license the Company's products at a
discount for sublicensing and may provide training, support and consulting
services to their customers. The Company receives fees for support and
maintenance provided to these channel partners. The Company and its VARs and OEM
partners generally market CMS and related services through sales teams
consisting of a sales representative and an applications engineer. To support
the sales process, the Company conducts comprehensive marketing programs that
include public relations, seminars, trade shows, direct mail, telemarketing and
customer communications programs. The Company sponsors user groups, focus groups
and a customer advisory board as a source of feedback about its customers'
requirements.
Customer Support and Consulting
The Company's customers utilize CMS in mission-critical applications on which
the success of the organization may depend. Therefore, a high level of customer
service and technical support is critical. The Company's customer support
organization provides support through telephone, electronic mail and fax
communications. As of March 31, 1997, the Company's customer support and
consulting organization consisted of 17 people. OEMs and some of the Company's
VARs offer first-level customer support to their end-user customers and rely on
the Company for any additional required support. Additionally, the Company
provides consulting services to those customers seeking assistance in installing
CMS, designing their database structure, designing their workflow templates or
training their employees.
Product Development
Since its inception, the Company has made substantial investments in research
and development. The Company believes its future success depends in part upon
its ability to enhance its existing products and to develop and introduce
products that address technological developments in the marketplace and the
increasingly sophisticated needs of its customers. The Company uses CMS in the
development of new products and enhancements to existing products, as well as in
the support of its customers.
While the Company expects that certain of its new products will be developed
internally, the Company may, based upon timing and cost considerations, acquire
technology and/or products from third parties. Additionally, the Company's
Workgroup Partners Program provides the Company's
-10-
<PAGE>
customers with various third party developed applications that are complementary
to the Company's products.
As of March 31, 1997, the Company's product development staff consisted of 35
employees. The Company's total expense for research and development in fiscal
1995, 1996 and 1997 was $2.1 million, $3.0 million and $4.6 million,
respectively.
Competition
The PDM market is intensely competitive and is subject to rapid change. The
Company's competitors offer a variety of products and services to address this
market. The Company currently encounters direct competition from a number of
public and private companies such as Computervision Corporation, Hewlett-Packard
Company, International Business Machines Corporation, Parametric Technology
Corporation, Structural Dynamics Research Corporation and Sherpa Corporation. In
addition, the possible entrance of new competitors may intensify competition in
the PDM market. Vendors of RDBMS and enterprise MRP systems, among others, may
compete with the Company in the future. Many of the Company's current and
possible future competitors have significantly greater financial, technical,
marketing and other resources than the Company, and many have well established
relationships with current and potential customers of the Company. It is also
possible that alliances among competitors may emerge and rapidly acquire
significant market share. The Company also expects that competition will
increase as a result of software industry consolidations. Increased competition
may result in price reductions, reduced gross margins and loss of market share,
any of which would materially adversely affect the Company's business, operating
results and financial condition. There can be no assurance that the Company will
be able to compete effectively against current and future competitors.
The Company believes that the principal competitive factors affecting its
market include product features and functionality, such as flexibility,
scaleability, ease of integration, ease of implementation, ease of use, quality,
performance, price and total cost of ownership; customer service and support;
company reputation and financial viability; and effectiveness of sales and
marketing efforts. Although the Company believes that it currently competes
effectively with respect to such factors, there can be no assurance that the
Company will be able to maintain its competitive position against current and
potential competitors.
Proprietary Rights
The Company primarily relies upon a combination of copyright, trademark and
trade secret laws, nondisclosure agreements and license agreements to establish
and protect proprietary rights in its products. The Company does not currently
hold any patents. The source code for the Company's products is protected both
as a trade secret and as an unpublished copyrighted work. Despite these
precautions, it may be possible for a third party to copy or otherwise obtain
and use the Company's products or technology without authorization or to develop
similar technology independently. In addition, effective copyright and trade
secret protection may be unavailable or limited in certain foreign countries.
The software development industry is characterized by rapid technological
change. Therefore, the Company believes that factors such as the technological
and creative skills of its personnel, new product developments, frequent product
enhancements, name recognition and reliable product maintenance are more
important to establishing and maintaining a technology leadership position than
the various legal protections of its technology. The Company is not aware that
any of its products infringes the proprietary rights of third parties. There can
be no assurance, however, that third parties will not claim such infringement by
the Company or its licensers with respect to current or future products. The
Company expects that software product developers will increasingly be subject to
such claims as the number of products and competitors in the Company's market
segment grows and the functionality of products in different market segments
overlaps. Any such claims, with or without merit, could be time-consuming,
result in costly litigation, cause product shipment delays or might require the
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<PAGE>
Company to enter into royalty or licensing agreements. Such royalty or licensing
agreements, if required, may not be available on terms acceptable to the
Company.
Workgroup Technology Corporation, Workgroup, the Company's logo, CMS,
Collaborative Work Management, CMS/Server, CMS/Client, CMS/Work Management,
CMS/Launch, CMS/Workflow, CMS/Pro, CMS/API, CMS/OpenLink and
CMS/ReplicationServer are trademarks of the Company. All other trademarks and
trade names referred to in this report are the property of their respective
owners.
Employees
As of March 31, 1997, the Company employed 92 persons, including 35 product
development personnel, 26 sales personnel, 17 customer support and consulting
personnel, 7 finance and administration personnel and 7 marketing personnel.
None of the Company's employees is represented by a collective bargaining
arrangement, and the Company has experienced no work stoppages. The Company
considers its relations with its employees to be good.
The Company's future success depends in large part on the ability to continue
to motivate and retain highly qualified employees, including management
personnel, and to attract and retain a significant number of additional
qualified personnel, including sales personnel and product development and
operations staff. Competition for qualified personnel in the Company's industry
is intense, and many of the companies with which the Company competes for
qualified personnel have substantially greater financial and other resources
than the Company. Furthermore, competition for qualified personnel can be
expected to become more intense as competition in the Company's industry
increases. There can be no assurance that the Company will be able to recruit,
retain and motivate a sufficient number of qualified personnel to compete
successfully. The loss of any of the Company's senior management personnel or
any material failure to recruit, retain and motivate a sufficient number of
qualified personnel would have a material adverse effect on the Company.
ITEM 2. PROPERTIES
The Company's headquarters are located in approximately 29,000 square feet of
office space in Lexington, Massachusetts. This facility accommodates research,
marketing, sales, customer support and corporate administration. The lease on
this facility expires in September 2001. The Company also leases office space in
Europe to support its field sales and support operations. The Company believes
that its existing facilities are adequate for its current needs and that
additional facilities are available for lease to meet future needs.
ITEM 3. LEGAL PROCEEDINGS
The Company is not a part to any litigation that it believes would have a
material impact on its business.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
During the fourth quarter of the year ended March 31, 1997, no matters were
submitted to a vote of security holders of the Company through the solicitation
of proxies or otherwise.
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<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED SECURITY HOLDER
MATTERS
The Company's Common Stock trades on the Nasdaq National Market under the
symbol "WKGP". On June 16, 1997, the closing price of the Company's Common Stock
was $3.94 per share.
As of June 16, 1997, there were approximately 113 holders of record of the
Company's Common Stock and at least 1,500 beneficial holders, based on
information obtained from the Company's transfer agent.
The following table sets forth quarterly high and low prices of the Common
Stock for the indicated periods of fiscal 1997:
<TABLE>
<CAPTION>
High Low
---- ---
<S> <C> <C>
First Quarter $30.75 $21.50
Second Quarter 25.00 5.13
Third Quarter 7.13 5.00
Fourth Quarter 7.25 3.94
</TABLE>
During the fourth quarter of 1996 (March 21 to March 31, 1996), the high bid
quotation for the Company's Common Stock was $22.50 per share, and the low bid
quotation was $17.75 per share, as reported on the Nasdaq National Market.
The Company has never paid cash dividends on its Common Stock. The Company
currently intends to retain earnings, if any, for use in its business and does
not anticipate paying any cash dividend in the foreseeable future. Any future
declaration and payment of dividends will be subject to the discretion of the
Company's Board of Directors, will be subject to applicable law and will depend
upon the Company's results of operations, earnings, financial condition,
contractual limitations, cash requirements, future prospects and other factors
deemed relevant by the Company's Board of Directors.
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<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
The selected financial data presented below are derived from the financial
statements of the Company, and should be read in connection with those
statements, which are included herein.
<TABLE>
<CAPTION>
Period from
May 11, 1992
(date of inception)
Fiscal Year Ended March 31, through
1997 1996 1995 1994 March 31, 1993
----------- ----------- ----------- ----------- -------------------
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Statement of Operations Data:
Revenue $ 10,439 $ 10,477 $ 4,616 $ 2,531 $ 731
Gross profit 7,969 8,794 3,404 1,836 180
Operating expenses 12,255 7,405 4,692 3,599 2,150
Income (loss) from operations (4,286) 1,389 (1,289) (1,763) (1,970)
Net income (loss) (2,407) 1,448 (1,437) (1,781) (1,922)
Net income (loss) per common share $ (0.30) $ 0.24 $ (0.50) $ (0.63) $ (0.69)
Weighted average number of common
and common equivalent shares
outstanding 7,994 6,011 2,855 2,807 2,798
<CAPTION>
March 31,
1997 1996 1995 1994 1993
----------- ----------- ----------- ----------- -----------
(in thousands)
<S> <C> <C> <C> <C> <C>
Balance Sheet Data:
Working capital (deficit) $ 36,560 $ 39,426 $(1,161) $ (336) $ 549
Total assets 41,796 44,073 4,588 1,735 1,895
Convertible preferred stock - - 4,290 3,700 3,000
Total stockholders' equity (deficit) 37,927 40,114 (5,113) (3,678) (1,905)
</TABLE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Overview
The following discussion and analysis of the financial condition and results
of operations of the Company should be read in conjunction with the financial
statements and related notes thereto.
The Company does not provide forecasts of the future financial performance of
the Company. However, from time to time information provided by the Company or
statements made by its employees may contain "forward looking" information that
involves risks and uncertainties. In particular, statements contained in this
Form 10-K which are not historical facts constitute forward looking statements
and are made under the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. The Company's actual results of operations and
financial condition have varied and may in the future vary significantly from
those stated in any forward looking statements and there can be no assurance
that the results set forth in those statements will be achieved.
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<PAGE>
The software industry is highly competitive and rapidly evolving. The PDM
market in particular is subject to short product life cycles and evolving market
standards due to the relative immaturity of the market. Accordingly, the
Company's ability to continue to develop and market new or enhanced products and
deliver them to customers in a timely fashion and the acceptance of these
products in the PDM market as well as the continued growth of the PDM market
will significantly affect the Company's results of operations. The Company's
results of operations will also be subject to its ability to continue to attract
and retain qualified personnel and effectively manage its growth and the
expansion of its product offerings. In addition, demand for the Company's
product is subject to general economic conditions and an increase in the cost of
capital or an economic decline could cause potential customers to delay or
cancel planned purchases of the Company's products.
Results of Operations
The following table sets forth for the periods indicated, certain
consolidated financial data as a percentage of revenue:
<TABLE>
<CAPTION>
Percentage of Revenue
---------------------------------------
Fiscal Year Ended March 31,
---------------------------------------
1997 1996 1995
------- --------- --------
<S> <C> <C> <C>
Revenue:
Software licenses 62.8% 73.1% 69.1%
Maintenance and services 37.2 26.9 30.9
------- --------- --------
Total revenue 100.0 100.0 100.0
Cost of revenue:
Software licenses 3.3 4.3 9.4
Maintenance and services 20.4 11.8 16.9
------- --------- --------
Total cost of revenue 23.7 16.1 26.3
Gross profit 76.3 83.9 73.7
Operating expenses:
Selling and marketing 57.5 34.5 44.3
Research and development 44.4 28.8 44.5
General and administrative 15.5 7.3 12.8
------- --------- --------
Total operating expenses 117.4 70.6 101.6
Income (loss) from operations (41.1) 13.3 (27.9)
Interest income (expense), net 18.5 0.9 (0.3)
------- --------- --------
Income (loss) before income taxes (22.6) 14.2 (28.2)
Provision for income taxes 0.5 0.3 2.9
------- --------- --------
Net income (loss) (23.1)% 13.9% (31.1)%
======= ========= ========
</TABLE>
Fiscal 1997 Compared to Fiscal 1996
Revenue. The Company's revenue consists of license fees for its CMS family
of product data management software products and fees for professional services
and software maintenance. The Company had total revenue of $10,439,000 in
fiscal 1997 as compared to total revenue of $10,477,000 in fiscal 1996, a
decrease of less than 1%.
International revenue decreased 59.5% to $1,088,000 in fiscal 1997 from
$2,686,000 in fiscal 1996. This decrease was primarily due to non-recurring
license fees received from Hitachi, Ltd. in connection with a
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<PAGE>
source code license and maintenance that amounted to $1,800,000 in fiscal 1996.
International revenue accounted for 10.4% and 25.6% of total revenue in fiscal
1997 and fiscal 1996, respectively.
Software license revenue decreased 14.5% in fiscal 1997 to $6,553,000 from
$7,661,000 in fiscal 1996. The revenue decline resulted from a delay in
shipment of a server product for the Windows NT operating system, lower than
expected revenue in the European market and lower revenue from prospective and
existing customers as customers delayed orders in anticipation of the release of
the Company's new CMS 7 Series of products.
Maintenance and services revenue increased 38.0% to $3,886,000 from $2,816,000
for fiscal 1996. This increase resulted primarily from an increase in the
number of customers with maintenance agreements as well as an increase in usage
of the Company's professional services.
Cost of Revenue and Gross Profit. The Company's cost of software license
revenue consists primarily of royalties payable upon the license of products as
well as costs associated with media, packaging, documentation and delivery of
the Company's product. Gross profit associated with software license revenue
for fiscal 1997 was $6,213,000 or 94.8% of software license revenue versus
$7,211,000 or 94.1% of software license revenue in fiscal 1996. The decrease in
gross margin of $998,000 resulted primarily from lower software revenue in
fiscal 1997.
Cost of maintenance and services revenue consists primarily of personnel costs
for the Company's customer support and professional services organizations. The
Company's gross profit on maintenance and services revenue increased to
$1,756,000 in fiscal 1997 from $1,583,000 fiscal 1996. As a percentage of
maintenance and services revenue the gross margin decreased to 45.2% in fiscal
year 1997 from 56.2% in fiscal year 1996. This decrease was due to a greater
utilization of the professional services organization on support, training and
other projects in fiscal 1997 as well as costs associated with hiring and
training additional staff for the Company's customer support organization.
Selling and Marketing. Selling and marketing expenses increased 65.9% in
fiscal year 1997 to $5,999,000 from $3,617,000 fiscal 1996. Selling and
marketing expenses as a percentage of revenue increased to 57.5% in fiscal 1997
from 34.5% in fiscal 1996. These increases resulted primarily from costs
incurred as a result of an increase in sales and marketing personnel and
programs as well as an increase in international selling expenses due to the
costs associated with the Company's subsidiaries in Europe.
Research and Development. Research and development expenses increased 53.5%
in fiscal 1997 to $4,635,000 from $3,020,000 in fiscal 1996. Research and
development expenses as a percentage of revenue increased to 44.4% in fiscal
1997 from 28.8% in fiscal 1996. These increases in fiscal 1997 resulted
primarily from employment of additional staff and independent contractors to
develop and enhance the Company's products, expand the integration of its
products with other applications and provide quality assurance.
General and Administrative. In fiscal 1997, general and administrative
expenses increased 111.1% to $1,621,000 from $768,000 in fiscal 1996. As a
percentage of revenue, general and administrative expenses increased to 15.5% in
fiscal 1997 from 7.3% in fiscal year 1996. General and administrative expenses
increased primarily as a result of severance related and other personnel
expenses as well as additional administrative expenses attributable to the
Company's status as a public company.
Interest Income, (Net). Interest income, (net) consists of interest earned
on cash and cash equivalents, offset by interest expense associated with
equipment financing. Interest income for fiscal 1997 increased to $1,827,000
from $94,000 in fiscal 1996 due to higher cash and cash equivalent balances
during fiscal 1997 as a result of the Company's initial public offering.
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<PAGE>
Provision for Income Taxes. For fiscal 1997, the provision for income taxes
increased to $55,000 from $35,000 for fiscal 1996. The provision for taxes
results primarily from taxable income in the Company's foreign subsidiaries as
well as certain state taxes.
Fiscal 1996 Compared to Fiscal 1995
Revenue. The Company's total revenue increased 127% in fiscal 1996 to $10.5
million from $4.6 million in fiscal 1995.
Software license revenue increased 140.2% in fiscal 1996 to $7.7 million from
$3.2 million in fiscal 1995. This revenue increase resulted from an increase in
the number of customers licensing the Company's software products, an increase
in the number of incremental software licenses purchased by existing customers
and an increase in the average sales value of software orders from customers, as
well as revenue attributable to a one-time source code license agreement with
Hitachi, Ltd. The increase in the number of customers licensing the Company's
software products resulted primarily from increases in the size and productivity
of the Company's direct sales force and increased sales by the Company's VARs
and OEM partners. The increase in the number of incremental software licenses
purchased by existing customers was primarily due to the licensing by customers
of additional users as well as the licensing of additional CMS products. The
increase in the average sales value of orders was primarily due to larger
initial implementations by customers as well as the introduction of new CMS
clients and modules for Windows and Mac/OS.
Maintenance and services revenue increased 97.4% in fiscal 1996 to $2.8
million from $1.4 in fiscal 1995. This increase resulted from an increase in the
customer maintenance base and increased usage of the Company's professional
services, as well $238,000 of revenue attributable to the maintenance related to
a one time source code license agreement with Hitachi, Ltd.
International revenue increased 380% in fiscal 1996 to $2.7 million from $0.6
million in fiscal 1995 and accounted for 25.6% and 12.1% of total revenue in
fiscal 1996 and fiscal 1995, respectively. This increase was primarily due to
revenue attributable to Hitachi, Ltd., which accounted for $1.8 million, or 17%
of revenue in fiscal 1996.
Cost of Revenue and Gross Profit. The Company's gross profit associated with
software license revenue increased 161.6% in fiscal 1996 to $7.2 million, or
94.1% of software license revenue, from $2.8 million, or 86.5% of software
license revenue, in fiscal 1995.
The Company's cost of maintenance and services revenue consists primarily of
personnel costs for the Company's customer support and professional services
organizations. The Company's gross profit on maintenance and services revenue
increased 145.1% in fiscal 1996 to $1.6 million, or 56.2% of maintenance and
services revenue, from $0.6 million, or 45.3% of maintenance and services
revenue, in fiscal 1995. Gross profit increased primarily due to increased
efficiencies and productivity achieved by the customer support and professional
services organizations.
Selling and Marketing. Selling and marketing expenses consist primarily of
personnel costs as well as commissions and travel expenses of direct sales and
marketing personnel, and costs associated with marketing programs. Selling and
marketing expenses increased 77.0% in fiscal 1996 to $3.6 million from $2.0
million in fiscal 1995. The increase in selling and marketing expenses resulted
primarily from employment of additional staff in the sales and marketing
organizations as well as an increase in marketing programs such as trade shows,
conferences and public relations activities. In addition, international sales
expenses increased due to the opening of the Company's subsidiaries in Germany
and
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<PAGE>
the United Kingdom. As a result of increased revenue, selling and marketing
expenses decreased as a percentage of revenue to 34.5% in fiscal 1996 from 44.3%
in fiscal 1995.
Research and Development. Research and development expenses consist primarily
of personnel costs as well as fees for development services provided by
independent contractors. Research and development expenses increased 46.9% in
fiscal 1996 to $3.0 million from $2.1 million in fiscal 1995. The increase in
research and development expenses in fiscal 1996 resulted primarily from
employment of additional staff and independent contractors to develop and
enhance the Company's products and provide quality assurance. Qualifying
capitalizable software development costs were immaterial in both years and,
therefore, the Company did not capitalize such costs. Research and development
expenses as a percentage of revenue decreased to 28.8% in fiscal 1996 from 44.5%
in fiscal 1995 as a result of increased revenue.
General and Administrative. General and administrative expenses consist
primarily of personnel costs for finance, administrative and general management
personnel, as well as accounting and legal expenses. General and administrative
expenses increased 29.5% in fiscal 1996 to $768,000 from $593,000 in fiscal
1995. The increase in general and administrative expenses resulted primarily
from the employment of additional staff as well as an increase in accounting and
legal expenses in support of the Company's increased level of operations. As a
result of increases in revenue, general and administrative expenses as a
percentage of revenue decreased to 7.3% in fiscal 1996 from 12.8% in fiscal
1995.
Interest Income (Expense), Net. Interest income (expense), net consists of
interest earned on cash and cash equivalents, offset by interest expense
associated with equipment financing. During fiscal 1996, the Company had net
interest income of $94,000 as compared to a net interest expense of $13,000 in
fiscal 1995. The increase in interest income is due to higher average cash
balances during fiscal 1996.
Provision for Income Taxes. The provision for income taxes decreased to
$35,000 in fiscal 1996 from $135,000 fiscal 1995. This decrease was primarily
the result of decreased revenue from one of the Company's Japanese OEM partners,
which revenue was subject to withholding taxes for sales to Japanese customers.
Net operating losses were used to offset all federal and state income taxes in
fiscal 1996 as well as fiscal 1995.
Liquidity and Capital Resources
Cash and cash equivalents at March 31, 1997 decreased $3,008,000 to
$37,951,000 from $40,959,000 at March 31, 1996. This decrease results primarily
from a net loss of $2,407,000 for fiscal 1997 as well as capital expenditures of
$1,160,000. In addition, the Company exercised its option to buyout certain of
its capital leases in fiscal year 1997 for approximately $355,000.
The Company believes its existing cash and cash equivalent balances, together
with cash flows from operations, will be sufficient to meet its cash
requirements for at least the next fiscal year.
To date, neither foreign currency exposure nor inflation has had a material
impact on the Company's financial results.
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<PAGE>
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Financial statements and supplementary data are included herein and are
indexed under Item 14 (a) (1) - (2).
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
There have been no changes in or disagreements with accountants on accounting
or financial disclosure matters in the last two years.
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
The information required by this item may be found under the sections
captioned "Election of Directors," "Occupations of Directors and Executive
Officers" and "Section 16 Reporting" in the Company's Proxy Statement (the "1997
Proxy Statement") for the Company's Annual Meeting of Stockholders to be held on
July 31, 1997, and is incorporated herein by reference. The 1997 Proxy
Statement will be filed with the Securities and Exchange Commission not later
than 120 days after the close of the Company's year ended March 31, 1997.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this item may be found under the section
captioned "Compensation and Other Information Concerning Directors and Officers"
in the 1997 Proxy Statement, and is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The information required by this item may be found under the section
captioned "Management and Principal Holders of Voting Securities" in the 1997
Proxy Statement, and is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this item may be found under the section
captioned "Certain Relationships and Related Transactions" in the 1997 Proxy
Statement, and is incorporated hereby by reference.
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<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND
REPORTS ON FORM 8-K
(a)(1) Financial Statements.
The following financial statements are filed as part of this report:
<TABLE>
<CAPTION>
Page
----
<S> <C>
Report of Independent Accountants......................................... F-1
Consolidated Balance Sheets at March 31, 1997 and 1996.................... F-2
Consolidated Statements of Operations for the years ended March 31, 1997,
1996 and 1995............................................................ F-3
Consolidated Statements of Changes in Stockholders' Equity (Deficit) for
the years ended March 31, 1997, 1996 and 1995............................ F-4
Consolidated Statements of Cash Flows for the years ended March 31, 1997,
1996 and 1995............................................................ F-5
Notes to Consolidated Financial Statements................................ F-6
</TABLE>
(a)(2) Financial Statement Schedules:
All schedules for which provisions made in the applicable accounting
regulation of the Securities and Exchange Commission are not required under the
related instructions or are inapplicable, and therefore have been omitted.
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<PAGE>
(a)(3) List of Exhibits.
The following exhibits are filed as part of and incorporated by reference
into, this Annual Report on Form 10-K:
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<C> <S>
3.1(1) Amended and Restated Certificate of Incorporation of the Company
3.2(1) Amended and Restated By-Laws of the Company
4.1(1) Specimen certificate representing the Common Stock
10.1(1)+ 1996 Stock Plan
10.2(2)+ Form of Incentive Stock Option Agreement under the 1996 Stock Plan
10.3(2)+ Form of Non-Qualified Stock Option Agreement under the 1996 Stock
Plan
10.4(1)+ 1996 Employee Stock Purchase Plan
10.5(2)+ 1996 Employee Stock Purchase Plan Enrollment Authorization Form
10.6(1)+ 1996 Non-Employee Director Stock Option Plan
10.7(2)+ Form of Non-Qualified Stock Option Agreement under the 1996 Non-
Employee Director Stock Option Plan of the Registrant
10.8(1) Registration Rights Agreement between the Company and the Preferred
Stockholders, James Carney and James Simmons, as amended as of
November 27, 1995
10.9* Master Lease Agreement between the Company and Mortimer B. Zuckerman
and Edward H. Linde, Trustees of 91 Hartwell Avenue Trust dated July
30, 1996
10.10*+ Employment Agreement between the Company and James Carney
10.11(1)+ Form of Executive Management Incentive Compensation Plan of the
Company
10.12(1) Form of Non-Competition Agreement between the Company, its executive
officers and founders
11.1* Statement re: computation of per share earnings
21.1(1) Subsidiaries of the Company
23.1* Consent of Independent Accountants (Coopers & Lybrand)
24.1* Power of Attorney (see page 22)
27.1 Financial Data Schedule
</TABLE>
- ---------
(1) Incorporated herein by reference to the exhibits to the Company's
Registration Statement on Form S-1 (File No. 333-00810).
(2) Incorporated herein by reference to the Company's Annual Report on Form
10-K for the fiscal year ended March 31, 1996.
* Filed herewith.
+ Indicates a management contract or any compensatory plan, contract or
arrangement.
(b) Reports On Form 8-K
There were no reports on Form 8-K filed by the Company for the quarter ended
March 31, 1997.
(c) Exhibits.
The Company hereby files as part of this Annual Report on Form 10-K the
exhibits listed in Item 14(a)(3) set forth above.
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<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
WORKGROUP TECHNOLOGY
CORPORATION.
Date: June 24, 1997 By: /s/ James M. Carney
----------------------------------
James M. Carney
Chief Executive Officer and Chairman
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Workgroup Technology
Corporation, hereby severally constitute and appoint James M. Carney and George
R. McHorney, and each of them singly, our true and lawful attorneys, with the
power to them and each of them singly, to sign for us and in our names in the
capacities indicated below, any amendments to this Report on Form 10-K, and
generally to do all things in our names and on our behalf in such capacities to
enable Workgroup Technology Corporation to comply with the provisions of the
Securities Exchange Act of 1934, as amended, and all the requirements of the
Securities and Exchange Commission.
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant, in the capacities indicated, on the 24th day of June, 1997.
<TABLE>
<CAPTION>
Signature Title(s)
--------- --------
<S> <C>
/s/ James M. Carney Chief Executive Officer (Principal Executive
- --------------------------- Officer) and Chairman
James M. Carney
/s/ John P. McDonough President, Chief Operating Officer and
- --------------------------- Secretary (Principal Financial Officer)
John P. McDonough
/s/ Diane M. Marcou Vice President- Finance and Administration
- --------------------------- and Treasurer (Principal Accounting Officer)
Diane M. Marcou
/s/ Stephen J. Gaal Director
- ---------------------------
Stephen J. Gaal
/s/ Ernest C. Parizeau Director
- ---------------------------
Ernest C. Parizeau
</TABLE>
-22-
<PAGE>
WORKGROUP TECHNOLOGY CORPORATION
- --------------------------------------------------------------------------------
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders of
Workgroup Technology Corporation:
We have audited the accompanying consolidated balance sheets of Workgroup
Technology Corporation as of March 31, 1997 and 1996 and the related
consolidated statements of operations, stockholders' equity (deficit) and cash
flows for each of the three years in the period ended March 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 financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Workgroup
Technology Corporation as of March 31, 1997 and 1996 and the consolidated
results of its operations and its cash flows for each of the three years in
the period ended March 31, 1997 in conformity with generally accepted
accounting principles.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
May 6, 1997
F-1
<PAGE>
WORKGROUP TECHNOLOGY CORPORATION
- --------------------------------------------------------------------------------
CONSOLIDATED BALANCE SHEETS
March 31, 1997 and 1996
(dollars in thousands)
<TABLE>
<CAPTION>
ASSETS 1997 1996
-------- --------
<S> <C> <C>
Current assets:
Cash and cash equivalents $37,951 $40,959
Accounts receivable (net of allowance of $50 in 1997) 2,179 2,075
Prepaid expenses and other current assets 294 234
------- -------
Total current assets 40,424 43,268
Property and equipment, net 1,339 761
Other assets 33 44
------- -------
Total assets $41,796 $44,073
======= =======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 660 $ 890
Accrued expenses 944 749
Accrued vacation 271 203
Accrued royalties 181 140
Capital lease obligations 14 219
Deferred revenue 1,794 1,641
------- -------
Total current liabilities 3,864 3,842
Capital lease obligations 5 116
Commitments (Note G)
Stockholders' equity:
Common stock, $.01 par value; 30,000,000 shares
authorized, 8,114,084 and 7,926,390 shares issued and
outstanding at March 31, 1997 and 1996, respectively 81 79
Additional paid-in capital 43,955 43,727
Officers' notes receivable - (7)
Cumulative translation adjustment (10) 7
Accumulated deficit (6,099) (3,692)
------- -------
Total stockholders' equity 37,927 40,114
------- -------
Total liabilities and stockholders' equity $41,796 $44,073
======= =======
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-2
<PAGE>
WORKGROUP TECHNOLOGY CORPORATION
- --------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS OF OPERATIONS
for the years ended March 31, 1997, 1996 and 1995
(in thousands, except per share data)
<TABLE>
<CAPTION>
1997 1996 1995
-------- -------- --------
<S> <C> <C> <C>
Revenue:
Software licenses $ 6,553 $ 7,661 $ 3,189
Maintenance and services 3,886 2,816 1,427
------- ------- -------
Total revenue 10,439 10,477 4,616
Cost of revenue:
Cost of software licenses 340 450 432
Cost of maintenance and services 2,130 1,233 780
------- ------- -------
Total cost of revenue 2,470 1,683 1,212
Gross profit 7,969 8,794 3,404
Operating expenses:
Selling and marketing 5,999 3,617 2,043
Research and development 4,635 3,020 2,056
General and administrative 1,621 768 593
------- ------- -------
Total operating expenses 12,255 7,405 4,692
------- ------- -------
Income (loss) from operations (4,286) 1,389 (1,289)
Interest income 1,957 130 27
Interest expense (23) (36) (40)
------- ------- -------
Income (loss) before income taxes (2,352) 1,483 (1,302)
Provision for income taxes 55 35 135
------- ------- -------
Net income (loss) $(2,407) $ 1,448 $(1,437)
======= ======= =======
Net income (loss) per common share $(0.30) $0.24 $(0.50)
======= ======= =======
Weighted average number of common and
common equivalent shares outstanding 7,994 6,011 2,855
======= ======= =======
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-3
<PAGE>
WORKGROUP TECHNOLOGY CORPORATION
- --------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
for the years ended March 31, 1997, 1996 and 1995
(in thousands)
<TABLE>
<CAPTION>
Common Stock Additional Officers' Cumulative Total
------------ Paid-In Notes Translation Accumulated Stockholders'
Shares Amount Capital Receivable Adjustment Deficit Equity (Deficit)
---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at March 31, 1994 1,709 $ 17 $ 16 $ (7) $ (3,704) $ (3,678)
Sale of stock under stock plans 13 2 2
Net loss (1,437) (1,437)
---------------------------------------------------------------------------------------------
Balance at March 31, 1995 1,722 17 17 (7) (5,140) (5,113)
Issuance of common stock 2,664 27 36,429 36,456
Conversion of preferred
stock (Note D) 3,298 33 6,857 6,890
Exercise of warrants 133 1 399 400
Sale of stock under stock plans 110 1 25 26
Foreign currency translation adjustment $ 7 7
Net income 1,448 1,488
---------------------------------------------------------------------------------------------
Balance at March 31, 1996 7,926 79 43,727 (7) 7 (3,692) 40,114
Sale of stock under stock plans 188 2 72 74
Stock option compensation 156 156
Collection of officers' notes 7 7
Foreign currency translation adjustment (17) (17)
Net loss (2,407) (2,407)
---------------------------------------------------------------------------------------------
Balance at March 31, 1997 8,114 $ 81 $43,955 $ - $ (10) $ (6,099) $37,927
=============================================================================================
</TABLE>
The accompanying notes are an integral part of the financial statements.
F-4
<PAGE>
WORKGROUP TECHNOLOGY CORPORATION
- --------------------------------------------------------------------------------
CONSOLIDATED STATEMENTS OF CASH FLOWS
for the years ended March 31, 1997, 1996 and 1995
(dollars in thousands)
<TABLE>
<CAPTION>
1997 1996 1995
---- ---- ----
<S> <C> <C> <C>
Cash flows from operating activities:
Net (loss) income $ (2,407) $ 1,448 $ (1,437)
Adjustments to reconcile net income(loss) to net cash
provided by (used in) operating activities:
Depreciation and amortization 582 399 314
Equity-based compensation 156 - -
Changes in operating assets and liabilities:
Accounts receivable (104) 437 (2,014)
Prepaid expenses and other current assets (60) (190) 59
Other assets 11 (13) (21)
Accounts payable (230) 468 131
Accrued expenses 195 381 246
Accrued vacation 68 95 36
Accrued royalties 40 40 (36)
Customer deposits - (100) 73
Deferred revenue 153 (2,349) 3,144
-------- -------- --------
Net cash provided by (used in) operating activities (1,596) 616 495
Cash flows from investing activities:
Purchases of property and equipment (1,160) (442) (32)
Cash flows from financing activities:
Proceeds from issuance of preferred stock - 2,600 83
Proceeds from issuance of bridge note - - 500
Proceeds from issuance of common stock 74 36,882 2
Proceeds from the collection of officers' notes 7 - -
Payments of capital lease obligations (316) (251) (202)
-------- -------- --------
Net cash provided by (used in) financing activities (235) 39,231 383
Effect of exchange rate changes on cash (17) 7 -
-------- -------- --------
Net increase (decrease) in cash and cash equivalents (3,008) 39,412 846
Cash and cash equivalents, beginning of year 40,959 1,547 701
-------- -------- --------
Cash and cash equivalents, end of year $ 37,951 $ 40,959 $ 1,547
======== ======== ========
Supplemental cash flow information:
Interest paid $ 23 $ 36 $ 32
Income taxes paid $ 55 $ 35 $ 135
Supplemental disclosure for non-cash transactions:
Acquisition of property and equipment
under capital lease obligations - $ 264 $ 312
Conversion of bridge note and accrued interest to
Series C convertible redeemable preferred stock - - $ 507
Conversion of preferred stock - $ 6,890 -
</TABLE>
The accompanying notes are an integral part of the financial statements
F-5
<PAGE>
WORKGROUP TECHNOLOGY CORPORATION
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
A. Nature of the Business
----------------------
Workgroup Technology Corporation (the "Company"), incorporated on May 11,
1992, provides client server software solutions which facilitate the
management of product information and work processes. The Company's product
data management software, CMS, is used by customers to enhance the management
of the product lifecycle by improving design and development processes and
the transfer of design information to manufacturing, reducing time to market
and providing more accurate and timely market feedback. CMS ensures the
capture, integrity and efficient, controlled distribution of critical product
and process information. CMS can manage any type of electronic data including
CAD models, bills of material, word processing, spreadsheet, voice video and
multimedia files.
B. Summary of Significant Accounting Policies
------------------------------------------
Principles of Consolidation
The consolidated financial statements include the accounts of the Company and
its wholly-owned subsidiaries. All significant intercompany transactions and
balances have been eliminated.
Certain amounts from prior years have been reclassified to conform to the
current year's presentation.
Revenue Recognition
Revenue is recognized from the license of software upon shipment provided
that no significant vendor or postcontract support obligations remain
outstanding and collection of the resulting receivable is deemed probable.
The estimated costs of insignificant support obligations, if any, are accrued
upon shipment. Payments received in advance for services, development or
product are initially recorded as deferred revenue. Revenue from training and
consulting is recognized as the services are performed. Maintenance and
support revenue is recognized ratably over the contract term, typically one
year.
Foreign Currency Translation
The functional currency of the Company's foreign subsidiaries is the local
currency. Assets and liabilities are translated into U.S. dollars at the
exchange rates in effect at the balance sheet date and income and expense
items are translated at the average rates for the period. The effect of such
translations are excluded from net earnings and accumulated as a separate
component of stockholders' equity. Transaction gains and losses from foreign
currency transactions have not been material to date.
Cash Equivalents
Cash equivalents consist of commercial paper and money market mutual funds
with remaining maturities at acquisition of three months or less and are
carried at cost plus accrued interest which approximates market value.
The Company has approximately $155,000 of restricted cash included in the
March 31, 1997 cash balance. This restricted cash serves as collateral for a
letter of credit obtained in fiscal year 1997 related to the Company's
property lease.
Property and Equipment
Property and equipment are stated at cost. Depreciation is provided under
the straight-line method based upon the following estimated useful lives:
Computer software 3 years
Furniture and fixtures 3 years
Equipment 3 years
Leasehold improvements Estimated useful life of the
and equipment under asset or term of the lease
capital leases whichever is shorter.
Major replacements of, or improvements to, property and equipment are
capitalized. Minor replacements, repairs and maintenance are charged to
expense as incurred. Upon retirement or sale, the cost of the assets disposed
and the related accumulated depreciation are removed from the accounts and
any resulting gain or loss is recorded in operations.
Research and Development Costs
Research and development expenditures are charged to operations as incurred.
The Company capitalizes eligible software costs incurred after technological
feasibility of the product has been established. The Company believes it has
achieved technological feasibility when the working model has been
established, which is typically demonstrated by beta shipment. Qualifying
capitalized costs for the years ended March 31, 1997, 1996 and 1995 have been
immaterial and, therefore, the Company has not capitalized such costs.
Royalty Expense
Royalty expense with respect to sales of product under royalty agreements is
recorded when the revenue is recognized.
Warranty Costs
The Company provides for warranty expenses, based on past experience, on an
accrual basis.
F-6
<PAGE>
WORKGROUP TECHNOLOGY CORPORATION
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
Income Taxes
The Company uses the asset and liability approach in its method of accounting
for income taxes which requires the recognition of deferred tax liabilities
and assets for expected future tax consequences of temporary differences
between the carrying amounts and the tax basis of assets and liabilities. A
valuation allowance against deferred tax assets is recorded if, based upon
weighted available evidence, it is more likely than not that some or all of
the deferred tax assets will not be realized.
Net Income (Loss) Per Common Share
Net income (loss) per common share on a historical basis is computed based
upon the weighted average number of common shares and common equivalent
shares (using the treasury stock method) outstanding after certain
adjustments described below. Common equivalent shares consist of common stock
options and warrants outstanding and are excluded in loss periods. In
accordance with Securities and Exchange Commission Staff Accounting Bulletin
No. 83, the common and common equivalent shares issued during the twelve-
month period prior to the initial public offering, have been included in the
calculation as if they were outstanding for all periods prior to the initial
public offering ("IPO") using the treasury stock method and the assumed IPO
price of $14.50 per share.
Supplementary net loss per common share has been computed in the same manner,
except that all outstanding shares of Redeemable Convertible Preferred Stock
converted into common stock upon the closing of the IPO are treated as having
been converted into common stock at the date of original issuance.
Net loss per common share on a supplementary basis for the year ended March
31, 1995 is $(0.27) with 5,343,000 weighted average common and common
equivalent shares outstanding.
Fully diluted net income (loss) per common share is the same as primary net
income (loss) per common share.
Risks and Uncertainties
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosures of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates and would impact future
results of operations and cash flows.
The Company invests its cash primarily in commercial paper and money market
mutual funds with a large commercial bank. The Company has not experienced
any losses to date on its invested cash.
The Company sells its product to a wide variety of customers in a variety of
industries. The Company performs ongoing credit evaluations of its customers
but does not require collateral or other security to support customer
receivables. The Company believes any credit losses will not be material.
New Accounting Standards
In February 1997, the Financial Accounting Standards Board issued SFAS 128,
"Earnings per Share," and SFAS 129, "Disclosure of Information about Capital
Structure." SFAS 128, which is effective for fiscal years ending after
December 15, 1997, including interim periods, requires the presentation of
basic and diluted earnings per share ("EPS"). Basic EPS, which replaces
primary EPS, excludes dilution and is computed by dividing income available
to common stockholders by the weighted-average number of common shares
outstanding for the period. Diluted EPS reflects the potential dilution that
could occur if securities or other contracts to issue common stock were
exercised or converted into common stock or resulted in the issuance of
common stock that then shared in the earnings of the entity. Diluted EPS is
computed similarly to fully diluted EPS under the existing rules. SFAS 128
requires restatement of all prior period EPS amounts presented after the
effective date. The Company will adopt the provisions of SFAS 128 in fiscal
1998; however, the impact of adoption has not yet been determined. SFAS 129,
which is also effective for fiscal years ending after December 15, 1997,
establishes standards for disclosing information about an entity's capital
structure. The Company will adopt the disclosure requirements of SFAS 129
during the fiscal year ending March 31, 1998.
C. Property and Equipment
----------------------
Property and equipment consisted of the following:
(in thousands)
<TABLE>
<CAPTION>
March 31,
-------------------
1997 1996
---- ----
<S> <C> <C>
Computer software $ 477 $ 311
Furniture and fixtures 79 2
Equipment 1,732 944
Leasehold improvements 96 15
------- ------
2,384 1,272
Less accumulated
depreciation and amortization (1,045) (511)
------- ------
$ 1,339 $ 761
======= ======
</TABLE>
F-7
<PAGE>
WORKGROUP TECHNOLOGY CORPORATION
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
As of March 31, 1997 and 1996, the Company had approximately $71,000 and
$632,000, respectively, of computer and office equipment, under capital
leases. Total accumulated amortization on such equipment was $54,000 and
$222,000 at March 31, 1997 and 1996, respectively.
D. Stockholders' Equity
--------------------
Initial Public Offering
On March 21, 1996, the Company completed its IPO and sold an aggregate of
2,663,668 shares of Common Stock at $15.00 per share, resulting in net
proceeds to the Company of approximately $36,500,000. In addition, upon the
closing of the IPO all issued and outstanding shares of Series A, B, C and D
Redeemable Convertible Preferred Stock were automatically converted into
3,297,566 shares of Common Stock in accordance with the underlying
agreements.
Preferred Stock
The Board of Directors was authorized upon the closing of the IPO, subject to
certain limitations prescribed by law, without further stockholder approval,
to issue from time to time up to an aggregate of 1,000,000 shares of
preferred stock in one or more series and to fix or alter the designations,
preferences, rights and any qualifications, limitations or restrictions of
the shares of each such series thereof, including the dividend rights,
dividend rates, conversion rights, voting rights, terms of redemption
(including sinking fund provisions), redemption price or prices, liquidation
preferences and the number of shares constituting any series or designation
of such series.
Common Stock
All share and per share amounts have been restated to reflect a three into
two reverse stock split of its common stock which was approved by the Board
of Directors on January 26, 1996.
In January 1996, the Company amended its Certificate of Incorporation to
increase the number of authorized shares to 30,000,000.
Stock Plans
At March 31, 1997, the Company has four stock-based compensation plans which
are described below. In October 1995, the Financial Accounting Standards
Board issued SFAS 123, "Accounting for Stock-Based Compensation." SFAS 123
requires that companies either recognize compensation expense for grants of
stock, stock options and other equity instruments based on fair value or
provide a pro forma basis disclosure of net income (loss) and earnings (loss)
per share which reflects such compensation expense in the notes to the
financial statements. The Company adopted the disclosure provisions of SFAS
123 in fiscal year 1997 and has continued to apply APB Opinion 25 and related
Interpretations in accounting for its plans. The Company recognized $156,000
of compensation cost for its fixed stock option plans and no compensation
cost for its employee stock purchase plan in fiscal year 1997. Had
compensation cost for the Company's four stock-based compensation plans been
determined based on the fair value at the grant dates for awards under those
plans consistent with the method of SFAS 123, the Company's net income (loss)
and earnings (loss) per share would have been on a pro forma basis:
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Net income (loss)
As reported $(2,407) $1,448
Pro forma $(3,020) $1,377
Net income (loss) per share
As reported $ (0.30) $ 0.24
Pro forma $ (0.38) $ 0.23
</TABLE>
For fiscal year 1997, the fair value of each option grant is estimated on the
date of grant using the Black-Scholes option-pricing model with the following
weighted-average assumptions used for grants in 1997: expected volatility of
93.5%; risk-free interest rates of 6.4%; dividend rate of zero percent; and
expected life of 5 years. Because the Company went public on March 21, 1996,
the fair value of each option grant for fiscal year 1996 is estimated on the
date of grant using the minimum value method assuming a risk-free interest
rate of 6%, an expected life of 5 years and no dividend yield or volatility.
The weighted-average fair value of options granted during fiscal year 1997
and 1996 is estimated as $7.21 and $0.78, respectively. The effects of
applying SFAS 123 in this pro-forma disclosure are not an indication of
future amounts. SFAS 123 does not apply to awards prior to 1995 and
additional awards in future years are anticipated.
Stock Option Plans
The Company has three fixed stock option plans. The 1992 and 1996 Stock
Option Plans provide for the granting of incentive stock options to employees
to purchase commons stock at not less than the fair market value per share of
common stock on the date of the grant. The Plans also provide for the
granting of nonqualified stock options, stock awards and purchase rights to
employees, consultants, directors and officers of the Company. The options
generally become exercisable ratably over four or five years from the date of
grant and expire ten years for the date of grant. The maximum number shares
for which options may be granted under 1992 Plan is 938,317. At March 31,
1997, the Board of Directors had terminated granting of options under the
1992 plan. At March 31, 1997, 2,651,792 were available for grant under the
1996 Plan.
F-8
<PAGE>
WORKGROUP TECHNOLOGY CORPORATION
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
The Company's 1996 Non-Employee Director Stock Option Plan (the "Director
Option Plan") provides for the granting of options to purchase a maximum of
100,000 shares of Common Stock of the Company to non-employee directors of
the Company. Under the Director Option Plan, each non-employee director shall
receive an option to purchase 15,000 shares of the Company's Common Stock
upon the later of (i) the effective date of an initial public offering, or
(ii) the date on which the director first is elected to the board of
Directors. Each non-employee director who is still a member of the Board of
Directors upon the full vesting of this most recently granted option under
the Director Option Plan shall receive additional options to purchase 15,000
shares of Common Stock. All options granted under the Director Option Plan
vest in twelve equal quarterly installments beginning three months from the
date of grant. All options granted under the Director Option Plan will have
an exercise price equal to the fair market value of the Common Stock on the
date of grant. The term of each option will be for a period of ten years from
the date of grant. At March 31, 1997, 70,000 shares were available for grant
under the Director Option Plan.
During fiscal year 1997, the Board of Directors approved the repricing of
certain outstanding stock options previously granted under the 1992 and 1996
Plans. Certain options outstanding at prices ranging from $8.50 to $25.75
were canceled and reissued as new grants on October 18, 1996 to reduce their
exercise price to $6.375, the fair market value of the stock on that date. A
total of 145,833 were granted under this repricing.
The following is a summary of the Company's stock option plans as of March
31, 1995, 1996 and 1997 and changes during the years ending on those dates:
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
Weighted
Number Average
of Shares Exercise Price
--------- --------------
<S> <C> <C>
Balance at March 31, 1994 439 $0.16
Granted 388 0.30
Exercised (13) 0.15
Canceled (198) 0.16
-----
Balance at March 31, 1995 616 0.25
Granted 841 2.95
Exercised (110) 0.24
Canceled (38) 0.86
-----
Balance at March 31, 1996 1,309 1.79
Granted 487 9.62
Exercised (173) 0.25
Canceled (307) 9.79
-----
Balance at March 31, 1997 1,316 $3.03
=====
<CAPTION>
Weighted
Number Average
of Shares Exercise Price
--------- --------------
<S> <C> <C>
Options exercisable, March 31
1995 94 $0.17
1996 156 0.22
1997 332 1.34
</TABLE>
The following table summarizes information about stock options outstanding at
March 31, 1997:
<TABLE>
<CAPTION>
Range of Exercise Prices
------------------------
$ 0.15- $ 4.125- $ 15.00-
$ 1.95 $ 8.50 $ 25.75
-------- -------- --------
<S> <C> <C> <C>
Options outstanding
-------------------
Number outstanding 852,263 414,637 49,625
Remaining contractual
life 8.7 9.7 9.0
Weighted average
exercise price $ 0.47 $ 6.34 $ 19.25
Options exercisable
-------------------
Number exercisable 300,471 21,421 10,000
Weighted average
exercise price $ 0.41 $ 7.99 $ 15.00
</TABLE>
Employee Stock Purchase Plan
The 1996 Employee Stock Purchase Plan provides for the issuance of up to
350,000 shares of Common Stock to eligible employees. The shares are issuable
at the lesser of 85% of the average market price on the first or last
business day of semiannual periods. During fiscal 1997, 14,660 shares were
issued under this plan. Compensation cost is recognized for the fair value of
the employees' purchase rights, which was estimated using the Black-Scholes
model with the following assumptions: dividend yield of zero percent; an
expected life of one year; expected volatility of 93.5% percent; and risk-
free interest rate of 6.4% percent. The weighted average fair value of the
purchase rights granted in fiscal 1997 was $1.81.
Warrants
In conjunction with the sale of certain demand notes subsequently exchanged
for shares of Series C Redeemable Convertible Preferred Stock, the Company
issued warrants to purchase 133,330 shares of common stock at $3.00 per
share. The warrants were exercised at the closing of the Company's IPO.
F-9
<PAGE>
WORKGROUP TECHNOLOGY CORPORATION
- --------------------------------------------------------------------------------
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS, CONTINUED
E. Benefit Plan
------------
The Company established the Workgroup Technology Corporation 401(k) Plan (the
"401(k) Plan") which provides for matching employer contributions determined
annually by the Board of Directors. There have been no matching employer
contributions made to the 401(k) Plan as of March 31, 1997.
F. Income Taxes
------------
In fiscal year 1997, the provision for income taxes reflects foreign and
state income taxes. In fiscal years 1996 and 1995, the provision for income
taxes reflects foreign taxes on royalties from customers in Japan and
Germany.
Deferred income taxes represent the tax effects of transactions which are
reported in different periods for financial and tax reporting purposes. The
components of deferred tax assets and liabilities are as follows:
(in thousands)
<TABLE>
<CAPTION>
March 31,
---------------
1997 1996
---- ----
<S> <C> <C>
Deferred tax assets:
Loss carryforward $1,723 $1,306
Research and development
credit carryforwards 612 521
Depreciation and amortization 187 94
Vacation accrual 212 73
Rent 20 -
------ ------
Gross deferred tax asset 2,754 1,994
Valuation allowance (2,754) (1,994)
------ ------
Net - -
====== ======
</TABLE>
At March 31, 1997, the Company has available net operating loss carryforwards
of $4,100,000 which it may use to offset future federal taxable income. The
net operating loss carryforwards, if not utilized, will begin to expire in
2008. The utilization of the net operating loss carryforwards and credit
carryforwards for income tax purposes may be restricted due to limitations
which arise because of a change of ownership. Additionally, the Company also
has available research and development credits of $380,000 and $352,000 for
federal and state purposes, respectively. The research and development
credits, if not utilized, will expire from 2008 through 2011. Due to the
uncertainty of the realization of deferred tax assets, a full valuation
allowance has been recorded.
G. Commitments
-----------
Lease Commitments
The Company leases the facility it occupies under a noncancelable operating
lease agreement which expires September 30, 2001. Total rent expense for the
years ended March 31, 1997, 1996 and 1995 was $457,000, $135,000 and
$105,000, respectively. The future minimum payments under such commitments as
of March 31, 1997 are as follows:
(in thousands)
<TABLE>
<CAPTION>
<S> <C>
1998 $581
1999 610
2000 639
2001 668
2002 $341
</TABLE>
Equipment Financing Arrangements
The Company has entered into various lease agreements for computer and office
equipment which have been recorded as capital leases. During fiscal year
1997, the Company exercised its option to buyout several of its existing
capital equipment leases.
H. Significant Customers
---------------------
During fiscal year 1995, the Company entered into a one-time source code
license agreement with Hitachi, Ltd. Pursuant to this agreement and related
transactions, the Company recognized revenue of $1.8 million, which
represented 17% of the total revenue for the year ended March 31, 1996.
Additionally, different customers represented 11% and 10% of total revenue
for the years ended March 31, 1997 and 1995, respectively.
The Company operates in one industry segment. Export sales for the years
ended March 31, 1997, 1996 and 1995 were approximately $1,088,000, $2,686,000
and $560,000, respectively (including $679,000, $2,024,000, and $329,000 of
sales into Japan, respectively).
I. Related Party Transactions
--------------------------
The Company recognized revenue in fiscal 1995 of $278,000 from sales to
Workgroup Solutions, Inc. Until January 1995, the president of the Company
was the Chairman and principal stockholder of Workgroup Solutions, Inc. Gross
margins on related party transactions approximated those realized on similar
transactions with unrelated parties.
F-10
<PAGE>
WORKGROUP TECHNOLOGY CORPORATION
INDEX TO EXHIBITS FILED WITH FORM 10-K
YEAR ENDED MARCH 31, 1997
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
3.1(1) Amended and Restated Certificate of Incorporation of the Company
3.2(1) Amended and Restated By-Laws of the Company
4.1(1) Specimen certificate representing the Common Stock
10.1(1)+ 1996 Stock Plan
10.2(2)+ Form of Incentive Stock Option Agreement under the 1996 Stock Plan
10.3(2)+ Form of Non-Qualified Stock Option Agreement under the 1996 Stock
Plan
10.4(1)+ 1996 Employee Stock Purchase Plan
10.5(2)+ 1996 Employee Stock Purchase Plan Enrollment Authorization Form
10.6(1)+ 1996 Non-Employee Director Stock Option Plan
10.7(2)+ Form of Non-Qualified Stock Option Agreement under the 1996 Non-
Employee Director Stock Option Plan of the Registrant
10.8(1) Registration Rights Agreement between the Company and the Preferred
Stockholders, James Carney and James Simmons, as amended as of
November 27, 1995
10.9* Master Lease Agreement between the Company and Mortimer B. Zuckerman
and Edward H. Linde, Trustees of 91 Hartwell Avenue Trust dated July
30, 1996
10.10*+ Employment Agreement between the Company and James Carney
10.11(1)+ Form of Executive Management Incentive Compensation Plan of the
Company
10.12(1) Form of Non-Competition Agreement between the Company, its executive
officers and founders
11.1* Statement re: computation of per share earnings
21.1(1) Subsidiaries of the Company
23.1* Consent of Independent Accountants (Coopers & Lybrand)
24.1* Power of Attorney (see page 22)
27.1* Financial Data Schedule
</TABLE>
(1) Incorporated herein by reference to the exhibits to the Company's
Registration Statement on Form S-1 (File No. 333-00810).
(2) Incorporated herein by reference to the Company's Annual Report on Form
10-K for the fiscal year ended March 31, 1996.
* Filed herewith.
+ Indicates a management contract or any compensatory plan, contract or
arrangement.
<PAGE>
Exhibit 10.9
NOTICE OF LEASE
---------------
LANDLORD: Mortimer B. Zuckerman and Edward H. Linde, Trustees of 91
Hartwell Avenue Trust u/d/t Trust dated September 28, 1981 and
filed with the Middlesex South Registry District of the Land
Court as Document 616455 as amended by instruments dated December
10, 1984 and April 17, 1991 respectively filed with said Registry
District as Document Nos. 675674 and 844541
TENANT: Workgroup Technology Corporation
DATE OF
EXECUTION: July 30, 1996
DESCRIPTION
OF PREMISES: 29,042 square feet on the third floor of the Building located at
91 Hartwell Avenue, Lexington, Massachusetts and situated on the
real property described in Exhibit A attached hereto.
TERM: Sixty (60) months (plus the partial month, if any, immediately
following the Commencement Date).
SCHEDULED TERM
COMMENCEMENT
DATE: September 1, 1996 (as the same may be adjusted in Sections 2.4
and 3.2 of the Lease)
RIGHTS OF RENEWAL
OR EXTENSION: Two (2) periods of three (3) years each.
<PAGE>
Exhibit 10.9
Nothing contained herein shall be deemed to modify or amend the terms and
provisions of the Lease.
Executed under seal this 30 day of July, 1996.
LANDLORD:
/s/ Edward H. Linde
-----------------------------------
Edward H. Linde, As Trustee and not
Individually
TENANT:
/s/ G. R. McHorney
-----------------------------------
Workgroup Technology Corporation
<PAGE>
Exhibit 10.9
COMMONWEALTH OF MASSACHUSETTS
County of Suffolk July 30, 1996
Then personally appeared the above-named Edward H. Linde, as Trustee as
aforesaid and acknowledged the foregoing instrument to be his free act and deed,
before me,
--------------------------------------
_______________________, Notary Public
My Commission Expires:________________
COMMONWEALTH OF MASSACHUSETTS
County of Middlesex July 30, 1996
Then personally appeared the above-named George R. McHorney, the Vice
President & Treasurer of Workgroup Technology Corporation and acknowledged the
foregoing instrument to be the free act and deed of said Workgroup Technology
Corporation, before me,
--------------------------------------
_______________________, Notary Public
My Commission Expires:________________
<PAGE>
Exhibit 10.9
91 HARTWELL AVENUE
LEXINGTON, MASSACHUSETTS
LEASE DATED JULY 30, 1996
THIS INSTRUMENT IS AN INDENTURE OF LEASE in which the Landlord and the
Tenant are the parties hereinafter named, and which relates to space in a
certain building (the "Building") known as, and with an address at, 91 Hartwell
Avenue, Lexington, Massachusetts.
The parties to this Indenture of Lease hereby agree with each other as
follows:
ARTICLE I
---------
REFERENCE DATA
--------------
1.1 Subjects Referred To:
Each reference in this Lease to any of the following subjects shall be
construed to incorporate the data stated for that subject in this Article:
LANDLORD: Mortimer B. Zuckerman and Edward H. Linde,
Trustees of 91 Hartwell Avenue Trust under
Declaration of Trust dated September 28,
1981 filed with the Middlesex South Registry
District as Document No. 616455 as amended
by instruments dated December 10, 1984 and
April 17, 1991 respectively filed with said
Registry District as Document Nos. 675674
and 844541 but not individually.
LANDLORD'S ORIGINAL
ADDRESS: c/o Boston Properties, Inc.
8 Arlington Street
Boston, Massachusetts 02116
LANDLORD'S CONSTRUCTION
REPRESENTATIVE: Stacey Baker
<PAGE>
Exhibit 10.9
TENANT: Workgroup Technology Corporation, a
Delaware corporation.
TENANT'S ORIGINAL
ADDRESS: 81 Hartwell Avenue
Lexington, Massachusetts 02173
TENANT'S CONSTRUCTION
REPRESENTATIVE: George McHorney
SPECIAL ALLOWANCE: As set forth in Section 3.1 (B) hereof.
SCHEDULED TERM
COMMENCEMENT DATE: September 13, 1996
COMMENCEMENT DATE: As defined in Sections 2.4 and 3.2
RENT COMMENCEMENT
DATE: The fourteenth (14th) day immediately
following the Commencement Date.
OUTSIDE COMPLETION
DATE: October 15, 1996
ORIGINAL TERM: Sixty (60) calendar months (plus the partial
month, if any, immediately following the
Commencement Date), unless extended or
sooner terminated as provided in this Lease.
EXTENSION OPTIONS: Two (2) periods of three (3) years each as
provided in and on the terms set forth in
Section 2.4.1 hereof.
TERM OR LEASE TERM: All references in this Lease to the Term or
Lease Term shall mean the Original Term and
if extended pursuant to Section 2.4.1, the
Original Term as extended by the exercise of
the applicable extension option(s) unless
otherwise specifically provided in this
Lease.
THE SITE: That certain parcel of land known as and
numbered 91 Hartwell Avenue, Lexington,
Middlesex County, Massachusetts, being more
particularly described in Exhibit A attached
hereto.
THE BUILDING: The Building known as and numbered
<PAGE>
Exhibit 10.9
91 Hartwell Avenue, Lexington,
Massachusetts. The Building is appropriately
labeled on Exhibit A-1 attached hereto and
hereby made a part hereof.
THE COMPLEX: The Building together with all surface
parking areas, the Site and all improvements
(including landscaping) thereon and thereto.
TENANT'S SPACE: A portion of the third (3rd) floor of the
Building in accordance with the floor plan
attached hereto as Exhibit D and
incorporated herein by reference.
NUMBER OF PARKING SPACES: One Hundred Five (105) spaces as same may
increase pursuant to Sections 2.2 or 2.2.1
hereof.
ANNUAL FIXED RENT: (a) During the Original Term of this
Lease at the following annual rates:
(i) For the period beginning on
the Rent Commencement Date and
continuing through the last
day of the twelfth (12th) full
calendar month of the Original
Term, at the annual rate of
$566,319.00 (being the product
of (x) $19.50 and (y) the
"Rentable Floor Area of the
Premises" (hereinafter defined
in this Section 1.1); and
(ii) For the period beginning on
the first (1st) day of the
thirteenth (13th) full
calendar month of the Original
Term and continuing through
the
-6-
<PAGE>
Exhibit 10.9
last day of the twenty fourth
(24th) full calendar month of
the Original Term, at the
annual rate of $595,361.00
(being the product of (x)
$20.50 and (y) the Rentable
Floor Area of the Premises;
and
(iii) For the period beginning on
the first day of the twenty
fifth (25th) full calendar
month of the Original Term and
continuing through the last
day of the thirty sixth (36th)
full calendar month of the
Original Term, at the annual
rate of $624,403.00 (being the
product of (x) $21.50 and (y)
the Rentable Floor Area of the
Premises); and
(iv) For the period beginning on
the first day of the thirty
seventh (37th) full calendar
month of the Original Term and
continuing through the last
day of the forty eighth (48th)
full calendar month of the
Original Term, at the annual
rate of $653,445.00 (being the
product of (x) $22.50 and (y)
the Rentable Floor Area of the
Premises).
(v) For the period beginning on
the first day of the forty
ninth (49th) full calendar
month of the Original Term and
-7-
<PAGE>
Exhibit 10.9
continuing through the
remainder of the Original
Term, at the annual rate of
$682,487.00 (being the product
of (x) $23.50 and (y) the
Rentable Floor Area of the
Premises).
(b) During the extension option periods
(if exercised), as determined
pursuant to Section 2.4.1.
OPERATING EXPENSES: As provided in Section 2.6 hereof.
REAL ESTATE TAXES: As provided in Section 2.7 hereof.
TENANT ELECTRICITY: Initially as provided in Section 2.5 subject
to adjustment as provided in Section 2.8
hereof.
ADDITIONAL RENT: All charges and other sums payable by Tenant
as set forth in this Lease, in addition to
Annual Fixed Rent.
RENTABLE FLOOR AREA 29,042 square feet.
OF TENANT'S SPACE
(SOMETIMES ALSO
CALLED RENTABLE FLOOR
AREA OF THE PREMISES):
TOTAL RENTABLE FLOOR 122,328 square feet.
AREA OF THE BUILDING
(ALSO CALLED RENTABLE
FLOOR AREA OF THE BUILDING):
PERMITTED USES: General office purposes.
INITIAL MINIMUM $2,000,000.00 combined single
-8-
<PAGE>
Exhibit 10.9
LIMITS OF TENANT'S limit per occurrence on a per location
COMMERCIAL GENERAL basis.
LIABILITY INSURANCE:
LEGAL REQUIREMENTS: All applicable laws, by-laws, rules,
regulations, requirements, statutes and
court decisions of all federal, state,
county, municipal and other governmental
authorities, departments, boards, agencies,
commissions and other instrumentalities now
or from time to time hereinafter in effect.
INSURANCE REQUIREMENTS: The requirements of all insurers of the
Building, Site or both now or from time to
time hereafter in effect.
RECOGNIZED BROKERS: Spaulding & Slye
125 High Street
Boston, Massachusetts 02110
And
Fallon, Hines & O'Connor, Inc.
One Post Office Square
Boston, Massachusetts 02109
SECURITY DEPOSIT: $155,375.00
1.2 Exhibits. There are incorporated as part of this Lease:
EXHIBIT A Description of Site
EXHIBIT A-1 Site Plan
EXHIBIT B Description of Base Building Work
EXHIBIT B-1 Tenant's Construction Plans
EXHIBT B-2 Tenant Extras
EXHIBIT C Landlord's Services
-9-
<PAGE>
Exhibit 10.9
EXHIBIT D Floor Plan
EXHIBIT E Form of Commencement Date
Agreement
EXHIBIT F Plan of Refusal/Offer Space
EXHIBIT G Broker Determination of
Prevailing Market Rent
EXHIBIT H Subordination Non-disturbance and Attornment
Agreement with Existing Mortgagee
1.3 Table of Articles and Sections
ARTICLE I-REFERENCE DATA
1.1 Subjects Referred to
1.2 Exhibits
1.3 Table of Articles and Sections
ARTICLE II-THE BUILDING, PREMISES, TERM AND RENT
2.1 The Premises
2.1.1 Rights To Use Common Facilities
2.1.2 Tenant's Parking
2.1.3 Visitor Parking
2.1.4 Rules and Regulations
2.2 Right of First Refusal
-10-
<PAGE>
Exhibit 10.9
2.2.1 Right of First Offer
2.3 Landlord's Reservations
2.4 Original Term
2.4.1 Extension Options
2.5 Monthly Fixed Rent Payments
2.6 Adjustment for Operating Expenses
2.7 Adjustment for Real Estate Taxes
2.8 Adjustment for Tenant Electricity
ARTICLE III-CONSTRUCTION
3.1 Landlord's Construction Work
3.2 Landlord's and Tenant's Work; Delays
3.3 Alterations and Additions
3.4 General Provisions Applicable to Construction
ARTICLE IV-LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
4.1 Landlord's Covenants
4.1.1 Services Furnished by Landlord
4.1.2 Additional Services Available to Tenant
4.1.3 Roof, Exterior Wall, Floor Slab and Common Facility Repairs
4.1.4 Door Signs
-11-
<PAGE>
Exhibit 10.9
4.2 Interruptions and Delays in Services and Repairs, etc.
4.3 Landlord's Insurance
4.4 Landlord's Hazardous Materials Indemnity
ARTICLE V-TENANT'S COVENANTS
5.1 Payments
5.2 Repair and Yield Up
5.3 Use
5.4 Obstructions; Items Visible From Exterior; Rules and Regulations
5.5 Safety Appliances; Licenses
5.6 Assignment; Sublease
5.7 Tenant's Indemnity and Insurance; and Landlord's Indemnity
5.8 Personal Property at Tenant's Risk
5.9 Right of Entry
5.10 Floor Load; Prevention of Vibration and Noise
5.11 Personal Property Taxes
5.12 Compliance with Laws
5.13 Payment of Litigation Expenses
ARTICLE VI-CASUALTY AND TAKING
6.1 Fire and Casualty-Termination or Restoration; Rent Adjustment
-12-
<PAGE>
Exhibit 10.9
6.2 Uninsured Casualty
6.3 Eminent Domain-Termination or Restoration
6.4 Eminent Domain Damages Reserved
ARTICLE VII-DEFAULT
7.1 Tenant's Default
7.2 Landlord's Default
ARTICLE VIII-MISCELLANEOUS PROVISIONS
8.1 Extra Hazardous Use
8.2 Waiver
8.3 Cumulative Remedies
8.4 Quiet Enjoyment
8.5 Notice To Mortgagee and Ground Lessor
8.6 Assignment of Rents
8.7 Surrender
8.8 Brokerage
8.9 Invalidity of Particular Provisions
8.10 Provisions Binding, Etc.
8.11 Recording
8.12 Notices
-13-
<PAGE>
Exhibit 10.9
8.13 When Lease Becomes Binding
8.14 Section Headings
8.15 Rights of Mortgagee
8.16 Status Report and Financial Statements
8.17 Self-Help
8.18 Holding Over
8.19 Non-Subrogation
8.20 Security Deposit
8.21 Late Payment
8.22 Signage
8.23 Cafeteria
8.24 Governing Law
ARTICLE II
----------
BUILDING, PREMISES, TERM AND RENT
---------------------------------
2.1 Landlord hereby demises and leases to Tenant, and Tenant hereby hires and
accepts from Landlord, Tenant's Space in the Building excluding exterior
faces of exterior walls, the common stairways and stairwells, elevators and
elevator wells, fan rooms, electric and telephone closets, janitor closets,
and pipes, ducts, conduits, wires and appurtenant fixtures serving
exclusively, or in common, other parts of the Building, and if Tenant's
Space includes less than the entire rentable area of any floor, excluding
the common corridors, elevator lobbies and toilets located on such floor.
Tenant's Space with such exclusions is hereinafter referred to as the
"Premises". The term "Building" means the Building identified on the first
page, and which is the subject of this Lease; the term "Site" means all,
and also any part of the Land described in Exhibit
-14-
<PAGE>
Exhibit 10.9
A, plus any additions or reductions thereto resulting from the change of
any abutting street line and all parking areas and structures. The term
"Property" means the Building and the Site.
2.1.1 Tenant shall have, as appurtenant to the Premises, the non-exclusive
right to use in common with others, subject to reasonable rules and
regulations of general applicability to tenants of the Building from time
to time made by Landlord of which Tenant is given written notice (a) the
common lobbies, corridors, stairways, elevators and loading area of the
Building, and the pipes, ducts, conduits, wires and appurtenant meters
and equipment serving the Premises in common with others, (b) common
walkways and driveways necessary for access to the Building, (c) if the
Premises include less than the entire rentable floor area of any floor,
the common toilets, corridors and elevator lobby of such floor and (d)
the cafeteria, and showers and lockers.
2.1.2 (A) In addition, Tenant shall have the right to use the Number of
Parking Spaces (referred to in Section 1.1) of the parking area, in
common with use by other tenants from time to time of the Complex;
provided, however, Landlord shall not be obligated to furnish stalls or
spaces in any parking area specifically designated for Tenant's use.
Landlord represents that as of the date of this Lease the total number of
parking spaces located on the Site is not less than 427 spaces.
(B) Tenant covenants and agrees that it and all persons claiming by,
through and under it, shall at all times abide by all reasonable rules
and regulations promulgated by Landlord with respect to the use of the
parking areas on the Site. The parking privileges granted herein are non-
transferrable except to a permitted assignee or subtenant as provided in
Section 5.6 through Section 5.6.6. Further, Landlord assumes no
responsibility whatsoever for loss or damage due to fire, theft or
otherwise to any automobile(s) parked on the Site or to any personal
property therein, however caused, and Tenant covenants and agrees, upon
request from Landlord from time to time, to notify its officers,
employees, agents and invitees of such limitation of liability. Tenant
acknowledges and agrees that a license only is hereby granted, and no
bailment is intended or shall be created.
2.1.3 Landlord agrees to designate and appropriately mark a limited area within
the parking area on the Site for visitor parking, the size, number of
spaces and location of which shall be in Landlord's sole discretion. Such
visitor parking shall be available for use by visitors to all tenants,
subtenants and occupants of the Building (including Tenant) on a first
come first served basis and shall not be exclusively for use by visitors
---
to Tenant. Tenant acknowledges and agrees that Landlord shall have no
obligation to police the use of such visitor parking area and the use
thereof by Tenant shall be subject to the
-15-
<PAGE>
Exhibit 10.9
conditions and requirements set forth in Section 2.1.2(B) including,
without limitation, the applicability to Tenant and its visitors of rules
and regulations from time to time promulgated by Landlord.
2.1.4 As of the date of this Lease, Landlord has not promulgated any such rules
and/or any regulations under Section 2.1.1, 2.1.2 or 2.1.3. With respect
to any such rules or regulations hereafter promulgated (which Landlord
shall give written notice to Tenant of), Landlord shall use reasonable
efforts to enforce such rules and regulations among the tenants in the
Building in a non-discriminatory manner; provided, however, that failure
to enforce such rules and regulations shall not give rise to any right of
Tenant to terminate this Lease or to withhold, deduct or offset from or
against Annual Fixed Rent or any Additional Rent.
2.2 (A) This Section applies to that portion of the third (3rd) floor of the
Building shown on Exhibit F as the "Refusal/Offer Space". Subject to the
provisions of this Section 2.1.1, Landlord agrees that if at any time
Landlord shall have negotiated terms with a prospective tenant upon which
terms Landlord is prepared to enter into a letter of intent or similar
document with said tenant respecting the leasing of all or any portion of
the Refusal/Offer Space ("Third Party Terms"), then Landlord shall first
give notice thereof to Tenant, provided that, as of the date Landlord
negotiates the Third Party Terms, (i) there exists no "Event of Default"
(as defined in Section 7.1), (ii) this Lease is still in full force and
effect and (iii) Tenant has not assigned this Lease nor sublet more than
twenty five percent (25%) of the Rentable Floor Area of the Premises in
the aggregate (not including any assignment or subleasing under Section
5.6.1). Said notice shall consist of a listing of the Third Party Terms
and two counterpart originals of a commitment to enter into an amendment
to this Lease to incorporate the entire space which is the subject of the
Third Party Terms (the "Applicable Additional Space") into the Premises
demised under this Lease upon the terms and conditions of the Third Party
Terms; except, however, that (i) the lease term as to the Applicable
Additional Space shall be co-terminus with the balance of the Original
Term of this Lease; (ii) the extension options referred to in Section 1.1
and as set forth in Section 2.4.1 shall apply to all of the premises
leased by Tenant (that is, the original Premises leased pursuant to this
Lease and all Applicable Additional Space from time to time leased
pursuant to this Section 2.1.1) and (iii) the extension options must be
exercised as to all of such premises and may not be exercised as to one
---
(but not all) of the original Premises or any Applicable Additional Space
(collectively, including the Third Party Terms, the "Landlord's Submitted
Offer"). In no event shall the Applicable Additional Space include or
consist of more than the Refusal/Offer Space.
(B) Tenant shall have the right to accept Landlord's Submitted Offer by
executing
-16-
<PAGE>
Exhibit 10.9
such two (2) counterpart original commitments to enter into such lease
amendment and delivering to Landlord the same within five (5) business
days after its receipt of Landlord's Submitted Offer. Within fifteen (15)
business days after Landlord's receipt of such accepted commitment,
Landlord shall deliver to Tenant two (2) counterpart originals of an
amendment to this Lease to incorporate the space subject to the
Landlord's Submitted Offer into the Premises demised under this Lease
upon the terms and conditions of such accepted commitment. Within fifteen
(15) business days after Tenant's receipt of such amendment Tenant shall
execute both counterpart originals of such amendment provided that such
amendment is reasonably acceptable to both Landlord and Tenant and shall
deliver the same to Landlord along with appropriate evidence of the
authority of Tenant to enter into the transaction. If Tenant shall duly
and timely comply with the foregoing, Landlord shall execute the two (2)
counterpart original amendments and shall promptly return one (1) fully
executed counterpart to Tenant together with appropriate evidence of the
authority of Landlord to enter into the transaction.
(C) If, at the expiration of five (5) business days after Tenant's
receipt of Landlord's Submitted Offer, Tenant shall not have accepted
Landlord's Submitted Offer by entering into such commitment and
delivering the same to Landlord, or if Tenant shall so execute and
deliver such commitment but at the end of fifteen (15) business days
after Tenant's receipt of such lease amendment Tenant has not entered
into such lease amendment reasonably acceptable to both parties and
delivered the same to Landlord as set forth in subparagraph (B) above,
time being of the essence in respect to all of the same, Landlord shall
be free at any time thereafter to enter into a lease of the Applicable
Additional Space subject to the Landlord's Submitted Offer with another
prospective tenant upon terms and conditions not materially less
favorable to Landlord than those set forth in the Third Party Terms
provided that Landlord shall re-offer such Applicable Additional Space to
Tenant in accordance with and subject to the terms of this Section prior
to leasing such Applicable Additional Space upon terms materially less
favorable to Landlord than those set forth in the Third Party Terms.
(D) If Tenant shall lease Applicable Additional Space pursuant to this
Section 2.2.1, Tenant's parking rights under this Lease shall be
increased on the basis of 3.5 parking spaces for each 1,000 square feet
of rentable floor area of the Applicable Additional Space.
(E) Notwithstanding anything hereinabove set forth, this Section 2.2.1
and Tenant's rights hereunder shall cease and expire on December 31,
1996, time being of the essence.
2.2.1 (A) The portion of the Refusal/Offer Space which has not been leased by
---
Tenant
-17-
<PAGE>
Exhibit 10.9
pursuant to Section 2.2 is hereinafter called the "Offer Space". The
"Existing Leases" are those leases (including, without limitation, the
original lease terms thereof, extension options, amendments thereto but
specifically excluding any and all expansion rights) of all or portions
of the Offer Space entered into with tenants (the "Existing Tenants")
upon Tenant's failure to lease space pursuant to Section 2.2. This
Section 2.2.1 shall apply to the Offer Space but only upon the terms and
conditions hereinafter set forth. Subject to the Existing Leases and the
rights of the Existing Tenants thereunder, which rights are hereby made
prior to the rights of Tenant under this Section 2.2.1, notwithstanding
that the Existing Leases may have been executed subsequent to the date of
this Lease, and subject to the terms of this Section 2.2.1, Landlord
agrees not to enter into a lease or leases to relet space within the
Offer Space without first giving to Tenant an opportunity to lease such
space as hereinafter set forth, provided that at any time any portion of
the Offer Space becomes so available hereunder for reletting (i) there
exists no Event of Default, (ii) this Lease is still in full force and
effect, (iii) Tenant has not assigned nor sublet more than twenty five
percent (25%) of the Rentable Floor Area of the Premises in the aggregate
(not including any assignment or subleasing under Section 5.6.1).
(B) When any such space becomes available for reletting upon the
foregoing conditions, Landlord shall notify Tenant of the availability of
such space and shall advise Tenant of the then fair market rent and
business terms reasonably determined by Landlord upon which Landlord is
willing so to lease such space. If Tenant wishes to exercise Tenant's
right of first offer, Tenant shall do so, if at all, by giving Landlord
notice of Tenant's desire to lease the entire amount of such space (it
being agreed that Tenant has no right to lease less than the entire
amount of the space which is so available) on such terms (reasonably
acceptable to both Landlord and Tenant) within ten (10) business days
after Tenant's receipt of Landlord's notice to Tenant of the availability
of such space and of such terms. If Tenant shall give such notice, the
same shall constitute an agreement to enter into an amendment to this
Lease within fifteen (15) business days following Tenant's acceptance to
incorporate such space into the Premises upon the terms set forth in
Landlord's notice. If Tenant shall not so exercise such right within such
period or if Tenant shall timely give an acceptance to Landlord but shall
not enter into such an amendment to this Lease within said fifteen (15)
business day period ( time being of the essence in respect of such
exercise and execution), Landlord shall be free at any time thereafter to
enter into a lease of such space with another prospective tenant upon
terms as determined by Landlord; provided , however, that if Landlord
shall determine to lease such space to another tenant at a rental rate
which is materially below the then fair market rental rate, Landlord
shall first reoffer such space to Tenant upon the terms and conditions
determined by Landlord which shall include such then below fair market
rental rate. Any such leases so entered into (including, but not limited
to, the original lease terms thereof, extension options, amendments
thereto and expansion rights) are hereinafter called the
-18-
<PAGE>
Exhibit 10.9
"Subsequent Leases" and the tenants thereunder are hereinafter called the
"Subsequent Tenants". Subject to the Subsequent Leases and the rights of
the Subsequent Tenants thereunder, Landlord agrees not to enter into a
lease or leases to relet the space which is the subject of a Subsequent
Lease without first giving Tenant an opportunity to lease such space upon
the terms and conditions set forth in this Section 2.1.2.
(C) If Tenant shall exercise any such right of first offer and if,
thereafter, the then occupant of the premises with respect to which
Tenant shall have so exercised such right wrongfully fails to deliver
possession of such premises at the time when its tenancy is scheduled to
expire, Landlord shall use all reasonable efforts and due diligence
(which shall be limited to the commencement and prosecution thereafter of
eviction proceedings and to the payment of legal fees and other expenses
reasonably associated with such proceedings but which shall not require
the taking of any appeal) to evict such occupant from the Offer Space and
to deliver possession of the Offer Space to Tenant as soon as may be
practicable. Commencement of the term of Tenant's occupancy and lease of
such additional space and all obligations of Tenant with respect to such
Offer Space (including, without limitation, rental and additional rent
obligations as to such Offer Space) shall, in the event of such holding
over by such occupant, be deferred until possession of the additional
space is delivered to Tenant. The failure of the then occupant of such
premises to so vacate shall not give Tenant any right to terminate this
Lease or to deduct from, offset against or withhold Annual Fixed Rent,
Additional Rent or other charges due under this Lease (or any portions
thereof) except only as specifically provided in the immediately
preceding sentence.
(D) If Tenant shall lease additional space in the Building pursuant to
this Section 2.1.2, Tenant's parking rights under this Lease shall be
increased on the basis of 3.5 parking spaces for each 1,000 square feet
of rentable floor area of such additional space.
2.3 Landlord reserves the right from time to time upon reasonable advance
notice which may be given orally (except that (i) such oral notice shall
be followed by written notice given by Landlord within three (3) business
days thereafter and (ii) in the case of emergencies no notice shall be
required to Tenant) and subject to Tenant's reasonably security practice
of which Landlord is given prior notice (except in the case of
emergencies) and without unreasonable interference with Tenant's use: (a)
to 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, wherever located in the
Premises or Building, provided that the same shall not result in a
reduction of the Rentable Floor Area of the Premises which has a material
and adverse affect on Tenant's use of the Premises. In the case of any
such non-material and non-adverse reduction in the Rentable Floor
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<PAGE>
Exhibit 10.9
Area of the Premises Landlord shall make a suitable adjustment thereto
(including, without limitation, the Annual Fixed Rent and Additional
Rent) and (b) to alter or relocate any other common facility, provided
that substitutions are substantially equivalent or better. Installations,
replacements and relocations referred to in clause (a) above shall be
located so far as practicable in the central core area of the Building,
above ceiling surfaces, below floor surfaces or within perimeter walls of
the Premises.
2.4 Tenant shall have and hold the Premises for a period commencing on the
earlier of (a) that date on which the Premises are "ready for occupancy"
as that term is defined in Section 3.2 provided, or (b) that date on
which Tenant commences occupancy of any portion of the Premises for the
Permitted Uses (the "Commencement Date"), and continuing for the Term
unless sooner terminated as provided in Article VI or Article VII or
unless extended as provided in Section 2.4.1.
As soon as may be convenient after the date has been determined on which
the Term commences as aforesaid, Landlord and Tenant agree to join with
each other in the execution of a written Declaration, in the form of
Exhibit E, in which the date on which the Term commences as aforesaid and
the Term of this Lease shall be stated. If Tenant shall fail to execute
such Declaration, the Commencement Date and Lease Term shall be as
reasonably determined by Landlord in accordance with the terms of this
Lease.
2.4.1 (A) Provided that at the time of exercise of the then applicable option
to extend and at the commencement date of the then applicable extension
option period (i) there exists no Event of Default (defined in Section
7.1), (ii) this Lease is still in full force and effect, and (iii) Tenant
has neither assigned this Lease nor sublet fifty percent (50%) or more of
the Rentable Floor Area of the Premises in the aggregate (except for an
assignment or subletting permitted under Section 5.6.1 hereof), Tenant
shall have the right to extend the Term hereof upon all the same terms,
conditions, covenants and agreements herein contained (except for the
Annual Fixed Rent which shall be adjusted during the option periods as
hereinbelow set forth) for two (2) successive periods of three (3) years
each as hereinafter set forth. Each option period is sometimes herein
referred to as an "Extended Term".
(B)(i) If Tenant desires to exercise the then applicable option to extend
the Term, then Tenant shall give notice to Landlord, not earlier than
fifteen (15) months nor later than ten (10) months prior to the
expiration of the Term as it may have been previously extended hereunder
of Tenant's request for Landlord's quotation of a proposed annual fixed
rent for the then applicable Extended Term. If at the expiration of
thirty (30) days after the date when Landlord receives Tenant's written
request as aforesaid (the "Negotiation Period"), Landlord and Tenant have
not reached agreement on a
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<PAGE>
Exhibit 10.9
determination of an annual fixed rent for the then applicable Extended
Term and executed a written instrument extending the Term of this Lease
pursuant to such agreement, then Tenant shall have the right, for thirty
(30) days following the expiration of the Negotiation Period, to make a
request to Landlord for a broker determination (the "Broker
Determination") of the Prevailing Market Rent (as defined in Exhibit G)
for the applicable Extended Term, which Broker Determination shall be
made in the manner set forth in Exhibit G.
(B)(ii) If Tenant timely shall have requested the Broker Determination,
then in order to exercise its right to extend the Term of this Lease for
the then applicable Extended Term, Tenant, within fifteen (15) days after
receipt of the Broker Determination, shall give written notice to
Landlord of Tenant's exercise of its right to extend the Lease Term for
the then applicable Extended Term pursuant to this subsection
2.4.1(B)(ii), in which case (x) the Annual Fixed Rent for the first
Extended Term shall be the greater of (a) ninety five percent of the
Prevailing Market Rent as determined by the Broker Determination for such
Extended Term or (b) at the annual rate equal to the product of (i)
$21.50 and (ii) the Rentable Floor Area of the Premises and (y) the
Annual Fixed Rent for the second Extended Term shall be the greater of
(a) ninety-five percent (95%) of the Prevailing Market Rent as determined
by the Broker Determination for such Extended Term or (b) (i) the Annual
Fixed Rent for the last twelve (12) months of the first Extended Term if
the Annual Fixed Rent for such first Extended Term is fixed and constant
or (b) (ii) the average Annual Fixed Rent during the first Extended Term
if the Annual Fixed Rent for such first Extended Term is not fixed and
constant. Upon the giving of notice by Tenant within said fifteen (15)
day period as provided in this subsection (B)(ii) then this Lease and
Lease Term hereof shall be extended for the applicable Extended Term upon
all of the same terms, conditions, covenants and agreements contained in
this Lease except that the Annual Fixed Rent for the applicable Extended
Term shall be the rent determined as described in this subparagraph.
(C) Upon the giving of notice by Tenant to Landlord exercising
Tenant's then applicable option to extend the Lease Term in accordance
with the provisions of either subsection (B)(i) or (B)(ii) above, this
Lease and the Lease Term hereof shall be extended, for the applicable
Extended Term, without the necessity for the execution of any additional
documents, except that Landlord and Tenant agree to enter into an
instrument in writing setting forth the Annual Fixed Rent for the then
applicable Extended Term but the failure to so enter into such a written
instrument shall not negate the exercise of the applicable option to
extend. Notwithstanding anything herein contained to the contrary, in no
event shall Tenant have the right to exercise more than one extension
option at a time and, further, Tenant shall not have the right to
exercise its second extension option unless it has duly exercised its
first extension option and in no
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<PAGE>
Exhibit 10.9
event shall the Lease Term hereof be extended for more than six (6) years
after the expiration of the Original Term hereof.
2.5 Tenant agrees to pay to Landlord, or as directed by Landlord, at
Landlord's Original Address specified in Section 1.1 hereof, or at such
other place as Landlord shall from time to time designate by notice in
writing to Tenant, (1) (a) on the Rent Commencement Date (defined in
Section 1.1 hereof) and thereafter monthly, in advance, on the first day
of each and every calendar month during the Original Term, a sum equal to
one twelfth (1/12th) of the applicable Annual Fixed Rent (sometimes
hereinafter referred to as "fixed rent") and (1) (b) on the Rent
Commencement Date and thereafter monthly, in advance, on the first day of
each and every calendar month during the Original Term, a sum equal to
one twelfth (1/12th) of $0.85 per annum for each square foot of Rentable
Floor Area of Tenant's Space for tenant electricity subject to escalation
as provided in Section 2.8 and (2) on the first day of each and every
calendar month during each extension option period (if exercised), a sum
equal to (a) one twelfth (1/12th) of the applicable annual fixed rent as
determined in Section 2.4.1 for the applicable extension option period
plus (b) then applicable monthly electricity charges (subject to
escalation for electricity as provided in Section 2.8 hereof). Until
written notice of some other designation is given, fixed rent and all
other charges for which provision is herein made shall be paid by
remittance to or for the order of Boston Properties, Inc., Agents, at 8
Arlington Street, Boston, Massachusetts 02116, and all remittances
received by Boston Properties, Inc., as Agents as aforesaid, or by any
subsequently designated recipient, shall be treated as payment to
Landlord.
Annual Fixed Rent for any partial month shall be paid by Tenant to
Landlord at such rate on a pro rata basis, and, if the Rent Commencement
Date is a day other than the first day of a calendar month, the first
payment which Tenant shall make to Landlord shall be a payment equal to a
proportionate part of such monthly Annual Fixed Rent for the partial
month from the Rent Commencement Date to the first day of the succeeding
calendar month.
Other charges payable by Tenant on a monthly basis, as hereinafter
provided, likewise shall be prorated, and the first payment on account
thereof shall be determined in similar fashion but shall commence on the
Rent Commencement Date; and other provisions of this Lease calling for
monthly payments shall be read as incorporating this undertaking by
Tenant.
Notwithstanding that the payment of Annual Fixed Rent and all Additional
Rent and other charges payable by Tenant to Landlord shall not commence
until the Rent Commencement Date, Tenant shall be subject to, and shall
comply with, all other
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<PAGE>
Exhibit 10.9
provisions of this Lease as and at the times provided in this Lease.
The Annual Fixed Rent and all other charges for which provision is herein
made shall be paid by Tenant to Landlord, without offset, deduction or
abatement except as otherwise specifically set forth in this Lease.
2.6 "Landlord's Operating Expenses" means the cost of operation of the
Building and the Site which shall exclude costs of special services
rendered to tenants (including Tenant) for which a separate charge is
made, but shall include, without limitation, the following: premiums for
insurance carried with respect to the Building and the Site (including,
without limitation, liability insurance, insurance against loss in case
of fire or casualty and insurance of monthly installments of fixed rent
and any Additional Rent which may be due under this Lease and other
leases of space in the Building for not more than 12 months in the case
of both fixed rent and Additional Rent and if there be any first mortgage
of the Property, including such insurance as may be required by the
holder of such first mortgage); compensation and all fringe benefits,
workmen's compensation insurance premiums and payroll taxes paid to, for
or with respect to all persons directly engaged in the operating,
maintaining or cleaning of the Building or Site, water, sewer,
electricity (for lighting of the Site, to power the heating ventilating
and air-conditioning system and for other common areas), gas, oil and
telephone charges (excluding utility charges separately chargeable to
tenants for additional or special services); cost of building and
cleaning supplies and equipment; cost of maintenance, cleaning and
repairs (other than repairs not properly chargeable against income or
reimbursed from contractors under guarantees); cost of snow removal and
care of landscaping; payments under service contracts with independent
contractors; management fees at rates competitive with other first class
office building properties in the Route 128 West and Northwest Suburban
Market based on and consistent with the type of occupancy and the
services rendered; (Tenant acknowledging and agreeing to Landlord's
current management fee rates of 3.5% of the total scheduled fixed and
additional rents for the Building); the "Cafeteria Operating Expenses"
(defined in Section 8.23 hereof; provided, however, that with respect to
the Cafeteria, there shall be no duplication of expenses included in
Operating Expenses and Cafeteria Operating Expenses, the intent being
that a given expense with regard to the Cafeteria only be included once
in Operating Expenses for the applicable year or other period); and all
other reasonable and necessary expenses paid in connection with the
operation, cleaning and maintenance of the Building and the Site and
properly chargeable against income in accordance with generally accepted
accounting practices as used in the real estate industry consistently
applied, provided, however, there shall be included (a) depreciation for
capital expenditures made by Landlord (i) to reduce operating expenses if
Landlord shall have reasonably determined that the annual reduction in
operating expenses shall exceed depreciation therefor or (ii) to comply
with
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<PAGE>
Exhibit 10.9
applicable Legal Requirements or Insurance Requirements; plus (b) in the
case of both (i) and (ii) an interest factor, reasonably determined by
Landlord, as being the interest rate then charged for long term mortgages
by institutional lenders on like properties within the Route 128 West and
Northwest Suburban Market; depreciation in the case of both (i) and (ii)
shall be determined by dividing the original cost of such capital
expenditure by the number of years of useful life of the capital item
acquired and the useful life shall be reasonably determined by Landlord
in accordance with generally accepted accounting principles and practices
in effect at the time of acquisition of the capital item.
Notwithstanding anything contained herein to the contrary, the following
shall be excluded from Operating Expenses:
(a) payments of principal, interest and any other amounts related to
mortgages or any other indebtedness encumbering all or any portion
of the Property;
(b) brokerage commissions;
(c) wages, salaries or other compensation paid to any executive
employees of Landlord above the grade of building manager;
(d) the cost of work done by Landlord for a particular tenant
(including, without limitation, architectural, legal or engineering
costs relating thereto);
(e) the initial cost of tools and equipment used in operation,
management, repair or maintenance of the Building or Lot;
(f) depreciation except only as provided specifically in the preceding
paragraph;
(g) costs for which Landlord, by the terms of this Lease or any other
lease or agreement, makes a separate charge;
(h) ground lease rent payments;
(i) any unfunded reserves for future expenditures not yet incurred;
(j) costs of repairs or other work necessitated by fire or other
casualty or by the exercise of eminent domain to the extent that
Landlord is reimbursed by fire or casualty insurance or condemnation
proceeds or to the extent such costs are covered by warranties in
favor of Landlord.
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<PAGE>
Exhibit 10.9
(k) attorneys' and other professional fees, costs and disbursements and
other expenses incurred in connection with negotiations or disputes
with existing or prospective tenants or other occupants of the
Building and unrelated to the operation, maintenance, repair or
management of the Building or Site;
(l) amounts paid to subsidiaries or affiliates of Landlord for services
rendered to the Building or Site, to the extent such amounts exceed
the competitive costs of such services rendered by other first-class
third parties (except, however, with respect to management fees which
shall be included as provided in the preceding paragraph;
(m) general overhead of Landlord and its subsidiaries and affiliates,
except with respect to management fees which shall be as provided in
the preceding paragraph;
(n) advertising and promotional expenditures;
(o) any fines or penalties incurred on account of violations by Landlord
to any governmental rule or requirement, or costs incurred as the
result of Landlord's misconduct or negligence;
(p) title insurance, automobile insurance, key man and other life
insurance, long-term disability insurance and health, accident and
sickness insurance, except only reasonable benefits to persons of the
grade of building manager and below who are employed and engaged in
operating and managing the Building or Site, and in the case of such
persons engaged at more than one (1) property there shall be a
reasonable allocation between the Property and any others;
(q) any expenditures for which Landlord is reimbursed by third parties
(r) costs and expenses incurred by Landlord in the performance of
Landlord's obligations with respect to any environmental laws or the
removal of hazardous substances from the Building or Site but
specifically excluding from Landlord's obligations Tenant's obligation
under this Lease and applicable law relating to environmental laws and
hazardous substances;
(s) interest or penalties for any delinquent payments by Landlord unless
and to the extent resulting from Tenant's failure to pay, when as due,
the fixed rent or any Additional Rent;
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<PAGE>
Exhibit 10.9
(t) the cost of removing or encapsulating any asbestos known to be or
later discovered in the Building; and
(u) rent, additional rent or other charges under any space lease or
sublease assumed from a tenant or subtenant of the Building.
"Operating Expenses Allocable to the Premises" shall mean the same
proportion of Landlord's Operating Expenses for and pertaining to the
Building and the Site as the Rentable Floor Area of Tenant's Space bears to
ninety five percent (95%) of the Total Rentable Floor Area of the Building.
"Base Operating Expenses" shall mean Landlord's Operating Expenses for the
Property for the twelve (12) month period commencing on the Commencement
Date of this Lease and expiring on the day immediately preceding the first
annual anniversary of the Commencement Date (herein sometimes called the
"Base Period") subject, however, to the following provisions of this
Section 2.6.
"Base Operating Expenses Allocable to the Premises" shall mean the same
proportion of Base Operating Expenses as the Rentable Floor Area of
Tenant's Space bears to ninety five percent (95%) of the Total Rentable
Floor Area of the Building.
In the event that on the average less than ninety-five percent (95%) of the
Rentable Floor Area of the Building is leased during any calendar year
during the Lease Term (or during the Base Period for purposes of
calculating Base Operating Expenses), Landlord's Operating Expenses for
such calendar year or Base Period, as the case may be, shall be determined
by Landlord to be an amount equal to the Landlord's Operating Expenses
which would normally be expected to have been charged or incurred had
ninety-five percent (95%) of the Rentable Floor Area of the Building been
leased during such calendar year or Base Period, as the case may be.
If with respect to any calendar year falling within the Term, or fraction
of a calendar year falling within the Term at the beginning or end thereof,
the Operating Expenses Allocable to the Premises for a full calendar year
exceed Base Operating Expenses Allocable to the Premises or for any such
fraction of a calendar year exceed the corresponding fraction of Base
Operating Expenses Allocable to the Premises (such amount being hereinafter
sometimes referred to as the "Operating Cost Excess") then Tenant shall pay
to Landlord, as Additional Rent, the amount of such excess. Such payments
shall be made at the times and in the manner hereinafter provided in this
Section 2.6. (The Base Operating Expenses Allocable to the Premises do not
include the $0.85 for tenant electricity to be paid by Tenant together with
Annual Fixed Rent and for which provision is made in
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<PAGE>
Exhibit 10.9
Section 2.5 hereof, separate provision being made in Section 2.8 of this
Lease for Tenant's share of increases in electricity costs.)
Not later than ninety (90) days after the end of the first calendar year or
fraction thereof ending December 31 and of each succeeding calendar year
during the Term or fraction thereof at the end of the Term, Landlord shall
render Tenant a statement in reasonable detail together with reasonably
supporting documentation and according to generally accepted accounting
practices as used in the real estate industry consistently applied
certified by a representative of Landlord, showing for the preceding
calendar year or fraction thereof, as the case may be, Base Operating
Expenses, Landlord's Operating Expenses and Operating Expenses Allocable to
the Premises. Said statement to be rendered to Tenant shall also show for
the preceding year or fraction thereof as the case may be the amounts of
operating expenses already paid by Tenant as Additional Rent on account of
the operating expenses and the amount of the Operating Cost Excess
remaining due from, or overpaid by, Tenant for the year or other period
covered by the statement. Within thirty (30) days after the date of
delivery of such statement, Tenant shall pay to Landlord the balance of the
amounts, if any, required to be paid pursuant to the above provisions of
this Section 2.6 with respect to the preceding year or fraction thereof, or
Landlord shall credit any amounts overpaid by Tenant against (i) monthly
installments of fixed rent next thereafter coming due or (ii) any sums then
due from Tenant to Landlord under this Lease (or refund such portion of the
overpayment as aforesaid if the Term has ended and Tenant has no further
obligation to Landlord, such refund to be made within thirty (30) days of
such expiration or earlier termination).
In addition, Tenant shall make payments monthly on account of Tenant's
share of increases in operating expenses anticipated for the then current
year at the time and in the fashion herein provided for the payment of
fixed rent. The amount to be paid to Landlord shall be an amount reasonably
estimated annually by Landlord to be sufficient to cover, in the aggregate,
a sum equal to the Operating Cost Excess for each calendar year during the
Term.
Notwithstanding the foregoing provisions, no decrease in Landlord's
Operating Expenses shall result in a reduction of the amount otherwise
payable by Tenant if and to the extent said decrease is attributable to
vacancies in the Building rather than to any other causes.
Subject to the time period set forth in the last sentence of this paragraph
and no more than once per any twelve (12) month period, Tenant and/or its
auditors, accountants and representatives shall have the right, at its sole
cost, to examine, audit and copy (at Tenant's expense) all of Landlord's
applicable records, books, statements, bills, invoices and other materials
evidencing the Landlord's Operating Expenses to determine whether
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<PAGE>
Exhibit 10.9
Operating Expenses billed to Tenant for the immediately preceding calendar
year conform to the foregoing provisions and requirements of this Section
2.6. Such right shall be exercised by not less than ten (10) days written
notice to Landlord given not later than one hundred twenty (120) days
following Tenant's receipt of Landlord's annual statement of such charges
(time being of the essence) (collectively the "Operating Expense
Materials").
If Tenant shall dispute in writing any specific item or items included in
the yearly accounting of costs and expenses comprising Additional Rent
provided by Landlord to Tenant pursuant to Section 2.6 or any figures or
documentation reviewed pursuant to the foregoing paragraph (the "disputed
expenses") and such dispute is not amicably settled between Landlord and
Tenant by the last to occur of the following, as applicable, (i) one
hundred twenty (120) days after such yearly accounting has been rendered to
Tenant in the case where Tenant has not given any notice pursuant to the
foregoing paragraph or (ii) thirty (30) days after Tenant's receipt of
Landlord's Operating Expense Materials, pursuant to the immediately
preceding paragraph, Tenant may, during the twenty (20) days next following
the expiration of the applicable period (upon written notice to Landlord
accompanied by a copy of its letter of submission setting forth the items
of dispute) refer such disputed item or items to arbitration in accordance
with the following provisions of this Section (Tenant's Dispute Notice")
and the decision rendered in such arbitration shall be conclusive and
binding upon Landlord and Tenant. Pending determination of any such
dispute, the Tenant shall pay the disputed amounts in question, in
accordance with the statement provided by Landlord, without prejudice to
Tenant's position. If the dispute shall be determined in Tenant's favor,
Landlord shall promptly pay to Tenant the amount to Tenant's overpayment,
with interest at twelve percent (12%) per annum form the date of
overpayment until the date Landlord reimburses Tenant for same, and if no
such payment is made by Landlord, Tenant shall be entitled to credit such
amount against the monthly installment(s) of Rent next falling due under
this Lease, or, if the Term has expired, such amount shall be promptly
refunded by Landlord to Tenant. If Tenant shall not have disputed any item
or items of any statement or accounting, Tenant shall be deemed to have
approved such statement or accounting.
The provisions set forth hereinbelow shall only be applicable for disputes
arising from or out of Section 2.6 of this Lease and for no other claim,
conflict or dispute arising from or in connection with this Lease. If the
Tenant demands arbitration of an item or items relating to any item or
items of Additional Rent as set forth in Section 2.6 (the "Disputed Issue")
Tenant shall give notice thereof to Landlord and shall in such notice
appoint an arbitrator ("Notice of Arbitration"). Such Notice of Arbitration
shall be given concurrently with Tenant giving Tenant's Dispute Notice to
Landlord. Within 15 days after the Notice of Arbitration is received,
Landlord shall by notice to Tenant appoint an
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<PAGE>
Exhibit 10.9
arbitrator. If the second arbitrator shall not have been appointed as
aforesaid, the position taken Tenant shall be deemed to be the correct
resolution of the Disputed Issue.
Within three (3) business days after the designation of the second
arbitrator, the two parties shall submit their respective positions with
respect to the Disputed Issue to the two arbitrators; thereafter, the two
arbitrators shall conduct such hearings and investigations as they may deem
appropriate and shall, within 15 days after the designation of the second
arbitrator, determine the correct resolution of the Disputed Issue. The
arbitrators or either of them shall give notice thereof (or notice of their
inability to reach agreement, as the case may be) to the parties hereto
within said 15 day period and the agreement, if any, of the two arbitrators
shall be binding upon the parties hereto.
In the event the two arbitrators are unable to reach agreement within said
15 day period as aforesaid, the two arbitrators shall, within 30 days after
the designation of the second arbitrator, designate a third arbitrator. If
the two arbitrators shall fail to agree upon the designation of such third
arbitrator withing the 30 day period described above, then they or either
of them shall give notice of such failure to agree to the parties hereto
within such thirty (30) days after the arbitrators appointed by the parties
give notice as aforesaid, then either party on behalf of both may apply to
the president of the Greater Boston Real Estate Board, or on his or her
failure, refusal or inability to act, to a court of competent jurisdiction,
for the designation of such third arbitrator.
Within three (3) business days after the designation of the third
arbitrator, the two parties shall submit their respective positions with
respect to the Disputed Issue to the third arbitrator; thereafter, the
third arbitrator shall conduct such hearings and investigations as he or
she may deem appropriate and shall, within 15 days after the date of the
designation of the third arbitrator, determine the correct resolution of
the Disputed Issue. Within such 15-day period, third arbitrator shall give
notice thereof to the parties hereto and the arbitrator's determination
shall be binding upon the parties hereto.
All arbitrators shall be qualified real estate professionals who shall have
had at least ten (10) years experience managing first-class office building
properties substantially similar to the Property in the Route 128 Boston
West Suburban market.
The parties shall be entitled to present evidence to the arbitrators in
support of their respective positions. The arbitrators may not make any
determination inconsistent with any of the terms of this Lease. The
arbitrators shall not have the power to add to, modify or change any of the
provisions of this Lease. The determination of the arbitrator(s), as
provided above, shall be conclusive upon the parties. Each party shall pay
the fees, costs
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<PAGE>
Exhibit 10.9
and expenses of the arbitrator appointed by such party and the attorneys
and expert witnesses of such party, and one-half of the other fees, costs
and expenses of the arbitration properly incurred hereunder.
Notwithstanding anything to the contrary contained herein, Tenant and
Landlord shall not be precluded from utilizing the courts with respect to
any other claim, dispute or action arising in connection with this Lease.
2.7 If with respect to any full Tax Year or fraction of a Tax Year falling
within the Term, Landlord's Tax Expenses Allocable to the Premises (as
hereinafter defined) for a full Tax Year exceed Base Taxes Allocable to the
Premises or for any such fraction of a Tax Year exceed the corresponding
fraction of Base Taxes Allocable to the Premises (such amount being
hereinafter sometimes referred to as the "Tax Excess") then, on or before
the thirtieth (30th) day following receipt by Tenant of the certified
statement referred to below in this Section 2.7, Tenant shall pay to
Landlord, as Additional Rent, the amount of the Tax Excess. Upon request
of Tenant, Landlord agrees to forward to Tenant a copy of the applicable
tax bill. Expenditures for legal fees and for other expenses incurred in
obtaining the tax refund or abatement ("Refund/Abatement Expenses") may be
charged against the tax refund or abatement before the adjustments are made
for the Tax Year. In addition, payments by Tenant on account of the Tax
Excess anticipated for the then current year shall be made monthly at the
time and in the fashion herein provided for the payment of fixed rent. The
amount so to be paid to Landlord shall be an amount reasonably estimated by
Landlord to be sufficient to provide Landlord, in the aggregate, a sum
equal to the Tax Excess at least ten (10) days before the day on which such
payments by Landlord would become delinquent. Not later than ninety (90)
days after Landlord's Tax Expenses Allocable to the Premises are determined
for the first such Tax Year or fraction thereof and for each succeeding Tax
Year or fraction thereof during the Term, Landlord shall render Tenant a
statement in reasonable detail certified by a representative of Landlord
showing for the preceding year or fraction thereof, as the case may be,
real estate taxes on the Building and the Site and abatements and refunds
of any taxes and assessments and Refund/Abatement Expenses.
To the extent that real estate taxes shall be payable to the taxing
authority in installments with respect to periods less than a Tax Year, the
foregoing statement 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 Tax Year shall result in a
reduction of the amount otherwise payable by Tenant if and to the extent
said decrease is attributable to vacancies in the Building or partial
completion of the Building rather than to any other causes.
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<PAGE>
Exhibit 10.9
Terms used herein are defined as follows:
(i) "Tax Year" means the twelve-month period beginning July 1 each
year during the Term or if the appropriate governmental tax
fiscal period shall begin on any date other than July 1, such
other date.
(ii) "Landlord's Tax Expenses Allocable to the Premises" shall mean
the same proportion of Landlord's Tax Expenses for and
pertaining to the Building and the Site as the Rentable Floor
Area of the Premises bears to the Total Rentable Floor Area of
the Building.
(iii) "Landlord's Tax Expenses" with respect to any Tax Year means the
aggregate real estate taxes on the Building and Site with
respect to that Tax Year, reduced by any net abatement receipts
with respect to that Tax Year.
(iv) "Base Taxes" means Landlord's Tax Expenses (hereinbefore
defined) for fiscal tax year 1996 (that is, the period beginning
July 1, 1995 and ending June 30, 1996).
(v) "Base Taxes Allocable to the Premises" means the same proportion
of Base Taxes as the Rentable Floor Area of the Premises bears
to the Total Rentable Floor Area of the Building. As of the date
of this Lease the Tenant's percentage is 23.741% (being the
quotient of the Rentable Floor Area of the Premises and the
Total Rentable Floor Area of the Building).
(vi) "Real estate taxes" means all taxes and special assessments of
every kind and nature assessed by any governmental authority on
the Building and/or Site which the Landlord shall become
obligated to pay because of or in connection with the ownership,
leasing and operation of the Site, the Building and the Property
(including, without limitation, if applicable the excise
prescribed by Mass Gen Laws Chapter 121A, Section 10 and amounts
in excess thereof paid to the Town of Lexington pursuant to
agreement between Landlord and the Town) and reasonable expenses
of any proceedings for abatement of taxes. Landlord represents
to Tenant as of the date of this Lease there is no such
agreement in effect between Landlord and the Town of Lexington
effecting the Premises. The amount of special taxes or special
assessments to be included shall be limited to the amount of the
installment (plus any interest, other than penalty interest,
payable thereon) of such special tax or special assessment
required to be
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<PAGE>
Exhibit 10.9
paid during the year in respect of which such taxes are being
determined. There shall be excluded from such taxes all income,
estate, succession, inheritance, franchise and transfer taxes;
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, or in addition to, the whole or any
part of the ad valorem tax on real property there shall be
assessed on Landlord a capital levy or other tax on the gross
rents received with respect to the Site or Building or 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 in the jurisdiction in which
the Property is located) measured by or 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 measured or
based, shall be deemed to be included within the term "real
estate taxes" but only to the extent that the same would be
payable if the Site and Building were the only property of
Landlord. Landlord agrees to elect to pay betterment assessments
over the longest period permitted by law in which case for each
Tax Year (pro-rated for a fraction of a Tax Year) the
installment thereof plus the interest thereon for such period
shall be included in the calculations under this Section.
2.8 If with respect to any calendar year falling within the Term or fraction of
a calendar year falling within the Term at the beginning or end thereof,
the cost of furnishing electricity for lights and power to the Building for
a full calendar year exceeds $0.85 per square foot of Rentable Floor Area
of the Building, or for any such fraction of a calendar year exceeds the
corresponding fraction of $0.85 per square foot of Rentable Floor Area of
the Building, then Tenant shall pay to Landlord, as Additional Rent, on or
before the thirtieth (30th) day following receipt by Tenant of the
statement referred to below in this Section 2.8, its proportionate share of
the amount of such excess (i.e. the same proportion of such excess as the
Rentable Floor Area of Tenant's Space bears to the Total Rentable Floor
Area of the Building). Payments by Tenant on account of such excess 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 Landlord shall
be an amount from time to time reasonably estimated by Landlord to be
sufficient to cover, in the aggregate, a sum equal to such excess for each
calendar year during the Term.
Not later than ninety (90) days after the end of the first calendar year or
fraction thereof ending December 31 and of each succeeding calendar year
during the Term or fraction thereof at the end of the Term, Landlord shall
render Tenant a reasonably detailed accounting together with reasonable
supporting documentation certified by a representative of Landlord showing
for the preceding calendar year, or fraction thereof, as
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<PAGE>
Exhibit 10.9
the case may be, the costs of furnishing electricity to the Building. Said
statement to be rendered to Tenant also shall show for the preceding year
or fraction thereof, as the case may be, the amount already paid by Tenant
on account of electricity, and the amount remaining due from, or overpaid
by, Tenant for the year or other period covered by the statement. Within
thirty (30) days after the date of the delivery of such statement, Tenant
shall pay to Landlord the balance of the amounts, if any required to be
paid pursuant to the above provisions of this Section 2.8 with respect to
the preceding year, or fraction thereof, or Landlord shall credit any
amounts due from it to Tenant pursuant to the above provisions of this
Section 2.8 against monthly installments of Annual Fixed Rent or Additional
Rent next thereafter coming due unless the Lease Term has expired and
Tenant has no other or further obligations to Landlord, in which case
Landlord shall promptly refund such amount to Tenant.
If at any time during the Term, or any extended term, Tenant reasonably
concludes that the amount payable by Tenant hereunder for electricity for
lights and power to the Premises is materially less than results from the
above calculation, Tenant shall have the right to first give written notice
to Landlord setting forth in reasonable detail Tenant's reasons therefor
and Landlord and Tenant shall, in good faith, attempt to resolve such
situation to their reasonable and mutual satisfaction. If such a
resolution shall not result, then Tenant shall have the right, at its sole
cost and expense, to arrange for a study or audit of electrical usage at
the Complex by an electrical engineer acceptable to both Landlord and
Tenant, in the respective exercise of their reasonable judgement. If the
results of such study or inspection establish that the amount payment by
Tenant is greater or lesser than the sum of the cost of electricity for
lights and power to the Premises, the amount payable under this Section 2.8
shall be appropriately adjusted; provided, however, that Landlord shall
have the right to review the methodology used and results obtained by such
engineer and to challenge the results of such study or audit.
ARTICLE III
-----------
CONSTRUCTION
------------
3.1 (A) Except for the "Tenant Extras" and the "Millwork and Shelving" (both
hereinafter referred to and all of which shall be performed in accordance
with the requirements of Section 3.1 (B) hereof), Landlord shall perform
the work shown on Exhibit B and Exhibit B-1 annexed hereto at Landlord's
sole cost and expense ("Landlord's Work"). However, Landlord shall have no
responsibility for the installation or connection of Tenant's computer,
telephone or other communications equipment, systems or wiring.
-33-
<PAGE>
Exhibit 10.9
(B) The work and items shown on and set forth in Exhibit B-2 as "Tenant
Extras" shall be performed by Landlord at Tenant's sole cost and expense.
During the performance of the Tenant Extras by Landlord, Landlord may
submit, not more frequently than once every thirty (30) days and at any
time on or after the Rent Commencement Date, an invoice setting forth in
reasonable detail the Tenant Extras installed, performed and/or completed
since the date of the last invoice (or in case of the first invoice or
where no invoice has been previously sent, since the Date of this Lease)
and within seven (7) days after receipt thereof, Tenant shall pay to
Landlord the cost of such Tenant Extras so installed, performed and/or
completed based on and not in excess of the amounts set forth in Exhibit
B-2. Final payment for the balance of the Tenant Extras shall be paid
within ten (10) days following the last to occur of (i) Landlord's
substantial completion of all Tenant Extras and (ii) Tenant's receipt of
Landlord's invoice thereof.
In addition, Landlord shall provide to Tenant a special allowance of
$22,300.00 (the "Special Allowance") which shall be applied exclusively (i)
to the millwork and shelving shown on Exhibit B-1 (the "Millwork and
Shelving") or (ii) as set forth in Item No. 4 of Exhibit B-2. The
Shelving and Millwork shall be performed by Tenant subject to compliance
with the requirements of Section 3.3 hereof.
Landlord shall provide the Special Allowance to Tenant by reimbursing
Tenant for the Millwork and Shelving (or as set forth in Item No. 4 of
Exhibit B-2) within ten (10) days after receipt of reasonable evidence of
payment of the billings and invoices of Tenant's contractors and tradesmen
but in no event shall Landlord's obligation for the cost of the Millwork
and Shelving and the application of the Special Allowance as set forth in
Item No. 4 of Exhibit B-2 exceed $22,300.00 in the aggregate. The Millwork
and Shelving (i) shall not be deemed to be or treated as part of Landlord's
Work and (ii) shall be performed by Tenant, at its sole cost and expense,
subject to the application of the Special Allowance by Landlord to Tenant
as hereinabove provided. Notwithstanding anything to the contrary
contained in this Lease, (i) no delay in the performance of the Millwork
and Shelving shall delay the Commencement Date and/or the Rent Commencement
Date and the Commencement Date and/or Rent Commencement Date shall in no
way be dependent or conditioned upon the performance of the Millwork and
Shelving and (ii) the Millwork and Shelving shall be part of the Building
and in no event shall it be removed or replaced.
3.2 (A) Landlord agrees to use due diligence to complete the Landlord's Work
described in Section 3.1 on or before the Scheduled Term Commencement Date.
Landlord shall not be required to install any improvements which are not in
conformity with the plans and specifications for the Building or which are
not approved by Landlord's architect. In case of "Tenant Delays"
(hereinafter defined), delays due to governmental regulation, unusual
-34-
<PAGE>
Exhibit 10.9
scarcity of or inability to obtain labor or materials, labor difficulties,
casualty or other causes reasonably beyond Landlord's control
(collectively, "Landlord's Force Majeure"), the Scheduled Term Commencement
Date shall be extended for the period of such delays but in no event more
than forty-five (45) days in the aggregate except in the case of Tenant
Delays. In no event shall Landlord's Force Majeure events exceed forty
five (45) days in the aggregate. The Premises shall be deemed ready for
occupancy on the later of (a) the date on which the work described in
Section 3.1, together with common facilities for access and service to the
Premises, has been substantially completed except for (i) items of work and
adjustment of equipment and fixtures which can be completed after occupancy
thereof has been taken without causing substantial interference with
Tenant's use of the Premises (i.e. so-called "punch list" items) and items
of work for which there is a long lead time in obtaining the materials
therefor or which are specially or specifically manufactured, produced or
milled for the work in or to the Premises and require additional time for
receipt or installation ("long lead" items) and (b) the date a certificate
of occupancy, temporary or permanent, shall have been approved for issuance
by applicable Governmental authority, to the extent required by law,
permitting occupancy by Tenant of the Premises for the Permitted Use;
provided, however, that if a temporary certificate of occupancy shall be
issued with conditions, such conditions shall not materially and adversely
affect Tenant's use of the Premises for the Permitted Uses. The punch list
shall be agreed to by both Landlord and Tenant, each acting reasonably and
in good faith. If there shall be issued such a temporary certificate of
occupancy, Landlord shall satisfy the conditions set forth therein as
promptly as possible and, in any event shall maintain the temporary
certificate of occupancy in full force and effect until the conditions
therein are so satisfied. Landlord shall complete as soon as conditions
practically permit the punch list items and the long lead items and Tenant
shall not use the Premises in such manner as will increase the cost of
completion. During the performance of Landlord's Work, Tenant shall have
reasonable access to the Premises during normal working hours for purposes
of Tenant's performing, or causing its contractors to perform, the
installation of its telecommunications equipment, wiring and other
appurtenant facilities and its furniture and furnishings, provided that in
any such case such access and work shall be performed in such manner so as
to not cause or result in material interference with the performance of
Landlord's Work and so as to maintain harmonious labor relations.
For purposes hereof the term "Tenant Delay" shall mean any act or failure
to act of Tenant or anyone employed or engaged by Tenant which may delay
performance and/or completion of Landlord's Work. When Landlord reasonably
believes that any action of Tenant or failure to take action by Tenant, in
either case by a date certain, will result in a Tenant Delay, Landlord
shall use reasonable efforts to provide advance notice (which may be given
orally followed up with written notice given within three (3) business
days)
-35-
<PAGE>
Exhibit 10.9
to Tenant that such action or failure to act by such date will constitute a
Tenant Delay. Upon the occurrence of any Tenant Delay, Landlord shall
notify Tenant in writing within five (5) business days after the occurrence
thereof.
(B) Landlord at Landlord's expense, shall be responsible for Landlord's
Work complying on the Commencement Date with the requirements of the
Federal Americans With Disabilities Act (the "ADA") in effect on the
Commencement Date; provided, however, that notwithstanding the foregoing,
Tenant at Tenant's expense, shall be responsible for (i) any additions,
alterations or improvements performed by or for Tenant or any assignee of
subtenant of Tenant ("Tenant Improvements") complying with the ADA and (ii)
compliance with the ADA required because of (a) Tenant Improvements and (b)
the specific manner, conduct, intensity and method of use and deployment of
personnel in the Premises of Tenant, any assignee of Tenant and any
subtenant, sub-subtenant or other occupant.
(C) If, Landlord shall have failed to substantially complete the work to be
performed by Landlord in accordance with Section 3.1 (excluding punch list
items and long lead items) on or before the Outside Completion Date (which
date shall be extended automatically for such periods of time as Landlord
is prevented from proceeding with or completing the same by reason of
Landlord's Force Majeure or any Tenant Delay which materially interferes
with Landlord's construction of the Premises, without limiting Landlord's
other rights on account thereof), Tenant shall have the right to terminate
this Lease by giving notice to Landlord of Tenant's desire to do so within
the time period from the Outside Completion Date (as so extended) until the
date which is thirty (30) days subsequent to the Outside Completion Date
(as so extended); and, upon the giving of such notice, the Term of this
Lease shall cease and come to an end without further liability or
obligation on the part of either party unless, within thirty (30) days
after Landlord's receipt of Tenant's notice Landlord substantially
completes the work to be performed by Landlord under Section 3.1 (except
for punch list items and long lead items) and such right of termination
shall be Tenant's sole and exclusive remedy at law or in equity or
otherwise for Landlord's failure so to complete such work within such time.
Tenant agrees that no Tenant Delay in performing work to prepare the
Premises for occupancy (including, without limitation, the work in
installing telephones and other communications equipment or systems) shall
delay commencement of the Term or the obligation to pay rent, regardless of
the reason for such delay or whether or not it is within the control of
Tenant or any such employee.
3.3 This Section 3.3 shall apply before and during the Term. Tenant shall not
make alterations and additions to Tenant's space except in accordance with
plans and specifications therefor first approved by Landlord, which
approval shall not be
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<PAGE>
Exhibit 10.9
unreasonably withheld. Landlord shall not be deemed unreasonable for
withholding approval of any alterations or additions which (a) involve or
might affect any structural or exterior element of the Building, any area
or element outside of the Premises, or any facility serving any area of the
Building outside of the Premises, or (b) will delay completion of the
Premises or Building, or (c) will not comply with applicable Insurance
Requirements, or (d) will require unusual expense to readapt the Premises
to normal office use on Lease termination or increase the cost of
construction or of insurance or taxes on the Building or of the services
called for by Section 4.1 unless Tenant first gives assurance reasonably
acceptable to Landlord for payment of such increased cost and that such
readaptation will be made prior to such termination without expense to
Landlord. Landlord's review and approval of any such plans and
specifications and consent to perform work described therein shall not be
deemed an agreement by Landlord that such plans, specifications and work
conform with applicable Legal Requirements nor deemed a waiver of Tenant's
obligations under this Lease with respect to applicable Legal Requirements
nor impose any liability or obligation upon Landlord with respect to the
completeness, design sufficiency or compliance of such plans,
specifications and work with applicable Legal Requirements. Notwithstanding
the foregoing, Landlord's approval shall not be required for any painting
of the walls within the Premises (in the Building standard color) or to any
other purely cosmetic decoration within the Premises which does not affect
or involve any mechanical system of the Building, any other utility or
system of the Building or any structural element of the Building. In the
case of all alterations, additions or improvements (other than the above
described interior painting and cosmetic work but only on the terms set
forth above), Tenant shall deliver reasonable detailed plans and
specifications to Landlord at the time Tenant seeks Landlord's approval.
Landlord may elect to require Tenant to remove any alterations, additions
or improvements upon lease expiration or termination by stating such
election in Landlord's approval Landlord shall specify the matters for
removal in reasonably detail. Unless specified for removal as aforesaid,
all alterations and additions shall be part of the Building unless
otherwise agreed upon in writing by Landlord and Tenant. All of Tenant's
alterations and additions and installation of furnishings shall be
coordinated with any work being performed by Landlord and in such manner
and to the extent practicable as to maintain reasonably harmonious labor
relations and not to damage the Building or Site or interfere with
construction or operation of the Building and other improvements to the
Site and, except for installation of furnishings, shall be performed by
Landlord's general contractor or by contractors or workmen first approved
by Landlord. Except for work by Landlord's general contractor, Tenant,
before its work is started, shall secure all licenses and permits necessary
therefor; deliver to Landlord a statement of the names of all its
contractors; and other direct trades and the estimated cost of all labor
and material to be furnished by them cause each contractor to carry
workmen's compensation insurance in statutory amounts covering all the
contractor's and subcontractor's employees
-37-
<PAGE>
Exhibit 10.9
and commercial general liability insurance or comprehensive general
liability insurance with a broad form comprehensive liability endorsement
with such limits as Landlord may reasonably require, but in no event less
than $2,000,000.00 combined single limit per occurrence on a per location
basis (all such insurance to be written in companies approved by Landlord
and naming and insuring Landlord and Landlord's managing agent as
additional insureds and insuring Tenant as well as the contractors), and to
deliver to Landlord certificates of all such insurance. Tenant agrees to
pay promptly when due the entire cost of any work done on the Premises by
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 Building or the Site
and immediately to discharge or effectively bond off any such liens which
may so attach. Tenant shall pay, as Additional Rent, 100% of any real
estate taxes on the Complex which shall, at any time after commencement of
the Term, result from any alteration, addition or improvement to the
Premises made by Tenant.
3.4 All construction work required or permitted by this Lease shall be done in
a good and workmanlike manner using materials of good quality and in
compliance with all applicable Legal Requirements and Insurance
Requirements now or hereafter in force. Each party may inspect the work of
the other at reasonable times and shall promptly give notice of observed
defects. Each party authorizes the other to rely in connection with design
and construction upon approval and other actions on the party's behalf by
any Construction Representative of the party named in Article I or any
person hereafter designated in substitution or addition by notice to the
party relying. Except as otherwise provided in Article IV, the work
required of Landlord pursuant to this Article III shall be deemed approved
by Tenant when Tenant commences occupancy of the Premises for the Permitted
Uses, except for items which are then uncompleted (including punch list
items and long lead items) and as to which Tenant shall have given notice
to Landlord prior to such date.
The performance of Landlord's Work hereunder shall be done in good and
workmanlike manner employing materials of good quality and in compliance
with applicable laws, rules, orders and regulations of governmental
authorities having jurisdiction thereof, including, without limitation, the
Americans with Disabilities Act ("ADA"). Landlord warrants (a) that all
work performed by Landlord with respect to the Premises, Landlord's Work
and all base building systems shall be free from defects (latent or
otherwise) for the period of one (1) year commencing on the date (i) all
such work is fully completed, or (ii) in the case of base building systems
from the date of delivery of the Premises to Tenant as required herein, and
(b) that the common areas of the Building and Landlord's Work in the
Premises shall comply with the ADA and all applicable handicap access laws
as of the Commencement Date.
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<PAGE>
Exhibit 10.9
ARTICLE IV
LANDLORD'S COVENANTS; INTERRUPTIONS AND DELAYS
----------------------------------------------
4.1 Landlord covenants:
4.1.1 To furnish services, utilities, facilities and supplies set forth in
Exhibit C equal to those customarily provided by landlords in high
quality buildings in the Boston West Suburban Market subject to
escalation reimbursement in accordance with Section 2.6.
4.1.2 To furnish, at Tenant's expense, reasonable additional Building operation
services (beyond those set forth in Exhibit C) which are usual and
customary in similar office buildings in the Boston West Suburban Market
upon reasonable advance request of Tenant at reasonable and equitable
rates from time to time established by Landlord.
4.1.3 Subject to the escalation provisions of Section 2.6 and except as
otherwise provided in Article VI, (i) to make such repairs to the roof,
exterior walls, floor slabs and common areas and facilities as may be
necessary to keep them in good condition and repair and (ii) to maintain
the Building (exclusive of Tenant's responsibilities under this Lease) in
a first class manner comparable to the maintenance of similar properties
in the Boston West Suburban Market.
4.1.4 To provide and install, at Landlord's expense, letters or numerals on the
entrance doors to the Premises to identify Tenant's official name and
Building address; all such letters and numerals shall be in the building
standard graphics and no others shall be used or permitted on the
Premises. In the event that Landlord shall grant to any other tenant in
the Building the right, without the necessity of obtaining Landlord's
consent, to affix such other tenant's corporate logo within the interior
of such tenant's space, Landlord shall grant to Tenant a substantially
similar right upon substantially similar terms within the interior of the
Premises demised under this Lease. Otherwise, should Tenant desire to
place or affix its corporate logo or name within the Premises, Tenant
shall first seek Landlord's approval and Tenant shall submit reasonably
detailed plans, specifications, graphics or other information with
respect thereto Landlord shall not unreasonably withhold its consent
thereto.
4.2 Landlord shall not be liable to Tenant for any compensation or reduction of
rent by reason of inconvenience or annoyance or for loss of business
arising from the necessity of Landlord or its agents entering the Premises
for any of the purposes in this Lease
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<PAGE>
Exhibit 10.9
authorized, or for repairing the Premises or any portion of the Building
however the necessity may occur. In case Landlord is prevented or delayed
from making any repairs, alterations or improvements, or furnishing any
services or performing any other covenant or duty to be performed on
Landlord's part, by reason of any cause reasonably beyond Landlord's
control, including without limitation the causes set forth in Section 3.2
hereof as being reasonably beyond Landlord's control, Landlord shall not be
liable to Tenant therefor, nor, except as expressly otherwise provided in
Article VI, shall Tenant be entitled to any abatement or reduction of rent
by reason thereof. In the event that the electricity service to the
Premises shall be shut down for more than four (4) full and consecutive
business days, but only as a result of causes which are covered by
Landlord's loss of rentals insurance, then Tenant shall be entitled to an
abatement of Annual Fixed Rent equal to the "Insurance Amount" (hereinafter
defined). The "Insurance Amount" shall be an amount equal to the payment
actually received by Landlord (but only allocable to and on account of the
Premises and the Annual Fixed Rent for such shut down of electricity
service to the Premises from Landlord's insurance carrier providing such
loss of rents insurance less the amount of any deductible contained in such
loss of rents insurance coverage. During the Term of this Lease, Landlord
shall carry loss of rents insurance coverage in such amounts, for such
period (not less than one (1) year's Annual Fixed Rent) and upon such terms
as it deems appropriate in its sole judgment. Notwithstanding anything
herein contained to the contrary, in no event shall any of the events
referred to in this Section 4.2 give rise to a claim in Tenant's favor that
such failure constitutes actual or constructive, total or partial, eviction
from the Premises.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs
have been completed; provided, however, that in each instance of stoppage,
Landlord shall exercise reasonable diligence to eliminate the cause
thereof. Except in case of emergency repairs, Landlord will give Tenant
reasonable advance notice of any contemplated stoppage and will use
reasonable efforts to avoid unnecessary inconvenience to Tenant by reason
thereof.
Landlord shall perform such maintenance, repairs and necessary replacements
within a reasonably time after the need thereof arises and shall use
reasonable efforts not to interfere with the Premises, or Tenant's use and
occupancy thereof or access thereto or egress therefrom, in performing
Landlord's obligations hereunder. Tenant shall not be responsible for any
repairs, damage, loss or injury to the Premises or the Building caused by
or occasioned by Landlord's failure to repair or maintain in good repair
those portions of the Premises or the Building set forth hereinabove or
caused or occasioned by any act, omission, neglect, default or other
misconduct of Landlord, its employees, agents, licenses, contractors,
anyone claiming by, through or under Landlord or any occupant of the
Building.
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<PAGE>
Exhibit 10.9
4.3 During the Lease Term, Landlord shall maintain in full force a policy of
insurance upon the Building and equipment insuring against all risks of
physical loss or damage under an All Risk coverage endorsement in an amount
at least equal to the full replacement value of the property insured (as
from time to time reasonably determined by Landlord), with an Agreed Amount
endorsement to satisfy co-insurance requirements, as well as insurance
against breakdown of boilers and other machinery as customarily insured
against. Such insurance may be written with a deductible as determined by
Landlord. Further, if at any time during the Term all risk type insurance
coverage shall cease to be written, then the type of fire and casualty
insurance and amount of coverage shall be as determined by Landlord. In
addition, during the Lease Term, Landlord agrees to maintain in full force
and effect with respect to the Property commercial general liability
insurance and such other liability insurance as it shall deem reasonably
appropriate and/or as shall be required by the holder of any mortgage
covering the Property. Such insurance shall be in such amounts (including
primary and excess coverages), in such forms and upon such terms
(including, without limitation, deductibles) as Landlord from time to time
shall reasonably determine or as shall be required by the holder of such
first mortgage. Landlord may also maintain such other insurance as may
from time to time be required by any mortgagee holding a mortgage lien on
the Property. In addition, Landlord may also maintain such insurance
against loss of Annual Fixed Rent and Additional Rent and such other risks
and perils as Landlord deems proper. Any and all such insurance required
or permitted to be carried under this Lease by Landlord may be maintained
under a blanket policy or program affecting, covering or relating to the
Property and other properties of Landlord and/or Landlord's or Boston
Properties Inc.'s affiliated entities or business organizations of Landlord
and/or affiliated business organizations. All of the insurance required or
permitted hereunder shall be included in Landlord's Operating Costs. Upon
the written request of Tenant, Landlord shall furnish Tenant with copies of
certificates or other written documentation evidencing the insurance
carried by Landlord.
4.4 Subject to the provisions of Sections 4.2 and 8.4 hereof, Landlord shall
hold harmless, indemnify Tenant and defend (with counsel selected by
Landlord) with regard to any loss or liability that Tenant may actually
incur respecting "Hazardous Materials" (defined in Section 5.3(A)) on or
within the Property including but not limited to the reasonable and
documented out of pocket fees and expenses of attorneys and environmental
consultants and experts and all reasonable out of pocket costs of
assessment, monitoring, cleanup, containment, removal and remediation
excluding, however, punitive, indirect and consequential damages; provided,
however, that (i) Tenant shall give prompt written notice of any such
claim, (ii) Landlord shall have the right to handle any such claim and
(iii) the foregoing indemnity shall not apply (a) to any acts, omissions or
other activities of Tenant, its assignees, subtenants (including sub-
subtenants and other occupants of the Premises or portions thereof),
contractors, agents, servants, invitees, employees or
-41-
<PAGE>
Exhibit 10.9
affiliates or (b) to any of those matters referred to in Section 5.3 hereof.
ARTICLE V
---------
TENANT'S COVENANTS
------------------
Tenant covenants during the term and such further time as Tenant occupies
any part of the Premises:
5.1 To pay when due all fixed rent and Additional Rent and all charges for
utility services rendered to the Premises (except as otherwise provided in
Exhibit C) and, further, as Additional Rent, all charges for additional
services rendered pursuant to Section 4.1.2.
5.2 Except as otherwise provided in Article VI and Section 4.1.3, to keep the
Premises in the same order, repair and condition as they were in as of the
Commencement Date, reasonable wear and tear and damage by fire, casualty
and eminent domain only excepted, and all glass in windows (except glass in
exterior walls unless the damage thereto is attributable to Tenant's
negligence or misuse) and doors of the Premises whole and in good condition
with glass of the same type and quality as that injured or broken, damage
by fire or taking under the power of eminent domain only excepted, and at
the expiration or termination of this Lease peaceably to yield up the
Premises all construction, work, improvements, and all alterations and
additions thereto in the same order, repair and condition as they were in
as of the Commencement Date, reasonable wear and tear and damage by fire,
casualty and eminent domain only excepted, first removing all goods and
effects of Tenant and, to the extent specified by Landlord by notice to
Tenant given at least twenty (20) days before such expiration or
termination, the wiring for Tenant's computer, telephone and other
communication systems and equipment and repairing any damage caused by such
removal and restoring the Premises and leaving them clean and neat. Tenant
shall not permit or commit any waste, and Tenant shall be responsible for
the cost of repairs which are necessary by reason of damage to common areas
in the Building or to the Site caused by Tenant, Tenant's independent
contractors, Tenant's employees or Tenant's invitees. Notwithstanding
anything contained in this Lease to the contrary, the following shall be
deemed to be Tenant Trade Fixtures for purposes of this Lease, shall remain
the property of the Tenant and may, at Tenant's option, be removed by
Tenant at any time prior to or upon the expiration of this Lease, provided
that Tenant shall, at its expense, repair any damage to the Premises caused
by any such installation or removal: All audio/projection/visual/multi-
media equipment located in the Premises at any time during the Term
hereof or any extended term.
42
<PAGE>
Exhibit 10.9
5.3 From the commencement of the Term, to use and occupy the Premises (subject
to the provisions of Sections 5.6 through 5.6.6 hereof) for the Permitted
Uses only, and not to injure or deface the Premises, Building, the Site or
any other part of the Complex nor to permit in the Premises or on the Site
any auction sale, vending machine (except as set forth below), or
inflammable fluids or chemicals (except in deminimous amounts and types
customarily used in conjunction with normal office purposes, tenant
covenanting and agreeing to comply with (a) all laws, by-laws, rules and
regulations applicable to the same including, without limitation, those
hereinafter set forth in this Section 5.3 and (b) the following
requirements of this Section 5.3), or nuisance, or the emission from the
Premises of any objectionable noise or odor, nor to use or devote the
Premises or any part thereof for any purpose other than the Permitted Uses,
nor for any use thereof which is inconsistent with maintaining the Building
as a first class office building in the quality of its maintenance, use and
occupancy, or which is improper, or contrary to applicable law, by-law,
rule or regulation or liable to render necessary any alteration or addition
to the Building. Notwithstanding the foregoing respecting vending
machines, Tenant may, at its sole cost, expense and risk, keep a reasonable
number of vending machines in the Premises dispensing non-alcoholic
beverages, candy and other food products and sundries, Tenant covenanting
that Tenant shall be solely responsible for compliance with applicable
laws, by-laws, rules and regulations, obtaining all permits, licenses and
approvals thereof, and maintaining same in full force and effect. Further,
(i) Tenant shall not, nor shall Tenant permit its employees, invitees,
agents, independent contractors, contractors, assignees or subtenants to,
keep, maintain, store or dispose of (into the sewage or waste disposal
system or otherwise) or engage in any activity which might produce or
generate any substance which is or may hereafter be classified as a
hazardous material, waste or substance (collectively "Hazardous
Materials"), under federal, state or local laws, rules and regulations,
including, without limitation, 42 U.S.C. Section 6901 et seq., 42 U.S.C.
Section 9601 et seq., 42 U.S.C. Section 2601 et seq., 49 U.S.C. Section
1802 et seq. and Massachusetts General Laws, Chapter 21E and the rules and
regulations promulgated under any of the foregoing, as such laws, rules and
regulations may be amended from time to time (collectively "Hazardous
Materials Laws"), (ii) Tenant shall promptly notify Landlord of any
incident in, on or about the Premises, the Building or the Site that would
require the filing of a notice under any Hazardous Materials Laws, (iii)
Tenant shall comply and shall cause its employees, invitees, agents,
independent contractors, contractors, assignees and subtenants to comply
with each of the foregoing and (iv) Landlord shall have the right to make
such inspections (including testing) as Landlord shall elect from time to
time to determine that Tenant is complying with the foregoing; provided
that all such inspections shall be at Landlord's sole cost and expense
(unless there shall be a violation by Tenant or any others hereinabove set
forth of Hazardous Materials Laws in which case such inspection shall be at
Tenant's sole cost and expense) and Landlord shall be entitled to access
the Premises for such inspections
43
<PAGE>
Exhibit 10.9
provided Landlord gives Tenant reasonable advance notice of same (orally
or in writing with any oral notice followed within three (3) business
days by written notice) except in the case of emergencies and except in
the case of emergencies such access (i) shall be subject to Tenant's
reasonable security practices and (ii) shall be performed in such a
manner as to reasonably minimize the interruption of Tenant's business
operations.
5.4 Not to obstruct in any manner any portion of the Building not hereby
leased or any portion thereof or of the Site used by Tenant in common
with others; not without prior consent of Landlord to permit the painting
or placing of any signs, curtains, blinds, shades, awnings, aerials or
flagpoles, or the like, visible from outside the Premises; and to comply
with all reasonable Rules and Regulations now or hereafter made by
Landlord, of which Tenant has been given written notice, for the care and
use of the Building and Site and their facilities and approaches;
Landlord shall not be liable to Tenant for the failure of other occupants
of the Building to conform to such Rules and Regulations. As of the date
hereof, there are no such rules and/or regulations in effect.
5.5 To keep the Premises equipped with all safety appliances required by any
public authority because of any use made by Tenant other than normal
office use, and to procure all licenses and permits so required because
of such use and, if requested by Landlord, to do any work to the Premises
so required because of such use, it being understood that the foregoing
provisions shall not be construed to broaden in any way Tenant's
Permitted Uses.
5.6 Except as otherwise expressly provided herein, Tenant covenants and
agrees that it shall not assign, mortgage, pledge, hypothecate or
otherwise transfer this Lease and/or Tenant's interest in this Lease or
sublet (which term, without limitation, shall include granting of
concessions, licenses or the like) the whole or any part of the Premises.
Any assignment, mortgage, pledge, hypothecation, transfer or subletting
not expressly permitted in or consented to by Landlord under Sections
5.6.1-5.6.6 shall be void, ab initio; shall be of no force and effect;
and shall confer no rights on or in favor of third parties. In addition,
Landlord shall be entitled to seek specific performance of or other
equitable relief with respect to the provisions hereof.
5.6.1 Notwithstanding the provisions of Section 5.6 above and the provisions of
Section 5.6.2, 5.6.3 and 5.6.5 below, Tenant shall have the right to
assign this Lease or to sublet the Premises (in whole or in part) to any
parent or subsidiary corporation of Tenant or to any corporation into
which Tenant may be converted or with which it may merge, provided that
the entity to which this Lease is so assigned or which so sublets the
Premises has a financial liquidity and capability and credit worthiness
to perform the obligations of the Tenant under this Lease as and when due
and required. Any such assignment or
44
<PAGE>
Exhibit 10.9
subletting shall be subject to the provisions of Section 5.6.4 and
Section 5.6.6 below.
5.6.2 Notwithstanding the provisions of Section 5.6 above, in the event Tenant
desires to assign this Lease or to sublet the Premises in whole or in
part, Tenant shall notify Landlord thereof in writing and Landlord shall
have the right at its sole option, to be exercised within the time period
set forth in Section 5.6.4 to:
(i) In the case of a proposed assignment of the Lease or
subletting of the entire Premises, Landlord may, at its sole
option, elect to terminate this Lease as of a date specified
in a notice to Tenant, which date shall not be earlier than
sixty (60) days nor later than one hundred twenty (120) days
after Landlord's notice to Tenant; provided, however, that
upon the termination date as set forth in Landlord's notice,
all obligations relating to the period after such termination
date (but not those relating to the period before such
termination date) shall cease and promptly upon being billed
therefor by Landlord, Tenant shall make final payment of all
rent and Additional Rent due from Tenant through the
termination date.
(ii) In the case of a proposed subleasing of more than fifty
percent (50%) but less than the entire Premises, Landlord may,
at its sole option, elect to terminate this Lease as to such
portion of the Premises proposed to be sublet (herein called
the "Terminated Portion of the Premises") as of a date which
shall be not earlier than sixty (60) days nor later than one
hundred twenty (120) days after Landlord's notice to Tenant;
provided, however, that upon the termination date as set forth
in Landlord's notice, all of Landlord's and Tenant's
obligations as to the Terminated Portion of the Premises
relating to the period after such termination date (but not
those relating to the period before such termination date)
shall cease and promptly upon being billed therefor by
Landlord, Tenant shall make final payment of all rent and
Additional Rent due from Tenant respecting the Terminated
Portion of the Premises through the termination date and
provided, further, that this Lease shall remain in full force
and effect as to the remainder of the Premises, except that
from and after the termination date the Rentable Floor Area of
the Premises shall be reduced to the rentable floor area of
the remainder of the Premises and the definition of Rentable
Floor Area of the Premises shall be so amended and after such
termination all references in this Lease to the "Premises" or
the "Rentable Floor Area of the Premises" shall be deemed to
be references to the remainder of the Premises, and provided
further that Landlord shall have the right to make such
alterations and improvements as may be required to
45
<PAGE>
Exhibit 10.9
separately demise the Terminated Portion of the Premises. In
addition, from and after the effective date of any such
termination, Annual Fixed Rent shall be at the rate set forth
in Section 1.1 but shall be calculated using the rentable
floor area of the remainder of the Premises and Tenant's
payments for operating costs, real estate taxes and
electricity shall be calculated on the same basis set forth in
this Lease using the rentable floor area of the remainder of
the Premises.
(iii) In the event that Landlord shall not exercise its termination
rights as aforesaid, or shall fail to give any or timely
notice under subsection (i) or subsection (ii) immediately
above, the provisions of Sections 5.6.3-5.6.6 shall be
applicable. This Section 5.6.2 shall not be applicable to an
assignment or sublease pursuant to Section 5.6.1.
5.6.3 Notwithstanding the provisions of Section 5.6 above, but subject to the
---
provisions of this Section 5.6.3 and the provisions of Sections 5.6.4,
5.6.5 and 5.6.6 below, (a) in the event that Landlord shall not have
exercised the termination right as set forth in Section 5.6.2 or shall
have failed to give any or timely notice under Section 5.6.2, then for a
period of one hundred and twenty (120) days (i) after the receipt of
Landlord's notice stating that Landlord does not elect the termination
right or (ii) after the expiration of the six (6) business day period
referred to in Section 5.6.4 in the event Landlord shall not give any or
timely notice under Section 5.6.2 or (b) in the event Landlord has no
termination right (in whole or in part) under Section 5.6.2, as the case
may be, Tenant shall have the right to assign this Lease or sublet the
whole or part of the Premises in accordance with Tenant's notice to
Landlord given as provided in Section 5.6.4 provided that, in each
instance, Tenant first obtains the express prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned
or delayed. Landlord shall exercise its rights under this Section 5.6.3
within the time period set forth in Section 5.6.4 hereof. Without
limitation, Landlord shall not be deemed to be unreasonably withholding
its consent to such a proposed assignment or subleasing if:
(a) the proposed assignee or subtenant is not of a character
consistent with the operation of a first class office building
(by way of example Landlord shall not be deemed to be
unreasonably withholding its consent to an assignment or
subleasing to any governmental agency), or
(b) the proposed assignee or subtenant does not possess adequate
financial capability and liquidity to perform the Tenant
obligations as and when due or required, or
46
<PAGE>
Exhibit 10.9
(c) the assignee or subtenant proposes to use the Premises (or
part thereof) for a purpose other than the purpose for which
the Premises may be used as stated in Section 1.1 hereof, or
(d) the character of the business to be conducted or the proposed
use of the Premises by the proposed subtenant or assignee
shall (i) increase Landlord's Operating Expenses beyond that
which Landlord now incurs for use by Tenant; (ii) increase the
burden on elevators or other Building systems or equipment
over the burden prior to such proposed subletting or
assignment; or (iii) violate any provisions or restrictions
contained herein relating to the use or occupancy of the
Premises. Landlord shall give Tenant reasonable information
supporting any of items (i), (ii) and/or (iii) hereof at such
time as Landlord gives its denial of Tenant's request for
approval.
(e) there shall be existing an Event of Default at the time such
consent is requested (defined in Section 7.1).
5.6.4 Tenant shall give Landlord notice of any proposed sublease or assignment,
and said notice shall specify the provisions of the proposed assignment
or subletting, including (a) the name and address of the proposed
assignee or subtenant, (b) in the case of a proposed assignment or
subletting pursuant to Section 5.6.2 or Section 5.6.3, such information
as to the proposed assignee's or proposed subtenant's net worth and
financial capability and standing as may reasonably be required for
Landlord to make the determination referred to in Section 5.6.2 or
Section 5.6.3 above (provided, however, that Landlord shall hold such
information confidential having the right to release same to its
officers, accountants, attorneys and mortgage lenders on a confidential
basis), (c) all of the terms and provisions upon which the proposed
assignment or subletting is to be made, (d) in the case of a proposed
assignment or subletting pursuant to Section 5.6.2 or Section 5.6.3, all
other information reasonably necessary to make the determination referred
to in Section 5.6.2 or Section 5.6.3 above and (e) in the case of a
proposed assignment or subletting pursuant to Section 5.6.1 above, such
information as may be reasonably required by Landlord to determine that
such proposed assignment or subletting complies with the requirements of
said Section 5.6.1.
In the case of both Section 5.6.2 and Section 5.6.3, Landlord shall
exercise its rights thereunder within six (6) business days after receipt
of Tenant's notice; provided, however, that not later than the sixth
(6th) business day after receipt of such notice, Landlord shall have the
right to give written notice to Tenant (i) specifying in reasonable
47
<PAGE>
Exhibit 10.9
detail respects in which Tenant's notice and the materials submitted
therewith are insufficient for Landlord to make the determinations under
and in accordance with Sections 5.6.2 and 5.6.3 and (ii) requesting
additional information from Tenant, in which case the six (6) business
day period shall recommence to run from Landlord's receipt of such
additional information.
If Landlord shall consent to the proposed assignment or subletting, as
the case may be, then, in such event, Tenant may thereafter sublease (the
whole or part of the Premises) or assign, in either case pursuant to
Tenant's notice, as given hereunder; provided, however, that if such
assignment or sublease shall not be executed and delivered to Landlord
within one hundred and twenty (120) days after the date of Landlord's
consent, the consent shall be deemed null and void and the provisions of
Sections 5.6.2 and/or 5.6.3, as the case may be, shall be applicable.
5.6.5 In addition, in the case of any assignment or subleasing as to which
Landlord may consent (other than an assignment or subletting permitted
under Section 5.6.1 hereof) such consent shall be upon the express and
further condition, covenant and agreement, and Tenant hereby covenants
and agrees that, in addition to the Annual Fixed Rent, Additional Rent
and other charges to be paid pursuant to this Lease, fifty percent (50%)
of the "Assignment/Sublease Profits" (hereinafter defined), if any, shall
be paid to Landlord.
The "Assignment/Sublease Profits" shall be the excess, if any, of (a) the
"Assignment/Sublease Net Revenues" as hereinafter defined over (b) the
Annual Fixed Rent and Additional Rent and other charges provided in this
Lease(pro-rated in the case of a partial subletting). The
"Assignment/Sublease Net Revenues" shall be the fixed rent, Additional
Rent and all other charges and sums payable either initially or over the
term of the sublease or assignment plus all other profits and increases
----
to be derived by Tenant as a result of such subletting or assignment,
less the reasonable costs of Tenant incurred in such subleasing or
assignment (the definition of which shall include but not necessarily be
limited to rent concessions, brokerage commissions and alteration
allowances) amortized over the term of the sublease or assignment.
All payments of the Assignment/Sublease Profits due Landlord shall be
made within ten (10) days of receipt of same by Tenant.
5.6.6 (A) It shall be a condition of the validity of any assignment or
subletting of right under Section 5.6.1 above, or consented to under
Section 5.6.3 above, that the assignee or sublessee agrees directly with
Landlord, in form reasonably satisfactory to Landlord, to be bound by all
the obligations of the Tenant hereunder, including, without limitation,
the
48
<PAGE>
Exhibit 10.9
obligation to pay the rent and other amounts provided for under this Lease
(but in the case of a partial subletting, such subtenant shall agree on a
pro rata basis to be so bound) including the provisions of Sections 5.6
through 5.6.6 hereof, but such assignment or subletting shall not relieve
the Tenant named herein of any of the obligations of the Tenant hereunder,
Tenant shall remain fully and primarily liable therefor and the liability
of Tenant and such assignee (or subtenant, as the case may be) shall be
joint and several. Further, and notwithstanding the foregoing, the
provisions hereof shall not constitute a recognition of the assignment or
the assignee thereunder or the sublease or the subtenant thereunder, as the
case may be, and at Landlord's option, upon the termination of the Lease,
the assignment or sublease shall be terminated unless otherwise expressly
agreed to in writing by Landlord.
(B) As Additional Rent, Tenant shall reimburse Landlord promptly for
reasonable out of pocket legal and other expenses incurred by Landlord in
connection with any request by Tenant for consent to assignment or
subletting but (i) in no event more than $2,500.00 per transaction if
outside counsel is utilized by Landlord and (ii) in no event more than
$1,500.00 per transaction if inside counsel is utilized by Landlord.
(C) If this Lease is assigned, or if the Premises or any part thereof are
sublet or occupied by anyone other than Tenant, Landlord may upon prior
written notice to Tenant, at any time and from time to time, collect rent
and other charges from the assignee, sublessee or occupant 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 this covenant, or a waiver of the provisions of Sections 5.6
through 5.6.6 hereof, or the acceptance of the assignee, sublessee or
occupant as a tenant or a release of Tenant from the further performance by
Tenant of covenants on the part of Tenant herein contained, the Tenant
herein named to remain primarily liable under this Lease.
(D) The consent by Landlord to an assignment or subletting under any of
the provisions of Sections 5.6.1 or 5.6.3 shall in no way be construed to
relieve Tenant from obtaining the express consent in writing to Landlord to
any further assignment or subletting.
5.7 (A) To defend with counsel first approved by Landlord (which approval
shall not be unreasonably withheld or delayed, it being agreed that counsel
selected by Tenant's liability insurance carrier shall be deemed approved),
save harmless, and indemnify Landlord from any liability for injury, loss,
accident or damage to any person or property, and from any claims, actions,
proceedings and expenses and costs in connection therewith (including
without limitation reasonable counsel fees) (i) arising from or claimed to
have
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<PAGE>
Exhibit 10.9
arisen from (a) the omission, fault, willful act, negligence or other
misconduct of Tenant or Tenant's contractors, licensees, invitees, agents,
servants, independent contractors or employees or (b) any use made or thing
done or occurring on the Premises not due to the omission, fault, willful
act, negligence or other misconduct of Landlord or Landlord's contractors,
licensees, invitees, agents, servants or employees, or (ii) resulting from
the failure of Tenant to perform and discharge its covenants and
obligations under this Lease; to maintain commercial general liability
insurance or comprehensive general liability insurance written on an
occurrence basis with a broad form comprehensive liability endorsement
covering the Premises insuring Landlord and Landlord's managing agent (and
such persons as are in privity of estate with Landlord and Landlord's
managing agent as may be set out in a written notice to Tenant from time to
time) as additional insureds as well as Tenant with limits which shall, at
the commencement of the Term, be at least equal to those stated in Section
1.1 and from time to time during the Term shall be for such higher limits,
if any, as are customarily carried in Greater Boston with respect to
similar properties or which may reasonably be required by Landlord, and
workmen's compensation insurance with statutory limits covering all of
Tenant's employees working in the Premises, and to deposit with Landlord on
or before the Commencement Date and concurrent with all renewals thereof,
certificates for such insurance bearing the endorsement that the policies
will not be canceled until after thirty (30) days' written notice to
Landlord. All insurance required to be maintained by Tenant pursuant to
this Lease shall be maintained with responsible companies qualified to do
business, and in good standing, in the Commonwealth of Massachusetts and
which have a rating of at least "A-" and are within a financial size
category of not less than "Class VIII" in the most current Best's Key
Rating Guide or such similar rating as may be reasonably selected by
Landlord if such Guide is no longer published.
(B) Subject to the limitations of Section 8.4 hereof, to the extent not
resulting from any act, omission, fault, negligence or misconduct of Tenant
or its contractors, agents, licensees, invitees, servants or employees,
Landlord agrees to indemnify, defend and save harmless Tenant from and
against any claim arising from any accident or injury to any person
occurring in the Premises, in the Building or on the Site after the date
that possession of the Premises is first delivered to Tenant and until the
expiration or earlier termination of the Lease Term, to the extent such
accident or injury results from the negligence of Landlord or Landlord's
employees, agents or contractors provided, however that in no event shall
the aforesaid indemnity render Landlord responsible or liable for any loss
or damage to fixtures or personal property of Tenant and Landlord shall in
no event be liable for any indirect or consequential damages; and provided,
further, that the provisions of this Section shall not be applicable (i) to
the holder of any mortgage now or hereafter on the Site or the Building
(whether or not such holder shall be a mortgagee in possession of or shall
have exercised any rights under a conditional, collateral or other
-50-
<PAGE>
Exhibit 10.9
assignment of leases and/or rents respecting, the Site and/or Building) or
(ii) any person acquiring title as a result of, or subsequent to, a
foreclosure of any such mortgage or a deed in lieu of foreclosure, except
to the extent of liability insurance maintained by the foregoing. The
foregoing provisions of this Section 5.7(B) shall not be applicable to the
matters set forth in Section 4.4 hereof.
5.8 That all of the furnishings, fixtures, equipment, effects and property of
every kind, nature and description of Tenant and of all persons claiming
by, through or under Tenant which, during the continuance of this Lease or
any occupancy of the Premises by Tenant or anyone claiming under Tenant,
may be on the Premises or elsewhere in the Building or on the Site, shall
be at the sole risk and hazard of 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, 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 Landlord, except that Landlord shall in no event be indemnified or
held harmless or exonerated from any liability to Tenant or to any other
person, for any injury, loss, damage or liability to the extent such
indemnity, hold harmless or exoneration is prohibited by law. Further,
Tenant, at Tenant's expense, shall maintain at all times during the Term of
this Lease insurance against loss or damage covered by the so-called "all
risk" type insurance coverage with respect to Tenant's fixtures, equipment,
goods, wares and merchandise, tenant improvements made by or paid for by
Tenant, and other property of Tenant (collectively "Tenant's Property").
Such insurance shall be in an amount at least equal to the full replacement
cost of Tenant's Property.
5.9 To permit Landlord and its agents to examine the Premises at reasonable
times and, if Landlord shall so elect, to make any repairs or replacements
Landlord may deem necessary (excluding the interior painting and cosmetic
decoration permitted to be made by Tenant under and on the terms set forth
in Section 3.3 hereof), to remove, at Tenant's expense, any alterations,
addition, signs, curtains, blinds, shades, awnings, aerials, flagpoles, or
the like not consented to in writing; and to show the Premises to
prospective tenants during the nine (9) months preceding expiration of the
Term and to prospective purchasers and mortgagees at all reasonable times.
Except in the case of emergencies, such examination and entry shall be upon
reasonable advance notice to Tenant and in accordance with Tenant's
reasonable security requirements for entry into and examination of the
Premises.
5.10 Not to place a load upon the Premises exceeding an average rate of 100
pounds of live load per square foot of floor area (partitions shall be
considered as part of the live load); and not to move any safe, vault or
other heavy equipment in, about or out of the Premises except in such
manner and at such time as Landlord shall in each instance authorize;
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<PAGE>
Exhibit 10.9
Tenant's business machines and mechanical equipment which cause vibration
or noise that may be transmitted to the Building structure or to any other
space in the Building shall be so installed, maintained and used by Tenant
so as to eliminate such vibration or noise.
5.11 To pay promptly when due all taxes which may be imposed upon Tenant's
Property in the Premises to whomever assessed.
5.12 To comply with all applicable Legal Requirements now or hereafter in force
which shall impose a duty on Landlord or Tenant relating or resulting
solely from Tenant's use or occupancy of the Premises; provided that Tenant
shall not be required to make any alterations or additions to the
structure, roof, exterior and load bearing walls, foundation, structural
floor slabs and other structural elements of the Building unless and only
to the extent the same are required by such Legal Requirements solely as a
result of Tenant's use or occupancy of the Premises beyond normal office
use of space of this kind. Tenant shall promptly pay all fines, penalties
and damages that may arise out of or be imposed because of its failure to
comply with the provisions of this Section 5.12.
5.13 To pay as Additional Rent all reasonable costs, counsel and other fees
incurred by Landlord in connection with the successful enforcement by
Landlord of any obligations of Tenant under this Lease.
ARTICLE VI
----------
CASUALTY AND TAKING
-------------------
6.1 In case during the Lease Term the Building or the Site are damaged by fire
or other casualty and such fire or casualty damage cannot, in the ordinary
course, reasonably be expected to be repaired within two hundred ten (210)
days from the time that repair work would commence, Landlord may, at its
election, terminate this Lease by notice given to Tenant within sixty (60)
days after the date of such fire or other casualty, specifying the
effective date of termination. The effective date of termination specified
by Landlord shall not be less than thirty (30) days nor more than forty-
five (45) days after the date of notice of such termination.
In case during the Lease Term, the Premises are damaged by fire or other
casualty and such fire or casualty damage cannot, in the ordinary course,
reasonably be expected to be repaired within two hundred ten (210) days
(and/or as to special work or work which requires long lead time then if
such work cannot reasonably be expected to be repaired within such
additional time as is reasonable under the circumstances given the nature
of
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<PAGE>
Exhibit 10.9
the work) from the time that repair work would commence, Tenant may, at
its election, terminate this Lease by notice given to Landlord within sixty
(60) days after the date of such fire or other casualty, specifying the
effective date of termination. The effective date of termination specified
by Tenant shall be not less than thirty (30) days nor more than forty-five
(45) days after the date of notice of such termination.
For purposes of Sections 6.1 and 6.2, the repair work shall be deemed to
have commenced on the first to occur of (i) the date of the issuance of a
building permit by the Town of Lexington for such repair work and (ii)
forty-five (45) days following the date of the fire or other casualty.
Unless terminated pursuant to the foregoing provisions, this Lease shall
remain in full force and effect following any such damage subject, however,
to the following provisions.
If the Building or the Site or any part thereof are damaged by fire or
other casualty and this Lease is not so terminated, or Landlord or Tenant
have no right to terminate this Lease, and in any such case the holder of
any mortgage which includes the Building as a part of the mortgaged
premises or any ground lessor of any ground lease which includes the Site
as part of the demised premises allows the net insurance proceeds to be
applied to the restoration of the Building (and/or the Site), Landlord
shall, promptly after such damage and the determination of the net amount
of insurance proceeds available, use due diligence to restore the Premises
and the Building in the event of damage thereto (excluding Tenant's
Property) substantially the same condition the Premises were in immediately
prior to such fire or causality (excluding Tenant's Property and any
alterations, additions or improvements constructed by Tenant) and a just
proportion of the Annual Fixed Rent, Tenant's share of Operating Costs and
Tenant's share of real estate taxes shall be abated commencing on the date
of such fire or casualty according to the nature and extent of the injury
to the Premises, until the Premises shall have been restored by Landlord
substantially into such condition except for punch list items and long lead
items. Notwithstanding anything herein contained to the contrary, Landlord
shall not be obligated to expend for such repair and restoration any amount
in excess of the net insurance proceeds.
If such restoration is not completed within two hundred forty (240) days
from the date that repair or restoration work actually commences, such
period to be subject, however, to extension where the delay in completion
of such work is due to causes beyond Landlord's reasonable control (but in
no event beyond two hundred seventy (270) days from the date repair or
restoration work actually commences), Tenant shall have the right to
terminate this Lease at any time after the expiration of such two hundred
forty (240)
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<PAGE>
Exhibit 10.9
day period (as extended), which right shall continue until the
restoration is substantially completed. Such termination shall be
effective as of the thirtieth (30th) day after the date of receipt by
Landlord of Tenant's notice, with the same force and effect as if such date
were the date originally established as the expiration date hereof unless,
within thirty (30) days after Landlord's receipt of Tenant's notice, such
restoration is substantially completed, in which case Tenant's notice of
termination shall be of no force and effect and this Lease and the Lease
Term shall continue in full force and effect.
6.2 Notwithstanding anything to the contrary contained in this Lease, if the
Building or the Premises shall be substantially damaged by fire or casualty
as the result of a risk not covered by the forms of casualty insurance at
the time maintained by Landlord and such fire or casualty damage cannot, in
the ordinary course, reasonably be expected to be repaired within ninety
(90) days from the time that repair work would commence, Landlord may, at
its election, terminate the Term of this Lease by notice to the Tenant
given within thirty (30) days after such loss. If Landlord shall give such
notice, then this Lease shall terminate as of the date of such notice with
the same force and effect as if such date were the date originally
established as the expiration date hereof.
6.3 If the entire Building, or such portion of the Premises as to render the
balance (if reconstructed to the maximum extent practicable in the
circumstances) unsuitable for Tenant's purposes, shall be taken by
condemnation or right of eminent domain, Landlord or Tenant shall have the
right to terminate this 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 Tenant has been deprived of possession. If either party shall give
such notice, then this Lease shall terminate as of the date of such notice
with the same force and effect as if such date were the date originally
established as the expiration date hereof.
Further, if so much of the Building shall be so taken that continued
operation of the Building would be uneconomic as a result of the taking,
Landlord shall have the right to terminate this Lease by giving notice to
Tenant of Landlord's desire to do so not later than thirty (30) days after
Tenant has been deprived of possession of the Premises (or such portion
thereof as may be taken). If Landlord shall give such notice, then this
Lease shall terminate as of the date of such notice with the same force and
effect as if such date were the date originally established as the
expiration date hereof.
Should any part of the Premises be so taken or condemned during the Lease
Term hereof, and should this Lease not be terminated in accordance with the
foregoing provisions, and the holder of any mortgage which includes the
Premises as part of the mortgaged premises or any ground lessor of any
ground lease which includes the Site as part of the demised premises allows
the net condemnation proceeds to be applied to the restoration of the
Building, Landlord agrees, after the determination of the net amount of
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<PAGE>
Exhibit 10.9
condemnation proceeds available to Landlord, to use due diligence 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 (excluding Tenant's Property).
Notwithstanding the foregoing, Landlord shall not be obligated to expend
for such repair and restoration any amount in excess of the net
condemnation proceeds.
If the Premises shall be affected by any exercise of the power of eminent
domain, then the Annual Fixed Rent, Tenant's share of operating costs and
Tenant's share of real estate taxes shall be justly and equitably abated
and reduced according to the nature and extent of the loss of use thereof
suffered by Tenant; and in case of a taking which permanently reduces the
Rentable Floor Area of the Premises, a just proportion of the Annual Fixed
Rent, Tenant's share of operating costs and Tenant's share of real estate
taxes shall be abated for the remainder of the Lease Term.
6.4 Landlord shall have and hereby reserves to itself any and all rights to
receive awards made for damages to the Premises, the Building, the Complex
and the Site and the leasehold hereby created, or any one or more of them,
accruing by reason of exercise of eminent domain or by reason of anything
lawfully done in pursuance of public or other authority. Tenant hereby
grants, releases and assigns to Landlord all Tenant's rights to such
awards, and covenants to execute and deliver such further assignments and
assurances thereof as Landlord may from time to time request.
Nothing contained herein shall be construed to prevent Tenant from
prosecuting in any condemnation proceeding a claim for the value of any of
Tenant's usual trade fixtures installed in the Premises by Tenant at
Tenant's expense and for relocation and moving expenses, provided that such
action and any resulting award shall not affect or diminish the amount of
compensation otherwise recoverable by Landlord from the taking authority.
ARTICLE VII
-----------
DEFAULT
-------
7.1 (a) If at any time subsequent to the date of this Lease any one or more of
the following events (herein sometimes called an "Event of Default") shall
occur:
(i) Tenant shall fail to pay the 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, and the same continues
for five (5) days after
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<PAGE>
Exhibit 10.9
written notice from Landlord thereof, or
(ii) Landlord having rightfully given the notice specified in
subdivision (a) above twice in any calendar year, Tenant shall
thereafter in the same calendar year fail to pay the fixed rent,
Additional Rent or other charges on or before the date on which
the same become due and payable, or,
(iii) Tenant shall neglect or fail to perform or observe any other
covenant herein contained on Tenant's part to be performed or
observed and Tenant shall fail to remedy the same within thirty
(30) days after written notice to Tenant specifying such neglect
or failure, or if such failure is of such a nature that Tenant
cannot reasonably remedy the same within such thirty (30) day
period, Tenant shall fail to commence promptly to remedy the same
and to prosecute such remedy to completion with diligence and
continuity; or
(iv) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant; or
(v) Tenant shall make an assignment for the benefit of creditors or
shall file a voluntary petition in bankruptcy or shall be
adjudicated bankrupt or insolvent, or shall file any petition or
answer seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for
itself under any present or future Federal, State or other
statute, law or regulation for the relief of debtors, or shall
seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all or any
substantial part of its properties, or shall admit in writing its
inability to pay its debts generally as they become due; or
(vi) A petition shall be filed against Tenant in bankruptcy or under
any other law seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar
relief under any present or future Federal, State or other
statute, law or regulation and shall remain undismissed or
unstayed for an aggregate of ninety (90) days (whether or not
consecutive), or if any debtor in possession (whether or not
Tenant) trustee, receiver or liquidator of Tenant or of all or
any substantial part of its properties or of the Premises shall
be appointed without the consent or acquiescence of Tenant and
such appointment shall remain unvacated or unstayed for an
aggregate of ninety (90) days (whether or not consecutive)--
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<PAGE>
Exhibit 10.9
then, and in any of said cases (notwithstanding any license of a former
breach of covenant or waiver of the benefit hereof or consent in a former
instance), Landlord lawfully may, immediately or at any time thereafter,
and without demand or further notice terminate this Lease by notice to
Tenant, specifying a date not less than ten (10) days after the giving of
such notice on which this Lease shall terminate, 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 expiration of the Lease
Term (Tenant hereby waiving any rights of redemption), and Tenant will then
quit and surrender the Premises to Landlord, but Tenant shall remain liable
as hereinafter provided.
(b) If this Lease shall have been terminated as provided in this Article,
then Landlord may, in accordance with applicable laws, re-enter the
Premises, either by force, summary proceedings, ejectment or otherwise, and
remove and dispossess Tenant and all other persons and any and all property
from the same, as if this Lease had not been made.
(c) In the event that this Lease is terminated under any of the provisions
contained in Section 7.1 (a) or shall be otherwise terminated by breach of
any obligation of Tenant, Tenant covenants and agrees forthwith to pay and
be liable for, on the days originally fixed herein for the payment thereof,
amounts equal to the several installments of rent and other charges
reserved as they would, under the terms of this Lease, become due if this
Lease had not been terminated or if Landlord had not entered or re-entered,
as aforesaid, and whether the Premises be relet or remain vacant, in whole
or in part, or relet for a period less than the remainder of the Term, and
for the whole thereof, but in the event the Premises be relet by Landlord,
Tenant shall be entitled to a credit in the net amount of rent and other
charges received by Landlord in reletting, after deduction of all expenses
incurred in reletting the Premises (including, without limitation,
remodeling costs, brokerage fees and the like), and in collecting the rent
in connection therewith, in the following manner:
Amounts received by Landlord after reletting shall first be applied against
such Landlord's expenses, until the same are recovered, and until such
recovery, Tenant shall pay, as of each day when a payment would fall due
under this Lease, the amount which Tenant is obligated to pay under the
terms of this Lease (Tenant's liability prior to any such reletting and
such recovery not in any way to be diminished as a result of the fact that
such reletting might be for a rent higher than the rent provided for in
this Lease); when and if such expenses have been completely recovered, the
amounts received from reletting by Landlord as have not previously been
applied shall be credited against Tenant's obligations as of each day when
a payment would fall due under this Lease, and only the net amount thereof
shall be payable by Tenant. Further, amounts received by
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<PAGE>
Exhibit 10.9
Landlord from such reletting for any period shall be credited only against
obligations of Tenant allocable to such period, and shall not be credited
against obligations of Tenant hereunder accruing subsequent or prior to
such period; nor shall any credit of any kind be due for any period after
the date when the term of this Lease is scheduled to expire according to
its terms.
(d)(i) At any time after such termination and whether or not Landlord shall
have collected any damages as aforesaid, Tenant shall pay to Landlord as
liquidated final damages and in lieu of all other damages beyond the date
of notice from Landlord to Tenant, at Landlord's election, such a sum as at
the time of the giving of such notice represents the amount of the excess,
if any, of the total rent and other benefits which would have accrued to
Landlord under this Lease from the date of such notice for what would be
the then unexpired Lease Term if the Lease terms had been fully complied
with by Tenant over and above the then cash rental value (in advance) of
the Premises for the balance of the Lease Term.
(d)(ii) For the purposes of this Article, if Landlord elects to require
Tenant to pay damages in accordance with the immediately preceding
paragraph, the total rent shall be computed by assuming that Tenant's share
of excess taxes, Tenant's share of excess operating costs and Tenant's
share of excess electrical costs would be, for the balance of the unexpired
Term from the date of such notice, the amount thereof (if any) for the
immediately preceding annual period payable by Tenant to Landlord.
(e) In case of any Event of Default, re-entry, dispossession by summary
proceedings or otherwise, Landlord may (i) re-let the Premises or any part
or parts thereof, either in the name of Landlord or otherwise, for a term
or terms which may at Landlord's option be equal to or less than or exceed
the period which would otherwise have constituted the balance of the Term
of this Lease and may grant concessions or free rent to the extent that
Landlord considers advisable or necessary to re-let the same and (ii) may
make such alterations, repairs and decorations in the Premises as Landlord
in its sole judgment considers advisable or necessary for the purpose of
reletting the Premises; and the making of such alterations, repairs and
decorations shall not operate or be construed to release Tenant from
liability hereunder as aforesaid. Landlord shall use reasonable efforts to
re-let the Premises after Tenant vacates the Premises (which shall be
deemed satisfied by Landlord offering the Premises for lease either
directly or through a commercial real estate leasing broker or brokerage
firm) but the failure to re-let shall not give rise to any claim, action or
counterclaim by Tenant nor release, limit, reduce or otherwise modify
Tenant's liability. Also, Landlord shall in no event be liable in any way
whatsoever for failure to re-let the Premises, or, in the event that the
Premises are re-let, for failure to collect the rent under re-letting.
Tenant hereby expressly waives any and all rights of
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<PAGE>
Exhibit 10.9
redemption granted by or under any present or future laws in the event of
Tenant being evicted or dispossessed, or in the event of Landlord obtaining
possession of the Premises, by reason of the violation by Tenant of any of
the covenants and conditions of this Lease.
(f) The specified remedies to which Landlord may resort hereunder are not
intended to be exclusive of any remedies or means of redress to which
Landlord may at any time be entitled lawfully, and Landlord may invoke any
remedy (including the remedy of specific performance) allowed at law or in
equity as if specific remedies were not herein provided for. Further,
nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove and obtain in proceedings for bankruptcy or insolvency by
reason of the termination of this Lease, an amount equal to the maximum
allowed by any 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.
7.2 Landlord shall in no event be in default in the performance of any of
Landlord's obligations hereunder (i) unless and until Landlord shall have
failed to perform such obligations within thirty (30) days, after written
notice by Tenant to Landlord properly specifying wherein Landlord has
failed to perform any such obligation or (ii) if such obligation cannot
reasonably be performed within said thirty (30) day period, unless Landlord
(a) fails to commence to perform such obligations within said thirty (30)
day period and (b) fails to diligently and continuously pursue same to
completion.
ARTICLE VIII
------------
8.1 Tenant covenants and agrees that Tenant will not do or permit anything to
be done in or upon the Premises, or bring in anything or keep anything
therein, which shall invalidate or increase the rate of insurance on the
Premises or on the Building above the standard rate applicable to premises
being occupied for the use to which Tenant has agreed to devote the
Premises; and Tenant further agrees that, in the event that Tenant shall do
any of the foregoing, Tenant will promptly pay to Landlord, on demand, any
such increase resulting therefrom, which shall be due and payable as
Additional Rent thereunder, provided Landlord has previously notified
Tenant in writing that Tenant's use or activities would or will result in
an increase in Landlord's insurance or would or will result in an
invalidation of Landlord's insurance covering the Property. Landlord
hereby acknowledges that the "Permitted Use" (as defined in Section 1.1
hereof) does not invalidate, or increase the rate of, Landlord's insurance
but Landlord makes no such statement as to Tenant's specific activities.
8.2 Failure on the part of Landlord or Tenant to complain of any action or non-
action on the
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<PAGE>
Exhibit 10.9
part of the other, no matter how long the same may continue, shall never be
a waiver by Tenant or Landlord, respectively, of any of its rights
hereunder. Further, no waiver at any time of any of the provisions hereof
by Landlord or Tenant shall be construed as a waiver of any of the other
provisions hereof, and a waiver at any time of any of the provisions hereof
shall not be construed as a waiver at any subsequent time of the same
provisions. The consent or approval of Landlord or Tenant to or of any
action by the other requiring such consent or approval shall not be
construed to waive or render unnecessary Landlord's or Tenant's consent or
approval to or of subsequent similar act by the other.
No payment by Tenant, or acceptance by Landlord, of a lesser amount than
shall be due from Tenant to Landlord shall be treated otherwise than as a
payment on account. The acceptance by Landlord of a check for a lesser
amount with an endorsement or statement thereon, or upon any letter
accompanying such check, that such lesser amount is payment in full, shall
be given no effect, and Landlord may accept such check without prejudice to
any other rights or remedies which Landlord may have against Tenant.
8.3 The specific remedies to which 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 such party may be lawfully entitled
at law or in equity in case of any breach or threatened breach by Tenant of
any provisions of this Lease.
8.4 Tenant, subject to the terms and provisions of this Lease on payment of the
rent and observing, keeping and performing all of the terms and provisions
of this Lease on Tenant's part to be observed, kept and performed, shall
lawfully, peaceably and quietly have, hold, occupy and enjoy the Premises
during the Term, without hindrance or ejection by any persons lawfully
claiming under Landlord to have title to the Premises superior to Tenant;
the foregoing covenant of quiet enjoyment is in lieu of any other covenant,
express or implied; and it is understood and agreed that this covenant and
any and all other covenants of Landlord contained in this Lease shall be
binding upon Landlord and Landlord's successors only with respect to
breaches occurring during Landlord's or Landlord's successors' respective
ownership of Landlord's interest hereunder, as the case may be.
Further, Tenant specifically agrees to look solely to Landlord's then
equity interest in the Building at the time owned, or in which Landlord
holds an interest as ground lessee, for recovery of any judgment from
Landlord; it being specifically agreed that neither Landlord (original or
successor), nor any partner in or of Landlord, nor any beneficiary of any
Trust of which any person holding Landlord's interest is Trustee, shall
ever be personally liable for any such judgment, or for the payment of any
monetary obligation to Tenant. The provision contained in the foregoing
sentence is not intended to, and shall
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<PAGE>
Exhibit 10.9
not, limit any right that Tenant might otherwise have to obtain injunctive
relief against Landlord or Landlord's successors in interest, or any action
not involving the personal liability of Landlord (original or successor),
any partner in or of Landlord, any successor Trustee to the persons named
herein as Landlord, or any beneficiary of any Trust of which any person
holding Landlord's interest is Trustee, to respond in monetary damages from
Landlord's assets other than Landlord's equity interest aforesaid in the
Building. In no event shall Landlord ever be liable to Tenant for any
indirect or consequential damages suffered by Tenant from whatever cause.
8.5 After receiving written notice from any person, firm or other entity that
it holds a mortgage which includes the Premises as part of the mortgaged
premises, or that it is the ground lessor under a lease with Landlord, as
ground lessee, which includes the Premises as a part of the demised
premises, no notice from Tenant to Landlord shall be effective unless and
until a copy of the same is given to such holder or ground lessor, and the
curing of any of Landlord's defaults by such holder or ground lessor within
the time period set forth in the Subordination, Non-Disturbance and
Attornment Agreement between Tenant and such mortgagee or ground lessor
shall be treated as performance by Landlord. For the purposes of this
Section 8.5 or Section 8.15, the term "mortgage" includes a mortgage on a
leasehold interest of Landlord (but not one on Tenant's leasehold
interest).
8.6 With reference to any assignment by Landlord or Landlord's interest in this
Lease, or the rents payable hereunder, conditional in nature or otherwise,
which assignment is made to the holder of a mortgage or ground lease on
property which includes the Premises, Tenant agrees:
(a) That the execution thereof by Landlord, and the acceptance
thereof by the holder of such mortgage or the ground lessor,
shall never be treated as an assumption by such holder or ground
lessor of any of the obligations of Landlord hereunder, unless
such holder, or ground lessor, shall, by notice sent to Tenant,
specifically otherwise elect; and
(b) That, except as aforesaid, such holder or ground lessor shall be
treated as having assumed Landlord's obligations hereunder only
upon foreclosure of such holder's mortgage and the taking of
possession of the Premises, or, in the case of a ground lessor,
the assumption of Landlord's position hereunder by such ground
lessor.
In no event shall the acquisition of title to the Building and
the land on which the same is located by a purchaser which,
simultaneously therewith, leases the entire Building or such land
back to the seller thereof be treated
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<PAGE>
Exhibit 10.9
as an assumption by such purchaser-lessor, by operation of law or
otherwise, of Landlord's obligations hereunder, but Tenant shall
look solely to such seller-lessee, and its successors from time
to time in title, for performance of Landlord's obligations
hereunder subject to the provisions of Section 8.4 hereof. In any
such event, this Lease shall be subject and subordinate to the
lease to such purchaser provided that such purchaser agrees to
recognize the lease (including but not limited to the right of
Tenant to use and occupy the Premises) upon the payment of rent
and other charges payable by Tenant under this Lease and the
performance by Tenant of Tenant's obligations under this Lease
and provided that Tenant agrees to attorn to such purchaser. For
all purposes, such seller-lessee, and its successors in title,
shall be the landlord hereunder unless and until Landlord's
position shall have been assumed by such purchaser-lessor.
8.7 No act or thing done by Landlord during the Lease Term shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid, unless in writing signed by Landlord. No
employee of Landlord or of Landlord's agents shall have any power to accept
the keys of the Premises prior to the termination of this Lease. The
delivery of keys to any employee of Landlord or of Landlord's agents shall
not operate as a termination of the Lease or a surrender of the Premises.
8.8 (A) Tenant warrants and represents that Tenant has not dealt with any
broker, finder or other agent in connection with the consummation of this
Lease other than the Recognized Brokers, if any, designated in Section 1.1
hereof; and in the event any claim is made against the Landlord relative to
dealings by Tenant with brokers, finders or other agents other than the
Recognized Brokers, if any, designated in Section 1.1 hereof, Tenant shall
defend the claim against Landlord with counsel of Tenant's selection first
approved by Landlord (which approval will not be unreasonably withheld) and
save harmless and indemnify Landlord on account of loss, cost or damage
which may arise by reason of such claim.
(B) Landlord warrants and represents that Landlord has not dealt with any
broker, finder or other agent in connection with the consummation of this
Lease other than the Recognized Brokers, if any, designated in Section 1.1
hereof; and in the event any claim is made against the Tenant relative to
dealings by Landlord with brokers, finders or other agents other than the
Recognized Brokers, if any, designated in Section 1.1 hereof, Landlord
shall defend the claim against Tenant with counsel of Landlord's selection
and approved by tenant (which approval shall not be unreasonably withheld)
and save harmless and indemnify Tenant on account of loss, cost or damage
which may arise by reason of such claim. Landlord agrees that it shall be
solely responsible for the payment
-62-
<PAGE>
Exhibit 10.9
of brokerage commissions to the Recognized Brokers, if any, designated in
Section 1.1 hereof.
8.9 If any term or provision of this Lease, or the application thereof to any
person or circumstance shall, to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such term or provision
to persons or circumstances other than those as to which it is held invalid
or unenforceable, shall not be affected thereby, and each term and
provision of this Lease shall be valid and be enforced to the fullest
extent permitted by law.
8.10 The obligations of this Lease shall run with the land, and except as herein
otherwise provided, the terms hereof shall be binding upon and shall inure
to the benefit of the successors and assigns, respectively, of Landlord and
Tenant and, if Tenant shall be an individual, upon and to his heirs,
executors, administrators, successors and assigns. Each term and each
provision of this Lease to be performed by Tenant shall be construed to be
both a covenant and a condition. The reference contained to successors and
assigns of Tenant is not intended to constitute a consent to subletting or
assignment by Tenant.
8.11 Tenant agrees not to record the within Lease, but each party hereto agrees
that simultaneously with the execution of this Lease, they will execute a
so-called Notice of Lease in form recordable and complying with applicable
law and reasonably satisfactory to both Landlord's and Tenant's attorneys.
In no event shall such document set forth rent or other charges payable by
Tenant under this Lease; and any such document shall expressly state that
it is executed pursuant to the provisions contained in this Lease, and is
not intended to vary the terms and conditions of this Lease.
8.12 Whenever, by the terms of this Lease, notice shall or may be given either
to Landlord or to Tenant, such notice shall be in writing and shall be sent
by registered or certified mail or delivered by a recognized same-day
courier or delivered by a recognized overnight courier in any such case
delivery charges or postage charges prepaid:
If intended for Landlord, addressed to Landlord at the address set
forth on the first page of this Lease (or to such other address or
addresses as may from time to time hereafter be designated by Landlord
by like notice) with a copy to Landlord, Attention: General Counsel.
If intended for Tenant, addressed to Tenant at the address set forth
on the second page of this Lease Attention: Chief Financial Officer
except that from and after the Commencement Date the address of Tenant
shall be the Premises (or to such other address or addresses as may
from time to time hereafter be designated by Tenant by like notice)
with a copy to Testa, Hurwitz & Thibeault, LLP, 125 High
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<PAGE>
Exhibit 10.9
Street Tower, Boston, Massachusetts 02110, Attention: Real Estate
Department.
Except as otherwise provided herein, all such notices shall be effective
when received; provided, that (i) if receipt is refused, notice shall be
effective upon the first occasion that such receipt is refused or (ii) if
the notice is unable to be delivered due to a change of address of which no
notice was given, notice shall be effective upon the date such delivery was
attempted.
Where provision is made for the attention of an individual or department,
the notice shall be effective only if the wrapper in which such notice is
sent is addressed to the attention of such individual or department.
Time is of the essence with respect to any and all notices and periods for
giving notice or taking any action thereto under this Lease.
8.13 Employees or agents of Landlord have no authority to make or agree to make
a lease or any other agreement or undertaking in connection herewith. The
submission of this document for examination and negotiation does not
constitute an offer to lease, or a reservation of, or option for, the
Premises, and this document shall become effective and binding only upon
the execution and delivery hereof by both Landlord and Tenant. All
negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and may be modified or altered
only by written agreement between Landlord and Tenant, and no act or
omission of any employee or agent of Landlord shall alter, change or modify
any of the provisions hereof.
8.14 The titles of the Articles throughout this Lease are for convenience and
reference only, and the words contained therein shall in no way be held to
explain, modify, amplify or aid in the interpretation, construction or
meaning of the provisions of this Lease.
8.15 This Lease shall be subject and subordinate to any mortgage now or
hereafter on the Site and/or the Building, or both, and to each advance
made or hereafter to be made under any mortgage, and to all renewals,
modifications, consolidations, replacements and extensions thereof and all
substitutions therefor provided and on the condition that the holder of
such mortgage agrees to recognize the rights of Tenant under this Lease
(including the right to use and occupy the Premises) upon the payment of
rent and other charges payable by Tenant under this Lease and the
performance by Tenant of Tenant's obligations hereunder in which event
Tenant shall agree to attorn to such holder and its successors as landlord,
all of which agreements shall be set forth in a subordination, non-
disturbance and attornment agreement which shall be reasonably satisfactory
to Tenant, any such mortgagee and Landlord. In confirmation of such
subordination and recognition, Tenant
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<PAGE>
Exhibit 10.9
shall execute and deliver promptly such instruments of subordination and
recognition in accordance with the preceding provisions of this Section
8.15. In the event that any mortgagee or its respective successor in title
shall succeed to the interest of Landlord, then, this Lease shall
nevertheless continue in full force and effect and Tenant shall and does
hereby agree to attorn to such mortgagee or successor and to recognize such
mortgagee or successor as its landlord. If any holder of a mortgage which
includes the Premises, executed and recorded prior to the date of this
Lease, shall so elect, this Lease and the rights of Tenant hereunder, shall
be superior in right to the rights of such holder, with the same force and
effect as if this Lease had been executed, delivered and recorded, or a
statutory Notice hereof recorded, prior to the execution, delivery and
recording of any such mortgage. The election of any such holder shall
become effective upon either notice from such holder to Tenant in the same
fashion as notices from Landlord to Tenant are to be given hereunder and,
if required or desired by such holder, by the recording in the appropriate
registry or recorder's office of an instrument in which such holder
subordinates its rights under such mortgage to this Lease. With respect to
the existing mortgagee, not later than twenty-one (21) days following the
execution of this Lease by both parties Landlord shall obtain a
subordination, non-disturbance and attornment agreement from said mortgagee
in the form of Exhibit H and which shall be executed by Landlord (if
required), Tenant and such mortgagee.
8.16 Recognizing that Landlord may find it necessary to establish to third
parties, such as accountants, banks, potential or existing mortgagees,
potential purchasers or the like, the then current status of performance
hereunder, Tenant, on the request of Landlord made from time to time, will
promptly furnish to Landlord, or any existing or potential holder of any
mortgage encumbering the Premises, the Building, and/or the Site or any
potential purchaser of the Premises, the Building, and/or the Site (each an
"Interested Party"), a statement of the status of any matter pertaining to
this Lease, including, without limitation, acknowledgments that (or the
extent to which) each party is in compliance with its obligations under the
terms of this Lease. In addition, Tenant shall deliver to Landlord, or any
Interested Party designated by Landlord, financial statements of Tenant and
any guarantor of Tenant's obligations under this Lease, as reasonably
requested by Landlord, including, but not limited to financial statements
for the past three (3) years. Any such status statement or financial
statement delivered by Tenant pursuant to this Section 8.16 may be relied
upon by any Interested Party.
8.17 (A) If Tenant shall at any time default in the performance of any
obligation under this Lease beyond applicable notice and cure period
(except in the case of emergencies), Landlord shall have the right, but
shall not be obligated, to enter upon the Premises and to perform such
obligation notwithstanding the fact that no specific provision for such
substituted performance by Landlord is made in this Lease with respect to
such default.
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<PAGE>
Exhibit 10.9
In performing such obligation, Landlord may make any payment of money or
perform any other act. All sums so paid by Landlord (together with interest
at the rate of one and one-half percentage points over the then prevailing
prime rate in Boston as set by The First National Bank of Boston) and all
reasonable costs and expenses in connection with the performance of any
such act by Landlord, shall be deemed to be Additional Rent under this
Lease and shall be payable to Landlord immediately on demand. Landlord may
exercise the foregoing rights without waiving any other of its rights or
releasing Tenant from any of its obligations under this Lease.
(B) In the event (a) Landlord fails to make such repairs as are required of
Landlord under this Lease or to perform any other obligations of Landlord
hereunder within thirty (30) days after written notice from Tenant to
Landlord and to the holder of any mortgage on the Property of which Tenant
has been given written notice by Landlord specifying the nature of such
repairs or other obligations or (b) if such repairs or other obligations
are of the type which cannot be made or performed within such thirty (30)
days, then if Landlord or the holder of any such mortgage (at the option of
such mortgagee) fails to (i) commence making such repairs within thirty
(30) days after such written notice from Tenant and (ii) thereafter
prosecute such repairs or other obligations to completion with due
diligence given the nature of such repairs or other obligations or (c) if
such repairs or other obligations if not performed would constitute an
emergency and would result in material damage to person or property, Tenant
may specify a shorter time period than thirty (30) days (but not less than
ten (10) days) to Landlord and such mortgagee and if Landlord or such
mortgagee (at the option of such mortgagee) fails to (i) commence making
such repairs within such shorter time period and (ii) thereafter prosecute
such repairs or other obligations to completion with due diligence given
such emergency nature thereof, then thereafter at any time prior to
Landlord's commencing such repairs or other obligations, Tenant may, but
need not, make such repairs or perform such other obligations and may make
a demand on Landlord for payment of the reasonable out of pocket cost
thereof and Landlord shall pay the reasonable out of pocket cost thereof;
provided, however, if within thirty (30) days after receipt of such demand,
Landlord shall not have paid same, then Tenant shall have the right to
bring suit in a court of competent jurisdiction in the Commonwealth of
Massachusetts seeking payment of the sum so claimed in Tenant's demand. If
Tenant shall be successful in any such court action then Landlord shall
pay to Tenant Tenant's reasonable out of pocket legal fees actually
incurred in connection with such litigation. However, in no event shall
Tenant have the right to offset against, withhold or deduct from Annual
Fixed Rent, or any Additional Rent or other charges payable under this
Lease nor shall Landlord's failure to pay Tenant's demand be a default of
Landlord or give Tenant the right to terminate this Lease, Tenant's right
being to bring suit as aforesaid.
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<PAGE>
Exhibit 10.9
8.18 Any holding over by Tenant after the expiration of the term of this Lease
shall be treated as a tenancy at sufferance at one hundred and fifty
percent (150%) of the rents and other charges herein (prorated on a daily
basis) and shall otherwise be on the terms and conditions set forth in this
Lease, as far as applicable; provided, however, that neither the foregoing
nor any other term or provision of this Lease shall be deemed to permit
Tenant to retain possession of the Premises or hold over in the Premises
after the expiration or earlier termination of the Lease Term.
8.19 Any insurance carried by either party with respect to the Premises or
property therein or occurrences thereon shall, if it can be so written
without additional premium or with an additional premium which the other
party agrees 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 due to
hazards covered by such insurance to the extent of the indemnification
received thereunder.
8.20 Tenant agrees that the security deposit specified in Section 1.1 hereof
(the "Security Deposit") will be paid within ten (10) days after Tenant's
execution and delivery of this Lease (time being of the essence). Subject
to the following provisions of this Section, throughout the Term of this
Lease (including any extension thereof) Landlord shall hold the same as
security for the performance by Tenant of all obligations on the part of
Tenant to be kept and performed under this Lease. The Security Deposit
shall be in the form of an irrevocable, unconditional, negotiable letter of
credit (the "Letter of Credit") issued by and drawn on a bank, and in a
form reasonably acceptable to Landlord, which Letter of Credit shall permit
one or more draws thereunder to be made accompanied only by certification
by Landlord that pursuant to the terms of this Lease, Landlord is entitled
to apply such Letter of Credit and the proceeds thereof to a default of
Tenant or is otherwise entitled to receive the proceeds thereof under the
terms and provisions of this Lease. Any such Letter of Credit shall be for
a term of two (2) years (or for one (1) year if the issuer thereof
regularly and customarily only issues letters of credit for a maximum term
of one (1) year) and shall in either case be renewed by Tenant each year
thereafter and each renewal shall be delivered to and received by Landlord
not later than thirty (30) days before the expiration of the then current
Letter of Credit (herein called a "Renewal Presentation Date"). In the
event of a failure to so deliver such renewal Letter of Credit on or before
the applicable Renewal Presentation Date, Landlord shall be entitled to
present the then existing Letter of Credit for payment and to receive the
proceeds thereof, which proceeds shall be held as Tenant's security
deposit, subject to the terms of this Section 8.20. In no event shall the
Letter of Credit expire sooner than thirty (30) days after the expiration
of the Lease Term (as extended). Notwithstanding anything to the
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<PAGE>
Exhibit 10.9
contrary contained herein, Landlord shall have the right from time to time
without prejudice to any other right or remedy Landlord may have on account
thereof, to draw on all or any portion of such deposit held as a Letter of
Credit and to apply the proceeds of such Letter of Credit or any cash held
as such deposit, or any part thereof, to Landlord's damages arising from
any default on the part of Tenant which default has continued beyond
applicable notice and cure periods. If Landlord so applies all or any
portion of the Security Deposit, Tenant shall within seven (7) days after
notice from Landlord deliver cash or a Letter of Credit to Landlord in an
amount sufficient to restore the Security Deposit to the full amount stated
in Section 1.1.
Tenant not then being in default and having performed all of its
obligations under this Lease, including, without limitation, the payment of
all Annual Fixed Rent, Landlord shall return the Security Deposit, or so
much thereof as shall not have theretofore been applied or returned in
accordance with the terms of this Section 8.20, to Tenant on the expiration
or earlier termination of the Term of this Lease and the surrender of
possession of the Premises by Tenant to Landlord in the condition required
by this Lease at such time. Provided that on the third (3rd) anniversary
of the Commencement Date (i) no Event of Default then exists and (ii) no
event then exists which with the passage of time or the giving of notice or
both would constitute an Event of Default and (iii) Landlord has not
previously applied any portion of the Security Deposit in accordance with
the terms of this Section or if Landlord has previously applied any portion
thereof Tenant has not restored the Security Deposit account to its full
amount, then on the third (3rd) anniversary of the Commencement Date
Landlord and Tenant agree that the Security Deposit shall be reduced by
$51,792.00 from $155,375.00 to $103,583.00 and to effectuate such reduction
(i) Tenant shall deliver to Landlord a new Letter of Credit (complying with
the foregoing requirements) in the amount of $103,583.00 which shall stand
as the Security Deposit under this Lease and (ii) promptly thereafter
Landlord shall return the existing Letter of Credit to Tenant.
If Landlord conveys Landlord's interest under this Lease, the Security
Deposit, or any part thereof not previously applied or returned, may be
turned over by Landlord to Landlord's grantee, and, if so turned over,
Tenant agrees to look solely to such grantee for proper application of the
Security Deposit in accordance with the terms of this Section 8.20, and the
return thereof in accordance herewith provided that Landlord gives Tenant
written notice of such transfer of the Security Deposit to Landlord's
grantee.
Neither the holder of any mortgage nor the lessor in any ground lease on
property which includes the Premises shall ever be responsible to Tenant
for the return or application of the Security Deposit, or portion thereof
not previously applied or returned, whether or not it succeeds to the
position of Landlord hereunder, unless the Security Deposit, or portion
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<PAGE>
Exhibit 10.9
thereof not previously applied or returned, shall have been received in
hand by such holder or ground lessor.
8.21 If Landlord shall not have received any payment or installment of rent
within five (5) days the date (the "Due Date") on which the same first
becomes payable under this Lease, the amount of such payment or installment
shall bear interest from the Due Date through and including the date such
payment or installment is received by Landlord, at a rate equal to the
lesser of (i) the rate announced by The First National Bank of Boston from
time to time as its prime or base rate (or if such rate is no longer
available, a comparable rate reasonably selected by Landlord), plus two
percent (2%), or (ii) the maximum applicable legal rate, if any. Such
interest shall be deemed Additional Rent and shall be paid by Tenant to
Landlord upon demand.
8.22 Provided and only so long as (i) there shall not have occurred an Event of
Default (as defined in Section 7.1, (ii) this Lease is in full force and
effect and (iii) Tenant has neither assigned this Lease nor sublet more
than twenty five percent (25%) of the Rentable Floor Area of the Premises
(except for an assignment or subletting permitted under Section 5.6.1
hereof), Landlord hereby agrees not to grant signage rights (other than
signage located within the Building and a directory sign listing
substantially all of the tenants in the Building as reasonably determined
by Landlord) to any one (1) tenant leasing less than fifty thousand
(50,000) square feet of rentable floor area in the Building (including
expansion options) without granting to Tenant similar signage rights as
determined by Landlord in its reasonable judgment.
In the event that, pursuant to the foregoing paragraph, Landlord shall
grant signage rights to Tenant, (i) the location, size, design and all
other aspects and features of such sign and its erection and construction
proposed by Tenant shall be subject to Landlord's approval not to be
unreasonably withheld or delayed, (ii) Tenant's right to install such sign
shall be subject to (a) the provisions of the Town of Lexington Zoning By-
Law and other laws, by-laws, rules and regulations from time to time in
effect and applicable and (b) Tenant obtaining and delivering to Landlord
prior to erecting such sign and thereafter maintaining in full force and
effect all permits, licenses and approvals respecting such sign
(collectively "Sign Permits") at Tenant's sole cost and expense; and (iii)
any such signage so approved by Landlord and for which Sign Permits have
been issued shall be erected in a good and workmanlike manner, and shall be
maintained by Tenant in good order and condition throughout the Lease Term
and on the expiration or earlier termination of the Lease Term shall, at
Landlord's sole election, be removed by Tenant with Tenant restoring the
area and repairing any damage caused or resulting from such removal, all of
the foregoing to be done, performed and observed at Tenant's sole cost and
expense.
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<PAGE>
Exhibit 10.9
Tenant acknowledges, covenants and agrees that it only has right to signage
on the limited terms and conditions set forth in the preceding two (2)
paragraphs. The failure or inability of Tenant to obtain Landlord's
approval hereunder and/or to obtain any Sign Permits or to otherwise comply
with or satisfy the requirements of this Section shall not constitute a
default of Landlord, shall not give Tenant any right to terminate this
Lease and shall not give Tenant any right to any setoff, abatement or other
reduction in Annual Fixed Rent or any Additional Rent.
In the event Landlord, in its sole discretion, shall erect a monument type
sign identifying tenants of the Building, Landlord shall include Tenant's
name thereon.
8.23 Landlord shall use its best efforts to make arrangements with a third party
contractor (the "Cafeteria Operator") for the operation of a cafeteria in
the Building's common area during the Term of this Lease Monday through
Friday from 7:00 A.M. to 11:00 A.M. and 11:30 A.M. TO 1:30 P.M. (except
Saturdays, Sundays and holidays). The menu and method of operation shall
be as determined by the Cafeteria Operator.
Such cafeteria shall be for the use only of Tenant and other tenants,
subtenants (and occupants) from time to time in the Building and their
respective employees and business invitees as ancillary to the use of the
Premises and other tenants', subtenants' (or occupants') premises for the
conduct of the Permitted Use of Tenant and the permitted uses of such other
tenants, subtenants (and occupants). In no event shall the cafeteria be
open to the general public. Notwithstanding the foregoing, the operation
of the cafeteria shall be subject to Landlord and the Cafeteria Operator
obtaining and maintaining in full force and effect all licenses, permits,
special permits, approvals and the like as shall be required pursuant to
applicable governmental requirements respecting the use and operation of a
cafeteria (collectively the "Cafeteria Approvals"). Landlord shall use
best efforts to obtain or cause the Cafeteria Operator to obtain the
Cafeteria Approvals. However, the failure of Landlord and/or the Cafeteria
Operator to obtain and/or maintain the Cafeteria Approvals and/or to
operate the Cafeteria shall not affect this Lease in any way and, without
limitation, Tenant shall have no right to terminate this Lease and shall
have no right to any abatement or other reduction of Annual Fixed Rent or
Additional Rent.
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<PAGE>
Exhibit 10.9
All of the costs incurred in the operation, maintenance and repair of the
Cafeteria including, but not limited to, the cost of electricity and other
utilities to and for the Cafeteria, repairs, maintenance of equipment,
insurance premiums respecting any insurance covering the Cafeteria
operation, costs of permit, approval and license applications, renewals and
similar charges, cleaning of the Cafeteria area and trash removal incurred
in the operation of the Cafeteria shall be included in "Landlord's
Operating Expenses" referred to in Section 2.6 (collectively the "Cafeteria
Operating Expenses").
8.24 This Lease shall be governed exclusively by the provisions hereof and by
the law of the Commonwealth of Massachusetts, as the same may from time to
time exist.
EXECUTED as a sealed instrument in two or more counterparts each of which
shall be deemed to be an original.
LANDLORD:
WITNESS: By
-----------------------------------
EDWARD H. LINDE, AS TRUSTEE OF
91 HARTWELL AVENUE TRUST FOR
- -------------------------- HIMSELF AND CO-TRUSTEE BUT NOT
INDIVIDUALLY
(Signatures continued on next page.)
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<PAGE>
Exhibit 10.9
TENANT:
WORKGROUP TECHNOLOGY CORPORATION
By
-------------------------------------
Name
-----------------------------------
ATTEST: Title PRESIDENT (OR VICE PRESIDENT)
----------------------------------
HERETO DULY AUTHORIZED
- ---------------------------------
Name
----------------------------- By
Title Secretary -------------------------------------
---------------------------- Name
(Assistant Secretary) -----------------------------------
Title TREASURER
----------------------------------
(OR ASSISTANT TREASURER)
----------------------------------
HERETO DULY AUTHORIZED
(CORPORATE SEAL)
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<PAGE>
Exhibit 10.9
EXHIBIT A
---------
That certain parcel of land situate in Lexington in the County of Middlesex
and Commonwealth of Massachusetts, described as follows:
SOUTHEASTERLY by Hartwell Avenue, two hundred thirty-seven and 47/100
feet;
SOUTHEASTERLY by a curving line forming the junction of said Hartwell
Avenue and Hartwell Place, as shown on plan hereinafter
mentioned, thirty-nine and 27/100 feet;
SOUTHWESTERLY five hundred thirty-two and 23/100 feet, and
SOUTHWESTERLY, SOUTHERLY and SOUTHEASTERLY one hundred ninety and
25/100 feet, by said Hartwell Place;
SOUTHERLY by lot 9 on said plan, three hundred seventy-four and
57/100 feet;
SOUTHWESTERLY three hundred sixty-seven and 65/100 feet;
NORTHWESTERLY thirty-one and 12/100 feet, and
NORTHWESTERLY again, eight hundred ninety and 63/100 feet, by land now
or formerly of The United States of
America;
NORTHEASTERLY by said United States of America land and by land now
or formerly of John W. O('Connor et al, nine hundred
thirty-three and 87/100 feet.
Said parcel is shown as lot 10 on said plan, (Plan No.31330/D/).
All of said boundaries are determined by the Court to be located as shown
on a subdivision plan, as approved by the Court, filed in the Land Registration
Office, a copy of which is filed in the Registry of Deeds for the South Registry
District of Middlesex County in Registration Book 835, Page 146, with
Certificate 141096.
The above described land is subject to and has the benefit of the ditches
as approximately
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<PAGE>
Exhibit 10.9
shown on said plan at date of original decree, (May 17, 1963).
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<PAGE>
Exhibit 10.9
So much of the above described land as is included within the area marked
"Tennessee Gas Transmission Company Easement 30' wide" is subject to the
easements set forth in a taking by the Northeastern Gas Transmission Company,
dated July 13, 1951 and duly recorded in
Book 7772, Page 162.
The above described land is subject to an Avigation Easement set forth in a
Declaration of Taking by the United States of America dated February 12, 1954
recorded with the Middlesex South District Registry of Deeds in Book 8219, Page
421 and more particularly shown as "Avigation Easement A-130E-1" on Plan No.
31330-D (referred to above).
The above described land is subject to an Order by the Town of Lexington
for construction of water main in Hartwell Avenue, Document No. 461902 as
affected by Certificate for Dissolving Betterments filed as Document No. 499500.
The above described land is subject to a Grant of Easement from Wilbur C.
Nylander et al Trs. to the Town of Lexington to construct and maintain sewer in
Hartwell Place, Document No. 508567.
The above described land is subject to a grant of Easement over 20 feet
wide drain easement (i) for the benefit of lot 9 in common with others entitled
thereto, set forth in Document 511666 and (ii) set forth in Document No. 479843
for the benefit of lot 7 shown on plan recorded with said Document No. 479843.
The above described land is subject to a Taking of easement by the Town of
Lexington in Hartwell Place, Document No. 544200.
The above described land is subject to and has the benefit of a Grant of
Easement and Reservation from Wilbur C. Nylander et al Trs. to the Town of
Lexington for conservation purposes, Document No. 616453.
The above described land is subject to and has the benefit of the
following:
A. Order of Conditions issued by the Town of Lexington Conservation
Commission filed as Document No. 616456 as extended by Extension
Permits issued by said Conservation Commission filed as Document
Nos. 627154, 635069, 655552 and 669180.
B. Decision of the Town of Lexington Board of Appeals filed as
Document No. 616457.
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<PAGE>
Exhibit 10.9
C. Decision of the Town of Lexington Board of Appeals filed as
Document No. 616458.
D. Decision of the Town of Lexington Board of Appeals filed as
Document No. 616459.
E. Decision of the Town of Lexington Board of Appeals filed as
Document No. 634489.
F. Decision of the Town of Lexington Board of Appeals filed as
Document No. 646344.
G. Decision of the Town of Lexington Board of Appeals filed as
Document No. 646345.
H. Decision of the Town of Lexington Board of Appeals filed as
Document No. 646346.
The above described land is subject to an Easement granted to Boston Edison
Company filed as Document No. 672152.
The above described land is subject to such other easements, agreements and
matters of record, if any, insofar as in force and applicable.
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<PAGE>
Exhibit 10.9
Exhibit B
---------
Description of Base Building Work
. New entry brick walkway into the main entrance of the Building.
. General parking lot upgrade, including a new drop off at main entrance.
. New lobby improvements.
. Cosmetic upgrades to all building common areas including bathrooms,
elevator cabs and common corridors and stairways.
. A new cafeteria.
. Showers and lockers in the first floor bathrooms.
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<PAGE>
Exhibit 10.9
EXHIBIT C
- ---------
LANDLORD SERVICES
I. CLEANING:
---------
Cleaning and janitor services as provided below:
A. Office Areas:
-------------
Daily: (Monday through Friday, inclusive, holidays excepted).
------
1. Empty all waste receptacles and ashtrays and remove waste
material from the Premises; wash receptacles as necessary.
2. Sweep and dust mop all uncarpeted areas using a dust-treated
mop.
3. Vacuum all rugs and carpeted areas.
4. Hand dust and wipe clean with treated cloths all horizontal
surfaces, including furniture, office equipment, window sills,
door ledges, chair rails, and convector tops, within normal
reach.
5. Wash clean all water fountains and sanitize.
6. Move and dust under all desk equipment and telephones and
replace same (but not computer terminals, specialized
equipment or other materials).
7. Wipe clean all chrome and other bright work.
8. Hand dust grill work within normal reach.
9. Main doors to premises shall be locked and lights shut off
upon completion of cleaning.
Weekly:
-------
1. Dust coat racks and the like.
2. Spot clean entrance doors, light switches and doorways.
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<PAGE>
Exhibit 10.9
Quarterly:
----------
1. Render high dusting not reached in daily cleaning to include:
a) dusting all pictures, frames, charts, graphs and similar
wall hangings.
b) dusting of all vertical surfaces, such as walls,
partitions, doors and door frames, etc.
c) dusting all pipes, ducts and moldings.
d) dusting of all vertical blinds.
e) dust all ventilating, air conditioning, louvers and
grills.
2. Spray buff all resilient floors.
B. LAVATORIES:
-----------
Daily: (Monday through Friday, inclusive, holidays excepted).
------
1. Sweep and damp mop.
2. Clean all mirrors, powder shelves, dispensers and receptacles,
bright work, flushometers, piping and toilet seat hinges.
3. Wash both sides of all toilet seats.
4. Wash all basins, bowls and urinals.
5. Dust and clean all powder room fixtures.
6. Empty and clean paper towel and sanitary disposal receptacles.
7. Remove waste paper and refuse.
8. Refill tissue holders, soap dispensers, towel dispensers,
sanitary dispensers; materials to be furnished by Landlord.
Monthly:
--------
1. Machine scrub lavatory floors.
2. Wash all partitions and tile walls in lavatories.
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<PAGE>
Exhibit 10.9
3. Dust all lighting fixtures and grills in lavatories.
C. MAIN LOBBIES, ELEVATORS, STAIRWELLS AND COMMON CORRIDORS:
---------------------------------------------------------
Daily: (Monday through Friday, inclusive, holidays excepted).
------
1. Sweep and damp mop all floors, empty and clean waste
receptacles, dispose of waste.
2. Clean elevators, wash or vacuum floors, wipe down walls and
doors.
3. Spot clean any metal work inside lobbies.
4. Spot clean any metal work surrounding building entrance doors.
5. Sweep all stairwells and dust handrails.
Monthly:
--------
1. All resilient tile floors in public areas to be spray buffed.
D. WINDOW CLEANING:
----------------
All exterior windows shall be washed on the inside and outside
surfaces no less than three (3) times per year.
II. HVAC:
-----
A. Heating, ventilating and air conditioning equipment will be
provided with sufficient capacity to accommodate a maximum
population density of one (1) person per one hundred fifty (150)
square feet of useable floor area served, and a combined lighting
and standard electrical load of 3.0 watts per square foot of
useable floor area. In the event Tenant introduces into the
Premises personnel or equipment which overloads the system's
ability to adequately perform its proper functions, Landlord shall
so notify Tenant in writing and supplementary system(s) may be
required and installed by Landlord at Tenant's expense, if within
fifteen (15) days Tenant has not modified its use so as not to
cause such overload.
Operating criteria of the basic system are in accordance with the
Massachusetts Energy Code and shall not be less than the following:
i) Cooling season indoor conditions of not in excess of 78
degrees Fahrenheit when outdoor conditions are 91 degrees
Fahrenheit drybulb and 73 degrees Fahrenheit wetbulb.
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Exhibit 10.9
ii) Heating season minimum room temperature of 72 degrees
Fahrenheit when outdoor conditions are 6 degrees Fahrenheit
drybulb.
B. Landlord shall provide heating, ventilating and air conditioning as
normal seasonal charges may require during Normal Building
Operating Hours (8:00 a.m. to 6:00 p.m., Monday through Friday, and
8:00 a.m. to 1:00 p.m. on Saturdays, legal holidays in all cases
excepted).
If Tenant shall require air conditioning (during the air
conditioning season) or heating or ventilating during any season
outside Normal Building Operating Hours, Landlord shall use
landlord's best efforts to furnish such services for the area or
areas specified by written request of Tenant delivered to the
Building Superintendent or the Landlord before 3:00 p.m. of the
business day preceding the extra usage. For such services, Tenant
shall pay Landlord, as additional rent, upon receipt of billing, a
sum equal to the cost incurred by Landlord.
III. ELECTRICAL SERVICES:
--------------------
A. Landlord shall provide electric power for a combined load of 3.0
watts per square foot of useable area for lighting and for office
machines through standard receptacles for the typical office space.
B. Landlord, at its option, may require separate metering and direct
billing to Tenant for the electric power required for any special
equipment (such as computers and reproduction equipment) that
requires either 3-phase electric power or any voltage other than
120, or for any other usage in excess of 3.0 watts per square foot.
C. Landlord will furnish and install, at Tenant's expense, all
replacement lighting tubes, lamps and ballasts required by Tenant.
Landlord will clean lighting fixtures on a regularly scheduled
basis at Tenant's expense.
IV. ELEVATORS:
----------
Provide passenger elevator service.
V. WATER:
------
Provide hot water for lavatory purposes and cold water for drinking,
lavatory and toilet purposes.
VI. CARD ACCESS SYSTEM:
-------------------
Landlord will provide a card access system at one entry door of the
building.
-81-
<PAGE>
Exhibit 10.9
-82-
<PAGE>
Exhibit 10.9
EXHIBIT E
---------
DECLARATION AFFIXING THE COMMENCEMENT DATE OF LEASE
---------------------------------------------------
THIS AGREEMENT made this ____ day of ___________, 1996, by and between
MORTIMER B. ZUCKERMAN AND EDWARD H. LINDE, TRUSTEES OF 91 HARTWELL AVENUE TRUST
under Declaration of Trust dated September 28, 1981 filed the Middlesex South
Registry District of the Land Court as Document No. 616453 as amended by
instruments dated December 10, 1984 and April 17, 1991 respectively filed with
said Registry District as Document Nos. 675674 and 844541 but not individually
(hereinafter "Landlord") and WORKGROUP TECHNOLOGY __________ (hereinafter
"Tenant").
W I T N E S S E T H T H A T :
- - - - - - - - - - - - - - -
1. This Agreement is made pursuant to Section 2.4 of that certain Lease
dated May __, 1996 between the parties aforenamed as Landlord and Tenant (the
"Lease").
2. It is hereby stipulated that the Lease Term commenced on ____________
__, 1996, (being the "Commencement Date" under the Lease), and shall end and
expire on ___________ __, 2001__, unless sooner terminated or extended, as
provided for in the Lease.
3. Tenant hereby acknowledges and agrees with Landlord that on the
Commencement Date the Premises complied with all of the requirements of Article
III of the Lease and that the Landlord satisfied all of its obligations under
said Article III. [NOTE: IF, AT THE TIME THIS INSTRUMENT IS EXECUTED, LANDLORD
HAS NOT COMPLETED THE PUNCH LIST ITEMS OR LONG LEAD ITEMS THIS FACT IS TO BE SO
SPECIFIED.]
WITNESS the execution hereof under seal by persons hereunto duly
authorized, the date first above written.
WITNESS: LANDLORD:
- ----------------- ------------------------------------------------
EDWARD H. LINDE, AS TRUSTEE OF
91 HARTWELL AVENUE TRUST FOR HIMSELF
AND CO-TRUSTEE, BUT NOT INDIVIDUALLY
-83-
<PAGE>
Exhibit 10.9
Signatures continued on next page
-84-
<PAGE>
Exhibit 10.9
TENANT:
WORKGROUP TECHNOLOGY CORPORATION
ATTEST:
By:
----------------------------------------------
- ------------------------- Name:
Name: --------------------------------------------
-------------------- Title:
Title: -------------------------------------------
------------------- HEREUNTO DULY AUTHORIZED
(CORPORATE SEAL)
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK ________ ___, 1996
Then personally appeared before me the above-named Edward H. Linde, Trustee
as aforesaid, and made oath that the foregoing instrument is his free act and
deed.
---------------------------------------
NOTARY PUBLIC
My Commission Expires:
----------------------
-85-
<PAGE>
Exhibit 10.9
COMMONWEALTH OF MASSACHUSETTS
COUNTY OF _____________ _______ ___, 1996
Then personally appeared before me the above-named _______________, the
________________, of WORKGROUP TECHNOLOGY CORPORATION and acknowledged the
foregoing instrument to be the free act and deed of said corporation.
----------------------------------------
NOTARY PUBLIC
My Commission Expires:
----------------------
-86-
<PAGE>
Exhibit 10.9
EXHIBIT G
---------
BROKER DETERMINATION OF PREVAILING MARKET RENT
----------------------------------------------
Where in the Lease to which this Exhibit is attached provision is made for
a Broker Determination of Prevailing Market Rent, the following procedures and
requirements shall apply:
1. Tenant's Request. Tenant shall send a notice to Landlord by the time set
----------------
for such notice in the applicable section of the Lease, requesting a Broker
Determination of the Prevailing Market Rent, which notice to be effective
must (i) make explicit reference to the Lease and to the specific section
of the Lease pursuant to which said request is being made, (ii) include the
name of a broker selected by Tenant to act for Tenant, which broker shall
be affiliated with a major Boston commercial real estate brokerage firm
selected by Tenant and which broker shall have at least ten (10) years
experience dealing in properties of a nature and type generally similar to
the Building located in the Boston West Suburban Market, and (iii)
explicitly state that Landlord is required to notify Tenant within twenty
(20) days of an additional broker selected by Landlord.
2. Landlord's Response. Within twenty (20) days after Landlord's receipt of
-------------------
Tenant's notice requesting the Broker Determination and stating the name of
the broker selected by Tenant, Landlord shall give written notice to Tenant
of Landlord's selection of a broker having at least the affiliation and
experience referred to above.
3. Selection of Third Broker. Within ten (10) days thereafter the two (2)
-------------------------
brokers so selected shall select a third such broker also having at least
the affiliation and experience referred to above.
4. Rental Value Determination. Within thirty (30) days after the selection of
--------------------------
the third broker, the three (3) brokers so selected, by majority opinion,
shall make a determination of the annual fair market rental value of the
Premises for the period referred to in the Lease. Such annual fair market
rental value determination (x) may include provision for annual increases
in rent during said term if so determined, (y) shall take into account the
as-is condition of the Premises and (z) shall take account of, and be
expressed in relation to, the tax and operating cost bases and provisions
for paying for so-called tenant electricity as contained in the Lease. The
brokers shall advise Landlord and Tenant in writing by the expiration of
said thirty (30) day period of the annual fair market rental value which as
so determined shall be referred to as the Prevailing Market Rent.
5. Resolution of Broker Deadlock. If the Brokers are unable to agree at least
-----------------------------
by majority on
-87-
<PAGE>
Exhibit 10.9
a determination of annual fair market rental value, then the brokers shall
send a notice to Landlord and Tenant by the end of the thirty (30) day
period for making said determination setting forth their individual
determinations of annual fair market rental value, and the highest such
determination and the lowest such determination shall be disregarded and
the remaining determination shall be deemed to be the determination of
annual fair market rental value and shall be referred to as the Prevailing
Market Rent.
6. Costs. Each party shall pay the costs and expenses of the broker selected
-----
by it and each shall pay one half (1/2) of the costs and expenses of the
Third Broker.
7. Failure to Select Broker or Failure of Broker to Serve. If Tenant shall
------------------------------------------------------
have requested a Broker Determination and Landlord shall not have
designated a broker within the time period provided therefor above, then
Tenant's Broker shall alone make the determination of Prevailing Market
Rent in writing to Landlord and Tenant within thirty (30) days after the
expiration of Landlord's right to designate a broker hereunder. If Tenant
and Landlord have both designated brokers but the two brokers so designated
do not, within a period of ten (10) days after the appointment of the
second broker, agree upon and designate the Third Broker willing so to act,
the Tenant, the Landlord or either broker previously designated may within
ten (10) days after the expiration of said ten (10) day period request the
Greater Boston Real Estate Board, Inc. (herein called the "Real Estate
Board") to designate the Third Broker willing so to act and a broker so
appointed shall, for all purposes, have the same standing and powers as
though he had been timely appointed by the brokers first appointed. Such
broker shall be appointed within ten (10) days after the Board's receipt of
such a report. In case of the inability or refusal to serve of any person
designated as a broker, or in case any broker for any reason ceases to be
such, a broker to fill such vacancy shall be appointed by the Tenant, the
Landlord, the brokers first appointed or the Real Estate, as the case may
be, whichever made the original appointment, or if the person who made the
original appointment fails to fill such vacancy, upon application (made
within five (5) days after the event necessitating such application) of any
broker who continues to act or by the Landlord or Tenant such vacancy may
be filled by the Real Estate Board and any broker so appointed to fill such
vacancy shall have the same standing and powers as though originally
appointed provided such vacancy is filled within ten (10) days after such
vacancy otherwise the foregoing provisions will apply.
-88-
<PAGE>
Exhibit 10.9
EXHIBIT H
---------
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT is made as of this ______ day of ____________, 1996 by
and among CONNECTICUT GENERAL LIFE INSURANCE COMPANY, a Connecticut corporation
having its principal office and place of business at 900 Cottage Grove Road,
Bloomfield, Connecticut 06002 ("Lender"), MORTIMER B. ZUCKERMAN and EDWARD H.
LINDE as Trustees of 91 HARTWELL AVENUE TRUST under Declaration of Trust dated
September 28, 1981 filed with the Middlesex South Registry District as Document
No. 616455 as amended by instruments dated December 10, 1984 and April 17, 1991
respectively filed with said Registry District as Document Nos. 675674 and
844541,but not individually, whose address is c/o Boston Properties, 8
Arlington Street, Boston, Massachusetts 02116 ("Landlord), and WORKGROUP
TECHNOLOGY CORPORATION, a Delaware corporation ("Tenant").
WITNESSETH:
WHEREAS, Tenant has entered into a certain lease (the "Lease") dated July
__, 1996 with Landlord covering premises (the "Premises") within a certain
building known as 91 Hartwell Avenue located in the Town of Lexington,
Middlesex County, Massachusetts on the real property more particularly described
in Exhibit "A" attached hereto and incorporated herein; and
WHEREAS, Lender has made a loan (the "Loan") to Landlord which is
evidenced by a promissory note issued by Landlord to Lender (the "Note") and
secured by a Mortgage and Security Agreement (the "Mortgage") and by an
Assignment of Rents and Leases (the "Assignment") encumbering, inter alia, the
Premises; and
WHEREAS, Tenant acknowledges that the recorded Mortgage constitutes a
lien or charge upon the Premises which is unconditionally prior and superior to
the Lease and the leasehold interest of Tenant thereunder; and
WHEREAS, Lender has been requested by Tenant and by Landlord to enter
into a non-disturbance agreement with Tenant;
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, the parties hereto mutually covenant and agree as
follows:
-89-
<PAGE>
Exhibit 10.9
1. The Lease and any extensions, renewals, replacements or modifications
thereof, and all of the right, title and interest of Tenant thereunder in
and to the Premises are and shall be subject and subordinate to the
Mortgage and to all of the terms and conditions contained therein, and to
any renewals, modifications, replacements consolidations and extensions
thereof.
2. Lender consents to the Lease and in the event Lender comes into possession
of or acquires title to the Premises as a result of the foreclosure or
other enforcement of Mortgage or the Note, or as a result of any other
means, Lender agrees that, so long as Tenant is not then in default
hereunder or under the Lease beyond applicable cure periods, Lender will
recognize the Lease and will not disturb Tenant in its possession of the
Premises for any reason other than one which would entitle Landlord to
terminate the Lease under its terms or would cause, without any further
action by Landlord, the termination of the Lease or would entitle Landlord
to dispossess Tenant from the Premises.
3. Tenant agrees with Lender that if the interests of Landlord in the Premises
shall be transferred to and owned by Lender by reason of foreclosure or
other proceedings brought by it, or any other manner, or shall be conveyed
thereafter by Lender or shall be conveyed pursuant to a foreclosure sale of
the Premises, Tenant shall be bound to Lender under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof
remaining and any extensions or renewals thereof which may be effected in
accordance with any option therefor in the Lease, with the same force and
effect as if Lender were the landlord under the Lease, and Tenant does
hereby attorn to Lender as its landlord, said attornment to be effective
and self-operative without the execution of any further instruments on the
part of any of the parties hereto immediately upon Lender succeeding to the
interest of Landlord in the Premises. Tenant agrees, however, upon the
election of and written demand by Lender within twenty (20) days after
Lender receives title to the Premises, to execute an instrument in
confirmation of the foregoing provisions, satisfactory to Lender, in which
Tenant shall acknowledge such attornment and shall set forth the terms and
conditions of its tenancy.
4. Tenant agrees with Lender that if Lender shall succeed to the interest of
Landlord under the Lease, Lender shall not be (a) liable for any action or
omission of any prior landlord under the Lease, or (b) subject to any
offsets or defenses which Tenant might have against any prior landlord, or
(c) bound by any rent or additional rent which Tenant might have paid for
more than the current month to any prior landlord, or (d) bound by any
security deposit which Tenant may have paid to any prior landlord, unless
such deposit is in an escrow fund available to Lender, or (e) bound by any
amendment or modification of the
-90-
<PAGE>
Exhibit 10.9
Lease made without Lender's written consent, or (f) bound by any notice of
termination given by Landlord to Tenant without Lender's written consent
thereto, or (g) personally liable under the Lease and Lender's liability
under the Lease shall be limited to the ownership interest of Lender in the
Premises.
5. In the event that Landlord shall default in the performance or observance
of any of the terms, conditions or agreements in the Lease, Tenant shall
give written notice thereof to Lender and Lender shall have the right (but
not the obligation) to cure such default. Tenant shall not take any action
with respect to such default under the Lease, including, without
limitation, any action in order to terminate, rescind or void the Lease or
to withhold any rental thereunder, for a period of 10 days after receipt of
such written notice by Lender with respect to any such default capable of
being cured by the payment of money and for a period of 30 days after
receipt of such written notice by Lender with respect to any other such
default (provided that in the case of any default which cannot be cured by
the payment of money and cannot with diligence be cured within such 30-day
period because of the nature of such default or because Lender requires
time to obtain possession of the Premises in order to cure the default, if
Lender shall proceed promptly to attempt to obtain possession of the
Premises, where possession is required, and to cure the same and thereafter
shall prosecute the curing of such default with diligence and continuity,
then the time within which such default may be cured shall be extended for
such period as may be necessary to complete the curing of the same with
diligence and continuity).
6. Landlord has agreed in the Mortgage and in the Assignment that the rentals
payable under the Lease shall be paid directly by Tenant to Lender upon the
occurrence of a default by Landlord under the Mortgage. Accordingly, after
notice is given by Lender to Tenant that the rentals under the Lease should
be paid to Lender, Tenant shall pay to Lender, or in accordance with the
directions of Lender, all rentals and other moneys due and to become due to
Landlord under the Lease, or amounts equal thereto. Tenant shall have no
responsibility to ascertain whether such demand by Lender is permitted
under the Mortgage or the Assignment. Landlord hereby waives any right,
claim or demand it may now or hereafter have against Tenant by reason of
such payment to Lender, and any such payment to Lender shall discharge the
obligations of Tenant to make such payment to Landlord.
7. Tenant declares, agrees and acknowledges that:
a. Lender, in making disbursements pursuant to any agreement relating to
the Loan, is under no obligation or duty to, nor has Lender
represented that it will, see to the application of such proceeds by
the person or persons to whom Lender disburses such proceeds, and any
application or use of such proceeds other than those provided for in
such agreement shall not defeat the subordination herein made in
-91-
<PAGE>
Exhibit 10.9
whole or in part; and
b. it intentionally and unconditionally subordinates the Lease and its
leasehold interest thereunder in favor of the lien or charge upon said
land of the Mortgage, and that in consideration of this subordination,
specific loans and advances are being and will be made by Lender to
Landlord and, as part and parcel thereof, specific monetary and other
obligations are being and will be entered into by Landlord and Lender
which would not be made or entered into but for said reliance upon
this subordination.
8. This agreement shall bind and inure to the benefit of the parties hereto,
their successors and assigns. As used herein, the term "Tenant" shall
include Tenant, its successors and assigns; the words "foreclosure" and
"foreclosure sale" as used herein shall be deemed to include the
acquisition of Landlord's estate in the Premises by voluntary deed (or
assignment) in lieu of foreclosure; and the word "Lender" shall include the
Lender herein specifically named and any of its successors, participants
and assigns, including but not limited to anyone who shall have succeeded
to Landlord's interest in the Premises by, through or under foreclosure of
the Mortgage and any purchaser at or subsequent to foreclosure.
9. All notices, consents and other communications pursuant to the provisions
of this Agreement shall be in writing and shall be sent by registered or
certified mail, return receipt requested, or by a reputable commercial
overnight carrier that provides a receipt, such as Federal Express or
Airborne, and shall be addressed as follows and shall be deemed given when
received except where delivery is refused in which case notice shall be
deemed given on the date delivery is first attempted and refused:
If to Lender: CIGNA Investments, Inc.
c/o CIGNA Investment Group
900 Cottage Grove Road
Bloomfield, Connecticut 06002
Attn: Real Estate Investment Services
with a copy to: CIGNA Corporation
900 Cottage Grove Road
Bloomfield, Connecticut 06002
Attn: Investment Law Dept.
If to Tenant: Workgroup Technology Corporation
91 Hartwell Avenue
Lexington, Massachusetts 02173
-92-
<PAGE>
Exhibit 10.9
Attention: Chief Financial Officer
-93-
<PAGE>
Exhibit 10.9
If to Landlord: ------------------------------
c/o Boston Properties
8 Arlington Street
Boston, Massachusetts 02116
or to such other address as shall from time to time have been designated by
written notice by such party to the other parties as herein provided.
10. This Agreement shall be the whole and only agreement between the parties
hereto with regard to the subordination of the Lease and the leasehold
interest of Tenant thereunder to the lien or charge of the Mortgage in
favor of Lender, and shall supersede and control any prior agreements as to
such, or any, subordination, including, but not limited to, those
provisions, if any, contained in the Lease, which provide for the
subordination of the Lease and the leasehold interest of Tenant thereunder
to a deed or deeds of trust or to a mortgage or mortgages to be thereafter
executed, and shall not be modified or amended and no provision herein
shall be waived except in writing signed by the party against whom
enforcement of any such modification or amendment is sought.
The use of the neuter gender in this Amendment shall be deemed to include
any other gender, and words in the singular number shall be held to include
the plural, when the sense requires. In the event any one or more of the
provisions of this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such validity, illegality or
unenforceability shall not affect any other provision of this Agreement,
but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. This Agreement
shall be governed by and construed in accordance with the laws of the State
of Massachusetts.
IN WITNESS WHEREOF the parties hereto have placed their hands and seals the
day and year first above written.
Signed and acknowledged in the
presence of us: TENANT:
WORKGROUP TECHNOLOGY
CORPORATION
- ------------------------
By:
-------------------------
Typed Name: Typed Name:
Title:
- ------------------------ Attest:
Typed Name: -------------------
-94-
<PAGE>
Exhibit 10.9
LANDLORD:
-------------------------
Edward H. Linde,
as Trustee of Mall Road Trust,
but not individually
Attest:
------------------
LENDER:
CONNECTICUT GENERAL LIFE
INSURANCE COMPANY
By CIGNA Investments, Inc.
- ----------------------------
By:
--------------------------
Typed Name: Typed Name:
Title:
- ----------------------------
Attest:
-----------------------
Typed Name:
-95-
<PAGE>
Exhibit 10.10
AMENDED AND RESTATED AGREEMENT
------------------------------
Amended and Restated Agreement made as of this 23/rd/ day of June, 1997,
between Workgroup Technology Corporation (the "Company") and James Carney ("Mr.
Carney").
WHEREAS, The parties hereto are parties to a certain agreement dated
February 28, 1997, which is hereby amended and restated in its entirety;
WHEREAS, Mr. Carney is currently an employee of the Company in the
position of Chief Executive Officer;
WHEREAS, in the event the Company hires a new Chief Executive Officer,
the Company desires to retain the services of Mr. Carney through a Transition
Period (as defined below);
WHEREAS, Mr. Carney desires to provide such transition services in the
position of Chairman of the Board; and
WHEREAS, the parties hereto wish to memorialize terms relating to:
(i) Mr. Carney's severance benefits; and (ii) certain obligations of Mr. Carney.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations herein contained, and for other good and valuable
consideration, the receipt of which are hereby acknowledged, the parties agree
as follows:
1. Transition Period. In exchange for the severance benefits set
-----------------
forth in Section 2 below, Mr. Carney hereby agrees to remain an employee of the
Company for a period of six (6) months, commencing on the date the Company hires
a new Chief Executive Officer (the "Transition Period").
2. Severance. In exchange for Mr. Carney's continued service during
---------
the Transition Period, and subject to the conditions set forth in Section 3
below and to the termination and modification conditions set forth in Section 4
below, the Company agrees:
(a) To provide Mr. Carney with salary continuation for the period of
twelve (12) months following the termination of Mr. Carney's employment, at Mr.
Carney's then-current base salary rate. Such salary continuation will be paid
in accordance with the Company's then-current payroll practices, with the first
payment to be made on the first regularly scheduled payday on or immediately
following the date Mr. Carney's employment terminates with the Company. Such
salary continuation payments shall be subject to applicable federal, state
and/or local withholding, payroll and other taxes; and
<PAGE>
(b) To provide Mr. Carney with a pro-rata portion of any applicable
quarterly or annual bonus for the quarter or year in which Mr. Carney's
employment is terminated, that he would have received if his employment had not
been terminated. Such bonus shall be payable in a lump sum payment at such time
as the Company makes payments to other participants. Such bonus shall be
subject to applicable federal, state and/or local withholding, payroll and other
taxes;
(c) In the event that Mr. Carney elects the continuation of coverage
of the Company's health plans under Consolidated Budget Reconciliation Act of
1985 ("COBRA"), the Company agrees to pay COBRA payments equivalent to the
contribution it makes to the health insurance payments of other employees,
during the twelve (12) month salary continuation period stated in paragraph 2(a)
above. Thereafter, the Company will no longer be obligated to pay contributions
as above described and health plan coverage shall be continued only to the
extent required by COBRA and only to the extent Mr. Carney timely pays the
amount required for such continuation of health plan coverage.
In the event that Mr. Carney accepts any employment during the twelve
(12) month salary continuation period which provides health benefits, the
Company's obligations to Mr. Carney to make the COBRA payments provided in this
paragraph shall cease upon the acceptance of such alternative employment;
(d) In the event that Mr. Carney obtains short-term and/or long-term
disability insurance, the Company will pay to Mr. Carney during the twelve (12)
month salary continuation period, an amount equal to the then-current premiums
paid by the Company for such insurance during Mr. Carney's employment.
In the event that Mr. Carney accepts any employment during the twelve
(12) month salary continuation period which provides short-term and/or long-term
disability insurance, the Company's obligations to Mr. Carney to make the
payments provided in this paragraph shall cease upon the acceptance of such
alternative employment; and
(e) To amend, on the date Mr. Carney's employment terminates with the
Company, the Stock Option Agreements between Mr. Carney and the Company dated
October 5, 1995, January 26, 1996 and April 29, 1996 (the "Stock Option
Agreements") to modify the vesting schedule set forth therein to provide the
vesting of fifty (50) percent of the then-unvested shares of stock subject to
the Stock Option Agreements will be accelerated and immediately exercisable.
The current vesting schedule for Mr. Carney is attached hereto as Exhibit A.
Other than as set forth herein, the Stock Option Agreements will remain in full
force and effect in accordance with their terms.
3. Conditions To Severance. The severance benefits set forth in
-----------------------
Section 2 of this Agreement are payable only if: (i) the Company terminates Mr.
Carney's employment without "Cause," as defined below, either during the
Transition Period or at any time following the Transition Period; or (ii) Mr.
Carney voluntarily terminates his employment
2
<PAGE>
after the Transition Period. If Mr. Carney voluntarily terminates his employment
prior to or during the Transition Period or the Company terminates Mr. Carney's
employment for any reason prior to the Transition Period, or at any time
thereafter for "Cause," Mr. Carney shall not receive any of the severance
benefits described in Section 2.
4. Termination of Agreement. This Agreement shall be effective as of
------------------------
the date first written above and shall continue in full force and effect for a
maximum of eighteen (18) months following the termination of the Transition
Period, provided however, that after the sixth month following the termination
of the Transition Period, the severance benefits described in Section 2 will be
reduced by one month for each full month that Mr. Carney is employed by the
Company. After eighteen (18) months following the termination of the Transition
Period, the severance benefits described in Section 2 will be reduced to zero
and this Agreement shall immediately terminate and be of no further force and
effect.
5. Definitions and Additional Provisions.
-------------------------------------
(a) "Cause" shall mean, and be limited to, (1) dishonesty, (2) willful
misconduct in the performance of Mr. Carney's duties, (3) breach of the terms of
any confidentiality, non-competition or developments agreement in favor of the
Company, or (4) the commission by Mr. Carney of a felony.
(b) Nothing in this Agreement shall create any obligation on the part of
the Company or any other person or entity to continue the employment of Mr.
Carney.
(c) Other than the severance benefits set forth in Section 2 above,
Mr. Carney acknowledges that he shall not be entitled to any other salary
continuation, severance or other termination benefits in the event of his
cessation of employment with the Company.
(d) This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
(e) This Agreement represents the complete and sole understanding
between the parties, supersedes any and all other agreements and understandings,
whether oral or written, except for (i) the Noncompetition, Nonsolicitation and
Nondisclosure Agreement executed by Mr. Carney in connection with his employment
and (ii) the Stock Option Agreements as such Agreements may be modified hereby.
(f) This Agreement may not be modified, altered or rescinded except upon
written consent of the Company and Mr. Carney. This Agreement shall be binding
upon and inure to the benefit of the Company and Mr. Carney and their respective
heirs, successors and assigns.
IN WITNESS WHEREOF, the undersigned have each executed this Agreement as
an instrument under seal as of the date set forth above.
3
<PAGE>
- ---------------------
JAMES CARNEY
WORKGROUP TECHNOLOGY CORPORATION, By:
- ----------------------- -------------------------
Stephen J. Gaal Ernest C. Parizeau
Director Director
352DMM8675/1.376260.1
4
<PAGE>
EXHIBIT A
Optionee Statement
Workgroup Technology Corp.
Exercisable as of 6/23/1997
James M. Carney
<TABLE>
<CAPTION>
Grant Grant Type Granted Outstanding Price Expiration Vested
Date
<C> <S> <C> <C> <C> <C> <C>
10/5/1995 Incentive Stock 66,666.00 66,666.00 $ 0.30 10/ 5/2005 19,999.00
10/5/1995 Incentive Stock 8,333.00 8,333.00 $ 0.30 10/ 5/2005 2,499.00
10/5/1995 Incentive Stock 8,333.00 8,333.00 $ 0.30 10/ 5/2005 2,499.00
1/26/1996 Incentive Stock 8,333.00 8,333.00 $ 8.50 1/26/2006 2,083.00
4/29/1996 Incentive Stock 8,333.00 8,333.00 $25.75 4/29/2006 1,666.00
Totals 99,998.00 99,998.00 28,746.00
</TABLE>
5
<PAGE>
Exhibit 11.1
Workgroup Technology Corporation
Computation of Weighted Average Shares
Used in Computing Income (Loss) Per Share Amounts
<TABLE>
<CAPTION>
Primary Fully
Type of Security Shares Diluted
- ---------------- ----------- -----------
<S> <C> <C>
For the year ended March 31, 1995:
Common Stock, beginning of period................. 1,709,100 1,709,100
Cheap stock outstanding during the period......... 1,140,418 1,140,418
Weighted average common stock issued during the
period.......................................... 5,033 5,033
----------- -----------
Weighted average shares of common stock
outstanding.................................. 2,854,551 2,854,551
=========== ===========
Net loss per share............................. $ (0.50) $ (0.50)
=========== ===========
For the year ended March 31, 1996:
Common Stock, beginning of period................. 1,722,100 1,722,100
Cheap stock outstanding during the period......... 825,624 825,624
Weighted average common stock issued during the
period.......................................... 189,476 189,476
Common stock equivalents.......................... 3,418,839 3,418,839
Treasury stock buyback............................ (144,765) (144,765)
----------- -----------
Weighted average shares of common stock
outstanding.................................. 6,011,274 6,011,274
=========== ===========
Net income per share........................... $ 0.24 $ 0.24
=========== ===========
For the year ended March 31, 1997:
Common Stock, beginning of period................. 7,926,307 7,926,307
Weighted average common stock issued during the
period.......................................... 67,671 67,671
----------- -----------
Weighted average shares of common stock
outstanding.................................. 7,993,978 7,993,978
=========== ===========
Net income per share........................... $ (0.30) $ (0.30)
=========== ===========
</TABLE>
(1) All common share amounts have been restated to reflect a 3-into-2 reverse
stock split.
(2) Due to losses incurred during certain of the periods presented, the
inclusion of common stock equivalents (other than pursuant to cheap stock)
would be anti-dilutive and therefore are not included in the loss per share
calculation. See Note B of Notes to the Consolidated Financial Statements.
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation of our reports dated May 6, 1997, on our audits
of the consolidated financial statements of Workgroup Technology Corporation as
of March 31, 1997 and 1996, and for the years ended March 31, 1997, 1996 and
1995 which reports are included in this Annual Report on Form 10-K, into the
Company's previously filed Registration Statements on Form S-8, File Nos. 333-
09161 and 333-11869.
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
June 27, 1997
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS FINANCIAL INFORMATION EXTRACTED FROM FORM 10-K AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> YEAR YEAR
<FISCAL-YEAR-END> MAR-31-1997 MAR-31-1996
<PERIOD-START> APR-01-1996 APR-01-1995
<PERIOD-END> MAR-31-1997 MAR-31-1996
<CASH> 37,951 40,959
<SECURITIES> 0 0
<RECEIVABLES> 2,179 2,075
<ALLOWANCES> 50 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 40,424 43,268
<PP&E> 1,339 761
<DEPRECIATION> 1,045 511
<TOTAL-ASSETS> 41,796 44,073
<CURRENT-LIABILITIES> 3,864 3,842
<BONDS> 0 0
0 0
0 0
<COMMON> 44,076 43,806
<OTHER-SE> (6,109) (3,692)
<TOTAL-LIABILITY-AND-EQUITY> 41,796 44,073
<SALES> 10,439 10,477
<TOTAL-REVENUES> 10,439 10,477
<CGS> 2,470 1,683
<TOTAL-COSTS> 2,470 1,683
<OTHER-EXPENSES> 12,255 7,405
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> (1,934) (94)
<INCOME-PRETAX> (2,352) 1,483
<INCOME-TAX> 55 35
<INCOME-CONTINUING> (2,407) 1,448
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (2,407) 1,448
<EPS-PRIMARY> (0.30) 0.24
<EPS-DILUTED> (0.30) 0.24
</TABLE>
