<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X]Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 for the Quarterly Period Ended September 30, 1999.
OR
[_]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE TRANSITION PERIOD FROM TO
Commission File Number 000-22647
PERITUS SOFTWARE SERVICES, INC.
(Exact Name of Registrant as Specified in its Charter)
Massachusetts 04-3126919
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
112 Turnpike Road, Suite 111 01581
Westborough, Massachusetts (Zip Code)
(Address of Principal Executive
Offices)
(508) 870-0963
(Registrant's Telephone Number, Including Area Code)
2 Federal Street
Billerica, Massachusetts 01821
(Former Name, Former Address and Former Fiscal Year,
If Changed Since Last Report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes [X] No [_]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date:
<TABLE>
<CAPTION>
Shares outstanding at
Title of Class November 8, 1999
-------------- ---------------------
<S> <C>
Common Stock, $0.01 par value....................... 17,173,975
</TABLE>
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
FORM 10-Q
For The Quarterly Period Ended September 30, 1999
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Part I. Financial Information
Item 1. Financial Statements.............................................. 3
Consolidated Balance Sheet as of September 30, 1999 and December 31,
1998................................................................... 3
Consolidated Statement of Operations for the Three and Nine Months Ended
September 30, 1999 and 1998............................................ 4
Consolidated Statement of Cash Flows for the Nine Months Ended September
30, 1999 and 1998...................................................... 5
Notes to Unaudited Consolidated Financial Statements.................... 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations.................................................... 12
Item 3. Quantitative and Qualitative Disclosures about Market Risk........ 30
Part II. Other Information
Item 1. Legal Proceedings................................................. 31
Item 2. Changes in Securities and Use of Proceeds......................... 32
Item 6. Exhibits and Reports on Form 8-K.................................. 32
Signatures................................................................. 33
</TABLE>
From time to time, information provided by the Company or statements made by
its employees may contain "forward-looking" statements, as that term is
defined in the Private Securities Litigation Reform Act of 1995. For this
purpose, any statements contained herein that are not statements of historical
fact may be deemed to be forward-looking statements. Without limiting the
foregoing, the words "believes", "anticipates", "plans", "expects", and
similar expressions are intended to identify forward-looking statements.
This Quarterly Report on Form 10-Q may contain forward looking statements
which involve risks and uncertainties. The Company's actual results may differ
materially from the results discussed in such statements. Certain factors that
could cause such a difference include, without limitation, the risks
specifically described in the Company's Annual Report on Form 10-K for the
year ended December 31, 1998, Quarterly Reports on Form 10-Q for the Quarters
ended March 31, 1999 and June 30, 1999 and other public documents, filed by
the Company with the Securities and Exchange Commission (the "Commission"),
which factors are incorporated herein by reference, the factors listed below
in "Factors That May Affect Future Results" and other factors such as the
Company's failure to achieve cash flow breakeven/strategic initiatives,
financing, over the counter listing, revenue risk, litigation risk, limited
operating history, potential fluctuation in quarterly performance, the need to
develop additional products and services, the concentration of clients and
credit risk, the impact of competitive products and services and pricing,
competition for qualified technical, sales and marketing personnel, the
offering of fixed-price, fixed time-frame contracts rather than contracts on a
time and materials basis, the potential for contract liability related to the
provision of year 2000 and other products and services, the potential for
software errors or bugs in the Company's products, limited protection of
proprietary rights, dependence on third party technology, rapid technological
change, product or services demand and market acceptance risks, product
development and services capacity, commercialization and technological
difficulties, capacity and supply constraints or difficulties and the effect
of general business or economic conditions.
2
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
PERITUS SOFTWARE SERVICES, INC.
CONSOLIDATED BALANCE SHEET
(In Thousands, Except Share-related Data)
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
------------- ------------
(Unaudited)
<S> <C> <C>
ASSETS
Current Assets:
Cash and cash equivalents......................... $ 2,470 $ 2,809
Restricted cash................................... -- 569
Short-term investments............................ -- 500
Accounts receivable, net of allowance for doubtful
accounts of $187 and $726, respectively, and
including amounts receivable from related parties
of $-- and $42, respectively..................... 522 3,720
Costs and estimated earnings in excess of billings
on uncompleted contracts......................... 358 951
Prepaid expenses and other current assets......... 306 816
-------- --------
Total Current Assets............................ 3,656 9,365
Property and equipment, net......................... 850 3,848
Intangible and other assets, net.................... 132 510
-------- --------
Total Assets.................................... $ 4,638 $ 13,723
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current portion of capital lease obligations........ $ 13 $ 90
Current portion of long-term debt................... -- 269
Accounts payable.................................... 14 462
Customer advance.................................... 296 --
Billings in excess of costs and estimated earnings
on uncompleted contracts........................... 425 435
Deferred revenue.................................... 269 1,890
Other accrued expenses and other current
liabilities........................................ 1,192 4,414
-------- --------
Total Current Liabilities....................... 2,209 7,560
Capital lease obligations........................... 28 286
Long-term restructuring............................. -- 1,067
-------- --------
Total Liabilities............................... 2,237 8,913
======== ========
Stockholders' Equity:
Common stock, $.01 par value; 50,000,000 shares
authorized; 17,173,975 and 16,344,985 shares issued
and outstanding at September 30, 1999 and December
31, 1998, respectively............................. 172 164
Additional paid-in capital.......................... 105,279 105,135
Accumulated deficit................................. (103,046) (100,488)
Accumulated other comprehensive loss................ (4) (1)
-------- --------
Total Stockholders' Equity...................... 2,401 4,810
-------- --------
Total Liabilities and Stockholders' Equity...... $ 4,638 $ 13,723
======== ========
</TABLE>
The accompanying notes are an integral part of these unaudited consolidated
financial statements.
3
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
CONSOLIDATED STATEMENT OF OPERATIONS
(In Thousands, Except Per Share-related Data)
<TABLE>
<CAPTION>
Three Months Nine Months
Ended September 30, Ended September 30,
-------------------- ---------------------
1999 1998 1999 1998
--------- ---------- --------- ----------
(Unaudited)
<S> <C> <C> <C> <C>
REVENUE:
Outsourcing services, including
$-, $106, $- and $872 from
related parties,
respectively.................. $ 1,354 $ 2,270 $ 4,846 $ 7,685
License, including $-, $-, $-
and $255 from related parties,
respectively.................. 149 763 1,937 8,602
Other services, including $-,
$-, $- and $204 from related
parties, respectively......... 457 2,260 2,957 9,522
-------- ---------- --------- ----------
Total Revenue................ 1,960 5,293 9,740 25,809
-------- ---------- --------- ----------
COST OF REVENUE:
Cost of outsourcing services,
including $-, $86, $- and $750
from related parties,
respectively.................. 951 1,826 4,125 5,833
Cost of license................ 15 474 162 1,520
Cost of other services,
including $-, $-, $- and $56
from related parties,
respectively.................. 159 2,551 1,842 7,636
-------- ---------- --------- ----------
Total Cost of Revenue........ 1,125 4,851 6,129 14,989
-------- ---------- --------- ----------
Gross Profit................. 835 442 3,611 10,820
-------- ---------- --------- ----------
OPERATING EXPENSES:
Sales and marketing............ 112 3,980 1,367 10,355
Research and development....... 264 2,150 1,078 7,195
General and administrative..... 793 2,969 3,276 6,017
Impairment of long-lived
assets........................ 207 4,294 961 4,294
Restructuring charge........... (450) 3,279 (455) 4,718
-------- ---------- --------- ----------
Total Operating Expenses..... 926 16,672 6,227 32,579
-------- ---------- --------- ----------
Loss from Operations............. (91) (16,230) (2,616) (21,759)
Interest income, net............. 25 95 63 440
-------- ---------- --------- ----------
Loss before gain on disposition
of majority-owned subsidiary,
income taxes and minority
interest in majority-owned
subsidiary...................... (66) (16,135) (2,553) (21,319)
Gain on disposition of majority-
owned subsidiary................ -- (11) -- (11)
Provision for income taxes....... 5 -- 5 25
-------- ---------- --------- ----------
Loss before minority interest in
majority-owned subsidiary....... (71) (16,124) (2,558) (21,333)
Minority interest in majority-
owned subsidiary................ -- 8 -- (4)
-------- ---------- --------- ----------
Net Loss....................... $ ( 71) $ (16,132) $ (2,558) $ (21,329)
======== ========== ========= ==========
Net Loss per common share:
Basic.......................... $ (0.00) $ (0.99) $ (0.16) $ (1.32)
======== ========== ========= ==========
Diluted........................ $ (0.00) $ (0.99) $ (0.16) $ (1.32)
======== ========== ========= ==========
Weighted average common shares
outstanding:
Basic.......................... 16,763 16,294 16,496 16,121
======== ========== ========= ==========
Diluted........................ 16,763 16,294 16,496 16,121
======== ========== ========= ==========
</TABLE>
The accompanying notes are an integral part of these unaudited consolidated
financial statements.
4
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(In thousands)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
-------------------
1999 1998
-------- ---------
(Unaudited)
<S> <C> <C>
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
Cash flows from operating activities:
Net loss.................................................. $ (2,558) $ (21,329)
Adjustments to reconcile net loss to net cash used for
operating activities:
Depreciation and amortization............................ 1,215 2,444
Minority interest in majority-owned subsidiary........... -- (4)
Impairment of long-lived assets.......................... 961 4,294
Gain on disposition of majority-owned subsidiary......... -- (11)
Changes in assets and liabilities:
Accounts receivable..................................... 3,198 6,837
Costs and estimated earnings in excess of billings on
uncompleted contracts.................................. 593 855
Prepaid expenses and other current assets............... 510 (585)
Other assets............................................ 113 (188)
Accounts payable........................................ (448) (598)
Proceeds from customer advance.......................... 296 --
Billings in excess of costs and estimated earnings on
uncompleted contracts.................................. (10) 290
Deferred revenue........................................ (1,621) (693)
Other accrued expenses and current liabilities excluding
accrued restructuring.................................. (1,609) (230)
Accrued restructuring................................... (1,835) 3,842
-------- ---------
Net cash used for operating activities................ (1,195) (5,076)
-------- ---------
Cash flows from investing activities:
Cash of majority-owned subsidiary disposed, net of cash
received............................................... -- (1,074)
Sale of short-term investments.......................... 500 500
Proceeds from sale of property and equipment............ 288 --
Purchases of property and equipment..................... (48) (2,726)
-------- ---------
Net cash provided by (used in) investing activities... 740 (3,300)
-------- ---------
Cash flows from financing activities:
Restricted cash......................................... 569 --
Principal payments on long-term debt.................... (269) (219)
Principal payments on capital lease obligations......... (335) (70)
Proceeds from issuance of common stock, net of issuance
costs.................................................. 152 1,282
Proceeds from repayment of note receivable from
stockholder............................................ -- 58
-------- ---------
Net cash provided by financing activities............. 117 1,051
-------- ---------
Effects of exchange rates on cash and cash equivalents.... (1) (11)
-------- ---------
Net decrease in cash and cash equivalents................. (339) (7,336)
Cash and cash equivalents, beginning of period............ 2,809 11,340
-------- ---------
Cash and cash equivalents, end of period.................. $ 2,470 $ 4,004
======== =========
SUPPLEMENTAL DISCLOSURE OF CASH FLOWS:
Cash paid for income taxes............................... $ 29 $ 78
Cash paid for interest................................... 24 49
</TABLE>
The accompanying notes are an integral part of these unaudited consolidated
financial statements.
5
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION AND GOING CONCERN MATTERS
The accompanying unaudited consolidated financial statements include the
accounts of Peritus Software Services, Inc. and its subsidiaries (the
"Company") and have been prepared by the Company without audit in accordance
with the Company's accounting policies, as described in the Company's Annual
Report on Form 10-K, as amended, for the year ended December 31, 1998, as
filed with the Securities and Exchange Commission ("SEC"). In the opinion of
management, the accompanying unaudited consolidated financial statements
contain all adjustments, which, other than the restructuring and asset
impairment charges, consist only of those of a normal recurring nature,
necessary for a fair presentation of the Company's financial position, results
of operations and cash flows at the dates and for the periods indicated. While
the Company believes that the disclosures presented are adequate to make the
information not misleading, these financial statements should be read in
conjunction with the consolidated financial statements and related notes
included in the Company's 1998 Annual Report on Form 10-K, as amended. The
operating results for the nine months ended September 30, 1999 are not
necessarily indicative of the results to be expected for the full year ending
December 31, 1999.
The Company's consolidated financial statements have been presented on the
basis that it is a going concern, which contemplates continuity of operations,
realization of assets and the satisfaction of liabilities in the ordinary
course of business. However, the Company experienced net losses of $2,558,000,
$26,673,000 and $67,490,000 in the nine months ended September 30, 1999 and in
the years ended December 31, 1998 and December 31, 1997, respectively, which
raise doubt about its ability to continue as a going concern. The Company's
cash flow requirements will depend on the results of future operations. The
Company's continued existence is dependent upon its ability to achieve a cash
flow breakeven position and/or to obtain additional sources of financing. The
Company has serious concerns that it will be unable to achieve a cash flow
breakeven position in the future and the Company is considering various
alternatives including the possibility of filing for the protection against
creditors or liquidation under applicable bankruptcy laws. The Company
currently maintains its outsourcing service delivery resources and limited
sales and year 2000 resources required to meet current support obligations.
The Company's common stock is traded on the Over The Counter ("OTC") Bulletin
Board which has several requirements for listing. Failure to meet listing
requirements may result in the Company being de-listed. There can be no
assurance that the Company will not be de-listed.
During 1998, the Company's bank indicated that it would not renew or further
extend its revolving line of credit facility and demanded that cash collateral
be provided for all amounts outstanding under its equipment financing
agreement with the Company since the Company was in default of certain
financial and operating covenants thereunder. At December 31, 1998, $269,000
and $300,000 of cash was pledged as collateral for all amounts outstanding
under the equipment financing agreement and the standby letter of credit,
respectively. Accordingly, these amounts have been classified as restricted
cash on the accompanying Consolidated Balance Sheet. As of September 30, 1999,
there were no amounts outstanding under the revolving credit facility or the
equipment financing agreement. The Company expects to conclude an accounts
receivable purchase agreement with a lender to permit borrowing against
certain acceptable receivables at a rate of 80% of the face amount of such
receivables up to a maximum of $4 million. In exchange for such agreement, the
Company will grant the lender a security interest in substantially all of its
assets. In March 1999, the Company announced that it had retained Covington
Associates to render financial advisory and investment banking services in
connection with exploring strategic alternatives including the potential sale
of the Company. The engagement agreement was entered into in December 1998.
The Company is also exploring strategic initiatives to raise additional funds
or sell all or part of its assets. There can be no assurance that the Company
will achieve a cash flow breakeven position or that it will be able to
successfully borrow against the accounts receivable purchase agreement,
negotiate other borrowing arrangements or raise additional funds through bank
borrowings and/or debt and/or equity financings. Further reductions in
expenses or the sale of assets may not be adequate to bring the Company to a
cash breakeven position. In addition, there can be no assurance that such
actions will not have an adverse
6
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
effect on the Company's ability to generate revenue or successfully implement
any strategic alternatives under consideration. The Company's present
expectation is that revenue will continue to decline in the foreseeable
future. Failure to establish a cash flow breakeven position or raise
additional funds through bank borrowings and/or equity and/or debt financings
would adversely impact the Company's ability to continue as a going concern.
The Consolidated Financial Statements do not include any adjustments that
might result from the outcome of this uncertainty.
2. LEGAL PROCEEDINGS
The Company and certain of its officers and directors were named as
defendants in purported class action lawsuits filed in the United States
District Court for the District of Massachusetts by Robert Downey on April 1,
1998, by Scott Cohen on April 7, 1998, by Timothy Bonnett on April 9, 1998, by
Peter Lindsay on April 17, 1998, by Harry Teague on April 21, 1998, by Jesse
Wijntjes on April 29, 1998, by H. Vance Johnson and H. Vance Johnson as
Trustee for the I.O.R.D. Profit-Sharing Plan on May 6, 1998, by John B.
Howard, M.D. on May 21, 1998 and by Helen Lee on May 28, 1998 (collectively,
the "complaints"). The complaints principally alleged that the defendants
violated federal securities laws by making false and misleading statements and
by failing to disclose material information concerning the Company's December
1997 acquisition of substantially all of the assets and assumption of certain
liabilities of the Millennium Dynamics, Inc. ("MDI") business from American
Premier Underwriters, Inc., thereby allegedly causing the value of the
Company's common stock to be artificially inflated during the purported class
periods. In addition, the Howard complaint alleged a violation of federal
securities laws as a result of the Company's purported failure to disclose
material information in connection with the Company's initial public offering
on July 2, 1997, and also named Montgomery Securities, Inc., Wessels, Arnold &
Henderson, and H.C. Wainwright & Co., Inc. as defendants. The complaints
further alleged that certain officers and/or directors of the Company sold
stock in the open market during the class periods and sought unspecified
damages.
On or about June 1, 1998, all of the named plaintiffs and additional
purported class members filed a motion for the appointment of several of those
individuals as lead plaintiffs, for approval of lead and liaison plaintiffs'
counsel and for consolidation of the actions. The Court granted that motion on
June 18, 1998.
On January 8, 1999, the plaintiffs filed a Consolidated Amended Complaint
applicable to all previously filed actions. The Consolidated Amended Complaint
alleges a class period of October 22, 1997 through October 26, 1998 and
principally claims that the Company and three of its former officers violated
federal securities laws by purportedly making false and misleading statements
(or omitting material information) concerning the MDI acquisition and the
Company's revenue during the proposed class period, thereby allegedly causing
the value of the Company's stock to be artificially inflated. Previously
stated claims against the Company and its underwriters alleging violations of
the federal securities laws as a result of purportedly inadequate or incorrect
disclosure in connection with the Company's initial public offering were not
included in the Consolidated Amended Complaint. The Company and the individual
defendents filed motions to dismiss the Consolidated Amended Complaint on
March 5, 1999. Oral arguments on the motions were held on April 21, 1999 and
the Court granted the Company's and the individual defendants' motions to
dismiss pursuant to an order dated June 1, 1999. The plaintiffs have appealed
the Court's order of dismissal. The Company intends to contest the appeal and
support the Court's order of dismissal. Appellate briefs are due to be filed
with the First Circuit Court of Appeals in November and December 1999.
While the District Court has dismissed the Consolidated Amended Complaint,
the First Circuit Court of Appeals could reinstate it. While the Company
believes it would have meritorious defenses to the action if it were
reinstated, an adverse resolution of the lawsuit could have a material adverse
effect on the Company's financial condition and results of operations in the
period in which the litigation is resolved. The Company is not able to
reasonably estimate potential losses, if any, related to the Consolidated
Amended Complaint.
7
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
On or about April 28, 1999, the Company filed a lawsuit in the United States
District Court for the District of Massachusetts against Micah Technology
Services, Inc. and Affiliated Computer Services, Inc. (collectively, "Micah").
The lawsuit principally alleges that Micah breached its contract with the
Company by failing to pay for services performed by the Company under such
contract. The lawsuit further alleges that since Micah was unjustly enriched
by the services performed by the Company, the Company is entitled to recovery
based on quantum meruit, and that Micah engaged in unfair and/or deceptive
trade practices or acts in violation of Massachusetts General Laws ("M.G.L.")
Chapter 93A by allowing the Company to perform services when Micah did not pay
for such services. The lawsuit seeks unspecified damages on the breach of
contract and quantum meruit claims and double or triple damages on the Chapter
93A claim. Micah has denied the Company's allegations and has filed a
counterclaim against the Company principally alleging fraud, negligent
misrepresentations, breach of contract and that the Company engaged in unfair
and/or deceptive trade practices or acts in violation of M.G.L. Chapter 93A by
its misrepresentations and breach of contract. The Company denied the
allegations contained in Micah's counterclaim and intends to contest the
counterclaim vigorously. The parties are in the initial discovery phase of the
litigation.
In addition to the matters noted above, the Company is from time to time
subject to legal proceedings and claims which arise in the normal course of
its business. In the opinion of management, the amount of ultimate liability
with respect to these other actions, currently known, will not have a material
adverse effect on the Company's financial position or results of operations
for the nine months ended September 30, 1999.
3. RESTRUCTURING CHARGES
On March 29, 1999, the Company announced its intention to restructure. The
restructure plan was finalized on March 31, 1999 and the Company recorded a
charge of $291,000, consisting of severance payments associated with the
termination of approximately 30% of the Company's employees representing
substantially all of its sales, marketing and year 2000 delivery personnel (40
employees). Payments related to terminated employees were completed by May 28,
1999. The restructuring resulted in a quarterly reduction of approximately
$1,000,000 in salary and related costs beginning in the third quarter of 1999.
The amounts accrued to and payments against the accrued restructuring during
the first quarter of 1999 and the composition of the remaining balance at
March 31, 1999 were as follows:
<TABLE>
<CAPTION>
Balance Q1 1999 Q1 1999 Balance
December 31, 1998 Accrual Payments March 31, 1999
----------------- ------- -------- --------------
(in thousands)
<S> <C> <C> <C> <C>
Provision for severance and
benefit payments to
terminated employees....... $ 536 $291 $(212) $ 615
Provision related to closure
of facilities and reduction
of occupied space.......... 2,144 -- (361) 1,783
------ ---- ----- ------
Total................... $2,680 $291 $(573) $2,398
====== ==== ===== ======
</TABLE>
In April of 1999, the Company decided to further reduce the amount of space
it occupies in its Billerica, Massachusetts headquarters facility. The space
consolidation was completed in the second quarter of 1999 and the Company
increased the amount of space it was offering for sublease from 50,000 to
75,000 square feet. Accordingly, the Company recorded an additional
restructure accrual of $517,000 consisting of the cost of lease expenses and
real estate commissions associated with the additional vacated 25,000 square
feet net of estimated sublease income. This additional restructuring resulted
in a quarterly reduction in rent expense of $87,000 beginning in the third
quarter of 1999. Payments and reclassifications during the second quarter of
1999 included a settlement payment of $136,000 associated with the early
termination of the Company's lease for its facility in Cincinnati, Ohio and a
$296,000 adjustment to reclassify the rent levelization accrual associated
with the vacated
8
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
space in its Billerica headquarters facility from other accrued expenses into
the restructure accrual. At the end of the second quarter of 1999, the Company
re-evaluated the estimated costs associated with its previous restructure
charges based upon activity and experience to date. Based upon its revised
estimates, the Company recorded a release of $813,000 from the restructure
accrual. The combination of the second quarter accrual and the second quarter
release resulted in a net favorable impact of $296,000 to the results of
operations for the three months ended June 30, 1999.
The amounts accrued to and released from and payments and adjustments made
against the restructure accrual along with the composition of the remaining
balance at June 30, 1999 were as follows:
<TABLE>
<CAPTION>
Balance Q2 1999 Balance
March 31, Payments/ Q2 1999 Q2 1999 June 30,
1999 Reclassifications Accrual Release 1999
--------- ----------------- ------- ------- --------
(in thousands)
<S> <C> <C> <C> <C> <C>
Provision for severance
and benefit payments to
terminated employees..... $ 615 $(425) $-- $ (75) $ 115
Provision related to
closure of facilities and
reduction of occupied
space.................... 1,783 105 517 (738) 1,667
------ ----- ---- ----- ------
Total................. $2,398 $(320) $517 $(813) $1,782
====== ===== ==== ===== ======
</TABLE>
In August of 1999, the Company executed a lease termination agreement for
its Lisle, Illinois facility. Under the agreement, the Company paid $100,000
and relinquished its $16,000 security deposit. These amounts were charged
against the accrued restructuring liability during the third quarter of 1999.
In September of 1999, the Company entered into a settlement agreement with
BCIA New England Holdings LLC for release from its Billerica real estate
lease. Under the settlement, the Company agreed to pay $200,000 in cash,
relinquish its $300,000 security deposit, issue 500,000 shares of common stock
and provide $71,000 of furniture and equipment. All of these items were
charged against the accrued restructuring liability during the third quarter
of 1999. The Company also charged the liability for an $734,000 write-off of
leasehold improvements and other fixed assets directly tied to its Billerica
and Lisle facilities.
The third quarter payments and reclassifications also include a $110,000
payment for the settlement of two telephone leases and the elimination of the
associated $270,000 capital lease liability, and a $149,000 adjustment to
reclassify the remaining rent levelization accrual for the Billerica facility
from other accrued expenses into the restructure accrual.
The Billerica settlement cost the Company less than originally estimated. As
a result, the Company recorded a release of $436,000 associated with the
facilities provision. In total, the Company recorded a net favorable impact of
$450,000 associated with restructuring to the results of operations for the
three months ended September 30, 1999.
The amounts accrued to and released from and payments and adjustments made
against the restructure accrual along with the composition of the remaining
balance at September 30, 1999 were as follows:
<TABLE>
<CAPTION>
Q3 1999 Balance
Balance Payments/ Q3 1999 September 30,
June 30, 1999 Reclassifications Release 1999
------------- ----------------- ------- -------------
(in thousands)
<S> <C> <C> <C> <C>
Provision for severance
and benefit payments to
terminated employees.... $ 115 $ (101) $ (14) $ --
Provision related to
closure of facilities
and reduction of
occupied space.......... 1,667 (1,231) (436) --
------ ------- ----- -----
Total................ $1,782 $(1,332) $(450) $ --
====== ======= ===== =====
</TABLE>
9
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
4. IMPAIRMENT OF LONG-LIVED ASSETS
The Company periodically assesses whether any events or changes in
circumstances have occurred that would indicate that the carrying amount of a
long-lived asset might not be recoverable. When such an event or change in
circumstance occurs, the Company evaluates whether the carrying amount of such
asset is recoverable by comparing the net book value of the asset to estimated
future undiscounted cash flows, excluding interest charges, attributable to
such asset. If it is determined that the carrying amount is not recoverable,
the Company recognizes an impairment loss equal to the excess of the carrying
amount of the asset over the estimated fair value of such asset.
In June 1999, as a result of the continuing downsizing of the Company's
operations and continuing decline in operating results, the Company reviewed
the carrying amount of its property and equipment and committed to a plan to
dispose certain of its assets, primarily excess computer equipment and
furniture relating to the restructured operations, either by sale or by
abandonment. The fair value of the assets to be disposed of was measured at
management's best estimate of salvage value, by using the current market
values or the current selling prices for similar assets. Based upon
management's review, the carrying amount of assets having a net book value of
$1,143,000 was written down to a total amount of $389,000, representing the
lower of carrying amount or fair value (salvage value) and the Company
recorded an impairment charge totaling $754,000. The reduction in depreciation
expenses resulting from this write-down is approximately $82,000 on a
quarterly basis beginning in the third quarter of 1999. The Company completed
its sale of assets associated with its June impairment charge in the third
quarter of 1999 and the sale proceeds received were not significantly
different from original estimates.
During the third quarter of 1999, the Company made a decision to transfer
the research and development responsibility for its SAM Workbench product from
India to the United States. As a result of that decision, the personnel in
India were no longer required and were transferred (with the exception of one)
to another company without cost. The Company's facility lease in India expires
in February of 2000 and the Company expects to complete the sale of all
furniture and equipment before that time. The Company, therefore, recorded an
impairment charge of $145,000 against assets having a net book value of
$182,000 to write down the assets involved to their estimated fair value
(salvage value) of $37,000. The reduction in depreciation expense from this
write-down will be approximately $30,000 on a quarterly basis beginning in the
fourth quarter of 1999.
During the third quarter of 1999, the Company completed its review of its
product offering going forward. The determination was made that the Company
would not be able to afford to develop future products based upon its patented
technology. In addition, the Company expects that it will receive minimal
future revenue from its existing products that include the patented
technology. Accordingly, management concluded that the remaining patent book
value of $63,000 could no longer be supported and it was written down to zero.
The write-down was included in the third quarter impairment charge. Savings in
amortization expense from this write-down will be $17,000 on a quarterly basis
beginning in the fourth quarter of 1999.
5. OTHER ACCRUED EXPENSES AND CURRENT LIABILITIES
Other accrued expenses and current liabilities consist of the following:
<TABLE>
<CAPTION>
September 30, December 31,
1999 1998
------------- ------------
<S> <C> <C>
Restructuring costs.................................. $ -- $1,613,000
Employee-related costs............................... 198,000 548,000
Rent levelization.................................... -- 357,000
Professional costs................................... 135,000 342,000
Accrued Sales and Use Tax............................ 487,000 185,000
Other................................................ 372,000 1,369,000
---------- ----------
$1,192,000 $4,414,000
========== ==========
</TABLE>
10
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
6. COMPREHENSIVE INCOME (LOSS)
Comprehensive income is defined as the change in equity of a business
enterprise during a period from transactions and other events and
circumstances from non-owner sources. It includes all changes in equity during
a period except those resulting from investments by owners and distributions
to owners. This standard requires that an enterprise display an amount
representing total comprehensive income for the period. At September 30, 1999,
the balance of accumulated other comprehensive loss was comprised of foreign
currency translation adjustments only.
For the three and nine months ended September 30, 1999 and 1998, the
Company's comprehensive loss was comprised as follows:
<TABLE>
<CAPTION>
Nine Months
Three Months Ended Ended
September 30 September 30
-------------------- -----------------
1999 1998 1999 1998
-------------------- ------- --------
(in thousands)
<S> <C> <C> <C> <C>
Net loss.............................. $ (71) $ (16,132) $(2,558) $(21,329)
Translation adjustment................ 3 2 (3) 13
------- ----------- ------- --------
$ (68) $ (16,130) $(2,561) $(21,316)
======= =========== ======= ========
</TABLE>
7. SEGMENT, GEOGRAPHIC, AND PRODUCT INFORMATION
The Company operates in one reportable segment under SFAS No. 131,
"Disclosures about Segments of an Enterprise and Related Information," due to
its centralized structure and single industry segment: software maintenance,
tools and services. The Company currently derives its revenue from software
maintenance outsourcing services, software and methodology licensing and other
services (including direct delivery of Year 2000 renovation services and
renovation quality evaluation ("RQE") provided directly to end users or
indirectly via value added integrators).
Information by geographic area for the three months ended September 30, 1999
and 1998, is summarized below:
<TABLE>
<CAPTION>
Outsourcing Services License Revenue Other Services Revenue
----------------------- ----------------------- -----------------------
Unaffiliated Affiliated Unaffiliated Affiliated Unaffiliated Affiliated
------------ ---------- ------------ ---------- ------------ ----------
(in thousands)
<S> <C> <C> <C> <C> <C> <C>
September 30, 1999
United States........... $1,354 -- $149 -- $ 457 --
Foreign................. -- -- -- -- -- --
------ ---- ---- --- ------ ---
$1,354 -- $149 -- $ 457 --
====== ==== ==== === ====== ===
September 30, 1998
United States........... $2,135 -- $763 -- $2,253 --
Foreign................. 34 101 -- -- 7 --
------ ---- ---- --- ------ ---
$2,169 $101 $763 -- $2,260 --
====== ==== ==== === ====== ===
</TABLE>
11
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Information by geographic area for the nine months ended September 30, 1999
and 1998, is summarized below:
<TABLE>
<CAPTION>
Outsourcing Services License Revenue Other Services Revenue Long-
----------------------- ----------------------- ----------------------- Lived
Unaffiliated Affiliated Unaffiliated Affiliated Unaffiliated Affiliated Assets
------------ ---------- ------------ ---------- ------------ ---------- ------
(in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
September 30, 1999
United States........... $4,846 -- $1,937 -- $2,957 -- $ 890
Foreign................. -- -- -- -- -- -- 37
------ ---- ------ --- ------ --- ------
$4,846 -- $1,937 -- $2,957 -- $ 927
====== ==== ====== === ====== === ======
September 30, 1998
United States........... $6,562 -- $8,602 -- $9,413 -- $5,413
Foreign................. 251 872 -- -- 109 -- 267
------ ---- ------ --- ------ --- ------
$6,813 $872 $8,602 -- $9,522 -- $5,680
====== ==== ====== === ====== === ======
</TABLE>
The geographic classification of revenue is determined based on the country
in which the legal entity providing the services is located. Revenue from no
single foreign country was greater than 10% of the consolidated revenues of
the Company in the nine months ended and at September 30, 1999 and 1998.
ITEM 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
OVERVIEW AND GOING CONCERN MATTERS
Peritus Software Services, Inc. (the "Company") was founded in 1991 to
address the growing market for managing and maintaining the installed base of
software in organizations. The Company focused its efforts on the delivery of
software maintenance outsourcing services until 1995, when it began to devote
significant resources to the development of software tools addressing the
problems associated with mass changes to application systems and their
associated databases, particularly the year 2000 problem. In 1996, the Company
began licensing its AutoEnhancer/2000 software, which was designed to address
the year 2000 problem, to value added integrators and directly to end users.
In 1996, the Company expanded its research and development efforts through the
acquisition of Vista Technologies Incorporated ("Vista"), a developer of
computer-aided engineering software. In 1997, the Company expanded its product
offerings by releasing an enhanced version of the AutoEnhancer/2000 software
which enables a client to perform logic correction only changes with regard to
year 2000 renovations, and through the acquisition of substantially all of the
assets and the assumption of certain of the liabilities of the business of
Millennium Dynamics, Inc. ("MDI"), a software tools company with year 2000
products for the IBM mainframe and AS/400 platforms, from American Premier
Underwriters, Inc. ("APU").
In response to changes in the markets for the Company's products and
services, the Company emphasized the direct delivery of year 2000 renovation
services and renovation quality evaluation ("RQE") services in the beginning
of 1998, and also began to refocus business on software maintenance
outsourcing services. As the market continued to shift from the Company's year
2000 products and services during the third quarter of 1998, the Company's
overall strategy was to grow its software maintenance outsourcing business
over the long term and to meet its clients needs for year 2000 renovation
services and RQE services. In July 1998, the Company announced its software
maintenance outsourcing offerings, "Software Asset Maintenance for Software
Providers" and "Software Asset Maintenance for Information Systems", which are
outsourcing solutions designed specifically for the manufacturers of system
software and software products and for information technology departments that
maintain application software, respectively.
12
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
In the second half of 1998, the overall market for the year 2000 tools and
services of the Company contracted dramatically, resulting in substantial
financial losses, and, in response, the Company substantially reduced its
workforce in September and December of 1998. As a result of the Company's
degraded financial condition, the Company began encountering major obstacles
in obtaining new outsourcing business. Since most outsourcing engagements are
multi-year and involve critical applications, prospective new clients,
although interested in the capabilities and technology of the Company, were
reluctant or unwilling to commit to contracts. In addition, existing
outsourcing customers were and may continue to be unwilling to renew existing
contracts based on their own business requirements and/or because of the
Company's degraded financial condition. Based upon its continued difficulties,
the Company announced an additional reduction in workforce in March 1999 and
has experienced significant voluntary attrition in its workforce.
In March 1999, the Company announced that it had retained Covington
Associates to render financial advisory and investment banking services in
connection with exploring strategic alternatives including the potential sale
of the Company. The engagement agreement was entered into in December 1998.
The Company is also exploring strategic initiatives to raise additional funds
or sell all or part of its assets. There can be no assurance that the Company
will achieve a cash flow breakeven position or that it will be able to raise
additional funds through bank borrowings and/or debt and/or equity financings.
Further reductions in expenses or the sale of assets may not be adequate to
bring the Company to a cash flow breakeven position. In addition, there can be
no assurance that such actions will not have an adverse effect on the
Company's ability to generate revenue or successfully implement any strategic
alternatives under consideration. Failure to establish a cash flow breakeven
position or raise additional funds through bank borrowings and/or equity
and/or debt financings would adversely impact the Company's ability to
continue as a going concern.
In July 1999, the Company announced that it reached a settlement with
American Financial Group, Inc. ("AFG") and its subsidiaries and affiliates for
release from its real estate lease in Cincinnati, Ohio and certain other
obligations. Under the settlement, the Company agreed to pay $200,000 in cash
and 300,000 shares of Common Stock in exchange for release of its real estate
lease for 20,500 square feet that required average monthly payments excluding
operating expenses of $36,000 through November 2002. The Company had not made
any payments since October 1998. The settlement also released the Company from
net claims for other services and disputes of $334,500.
In August 1999, the Company executed a lease termination agreement for its
Lisle, Illinois facility. Under that agreement, the Company agreed to pay
$100,000 in cash and relinquish its $16,000 security deposit. The real estate
lease for 9,000 square feet required average lease and operating expense
payments of $18,000 per month through February 2003. The Company had not made
any payments since March 1999. Effective September 27, 1999, the Company
relocated its corporate headquarters from Billerica, Massachusetts to its
existing facility located at 112 Turnpike Road, Westborough, Massachusetts.
The Company also reached a settlement agreement with BCIA New England Holdings
LLC for release from its real estate lease at 2 Federal Street, Billerica,
Massachusetts. Under the settlement, the Company agreed to pay $200,000 in
cash, relinquish its $300,000 security deposit, issue 500,000 shares of Common
Stock and transfer miscellaneous furnishings and equipment. In exchange, the
Company was released from its real estate lease for 100,000 square feet which
required average lease and operating expense payments of $145,000 per month
through February 2006. The Company had not made any payments since July 1999.
The Company experienced net losses of $2,558,000, $26,673,000 and
$67,490,000 in the nine months ended September 30, 1999 and in the years ended
December 31, 1998 and December 31, 1997, respectively, which raise doubt about
its ability to continue as a going concern. The Company's cash flow
requirements will depend on the results of future operations. The Company's
continued existence is dependent upon its ability to achieve a cash flow
breakeven position and/or to obtain additional sources of financing. The
Company has serious concerns that it will be unable to achieve a cash flow
breakeven position in the future and the Company is considering
13
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
various alternatives including the possibility of filing for the protection
against creditors or liquidation under applicable bankruptcy laws. The Company
currently maintains its outsourcing service delivery resources and limited
sales and year 2000 resources required to meet current support obligations.
The Company's common stock is traded on the Over The Counter ("OTC") Bulletin
Board which has several requirements for listing. Failure to meet listing
requirements may result in the Company being de-listed. There can be no
assurance that the Company will not be de-listed.
The Company's current focus is on minimizing expenses, while preserving its
principal saleable assets: its outsourcing business and its technology. During
the second and third quarters of 1999, the Company spent considerable effort
to reduce its fixed costs. The Company is continuing to selectively pursue
sales of its software tools. The Company is also focusing on renewing its
existing outsourcing contracts and licensing its methodologies and providing
limited consulting services. The Company continues to support its existing
software customers and continues to offer very limited year 2000 services
based on availability of contracted resources.
The Company currently derives its revenue from software maintenance
outsourcing services, software and methodology licensing and other services
sold directly to end users. The Company's current sales organization includes
one employee. The Company's present expectation is that revenue will continue
to decline in the foreseeable future.
THREE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO THREE MONTHS ENDED SEPTEMBER
30, 1998
Revenue
Total revenue decreased 63.0% to $1,960,000 in the three months ended
September 30, 1999 from $5,293,000 in the three months ended September 30,
1998. This decrease in revenue was primarily due to a decrease in other
services and outsourcing revenues and, to a lesser extent, in the licensing of
the Company's software, products and tools.
Outsourcing Services. Outsourcing services revenue decreased 40.4% to
$1,354,000 in the three months ended September 30, 1999 from $2,270,000 in the
three months ended September 30, 1998. As a percentage of total revenue,
outsourcing services revenue increased to 69.1% in the three months ended
September 30, 1999 from 42.9% for the three months ended September 30, 1998.
The increase in outsourcing services revenue as a percentage of total revenue
reflects the decreased contribution of other services and license revenue to
total revenue during the three months ended September 30, 1999 when compared
to the same period in the prior year. The decrease in outsourcing revenue in
the three months ending September 30, 1999 compared to September 30, 1998 was
primarily attributable to the sale of a foreign subsidiary in July 1998, the
loss of a month-to-month customer during the second quarter of 1999, the
inability to renew a customer whose contract expired at the end of the second
quarter, and reduced levels of service for two other customers. The Company
was also informed by another customer that it was exercising its six-month
termination option which took effect November 5, 1999. Outsourcing services
remain a major component of the Company's business. However, due to the
Company's degraded financial condition, the Company anticipates that it will
continue to have difficulty attracting new outsourcing customers and that it
may be difficult to renew or extend outsourcing contracts from existing
customers. Without the addition of new business, the Company will continue to
experience a significant reduction in revenue from outsourcing services in the
future.
License. License revenue decreased 80.5% to $149,000 in the three months
ended September 30, 1999 (7.6% of total revenue), compared to $763,000 (14.4%
of total revenue), in the three months ended September 30, 1998. The decrease
in license revenue in absolute dollars was primarily attributable to a
decrease in the delivery of licensed software to end users and decreased
license fees from value-added integrators. The
14
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
market for the Company's year 2000 tools significantly eroded in 1998 and the
first nine months of 1999, and the Company anticipates limited year 2000
related license revenue in the future. The Company will continue to pursue
licenses of its tools associated with outsourcing services.
Other Services. Other services revenue decreased 79.8% to $457,000 in the
three months ended September 30, 1999 from $2,260,000 in the three months
ended September 30, 1998. As a percentage of total revenue, other services
revenue decreased to 23.3% in the three months ended September 30, 1999 from
42.7% in the three months ended September 30, 1998. The decrease in other
services revenue in absolute dollars was primarily attributable to a decrease
in direct delivery, consulting and client support services relating to the
Company's year 2000 products and services. Given the reduction in demand for
its year 2000 services and the reduction in internal resources announced at
the end of March 1999, the Company anticipates continued reductions in its
year 2000 related service revenue in the future.
Cost of Revenue
Cost of Outsourcing Services Revenue. Cost of outsourcing services revenue
consists primarily of salaries, benefits, networking, and overhead costs
associated with delivering outsourcing services to clients. The cost of
outsourcing services decreased 47.9% to $951,000 in the three months ended
September 30, 1999 from $1,826,000 for the three months ended September 30,
1998. Cost of outsourcing services revenue as a percentage of outsourcing
services revenue decreased to 70.2% in the three months ended September 30,
1999 from 80.4% in the three months ended September 30, 1998. The decrease in
the cost of outsourcing services revenue in absolute dollars is primarily
attributable to reductions in staffing and other operating expenses.
Cost of License Revenue. Cost of license revenue consists primarily of
amortization of intangibles related to the MDI acquisition and salaries,
benefits and related overhead costs associated with license-related materials
packaging and freight. Cost of license revenue was $15,000 in the three months
ended September 30, 1999, or 10.0% of license revenue. Cost of license revenue
was $474,000, or 62.1% of license revenue, in the three months ended September
30, 1998. The 96.8% decrease in cost of license revenue was primarily related
to the reduction of amortization expense of intangibles related to the MDI
acquisition as a result of the impairment charge recorded against the MDI
related intangibles by the Company in the third quarter of 1998.
Cost of Other Services Revenue. Cost of other services revenue consists
primarily of salaries, benefits, subcontracting costs and related overhead
costs associated with delivering other services to clients. Cost of other
services revenue decreased 93.8% to $159,000 in the three months ended
September 30, 1999 from $2,551,000 in the three months ended September 30,
1998. Cost of other services revenue as a percentage of other services revenue
decreased to 34.8% in the three months ended September 30, 1999 from 112.9% in
the three months ended September 30, 1998. Costs decreased in absolute dollars
in the three months ended September 30, 1999 primarily due to reduced staffing
for the Company's client support, training and consulting organizations
related to fewer customers for the Company's year 2000 products and services,
including year 2000 renovations and RQE services.
Operating Expenses
Sales and Marketing. Sales and marketing expenses consist primarily of
salaries, commissions and related overhead costs for sales and marketing
personnel, sales referral fees to third parties, advertising programs, and
other promotional activities. Sales and marketing expenses decreased 97.2% to
$112,000 in the three months ended September 30, 1999 from $3,980,000 in the
three months ended September 30, 1998. As a percentage of total revenue, sales
and marketing expenses decreased to 5.7% in the three months ended September
30, 1999 from 75.2% in the three months ended September 30, 1998. The decrease
in expenses in absolute dollars and as a percentage of revenue was primarily
attributable to dramatically reduced staffing, commissions and promotional
activities.
15
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
Research and Development. Research and development expenses consist
primarily of salaries, benefits and related overhead costs for engineering and
technical personnel and outside engineering consulting services associated
with developing new products and enhancing existing products. Research and
development expenses decreased 87.7% to $264,000 in the three months ended
September 30, 1999 from $2,150,000 in the three months ended September 30,
1998. As a percentage of total revenue, research and development expenses
decreased to 13.5% in the three months ended September 30, 1999 from 40.6% in
the three months ended September 30, 1998. The decrease in research and
development expenses in absolute dollars was primarily attributable to
dramatically reduced staffing for the product development efforts for the
Company's year 2000 products and services, mass change technologies and other
software tools.
General and Administrative. General and administrative expenses consist
primarily of salaries and related costs for the finance and accounting, human
resources, legal, information systems, and other administrative departments of
the Company, as well as contracted legal and accounting services. General and
administrative expenses decreased 73.3% to $793,000 in the three months ended
September 30, 1999 from $2,969,000 in the three months ended September 30,
1998. As a percentage of total revenue, general and administrative expenses
decreased to 40.5% in the three months ended September 30, 1999 from 56.1% in
the three months ended September 30, 1998. In the three months ended September
30, 1999, general and administrative expenses did not include any bad-debt
related expenses. For the same period in 1998, general and administrative
expense did include a write-down of a significant customer receivable balance
and an increase in the Company's allowance for doubtful accounts receivable.
The remaining expense reduction is primarily a result of reduced staffing from
the third quarter of 1998. In the three months ended September 30, 1999,
excess space that could not be segregated, was charged to general and
administrative expenses.
Restructuring Charges
In August of 1999, the Company executed a lease termination agreement for
its Lisle, Illinois facility. Under the agreement, the Company paid $100,000
and relinquished its $16,000 security deposit. These amounts were charged
against the accrued restructuring liability during the third quarter of 1999.
In September of 1999, the Company entered into a settlement agreement with
BCIA New England Holdings LLC for release from its Billerica real estate
lease. Under the settlement, the Company agreed to pay $200,000 in cash,
relinquish its $300,000 security deposit, issue 500,000 shares of common stock
and provide $71,000 of furniture and equipment. All of these items were
charged against the accrued restructuring liability during the third quarter
of 1999. The Company also charged the liability for an $734,000 write-off of
leasehold improvements and other fixed assets directly tied to its Billerica
and Lisle facilities.
The third quarter payments and reclassifications also include a $110,000
payment for the settlement of two telephone leases and the elimination of the
associated $270,000 capital lease liability, and a $149,000 adjustment to
reclassify the remaining rent levelization accrual for the Billerica facility
from other accrued expenses into the restructure accrual.
The Billerica settlement cost the Company less than originally estimated. As
a result, the Company recorded a release of $436,000 associated with the
facilities provision. In total, the Company recorded a net favorable impact of
$450,000 associated with restructuring to the results of operations for the
three months ended September 30, 1999.
16
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
The amounts accrued to and released from and payments and adjustments made
against the restructure accrual along with the composition of the remaining
balance at September 30, 1999 were as follows:
<TABLE>
<CAPTION>
Q3 1999 Balance
Balance Payments/ Q3 1999 September 30,
June 30, 1999 Reclassifications Release 1999
------------- ----------------- ------- -------------
(in thousands)
<S> <C> <C> <C> <C>
Provision for severance
and benefit payments to
terminated employees.... $ 115 $ (101) $ (14) $ --
Provision related to
closure of facilities
and reduction of
occupied space.......... 1,667 (1,231) (436) --
------ ------- ----- -----
Total................ $1,782 $(1,332) $(450) $ --
====== ======= ===== =====
</TABLE>
Impairment of Long-Lived Assets
The Company periodically assesses whether any events or changes in
circumstances have occurred that would indicate that the carrying amount of a
long-lived asset might not be recoverable. When such an event or change in
circumstance occurs, the Company evaluates whether the carrying amount of such
asset is recoverable by comparing the net book value of the asset to estimated
future undiscounted cash flows, excluding interest charges, attributable to
such asset. If it is determined that the carrying amount is not recoverable,
the Company recognizes an impairment loss equal to the excess of the carrying
amount of the asset over the estimated fair value of such asset.
During the third quarter of 1999, the Company made a decision to transfer
the research and development responsibility for its SAM Workbench product from
India to the United States. As a result of that decision, the personnel in
India were no longer required and were transferred (with the exception of one)
to another company without cost. The Company's facility lease in India expires
in February of 2000 and the Company expects to complete the sale of all
furniture and equipment before that time. The Company, therefore, recorded an
impairment charge of $145,000 against assets having a net book value of
$182,000 to write down the assets involved to their estimated fair value
(salvage value) of $37,000. The reduction in depreciation expense from this
write-down will be approximately $30,000 on a quarterly basis beginning in the
fourth quarter of 1999.
During the third quarter, the Company completed its review of its product
offering going forward. The determination was made that the Company would not
be able to afford to develop future products based upon its patented
technology. In addition, the Company expects that it will receive minimal
future revenue from its existing products that include the patented
technology. Accordingly, management concluded that the remaining patent book
value of $63,000 could no longer be supported and it was written down to zero.
The write-down was included in the third quarter impairment charge. Savings in
amortization expense from this write-down will be $17,000 on a quarterly basis
beginning in the fourth quarter of 1999.
Interest Income, Net
Interest income and expense is primarily comprised of interest income from
cash balances, partially offset by interest expense on debt. The Company had
interest income, net, of $25,000 in the three months ended September 30, 1999
compared to interest income, net, of $95,000 in the three months ended
September 30, 1998. This change in interest income, net, was primarily
attributable to reduced interest income from declining cash balances resulting
from the Company's continued losses from operations.
17
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
Provision for Income Taxes
The Company's income tax provision was $5,000 (for several small city and
state tax obligations) for the three months ended September 30, 1999 and $0
for the three months ended September 30, 1998. The Company did not record a
tax provision or benefit in the three months ended September 30, 1998 due to
operating losses incurred. The Company continues to maintain a full valuation
allowance for its net deferred tax assets since, based on the weight of
available evidence, management has concluded that it is more likely than not
that these future benefits will not be realized.
Minority Interest in Majority-owned Subsidiary
The minority interest in majority-owned subsidiary represents the equity
interest in the operating results of Persist, the Company's majority-owned
Spanish subsidiary, held by stockholders of Persist other than the Company.
The Company had no minority interest in majority-owned subsidiary in the three
months ended September 30, 1999 since it divested its majority interest in
July 1998.
NINE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO NINE MONTHS ENDED SEPTEMBER
30, 1998
Revenue
Total revenue decreased 62.3% to $9,740,000 in the nine months ended
September 30, 1999 from $25,809,000 in the nine months ended September 30,
1998. This decrease in revenue was primarily due to a decrease in other
services revenue as well as the licensing of the Company's software, products
and tools and, to a lesser extent, outsourcing services revenue.
Outsourcing Services. Outsourcing services revenue decreased 36.9% to
$4,846,000 in the nine months ended September 30, 1999 from $7,685,000 in the
nine months ended September 30, 1998. As a percentage of total revenue,
outsourcing services revenue increased to 49.8% in the nine months ended
September 30, 1999 from 29.8% for the nine months ended September 30, 1998.
The increase in outsourcing services revenue as a percentage of total revenue
reflects the decreased contribution of other services and license revenue to
total revenue during the nine months ended September 30, 1999 when compared to
the same period in the prior year. The decrease in outsourcing revenue in the
nine months ended September 30, 1999 compared to September 30, 1998 was
primarily attributable to the sale of a foreign subsidiary in July 1998, the
termination of an Engineering Consulting Services Agreement during the second
quarter of 1998, and reduced levels of service for several other customers.
The Company was also informed by another customer that it was exercising its
six-month termination option which took effect November 5, 1999. Outsourcing
services remain a major component of the Company's business. However, due to
the Company's degraded financial condition, the Company anticipates that it
will continue to have difficulty attracting new outsourcing customers and that
it may be difficult to renew or extend outsourcing contracts from existing
customers. Without the addition of new business, the Company will continue to
experience a significant reduction in revenue from outsourcing services in the
future.
License. License revenue decreased 77.5% to $1,937,000 in the nine months
ended September 30, 1999 from $8,602,000 in the nine months ended September
30, 1998. As a percentage of total revenue, license revenue decreased to 19.9%
in the nine months ended September 30, 1999 from 33.3% in the nine months
ended September 30, 1998. The decrease in license revenue for 1999 in absolute
dollars was primarily attributable to a decrease in the delivery of licensed
software to end users and decreased license fees from value-added integrators.
The market for the Company's year 2000 tools significantly eroded in 1998 and
the first nine months of 1999, and the Company anticipates limited year 2000
related license revenue in the future. The Company will continue to pursue
licenses of its tools associated with outsourcing services.
18
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
Other Services. Other services revenue decreased 68.9% to $2,957,000 in the
nine months ended September 30, 1999 from $9,522,000 in the nine months ended
September 30, 1998. As a percentage of total revenue, other services revenue
decreased to 30.4% in the nine months ended September 30, 1999 from 36.9% in
the nine months ended September 30, 1998. The decrease in other services
revenue in absolute dollars was primarily attributable to a decrease in direct
delivery, consulting and client support services relating to the Company's
year 2000 products and services. Given the reduction in demand for its year
2000 services and the reduction in internal resources announced at the end of
March 1999, the Company anticipates continued reductions in its year 2000
related service revenue in the future.
Cost of Revenue
Cost of Outsourcing Services Revenue. Cost of outsourcing services revenue
consists primarily of salaries, benefits, networking, and overhead costs
associated with delivering outsourcing services to clients. The cost of
outsourcing services revenue decreased 29.3% to $4,125,000 in the nine months
ended September 30, 1999 from $5,833,000 for the nine months ended September
30, 1998. Cost of outsourcing services revenue as a percentage of outsourcing
services revenue increased to 85.1% in the nine months ended September 30,
1999 from 75.9% in the nine months ended September 30, 1998. Costs in the
first three months of 1999 were negatively impacted by expenditures in
anticipation of and to generate new business that did not materialize. In
addition, the Company incurred costs in connection with an agreement with
Micah Technology Services, Inc. ("Micah") for which it received no payments.
The Company has filed a lawsuit against Micah to attempt to recover amounts
due under such agreement See "Part II-Item 1. Legal Proceedings."
Cost of License Revenue. Cost of license revenue consists primarily of
amortization of intangibles related to the MDI acquisition and salaries,
benefits and related overhead costs associated with license-related materials
packaging and freight. Cost of license revenue was $162,000 in the nine months
ended September 30, 1999, or 8.4% of license revenue. Cost of license revenue
was $1,520,000, or 17.7% of license revenue, in the nine months ended
September 30, 1998. The 89.3% decrease in cost of license revenue was
primarily related to the reduction of amortization expense of intangibles
related to the MDI acquisition as a result of the impairment charge recorded
against the MDI related intangibles by the Company in the third quarter of
1998.
Cost of Other Services Revenue. Cost of other services revenue consists
primarily of salaries, benefits, subcontracting costs and related overhead
costs associated with delivering other services to clients. Cost of other
services revenue decreased 75.9% to $1,842,000 in the nine months ended
September 30, 1999 from $7,636,000 in the nine months ended September 30,
1998. Cost of other services revenue as a percentage of other services revenue
decreased to 62.3% in the nine months ended September 30, 1999 from 80.2% in
the nine months ended September 30, 1998. Costs decreased in absolute dollars
in the nine months ended September 30, 1999 due to reduced staffing for the
Company's client support, training and consulting organizations related to
fewer customers for the Company's year 2000 products and services, including
year 2000 renovations and RQE services.
Operating Expenses
Sales and Marketing. Sales and marketing expenses consist primarily of
salaries, commissions and related overhead costs for sales and marketing
personnel, sales referral fees to third parties, advertising programs, and
other promotional activities. Sales and marketing expenses decreased 86.8% to
$1,367,000 in the nine months ended September 30, 1999 from $10,355,000 in the
nine months ended September 30, 1998. As a percentage of total revenue, sales
and marketing expenses decreased to 14.0% in the nine months ended September
30, 1999 from 40.1% in the nine months ended September 30 1998. The decrease
in expenses in absolute dollars and as a percentage of revenue was primarily
attributable to dramatically reduced staffing, commissions and promotional
activities.
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PERITUS SOFTWARE SERVICES, INC.
Research and Development. Research and development expenses consist
primarily of salaries, benefits and related overhead costs for engineering and
technical personnel and outside engineering consulting services associated
with developing new products and enhancing existing products. Research and
development expenses decreased 85.0% to $1,078,000 in the nine months ended
September 30, 1999 from $7,195,000 in the nine months ended September 30,
1998. As a percentage of total revenue, research and development expenses
decreased to 11.1% in the nine months ended September 30, 1999 from 27.9% in
the nine months ended September 30, 1998. The decrease in research and
development expenses in absolute dollars was primarily attributable to
dramatically reduced staffing for the product development efforts for the
Company's year 2000 products and services, mass change technologies and other
software tools.
General and Administrative. General and administrative expenses consist
primarily of salaries and related costs for the finance and accounting, human
resources, legal, information systems, and other administrative departments of
the Company, as well as contracted legal and accounting services. General and
administrative expenses decreased 45.6% to $3,276,000 in the nine months ended
September 30, 1999 from $6,017,000 in the nine months ended September 30,
1998. As a percentage of total revenue, general and administrative expenses
increased to 33.6% in the nine months ended September 30, 1999 from 23.3% in
the nine months ended September 30, 1998. In the nine months ended September
30, 1999, the decrease in general and administrative expenses in absolute
dollars was primarily due to reduced staffing and the fact that the Company
did not incur any bad-debt related expenses. For the same period in 1998,
general and administrative expense did include a write-down of a significant
customer receivable balance and an increase in the Company's allowance for
doubtful accounts receivable. In the nine months ended September 30, 1999,
excess space that could not be segregated, was charged to general and
administrative expenses.
Restructuring Charges
On March 29, 1999, the Company announced its intention to restructure. The
restructure plan was finalized on March 31, 1999 and the Company recorded a
charge of $291,000, consisting of severance payments associated with the
termination of approximately 30% of the Company's employees representing
substantially all of its sales, marketing and year 2000 delivery personnel (40
employees). Payments related to terminated employees were completed by May 28,
1999. The restructuring resulted in a quarterly reduction of approximately
$1,000,000 in salary and related costs beginning in the third quarter of 1999.
The amounts accrued to and payments against the accrued restructuring during
the first quarter of 1999 and the composition of the remaining balance at
March 31, 1999 were as follows:
<TABLE>
<CAPTION>
Balance Q1 1999 Q1 1999 Balance
December 31, 1998 Accrual Payments March 31, 1999
----------------- ------- -------- --------------
(in thousands)
<S> <C> <C> <C> <C>
Provision for severance and
benefit payments to
terminated employees........ $ 536 $291 $(212) $ 615
Provisions related to closure
of facilities and reduction
of occupied space........... 2,144 -- (361) 1,783
------ ---- ----- ------
Total.................... $2,680 $291 $(573) $2,398
====== ==== ===== ======
</TABLE>
In April of 1999, the Company decided to further reduce the amount of space
it occupies in its Billerica, Massachusetts headquarters facility. The space
consolidation was completed in the second quarter of 1999 and the Company
increased the amount of space it was offering for sublease from 50,000 to
75,000 square feet. Accordingly, the Company recorded an additional
restructure accrual of $517,000 consisting of the cost of lease expenses and
real estate commissions associated with the additional vacated 25,000 square
feet net of estimated sublease income. This additional restructuring resulted
in a quarterly reduction in rent expense of $87,000
20
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PERITUS SOFTWARE SERVICES, INC.
beginning in the third quarter of 1999. Payments and reclassifications during
the second quarter of 1999 included a settlement payment of $136,000
associated with the early termination of the Company's lease for its facility
in Cincinnati, Ohio and a $296,000 adjustment to reclassify the rent
levelization accrual associated with the vacated space in its Billerica
headquarters facility from other accrued expenses into the restructure
accrual. At the end of the second quarter of 1999, the Company re-evaluated
the estimated costs associated with its previous restructure charges based
upon activity and experience to date. Based upon its revised estimates, the
Company recorded a release of $813,000 from the restructure accrual. The
combination of the second quarter accrual and the second quarter release
resulted in a net favorable impact of $296,000 to the results of operations
for the three months ended June 30, 1999.
The amounts accrued to and released from and payments and adjustments made
against the restructure accrual along with the composition of the remaining
balance at June 30, 1999 were as follows:
<TABLE>
<CAPTION>
Balance Q2 1999 Balance
March 31, Payments/ Q2 1999 Q2 1999 June 30,
1999 Reclassifications Accrual Release 1999
--------- ----------------- ------- ------- --------
(in thousands)
<S> <C> <C> <C> <C> <C>
Provision for severance
and benefit payments to
terminated employees..... $ 615 $(425) $-- $ (75) $ 115
Provision related to
closure of facilities and
reduction of occupied
space.................... 1,783 105 517 (738) 1,667
------ ----- ---- ----- ------
Total................. $2,398 $(320) $517 $(813) $1,782
====== ===== ==== ===== ======
</TABLE>
In August of 1999, the Company executed a lease termination agreement for
its Lisle, Illinois facility. Under the agreement, the Company paid $100,000
and relinquished its $16,000 security deposit. These amounts were charged
against the accrued restructuring liability during the third quarter of 1999.
In September of 1999, the Company entered into a settlement agreement with
BCIA New England Holdings LLC for release from its Billerica real estate
lease. Under the settlement, the Company agreed to pay $200,000 in cash,
relinquish its $300,000 security deposit, issue 500,000 shares of common stock
and provide $71,000 of furniture and equipment. All of these items were
charged against the accrued restructuring liability during the third quarter
of 1999. The Company also charged the liability for an $734,000 write-off of
leasehold improvements and other fixed assets directly tied to its Billerica
and Lisle facilities.
The third quarter payments and reclassifications also include a $110,000
payment for the settlement of two telephone leases and the elimination of the
associated $270,000 capital lease liability, and a $149,000 adjustment to
reclassify the remaining rent levelization accrual for the Billerica facility
from other accrued expenses into the restructure accrual.
The Billerica settlement cost the Company less than originally estimated. As
a result, the Company recorded a release of $436,000 associated with the
facilities provision. In total, the Company recorded a net favorable impact of
$450,000 associated with restructuring to the results of operations for the
three months ended September 30, 1999.
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<PAGE>
PERITUS SOFTWARE SERVICES, INC.
The amounts accrued to and released from and payments and adjustments made
against the restructure accrual along with the composition of the remaining
balance at September 30, 1999 were as follows:
<TABLE>
<CAPTION>
Balance Q3 1999 Q3 1999 Balance
June 30, 1999 Payments/Reclassifications Release September 30, 1999
------------- -------------------------- -------------- ------------------
(in thousands)
<S> <C> <C> <C> <C>
Provision for severance
and benefit payments to
terminated employees... $ 115 $ (101) $ (14) $ --
Provision related to
closure of facilities
and reduction of
occupied space......... 1,667 (1,231) (436) --
------ ------- ----- -----
Total............... $1,782 $(1,332) $(450) $ --
====== ======= ===== =====
</TABLE>
Impairment of Long-Lived Assets
The Company periodically assesses whether any events or changes in
circumstances have occurred that would indicate that the carrying amount of a
long-lived asset might not be recoverable. When such an event or change in
circumstance occurs, the Company evaluates whether the carrying amount of such
asset is recoverable by comparing the net book value of the asset to estimated
future undiscounted cash flows, excluding interest charges, attributable to
such asset. If it is determined that the carrying amount is not recoverable,
the Company recognizes an impairment loss equal to the excess of the carrying
amount of the asset over the estimated fair value of such asset.
In June 1999, as a result of the continuing downsizing of the Company's
operations and continuing decline in operating results, the Company reviewed
the carrying amount of its property and equipment and committed to a plan to
dispose certain of its assets, primarily excess computer equipment and
furniture relating to the restructured operations, either by sale or by
abandonment. The fair value of the assets to be disposed of was measured at
management's best estimate of salvage value, by using the current market
values or the current selling prices for similar assets. Based upon
management's review, the carrying amount of assets having a net book value of
$1,143,000 was written down to a total amount of $389,000, representing the
lower of carrying amount or fair value (salvage value) and the Company
recorded an impairment charge totaling $754,000. The reduction in depreciation
expenses resulting from this write-down is approximately $82,000 on a
quarterly basis beginning in the third quarter of 1999. The Company completed
its sale of assets associated with its June impairment charge in the third
quarter of 1999 and the sale proceeds received were not significantly
different from original estimates.
During the third quarter of 1999, the Company made a decision to transfer
the research and development responsibility for its SAM Workbench product from
India to the United States. As a result of that decision, the personnel in
India were no longer required and were transferred (with the exception of one)
to another company without cost. The Company's facility lease in India expires
in February of 2000 and the Company expects to complete the sale of all
furniture and equipment before that time. The Company, therefore, recorded an
impairment charge of $145,000 against assets having a net book value of
$182,000 to write down the assets involved to their estimated fair value
(salvage value) of $37,000. The reduction in depreciation expense from this
write-down will be approximately $30,000 on a quarterly basis beginning in the
fourth quarter of 1999.
During the third quarter of 1999, the Company completed its review of its
product offering going forward. The determination was made that the Company
would not be able to afford to develop future products based upon its patented
technology. In addition, the Company expects that it will receive minimal
future revenue from its existing products that include the patented
technology. Accordingly, management concluded that the remaining patent book
value of $63,000 could no longer be supported and it was written down to zero.
The write-down was included in the third quarter impairment charge. Savings in
amortization expense from this write-down will be $17,000 on a quarterly basis
beginning in the fourth quarter of 1999.
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PERITUS SOFTWARE SERVICES, INC.
Interest Income, Net
Interest income and expense is primarily comprised of interest income from
cash balances, partially offset by interest expense on debt. The Company had
interest income, net, of $63,000 in the nine months ended September 30, 1999
compared to interest income, net, of $440,000 in the nine months ended
September 30, 1998. This change in interest income, net, was primarily
attributable to reduced interest income from declining cash balances resulting
from the Company's continued losses from operations.
Provision for Income Taxes
The Company's income tax provision was $5,000 for the nine months ended
September 30, 1999 compared to $25,000 in the nine months ended September 30,
1998. The Company continues to maintain a full valuation allowance for its net
deferred tax assets since, based on the weight of available evidence,
management has concluded that it is more likely than not that these future
benefits will not be realized.
Minority Interest in Majority-owned Subsidiary
The minority interest in majority-owned subsidiary represents the equity
interest in the operating results of Persist, the Company's majority-owned
Spanish subsidiary, held by stockholders of Persist other than the Company.
The Company had no minority interest in majority-owned subsidiary in the nine
months ended September 30, 1999 since it divested its majority interest in
July 1998.
LIQUIDITY AND CAPITAL RESOURCES
The Company's consolidated financial statements have been presented on the
basis that it is a going concern, which contemplates continuity of operations,
realization of assets and the satisfaction of liabilities in the ordinary
course of business. However, the Company experienced net losses in the years
ended December 31, 1997 and 1998 and the nine months ended September 30, 1999,
which raise doubt about its ability to continue as a going concern. The
Company's cash flow requirements depend on the results of future operations.
The Company's continued existence is dependent upon its ability to achieve a
cash flow breakeven position and/or to obtain additional sources of financing.
The Company has serious concerns that it will be unable to achieve a cash flow
breakeven position in the future and is considering various alternatives
including the possibility of filing for the protection against creditors or
liquidation under applicable bankruptcy laws. The Company has also experienced
significant voluntary attrition due to its degraded financial condition.
In March 1999, the Company announced that it had retained Covington
Associates to render financial advisory and investment banking services in
connection with exploring strategic alternatives including the potential sale
of the Company. The engagement agreement was entered into in December 1998.
The Company is also exploring strategic initiatives to raise additional funds
or sell all or a part of its assets. There can be no assurance that the
Company will achieve a cash flow breakeven position or that it will be able to
raise additional funds through bank borrowings and/or debt and/or equity
financings. Further reductions in expenses or the sale of assets may not be
adequate to bring the Company to a cash breakeven position. In addition, there
can be no assurance that such actions will not have an adverse affect on the
Company's ability to generate revenue or successfully implement any strategic
alternatives under consideration. The Company's present expectation is that
revenue will continue to decline in the foreseeable future. Failure to
establish a cash flow breakeven position or raise additional funds through
bank borrowings and/or equity and/or debt financing would adversely impact the
Company's ability to continue as a going concern.
The Company has financed its operations and capital expenditures primarily
with the proceeds from sales of the Company's convertible preferred stock and
common stock, borrowings, and advance payments for services from clients. The
Company's cash balances were $2,470,000 and $2,809,000 at September 30, 1999
and
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<PAGE>
PERITUS SOFTWARE SERVICES, INC.
December 31, 1998, respectively. The Company's working capital was $1,447,000
and $1,805,000 at September 30, 1999 and December 31, 1998, respectively.
The Company's operating activities used cash of $1,195,000 and $5,076,000
during the nine months ended September 30, 1999 and 1998, respectively. The
Company's use of cash during the nine months ended September 30, 1999 was
primarily caused by a net loss of $2,558,000 less non-cash depreciation and
amortization expense of $1,215,000, and a charge for impairment of long-lived
assets of $961,000. Other uses included a decrease in accrued restructuring of
$1,835,000, a decrease in deferred revenue of $1,621,000, a decrease in other
accrued liabilities of $1,609,000, and a decrease in accounts payable of
$448,000. These amounts were partially offset by a decrease in accounts
receivable of $3,198,000, a decrease in costs and estimated earnings in excess
of billings on uncompleted contracts of $593,000 and a decrease in prepaid
expenses and other current assets of $510,000, the receipt of advance payments
from customers of $296,000, and a decrease in other assets of $113,000.
The Company's investing activities provided cash of $740,000 during the nine
months ended September 30, 1999 and used cash of $3,300,000 during the nine
months ended September 30, 1998. Investing activities in the nine months ended
September 30, 1999 consisted principally of the sale of short-term investments
of $500,000 and the sale of property and equipment of $288,000.
The Company's financing activities provided cash of $117,000 and $1,051,000
during the nine months ended September 30, 1999 and 1998, respectively.
Financing activities in the nine months ended September 30, 1999 primarily
reflect a decrease in the amount of restricted cash of $569,000, and proceeds
from issuance of common stock net of issuance cost of $152,000. These amounts
were partially offset by principal payments on capital lease obligations of
$335,000 and principal payments on long-term debt of $269,000.
In September 1996, the Company obtained a revolving line of credit facility
from a bank which bore interest at the bank's prime rate plus 0.5%. The line
of credit expired and all borrowing was paid in full on September 30, 1998. In
addition to this line of credit, the Company also entered into an equipment
financing agreement in September 1996. Under this agreement, the bank agreed
to provide up to $1,500,000 for the purchase of certain equipment (as defined
by the agreement) through June 30, 1997. Ratable principal and interest
payments were payable during the period July 1, 1997 through June 1, 2000, and
bore interest at the bank's prime rate plus 1%. Both of these agreements
required the Company to comply with certain financial covenants and were
secured by all of the assets of the Company. The bank notified the Company in
October 1998 that the Company was in default under its line of credit facility
and equipment financing agreement and requested that the Company provide cash
collateral for the amount of equipment financing outstanding and provide cash
collateral for a $300,000 standby letter of credit issued by the bank. The
Company provided cash collateral for all amounts outstanding under the
equipment financing agreement in December 1998 and for the $300,000 letter of
credit in October 1998. The letter of credit was drawn upon and the equipment
financing debt was paid in the first quarter of 1999. There were no borrowings
outstanding under the revolving credit facility and under the equipment
financing agreement at September 30, 1999. In 1998, the bank indicated that it
would not renew or further extend the Company's revolving credit facility. The
Company expects to conclude an accounts receivable purchase agreement with a
lender to permit borrowing against certain acceptable receivables at a rate of
80% of the face amount of such receivables up to a maximum of $4 million. In
exchange for such agreement, the Company will grant the lender a security
interest in substantially all of its assets. There can be no assurance that
the Company will be able to successfully borrow against such agreement,
negotiate other borrowing arrangements or raise additional funds through bank
borrowings and/or debt and/or equity financings.
In July 1999, the Company announced that it reached a settlement with
American Financial Group, Inc. ("AFG") and its subsidiaries and affiliates for
release from its real estate lease in Cincinnati, Ohio and certain
24
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
other obligations. Under the settlement, the Company agreed to pay $200,000 in
cash and 300,000 shares of Common Stock in exchange for release of its real
estate lease for 20,500 square feet that required average monthly payments
excluding operating expenses of $36,000 through November 2002. The Company had
not made any payments since October 1998. The settlement also released the
Company from net claims for other services and disputes of $334,500.
In August 1999, the Company executed a lease termination agreement for its
Lisle, Illinois facility. Under that agreement, the Company agreed to pay
$100,000 in cash and relinquish its $16,000 security deposit. The real estate
lease for 9,000 square feet required average lease and operating expense
payments of $18,000 per month through February 2003. The Company had not made
any payments since March 1999.
In September 1999, the Company relocated its corporate headquarters from
Billerica, Massachusetts to its existing facility located at 112 Turnpike
Road, Westborough, Massachusetts 01581. The Company also reached a settlement
agreement with BCIA New England Holdings LLC for release from its real estate
lease at 2 Federal Street, Billerica, Massachusetts. Under the settlement, the
Company agreed to pay $200,000 in cash, relinquish its $300,000 security
deposit, issue 500,000 shares of Common Stock, and provide $71,000 of
furniture and equipment. In exchange, the Company was released from its real
estate lease for 100,000 square feet which required average lease and
operating expense payments of $145,000 per month through February 2006. The
Company had not made any payments since July 1999.
To date, the Company has not invested in derivative securities or any other
financial instruments that involve a high level of complexity or risk. Excess
cash has been, and the Company contemplates that it will continue to be,
invested in interest-bearing, short-term investment grade securities.
FOREIGN CURRENCY
Assets and liabilities of the Company's subsidiaries are translated into
U.S. dollars at exchange rates in effect at the balance sheet date. Income and
expense items are translated at average exchange rates for the period.
Accumulated net translation adjustments are included in stockholders' equity.
INFLATION
To date, inflation has not had a material impact on the Company's results of
operations.
FACTORS THAT MAY AFFECT FUTURE RESULTS
Failure to Achieve Cash Flow Breakeven/Strategic Initiatives
The Company's ability to achieve a cash flow breakeven position is critical
for achieving financial stability. The Company has serious concerns that it
will be unable to achieve a cash flow breakeven and is considering various
alternatives including the possibility of filing for the protection against
creditors or liquidation under applicable bankruptcy laws. In March 1999, the
Company announced that it had retained Covington Associates to render
financial advisory and investment banking services in connection with
exploring strategic alternatives including the potential sale of the Company.
The engagement agreement was entered into in December 1998. The Company is
also exploring strategic initiatives to raise additional funds or sell all or
a part of its assets. Further reductions in expenses or the sale of assets may
not be sufficient to bring the Company to a cash flow breakeven position. In
addition, there can be no assurance that any actions taken to sell assets or
reduce expenses will not have a material adverse impact on the Company's
ability to generate revenue or successfully implement any strategic
alternatives under consideration. The Company's present expectation is that
revenue will continue to decline in the foreseeable future. Failure to
establish a cash flow breakeven position or raise additional funds
25
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
through bank borrowings and/or equity and/or debt financings, has and will
continue to adversely impact the Company's ability to continue as a going
concern.
Financing
In 1998, the Company's bank indicated that it would not renew or further
extend the Company's revolving credit facility. Although the Company expects
to conclude an accounts receivable purchase agreement with a lender as
described above, there can be no assurance that the Company will be able to
successfully borrow against such agreement, negotiate other borrowing
arrangements or obtain additional funds through equity and/or debt financings.
Failure to establish a cash flow breakeven position or raise additional funds
through bank borrowings and/or equity and/or debt financings will continue to
adversely impact the Company's ability to continue as a going concern.
Over the Counter Listing
The Company's common stock trades on the OTC Bulletin Board which has
certain continued listing criteria. Failure to meet those listing requirements
may result in the Company being de-listed. There can be no assurance that the
Company will not be de-listed. Trading of the common stock is conducted in the
over-the- counter market which could make it more difficult for an investor to
dispose of, or obtain accurate quotations as to the market value of, the
common stock. In addition, there are additional sales practice requirements on
broker-dealers who sell such securities to persons other than established
customers and accredited investors. For transactions covered by this rule, the
broker-dealer must make a special suitability determination for the purchaser
and must have received the purchaser's written consent to the transaction
prior to sale. Consequently, delisting, if it occurred, may affect the ability
of broker-dealers to sell the Company's common stock and the ability of the
stockholders to sell their common stock. In addition, if the trading price of
the common stock is below $5.00 per share, trading in the common stock would
also be subject to the requirements of certain rules promulgated under the
Securities Exchange Act of 1934, which require additional disclosure by
broker-dealers in connection with any trades involving a stock defined as a
penny stock (generally any non-Nasdaq equity security that has a market price
of less than $5.00 per share, subject to certain exceptions). Such rules
require the delivery, prior to any penny stock transaction, of a disclosure
schedule explaining the penny stock market and the risks associate therewith,
and impose various sales practice requirements on broker-dealers who sell
penny stocks to persons other than established customers and accredited
investors (generally institutions). For these types of transactions, the
broker-dealer must make a special suitability determination for the purchaser
and have received the purchaser's written consent to the transaction prior to
sale. The additional burdens imposed upon broker-dealers by such requirements
may discourage broker-dealers from effecting transactions in the common stock,
which could severely limit the market liquidity of the common stock and the
ability of purchasers in this offering to sell the common stock in the
secondary market.
Client Concentration and Revenue Risk
The Company's revenue is highly concentrated among a small number of
clients. During the quarter ended September 30, 1999, the revenue from three
clients accounted for 54% of the quarter's revenue with one client
representing 31%. The contract for one of these three clients (representing
12% of the revenue for the quarter ended September 30, 1999) terminated in
November.
The Company is continuing to selectively pursue sales of its software. The
Company is also focusing on renewing its existing outsourcing contracts and
licensing its methodology and providing limited consulting services. However,
due to its degraded financial condition, the Company anticipates that it will
continue to have difficulty attracting new outsourcing customers. In addition,
existing outsourcing customers have been and may continue to be unwilling to
renew existing outsourcing contracts based on their own business requirements
and/or
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<PAGE>
PERITUS SOFTWARE SERVICES, INC.
because of the Company's degraded financial condition. The Company's present
expectation is that revenue will continue to decline in the foreseeable
future. There can be no assurance that the Company's current strategy will
generate revenues sufficient for the Company to achieve a cash flow breakeven
position.
Litigation Risk
The future course of the class action claims against the Company described
in footnote 2 to the Consolidated Financial Statements could have a material
adverse impact on the Company's financial condition and results of operations
in the period in which the litigation is resolved.
Potential Fluctuations in Quarterly Performance
The Company's quarterly revenue, expenses and operating results have varied
significantly in the past and are likely to vary significantly from quarter to
quarter in the future. A significant portion of the Company's revenue in any
quarter is typically derived from a limited number of large client
transactions. In addition, the sales cycle associated with these transactions
is lengthy and is subject to a number of uncertainties, including clients'
budgetary constraints, the timing of clients' budget cycles and clients'
internal approval processes. Accordingly, the timing of significant
transactions is unpredictable and, as a result, the Company's revenue and
results of operations for any particular period are subject to significant
variability. The complexity of certain projects and the requirements of
generally accepted accounting principles can also result in a deferral of
revenue recognition, in whole or in part, on a particular contract during a
quarter, even though the contract has been executed or payment has actually
been received by the Company. Quarterly fluctuations may also result from
other factors such as new product and service introductions or announcements
of new products and services by the Company's competitors, changes in the
Company's or its competitors' pricing policies, changes in the mix of
distribution channels through which the Company's products and services are
sold, the timing and nature of sales and marketing expenses, changes in
operating expenses, the financial stability of major clients, changes in the
demand for software maintenance products and services, foreign currency
exchange rates and general economic conditions.
Potential for Contract Liability
The Company's products and services relating to software maintenance,
especially solutions addressing the Year 2000 problem, involve key aspects of
its clients' computer systems. A failure in a client's system could result in
a claim for substantial damages against the Company, regardless of the
Company's responsibility for such failure. The Company attempts to limit
contractually its liability for damages arising from negligent acts, errors,
mistakes or omissions in rendering its products and services. Despite this
precaution, there can be no assurance that the limitations of liability set
forth in its contracts would be enforceable or would otherwise protect the
Company from liability for damages. The successful assertion of one or more
large claims against the Company that exceed any available insurance coverage,
could have a material adverse effect on the Company's business, financial
condition and results of operations. Furthermore, litigation, regardless of
its outcome, could result in substantial cost to the Company and divert
managements's attention from the Company's operations. Any contract liability
claim or litigation against the Company could, therefore, have a material
adverse effect on the Company's business, financial conditions and results of
operations, especially in light of the Company's degraded financial condition.
Limited Protection of Proprietary Rights
The Company relies on a combination of patent, copyright, trademark and
trade secret laws and license agreements to establish and protect its rights
in its software products and proprietary technology. In addition, the Company
currently requires its employees and consultants to enter into nondisclosure
and assignment of
27
<PAGE>
PERITUS SOFTWARE SERVICES, INC.
invention agreements to limit use of, access to and distribution of its
proprietary information. There can be no assurance that the Company's means of
protecting its proprietary rights in the United States or abroad will be
adequate. The laws of some foreign countries may not protect the Company's
proprietary rights as fully or in the same manner as do the laws of the United
States. Also, despite the steps taken by the Company to protect its
proprietary rights, it may be possible for unauthorized third parties to copy
aspects of the Company's products, reverse engineer, develop similar
technology independently or obtain and use information that the Company
regards as proprietary. Furthermore, there can be no assurance that others
will not develop technologies similar or superior to the Company's technology
or design around the proprietary rights owned by the Company.
The Company has entered into license agreements with clients that allow
these clients access to and use of the Company's AutoEnhance/2000 an Vantage
YR 2000 software and SAM Relay and RQE Tools source code for certain purposes.
Access to the Company's source code may increase the likelihood of
misappropriation or misuse by third parties.
Some competitors of the Company and others have announced the filing with
the U.S. Patent and Trademark Office ("PTO") of patent applications or have
received patents relating to fixing and assessing the Year 2000 problem. The
Company expects that the risk of infringement claims against the Company might
increase because its competitors and others might successfully obtain patents
for software products and processes or because new and overlapping processes
and methodologies used in such services will become more pervasive, increasing
the likelihood of infringement. There can be no assurance that third parties
will not assert infringement claims against the Company in the future, that
the assertion of such claims will not result in litigation or that the Company
would prevail in such litigation or be able to obtain a license for the use of
any infringed intellectual property from a third party on commercially
reasonable terms, if at all. Furthermore, litigation, regardless of its
outcome, could result in substantial cost to the Company and divert
management's attention from the Company's operations. The Company has become
aware of a patent relating to fixing the Year 2000 problem based on a
"windowing" method. Certain of the Company's technology incorporated in some
of its products may infringe on such patent. The Company is in the process of
reviewing the matter. Any infringement claim or litigation against the Company
could, therefore, have a material adverse effect on the Company's business,
financial condition and results of operations, especially in light of its
degraded financial condition.
The Company maintains trademarks and service marks to identify its various
service offerings, products and software. Although the Company has registered
a trademark and one service mark with the PTO and has several trademark and
service mark applications pending in the United States and foreign
jurisdictions, not all of the applications have been granted and, even if
granted, there can be no assurance that a particular trademark or service mark
will survive a legal challenge to its validity or provide meaningful or
significant protection to the Company. In some cases, entities other than the
Company are using certain trademarks and service marks, either in
jurisdictions in which the Company has not filed an application or in which
the Company is using a mark in a different manner than a third party. There
may be some risk of infringement claims against the Company in the event that
a service or product of the Company is too similar to that of another entity
that is using a similar mark.
YEAR 2000 MATTERS
The Year 2000 issue relates to computer programs and systems that recognize
dates using two-digit year data rather than four-digit year data. As a result,
such programs and systems may fail or provide incorrect information when using
dates after December 31, 1999. If the Year 2000 issue were to disrupt the
Company's internal information technology systems, or the information
technology systems of entities with whom the Company has significant
commercial relationships, the Company's business and financial condition could
be materially adversely affected.
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PERITUS SOFTWARE SERVICES, INC.
The Year 2000 issue is relevant to three areas of the Company's business:
(1) the Company's products and services, (2) the Company's internal computer
systems and (3) the computer systems of significant suppliers or customers of
the Company. Each such area is addressed below.
1. The Company's Products. In some cases, the Company warrants to its
clients that its software will be year 2000 compliant generally subject to
certain limitations or conditions. The Company also provides solutions
consisting of products and services to address the year 2000 problem involving
key aspects of a client's computer systems. A failure in a client's system or
failure of the Company's software to be Year 2000 compliant could result in
substantial damages and therefore have a material adverse effect on the
Company's business, financial condition and results of operations. Although
the Company does not intend to adopt a formal Year 2000 compliance program for
its existing products, including AutoEnhancer 2000 and Vantage YR2000, it will
use commercially reasonable efforts to make any new products, including SAM
Workbench and RQE Tool, Year 2000 compliant. The Company is analyzing whether
it will adopt a Year 2000 compliance program for its SAM Relay product. There
can be no assurance that these future efforts will be successful.
2. Internal Systems. The Company's internal computer programs and operating
systems relate to certain segments of the Company's business, including
customer database management, marketing, order processing, order fulfillment,
inventory management, customer service, accounting and financial reporting.
These programs and systems consist primarily of:
Business Systems. These systems automate and manage business functions
such as customer database management, marketing, order-taking and order-
processing, inventory management, customer service, accounting and
financial reporting,
Personal Computers and Networks. These systems are used for word
processing, document management and other similar administrative functions,
and
Telecommunications Systems. These systems provide telephone, voicemail,
e-mail, Internet and intranet connectivity, and enable the Company to
manage overall internal and external communications.
The Company's Business Systems are licensed from outside vendors and the
Company generally expects that these Business Systems installed in or after
1997 will be Year 2000 compliant through upgrades and maintenance. Other
Internal Systems consist of widely available office applications and
application suites for word-processing, voicemail and other office-related
functions. The Company maintains recent versions of all such key applications
and all are, or are expected to be, Year 2000 compliant. Accordingly, the
Company does not intend to adopt a formal Year 2000 compliance program for its
Internal Systems. However, there can be no assurance that the Company's
Internal Systems or the combination thereof will be Year 2000 compliant. A
failure of an Internal System to be Year 2000 compliant could have a material
adverse impact on the Company's business, financial condition and results of
operations.
3. Third-Party Systems. The computer programs and operating systems used by
entities with whom the Company has commercial relationships pose potential
problems relating to the Year 2000 issue, which may affect the Company's
operations in a variety of ways. These risks are more difficult to assess than
those posed by internal programs and systems, and the Company has not yet
completed the process of formulating a plan for assessing them. The Company
believes that the programs and operating systems used by entities with whom it
has commercial relationships generally fall into two categories: (A) First,
the Company relies upon programs and systems used by providers of basic
services necessary to enable the Company to reach, communicate and transact
business with its suppliers and customers. Examples of such providers include
the United States Postal Service, overnight delivery services, telephone
companies, other utility companies and banks. Services provided by such
entities affects almost all facets of the Company's operations. However, these
third-party dependencies
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PERITUS SOFTWARE SERVICES, INC.
are not specific to the Company's business, and disruptions in their
availability would likely have a negative impact on most enterprises within
the software and services industry and on many enterprises outside the
software and services industry. The Company believes that all of the most
reasonably likely worst-case scenarios involving disruptions to its operations
stemming from the Year 2000 issue relate to programs and systems in this first
category. (B) Second, the Company relies upon third parties for certain
software code or programs that are embedded in, or work with, its products.
The Company believes that the functionality of its products may be materially
adversely affected by a failure of such third-party software to be Year 2000
compliant. There can be no assurance that the Company may not experience
unanticipated expenses or be otherwise adversely impacted by a failure of
third-party systems or software to be Year 2000 compliant. The most reasonably
likely worst-case scenarios may include: (i) corruption of data contained in
the Company's internal information systems, (ii) hardware and/or software
failure, and (iii) failure of infrastructure services provided by utilities
and/or government. The Company intends to include an evaluation of such
scenarios in its plan for assessing the programs and systems of the entities
with whom it has commercial relationships.
The Company has substantially completed the formulation of its plan for
assessing its internal programs and systems and the programs and systems of
the entities with whom it has commercial relationships and it expects to
complete the identification of the related risks and uncertainties in the
fourth quarter of 1999. Once such identification has been completed, the
Company intends to resolve any material risks and uncertainties that are
identified by communicating further with the relevant vendors and providers,
by working internally to identify alternative sourcing and by formulating
contingency plans to deal with such material risks and uncertainties. To date,
however, the Company has not formulated such a contingency plan. The Company
expects the resolution of such material risks and uncertainties to be an
ongoing process until all key year 2000 problems are satisfactorily resolved.
The Company does not currently anticipate that the total cost of any Year 2000
remediation efforts that it plans to undertake will be material.
ITEM 3. Quantitative And Qualitative Disclosures About Market Risk
As of September 30, 1999, the Company was exposed to market risks which
primarily include changes in U.S. interest rates. The Company maintains a
significant portion of its cash and cash equivalents in financial instruments
with purchased maturities of three months or less. These financial instruments
are subject to interest rate risk and will decline in value if interest rates
increase. Due to the short duration of these financial instruments, an
immediate increase in interest rates would not have a material effect of the
Company's financial condition or results of operations.
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PERITUS SOFTWARE SERVICES, INC.
PART II. OTHER INFORMATION
ITEM 1. Legal Proceedings
The Company and certain of its officers and directors were named as
defendants in purported class action lawsuits filed in the United States
District Court for the District of Massachusetts by Robert Downey on April 1,
1998, by Scott Cohen on April 7, 1998, by Timothy Bonnett on April 9, 1998, by
Peter Lindsay on April 17, 1998, by Harry Teague on April 21, 1998, by Jesse
Wijntjes on April 29, 1998, by H. Vance Johnson and H. Vance Johnson as
Trustee for the I.O.R.D. Profit-Sharing Plan on May 6, 1998, by John B.
Howard, M.D. on May 21, 1998 and by Helen Lee on May 28, 1998 (collectively,
the "complaints"). The complaints principally alleged that the defendants
violated federal securities laws by making false and misleading statements and
by failing to disclose material information concerning the Company's December
1997 acquisition of substantially all of the assets and assumption of certain
liabilities of the Millennium Dynamics, Inc. ("MDI") business from American
Premier Underwriters, Inc., thereby allegedly causing the value of the
Company's common stock to be artificially inflated during the purported class
periods. In addition, the Howard complaint alleged a violation of federal
securities laws as a result of the Company's purported failure to disclose
material information in connection with the Company's initial public offering
on July 2, 1997, and also named Montgomery Securities, Inc., Wessels, Arnold &
Henderson, and H.C. Wainwright & Co., Inc. as defendants. The complaints
further alleged that certain officers and/or directors of the Company sold
stock in the open market during the class periods and sought unspecified
damages.
On or about June 1, 1998, all of the named plaintiffs and additional
purported class members filed a motion for the appointment of several of those
individuals as lead plaintiffs, for approval of lead and liaison plaintiffs'
counsel and for consolidation of the actions. The Court granted that motion on
June 18, 1998.
On January 8, 1999, the plaintiffs filed a Consolidated Amended Complaint
applicable to all previously filed actions. The Consolidated Amended Complaint
alleges a class period of October 22, 1997 through October 26, 1998 and
principally claims that the Company and three of its former officers violated
federal securities laws by purportedly making false and misleading statements
(or omitting material information) concerning the MDI acquisition and the
Company's revenue during the proposed class period, thereby allegedly causing
the value of the Company's stock to be artificially inflated. Previously
stated claims against the Company and its underwriters alleging violations of
the federal securities laws as a result of purportedly inadequate or incorrect
disclosure in connection with the Company's initial public offering were not
included in the Consolidated Amended Complaint. The Company and the individual
defendants filed motions to dismiss the Consolidated Amended Complaint on
March 5, 1999. Oral arguments on the motions were held on April 21, 1999 and
the Court granted the Company's and the individual defendants' motions to
dismiss pursuant to an order dated June 1, 1999. The plaintiffs have appealed
the Court's order of dismissal. The Company intends to contest the appeal and
support the Court's order of dismissal. Appellate briefs are due to be filed
with the First Circuit Court of Appeals in November and December 1999.
While the District Court has dismissed the Consolidated Amended Complaint,
the First Circuit Court of Appeals could reinstate it. While the Company
believes it would have meritorious defenses to the action if it were
reinstated, an adverse resolution of the lawsuit could have a material adverse
effect on the Company's financial condition and results of operations in the
period in which the litigation is resolved. The Company is not able to
reasonably estimate potential losses, if any, related to the Consolidated
Amended Complaint.
On or about April 28, 1999, the Company filed a lawsuit in the United States
District Court for the District of Massachusetts against Micah Technology
Services, Inc. and Affiliated Computer Services, Inc. (collectively, "Micah").
The lawsuit principally alleges that Micah breached its contract with the
Company by failing to pay for services performed by the Company under such
contract. The lawsuit further alleges that since Micah was unjustly enriched
by the services performed by the Company, the Company is entitled to recovery
based on quantum meruit, and that Micah engaged in unfair and/or deceptive
trade practices or acts in violation of Massachusetts General Laws ("M.G.L.")
Chapter 93A by allowing the Company to perform services when
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PERITUS SOFTWARE SERVICES, INC.
Micah did not pay for such services. The lawsuit seeks unspecified damages on
the breach of contract and quantum meruit claims and double or triple damages
on the Chapter 93A claim. Micah has denied the Company's allegations and has
filed a counterclain against the Company principally alleging fraud, negligent
misrepresentations, breach of contract and that the Company engaged in unfair
and/or deceptive trade practices or acts in violation of M.G.L. Chapter 93A by
its misrepresentations and breach of contract. The Company denied the
allegations contained in Micah's counterclaim and intends to contest the
counterclaim vigorously. The parties are in the initial discovery phase of the
litigation.
ITEM 2. Changes in Securities and Use of Proceeds
Pursuant to a settlement agreement dated September 15, 1999 by and between
the Company and BCIA New England Holdings LLC ("BCIA"), the landlord for the
Company's former headquarters at 2 Federal Street, Billerica, MA 01821, the
Company agreed to issue 500,000 shares of its common stock to BCIA in a
transaction exempt from registration under the Securities Act of 1933. The
securities were issued in consideration for the release by BCIA of the
Company's lease obligations to it. The securities were issued in a transaction
by an issuer not involving any public offering and pursuant to an exemption
from registration under Section 4(2) of the Securities Act of 1933 and/or the
rules and regulations promulgated thereunder. No underwriters were utilized in
connection with the issuance of the securities and no underwriting discounts
or commissions were paid or incurred thereby. Item 2 of Part I is incorporated
herein by reference.
ITEM 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
Documents listed below, except for documents identified by footnotes, are
being filed as exhibits herewith. Documents identified by footnotes, if any,
are not being filed herewith and, pursuant to Rule 12b-32 of the General Rules
and Regulations promulgated by the Commission under the Securities Exchange
Act of 1934 (the "Exchange Act") reference is made to such documents as
previously filed as exhibits with the Commission. The Company's file number
under the Exchange Act is 000-22647.
<TABLE>
<C> <S>
Exhibit 10.1. Settlement Agreement dated September 15, 1999 by and between the
Company and BCIA New England Holdings LLC.
Exhibit 10.2. Agreement for Termination of Lease dated August 12, 1999 by and
between the Company and The Prudential Insurance Company of
America.
Exhibit 10.3. Amended Employment Agreement between the Company and John
Giordano dated as of September 9, 1999.
Exhibit 10.4. Addendum to Employment Agreement between the Company and John
Giordano dated October 5, 1999.
Exhibit 10.5. Letter Agreement dated September 30, 1999 between the Company
and Siemens Credit Corporation
Exhibit 10.6. Lease dated February 2, 1999, as amended between the Company and
OTR.
Exhibit 11. Statement re computation of net loss per common share
Exhibit 27. Financial Data Schedule
</TABLE>
(b) Reports on Form 8-K:
A Current Report on Form 8-K dated July 2, 1999 was filed by the Company on
July 9, 1999. The Company reported under Item 5 (Other Events) that Dominic K.
Chan was elected to the Board of Directors and that Henry F. McCance and W.
Michael Humphreys had resigned from the Board. Separately, the Company
announced that it reached a settlement agreement with American Financial
Group, Inc. and its subsidiaries and affiliates for release from its real
estate lease in Cincinnati, Ohio and certain other obligations. Under the
settlement, the Company agreed to pay $200,000 in cash and issue 300,000
shares of Common Stock in exchange for release from its real estate lease for
20,500 square feet which required average monthly payments excluding operating
expenses of $36,000 through November 2002.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: November 12, 1999
Peritus Software Services, Inc.
/s / JOHN D. GIORDANO
By:__________________________________
John D. Giordano
President, Chief Executive Officer
and Chief Financial Officer
(Principal Financial Officer)
33
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PERITUS SOFTWARE SERVICES, INC.
FORM 10-Q
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 1999
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<C> <S>
10.1 Settlement Agreement dated September 15, 1999 by and between the
Company and BCIA New England Holdings LLC.
10.2 Agreement for Termination of Lease dated August 12, 1999 between
the Company and The Prudential Insurance Company of America.
10.3 Amended Employment Agreement between the Company and John Giordano
dated as of September 9, 1999.
10.4 Addendum to Employment Agreement between the Company and John
Giordano dated October 5, 1999.
10.5 Letter Agreement dated September 30, 1999 between the Company and
Siemens Credit Corporation
10.6 Lease dated February 2, 1999, as amended between the Company and
OTR.
11 Statement re computation of net loss per common share
27 Financial Data Schedule
</TABLE>
34
<PAGE>
EXHIBIT 10.1
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT ("Agreement") is made as of September 15, 1999,
by and between PERITUS SOFTWARE SERVICES, INC., a Massachusetts corporation with
an address at Two Federal Street, Billerica, Massachusetts 01821 ("Peritus") and
BCIA NEW ENGLAND HOLDINGS LLC, a Delaware limited liability company with an
address c/o Boston Capital Institutional Advisors LLC, One Boston Place, Boston,
Massachusetts 02108 ("BCIA").
WHEREAS, Peritus, as Tenant, and MGI Two Federal Street, Inc. ("MGI"), as
Landlord, entered into a certain lease, dated December 11, 1997 (the "Lease")
with respect to certain property known as Two Federal Street, Billerica,
Massachusetts (the "Premises"); and
WHEREAS, BCIA purchased the Premises from MGI and succeeded to MGI's
interest as Landlord under the Lease; and
WHEREAS, Peritus is in default under the Lease for failing to pay Rent and
other sums due and owing under the Lease in the amount of Two Hundred Thirty Two
Thousand One Hundred Ninety Seven and 34/100 Dollars ($232,197.34) as of the
date hereof; and
WHEREAS, on the basis of said default by Peritus, BCIA has terminated the
Lease by letter dated August 23, 1999; and
WHEREAS, BCIA and Peritus desire to settle all claims that could be raised
in a lawsuit between the parties and to avoid the expense and inconvenience of
litigation between them, by compromising their respective rights and obligations
in accordance with and subject to the terms of this Agreement; and
WHEREAS, Peritus believes that the Rent payable under the Lease is at
least equal to the fair market rent for the Premises; and
WHEREAS, Peritus furthermore has determined that it shall benefit by
settling all of its outstanding and future liabilities under the Lease at this
time in accordance with the terms of this Agreement and terminating its
obligations to make future Rent (as such term is defined in the Lease) payments
under the Lease.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and which consideration includes
but is not limited to the mutual covenants expressed herein, the parties hereto
agree as follows:
<PAGE>
1. All of the foregoing recitals of the respective parties hereto are true
and correct and are hereby incorporated in and made a part of this Agreement to
the same extent as if herein set forth in full. Capitalized terms not otherwise
defined herein shall have the meaning ascribed thereto in the Lease.
2. BCIA and Peritus hereby acknowledge and agree that the Lease has been
heretofore validly, effectively and finally terminated and that Peritus has no
further rights thereunder. Upon the execution of this Agreement and full
compliance with the terms and conditions hereof, all of the parties' respective
rights, liabilities and obligations under the Lease shall be terminated with
finality and without recourse as if such document had never been executed, and
the same shall be deemed null and void ab initio and of no further force and
effect.
3. Peritus shall vacate the Premises no later than 5:00 p.m. on October
15, 1999 (the "Effective Date"). In yielding-up the Premises, Peritus shall
comply with the terms and conditions of Section 6.1 of the Lease; provided,
however, that all of the equipment and furnishings set forth on Exhibit A
attached hereto and incorporated herein (the "Furnishings") and all
improvements, additions and alterations made by Peritus at the Premises (the
"Improvements") other than those listed on Exhibit B attached hereto and
incorporated herein shall remain at the Premises and become the property of
BCIA. Peritus hereby represents and warrants that all such Furnishings and
Improvements are free and clear of any and all liens, security interests or
encumbrances of any kind whatsoever, and Peritus hereby indemnifies BCIA against
any such liens, security interests or encumbrances as may be asserted.
Simultaneously with the execution hereof, Peritus shall convey the Furnishings
to Buyer by a warranty bill of sale in the form of Exhibit C attached hereto and
incorporated herein, free and clear of any and all liens, security interests or
encumbrances of any kind whatsoever.
4. Simultaneously with the execution hereof, Peritus shall pay to BCIA the
sum of Two Hundred Thousand Dollars ($200,000.00) by wire transfer of
immediately available federal Funds, or by cashier's, treasurer's, or certified
check.
5. BCIA and Peritus hereby acknowledge and agree that BCIA is holding the
Security Deposit in the sum of Three Hundred Thousand Dollars ($300,000.00)
pursuant to Section 2.5 of the Lease. Peritus hereby agrees that BCIA may retain
the Security Deposit plus any and all interest accrued thereon.
6. Simultaneously with the execution hereof, Peritus shall instruct its
transfer agent to issue and deliver Five Hundred Thousand (500,000) restricted
shares of its common stock, $.0l par value per share (the "Shares") to BCIA, and
BCIA shall pay to Peritus Five Thousand Dollars ($5,000.00) for the par value
therefor. Peritus hereby represents and warrants that the Shares to be issued in
connection herewith have been, or prior to their issuance will have been, duly
authorized for issuance by Peritus to BCIA, and on the date of their issuance
pursuant to the
2
<PAGE>
terms and conditions hereof will be validly issued, fully paid and
non-assessable, free and clear of any liens, pledges and encumbrances of any
kind whatsoever.
7. BCIA hereby represents and warrants to Peritus that (i) it is an
"accredited investor" as that term is defined under Regulation D promulgated
under the Securities Act of 1933 (the "Act"): (ii) it is acquiring the Shares
for investment and not with a view to distribution or resale except as permitted
under the Act; and (iii) the Shares shall bear a restrictive legend
substantially as follows: "The securities represented by this certificate have
not been registered under the Act and may not be sold, assigned or transferred
in the absence of an effective registration statement under the Act or an
opinion of counsel satisfactory to the company that such registration is not in
the circumstances required."
8. Peritus hereby represents and warrants, as of the date hereof, that it
is paying its obligations as they come due, that the fair saleable value of its
assets exceeds the sum of its liabilities, and that no petition has been filed
by or against it under the Federal Bankruptcy Code or any similar state or
federal law. Peritus hereby further represents and warrants that the Securities
and Exchange Commission ("SEC") Form 10-Q for the Quarterly Period Ended June
30, 1999 filed by Peritus with the SEC as of August 11, 1999 (the "Form l0-Q")
was true and correct in all material respects as of the date thereof.
9. Upon the execution of this Agreement and full compliance with the terms
and conditions hereof, Peritus and BCIA shall unconditionally release each other
and each other's respective successors, predecessors, heirs, assigns,
affiliates, subsidiaries and parent companies from any and all claims, causes of
action, obligations and/or liabilities that the one had, has or may have had
against the other, from the beginning of the world to the date hereof, including
but not limited to any claims, causes of action, obligations or liabilities
arising under or re1ating to the Lease, but specifically excepting obligations
undertaken in connection herewith. In furtherance, but not in limitation of the
foregoing, Peritus hereby agrees that it shall not seek repayment of any amounts
from BCIA on any basis, including without limitation, on the asserted grounds
that such amounts are recoverable in any Chapter 7 or Chapter 11 bankruptcy
proceedings of Peritus which may be commenced in the future. In the event this
Agreement is set aside or declared invalid for any reason whatsoever, all of
BCIA's rights and remedies under the Lease shall be immediately reinstated as
though this Agreement had never been entered into.
10. The execution and delivery of this Agreement, and the performance of
the parties' respective obligations hereunder have been duly authorized by all
requisite organizational action, and this Agreement has been duly executed and
delivered by a duly authorized representative of the parties. None of the
foregoing requires any action by or filing with any governmental or
quasi-governmental body having jurisdiction over any party hereto or the
Premises, or contravenes or constitutes a default under any provision of any
applicable law, any organizational document of BCIA or Peritus or any agreement,
judgment, injunction, order, decree or other instrument binding upon BCIA or
Peritus. This Agreement constitutes the valid
3
<PAGE>
and binding obligations of BCIA and Peritus enforceable in accordance with its
terms, subject to bankruptcy and similar laws affecting the remedies or recourse
of creditors generally and principles of equity.
11. This Agreement (i) contains the entire agreement by and between BCIA
and Peritus with respect to the foregoing and supersedes all previous agreements
between the parties with respect to the subject matter hereof, whether express
or implied, written or oral; (ii) shall be binding upon and inure to the benefit
of the heirs, successors and assigns of BCIA and Peritus; (iii) shall be
construed in accordance with the laws of the Commonwealth of Massachusetts; (iv)
may only be modified by a writing signed by an authorized representative of each
party; and (v) may be executed in counterparts, each of which shall be an
original and all of which counterparts taken together shall constitute one and
the same agreement.
12. Execution of this Agreement is the free and voluntary act of both BCIA
and Peritus and does not occur as a result of any coercion or duress, and is
being made after receipt of advice from legal counsel. Landlord and Tenant state
that the undersigned have read the Agreement, understand the contents thereof,
and execute the same as their free act and deed.
13. BCIA hereby consents to Peritus or its agents conducting one one-day
auction at the Premises of Peritus' equipment and furnishings (other than those
set forth on Exhibit A hereto) on or before the Effective Date.
[Remainder of page intentionally left blank]
4
<PAGE>
EXECUTED under seal as of the day and year first set forth above.
BCIA NEW ENGLAND HOLDINGS LLC, a Delaware
limited liability company
By: BCIA NEW ENGLAND HOLDINGS MASTER
LLC, a Delaware limited liability company, its
Manager
By: BCIA NEW ENGLAND HOLDINGS
MANAGER LLC, a Delaware limited
liability company, its Manager
By: BCIA NEW ENGLAND
HOLDINGS MANAGER CORP., a
Delaware corporation, its Manager
By: /s/ Karl W. Weller
--------------------------
Karl W. Weller
Executive Vice President
PERITUS SOFTWARE SERVICES, INC., a
Massachusetts corporation
By: /s/ John D. Giordano 9/14/99
--------------------------------
John D. Giordano
President
5
<PAGE>
Exhibit A
Schedule of Furnishings
. Fifty (50) complete workstations installed on the second floor
. Reception desk located in main lobby
. Ten (10) cafeteria tables and thirty (30) cafeteria chairs
. Cafeteria serving table and non-commercial refrigerator
. Projection screens located throughout building, with exception of five (5)
which have already been removed from second floor
. All building equipment and fixtures permanently attached, excluding
whiteboards, including but not limited to:
. Computer room Liebert cooling units;
. All telephone/data wiring;
. Security system including computer;
. All remaining kitchen equipment (as of 9/1/99): refrigerators,
ovens, racks, tables, etc.; and
. All remaining cable trays
6
<PAGE>
Exhibit B
Schedule of Excluded Furnishings
Five (5) ceiling projection screens from the second floor of the Premises.
7
<PAGE>
Exhibit C
Form of Bill of Sale
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, PERITUS SOFTWARE SERVICES1 INC., a Massachusetts
corporation with an address at Two Federal Street, Billerica, Massachusetts
01821 ("Seller"), hereby grants, bargains, conveys, sets over, transfers,
assigns and delivers unto BCIA NEW ENGLAND HOLDINGS LLC, a Delaware limited
liability company with an address c/o Boston Capital Institutional Advisors LLC,
One Boston Place, Boston, Massachusetts 02108 ("Buyer"), its successors and
assigns, all of Seller's right, title and interest in and to all of the personal
property set forth on Schedule 1 hereto, to have and to hold the same unto
Buyer, its successors and assigns forever, free and clear of any and all liens,
security interests or encumbrances of any kind whatsoever.
EXECUTED as a sealed instrument as of the ____ day of September, 1999.
PERITUS SOFTWARE SERVICES,
INC., a Massachusetts corporation
By: /s/ John D. Giordano 9/14/99
---------------------------------
John D. Giordano
President
8
<PAGE>
Schedule 1
. Fifty (50) complete workstations installed on the second floor
. Reception desk located in main lobby
. Ten (10) cafeteria tables and thirty (30) cafeteria chairs
. Cafeteria serving table and non-commercial refrigerator
. Projection screens located throughout building, with exception of five (5)
which have already been removed from second floor
. All building equipment and fixtures permanently attached, excluding
whiteboards, including but not limited to:
. Computer room Liebert cooling units;
. All telephone/data wiring;
. Security system including computer;
. All remaining kitchen equipment (as of 9/1/99): refrigerators,
ovens, racks, tables, etc.; and
. All remaining cable trays
9
<PAGE>
EXHIBIT 10.2
AGREEMENT FOR TERMINATION OF LEASE
THIS AGREEMENT FOR TERMINATION OF LEASE (the "Agreement") is made as of
August 12, 1999, by and between THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, a
New Jersey corporation ("Landlord"), and PERITUS SOFTWARE SERVICES, INC., a
Massachusetts corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant entered into that certain Office Space Lease
dated January 20, 1998 (the "Lease") pertaining to certain premises in the
building commonly known as 750 Warrenville Road, Lisle, Illinois; and
WHEREAS, Landlord and Tenant have decided that it is in their mutual best
interest to cancel and terminate the Lease and it is the intention of Landlord
and Tenant to effect the cancellation of the Lease by this instrument.
NOW, THEREFORE, in consideration of the covenants and agreements
hereinafter contained, and of the mutual release by the parties and surrender by
Tenant of the Lease and all of its rights therein and thereunder and all of its
rights in and to the Premises (as defined in the Lease) and of the payment to
Landlord by Tenant of the sum of One Hundred Thousand and No/100 Dollars
($100,000.00) concurrently herewith, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree and warrant as follows:
1. From and after August 15, 1999 (the "Termination Date"), Tenant hereby
remises, releases, quitclaims and surrenders to Landlord, its successors and
assigns, forever, the Lease and all rights of Tenant in and to the Premises,
however acquired, together with all of its right and interest (and title, if
any) in and to any and all improvements, equipment and fixtures therein
contained, and all of the estate and rights of Tenant in and to the Lease, to
have and to hold the same unto Landlord, its successors and assigns, forever,
from and after the Termination Date.
2. Landlord and Tenant agree that the Lease is to be canceled and
terminated and the term thereby demised brought to an end as of the Termination
Date with the same force and effect as if the term of the Lease were in and by
the provisions thereof fixed to expire on the Termination Date. Without limiting
the generality of the foregoing, Tenant agrees to quit and surrender to Landlord
the Premises in accordance with the requirements of Section 15 of the Lease and
that Landlord shall have the right to re-enter upon the Premises as of the
Termination Date, as fully as it would or could have done if that were the date
provided for as the expiration date of the term of the Lease. Landlord and
Tenant agree that the payment to Landlord by Tenant of the sum of
<PAGE>
$100,000.00 described above is in full settlement of all Base Rent and
Adjustment Rent due under the Lease.
3. Tenant, for itself and its successors and assigns, hereby forever
releases and discharges Landlord from any and all claims, demands or causes of
action whatsoever against Landlord, its successors and assigns, arising out of
the Lease after the Termination Date. Landlord, for itself and its successors
and assigns, hereby forever releases and discharges Tenant from any and all
claims, demands or causes of action whatsoever against Tenant, its successors
and assigns, arising out of the Lease after the Termination Date. The foregoing,
however, shall not be deemed a release or waiver by either Landlord or Tenant of
any of the other party's obligations under this Agreement.
4. Tenant hereby warrants to Landlord that:
(a) It is the legal and equitable owner of the lessee's interest in
the Lease with full power and authority to terminate same.
(b) The Lease is not and has not been subleased, assigned or
transferred and is not and has not been hypothecated, pledged, mortgaged
or in any other way encumbered.
(c) Neither it nor any of its predecessors in interest under the
Lease has done or suffered to be done anything whereby the Premises and/or
Landlord's title thereto are in any manner encumbered or charged.
(d) All charges for utility service (gas, water, electricity, etc.)
which Tenant is responsible for have been paid in full through the
Termination Date, except, however, for telephone charges, which Tenant
shall timely and fully pay if and when due.
(e) There are no outstanding contracts for the supply of labor or
material as of the date hereof, and no work has been done or is being done
nor have materials been delivered in, about or to the Premises which has
or have not been fully paid for, for which a mechanics' lien could be
asserted and/or foreclosed under the lien laws of the state in which the
Premises are located.
5. This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, successors and assigns.
6. Notwithstanding anything contained herein or in the Lease to the
contrary, Tenant agrees that Landlord shall have the right to retain the
security deposit being held by Landlord under the Lease and that same shall be
deemed fully earned and non-refundable.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA, a New Jersey corporation
By: GRUBB & ELLIS MANAGEMENT
SERVICES, INC., a Delaware corporation,
its duly authorized agent
By: /s/ [Illegible]
--------------------------
Name: [Illegible]
---------------------
Its: Vice President
----------------------
TENANT:
PERITUS SOFTWARE SERVICES, INC.,
a Massachusetts corporation
By: /s/ John Giordano
---------------------------------
Name: John Giordano
---------------------------
Its: President & CEO
----------------------------
<PAGE>
Exhibit 10.3
EMPLOYMENT AGREEMENT
Agreement made as of the 9th day of September 1999 (the "Effective Date"),
by and between Peritus Software Services, Inc., a Massachusetts corporation (the
"Company"), and John Giordano (the "Employee"). This Agreement supercedes all
prior Agreements with the exception of the Vesting paragraph (2nd paragraph) of
the Letter dated April 9, 1999 concerning the $120,000 bonus paid upon
Employee's acceptance of the additional position of President and Chief
Executive Officer.
The Company wishes to employ the Employee, and the Employee wishes to be
employed by the Company. In consideration of the mutual covenants and promises
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, the parties
agree as follows:
I. Titles and Reporting Responsibilities
-------------------------------------
The Employee's titles will be President and Chief Executive Officer and
Chief Financial Officer or such other title as may be mutually agreed upon
between Employee and the Company. The Employee will report to Board of
Directors.
II. Term of Employment
------------------
The Company hereby agrees to continue to employ the Employee and the
Employee hereby accepts employment with the Company for a period (the
"Employment Period") commencing on the August 19, 1999 and ending August 19,
2002 unless earlier terminated pursuant to the provisions of Section VII below.
This Agreement shall remain in full force and effect until expiration hereof
unless earlier terminated in accordance with Section VII of this Agreement.
III. Responsibilities of the Employee
--------------------------------
The Employee agrees to undertake the duties and responsibilities inherent
in the position described in Section I above and such other duties and
responsibilities as the Company or its designee shall from time to time
reasonably assign. The Employee agrees to devote his entire business time,
attention and energies to the business and interests of the Company during the
term of this Agreement. The Employee agrees to abide by the rules, regulations,
instructions, personnel practices and policies of the Company and any changes
therein which may be adopted from time to time by the Company.
IV. Expense Reimbursement
---------------------
The Company will reimburse the Employee for all reasonable documented
travel and other business expenses incurred in furthering the business of the
Company and in accordance with the Company's then current travel and business
expense policy. Expenditures of an extraordinary nature shall require prior
written approval of the Company.
<PAGE>
V. Prohibitions
------------
During the term of this Agreement, the Employee shall not:
(a) be employed by or otherwise represent any other company, product, service
or enterprise, without the prior written approval of the Company; or
(b) make any representation, warranty, guarantee, or statement, orally or in
writing, which would contravene any Company policy or compromise the
Company's interests.
VI. Compensation, Initial Stock Option Grant and Relocation
-------------------------------------------------------
(a) The Employee shall be paid a base salary (the "Base Salary") and, when
appropriate, bonuses (Bonus Compensation") as described in this Section VI.
The Employee's initial bi-weekly Base Salary shall be $7,500 (Initial Base
Salary), which is the equivalent of $195,000 per year. Provided neither
party has exercised the right to terminate this Agreement under Section
VII, performance and compensation reviews will be conducted annually
beginning January 1, 1999.
(b) Bonus Compensation will be paid to the Employee provided the Employee
successfully meets the bonus criteria as approved by the Board of Directors
of the Company, by a Committee of the Board of Directors of the Company
established for the purpose of determining bonus compensation or by a
designee of the Board of Directors or such Committee who has been granted
the authority to determine bonuses. Employee's bonus rate shall be 50%
(Initial Bonus Rate) of base salary. The Employee's bonus criteria will be
consistent with the criteria set for other senior executives of the Company
taking into account his duties and responsibilities.
(c) Except as otherwise provided, the Employee shall be entitled to participate
in any and all benefit programs that the Company establishes and makes
generally available to its employees for which he may be eligible under
plan documents and applicable laws. In any case where contributions or
benefits related to participation in a plan vary on the basis of
compensation, "compensation" shall mean Employee's Base Salary only and
shall not include expense reimbursements, advances, Bonus Compensation or
any other compensation which may be paid by the Company. The Employee
shall be entitled to four weeks vacation.
(d) Any future revisions to Base Salary or Bonus Compensation may be
implemented by the Board of Directors of the Company, by a Committee of the
Board of Directors of the Company established for the purpose of
determining bonus compensation or by a designee of the Board of Directors
or such Committee who has been granted the authority to determine bonuses
provided however that no reduction may be made to either the Initial Base
Salary or the Initial Bonus Rate.
2
<PAGE>
VII. Termination
-----------
The employment of the Employee by the Company pursuant to this Agreement
shall terminate:
(a) By the Employee, without cause, by giving 30 days' prior written notice of
termination to the Company or within such shorter period as is established
by mutual agreement of the parties or upon Employee's commencement of
employment or consulting with a third party, or by the Company, without
cause, upon at least 52 weeks prior written notice (the "Notice Period") of
termination to the Employee.
(b) Upon Change of Control of the Company including the acquisition of more
than 50% of the equity by any person, any merger, consolidation or sale of
substantially all of the assets of the Company.
(c) By either party, if the other party breaches any of its obligations under
this Agreement and fails to remedy such breach within 30 days after written
notice of such breach is provided to such other party. Failure of the
Employee to adequately perform the duties and responsibilities specified in
Section III hereof shall be considered a breach of this Agreement provided
however that the remedy period for such breach shall be 120 days.
(d) By the Company, effective immediately and without notice, for cause. For
purposes of this Section VII (c), "cause" for termination shall be deemed
to exist upon (a) dishonesty, gross negligence or misconduct, (b) the
conviction of the Employee of, or the entry of a pleading of guilty or nolo
contendere by the Employee to, any crime involving moral turpitude or any
felony.
(e) Upon the death or disability of the Employee. As used in this Agreement,
the term "disability" shall mean the inability of the Employee, due to a
physical or mental disability, to perform the essential functions of
his/her job with or without a reasonable accommodation by the Company.
VIII. Rights Following Termination
----------------------------
(a) Following termination of this Agreement, pursuant to Section VII(c),
VII(d), VII(e), or at the option of the Employee pursuant to Section
VII(a), or upon expiration of this Agreement, the Company shall have no
further responsibility to Employee except to pay Base Salary up to and
including the last day of employment.
(b) If termination of this Agreement at the option of the Company pursuant to
Section VII (a), or pursuant to Section VII (b) occurs after September 30,
1999, the Company shall continue to pay to the Employee the Base Salary and
provide normal benefits in accordance with its then current payroll
policies until the earlier of either expiration of the Notice Period or the
date Employee commences employment or consulting with a third party during
the Notice Period; provided however that if the compensation earned by the
employee under any such arrangement is less than the Base Salary at the
time of termination, Employee shall continue to be paid the difference
between such compensation and the Base Salary for the remainder of the
Notice Period. Employee shall perform such services for the Company as
mutually agreed
3
<PAGE>
upon between Company and Employee as to scope, timing and location during
such Notice Period. The Employee shall not be eligible to receive the
payments during the Notice Period unless and until the Employee signs a
release in the form attached hereto as Exhibit A. If this Agreement is
terminated pursuant to Section VII (a) or (b) on or before September 30,
1999, no additional payments will be made to Employee.
(c) In the event of termination or expiration of this Agreement, Employee
shall, at the instruction of the Company, promptly return to the Company or
its designee all files, letters, memoranda, reports, records, data,
sketches, drawings, laboratory notebooks, program listings, or other
written, photographic, or other tangible material supplied by the Company
to the Employee or created or maintained for the Company by the Employee.
(d) Except as set forth above, neither party shall be entitled to any
compensation or claim for goodwill or other loss, suffered by reason or
termination of this Agreement.
(e) The rights and obligations of the parties to this Agreement set forth in
Section VIII and Section IX shall survive any termination or expiration of
this Agreement. The termination or expiration of this Agreement shall in
no case relieve either party from its obligations to pay to the other any
monies accrued hereunder prior to such termination or expiration.
(f) Employee shall not disclose the terms of this Agreement to any third party
unless such third party is obligated to keep such information confidential.
IX. Non-Competition
---------------
(a) During the Employment Period and (i) for a period of one year after the
termination of this Agreement pursuant to Sections VII(b), VII(c), VII(d)
or at the option of the Employee pursuant to Section VII(a) or (ii) in the
event of termination of this Agreement by the Company without cause under
Section VII (a) for the period of the Notice Period during which the
Company is continuing to make payments to the Employee, the Employee will
not directly or indirectly:
(i) as an individual, proprietor, partner, stockholder, officer,
employee, director, joint venturer, investor, lender, or in any other
capacity whatsoever (other than as the holder of not more than one percent
(1%) of the total outstanding stock of a publicly held company), engage in
the business of developing, producing, marketing or selling products or
services of the kind or type developed or being developed, produced,
marketed or sold by the Company or any subsidiary of the Company while the
Employee was employed by the Company; or
(ii) recruit, solicit or induce, or attempt to induce, any employee or
employees of the Company to terminate their employment with, or otherwise
cease their relationship with, the Company; or
(iii) solicit, divert or take away, or attempt to divert or take away,
the business or patronage of any of the clients, customers or accounts, or
prospective clients, customers
4
<PAGE>
or accounts, of the Company which were contacted, solicited, served or
known by the Employee while employed by the Company.
(b) If any restriction set forth in this Section IX is found by any court of
competent jurisdiction to be unenforceable because it extends for too long
a period of time or over too great a range of activities or in too broad a
geographic area, it shall be interpreted to extend only over the maximum
period of time, range of activities or geographic area as to which it may
be enforceable.
(c) The restrictions contained in this Section IX are necessary for the
protection of the business and goodwill of the Company and are considered
by the Employee to be reasonable for such purpose. The Employee agrees
that any breach of this Section IX will cause the Company substantial and
irrevocable damage and therefore, in the event of any such breach, in
addition to such other remedies which may be available, the Company shall
have the right to seek specific performance and injunctive relief.
X. Other Agreements
----------------
Employee represents that his performance of all the terms of this Agreement
and as an employee of the Company does not and will not breach any employment
agreement with any previous employer or any agreement with any previous employer
or other party to keep in confidence proprietary information, knowledge or data
acquired by him in accordance or in trust prior to his employment with the
Company or to refrain from competing, directly or indirectly, with the business
of such previous employer or any other party. Employee has executed the
Company's standard confidentiality and nondisclosure agreement.
XI. Notices
-------
All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered in person or, if mailed, when mailed by certified or registered mail,
postage prepaid, or by recorded delivery service to the parties at the addresses
set forth below their signatures to this Agreement or at such other address as
may be given in writing by either party to the other party in accordance with
this Section XI.
XII. Assignability
-------------
Employee acknowledges that the Company is entering into this Agreement in
reliance upon the personal reputation, qualifications and abilities of the
Employee and accordingly, the Employee may not assign his rights or obligations
under this Agreement, either voluntary or by operation of law.
XIII. Miscellaneous
-------------
(a) This Agreement shall not be binding upon the Company until it has been
executed by a duly authorized officer of the Company. This Agreement shall
be binding on the parties and their respective successors and assigns.
5
<PAGE>
(b) This Agreement shall be governed by, and construed in accordance with, the
substantive laws of The Commonwealth of Massachusetts.
(c) This Agreement constitutes the entire understanding between the parties
relating to the subject matter of this Agreement and supersedes all prior
writings, negotiations or understanding with respect thereto except the
confidentiality and nondisclosure agreement referenced in Section X above.
No modification or addition to the Agreement shall have any effect unless
it is set forth in writing and signed by both parties.
(d) The waiver by the Company or the Employee of any breach of any provision of
this Agreement shall not be construed as a continuing waiver of such breach
or as a waiver of other breaches of the same or of other provisions of this
Agreement.
(e) Should any provision of this Agreement be declared or be determined by any
court of competent jurisdiction to be illegal or invalid, the validity of
the remaining parts, terms, or provisions shall not be affected thereby and
said illegal and invalid part, term or provision shall be deemed not to be
a part of this Agreement.
(f) The exercisability of Employee's options granted under the Company's 1997
Stock Incentive Plan in the event of an "acquisition event" as such term is
defined in such respective plan shall be governed by the terms of plan
under which such options are granted and any related option agreements.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
Peritus Software Services, Inc.
By:
- --------------------------- --------------------------
Employee Signature
Address: 5 Queen Anne Road Address: 2 Federal Street
Hopkinton, Ma 01748 Billerica, MA 01821-3540
Attn: President
6
<PAGE>
EXHIBIT A
---------
RELEASE
1. Release. In consideration of the payments provided to me under a certain
-------
employment contract between Peritus Software Services, Inc., a Massachusetts
Corporation (the "Company") and me, I hereby fully, forever, irrevocably and
unconditionally release, remise and discharge the Company, and any subsidiary or
affiliated organization of the Company or their respective current or former
officers, directors, stockholders, corporate affiliates, attorneys, agents and
employees (the "Released Parties") from any and all claims, charges, complaints,
demands, actions, causes of action, suits, rights, debts, amounts of money,
promises, doings, omissions, damages, executions, obligations, liabilities, and
expenses (including attorneys' fees and costs), of every kind and nature, known
or unknown, which I ever had or now have against the Released Parties,
including, but not limited to, all claims arising out of my employment, all
claims arising out of your separation of my employment, all claims arising from
any failure to reemploy me, all claims of race, sex, national origin, handicap,
religious, sexual orientation, benefit and age discrimination, all employment
discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000 et seq., the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq.,
the Americans with Disabilities Act of 1990, 29 U.S.C. 12101 et seq., The
Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001 et seq., and
similar state or local statutes, wrongful discharge claims, common law tort,
defamation, breach of contract and other common law claims, and any claims under
any other federal, state or local statutes or ordinances not expressly
referenced above.
2. Entire Understanding and Applicable Law. This Release contains and
---------------------------------------
constitutes my entire understanding with respect to the settlement of claims
against the Company and the Released Parties and cancels all previous oral and
written negotiations, agreements, commitments, and writings in connection
therewith. This Release shall be governed by the substantive laws of The
Commonwealth of Massachusetts to the extent not preempted by federal law.
3. Acknowledgements. I acknowledge that I have been given at least twenty-one
----------------
(21) days to consider this Release and that the Company advised me to consult
with any attorney of my own choosing prior to signing this Release. I
acknowledge that I may revoke this Release for a period of seven (7) days after
signing it, and the Release shall not be effective or enforceable until the
expiration of this seven (7) day revocation period.
Date: __________________ Employee's Signature:____________________
Employee's Name: John Giordano
7
<PAGE>
Exhibit 10.4
November 11, 1999
John Giordano
5 Queen Anne Road
Hopkinton, MA 01748
Dear John:
This letter is an addendum to your Employment Agreement dated September 9,
1999.
As an added incentive for you to remain with Peritus during the next two
quarters, Peritus agrees to pay you the following additional retention payments.
Retention Period Payment Date Payment Amount
-------------------- --------------- --------------
4th Quarter 1999 January 1, 2000 $70,000.00
1st Quarter 2000 April 1, 2000 $60,000.00
The above payments (less applicable withholding taxes) will be paid to you on
the dates shown so long as you are employed by Peritus throughout the retention
period.
Any unpaid portion of the above payments will be immediately paid upon
(i) termination of your employment by the Company without cause, or, (ii) the
merger, liquidation, consolidation, sale of substantially all of the assets,
bankruptcy, reorganization or receivership of the Company.
Peritus Software Services, Inc.
By:_________________________ ________________________
Roland Pampel John Giordano
Member Board of Director's President and CEO
Compensation Committee
<PAGE>
EXHIBIT 10.5
SIEMENS
September 30, 1999 Via Facsimile to 508-870-0964
Mr. John Giordano
President, Chief Executive Officer
Peritus Software Services, Inc.
Two Federal Street
Billerica, MA 01821-3540
Re: Master Equipment Lease Agreement dated February 12, 1998, Leasing Schedules
629-0001763-000, 629-0001764-000 and 629-0001765-000 (herein referred to as the
"Lease" or the "Leasing Schedule") between Peritus Software Services, Inc.
("Peritus" or "Lessee") and Siemens Credit Corporation ("SCrC")
Dear Mr. Giordano:
In response to a Peritus letter dated September 15, 1999 and in conjunction with
our telephone conversation of September 23, 1999, SCrC and Peritus have agreed
to the following actions:
1. Peritus will remit to SCrC by 9/30/99 an amount of $110,000.00 by wire
transfer. These funds will satisfy all lease obligations to Siemens Credit
Corporation (including lease payment obligations, but excluding third
party claims and failure by Peritus to comply with Section 3 below), due
under Leasing Schedules 629-0001763-000 and 629-0001765-000. The wire
instructions are as follows:
Chase Manhattan Bank
New York, NY
ABA: 021000021
Account: 910-2-694362
Attn: Anne Mickens
Contract: 629-00001763-000
2. Peritus will continue to make timely remittals of its obligations under
Leasing Schedule 629-0001764-000 as such Leasing Schedule will remain
uneffected by this agreement.
3. Peritus will return the Equipment covered under Leasing Schedule
629-0001763-000 on or before October 13, 1999 to SCrC c/o Rolm Resale
Services Group, 6845 Wedgwood Court, Maple Grove, MN 55311 attn: Kelly
Martens (please note Leasing Schedule #629-0001763-000 on package) and in
accordance with the terms of the Lease, free of all liens and
encumbrances.
4. Any previous requests made by Peritus for SCrC to return Equipment or to
Substitute Equipment (as outlined in the SCrC letter to Peritus dated
September 10, 1999) are hereby cancelled.
<PAGE>
Page 2
Peritus Software Services, Inc.
September 30, 1999
Provided that SCrC timely receives $110,000.00 provided for herein and return of
the Equipment in accordance with Section 3 herein, this letter shall constitute
a waiver of defaults under the Leases 629-0001763-000 and 629-0001765-000 or any
document, instrument, writing or agreement related thereto.
SCrC's offer contained herein expires on September 30, 1999. Peritus' acceptance
of the terms of this agreement shall be evidenced by SCrC's receipt from Peritus
of the $110,000.00 referred to above and signature below.
Sincerely,
/s/ William T. Zadrozny
William T. Zadrozny
President and Chief Executive Officer
Accepted
Peritus Software Services, Inc.
By /s/ John Giordano
------------------------
John Giordano
Its: President, Chief Executive Officer
<PAGE>
Exhibit 10.6
L E A S E
---------
THIS INSTRUMENT IS A LEASE, dated as of February 2, 1999 in which the
Landlord and the Tenant are the parties hereinafter named, and which relates to
space in the building (the "Building") located at 112 Turnpike Road,
Westborough, Massachusetts. The parties to this instrument hereby agree with
each other as follows:
ARTICLE 1
---------
BASIC LEASE PROVISIONS
----------------------
1.1 INTRODUCTION. The following set forth basic data and, where appropriate,
------------
constitute definitions of the terms hereinafter listed.
1.2 BASIC DATA.
----------
Landlord: OTR, an Ohio general partnership, acting as the duly designated
nominee of the State Teachers Retirement System of Ohio.
Landlord's Original Address: 275 East Broad Street, Columbus, Ohio 43215.
Tenant: Peritus Software Services, Inc., a Massachusetts corporation.
Tenant's Original Address: 2 Federal Street, Billerica, MA 01821
Guarantor: None.
Basic Rent: The sum of (i) $172,326.00 ($21.00 per square foot of
Premises Rentable Area) per annum, plus (ii) $7,795.70 ($0.95 per square foot of
Premises Rentable Area) per annum as an allowance (the "Estimated Electricity
Payment") toward the actual cost to Landlord of providing electricity to the
Premises, as all of the same may be adjusted and/or abated pursuant to Sections
7.5 and 12.1.
Premises Rentable Area: Agreed to be 8,206 square feet consisting of
6,906 square feet located on the third (3rd) floor of the Building and 1,300
square feet located on the first (1st) floor of the Building.
Permitted Uses: Executive or professional offices, including software
research, development and services, all of the type generally found in first-
class office buildings in the suburban Boston area, subject to the provisions of
Section 5.1(a).
Escalation Factor: 12.1%, as computed in accordance with the Escalation
Factor Computation.
Extended Term: As defined in Section 15.1.
Initial Term: Three (3) years commencing on the Commencement Date and
expiring at the close of the day immediately preceding the third (3rd)
anniversary of the Commencement Date, except that if the Commencement Date shall
be other than the first day of a calendar month, the expiration of the Initial
Term shall be at the close of the day on the last day of the calendar month on
which such anniversary shall fall.
Security Deposit: $28,721.00
5
<PAGE>
Base Operating Expenses: The actual Operating Expenses with respect to the
calendar year ending December 31, 1999 (which includes an allowance of $0.95 per
square foot of Building Rentable Area toward the actual cost to Landlord of
providing convenience electricity to those portions of the Building leased or
intended to be leased to tenants).
Base Taxes: The sum of (x) one-half ( 1/2) the Taxes assessed with respect
to the fiscal year ending June 30, 1999, as the same may be reduced by the
amount of any abatement, and (y) one-half ( 1/2) the Taxes assessed with respect
to the fiscal year ending June 30, 2000, as the same may be reduced by the
amount of any abatement.
Broker: Spaulding & Slye and Lynch, Murphy, Walsh & Partners, Inc.
1.3 ADDITIONAL DEFINITIONS.
----------------------
Agent: Spaulding & Slye, Inc., or such other person or entity from time to
time designated by Landlord.
Building Rentable Area: Agreed to be 72,634 square feet.
Business Days: All days except Saturday, Sunday, New Year's Day, Martin
Luther King Day, President's Day, Patriots Day, Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day (and the
following day when any such day occurs on Sunday) and such other days that
tenants occupying at least 50% of Building Rentable Area now or in the future
recognize as holidays for their general office staff.
Commencement Date: As defined in Section 4.1.
Construction Deadline: As defined in Section 4.2.
Default of Tenant: As defined in Section 13.1.
Escalation Charges: The amounts prescribed in Sections 8.1 and 9.2.
Escalation Factor Computation: Premises Rentable Area divided by 93% of
Building Rentable Area.
Force Majeure: Collectively and individually, strike or other labor
trouble, fire or other casualty, governmental preemption of priorities or other
controls in connection with a national or other public emergency or shortages of
fuel, supplies or labor resulting therefrom, or any other cause, whether similar
or dissimilar, beyond Landlord's reasonable control.
Initial Public Liability Insurance: $3,000,000 per occurrence/$5,000,000
aggregate (combined single limit) for property damage, bodily injury or death.
Landlord's Work: As defined in Section 4.2.
Operating Expenses: As determined in accordance with Section 9.1.
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Operating Year: As defined in Section 9.1.
Park: The properties owned by Landlord at 110, 112 and 114 Turnpike Road,
Westborough, Massachusetts.
Premises: A portion of the Building as shown on Exhibit A annexed hereto.
Property: The Building and the land parcels on which it is located
(including adjacent sidewalks and other portions of the Park).
Substantial Completion Date: As defined in Section 4.2.
Tax Year: As defined in Section 8.1.
Taxes: As determined in accordance with Section 8.1.
Tenant's Removable Property: As defined in Section 5.2.
Term of this Lease: The Initial Term and any extension thereof in
accordance with the provisions hereof.
ARTICLE 2
---------
PREMISES AND APPURTENANT RIGHTS
-------------------------------
2.1 LEASE OF PREMISES. Landlord hereby demises and leases to Tenant for the
-----------------
Term of this Lease and upon the terms and conditions hereinafter set
forth, and Tenant hereby accepts from Landlord, the Premises.
2.2 APPURTENANT RIGHTS AND RESERVATIONS. (a) Tenant shall have, as
-----------------------------------
appurtenant to the Premises, the non-exclusive right to use, and permit
its invitees to use in common with others, public or common lobbies,
hallways, stairways, elevators and common walkways necessary for access to
the Building, and if the portion of the Premises on any floor includes
less than the entire floor, the common toilets, corridors and elevator
lobby of such floor; but such rights shall always be subject to reasonable
rules and regulations from time to time established by Landlord pursuant
to Section 14.7 and to the right of Landlord to designate and change from
time to time areas and facilities so to be used.
(b) Excepted and excluded from the Premises are the ceiling, floor,
perimeter walls and exterior windows (except the inner surface of each
thereof), and any space in the Premises used for shafts, stacks, pipes,
conduits, fan rooms, ducts, electric or other utilities, sinks or other
Building facilities, but the entry doors (and related glass and finish
work) to the Premises are a part thereof. Landlord shall have the right
to place in the Premises (but in such manner as not to unreasonably
interfere with Tenant's use of the Premises) interior storm windows, sun
control devices, utility lines, equipment, stacks, pipes, conduits, ducts
and the like. In the event that Tenant shall install any hung ceilings or
walls in the Premises, Tenant shall install and maintain, as Landlord may
require, proper access panels therein to afford access to any facilities
above the ceiling or within or behind the walls.
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(c) Tenant shall also have the right (subject to reasonable rules and
regulations from time to time established by Landlord) to use, on an non-
exclusive, unreserved basis the parking areas located on the Property
adjacent to the Building. The parking areas serving the Park contain
approximately 4 spaces per 1,000 square feet of rentable area in the Park.
ARTICLE 3
---------
BASIC RENT
----------
3.1 PAYMENT. (a) Tenant agrees to pay to Landlord, or as directed by
-------
Landlord, commencing on the Commencement Date without offset, abatement
(except as provided in Section 12.2), deduction or demand, the Basic Rent.
Such Basic Rent shall be payable in equal monthly installments, in
advance, on the first day of each and every calendar month during the Term
of this Lease, to Landlord at Fleet Bank, Box 30474, 99 Founders Plaza,
Hartford, CT 06108, Attn: Lockbox CT/EHF03N, or at such other place as
Landlord shall from time to time designate by notice, in lawful money of
the United States. In the event that any installment of Basic Rent is not
paid when due, Tenant shall pay, in an addition to any charges under
Section 14.18, at Landlord's request an administrative fee equal to 5% of
the overdue payment. Landlord and Tenant agree that all amounts due from
Tenant under or in respect of this Lease, whether labeled Basic Rent,
Escalation Charges, additional charges or otherwise, shall be considered
as rental reserved under this Lease for all purposes, including without
limitation regulations promulgated pursuant to the Bankruptcy Code, and
including further without limitation Section 502(b) thereof.
(b) Basic Rent for any partial month shall be pro-rated on a daily basis,
and if the first day on which Tenant must pay Basic Rent shall be other
than the first day of a calendar month, the first payment which Tenant
shall make to Landlord shall be equal to a proportionate part of the
monthly installment of Basic Rent for the partial month from the first day
on which Tenant must pay Basic Rent to the last day of the month in which
such day occurs, plus the installment of Basic Rent for the succeeding
calendar month.
ARTICLE 4
---------
COMMENCEMENT AND CONDITION
--------------------------
4.1 COMMENCEMENT DATE. The Commencement Date shall be the last to occur of:
-----------------
(a) January 1, 1999, or
(b) the day following the Substantial Completion Date, as defined in
Section 4.2(c).
Notwithstanding the foregoing, if Tenant's personnel shall occupy all or
any part of the Premises for the conduct of its business prior to the
Commencement Date as determined pursuant to the preceding sentence, such
date of occupancy shall, for all purposes of this Lease, be the
Commencement Date. Promptly upon the occurrence of the Commencement Date,
Landlord and Tenant shall enter into a
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letter agreement substantially in the form annexed hereto as Exhibit E but
the failure by either party to execute such a letter shall have no effect
on the Commencement Date, as hereinabove determined.
4.2 PREPARATION OF THE PREMISES. (a) Landlord is currently having plans (the
---------------------------
"Plans") for the layout of the Premises prepared, which Plans shall be
submitted to Tenant for its approval, which shall not be unreasonably
withheld or delayed. The Plan shall reflect the changes to the Premises
shown on the sketch plan attached hereto as Exhibit LW-1 and listed on
Exhibit LW-2 hereto. Failure by Tenant to disapprove any submission of
the Plans within five (5) Business Days after submission shall constitute
approval thereof. Any disapproval shall be accompanied by a reasonably
specific statement of reasons therefor.
(b) Promptly after approval of the Plans (and execution of a work letter
if requested by Landlord) Landlord shall exercise all reasonable efforts
to complete the work ("Landlord's Work") specified therein necessary to
prepare the Premises for Tenant's occupancy, but Tenant shall have no
claim against Landlord for failure so to complete such Work except the
right to terminate this Lease in accordance with Section 4.2(d). Landlord
shall perform Landlord's Work in a good and workmanlike manner, in
accordance with applicable laws, codes and ordinances. To the extent that
the cost to Landlord of completing Landlord's Work (as reasonably
estimated by Landlord's contractor as of the time of approval of Tenant's
Plans and including without limitation all architectural and engineering
costs and fees) exceeds an amount ("Landlord's Contribution") equal to
$15.00 per square foot of Premises Rentable Area, Tenant shall pay such
excess to Landlord in cash within thirty (30) days after Landlord advises
Tenant of the amount of such excess. Landlord's Contribution is based on
the Original Scope of Work, as listed on Exhibit LW-2 hereto, as well as
additional HVAC and electrical work associated with the first floor
computer room. If at the time of approval of the Plans Tenant elects to
reduce the Original Scope of Work such that there is a resulting cost
savings so that the actual cost is less than Landlord's Contribution,
Tenant shall be allowed to spend an amount equal to not more than 50% of
the excess of Landlord's Contribution over the actual cost, provided that
amount shall only be used for work associated with HVAC and electrical
improvements to the first floor space. Tenant shall, if requested by
Landlord, execute a work letter confirming any excess costs prior to the
time Landlord shall be required to commence work. In the event that the
actual cost to Landlord of completing Tenant's Work is greater or less
than the estimate of Landlord's contractor, then Tenant shall pay, or
Landlord shall credit, such difference (as the case may be) within fifteen
(15) days after Landlord shall advise Tenant of such actual cost.
(c) The Premises shall be deemed ready for occupancy on the first day (the
"Substantial Completion Date") as of which (i) Landlord's Work has been
completed except for minor items of work (and, if applicable, adjustment
of equipment and fixtures) which can be completed after occupancy has been
taken without causing undue interference with Tenant's use of the Premises
(i.e. so-called "punch list" items), (ii) all conditions for a certificate
of use and occupancy have been satisfied and such a certificate has been
requested, and (iii) Tenant has been given notice thereof. Landlord shall
complete as soon as conditions permit all "punch list" items (and in any
event within sixty (60) days after substantial completion) and Tenant
shall afford Landlord access to the Premises for such purposes.
(d) If the Substantial Completion Date has not occurred by that day which
is ninetieth (90th) day after the date hereof (the "Construction
Deadline," as it may be extended pursuant to Section 4.4), Tenant shall
have the right to terminate this Lease by giving notice to Landlord, not
later than thirty (30) days after the Construction Deadline (as so
extended), of Tenant's desire so to do; and this Lease
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shall cease and come to an end without further liability or obligation on
the part of either party ninety (90) days after the giving of such notice,
unless, within such 90-day period, Landlord substantially completes
Landlord's Work; and such right of termination shall be Tenant's sole and
exclusive remedy at law or in equity for Landlord's failure so to complete
such Work within such time.
4.3 CONCLUSIVENESS OF LANDLORD'S PERFORMANCE. Except to the extent to which
----------------------------------------
Tenant shall have given Landlord notice, not later than the end of the
second full calendar month of the Term of this Lease next beginning after
the Commencement Date (which period shall be extended to the first
anniversary of the Commencement Date for defects that could not have been
discovered through normal use or testing or by careful visual inspection),
of respects in which Landlord has not performed Landlord's Work, Tenant
shall have no claim that Landlord has failed to perform any of Landlord's
Work. Except for Landlord's Work, the Premises are being leased in their
condition AS IS WITHOUT REPRESENTATION OR WARRANTY by Landlord. Tenant
acknowledges that it has inspected the Premises and common areas of the
Building and, except for Landlord's Work, have found the same
satisfactory.
4.4 TENANT'S DELAYS. (a) If a delay shall occur in the Substantial
---------------
Completion Date and such delay would not have occurred but for:
(i) any request by Tenant that Landlord delay in the commencement or
completion of Landlord's Work for any reason;
(ii) any change by Tenant in any of the Plans;
(iii) any other act or omission of Tenant or its officers, agents,
servants or contractors;
(iv) any special requirement of the Plans not in accordance with
Landlord's building standards; or
(v) any reasonably necessary displacement of any of Landlord's Work from
its place in Landlord's construction schedule resulting from any of
the causes for delay referred to in clauses (i), (ii), (iii) or (iv)
of this paragraph and the fitting of such Work back into such
schedule;
then Tenant shall, from time to time and within ten (10) days after demand
therefor, pay to Landlord for each day of such delay the amount of Basic
Rent, Escalation Charges and other charges that would have been payable
hereunder had the Tenant's obligation to pay Basic Rent (without regard to
any period of free rent) commenced immediately prior to such delay.
(b) If a delay in the Substantial Completion Date, or if any substantial
portion of such delay, is the result of Force Majeure, and such delay
would not have occurred but for a delay described in paragraph (a), such
delay shall be deemed added to the delay described in that paragraph.
(c) The delays referred to in paragraphs (a) and (b) are herein referred
to collectively and individually as "Tenant's Delay."
(d) If, as a result of Tenant's Delay(s), the Substantial Completion Date
is delayed in the aggregate for more than ninety (90) days, Landlord may
(but shall not be required to) at any time thereafter terminate this Lease
by giving written notice of such termination to Tenant and thereupon this
Lease shall terminate without further liability or obligation on the part
of either party, except that Tenant
10
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shall pay to Landlord the cost theretofore incurred by Landlord in
performing Landlord's Work, plus an amount equal to Landlord's
out-of-pocket expenses reasonably incurred in connection with this Lease,
including, without limitation, brokerage and legal fees, together with any
amount required to be paid pursuant to paragraph (a) through the effective
termination date.
(e) The Construction Deadline shall automatically be extended for the
period of any delays caused by Tenant's Delay(s) or Force Majeure.
ARTICLE 5
---------
USE OF PREMISES
---------------
5.1 PERMITTED USE. (a) Tenant agrees that the Premises shall be used and
-------------
occupied by Tenant only for Permitted Uses specifically excluding, without
limitation, use for medical, dental, governmental, utility company or
employment agency offices.
(b) Tenant agrees to conform to the following provisions during the Term
of this Lease:
(i) Tenant shall cause all freight to be delivered to or removed from
the Building and the Premises in accordance with reasonable rules and
regulations established by Landlord therefor;
(ii) Tenant will not place on the exterior of the Premises (including
both interior and exterior surfaces of doors and interior surfaces of
windows) or on any part of the Building outside the Premises, any
signs, symbol, advertisement or the like visible to public view
outside of the Premises. Landlord will not withhold consent for signs
or lettering on the entry doors to the Premises provided such signs
conform to building standards adopted by Landlord in its sole
discretion and Tenant has submitted to Landlord a plan or sketch in
reasonable detail (showing, without limitation, size, color, location,
materials and method of affixation) of the sign to be placed on such
entry doors. Landlord agrees, however, to maintain a tenant directory
in the lobby of the Building (and, in the case of multi-tenant floors,
in that floor's elevator lobby) in which will be placed Tenant's name
and the location of the Premises in the Building;
(iii) Tenant shall not perform any act or carry on any practice which
may injure the Premises, or any other part of the Building, or cause
any offensive odors or loud noise or constitute a nuisance or a menace
to any other tenant or tenants or other persons in the Building;
(iv) Tenant shall, in its use of the Premises, comply with the
requirements of all applicable governmental laws, rules and
regulations, including without limitation the Americans With
Disabilities Act of 1990 (provided that Tenant shall not be required
to make any structural changes to the Building or the Premises as a
result of such requirements, unless such requirements would
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not be applicable to the Premises or Tenant's use thereof but for
Tenant's particular business uses); and
(v) Tenant shall continuously throughout the Term of this Lease
occupy the Premises for Permitted Uses.
5.2 INSTALLATIONS AND ALTERATIONS BY TENANT. (a) Tenant shall make no
---------------------------------------
alterations, additions (including, for the purposes hereof, wall-to-wall
carpeting), or improvements in or to the Premises (including any
improvements other than Landlord's Work necessary for Tenant's initial
occupancy of the Premises) without Landlord's prior written consent, which
shall not be unreasonably withheld with respect to alterations, additions
or improvements that do not affect the structure of the Building or the
electrical, mechanical or plumbing systems therein. Any such alterations,
additions or improvements shall be in accordance with complete plans and
specifications meeting the requirements set forth in the rules and
regulations from time to time in effect and approved in advance by
Landlord. Such work shall (i) be performed in a good and workmanlike
manner and in compliance with all applicable laws, (ii) be made at
Tenant's sole cost and expense and at such times and in such a manner as
Landlord may from time to time reasonably designate, (iii) be made only in
accordance with the rules and regulations from time to time in effect with
respect thereto, and (iv) except to the extent specified by Landlord, and
except for Tenant's Removable Property, become part of the Premises and
the property of Landlord. If any alterations or improvements shall involve
the removal of fixtures, equipment or other property in the Premises which
are not Tenant's Removable Property, such fixtures, equipment or property
shall be promptly replaced by Tenant at its expense with new fixtures,
equipment or property of like utility and of at least equal quality.
(b) All articles of personal property and all business fixtures, machinery
and equipment and furniture, including without limitation the supplemental
HVAC and telecommunication and other equipment described on Exhibit F
---------
hereto, owned or installed by Tenant solely at its expense in the Premises
("Tenant's Removable Property") shall remain the property of Tenant and
may be removed by Tenant at any time prior to the expiration of this
Lease, provided that Tenant, at its expense, shall repair any damage to
the Building caused by such removal.
(c) Notice is hereby given that Landlord shall not be liable for any labor
or materials furnished or to be furnished to Tenant upon credit, and that
no mechanic's or other lien for any such labor or materials shall attach
to or affect the reversion or other estate or interest of Landlord in and
to the Premises. To the maximum extent permitted by law, before such time
as any contractor commences to perform work on behalf of Tenant, such
contractor (and any subcontractors) shall furnish a written statement
acknowledging the provisions set forth in the prior clause. Whenever and
as often as any mechanic's lien shall have been filed against the Property
based upon any act or interest of Tenant or of anyone claiming through
Tenant, Tenant shall forthwith take such action by bonding, deposit or
payment as will remove or satisfy the lien.
(d) In the course of any work being performed by Tenant (including without
limitation the "field installation" of any Tenant's Removable Property),
Tenant agrees to use labor compatible with that being employed by Landlord
for work in or to the Building or other buildings owned by Landlord or its
affiliates (which term, for purposes hereof, shall include, without
limitation, entities which control or are under common control with
Landlord, or which are controlled by Landlord or, if Landlord is a
partnership, by any partner of Landlord) and not to employ or permit the
use of any labor or
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otherwise take any action which might result in a labor dispute involving
personnel providing services in the Building pursuant to arrangements made
by Landlord.
ARTICLE 6
---------
ASSIGNMENT AND SUBLETTING
-------------------------
6.1 PROHIBITION. (a) Tenant covenants and agrees that whether voluntarily,
-----------
involuntarily, by operation of law or otherwise neither this Lease nor the
term and estate hereby granted, nor any interest herein or therein, will
be assigned, mortgaged, pledged, encumbered or otherwise transferred and
that neither the Premises nor any part thereof will be encumbered in any
manner by reason of any act or omission on the part of Tenant, or used or
occupied or permitted to be used or occupied, by anyone other than Tenant,
or for any use or purpose other than a Permitted Use, or be sublet (which
term, without limitation, shall include granting of concessions, licenses
and the like) in whole or in part, or be offered or advertised for
assignment or subletting, without in each and every instance obtaining the
prior written consent of Landlord (which consent Landlord may grant or
withhold in its sole discretion). Without limiting the foregoing, any
agreement pursuant to which: (x) Tenant is relieved from the obligation to
pay, or a third party agrees to pay on Tenant's behalf, all or any portion
of Basic Rent, Escalation Charges or other charges due under this Lease;
and/or (y) a third party undertakes or is granted the right to assign or
attempt to assign this Lease or sublet or attempt to sublet all or any
portion of the Premises, shall for all purposes hereof be deemed to be an
assignment of this Lease and subject to the provisions of this Article VI.
The provisions of this paragraph (a) shall apply to a transfer (by one or
more transfers) of a majority of the stock or partnership interests or
other evidences of ownership of Tenant as if such transfer were an
assignment of this Lease.
(b) The provisions of paragraph (a) shall not apply to either:
transactions with an entity into or with which Tenant is merged or
consolidated, or to which substantially all of Tenant's assets are
transferred; or transactions with any entity which controls or is
controlled by Tenant or is under common control with Tenant; provided that
in either such event:
(i) the successor to Tenant has a net worth computed in accordance
with generally accepted accounting principles consistently applied at
least equal to the greater of (1) the net worth of Tenant immediately
prior to such merger, consolidation or transfer, or (2) the net worth
of Tenant herein named on the date of this Lease,
(ii) proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least 10 days prior to the effective date of
any such transaction, and
(iii) the assignee agrees directly with Landlord, by written
instrument in form satisfactory to Landlord, to be bound by all the
obligations of Tenant hereunder including, without limitation, the
covenant against further assignment and subletting.
(c) If, in violation of this Article 6, this Lease be assigned, or if the
Premises or any part thereof be sublet or occupied by anyone other than
Tenant, Landlord may, at any time and from time to
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time, collect rent and other charges from the assignee, subtenant or
occupant, and apply the net amount collected to the rent and other charges
herein reserved, but no such assignment, subletting, occupancy, collection
or modification of any provisions of this Lease shall be deemed a waiver
of this covenant, or the acceptance of the assignee, subtenant or occupant
as a tenant or a release of Tenant from the further performance of
covenants on the part of Tenant to be performed hereunder. Any consent by
Landlord to a particular subletting or occupancy shall not in any way
diminish the prohibition stated in paragraph (a) of this Section 6.1 or
the continuing liability of the original named Tenant. No assignment or
subletting hereunder shall relieve Tenant from its obligations hereunder
and Tenant shall remain fully and primarily liable therefor. No such
assignment, subletting, or occupancy shall affect or be contrary to
Permitted Uses. Any consent by Landlord to a particular assignment,
subletting or occupancy shall be revocable, and any assignment, subletting
or occupancy shall be void ab initio, if the same shall fail to require
that such assignee, subtenant or occupant agree therein to be
independently bound by and upon all of the covenants, agreements, terms,
provisions and conditions set forth in this Lease on the part of Tenant to
be kept and performed.
ARTICLE 7
---------
RESPONSIBILITY FOR REPAIRS AND CONDITION OF PREMISES;
------------------------------------------------------
SERVICES TO BE FURNISHED BY LANDLORD
------------------------------------
7.1 LANDLORD REPAIRS. (a) Except as otherwise provided in this Lease,
----------------
Landlord agrees to keep in good order, condition and repair the roof,
public and common areas, exterior walls (including exterior glass) and
structure of the Building (including all HVAC, plumbing, mechanical and
electrical systems installed by Landlord, but specifically excluding any
supplemental heating, ventilation or air conditioning equipment or systems
installed at Tenant's written request or as a result of Tenant's
requirements in excess of building standard design criteria, it being
expressly agreed that Tenant shall be solely responsible for maintenance,
repair and replacement of any supplement HVAC unit installed in the first
floor computer room), all insofar as they affect the Premises, except that
Landlord shall in no event be responsible to Tenant for the repair of
glass in the Premises, the doors (or related glass and finish work)
leading to the Premises, or any condition in the Premises or the Building
caused by any act or neglect of Tenant, its invitees or contractors.
Landlord shall not be responsible to make any improvements or repairs to
the Building other than as expressly in this Section 7.1 provided, unless
expressly provided otherwise in this Lease.
(b) Landlord shall never be liable for any failure to make repairs which
Landlord has undertaken to make under the provisions of this Section 7.1
or elsewhere in this Lease, unless Tenant has given notice to Landlord of
the need to make such repairs, and Landlord has failed to commence to make
such repairs within a reasonable time after receipt of such notice, or
fails to proceed with reasonable diligence to complete such repairs.
(c) If Landlord shall be required to make any repairs or alterations to
the Premises to comply with any laws and requirements of public
authorities hereafter in effect, or with any directions, rules or
regulations of governmental agencies having or purporting to have
jurisdiction, and if the cost to Landlord of making such repairs or
alterations, together with the cost of other such repairs or alterations
theretofore required, would exceed an amount equal to six months' Basic
Rent in the aggregate, Landlord may (but shall not be required to) elect
to terminate this Lease by giving Tenant
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notice of its desire to do so, which notice shall set forth a date not less
than ninety (90) days from the giving of such notice on which this Lease
shall terminate with the same force and effect as if such date were the
date originally set forth herein as the expiration hereof. Tenant may,
however, void Landlord's election to so terminate this Lease by giving
Landlord notice, within fifteen days after the date of Landlord's notice to
Tenant, to the effect that Tenant shall, at Tenant's expense, promptly and
diligently cause all such repairs or alterations to be performed in the
Premises, and Tenant shall hold Landlord harmless from and against any and
all costs, expenses, penalties and/or liabilities (including without
limitation reasonable legal fees and costs) in connection therewith.
7.2 TENANT'S AGREEMENT. (a) Tenant will keep reasonably neat and clean and
------------------
maintain in good order, condition and repair the Premises and every part
thereof, excepting only those repairs for which Landlord is responsible
under the terms of this Lease, reasonable wear and tear of the Premises,
and damage by fire or other casualty or as a consequence of the exercise
of the power of eminent domain; and shall surrender the Premises, at the
end of the Term, in such condition. Without limitation, Tenant shall
continually during the Term of this Lease maintain the Premises in
accordance with all laws, codes and ordinances from time to time in effect
and all directions, rules and regulations of the proper officers of
governmental agencies having jurisdiction, and the standards recommended
by the Boston Board of Fire Underwriters, and shall, at Tenant's expense,
obtain all permits, licenses and the like required by applicable law. To
the extent that the Premises constitute a "Place of Public Accommodation"
within the meaning of the Americans With Disabilities Act of 1990, Tenant
shall be responsible, subject to the requirements of Section 5.2, for
making the Premises comply with such Act. Notwithstanding the foregoing or
the provisions of Article XII, to the maximum extent this provision may be
enforceable according to law, Tenant shall be responsible for the cost of
repairs which may be made necessary by reason of damage to the Building
caused by any act or neglect of Tenant, or its contractors or invitees
(including any damage by fire or other casualty arising therefrom) and, if
the premium or rates payable with respect to any policy or policies of
insurance purchased by Landlord or Agent with respect to the Property
increases as a result of payment by the insurer of any claim arising from
the any act or neglect of Tenant, or its contractors or invitees, Tenant
shall be pay such increase, from time to time, within fifteen (15) days
after demand therefor by Landlord, as an additional charge.
(b) If repairs are required to be made by Tenant pursuant to the terms
hereof, Landlord may demand that Tenant make the same forthwith, and if
Tenant refuses or neglects to commence such repairs and complete the same
with reasonable dispatch, after such demand (except in the case of an
emergency, in which event Landlord may make such repairs immediately),
Landlord may (but shall not be required to do so) make or cause such
repairs to be made (the provisions of Section 14.18 being applicable to
the costs thereof), and shall not be responsible to Tenant for any loss or
damage whatsoever that may accrue to Tenant's stock or business by reason
thereof.
7.3 FLOOR LOAD - HEAVY MACHINERY. (a) Tenant shall not place a load upon any
----------------------------
floor in the Premises exceeding the floor load per square foot of area
which such floor was designed to carry and which is allowed by law.
Landlord reserves the right to prescribe the weight and position of all
heavy business machines and mechanical equipment, including safes, which
shall be placed so as to distribute the weight. Business machines and
mechanical equipment shall be placed and maintained by Tenant at Tenant's
expense in settings sufficient, in Landlord's reasonable judgment, to
absorb and prevent vibration, noise and annoyance. Tenant shall not move
any safe, heavy machinery, heavy equipment, freight, bulky matter or
fixtures into or out of the Building without Landlord's prior consent,
which consent shall not be unreasonably withheld, but which may include a
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requirement to provide insurance, naming Landlord as an insured, in such
amounts as Landlord may deem reasonable.
(b) If any such safe, machinery, equipment, freight, bulky matter or
fixtures requires special handling, Tenant agrees to employ only persons
holding a Master Rigger's License to do such work, and that all work in
connection therewith shall comply with applicable laws and regulations.
Any such moving shall be at the sole risk and hazard of Tenant, and Tenant
will exonerate, indemnify and save Landlord harmless against and from any
liability, loss, injury, claim or suit resulting directly or indirectly
from such moving.
7.4 BUILDING SERVICES. (a) Landlord shall, on Business Days from 8:00 a.m. to
-----------------
6:00 p.m. and on Saturdays from 8:00 a.m. to 1:00 p.m., furnish heating
and cooling as normal seasonal changes may require to provide reasonably
comfortable space temperature and ventilation for occupants of the
Premises under normal business operation at an occupancy of not more than
one person per 150 square feet of Premises Rentable Area and an electrical
load not exceeding 3.0 watts per square foot of Premises Rentable Area.
Landlord has advised Tenant that the Building heating needs are served by
a gas-fired Hydrotherm boiler, with hot water fin-tube radiation, and that
cooling needs are served by three McQuay variable rooftop units, which
supply VAV boxes serving the Premises. Landlord reserves the right to
modify the Building system from time to time, provided that the service to
the Premises, as hereinabove stated, is not diminished. If Tenant shall
require air conditioning, heating or ventilation outside the hours and
days above specified, Landlord may furnish such service and Tenant shall
pay therefor such charges as may from time to time be in effect (which
shall be computed using Landlord's actual cost plus a reasonable
administrative charge). Landlord and Tenant acknowledge that, as part of
Tenant's initial improvements in the Premises, Tenant is installing, at
its cost, a Liebert cooling system to provide supplemental cooling in
Tenant's computer room, which system shall constitute a part of Tenant's
Removable Property as described on Exhibit F. Tenant shall be solely
responsible for the repair and maintenance of such system and equipment,
and the cost of electricity therefor shall be paid by Tenant in accordance
with a separate check meter to be installed therefor. Without limiting the
foregoing, in the event Tenant introduces into the Premises personnel or
equipment which overloads the capacity of the Building system or in any
other way interferes with the system's ability to perform adequately its
proper functions, supplementary systems may, if and as needed, at
Landlord's option, be provided by Landlord, at Tenant's expense.
(b) Landlord shall also provide:
(i) Passenger elevator service from the existing passenger elevator
system in common with Landlord and other tenants in the Building.
(ii) Warm water for lavatory purposes and cold water (at temperatures
supplied by the city in which the Property is located) for drinking,
lavatory and toilet purposes. If Tenant uses water for any purpose
other than for ordinary lavatory and drinking purposes, Landlord may
assess a reasonable charge for the additional water so used, or
install a water meter and thereby measure Tenant's water consumption
for all purposes. In the latter event, Tenant shall pay the cost of
the meter and the cost of installation thereof and shall keep such
meter and installation equipment in good working order and repair.
Tenant agrees to pay for water consumed, as shown on such meter,
together with the sewer charge based on such meter charges, as and
when
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bills are rendered, and in default in making such payment Landlord may
pay such charges and collect the same from Tenant as an additional
charge.
(iii) Cleaning and janitorial services to the Premises, provided the
same are kept in order by Tenant, substantially in accordance with the
cleaning standards from time to time in effect for the Building.
(iv) Free access to the Premises on Business Days from 8:00 a.m. to
6:00 p.m., and at all other times subject to security precautions from
time to time in effect, and subject always to restrictions based on
emergency conditions.
(c) Landlord or Agent may from time to time, but shall not be obligated
to, provide one or more uniformed attendants in or about the lobby of the
Building. Unless Landlord expressly agrees otherwise in writing, such
attendant(s) shall serve functions such as assisting visitors and invitees
of tenants and others in the Building, monitoring fire control and alarm
equipment, and summoning emergency services to the Building as and when
needed. Tenant expressly acknowledges and agrees that: (i) such attendants
shall not serve as police officers, and will be unarmed, and will not be
trained in situations involving potentially physical confrontation; and
(ii) if provided, such attendants will be provided solely as an amenity to
tenants of the Building for the sole purposes set forth above, and not for
the purpose of securing any individual tenant premises or guaranteeing the
physical safety of Tenant's Premises or of Tenant's employees, agents,
contractors or invitees. If and to the extent that Tenant desires to
provide security for the Premises or for such persons or their property,
Tenant shall be responsible for so doing, after having first consulted
with Landlord and after obtaining Landlord's consent, which shall not be
unreasonably withheld. Landlord expressly disclaims any and all
responsibility and/or liability for the physical safety of Tenant's
property, and for that of Tenant's employees, agents, contractors and
invitees, and, without in any way limiting the operation of Article X
hereof, Tenant, for itself and its agents, contractors, invitees and
employees, hereby expressly waives any claim, action, cause of action or
other right which may accrue or arise as a result of any damage or injury
to the person or property of Tenant or any such agent, invitee, contractor
or employee. Tenant agrees that, as between Landlord and Tenant, it is
Tenant's responsibility to advise its employees, agents, contractors and
invitees as to necessary and appropriate safety precautions.
7.5 ELECTRICITY. (a) Landlord shall supply electricity to the Premises to
-----------
meet a demand requirement not to exceed 3.0 watts per square foot of
Premises Rentable Area for standard single-phase 120 volt alternating
current and Tenant agrees in its use of the Premises (i) not to exceed
such requirements and (ii) that its total connected lighting load will not
exceed the maximum from time to time permitted under applicable
governmental regulations. If, without in any way derogating from the
foregoing limitation, Tenant shall require electricity in excess of the
requirements set forth above, Tenant shall notify Landlord and Landlord
may (without being obligated to do so) supply such additional service or
equipment at Tenant's sole cost and expense. Landlord shall purchase and
install, at Tenant's expense (which shall be computed using Landlord's
actual cost plus a reasonable administrative charge), all lamps, tubes,
bulbs, starters and ballasts. In order to assure that the foregoing
requirements are not exceeded and to avert possible adverse affect on the
Building's electric system, Tenant shall not, without Landlord's prior
consent, connect any fixtures, appliances or equipment to the Building's
electric distribution system other than personal computers, facsimile
transceivers, typewriters, pencil sharpeners, adding machines,
photocopiers, word and data processors, clocks, radios, hand-held or desk
top calculators, dictaphones, desktop computers and other similar small
electrical equipment normally found in business offices and not drawing
more
17
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than 15 amps at 120/208 volts. Landlord has advised Tenant that, as of the
date hereof, the Building has electrical equipment and supply providing
1,200 amp, 277/480 volt, 3-phase, 4-wire service, with the main switch in
the second floor electric closet, and a tenant buss duct in electric
closets on each floor. Landlord reserves the right to modify the Building
system from time to time, provided that the service to the Premises, as
hereinabove stated, is not diminished.
(b) From time to time during the Term of this Lease, Landlord shall have
the right to have an independent electrical consultant selected by
Landlord make a survey of Tenant's electric usage, the result of which
survey shall be conclusive and binding upon Landlord and Tenant. In the
event that such survey shows that Tenant has exceeded the requirements set
forth in paragraph (a), in addition to any other rights Landlord may have
hereunder, Tenant shall, upon demand, reimburse Landlord for the actual
cost of such survey (plus a reasonable administrative fee) and the cost,
as determined by such consultant, of electricity usage in excess of such
requirements as an additional charge.
(c) Landlord shall have the right to either (A) discontinue furnishing
electricity to the Premises at any time upon not less than thirty (30)
days' notice to Tenant provided Landlord shall, at Landlord's expense
(unless such action results from Tenant's having exceeded the requirements
in paragraph (a) above), separately meter the Premises directly to the
applicable public utility company, or (B) install at Landlord's expense
(unless such action results from Tenant's having exceeded the requirements
in paragraph (a) above), a so called "check meter" which measures the
actual electric usage in the Premises. If Landlord exercises such right
under clause (A), from and after the effective date of such
discontinuance, Landlord shall not be obligated to furnish electricity to
the Premises. If Landlord exercises such right in clause (B) from and
after the date of installation of such check meter, tenant's electric cost
for the Premises shall be determined periodically by Landlord (based on
such meter readings), using the rate (per kilowatt/hour) paid by Landlord
for electricity to other portions of the Building. In either case:
(i) in the computation of Operating Expenses, only the cost of
electricity supplied to those portions of the Building other than
those leased or intended to be leased to tenants for their exclusive
use and occupancy, i.e., only those areas which are so-called common
areas, shall be included;
(ii) Tenant shall no longer be required to pay the Estimated
Electricity Payment, and Base Operating Expenses shall be reduced by
$0.95 per square foot of Building Rentable Area; and
(iii) Landlord shall permit Landlord's existing wires, risers,
conduits and other electrical equipment of Landlord to be used to
supply electricity to Tenant provided that the limits set forth in
paragraph (a) shall not be exceeded, and Tenant shall be responsible
for payment of all electricity charges directly to such utility.
(d) Tenant shall not at any time contract to purchase electricity from any
provider (an "ASP") other than the service provider from whom Landlord
from time to time shall purchase electricity for the common areas of the
Building, or give any such ASP permission to install lines or other
equipment, without in each case obtaining the Landlord's prior written
consent. Such consent shall not be unreasonably withheld or delayed,
provided that it shall not be unreasonable in any case for Landlord to
require: (i) that Landlord shall not be required to incur any expense in
connection with any aspect of the service to be provided by Tenant's ASP,
including without limitation, the cost of installation, service and/or
removal of equipment, fixtures or materials associated therewith; (ii)
that prior to the commencement of any work in the Building by the ASP,
Landlord shall have been
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<PAGE>
furnished with information (acceptable to Landlord in its sole discretion)
as to the ASP's financial condition, business reputation and insurance
coverage; (iii) that Landlord shall have determined that there is
sufficient space in the Premises and in any common electrical closets (for
which Landlord may charge a reasonable fee) or other facilities for the ASP
to install, maintain and repair its equipment, and that the installation,
maintenance and repair of such equipment shall not have any detrimental
effect on the Building, the Property or on the property or facilities of
any other tenant or occupant of any part thereof; (iv) that Tenant and/or
the ASP shall have obtained all necessary permits, licenses and approvals;
(v) that Landlord shall have the right to have access to any equipment
placed in the Building for purposes of inspection and ensuring compliance
herewith; and (vi) that Tenant's agreement with the ASP shall not result in
any adverse financial impact on Landlord or the other tenants in the
Building. Tenant shall be solely responsible for any and all costs and
expenses incurred in connection with the installation, use, maintenance,
repair and removal of such equipment and shall indemnify, defend and hold
Landlord harmless from and against any loss, cost, damage or expense
suffered by Landlord as a result of Tenant's arrangements with its ASP
(except to the extent arising from Landlord's grossly negligent acts or
omissions). Landlord shall have no liability for the service to be provided
by any ASP, including without limitation any loss or interruption of
service or any damages to Tenant or its business arising therefrom.
ARTICLE 8
---------
REAL ESTATE TAXES
-----------------
8.1 PAYMENTS ON ACCOUNT OF REAL ESTATE TAXES. (a) For the purposes of this
----------------------------------------
Article, the term "Tax Year" shall mean the twelve-month period commencing
on the July 1 immediately preceding the Commencement Date and each twelve-
month period thereafter commencing during the Term of this Lease; and the
term "Taxes" shall mean real estate taxes assessed with respect to (i) the
Property for any Tax Year.
(b) In the event that for any reason, Taxes during any Tax Year shall
exceed Base Taxes, Tenant shall pay to Landlord, as an Escalation Charge,
an amount equal to (i) the excess of Taxes over Base Taxes for such Tax
Year, multiplied by (ii) the Escalation Factor, such amount to be
apportioned for any portion of a Tax Year in which the Commencement Date
falls or the Term of this Lease ends.
(c) Estimated payments by Tenant on account of Taxes shall be made on the
first day of each and every calendar month during the Term of this Lease,
in the fashion herein provided for the payment of Basic Rent. The monthly
amount so to be paid to Landlord shall be sufficient to provide Landlord
by the time real estate tax payments are due with a sum equal to Tenant's
required payments, as estimated by Landlord from time to time, on account
of Taxes for the then current Tax Year. Promptly after receipt by
Landlord of bills for such Taxes, Landlord shall advise Tenant of the
amount thereof and the computation of Tenant's payment on account thereof.
If estimated payments theretofore made by Tenant for the Tax Year covered
by such bills exceed the required payments on account thereof for such
Year, Landlord shall credit the amount of overpayment against subsequent
obligations of Tenant on account of Taxes (or promptly refund such
overpayment if the Term of this Lease has ended and Tenant has no further
obligation to Landlord); but if the required payments on account thereof
for such Year are greater than estimated payments theretofore made on
account
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<PAGE>
thereof for such Year, Tenant shall make payment to Landlord within 30 days
after being so advised by Landlord.
8.2 ABATEMENT. If Landlord shall receive any tax refund or reimbursement of
---------
Taxes or sum in lieu thereof with respect to any Tax Year, then out of any
balance remaining thereof after deducting Landlord's expenses reasonably
incurred in obtaining such refund, Landlord shall promptly pay to Tenant,
provided there does not then exist a Default of Tenant, an amount equal to
such refund or reimbursement or equivalent sum in lieu thereof (exclusive
of any interest) multiplied by the Escalation Factor; provided, that in no
event, shall Tenant be entitled to receive more than the payments made by
Tenant on account of Taxes for such Tax Year pursuant to paragraph (b) of
Section 8.1 or to receive any payments or abatement of Basic Rent if Taxes
for any year are less than Base Taxes or Base Taxes are abated.
8.3 ALTERNATE TAXES. (a) If some method or type of taxation shall replace
---------------
the current method of assessment of real estate taxes in whole or part, or
the type thereof, or if additional types of taxes are imposed upon the
Property or Landlord, Tenant agrees that such taxes or other charges shall
be deemed to be, and shall be, Taxes hereunder and Tenant shall pay an
equitable share of the same as an additional charge computed in a fashion
consistent with the method of computation herein provided, to the end that
Tenant's share thereof shall be, to the maximum extent practicable,
comparable to that which Tenant would bear under the foregoing provisions.
(b) If a tax (other than a Federal or State net income tax) is assessed on
account of the rents or other charges payable by Tenant to Landlord under
this Lease, Tenant agrees to pay the same as an additional charge within
thirty (30) days after billing therefor, unless applicable law prohibits
the payment of such tax by Tenant.
ARTICLE 9
---------
OPERATING AND UTILITY EXPENSES
------------------------------
9.1 DEFINITIONS. For the purposes of this Article, the following terms shall
-----------
have the following respective meanings:
Operating Year: Each calendar year in which any part of the Term of this
Lease shall fall.
Operating Expenses: aggregate costs or expenses reasonably incurred by
Landlord with respect to the operation, administration, cleaning, repair,
maintenance and management of the Property all as set forth in Exhibit C
annexed hereto, provided that, if during any portion of the Operating Year
for which Operating Expenses are being computed, less than all of Building
Rentable Area was occupied by tenants or if Landlord is not supplying all)
tenants with the services being supplied hereunder, actual Operating
Expenses incurred shall be reasonably extrapolated by Landlord on an item
by item basis to the estimated Operating Expenses that would have been
incurred if the Building were fully occupied for such Year and such
services were being supplied to all tenants, and such extrapolated amount
shall, for the purposes hereof, be deemed to be the Operating Expenses for
such Year. Without limitation of the foregoing, Tenant acknowledges that
the Building is a portion of the Park, and that under certain
circumstances, Landlord will have services performed or materials supplied
to one or more buildings or common areas in the Park. Landlord shall
allocate the cost of such services
20
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and materials among one, two or all three buildings in the Park, as
Landlord shall deem reasonably appropriate (Landlord's allocation being
conclusive and binding) and, to the extent that any such cost would be
included in Operating Expenses if supplied only to the Building, the
Building's reasonable share of any such costs provided to the Park shall
likewise be included in Operating Expenses.
9.2 TENANT'S PAYMENTS. (a) In the event that for any Operating Year
-----------------
Operating Expenses shall exceed Base Operating Expenses, Tenant shall pay
to Landlord, as an Escalation Charge, an amount equal to (i) such excess
Operating Expenses multiplied by (ii) the Escalation Factor, such amount
to be apportioned for any portion of an Operating Year in which the
Commencement Date falls or the Term of this Lease ends.
(b) Estimated payments by Tenant on account of Operating Expenses shall be
made on the first day of each and every calendar month during the Term of
this Lease, in the fashion herein provided for the payment of Basic Rent.
The monthly amount so to be paid to Landlord shall be sufficient to
provide Landlord by the end of each Operating Year a sum equal to Tenant's
required payments, as estimated by Landlord from time to time during each
Operating Year, on account of Operating Expenses for such Operating Year.
After the end of each Operating Year, Landlord shall submit to Tenant a
reasonably detailed accounting of Operating Expenses for such Year, and
Landlord shall certify to the accuracy thereof. If estimated payments
theretofore made for such Year by Tenant exceed Tenant's required payment
on account thereof for such Year, according to such statement, Landlord
shall credit the amount of overpayment against subsequent obligations of
Tenant with respect to Operating Expenses (or promptly refund such
overpayment if the Term of this Lease has ended and Tenant has no further
obligation to Landlord); but, if the required payments on account thereof
for such Year are greater than the estimated payments (if any) theretofore
made on account thereof for such Year, Tenant shall make payment to
Landlord within 30 days after being so advised by Landlord. Landlord
shall have the same rights and remedies for the nonpayment by Tenant of
any payments due on account of Operating Expenses as Landlord has
hereunder for the failure of Tenant to pay Basic Rent.
ARTICLE 10
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INDEMNITY AND PUBLIC LIABILITY INSURANCE
----------------------------------------
10.1 TENANT'S INDEMNITY. (a) Except to the extent that such claims arise from
------------------
the negligent or willful and wrongful acts or omissions of Landlord or its
agents or employees, Tenant agrees to indemnify and save harmless Landlord
from and against all claims, loss, cost, damage or expense of whatever
nature arising: (i) from any accident, injury or damage whatsoever to any
person, or to the property of any person, occurring in or about the
Premises; (ii) from any accident, injury or damage occurring outside of
the Premises but on the Property where such accident, damage or injury
results or is claimed to have resulted from an act or omission on the part
of Tenant or Tenant's agents or employees or independent contractors; or
(iii) in connection with the conduct or management of the Premises or of
any business therein, or any thing or work whatsoever done, or any
condition created (other than by Landlord) in or about the Premises; and,
in any case, occurring after the date of this Lease until the end of the
Term of this Lease and thereafter so long as Tenant is in occupancy of any
part of the Premises. This indemnity and hold harmless agreement shall
include indemnity against all losses, costs, damages, expenses and
liabilities incurred in or in connection with any such claim
21
<PAGE>
or proceeding brought thereon, and the defense thereof, including, without
limitation, reasonable attorneys' fees and costs at both the trial and
appellate levels.
(b) Landlord agrees to indemnify and save harmless Tenant from and against
all claims, loss, cost, damage or expense of whatever nature arising from
any accident, injury or damage, to the extent that such accident, damage
or injury results from an act or omission on the part of Landlord or
Landlord's agents or employees and occurring after the date of this Lease
until the end of the Term of this Lease. This indemnity and hold harmless
agreement shall include indemnity against all losses, costs, damages,
expenses and liabilities incurred in or in connection with any such claim
or proceeding brought thereon, and the defense thereof, including, without
limitation, reasonable attorneys' fees and costs at both the trial and
appellate levels.
10.2 PUBLIC LIABILITY INSURANCE. Tenant agrees to maintain in full force from
--------------------------
the date upon which Tenant first enters the Premises for any reason,
throughout the Term of this Lease, and thereafter so long as Tenant is in
occupancy of any part of the Premises, a policy of commercial general
liability and property damage insurance (including broad form contractual
liability, independent contractor's hazard and completed operations
coverage) under which Tenant is named as an insured and Landlord, Agent
(and such other persons as are in privity of estate with Landlord as may
be set out in a notice from time to time) are named as additional
insureds, and under which the insurer agrees to indemnify and hold
Landlord, Agent and those in privity of estate with Landlord, harmless
from and against all cost, expense and/or liability arising out of or
based upon any and all claims, accidents, injuries and damages set forth
in Section 10.1. Each such policy shall be non-cancelable and non-
amendable with respect to Landlord, Agent and Landlord's said designees
without thirty (30) days' prior notice, shall be written on an
"occurrence" basis, and shall be in at least the amounts of the Initial
Public Liability Insurance specified in Section 1.3 or such greater
amounts as Landlord shall from time to time (but not more often than
annually) reasonably request, and a duplicate original thereof shall be
delivered to Landlord.
10.3 TENANT'S RISK. Tenant agrees to use and occupy the Premises and to use
-------------
such other portions of the Property as Tenant is herein given the right to
use at Tenant's own risk. Except to the extent that such claims arise from
the negligent or willful and wrongful acts or omissions of Landlord or its
agents or employees, neither Landlord nor Landlord's insurers shall have
any responsibility or liability for any loss of or damage to Tenant's
Removable Property. Tenant shall carry "all-risk" property insurance on a
"replacement cost" basis, insuring Tenant's Removable Property and any
alterations, additions or improvements installed by Tenant pursuant to
Section 5.2, to the extent that the same have not become the property of
Landlord, and other so-called improvements and betterments. The provisions
of this Section 10.3 shall be applicable from and after the execution of
this Lease and until the end of the Term of this Lease, and during such
further period as Tenant may use or be in occupancy of any part of the
Premises or of the Building.
10.4 INJURY CAUSED BY THIRD PARTIES. Except to the extent that such claims
------------------------------
arise from the negligent or willful and wrongful acts or omissions of
Landlord or its agents or employees, Tenant agrees that Landlord shall not
be responsible or liable to Tenant, or to those claiming by, through or
under Tenant, for any loss or damage that may be occasioned by or through
the acts or omissions of persons occupying adjoining premises or any part
of the premises adjacent to or connecting with the Premises or any part of
the Property or otherwise.
22
<PAGE>
ARTICLE 11
----------
LANDLORD'S ACCESS TO PREMISES
-----------------------------
11.1 LANDLORD'S RIGHTS. Landlord and Agent shall have the right to enter the
-----------------
Premises at all reasonable hours, and upon reasonable advance notice
(which need not be in writing, and which need not be given at all in the
event of any emergency) for the purpose of inspecting or making repairs to
the same, and Landlord and Agent shall also have the right to make access
available at all reasonable hours to prospective or existing mortgagees,
purchasers or tenants of any part of the Property.
ARTICLE 12
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FIRE, EMINENT DOMAIN, ETC.
--------------------------
12.1 ABATEMENT OF RENT. If the Premises shall be damaged by fire or casualty,
-----------------
Basic Rent and Escalation Charges payable by Tenant shall abate
proportionately for the period in which, by reason of such damage, there
is substantial interference with Tenant's use of the Premises, having
regard for the extent to which Tenant may be required to discontinue
Tenant's use of all or a portion of the Premises, but such abatement or
reduction shall end if and when Landlord shall have substantially restored
the Premises (excluding any alterations, additions or improvements made by
Tenant pursuant to Section 5.2) to the condition in which they were prior
to such damage. If the Premises shall be affected by any exercise of the
power of eminent domain, Basic Rent and Escalation Charges payable by
Tenant shall be justly and equitably abated and reduced according to the
nature and extent of the loss of use thereof suffered by Tenant. In no
event shall Landlord have any liability for damages to Tenant for
inconvenience, annoyance, or interruption of business arising from such
fire, casualty or eminent domain.
12.2 LANDLORD'S RIGHT OF TERMINATION. If the Premises or the Building are
-------------------------------
substantially damaged by fire or casualty (the term "substantially
damaged" meaning damage of such a character that the same cannot, in
ordinary course, reasonably be expected to be repaired within sixty (60)
days from the time that repair work would commence), or if any part of the
Building is taken by any exercise of the right of eminent domain, then
Landlord shall have the right to terminate this Lease (even if Landlord's
entire interest in the Premises may have been divested) by giving notice
of Landlord's election so to do within 90 days after the occurrence of
such casualty or the effective date of such taking, whereupon 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.
12.3 RESTORATION. If this Lease shall not be terminated pursuant to Section
-----------
12.2, Landlord shall thereafter use due diligence to restore the Premises
(excluding any alterations, additions or improvements made by Tenant
pursuant to Section 5.2) to their pre-existing condition, provided that
Landlord's obligation shall be limited to the amount of insurance proceeds
available therefor. If, for any reason, such restoration shall not be
substantially completed within four months after the expiration of the 90-
day period referred to in Section 12.2 (which four-month period may be
extended for such periods of time as Landlord is prevented from proceeding
with or completing such restoration for any cause beyond Landlord's
reasonable control, but in no event for more than an
23
<PAGE>
additional two months), Tenant shall have the right to terminate this
Lease by giving notice to Landlord thereof within thirty (30) days after
the expiration of such period (as so extended) provided that such
restoration is not completed within such period. This Lease shall cease
and come to an end without further liability or obligation on the part of
either party thirty (30) days after such giving of notice by Tenant
unless, within such 30-day period, Landlord substantially completes such
restoration. Such right of termination shall be Tenant's sole and
exclusive remedy at law or in equity for Landlord's failure so to complete
such restoration, and time shall be of the essence with respect thereto.
12.4 AWARD. Landlord shall have and hereby reserves and excepts, and Tenant
-----
hereby grants and assigns to Landlord, all rights to recover for damages
to the Property and the leasehold interest hereby created, and to
compensation accrued or hereafter to accrue by reason of such taking,
damage or destruction, and by way of confirming the foregoing, Tenant
hereby grants and assigns, and covenants with Landlord to grant and assign
to Landlord, all rights to such damages or compensation, and covenants to
deliver such further assignments and assurances thereof as Landlord may
from time to time request, and Tenant hereby irrevocably appoints Landlord
its attorney-in-fact to execute and deliver in Tenant's name all such
assignments and assurances. Nothing contained herein shall be construed
to prevent Tenant from prosecuting in any condemnation proceedings a claim
for the value of any of Tenant's Removable Property installed in the
Premises by Tenant at Tenant's expense and for relocation expenses,
provided that such action shall not affect the amount of compensation
otherwise recoverable by Landlord from the taking authority.
12.5 LANDLORD'S INSURANCE. Landlord agrees to maintain in full force and
--------------------
effect, during the Term of this Lease, property damage insurance with such
deductibles and in such amounts as may from time to time be carried by
reasonably prudent owners of similar buildings in the area in which the
Property is located, provided that in no event shall Landlord be required
to carry other than fire and extended coverage insurance or insurance in
amounts greater than 80% of the actual insurable cash value of the
Building (excluding footings and foundations). Landlord may satisfy such
insurance requirements by including the Property in a so-called "blanket"
insurance policy, provided that the amount of coverage allocated to the
Property shall fulfill the foregoing requirements.
ARTICLE 13
----------
DEFAULT
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13.1 TENANT'S DEFAULT. (a) If at any time subsequent to the date of this Lease
----------------
any one or more of the following events (herein referred to as a "Default
of Tenant") shall happen:
(i) Tenant shall fail to pay the Basic Rent, Escalation Charges or
additional charges hereunder when due and such failure shall continue
for three (3) full Business Days after notice to Tenant from Landlord;
or
(ii) 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
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
24
<PAGE>
period, Tenant shall fail to commence promptly to remedy the same and
to prosecute such remedy to completion with diligence and continuity;
or
(iii) Tenant's leasehold interest in the Premises shall be taken on
execution or by other process of law directed against Tenant; or
(iv) Tenant shall make an assignment for the benefit of creditors or
shall be adjudicated 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 (other than the Bankruptcy Code, as
hereinafter defined), 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
(v) An Event of Bankruptcy (as hereinafter defined) shall occur with
respect to Tenant; or
(vi) A petition shall be filed against Tenant under any law (other
than the Bankruptcy Code) 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 sixty (60) days (whether or not consecutive), or if any trustee,
conservator, receiver or liquidator of Tenant or of all or any
substantial part of its properties shall be appointed without the
consent or acquiescence of Tenant and such appointment shall remain
unvacated or unstayed for an aggregate of sixty (60) days (whether or
not consecutive); or
(vii) If: (x) Tenant shall fail to pay the Basic Rent, Escalation
Charges, additional charges or other charges hereunder when due or
shall fail to perform or observe any other covenant herein contained
on Tenant's part to be performed or observed and Tenant shall cure any
such failure within the applicable grace period set forth in clauses
(i) or (ii) above; or (y) a Default of Tenant of the kind set forth in
clauses (i) or (ii) above shall occur and Landlord shall, in its sole
discretion, permit Tenant to cure such Default after the applicable
grace period has expired; and a similar failure or Default shall occur
more than twice within the next 365 days (whether or not such similar
failure is cured within the applicable grace period);
then in any such case Landlord may terminate this Lease by notice to
Tenant, specifying a date not less than five (5) 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 Term
of this Lease, and Tenant will then quit and surrender the Premises to
Landlord, but Tenant shall remain liable as hereinafter provided.
(b) For purposes of clause (a)(v) above, an "Event of Bankruptcy" means
the filing of a voluntary petition by Tenant, or the entry of an order for
relief against Tenant, under Chapter 7, 11, or 13 of
25
<PAGE>
the Bankruptcy Code, and the term "Bankruptcy Code" means 11 U.S.C (S)101,
et seq.. If an Event of Bankruptcy occurs, then the trustee of Tenant's
bankruptcy estate or Tenant as debtor-in-possession may (subject to final
approval of the court) assume this Lease, and may subsequently assign it,
only if it does the following within 60 days after the date of the filing
of the voluntary petition, the entry of the order for relief (or such
additional time as a court of competent jurisdiction may grant, for cause,
upon a motion made within the original 60-day period):
(i) file a motion to assume the Lease with the appropriate court;
(ii) satisfy all of the following conditions, which Landlord and
Tenant acknowledge to be commercially reasonable:
(A) cure all Defaults of Tenant under this Lease or provide
Landlord with Adequate Assurance (as defined below) that it
will (x) cure all monetary Defaults of Tenant hereunder
within 10 days from the date of the assumption; and (y) cure
all nonmonetary Defaults of Tenant hereunder within 30 days
from the date of the assumption;
(B) compensate Landlord and any other person or entity, or
provide Landlord with Adequate Assurance that within 10 days
after the date of the assumption, it will compensate
Landlord and such other person or entity, for any pecuniary
loss that Landlord and such other person or entity incurred
as a result of any Default of Tenant, the trustee, or the
debtor-in-possession;
(C) provide Landlord with Adequate Assurance of Future
Performance (as defined below) of all of Tenant's
obligations under this Lease; and
(D) deliver to Landlord a written statement that the conditions
herein have been satisfied.
(c) For purposes only of the foregoing paragraph (b), and in addition to
any other requirements under the Bankruptcy Code, any future federal
bankruptcy law and applicable case law, "Adequate Assurance" means at
least meeting the following conditions, which Landlord and Tenant
acknowledge to be commercially reasonable:
(i) entering an order segregating sufficient cash to pay Landlord and
any other person or entity under paragraph (b) above, and
(ii) granting to Landlord a valid first lien and security interest (in
form acceptable to Landlord) in all property comprising the
Tenant's "property of the estate," as that term is defined in
Section 541 of the Bankruptcy Code, which lien and security
interest secures the trustee's or debtor-in-possession's
obligation to cure the monetary and nonmonetary defaults under
the Lease within the periods set forth in paragraph (b) above;
(d) For purposes only of paragraph (b), and in addition to any other
requirements under the Bankruptcy Code, any future federal bankruptcy law
and applicable case law, "Adequate Assurance of Future Performance" means
at least meeting the following conditions, which Landlord and Tenant
acknowledge to be commercially reasonable:
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(i) the trustee or debtor-in-possession depositing with Landlord, as
security for the timely payment of rent and other monetary
obligations, an amount equal to the sum of two (2) months' Basic
Rent plus an amount equal to two (2) months' installments on
account of Operating Expenses and Taxes, computed in accordance
with Articles 8 and 9;
(ii) the trustee or the debtor-in-possession agreeing to pay in
advance, on each day that the Basic Rent is payable, the monthly
installments on account of Operating Expenses and Taxes, computed
in accordance with Articles 8 and 9 hereof;
(iii) the trustee or debtor-in-possession providing adequate
assurance of the source of the rent and other consideration due
under this Lease;
(iv) Tenant's bankruptcy estate and the trustee or debtor-in-
possession providing Adequate Assurance that the bankruptcy
estate (and any successor after the conclusion of the Tenant's
bankruptcy proceedings) will continue to have sufficient
unencumbered assets after the payment of all secured obligations
and administrative expenses to assure Landlord that the
bankruptcy estate (and any successor after the conclusion of the
Tenant's bankruptcy proceedings) will have sufficient funds to
fulfill Tenant's obligations hereunder; and
(e) If the trustee or the debtor-in-possession assumes the Lease under
paragraph (b) above and applicable bankruptcy law, it may assign its
interest in this Lease only if the proposed assignee first provides
Landlord with Adequate Assurance of Future Performance of all of Tenant's
obligations under the Lease, and if Landlord determines, in the exercise
of its reasonable business judgment, that the assignment of this Lease
will not breach any other lease, or any mortgage, financing agreement, or
other agreement relating to the Property by which Landlord or the Property
is then bound (and Landlord shall not be required to obtain consents or
waivers from any third party required under any lease, mortgage, financing
agreement, or other such agreement by which Landlord is then bound).
(f) For purposes only of paragraph (e) above, and in addition to any other
requirements under the Bankruptcy Code, any future federal bankruptcy law
and applicable case law, "Adequate Assurance of Future Performance" means
at least the satisfaction of the following conditions, which Landlord and
Tenant acknowledge to be commercially reasonable:
(i) the proposed assignee submitting a current financial statement,
audited by a certified public accountant, that allows a net worth
and working capital in amounts determined in the reasonable
business judgment of Landlord to be sufficient to assure the
future performance by the assignee of Tenant's obligation under
this Lease; and
(ii) if requested by Landlord in the exercise of its reasonable
business judgment, the proposed assignee obtaining a guarantee
(in form and substance satisfactory to Landlord) from one or more
persons who satisfy Landlord's standards of creditworthiness;
(g) If this Lease shall have been terminated as provided in this Article,
or if any execution or attachment shall be issued against Tenant or any of
Tenant's property whereupon the Premises shall
27
<PAGE>
be taken or occupied by someone other than Tenant, then Landlord may
re-enter the Premises, either by 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.
(h) In the event of any termination, Tenant shall pay the Basic Rent,
Escalation Charges and other sums payable hereunder up to the time of such
termination, and thereafter Tenant, until the end of what would have been
the Term of this Lease in the absence of such termination, and whether or
not the Premises shall have been relet, shall be liable to Landlord for,
and shall pay to Landlord, as liquidated current damages: (x) the Basic
Rent, Escalation Charges and other sums that would be payable hereunder if
such termination had not occurred, less the net proceeds, if any, of any
reletting of the Premises, after deducting all expenses reasonably
incurred in connection with such reletting, including, without limitation,
all repossession costs, brokerage commissions, legal expenses, attorneys'
fees, advertising, alteration costs and expenses (to the extent necessary
to re-let the Premises as standard office space) of preparation for such
reletting; (y) if, in accordance with Section 3.1(a), Tenant commenced
payment of the full amount of Basic Rent on any day other than the
Commencement Date, the amount of Basic Rent that would have been payable
during the period beginning on the Commencement Date and ending on the day
Tenant commenced payment of the full amount of Basic Rent under such
Section 3.1(a); and (z) the then unamortized portion of Landlord's
Contribution as of the date of such termination. Tenant shall pay the
portion of such current damages referred to in clause (x) above to
Landlord monthly on the days which the Basic Rent would have been payable
hereunder if this Lease had not been terminated, and Tenant shall pay the
portion of such current damages referred to in clauses (y) and (z) above
to Landlord upon such termination.
(i) At any time after such termination, whether or not Landlord shall have
collected any such current damages, as liquidated final damages and in
lieu of all such current damages beyond the date of such demand, at
Landlord's election Tenant shall pay to Landlord an amount equal to the
excess, if any, of the Basic Rent, Escalation Charges and other sums as
hereinbefore provided which would be payable hereunder from the date of
such demand (discounted to then net present value using an interest rate
of five percent (5%) per annum) assuming that, for the purposes of this
paragraph, annual payments by Tenant on account of Taxes and Operating
Expenses would be the same as the payments required for the immediately
preceding Operating or Tax Year for what would be the then unexpired Term
of this Lease if the same remained in effect, over the then fair net
rental value of the Premises for the same period (also discounted to then
net present value using an interest rate of five percent (5%) per annum).
(j) In case of any Default by Tenant, re-entry, expiration and
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
and necessary to re-let the same and (ii) may make such reasonable
alterations, repairs and decorations in the Premises as Landlord in its
sole judgment considers advisable and 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 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 such
re-letting. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of
Tenant
28
<PAGE>
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.
(k) If a Guarantor of this Lease is named in Section 1.2, the happening of
any of the events described in paragraphs (a)(iv)-(a)(vi) of this Section
13.1 with respect to the Guarantor shall constitute a Default of Tenant
hereunder.
(l) 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.
(m) All costs and expenses incurred by or on behalf of Landlord
(including, without limitation, attorneys' fees and expenses at both the
trial and appellate levels) in enforcing its rights hereunder or
occasioned by any Default of Tenant shall be paid by Tenant.
13.2 LANDLORD'S DEFAULT. Landlord shall in no event be in default in the
------------------
performance of any of Landlord's obligations hereunder unless and until
Landlord shall have failed to perform such obligations within thirty (30)
days, or if such failure is of such a nature that Landlord cannot
reasonably remedy the same within such thirty (30) day period, Landlord
shall fail to commence promptly (and in any event within such thirty (30)
day period) to remedy the same and to prosecute such remedy to completion
with diligence and continuity. References above to such 30-day period
shall be shortened to that period which is reasonable in the event of an
emergency.
ARTICLE 14
----------
MISCELLANEOUS PROVISIONS
------------------------
14.1 EXTRA HAZARDOUS USE. 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 increase the rate of
property or liability insurance on the Premises or the Property above the
standard rate applicable to Premises being occupied for Permitted Uses;
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 an
additional charge hereunder.
14.2 WAIVER. (a) Failure on the part of Landlord or Tenant to complain
------
of any action or non-action on the 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 the other's 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 any
subsequent similar act by the other.
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<PAGE>
(b) 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 of the earliest installment of any payment due
from Tenant under the provisions hereof. 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.
14.3 COVENANT OF QUIET ENJOYMENT. Tenant, subject to the terms and
---------------------------
provisions of this Lease, on payment of the Basic Rent and Escalation
Charges and observing, keeping and performing all of the other 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 hereof, 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.
14.4 LANDLORD'S LIABILITY. (a) Tenant specifically agrees to look solely
--------------------
to Landlord's then equity interest in the Property at the time owned, for
recovery of any judgment from Landlord; it being specifically agreed that
Landlord (original or successor) shall never 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 not, limit any right that Tenant might otherwise have to obtain
injunctive relief against Landlord or Landlord's successors in interest,
or to take any action not involving the personal liability of Landlord
(original or successor) to respond in monetary damages from Landlord's
assets other than Landlord's equity interest in the Property.
(b) With respect to any services or utilities to be furnished by Landlord
to Tenant, Landlord shall in no event be liable for failure to furnish the
same when prevented from doing so by strike, lockout, breakdown, accident,
order or regulation of or by any governmental authority, or failure of
supply, or failure whenever and for so long as may be necessary by reason
of the making of repairs or changes which Landlord is required or is
permitted by this Lease or by law to make or in good faith deems
necessary, or inability by the exercise of reasonable diligence to obtain
supplies, parts or employees necessary to furnish such services, or
because of war or other emergency, or for any other cause beyond
Landlord's reasonable control, or for any cause due to any act or neglect
of Tenant or Tenant's servants, agents, employees, licensees or any person
claiming by, through or under Tenant, nor shall any such failure give rise
to any claim in Tenant's favor that Tenant has been evicted, either
constructively or actually, partially or wholly.
(c) In no event shall Landlord ever be liable to Tenant for any loss of
business or any other indirect or consequential damages suffered by Tenant
from whatever cause.
(d) Where provision is made in this Lease for Landlord's consent and
Tenant shall request such consent and Landlord shall fail or refuse to
give such consent, Tenant shall not be entitled to any damages for any
withholding by Landlord of its consent, it being intended that Tenant's
sole remedy shall be an action for specific performance or injunction, and
that such remedy shall be available only in those cases where Landlord has
expressly agreed in writing not to unreasonably withhold or delay its
consent. Furthermore, whenever Tenant requests Landlord's consent or
approval (whether or not provided for herein), Tenant shall pay to
Landlord, on demand, as an additional charge, any expenses incurred by
Landlord (including without limitation legal fees and costs, if any) in
connection therewith.
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<PAGE>
(e) With respect to any repairs or restoration which are required or
permitted to be made by Landlord, the same may be made during normal
business hours and Landlord shall have no liability for damages to Tenant
for inconvenience, annoyance or interruption of business arising
therefrom.
14.5 NOTICE TO MORTGAGEE OR GROUND LESSOR. After receiving notice from any
------------------------------------
person, firm or other entity that it holds a mortgage or a ground lease
which includes the Premises, no notice from Tenant to Landlord alleging
any default by Landlord shall be effective unless and until a copy of the
same is given to such holder or ground lessor (provided Tenant shall have
been furnished with the name and address of such holder or ground lessor),
and the curing of any of Landlord's defaults by such holder or ground
lessor shall be treated as performance by Landlord. Landlord hereby gives
Tenant notice that the holder of a mortgage on the Property as of the date
hereof is IDS Life Insurance Company, 733 Marquette Avenue, Minneapolis,
MN 55402, Attn: RELM Unit #401.
14.6 ASSIGNMENT OF RENTS AND TRANSFER OF TITLE. (a) With reference to any
-----------------------------------------
assignment by Landlord of 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 on property which includes the Premises,
Tenant agrees that the execution thereof by Landlord, and the acceptance
thereof by the holder of such mortgage shall never be treated as an
assumption by such holder of any of the obligations of Landlord hereunder
unless such holder shall, by notice sent to Tenant, specifically otherwise
elect and that, except as aforesaid, such holder 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.
(b) In no event shall the acquisition of Landlord's interest in the
Property by a purchaser which, simultaneously therewith, leases Landlord's
entire interest in the Property back to the seller thereof be treated as
an assumption 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. In any such event, this Lease shall be subject and
subordinate to the lease 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.
(c) Except as provided in paragraph (b) of this Section, in the event of
any transfer of title to the Property by Landlord, Landlord shall
thereafter be entirely freed and relieved from the performance and
observance of all covenants and obligations hereunder.
14.7 RULES AND REGULATIONS. Tenant shall abide by reasonable rules and
---------------------
regulations from time to time established by Landlord, it being agreed
that such rules and regulations will be established and applied by
Landlord in a non-discriminatory fashion, such that all rules and
regulations shall be generally applicable to other tenants, of similar
nature to the Tenant named herein, of the Building. Landlord agrees to
use reasonable efforts to insure that any such rules and regulations are
uniformly enforced, but Landlord shall not be liable to Tenant for
violation of the same by any other tenant or occupant of the Building, or
persons having business with them. In the event that there shall be a
conflict between such rules and regulations and the provisions of this
Lease, the provisions of this Lease shall control. Rules and Regulations
currently in effect are set forth in Exhibit B.
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<PAGE>
14.8 ADDITIONAL CHARGES. If Tenant shall fail to pay when due any sums
------------------
under this Lease designated as an Escalation Charge or additional charge,
Landlord shall have the same rights and remedies as Landlord has hereunder
for failure to pay Basic Rent.
14.9 INVALIDITY OF PARTICULAR PROVISIONS. 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.
14.10 PROVISIONS BINDING, ETC. 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 (except in
the case of Tenant, only such assigns as may be permitted hereunder) and,
if Tenant shall be an individual, upon and to his heirs, executors,
administrators, successors and permitted 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
assignment by Tenant, but has reference only to those instances in which
Landlord may later give consent to a particular assignment as required by
those provisions of Article 6 hereof.
14.11 RECORDING. Tenant agrees not to record this Lease, but, if the Term
---------
of this Lease (including any extended term) is seven (7) years or longer,
each party hereto agrees, on the request of the other, to execute a so-
called notice of lease in recordable form and complying with applicable
law and reasonably satisfactory to Landlord's attorneys. In no event
shall such document set forth the 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.
14.12 NOTICES. Whenever, by the terms of this Lease, notices 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, postage prepaid, return
receipt requested:
If intended for Landlord, addressed to Landlord at Landlord's Original
Address and marked: "Attention: Mr. Andrew Paul" with a copy to Stephen
T. Langer, Esq., Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., One
Financial Center, Boston, MA 02111 (or to such other address or addresses
as may from time to time hereafter be designated by Landlord by like
notice).
If intended for Tenant, addressed to Tenant at Tenant's Original Address
until the Commencement Date and thereafter to the Premises, (or to such
other address or addresses as may from time to time hereafter be
designated by Tenant by like notice).
All such notices shall be effective when deposited in the United States
Mail within the Continental United States, provided that the same are
received in ordinary course at the address to which the same were sent.
14.13 WHEN LEASE BECOMES BINDING; TENANT'S REPRESENTATION. 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
32
<PAGE>
execution and delivery hereof by both Landlord and Tenant. All
negotiations, considerations, representations and understandings between
Landlord and Tenant are incorporated herein and this Lease expressly
supersedes any proposals or other written documents relating hereto. This
Lease 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. As a
material inducement to Landlord to enter into this Lease, Tenant hereby
represents and warrants to Landlord that Tenant is not a political
subdivision of the State of Ohio, or an authority, instrumentality, or
municipality of the State of Ohio or a corporation or other entity in
which any of the foregoing described entities own or control fifty percent
(50%) or more of the stock or other evidence of ownership.
14.14 PARAGRAPH HEADINGS AND INTERPRETATION OF SECTIONS. The paragraph
-------------------------------------------------
headings throughout this instrument 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. The provisions of this Lease shall be
construed as a whole, according to their common meaning (except where a
precise legal interpretation is clearly evidenced), and not for or against
either party. Use in this Lease of the words "including," "such as" or
words of similar import, when followed by any general term, statement or
matter, shall not be construed to limit such term, statement or matter to
the specified item(s), whether or not language of non-limitation, such as
"without limitation" or "including, but not limited to," or words of
similar import, are used with reference thereto, but rather shall be
deemed to refer to all other terms or matters that could fall within a
reasonably broad scope of such term, statement or matter.
14.15 RIGHTS OF MORTGAGEE OR GROUND LESSOR. This Lease shall be subordinate
------------------------------------
to any mortgage or ground lease from time to time encumbering the
Premises, whether executed and delivered prior to or subsequent to the
date of this Lease, if the holder of such mortgage or ground lease shall
so elect. If this Lease is subordinate to any mortgage or ground lease and
the holder thereof (or successor) shall succeed to the interest of
Landlord, at the election of such holder (or successor) Tenant shall
attorn to such holder and this Lease shall continue in full force and
effect between such holder (or successor) and Tenant. Tenant agrees to
execute such instruments of subordination or attornment in confirmation of
the foregoing agreement as such holder may request, and Tenant hereby
appoints such holder as Tenant's attorney-in-fact to execute such
subordination or attornment agreement upon default of Tenant in complying
with such holder's request. In no event shall the holder of any mortgage
or ground lease ever: (A) be liable for any act or omission of Landlord
hereunder occurring prior to such holder's succession to Landlord's
interest hereunder; or (B) be subject to any defense or offset accruing in
favor of the Tenant against Landlord prior to such holder's succession to
Landlord's interest hereunder; or (C) be bound by any modification of this
Lease made without such holder's written consent or by any prepayment of
more than one month's rent.
14.16 STATUS REPORT. Recognizing that both parties may find it necessary
-------------
to establish to third parties, such as accountants, banks, mortgagees,
ground lessors, or the like, the then current status of performance
hereunder, either party, on the request of the other made from time to
time, will promptly furnish to Landlord, or the holder of any mortgage or
ground lease encumbering the Premises, or to Tenant, as the case may be, 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.
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14.17 SECURITY DEPOSIT. If, in Section 1.2 hereof, a security deposit is
----------------
specified, Tenant agrees that the same will be paid upon execution and
delivery of this Lease, and that Landlord shall hold the same throughout
the Term of this Lease as security for the performance by Tenant of all
obligations on the part of Tenant hereunder. Landlord shall have the
right from time to time without prejudice to any other remedy Landlord may
have on account thereof, to apply such deposit, or any part thereof, to
Landlord's damages arising from, or to cure, any Default of Tenant. If
Landlord shall so apply any or all of such deposit, Tenant shall
immediately deposit with Landlord the amount so applied to be held as
security hereunder. There then existing no Default of Tenant (nor any
circumstance which, with the passage of time or the giving of notice, or
both, would constitute a Default of Tenant), Landlord shall return the
deposit, or so much thereof as shall have theretofore not been applied in
accordance with the terms of this Section 14.17, to Tenant on the
expiration or earlier termination of the Term of this Lease and surrender
of possession of the Premises by Tenant to Landlord at such time. While
Landlord holds such deposit, Landlord shall have no obligation to pay
interest on the same and shall have the right to commingle the same with
Landlord's other funds. If Landlord conveys Landlord's interest under
this Lease, the deposit, or any part thereof not previously applied, 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
deposit in accordance with the terms of this Section 14.17, and the return
thereof in accordance herewith. The holder of a mortgage shall not be
responsible to Tenant for the return or application of any such deposit,
whether or not it succeeds to the position of Landlord hereunder, unless
such deposit shall have been received in hand by such holder.
14.18 REMEDYING DEFAULTS. Landlord shall have the right, but shall not be
------------------
required, to pay such sums or do any act which requires the expenditure of
monies which may be necessary or appropriate by reason of the failure or
neglect of Tenant to perform any of the provisions of this Lease, and in
the event of the exercise of such right by Landlord, Tenant agrees to pay
to Landlord forthwith upon demand all such sums, together with interest
thereon at a rate equal to 3% over the base rate in effect from time to
time at Fleet Bank, N.A. (but in no event less than 18% per annum), as an
additional charge. Any payment of Basic Rent, Escalation Charges or other
sums payable hereunder not paid when due shall, at the option of Landlord,
bear interest at a rate equal to 3% over the base rate in effect from time
to time at Fleet Bank, N.A. (but in no event less than 18% per annum) from
the due date thereof and shall be payable forthwith on demand by Landlord,
as an additional charge.
14.19 HOLDING OVER. Any holding over by Tenant after the expiration of
------------
the term of this Lease shall be treated as a daily tenancy at sufferance
at a rate equal to two times the Basic Rent then in effect plus Escalation
Charges and other charges herein provided (prorated on a daily basis).
Tenant shall also pay to Landlord all damages, direct and/or indirect,
sustained by reason of any such holding over. Otherwise, such holding
over shall be on the terms and conditions set forth in this Lease as far
as applicable. The Landlord may, but shall not be required to, and only
on written notice to Tenant after the expiration of the Term hereof, elect
to treat such holding over as a renewal of one (1) year, to be on the
terms and conditions set forth in this Paragraph 14.19.
14.20 WAIVER OF SUBROGATION. Insofar as, and to the extent that, the
---------------------
following provision shall not make it impossible to secure insurance
coverage obtainable from responsible insurance companies doing business in
the locality in which the Property is located (even though extra premium
may result therefrom) Landlord and Tenant: (i) mutually agree that, with
respect to any damage to property, the loss from which is covered by
insurance then being carried by them, respectively, the one carrying such
insurance and suffering such loss releases the other of and from, and
forever waives, any and all claims with respect to such loss, but only to
the extent of the limits of insurance
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carried with respect thereto, less the amount of any deductible; and (ii)
mutually agree that any property damage insurance carried by either shall
provide for the waiver by the insurance carrier of any right of
subrogation against the other.
14.21 SURRENDER OF PREMISES. Upon the expiration or earlier termination of
---------------------
the Term of this Lease, Tenant shall peaceably quit and surrender to
Landlord the Premises in reasonably neat and clean condition and in good
order, condition and repair, together with all alterations, additions and
improvements which may have been made or installed in, on or to the
Premises prior to or during the Term of this Lease, excepting only
ordinary wear and use and damage by fire or other casualty for which,
under other provisions of this Lease, Tenant has no responsibility of
repair or restoration. Tenant shall remove all of Tenant's Removable
Property (including without limitation the equipment listed on Exhibit F)
and, to the extent specified by Landlord, all alterations and additions
made by Tenant and all partitions wholly within the Premises unless
installed initially by Landlord as a part of Landlord's Work or otherwise
in preparing the Premises for Tenant's occupancy; and shall repair any
damages to the Premises or the Building caused by such removal. Any
Tenant's Removable Property which shall remain in the Building or on the
Premises after the expiration or termination of the Term of this Lease
shall be deemed conclusively to have been abandoned, and either may be
retained by Landlord as its property or may be disposed of in such manner
as Landlord may see fit, at Tenant's sole cost and expense.
14.22 SUBSTITUTE SPACE; DEMOLITION. (a) If Landlord so requests, Tenant
----------------------------
shall vacate the Premises and relinquish its rights with respect to the
same provided that Landlord shall, on not less than one hundred twenty
(120) days' notice, provide to Tenant substitute space in the Building,
such space to be substantially comparable in size, layout, finish and
utility to the Premises, and further provided that Landlord shall, at its
sole cost and expense, move Tenant and its Removable Property from the
Premises to such new space in such manner as will minimize, to the
greatest extent practicable, undue interference with the business or
operations of Tenant. Any such substitute space shall, from and after
such relocation, be treated as the Premises demised under this Lease, and
shall be occupied by Tenant under the same terms, provisions and
conditions as are set forth in this Lease.
(b) Notwithstanding any provision of this Lease to the contrary, in the
event that Landlord desires to substantially remodel or rehabilitate the
Building, and in connection therewith Landlord intends to demolish the
Building or the interior thereof, then Landlord shall have the right to
terminate the Lease by giving Tenant notice thereof, which notice shall
set forth a date (the "Termination Date"), which shall be not less than
six (6) months after the date of such notice, on which the Lease shall
terminate. Such notice shall in no event be given sooner than nine (9)
months prior to the date on which Landlord intends in good faith to
commence such demolition. If Landlord shall give any such notice, then
upon the Termination Date, this Lease shall terminate with the same force
and effect as if such Date were the date originally set forth therein as
the expiration date thereof, and Tenant shall vacate and deliver the
Premises to Landlord as provided in Section 14.21 of this Lease.
14.23 BROKERAGE. Tenant warrants and represents that Tenant has dealt
---------
with no broker in connection with the consummation of this Lease other
than Broker, and, in the event of any brokerage claims against Landlord
predicated upon prior dealings with Tenant, Tenant agrees to defend the
same and indemnify Landlord against any such claim (except any claim by
Broker).
14.24 GOVERNING LAW. This Lease shall be governed exclusively by the
-------------
provisions hereof and by the laws of the Commonwealth of Massachusetts as
the same may from time to time exist.
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ARTICLE 15
----------
OPTION TO EXTEND
----------------
15.1 TENANT'S RIGHT. Provided that, at the time of such exercise, (i) there
--------------
exists no Default of Tenant; (ii) this Lease is still in full force and
effect; and (iii) Tenant shall not have assigned this Lease or sublet any
or all of the Premises, Tenant shall have the right to extend the Term of
this Lease for one extended term (the "Extended Term") of three (3) years.
The Extended Term shall commence on the day immediately following the
expiration date of the Initial Term, and shall end on the day immediately
preceding the third (3rd) anniversary of the first day of the Extended
Term. Tenant shall exercise such option by giving Landlord notice of its
desire to do so, not later than nine (9) months prior to the expiration of
the Initial Term, it being agreed that time shall be of the essence with
respect to the giving of such notice. The giving of such notice shall
automatically extend the Term of this Lease for the Extended Term, and no
instrument of renewal need be executed. In the event that Tenant fails to
give such notice to Landlord, the Term of this Lease shall automatically
terminate at the end of the Initial Term, and Tenant shall have no further
right or option to extend the Term of this Lease. The Extended Term shall
be on all the terms and conditions of this Lease, except that: (i) Landlord
shall have no obligation to pay any construction or improvements allowance,
or to perform any alterations or improvements to the Premises, with respect
to the Extended Term; and (ii) the Basic Rent for the Extended Term shall
be determined in accordance with section 15.2.
15.2 EXTENDED TERM RENT. The Basic Rent for the Extended Term shall be the fair
------------------
market rental value of the Premises (exclusive of the cost of supplying
electricity to the Premises) as of the commencement of the Extended Term
(including without limitation such inflation indicators or periodic
increases as may then be customary in the market for comparable space),
determined without regard to Tenant's right to extend, as agreed by the
parties, plus the Electricity Allowance. In the event that Landlord and
Tenant are unable to agree on the fair market rental value of the Premises
for the Extended Term sooner than the first day of the sixth month before
the expiration of the Initial Term, the fair market rental value shall be
determined by arbitration in accordance with the commercial arbitration
rules of the American Arbitration Association, except that there shall be
only one arbitrator, who shall have had at least ten (10) years' experience
as a real estate broker or appraiser in the greater Boston area. In no
event, however, shall the Basic Rent for the Extended Term (which does not
include Escalation Charges) be less than the Basic Rent (which does not
include Escalation Charges) in effect on the last day of the Initial Term,
it being understood that during the Extended Term Escalation Charges shall
continue to be calculated based on Base Taxes and Base Operating Expenses
set forth in Section 1.2 of this Lease
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be duly
executed, under seal, by persons hereunto duly authorized, in multiple copies,
each to be considered an original hereof, as of the date first set forth above.
LANDLORD: OTR, an Ohio General Partnership
--------
By:___________________________
a General Partner,
Hereunto Duly Authorized
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TENANT: PERITUS SOFTWARE SERVICES,
------
INC.,
a Massachusetts corporation
By:___________________________
(Vice) President
By:___________________________
(Assistant) Treasurer
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EXHIBIT B
RULES AND REGULATIONS OF BUILDING
I. The following regulations are generally applicable:
1. The public sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by Tenant (except as necessary for deliveries) or used for any purpose other
than ingress and egress to and from the Premises.
2. No awnings, curtains, blinds shades, screens or other projections
shall be attached to or hung in, or used in connection with, any window of the
Premises or any outside wall of the Building. Such awnings, curtains, blinds,
shades, screens or other projections must be of a quality, type, design and
color, and attached in the manner, approved by Landlord.
3. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor places in the halls, corridors or
vestibules.
4. The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or like substances shall be
deposited therein. All damages resulting from any misuse of the fixtures shall
be borne by the Tenant.
5. Tenant shall not use the Premises or any part thereof, or permit the
Premises or any part thereof to be used, for manufacturing. Tenant shall not
use the Premises or any part thereof or permit the Premises or any part thereof
to be used as a public employment bureau or for the sale of property of any kind
at auction, except in connection with Tenant's business.
6. Tenant must, upon the termination of its tenancy, restore to the
Landlord all locks, cylinders and keys to offices and toilet rooms of the
Premises.
7. The Landlord reserves the right to exclude from the Building between
the hours of 6 p.m. and 8 a.m. and at all hours on Sunday and holidays all
persons connected with or calling upon the Tenant who do not present a pass to
the Building signed by the Tenant. Tenant shall be responsible for all persons
for whom it issues any such pass and shall be liable to the Landlord for all
wrongful acts of such persons.
8. The requirements of Tenant will be attended to only upon application
at the Building Superintendent's Office. Employees of Landlord shall not
perform any work or do anything outside of the regular duties, unless under
special instructions from the office of the Landlord.
9. There shall not be used in any space, or in the public halls of the
Building, either by Tenant or by jobbers or others, in the delivery or receipt
of merchandise, any hand trucks, except those equipped with rubber tires and
side guards.
10. No bicycles, vehicles or animals of any kind shall be brought into or
kept in or about the Premises.
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11. No Tenant shall make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of this or neighboring building or
premises or those having business with them whether by use of any musical
instrument, radio, talking machine, unmusical noise, whistling, singing, or in
any other way. No Tenant shall throw anything out of the doors, windows or
skylights or down the passageways.
12. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
13. Tenants shall cooperate with Landlord in obtaining maximum
effectiveness of the cooling system by closing draperies when sun's rays fall
directly on windows of Premises.
14. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and street address of the Building.
II. The following regulations are applicable to any additions, alterations or
improvements being undertaken by or for Tenant in the Premises:
A. General
-------
1. All alterations, installations or improvements ("Alterations") to be
made by Tenant in, to or about the Premises shall be made in accordance with the
requirements of this Exhibit and by contractors or mechanics approved by
Landlord.
2. Tenant shall, prior to the commencement of any work, submit for
Landlord's written approval, complete plans for the Alterations. Drawings are
to be complete with full details and specifications for all of the Alterations.
3. Alterations must comply with the Building Code applicable to the
Property and the requirements, rules and regulations and any other governmental
agencies having jurisdiction.
4. No work shall be permitted to commence without the Landlord being
furnished with a valid permit and all other necessary approvals from agencies
having jurisdiction.
5. All demolition, removals or other categories of work that may
inconvenience other tenants or disturb Building operations, must be scheduled
and performed before or after normal working hours and Tenant shall provide the
Building manager with at least 24 hours' notice prior to proceeding with such
work.
6. All inquiries, submissions, approvals and all other matters shall be
processed through the Building manager.
B. Prior to Commencement of Work
-----------------------------
1. Tenant shall submit to the Building manager a request to perform the
work. The request shall include the following enclosures:
(i) A list of Tenant's contractors and/or subcontractors for Landlord's
approval.
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(ii) Four complete sets of plans and specifications properly stamped by a
registered architect or professional engineer.
(iii) A properly executed building permit application form.
(iv) Four executed copies of the Insurance Requirements agreement in the
form attached to these Tenant's Work Requirements as Exhibit D from
Tenant's contractor and if requested by Landlord from the contractor's
subcontractors.
(v) Contractor's and subcontractor's insurance certificates including an
indemnity in accordance with the Insurance Requirements agreement.
2. Landlord will return the following to Tenant:
(i) Two sets of plans approved or a disapproval with specific comments as
to the reasons therefor (such approval or comments shall not constitute a
waiver of approval of governmental agencies).
(ii) Two fully executed copies of the Insurance Requirements agreement.
3. Tenant shall obtain a building permit from the Building Department and
necessary permits from other governmental agencies. Tenant shall be responsible
for keeping current all permits. Tenant shall submit copies of all approved
plans and permits to Landlord and shall post the original permit on the Premises
prior to the commencement of any work. All work, if performed by a contractor
or subcontractor, shall be subject to reasonable supervision and inspection by
Landlord's representative. Such supervision and inspection shall be at Tenant's
sole expense and Tenant shall pay Landlord's reasonable charges for such
supervision and inspection.
C. Requirements and Procedures
---------------------------
1. All structural and floor loading requirements shall be subject to the
prior approval of Landlord's structural engineer.
2. All mechanical (HVAC, plumbing and sprinkler) and electrical
requirements shall be subject to the approval of Landlord's mechanical and
electrical engineers and all mechanical and electrical work shall be performed
by contractors who are engaged by Landlord in constructing the Building. When
necessary, Landlord will require engineering and shop drawings, which drawings
must be approved by Landlord before work is started. Drawings are to be
prepared by Tenant and all approvals shall be obtained by Tenant.
3. Elevator service for construction work shall be charged to Tenant at
standard Building rates. Prior arrangements for elevator use shall be made with
Building manager by Tenant. No material or equipment shall be carried under or
on top of elevators. If an operating engineer is required by any union
regulations, such engineer shall be paid for by Tenant.
4. If shutdown of risers and mains for electrical, HVAC, sprinkler and
plumbing work is required, such work shall be supervised by Landlord's
representative. No work will be performed in Building mechanical equipment
rooms without Landlord's approval and under Landlord's supervision.
5. Tenant's contractor shall:
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(i) have a superintendent or foreman on the Premises at all times;
(ii) police the job at all times, continually keeping the Premises
orderly;
(iii) maintain cleanliness and protection of all areas, including
elevators and lobbies.
(iv) protect the front and top of all peripheral HVAC units and
thoroughly clean them at the completion of work;
(v) block off supply and return grills, diffusers and ducts to keep dust
from entering into the Building air conditioning system; and
(vi) avoid the disturbance of other tenants.
6. If Tenant's contractor is negligent in any of its responsibilities,
Tenant shall be charged for corrective work.
7. All equipment and installations must be equal to the standards
generally in effect with respect to the remainder of the Building. Any
deviation from such standards will be permitted only if indicated or specified
on the plans and specifications and approved by Landlord.
8. A properly executed air balancing report signed by a professional
engineer shall be submitted to Landlord upon the completion of all HVAC work.
9. Upon completion of the Alterations, Tenant shall submit to Landlord a
permanent certificate of occupancy and final approval by the other governmental
agencies having jurisdiction.
10. Tenant shall submit to Landlord a final "as-built" set of drawings
showing all items of the Alterations in full detail.
11. Additional and differing provisions in the Lease, if any, will be
applicable and will take precedence.
III. The following regulations shall be effective with respect to any plans or
specifications that Tenant is required to prepare under the Lease:
Whenever Tenant shall be required by the terms of the Lease to submit
plans to Landlord in connection with any improvement or alteration to the
Premises, such plans shall include at least the following:
1. Floor plan indicating location of partitions and doors (details
required of partition and door types).
2. Location of standard electrical convenience outlets and telephone
outlets.
3. Location and details of special electrical outlets; e.g.,
----
photocopiers, etc.
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4. Reflected ceiling plan showing layout of standard ceiling and lighting
fixtures. Partitions to be shown lightly with switches located
indicating fixtures to be controlled.
5. Locations and details of special ceiling conditions, lighting
fixtures, speakers, etc.
6. Location and specifications of floor covering, paint or paneling with
paint colors referenced to standard color system.
7. Finish schedule plan indicating wall covering, paint, or paneling with
paint colors referenced to standard color system.
8. Details and specifications of special millwork, glass partitions,
rolling doors and grilles, blackboards, shelves, etc.
9. Hardware schedule indicating door number keyed to plan, size, hardware
required including butts, latchsets or locksets, closures, stops, and
any special items such as thresholds, soundproofing, etc. Keying
schedule is required.
10. Verified dimensions of all built-in equipment (file cabinets, lockers,
plan files, etc.)
11. Location and weights of storage files.
12. Location of any special soundproofing requirements.
13. Location and details of special floor areas exceeding 50 pounds of
live load per square foot.
14. All structural, mechanical, plumbing and electrical drawings, to be
prepared by the base building consulting engineers, necessary to
complete the Premises in accordance with Tenant's Plans.
15. All drawings to be uniform size (30" x 46") and shall incorporate the
standard project electrical and plumbing symbols and be at a scale of
1/8" = 1' or larger.
16. All drawings shall be stamped by an architect (or, where applicable,
an engineer) licensed in the jurisdiction in which the Property is
located and without limiting the foregoing, shall be sufficient in all
respects for submission to applicable authorization in connection with
a building permit application.
17. Landlord's approval of the plans, drawings, specifications or other
submissions in respect of any work, addition, alteration or
improvement to be undertaken by or on behalf of Tenant shall create no
liability or responsibility on the part of Landlord for their
completeness, design sufficiency or compliance with requirements of
any applicable laws, rules or regulations of any governmental or
quasi-governmental agency, board or authority.
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EXHIBIT C
[ITEMS INCLUDED IN OPERATING EXPENSES]
Without limitation, Operating Expenses shall include:
1. All expenses incurred by Landlord or Landlord's agents which shall be
directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social security,
unemployment and similar taxes, workmen's compensation insurance, disability
benefits, pensions, hospitalization, retirement plans and group insurance,
uniforms and working clothes and the cleaning thereof, and expenses imposed on
Landlord or Landlord's agents pursuant to any collective bargaining agreement
for the services of employees of Landlord or Landlord's agents in connection
with the operation, repair, maintenance, cleaning, snow removal, management and
protection of the Property, and its mechanical systems including, without
limitation, day and night supervisors, property manager, accountants and
bookkeepers (to the extent not covered by the management fee), janitors,
carpenters, engineers, mechanics, electricians and plumbers and personnel
engaged in supervision of any of the persons mentioned above; provided that, if
any such employee is also employed on other property of Landlord, such
compensation shall be suitably prorated among the Property and such other
properties.
2. The cost of services, utilities, materials and supplies furnished or
used in the operation, repair, maintenance, cleaning, management and protection
of the Property, including without limitation fees, if any, imposed upon
Landlord, or charged to the Property, by the state or municipality in which the
Property is located on account of the need of the Property for increased or
augmented public safety services.
3. The cost of replacements for tools and other similar equipment used in
the repair, maintenance, cleaning and protection of the Property, provided that,
in the case of any such equipment used jointly on other property of Landlord,
such costs shall be suitably prorated among the Property and such other
properties.
4. Where the Property is managed by Landlord or an affiliate of Landlord,
a sum equal to the amounts customarily charged by management firms in the
Suburban Route 495 area for similar properties, but in no event more than four
percent (4%) of gross annual income of the Property, whether or not actually
paid, or where managed by other than Landlord or an affiliate thereof pursuant
to an arms-length agreement, the amounts accrued for management, together with,
in either case, amounts accrued for legal and other professional fees relating
to the Property, but excluding such fees and commissions paid in connection with
services rendered for securing or renewing leases and for matters not related to
the normal administration and operation of the Building.
5. Premiums for insurance against damage or loss to the Building from
such hazards as shall from time to time be generally required by institutional
mortgagees in the Suburban Route 495 area for similar properties, including, but
not by way of limitation, insurance covering loss of rent attributable to any
such hazards, and public liability insurance.
6. If, during the Term of this Lease, Landlord shall make a capital
expenditure, the total cost of which is not properly includable in Operating
Expenses for the Operating Year in which it was made, there shall nevertheless
be included in such Operating Expenses for the Operating Year in which it was
made and in Operating Expenses for each succeeding Operating Year the annual
charge-off of such capital expenditure. Annual charge-off shall be determined
by dividing the original capital expenditure plus an interest factor,
----
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reasonably determined by Landlord, as being the interest rate then being charged
for long- term mortgages by institutional lenders on like properties within the
locality in which the Building is located, by the number of years of useful life
of the capital expenditure; and the useful life shall be determined reasonably
by Landlord in accordance with generally accepted accounting principles and
practices in effect at the time of making such expenditure.
7. Costs for electricity, water and sewer use charges, and other
utilities supplied to the Property and not paid for directly (i.e., other than
----
by escalation payments) by tenants.
8. Betterment assessments provided the same are apportioned equally over
the longest period permitted by law.
9. Amounts paid to independent contractors for services, materials and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Property.
10. Landlord's allocation to the Building of the cost of any services and
materials provided to the Park, to the extent serving or benefiting the common
areas or more than one building (including the Building) in the Park, as
provided in Article 9 of the Lease.
Operating Expenses shall in no event include:
(i) any increase in Landlord's insurance rates which may result from the
negligent or willful and wrongful failure of Landlord or its agents,
employees or contractors to comply with the provisions of this Lease
or with applicable laws;
(ii) depreciation;
(iii) interest on and amortization of debt;
(iv) costs, fees and expenses (including advertising, legal and brokerage
costs and fees) for procuring new tenants for the Building;
(v) costs incurred in financing or refinancing of the Building;
(vi) the cost of any item included in Operating Expenses to the extent
that Landlord is actually reimbursed for such cost by Tenant, or by
an insurance company, a condemning authority, another tenant or any
other party;
(vii) ground rent;
(viii) to the extent paid for from the management fee, wages, salaries or
other compensation paid to any employees at or below the grade of
Building manager, and in any event, salaries or other compensation
paid to employees above such grade;
(ix) any costs representing an amount paid to a corporation related to
Landlord which is in excess of the amount which would have been paid
absent such relationship;
(x) any expenses for repairs or maintenance to the extent covered by
warranties or service contracts;
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(xi) Taxes; and
(xii) any costs incurred in removing Hazardous Materials (i) currently
located on the Property as of the date hereof, and (ii) of which the
---
Landlord has actual notice.
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EXHIBIT D
CONTRACTOR'S INSURANCE REQUIREMENTS
Building:
Tenant:
Premises:
The undersigned contractor or subcontractor ("Contractor") has been hired
by the tenant or occupant (hereinafter called "Tenant") of the Building
named above or by Tenant's contractor to perform certain work ("Work") for
Tenant in the Premises identified above. Contractor and Tenant have
requested the undersigned landlord ("Landlord") to grant Contractor access
to the Building and its facilities in connection with the performance of
the Work and Landlord agrees to grant such access to Contractor upon and
subject to the following terms and conditions:
1. Contractor agrees to indemnify and save harmless the Landlord,
Spaulding & Slye, Inc. and their respective officers, employees and agents
and their affiliates, subsidiaries and partners, and each of them, from
and with respect to any claims, demands, suits, liabilities, losses and
expenses, including reasonable attorneys' fees, arising out of or in
connection with the Work (and/or imposed by law upon any or all of them)
because of personal injuries, bodily injury (including death at any time
resulting therefrom) and loss of or damage to property, including
consequential damages, whether such injuries to person or property are
claimed to be due to negligence of the Contractor, Tenant, Landlord or any
other party entitled to be indemnified as aforesaid except to the extent
specifically prohibited by law (and any such prohibition shall not void
this Agreement but shall be applied only to the minimum extent required by
law).
2. Contractor shall provide and maintain at its own expense, until
completion of the Work, the following insurance:
(a) Workmen's Compensation and Employers, Liability Insurance covering
each and every workman employed in, about or upon the Work, as provided
for in each and every statute applicable to Workmen's Compensation and
Employers' Liability Insurance.
(b) Comprehensive General Liability Insurance including coverages for
Protective and Contractual Liability (to specifically include coverage for
the indemnification clause of this Agreement) for not less than the
following limits:
Personal Injury:
$3,000,000 per person
$10,000,000 per
occurrence
Property Damage:
$3,000,000 per occurrence $3,000,000 aggregate
46
<PAGE>
(c) Comprehensive Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the
Work) for not less than the following limits:
Bodily Injury:
$1,000,000 per person
$1,000,000 per occurrence
Property Damage:
$1,000,000 per occurrence
Contractor shall furnish a certificate from its insurance carrier or
carriers to the Building office before commencing the Work, showing that
it has complied with the above requirements regarding insurance and
providing that the insurer will give Landlord ten (10) days' prior written
notice of the cancellation of any of the foregoing policies.
3. Contractor shall require all of its subcontractors engaged in the Work
to provide the following insurance:
(a) Comprehensive General Liability Insurance including Protective and
Contractual Liability coverages with limits of liability at least equal to
the limits stated in paragraph 2(b).
(b) Comprehensive Automobile Liability Insurance (covering all owned,
non-owned and/or hired motor vehicles to be used in connection with the
Work) with limits of liability at least equal to the limits stated in
paragraph 2(c).
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and executed this day of , 19 .
Contractor: Landlord:
By:
By:________________________________
By:________________________________
47
<PAGE>
EXHIBIT E
(Commencement Letter)
____________________, 199
[Name of Contact]
[Name of Tenant]
RE: [Name of Tenant]
[Premises Rentable Area and Floor]
Dear [Name of Contact]:
Reference is made to that certain Lease, dated as of , 199 ,
between as Landlord and _______________ as
Tenant, with respect to approximately square feet of space on the ____________
floor of , Massachusetts. In
accordance with Section 4.1 of the Lease, this is to confirm that the
Commencement Date of the term of such Lease occurred on ________, and that the
Initial Term of such Lease shall expire on _____________. If the foregoing is
in accordance with your understanding, would you kindly execute this letter in
the space provided below, and return the same to us for execution by Landlord,
whereupon it will become a binding agreement between us.
Very truly yours,
By:___________________________
(Vice) President
Accepted and Agreed:
[Name of Tenant]
By: _____________________
Name:________________
Title:_______________
Date:________________
48
<PAGE>
EXHIBIT F
[Equipment Constituting a Portion of Tenant's Removable Property]
49
<PAGE>
EXHIBIT LW-1
[Plan to be Furnished]
50
<PAGE>
EXHIBIT LW-2
The Original Scope of Work shall include the following:
Third Floor - 6,906 square feet:
1. Remove 11 offices
2. Remove private bathroom
3. Remove existing kitchen wall
4. Add new kitchen with VTC floor
5. Install new carpet throughout
6. Paint entire space
7. Add and/or relocate sprinkler heads where necessary
8. Electrical - Estimate: $3.50/SF for the following:
a. Replace approximately 80% of existing light fixtures with parabolic lights
b. Add convenience outlets
c. Fire alarm upgrade
d. Power to new kitchen
e. New switches
9. HVAC - Estimate: $1.00/SF for the following:
a. Minor redistribution and balancing
b. Preventitive maintenance on equipment
c. No new mechanical equipment
First Floor - 1,300 square feet
1. Replace existing carpeting with VCT floor
51
<PAGE>
LEASE MODIFICATION AGREEMENT
NO. 1
THIS LEASE MODIFICATION AGREEMENT NO. 1 (this "Agreement") dated as of
August 30, 1999, by and between OTR, an Ohio general partnership ("Landlord")
and Peritus Software Services, Inc., a Massachusetts corporation ("Tenant").
WITNESSETH
----------
WHEREAS, Landlord and Tenant entered into a Lease dated February 2, 1999,
for 8,206 square feet of space (the "Existing Premises") in the building (the
-----------------
"Building") known as 112 Turnpike Road, Westborough Executive Park, Westborough,
--------
Massachusetts (the "Lease"); and
WHEREAS, the Term of Lease expires by its terms on December 31, 2001, and
Landlord and Tenant mutually desire to enlarge the size of the Premises by
adding thereto approximately 3,431 square feet of space (the "Additional
----------
Premises") adjacent to the Existing Premises and shown on Exhibit A hereto; and
- --------
WHEREAS, Landlord and Tenant mutually intend and desire to modify the Lease
on and subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, each to the other paid, the receipt and sufficiency of
which are hereby acknowledged, Landlord and Tenant hereby agree as follows:
1. Tenant currently occupies the Existing Premises, and agrees that
Landlord is not responsible or liable to perform any work therein, or to pay any
allowance or contribution toward the cost of any work to be performed by Tenant
therein. Except as hereinafter expressly provided, and without in any way
derogating from Landlord's obligations under the Lease to repair and maintain
the Building and its systems, Tenant accepts the Additional Premises in their
current AS IS condition, and without representation or warranty by Landlord.
2. (a) Effective from and after the Effective Date (as hereinafter
defined), the definition of "Premises" set forth in Section 1.2 of the Lease is
amended such that the Premises shall contain both the Existing Premises and the
Additional Premises.
(b) Effective from and after the Effective Date, the definition of
"Premises Rentable Area" set forth in Section 1.2 of the Lease is amended by
increasing the number of square feet from 8,206 to 11,637, comprising the
Existing Premises and the Additional Premises.
(c) Commencing on the Effective Date (or, if the Effective Date occurs
after September 15, 1999, then on October 1, 1999), and continuing throughout
the Lease Term, the
<PAGE>
Basic Rent payable under the Lease for the Additional Premises shall be
$78,913.00 per year, payable in equal monthly installments of $6,576.08
(representing $23.00 per rentable square foot of Premises Rentable Area).
(d) Tenant agrees to pay Landlord upon execution and delivery of this
Agreement the amount of $13,152.16, which sum shall increase the Security
Deposit from $28,721.00 to $41,873.16.
3. Commencing on the Effective Date and continuing throughout the
Lease Term, the Estimated Electricity Payment payable under the Lease shall be
increased to $11,055.15 per year payable in equal monthly installments of
$921.26 (representing $0.95 per rentable square foot of Premises Rentable Area).
4. Commencing from and after the Effective Date, the definition of
"Escalation Factor" set forth in the Lease shall be 17.2%.
5. The Effective Date shall be the earlier to occur of: (i) October
1, 1999 or (ii) the date upon which Tenant first occupies the Additional
Premises for the conduct of its business. From and after the full execution
hereof, Landlord shall permit Tenant's contractors and suppliers to have access
to the Additional Premises for the purpose of preparing the same for Tenant's
occupancy, such occupancy to be subject to all of the provisions of the Lease
(other than the provisions of Sections 2(b), (c) and (d) and Sections 3 and 4
hereof).
6. Commencing on the Effective Date and continuing throughout the
Term of the Lease, if Tenant desires to lease any office space in the 495/Mass
Pike Market Area as shown on Exhibit B attached hereto, Tenant shall give
Landlord written notice (the "Offer Notice") specifying the approximate size and
the proposed use of the space desired from time to time by Tenant (the "Desired
Space"). The Offer Notice shall constitute an irrevocable offer by Tenant to
lease the Desired Space from Landlord for a term coterminous with the Term of
the Lease at a rent equal to fair market rental value. If Landlord has the
Desired Space available for lease in any building owned by Landlord within the
495/Mass Pike Market Area and Landlord desires to lease to such space to Tenant,
Landlord shall notify Tenant in writing (the "Acceptance Notice") of its
acceptance of Tenant's offer within thirty (30) days from Landlord's receipt of
the Offer Notice. If Landlord accepts Tenant's offer, Landlord and Tenant shall
promptly enter into a lease for the Desired Space containing substantially the
same terms contained in the Lease (or amend the Lease to include the Desired
Space) except that the rent for the Desired Space shall be fair market rental
value. In the event that Landlord and Tenant are unable to agree on the fair
market rental value of the Desired Premises sooner than the thirtieth (30th) day
following Tenant's receipt of the Acceptance Notice, the fair market rental
value shall be determined by arbitration in accordance with the commercial
arbitration rules of the American Arbitration Association, except that there
shall be only one arbitrator, who shall have had at least ten (10) years'
experience as a real estate broker or appraiser in the greater Boston area. If
Landlord does not accept Tenant's offer as aforesaid, Tenant shall be free to
lease the Desired
2
<PAGE>
Space elsewhere within six (6) months following the date of the Offer Notice; if
Tenant fails to lease the Desired Space elsewhere within such six (6) month
period as aforesaid, Tenant shall again be obligated to submit an Offer Notice
to Landlord if Tenant continues to desires to lease the Desired Space.
7. Prior to the end of the Initial Term, Tenant shall advise Landlord
of whether Tenant intends to lease office space in the 495/Mass Pike Market Area
substantially comparable in size and type to the Premises. If Tenant so notifies
Landlord and if Tenant shall have failed to exercise its option to extend as set
forth in Article 15 of the Lease, Landlord shall have the right, by written
notice to Tenant given prior to the thirtieth (30th) day following the giving of
Tenant's notice, to require Tenant to lease the Premises upon the terms
contained in Article 15 of the Lease.
8. As a material inducement to Landlord entering into this Agreement,
Tenant certifies to Landlord that as of the date hereof: (i) the Lease, as
modified hereby, contains the entire agreement between the parties hereto
relating to the Premises and that there are no other agreements between the
parties relating to the Premises, the Lease or the Building which are not
contained or referred to herein or in the Lease, (ii) Landlord is not in default
in any respect in any of the terms, covenants and conditions of the Lease; (iii)
Tenant has no existing setoffs, counterclaims or defenses against Landlord under
the Lease; and (iv) Tenant is not, and the performance by Tenant of its
obligations hereunder shall not render Tenant, insolvent within the meaning of
the United States Bankruptcy Code, the Internal Revenue Code or any other
applicable law, code or regulation.
9. Landlord and Tenant each mutually covenant, represent and warrant
to the other that it has had no dealings or communications with any broker or
agent (other than Spaulding & Slye, whose fee shall be paid by Landlord) in
connection with this Agreement and each covenants and agrees to pay, hold
harmless and indemnify the other from and against any and all cost, expense
(including reasonable attorneys' fees) or liability for any compensation,
commission or charges to any broker or agent claiming through the indemnifying
party with respect hereto.
10. Tenant represents and warrants that it has taken all necessary
corporate, partnership or other action necessary to execute and deliver this
Agreement, and that this Agreement constitutes the legally binding obligation of
Tenant, enforceable in accordance with its terms. Tenant further represents and
warrants that it has full and complete authority to enter into and execute this
Agreement and acknowledges that Landlord is relying upon Tenant's representation
of its authority to execute this Agreement and Tenant shall save and hold
Landlord harmless from any claims or damages, including reasonable attorneys'
fees, arising from Tenant's misrepresentation of its authority to enter into and
execute this Agreement.
11. This Agreement is executed by certain employees of the State
Teachers Retirement System of Ohio, not individually, but solely on behalf of
Landlord, the authorized nominee and agent for The State Teachers Retirement
Board of Ohio ("STRBO"). In consideration for entering into this Agreement,
Tenant hereby waives any rights to bring a cause of action against the
individuals executing this Agreement on behalf of Landlord (except for any cause
of action based upon lack of authority or fraud), and all persons dealing with
Landlord
3
<PAGE>
must look solely to Landlord's assets for the enforcement of any claim against
Landlord, and the obligations hereunder are not binding upon, not shall resort
be had to the private property of any of the trustees, officers, directors,
employees or agents of STRBO.
12. Capitalized terms used but not defined herein shall have the
meanings ascribed to them in the Lease.
13. As amended hereby, the Lease is ratified and confirmed and
declared to be in full force and effect.
IN WITNESS WHEREOF, parties have set their respective hands as of the date
first above written.
LANDLORD:
OTR, an Ohio general partnership, as nominee
for the State Teachers Retirement System of Ohio
By:________________________________
a General Partner,
Hereunto Duly Authorized
TENANT:
PERITUS SOFTWARE SERVICES, INC.
By: ____________________________
Name:
Title:
4
<PAGE>
EXHIBIT 11
PERITUS SOFTWARE SERVICES, INC.
STATEMENT RE COMPUTATION OF NET LOSS PER COMMON SHARE
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------- -------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net loss, as reported..................... $ (71) $(16,132) $(2,558) $(21,329)
Net loss attributable to common
stockholders........................... $ (71) $(16,132) $(2,558) $(21,329)
------- -------- ------- --------
Weighted averages shares outstanding -
Basic..................................... 16,763 16,294 16,496 16,121
Adjustments thereto:
Shares attributable to common stock
equivalents............................ -- -- -- --
Weighted average shares outstanding -
Diluted................................ 16,763 16,294 16,496 16,121
======= ======== ======= ========
Net loss per share:
Basic..................................... $ (0.00) $ (0.99) $ (0.16) $ (1.32)
======= ======== ======= ========
Diluted................................... $ (0.00) $ (0.99) $ (0.16) $ (1.32)
======= ======== ======= ========
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 3-MOS 9-MOS
<FISCAL-YEAR-END> DEC-31-1999 DEC-31-1999
<PERIOD-START> JUL-01-1999 JAN-01-1999
<PERIOD-END> SEP-30-1999 SEP-30-1999
<CASH> 2,470 2,470
<SECURITIES> 0 0
<RECEIVABLES> 709 709
<ALLOWANCES> 187 187
<INVENTORY> 0 0
<CURRENT-ASSETS> 3,656 3,656
<PP&E> 2,665 2,665
<DEPRECIATION> 1,815 1,815
<TOTAL-ASSETS> 4,638 4,638
<CURRENT-LIABILITIES> 2,209 2,209
<BONDS> 0 0
0 0
0 0
<COMMON> 172 172
<OTHER-SE> 2,229 2,229
<TOTAL-LIABILITY-AND-EQUITY> 4,638 4,638
<SALES> 149 1,937
<TOTAL-REVENUES> 1,960 9,740
<CGS> 15 162
<TOTAL-COSTS> 1,125 6,129
<OTHER-EXPENSES> 926 6,227
<LOSS-PROVISION> 187 187
<INTEREST-EXPENSE> (25) (63)
<INCOME-PRETAX> (66) (2,553)
<INCOME-TAX> 5 5
<INCOME-CONTINUING> (71) (2,558)
<DISCONTINUED> 0 0
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> (71) (2,558)
<EPS-BASIC> (0.00) (0.16)
<EPS-DILUTED> (0.00) (0.16)
</TABLE>
