SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1998
Commission File No. 0-20943
Intelligroup, Inc.
------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
New Jersey 11-2880025
- ------------------------------- ------------------------------------
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
517 Route One South, Iselin, New Jersey 08830
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
(732) 750-1600
------------------------------
(Registrant's Telephone Number,
Including Area Code)
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 Registrant's
classes of common stock, as of April 30, 1998:
Class Number of Shares
- ----- ----------------
Common Stock, $.01 par value 12,025,029
- --------
* Prior to this filing, the Registrant was a "small business issuer" filing all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 pursuant to Regulation S-B. Commencing with this filing, the
Registrant is filing such reports in compliance with Regulation S-K.
<PAGE>
INTELLIGROUP, INC. AND SUBSIDIARIES
TABLE OF CONTENTS
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Page
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PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements....................... 1
Consolidated Balance Sheets
as of March 31, 1998 (unaudited)
and December 31, 1997 .................................. 2
Consolidated Statements of Income
for the Three Months Ended
March 31, 1998 and 1997 (unaudited)..................... 3
Consolidated Statements of Cash Flows
for the Three Months Ended
March 31, 1998 and 1997 (unaudited)..................... 4
Notes to Consolidated Financial Statements (unaudited).. 5
Item 2. Management's Discussion and Analysis of
Results of Operations and Financial Condition .......... 7
PART II. OTHER INFORMATION
Item 1. Legal Proceedings....................................... 13
Item 5. Other Information....................................... 14
Item 6. Exhibits and Reports on Form 8-K........................ 15
SIGNATURES............................................................. 16
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<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
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<PAGE>
<TABLE>
INTELLIGROUP, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
March 31, 1998 and December 31, 1997
<CAPTION>
March 31, December 31,
1998 1997
---------- ------------
(unaudited)
Assets
<S> <C> <C>
Current Assets:
Cash and cash equivalents ............................................... $ 3,425,000 $ 8,391,000
Accounts receivable, less allowance for doubtful accounts of $1,088,000
at March 31, 1998 and $799,000 at December 31, 1997, respectively ... 21,424,000 17,668,000
Unbilled services ....................................................... 9,339,000 7,834,000
Deferred income taxes ................................................... 404,000 404,000
Other current assets .................................................... 1,164,000 668,000
------------ ------------
Total current assets ................................................ 35,756,000 34,965,000
Equipment, net ............................................................... 5,153,000 3,366,000
Other assets ................................................................. 1,219,000 337,000
------------ ------------
$ 42,128,000 $ 38,668,000
============ ============
Liabilities and Shareholders' Equity
Current Liabilities:
Accounts payable ........................................................ $ 1,974,000 $ 1,353,000
Accrued payroll and related taxes ....................................... 3,076,000 2,636,000
Accrued expenses and other liabilities .................................. 1,605,000 1,074,000
Income taxes payable .................................................... 697,000 901,000
Current portion of obligations under capital leases ..................... 20,000 20,000
------------ ------------
Total current liabilities ........................................... 7,372,000 5,984,000
------------ ------------
Obligations under capital leases, less current portion ....................... 51,000 51,000
------------ ------------
Deferred income taxes ........................................................ 171,000 171,000
------------ ------------
Commitments and contingencies
Shareholders' Equity
Preferred stock, $.01 par value, 5,000,000 shares authorized, none issued
or outstanding ...................................................... -- --
Common stock, $.01 par value, 25,000,000 shares authorized;
12,022,498 and 11,987,981 shares issued and outstanding at
March 31, 1998 and December 31, 1997, respectively .................. 120,000 120,000
Additional paid-in capital .............................................. 30,477,000 30,175,000
Retained earnings ....................................................... 4,167,000 2,325,000
Currency translation adjustments ........................................ (230,000) (158,000)
------------ ------------
Total shareholders' equity .......................................... 34,534,000 32,462,000
------------ ------------
$ 42,128,000 $ 38,668,000
============ ============
See accompanying notes to consolidated financial statements.
</TABLE>
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<TABLE>
INTELLIGROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
For the Three Months Ended March 31, 1998 and 1997
(unaudited)
<CAPTION>
Three Months Ended March 31,
1998 1997
------------ -----------
<S> <C> <C>
Revenue .......................................................................... $ 27,323,000 $15,738,000
Cost of sales .................................................................... 17,943,000 11,336,000
------------ -----------
Gross profit ................................................................ 9,380,000 4,402,000
Selling, general and administrative expenses 6,891,000 3,086,000
----------- -----------
Operating income ............................................................ 2,489,000 1,316,000
Interest income .................................................................. 80,000 79,000
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Income before provision for income taxes ......................................... 2,569,000 1,395,000
Provision for income taxes ....................................................... 727,000 558,000
------------ -----------
Net income ....................................................................... $ 1,842,000 $ 837,000
============ ===========
Earnings per share:
Basic earnings per share:
Net income per share ................................................... $ 0.15 $ 0.08
============ ===========
Weighted average number of common shares - Basic ....................... 11,997,000 10,736,000
============ ===========
Diluted earnings per share:
Net income per share ................................................... $ 0.15 $ 0.08
============ ===========
Weighted average number of common shares - Diluted ..................... 12,419,000 10,889,000
============ ===========
Comprehensive Income
- --------------------
Net income ....................................................................... $ 1,842,000 $ 837,000
Other comprehensive income -
Currency translation adjustments ................................................. (72,000) --
------------ -----------
Comprehensive income ............................................................. $ 1,770,000 $ 837,000
============ ===========
</TABLE>
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<TABLE>
INTELLIGROUP, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
For the Three Months Ended March 31, 1998 and 1997
(unaudited)
<CAPTION>
March 31, March 31,
1998 1997
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<S> <C> <C>
Cash flows from operating activities:
Net income...................................................................... $ 1,842,000 $ 837,000
Adjustments to reconcile net income to net cash
used in operating activities:
Depreciation and amortization................................................ 195,000 56,000
Provision for doubtful accounts.............................................. 250,000 --
Changes in operating assets and liabilities:
Accounts receivable.......................................................... (4,006,000) 1,647,000
Unbilled services............................................................ (1,505,000) (3,113,000)
Other current assets......................................................... (496,000) (137,000)
Other assets................................................................. (882,000) (149,000)
Accounts payable............................................................. 621,000 247,000
Accrued payroll and related taxes............................................ 440,000 265,000
Accrued expenses and other liabilities....................................... 531,000 (720,000)
Income taxes payable...................................................... (204,000) (31,000)
-------------- --------------
Net cash used in operating activities................................. (3,214,000) (1,098,000)
-------------- -------------
Cash flows from investing activities:
Purchase of equipment........................................................ (1,982,000) (1,047,000)
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Cash flows from financing activities:
Proceeds from exercise of stock options.......................................... 302,000 --
Principal payments under capital leases....................................... -- (4,000)
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Net cash provided by (used in) financing activities................... 302,000 (4,000)
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Effect of foreign currency exchange rate changes on cash...................... (72,000) --
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Net decrease in cash and cash equivalents ............................... (4,966,000) (2,149,000)
Cash and cash equivalents at beginning of period................................... 8,391,000 7,479,000
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Cash and cash equivalents at end of period............................................ $ 3,425,000 $ 5,330,000
=========== =============
Supplemental disclosures of cash flow information:
Cash paid for income taxes....................................................... $ 933,000 $ 586,000
=========== =============
See accompanying notes to consolidated financial statements.
</TABLE>
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INTELLIGROUP, INC. and SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(unaudited)
(1) BASIS OF PRESENTATION
The consolidated financial statements and accompanying financial
information as of March 31, 1998 and for the three months ended March 31, 1998
and 1997 are unaudited and, in the opinion of management, include all
adjustments (consisting only of normal recurring adjustments) which the Company
considers necessary for a fair presentation of the financial position of the
Company at such dates and the operating results and cash flows for those
periods. The financial statements included herein have been prepared in
accordance with generally accepted accounting principles and the instructions of
Form 10-Q and Rule 10-01 of Regulation S-X. Accordingly, certain information and
footnote disclosures normally included in financial statements prepared in
accordance with generally accepted accounting principles have been condensed or
omitted. These financial statements should be read in conjunction with the
Company's audited financial statements for the year ended December 31, 1997,
which were included as part of the Company's Form 10-KSB.
Results for interim periods are not necessarily indicative of results
for the entire year.
(2) EARNINGS PER SHARE
In 1997, the Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards No. 128 "Earnings per Share" ("SFAS
128") which has replaced the former rules for earnings per share computations,
presentation and disclosure. Under the new standard, basic earnings per share
excludes dilution and is computed by dividing income available to common
shareholders by the weighted average number of common stock outstanding for the
period. Diluted earnings per share reflects the potential dilution that could
occur if securities or other contracts to issue common stock were exercised or
converted into common stock.
The Company has adopted SFAS 128 and, as required by the standard, has
restated all prior period earnings per share data. The Company's new earnings
per share amounts as calculated under SFAS 128 are not materially different from
those computed under the former accounting standard.
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<PAGE>
A reconciliation of weighted average number of common shares
outstanding to weighted average common shares outstanding assuming dilution is
as follows as of March 31-
1998 1997
---- ----
Weighted average number of common shares 11,997,000 10,736,000
Common share equivalents of outstanding 422,000 153,000
stock options ---------- ----------
Weighted average number of common shares 12,419,000 10,889,000
assuming dilution ========== ==========
Stock options outstanding at March 31, 1998 to purchase 30,000 shares
of common stock were not included in the computation of earnings per share
assuming dilution because the options' exercise prices were greater than the
average price of the common shares.
(3) COMPREHENSIVE INCOME
Effective January 1, 1998, the Company adopted the provisions of SFAS
No. 130, "Reporting Comprehensive Income," which establishes standards for
reporting comprehensive income and its components. In June 1997, the FASB issued
SFAS No. 131, "Disclosures about Segments of an Enterprise and Related
Information," which establishes revised reporting and disclosure requirements
for operating segments. These standards increase financial reporting disclosures
and have no impact on the Company's financial position or results from
operations.
(4) LEGAL PROCEEDINGS
The Company is engaged in certain legal and administrative proceedings.
Management believes the outcome of these proceedings will not have a material
adverse effect on the Company's financial position or results of operations.
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<PAGE>
Item 2. Management's Discussion and Analysis of Results of Operations
and Financial Condition.
GENERAL
The Company provides a wide range of information technology services,
including enterprise-wide business process solutions, internet applications
services, systems integration and custom software development based on leading
technologies. The Company has grown rapidly since 1994 when it made a strategic
decision to diversify its customer base by expanding the scope of its
integration and development services and to utilize SAP software as a primary
tool to implement enterprise-wide business process solutions. In 1995, the
Company became a SAP National Implementation Partner and also began to utilize
Oracle products to diversify its service offerings. In 1997, the Company
achieved National Logo Partner status with SAP. The Company's current contract
with SAP expires on December 31, 1998 and provides for an automatic one-year
renewal period unless either party provides at least six weeks prior written
notice of its intention not to renew. This agreement contains no minimum revenue
requirements or cost sharing arrangements and does not provide for commissions
or royalties to either party. In July 1997, the Company achieved AcceleratedSAP
Partner Status with SAP by meeting certain performance criteria established by
SAP. Also, in 1997, the Company began to provide implementation services to
PeopleSoft and Baan licensees to further diversify its service offerings. The
Company recently expanded its Oracle applications implementation services
practice and added upgrade services to meet market demand of mid-size to large
companies that are implementing or upgrading Oracle applications. In July 1997,
the Company was awarded an implementation partnership status by PeopleSoft. In
September 1997, the Company was awarded an international consulting partnership
status by Baan.
The Company generates revenue from professional services rendered to
customers. Revenue is recognized as services are performed. The Company's
services range from providing customers with a single consultant to
multi-personnel full-scale projects. The Company provides these services to its
customers primarily on a time and materials basis and pursuant to written
contracts which can be terminated with limited advance notice, typically not
more than 30 days, and without significant penalty, generally limited to fees
earned and expenses incurred by the Company through the date of termination. The
Company provides its services directly to end-user organizations or as a member
of a consulting team assembled by another information technology consulting firm
to Fortune 1000 and other large and mid-sized companies. The Company generally
bills its customers semi-monthly for the services provided by its consultants at
contracted rates. Where contractual provisions permit, customers also are billed
for reimbursement of expenses incurred by the Company on the customers' behalf.
The Company recently has provided services on certain projects in which
it, at the request of the clients, offered a fixed price for its services,
however, none of these projects is currently material to the Company's business,
financial condition and results of operations. The Company believes that, as it
pursues its strategy of making turnkey project management a larger portion of
its business, it will likely be required to offer fixed price projects to a
greater degree. The Company has had limited prior experience in pricing and
performing under fixed price
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<PAGE>
arrangements and believes that there are certain risks related thereto. There
can be no assurance that the Company will be able to complete such projects
within the fixed price timeframes. The failure to perform within such fixed
price contracts, if entered into, could have a material adverse effect on the
Company's business, financial condition and results of operations.
The Company has derived and believes that it will continue to derive a
significant portion of its revenue from a limited number of customers and
projects. For the three months ended March 31, 1998 and the year ended December
31, 1997, the Company's ten largest customers accounted for in the aggregate of
approximately 45% and 54% of its revenue, respectively. During the three months
ended March 31, 1998, Bristol-Myers Squibb accounted for more than 10% of
revenue. During the year ended December 31, 1997, Price Waterhouse LLP and
Bristol-Myers Squibb each accounted for more than 10% of revenue. For the three
months ended March 31, 1998 and the year ended December 31, 1997, 35% and 38% of
the Company's revenue was generated by serving as a member of consulting teams
assembled by other information technology consulting firms. There can be no
assurance that such information technology consulting firms will continue to
engage the Company in the future at current levels of retention, if at all.
During the three months ended March 31, 1998 and the year ended December 31,
1997, 68% of the Company's total revenue was derived from projects in which the
Company implemented software developed by SAP. During the three months ended
March 31, 1998 and the year ended December 31, 1997, 14% of the Company's total
revenue was derived from projects in which the Company implemented software
developed by Oracle. During the three months ended March 31, 1998, approximately
42% of the Company's revenue was derived from engagements in which the Company
had project management responsibilities, compared to 33% during the year ended
December 31, 1997.
The Company's most significant cost is project personnel expenses,
which consist of consultant salaries, benefits and payroll-related expenses.
Thus, the Company's financial performance is based primarily upon billing margin
(billable hourly rate less the cost to the Company of a consultant on an hourly
basis) and personnel utilization rates (billable hours divided by paid hours).
The Company believes that turnkey project management assignments typically carry
higher margins. The Company has been shifting to such higher-margin turnkey
management assignments and more complex projects by leveraging its reputation,
existing capabilities, proprietary implementation methodology, development tools
and offshore development capabilities with expanded sales and marketing efforts
and new service offerings to develop turnkey project sales opportunities with
both new and existing customers. The Company's inability to continue its shift
to higher-margin turnkey management assignments and more complex projects may
adversely impact the Company's future growth.
Since late 1994, the Company has made substantial investments in its
infrastructure in order to support its rapid growth. For example, in 1994, the
Company established and funded an Advanced Development Center (the "ADC") in
India, and in 1995 established a sales office in California. In addition, from
1994 to date, the Company has incurred expenses to develop proprietary
development tools and 4SIGHT and 4SIGHTplus, its proprietary accelerated
implementation methodology and toolset. Commencing in 1995, the Company has been
increasing its sales force and its marketing, finance, accounting and
administrative staff. The
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<PAGE>
Company employed 144 such personnel as of March 31, 1998, as compared to 59 such
personnel as of March 31, 1997. During 1997, the Company opened sales and
operations offices in Atlanta, Boston and Dallas. In addition to the ADC and
sales offices in India, the Company also has offices in, Australia, Denmark, New
Zealand, Singapore and the United Kingdom. The Company has reviewed the adequacy
of its leased facilities in light of its expanded staff. The Company has
executed a lease for approximately 48,475 square feet, in Edison, New Jersey for
an initial term of 10 years. The Company expects to move its headquarters to
such location in the summer of 1998. The Company expects to be able to sublet
its current headquarters for the remainder of the term of its sublease, which
expires November 15, 1999; however, there is no assurance that the Company will
be able to find a subtenant.
This Form 10-Q contains forward-looking statements within the meaning
of Section 21E of the Securities Exchange Act of 1934, as amended, including,
without limitation, statements regarding the Company's intention to shift to
higher margin turnkey management assignments and more complex projects and to
utilize its proprietary implementation methodology in an increasing number of
projects. Such forward-looking statements include risks and uncertainties,
including, but not limited to: (i) the substantial variability of the Company's
quarterly operating results caused by a variety of factors, many of which are
not within the Company's control, including (a) seasonal patterns of hardware
and software capital spending by customers, (b) information technology
outsourcing trends, (c) the timing, size and stage of projects, (d) new service
introductions by the Company or its competitors and the timing of new product
introductions by the Company's ERP partners, (e) levels of market acceptance for
the Company's services, (f) the hiring of additional staff; (ii) changes in the
Company's billing and employee utilization rates; (iii) the Company's ability to
manage its growth effectively, which will require the Company (a) to continue
developing and improving its operational, financial and other internal systems,
as well as its business development capabilities, (b) to attract, train, retain,
motivate and manage its employees, (c) to continue to maintain high rates of
employee utilization at profitable billing rates and, (d) to maintain project
quality, particularly if the size and scope of the Company's projects increase;
(iv) the Company's ability to maintain an effective internal control structure;
(v) the Company's limited operating history within its current line of business;
(vi) the Company's reliance on a continued relationship with SAP America and the
Company's present status as a SAP National Logo Partner; (vii) the Company's
substantial reliance on key customers and large projects; (viii) the highly
competitive nature of the markets for the Company's services; (ix) the Company's
ability to successfully address the continuing changes in information
technology, evolving industry standards and changing customer objectives and
preferences; (x) the Company's reliance on the continued services of its key
executive officers and leading technical personnel; (xi) the Company's ability
to attract and retain a sufficient number of highly skilled employees in the
future; (xii) the progress the Company may have at continuing to diversify its
offerings, including growth in its Oracle, Baan and PeopleSoft services; (xiii)
uncertainties resulting from pending litigation matters and from potential
administrative and regulatory immigration and tax law matters; and (xiv) the
Company's ability to protect its intellectual property rights. The Company's
actual results may differ materially from the results disclosed in such
forward-looking statements.
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<PAGE>
Results of Operations
The following table sets forth for the periods indicated certain
financial data as a percentage of revenue:
<TABLE>
<CAPTION>
Percentage of Revenue
Three Months Ended March 31,
1998 1997
---- ----
<S> <C> <C>
Revenue...................................................................... 100% 100.0%
Cost of sales................................................................ 65.7 72.0
------- -------
Gross profit............................................................. 34.3 28.0
Selling, general and administrative expenses................................. 25.2 19.6
------- -------
Operating income......................................................... 9.1 8.4
Interest income.............................................................. 0.3 0.5
------- -------
Income before provision for income taxes..................................... 9.4 8.9
Provision for income taxes................................................... 2.7 3.6
------- -------
Net income 6.7% 5.3%
======= =======
</TABLE>
Three Months Ended March 31, 1998 Compared to Three Months Ended March 31, 1997
Revenue. Revenue increased by 73.9%, or $11.6 million, from $15.7
million during the three months ended March 31, 1997 to $27.3 million during the
three months ended March 31, 1998. This increase was attributable primarily to
increased demand for the Company's SAP-related implementation consulting
services and, to a lesser extent, to increased demand for the Company's systems
integration and custom software development services.
Gross profit. The Company's cost of sales includes primarily the cost
of salaries to consultants and related employee benefits and payroll taxes. The
Company's cost of sales increased by 58.4%,or $6.6 million, from $11.3 million
during the three months ended March 31, 1997 to $17.9 million during the three
months ended March 31, 1998. The increase was due to increased personnel costs
resulting from the hiring of additional consultants to support the increase in
demand for the Company's services. The Company's gross profit increased by
113.6%, or $5.0 million, from $4.4 million during the three months ended March
31, 1997 to $9.4 million during the three months ended March 31, 1998. Gross
profit margin increased from 28.0% of revenue during the three months ended
March 31, 1997 to 34.3% of revenue during the three months ended March 31, 1998.
The increase in such gross profit margin was attributable to the increase in
implementation service projects, an increase in utilization of the ADC and
improved billing margins.
Selling, general and administrative expenses. Selling, general and
administrative expenses consist primarily of administrative salaries, sales
personnel compensation, travel and entertainment, some of the costs associated
with the ADC and related development costs and professional fees. Selling,
general and administrative expenses increased by 122.6%, or $3.8 million, from
$3.1 million during the three months ended March 31, 1997 to $6.9 million during
the three months ended March 31, 1998, and increased as a percentage of revenue
from 19.6% to 25.2% of revenue. The increases in such expenses in absolute
dollars and as a percentage of
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revenue were due primarily to the expansion of the Company's sales and marketing
activities, and increased travel and entertainment expenses due to the growth of
the business and the employee base. These expenses were incurred to support the
continued revenue growth of the Company in the United States and abroad. In
addition, such expenses increased due to increased sales and management
recruiting costs, support services and an increase in the provision for doubtful
accounts.
Interest income. Interest income has been earned on interest bearing
cash accounts and short term investments. In accordance with investment
guidelines approved by the Company's Board of Directors, cash balances in excess
of those required to fund operations have been invested in short-term U.S.
Treasury securities and commercial paper with a credit rating no lower than
A1/P1.
Backlog
The Company normally enters into written contracts with its customers
at the time it commences work on a project. These written contracts contain
varying terms and conditions and the Company does not generally believe it is
appropriate to characterize such written contracts as creating backlog. In
addition, because these written contracts often provide that the arrangement can
be terminated with limited advance notice and without significant penalty, the
Company does not believe that projects in process at any one time are a reliable
indicator or measure of expected future revenue. In the event that a customer
terminates a project, the customer remains obligated to pay the Company for
services performed by it through the date of termination.
Liquidity and Capital Resources
The Company funds its operations primarily from cash flow generated
from operations, and to a lesser extent, from cash balances generated from the
Company's initial and follow-on public offerings consummated in October 1996 and
July 1997, respectively.
Cash used in operating activities was $3.2 million during the three
months ended March 31, 1998, resulting primarily from the growth in accounts
receivable and unbilled services. Cash used in operating activities for the
three months ended March 31, 1997 was $1.1 million.
The Company had working capital of $28.4 million at March 31, 1998 and
$29.0 million at December 31, 1997.
The Company invested $2.0 million and $1.0 million in computer
equipment and furniture during the three months ended March 31, 1998 and 1997,
respectively. The Company has outstanding commitments of $800,000 related to
furniture and fixtures for the new headquarters in Edison, New Jersey. Of this
amount, $200,000 was paid subsequent to March 31, 1998.
In January 1997, and as later amended on August 18, 1997, the Company
entered into a two-year credit agreement with a bank (the "Bank"). The credit
facility with the Bank has two components comprised of (i) a revolving line of
credit pursuant to which the Company may
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borrow up to $7.5 million either at the Bank's prime rate per annum or the
EuroRate plus 2% (at the Company's option), and (ii) equipment term loans
pursuant to which the Company may borrow up to an aggregate of $350,000 (at the
Bank's prime rate plus 1/4 of 1% per annum) to purchase equipment. The credit
agreement contains covenants which require the Company to (i) maintain its
working capital during the year at no less than 90% of the working capital at
the end of the immediately preceding fiscal year and at the end of each fiscal
year at no less than 105% of its working capital at the end of the immediately
preceding fiscal year; and (ii) maintain its tangible net worth during the year
at no less than 95% of its tangible net worth at the end of the immediately
preceding fiscal year and at the end of each fiscal year at no less than 108% of
tangible net worth at the end of the immediately preceding fiscal year. As of
March 31, 1998, the Company is in compliance with debt covenants. The Company's
obligations under the credit agreement are collateralized by substantially all
of the Company's assets, including its accounts receivable and intellectual
property. The Company's obligations under the credit facility are payable at the
expiration of such facility on January 22, 1999. These terms are subject to the
Company maintaining an unsubordinated debt to tangible net worth ratio of no
greater than one to one and an earnings before interest and taxes to interest
expense ratio of no less than three to one.
As of March 31, 1998, there were no amounts outstanding under the
revolving line of credit and no equipment term loans outstanding.
The Company believes that its available funds, together with current
credit arrangements and the cash flows expected to be generated from operations,
will be adequate to satisfy its current and planned operations through at least
the next 12 months.
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<PAGE>
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
On February 16, 1996, the Company, as plaintiff, filed a complaint in
the Superior Court of New Jersey, Chancery Division, Middlesex County, against a
former consultant to the Company, seven former employees of the Company and
Pegasus Systems, Inc. ("Pegasus"), a corporation which currently employs certain
of such individuals (collectively, the "Defendants"). The complaint, which seeks
damages and injunctive relief against the Defendants, alleges, among other
things, misappropriation of proprietary information, unfair competition,
tortious interference, breach of employment agreements, breach of a consulting
agreement between the Company and Pegasus, and breach of duty of loyalty, good
faith and fair dealing. Upon the filing of its complaint, the Company obtained a
temporary restraining order and in May 1996 obtained a preliminary injunction
prohibiting the Defendants from using or disclosing the Company's proprietary
information, prohibiting the Defendants from contacting or soliciting certain of
the Company's customers and prohibiting the Defendants from recruiting or
attempting to recruit the Company's employees, agents or contractors. The
preliminary injunction remains in effect and the Company intends to pursue
vigorously enforcement of the injunction against the Defendants. The Defendants
have filed an answer and counterclaim. Pegasus has asserted a breach of contract
counterclaim against the Company alleging that the Company owes it $129,000 for
consulting services. Pegasus and two of the individual Defendants also asserted
claims against the Company and two of its officers for tortious interference and
defamation. In addition, one of the individual Defendants has asserted that the
Company owes him $70,000 in commissions. In addition to monetary damages the
Defendants seek injunctive relief. The Defendants unsuccessfully sought a
temporary restraining order against the Company. The Company denies the
allegations made and intends to defend vigorously the counterclaims. The Company
does not believe that the outcome of these claims and counterclaims will have a
material effect upon the Company's business, financial condition or results of
operations.
Oxford Systems Inc. ("Oxford"), a New Jersey corporation and formerly a
wholly-owned subsidiary of the Company which was merged into the Company in
December 1996, was named as a defendant in a civil complaint that was filed on
June 8, 1995, by Design Strategy Corp. ("Design Strategy"), in New York State
Supreme Court in the County of New York. Design Strategy alleges that another
named defendant, Citibank N.A. ("Citibank"), contracted with Design Strategy for
database administration services. Design Strategy claims that Citibank and
Oxford conspired to deprive it of commissions, tortiously interfered with
contract, engaged in unfair competition, damaged its reputation and
misappropriated services. Design Strategy settled its claims against Citibank.
Design Strategy then moved to amend its complaint to substitute the Company for
Oxford and to join Nagarjun Valluripalli, the Company's President of
International Operations, as defendants. At the same time, Oxford and another
defendant cross-moved for summary judgment. Thereafter, on September 9, 1997,
the New York State Supreme Court granted Design Strategy's motion to add the
Company and Mr. Valluripalli as defendants while simultaneously granting the
Company's cross-motion for summary judgment. On September 18, 1997, the Court
entered a decision and order dismissing Design Strategy's complaint in its
entirety. Subsequently, on October 17, 1997, Design Strategy filed a notice of
motion of reargument of the Decision and a notice of appeal. The appeal is
currently scheduled to be heard
- 13 -
<PAGE>
in June 1998. The Company does not believe that the outcome of these claims will
have a material effect upon the Company's business, financial condition or
results of operations.
On February 13, 1998, Russell Schultz, a former employee of the
Company, filed a complaint in the Superior Court of New Jersey, Law Division,
Monmouth County, naming the Company as a defendant. The complaint, which seeks
damages, alleges, among other things, that the Company misrepresented
plaintiff's job description in order to induce plaintiff to leave his prior
employer, failed to provide stock options to the plaintiff and violated
plaintiff's written employment contract. The Company was served with the
complaint on March 16, 1998, and is still in the process of evaluating the
merits of the claims. The Company has obtained an extension of time in which to
file an answer to the plaintiff's complaint. It is too early in the litigation
process to determine the impact, if any, that such litigation will have upon the
Company's business, financial condition or results of operations.
There is no other material litigation pending to which the Company is a
party or to which any of its property is subject.
Item 5. Other Information.
On February 27, 1998, Robert M. Olanoff resigned as Chief Financial
Officer and as an employee of the Company.
On March 31, 1998, Sophien Bennaceur resigned as Senior Vice President
- - North American Operations and as an employee of the Company.
On April 29, 1998, Stephen A. Carns was appointed President and Chief
Executive Officer of the Company. Mr. Carns, 52, has approximately 30 years of
executive management experience in professional services companies. He joined
the Company as General Manager in 1998. From 1995 until joining the Company, Mr.
Carns served as President of TLB Enterprises, LLC. Prior to that, from 1994
until 1995, Mr. Carns served as Executive Vice President of Unisys Corporation,
responsible for world wide operations at Unisys Corporation . From 1992 until
1994, Mr. Carns served as President and Chief Operating Officer of Systematics,
Inc., an international outsourcing firm. Prior to joining Systematics, from 1990
until 1992, he served as President and Chief Operating Officer of Cap Gemini
America, a computer services and business consultancy company.
On April 29, 1998, Gerard E. Dorsey was appointed Senior Vice President
- - Finance and Chief Financial Officer of the Company. Mr. Dorsey, 51, has 25
years of CFO, treasury and accounting experience. Most recently, he served as
Senior Vice President-Finance and Chief Financial Officer of Ariel Corporation,
a data communications company. Prior to joining Ariel Corporation, from 1991
until 1995, Mr. Dorsey served as Chief Financial Officer of Information
Management Technologies Corporation, a printing and office services outsourcing
company. From 1987 until 1990, Mr.Dorsey served as Treasurer of Loral
Corporation.
At the same time, Ashok Pandey, Rajkumar Koneru and Nagarjun
Valluripalli were named as Co-Chairmen of the Board. Mr. Pandey will no longer
serve as President of Corporate Services and Acting Chief Financial Officer, but
instead, will be responsible for strategic
- 14 -
<PAGE>
planning, market research and methods and tools. Mr. Koneru will no longer serve
as President of U.S. Operations, but instead, will manage application
outsourcing, new business development and mergers and acquisitions. Mr.
Valluripalli will continue to serve as President of International Operations.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits.
10.1 Lease Agreement between Alfieri-Parkway Associates,
as Landlord and Intelligroup, Inc., as Tenant, dated
March 17, 1998.
10.2 Employment Agreement dated April 22, 1998 between the
Company and Gerard E. Dorsey.
10.3 Employment Agreement dated April 27, 1998 between the
Company and Stephen A. Carns.
27.1 Financial Data Schedule for the period ended March
31, 1998.
27.2 Restated Financial Data Schedule - EPS for the year
ended December 31, 1997.
27.3 Restated Financial Data Schedule - EPS for the period
ended September 30, 1997.
27.4 Restated Financial Data Schedule - EPS for the period
ended June 30, 1997.
27.5 Restated Financial Data Schedule - EPS for the period
ended March 31, 1997.
27.6 Restated Financial Data Schedule - EPS for the year
ended December 31, 1996.
27.7 Restated Financial Data Schedule - EPS for the period
ended September 30, 1996.
(b) Reports on Form 8-K.
No reports on Form 8-K were filed during the quarter
for which this report on Form 10-Q is filed.
Subsequent to the end of the quarter, however, on May
4, 1998, the Company filed a report on Form 8-K to
disclose certain management changes.
- 15 -
<PAGE>
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.
Intelligroup, Inc.
DATE: May 15, 1998 By: /s/ Stephen A. Carns
--------------------------
Stephen A. Carns,
President and Chief Executive Officer
(Principal Executive Officer)
DATE: May 15, 1998 By: /s/ Gerard E. Dorsey
--------------------------
Gerard E. Dorsey,
Senior Vice President - Finance
and Chief Financial Officer
(Principal Financial and Accounting
Officer)
- 16 -
================================================================================
LEASE AGREEMENT
BETWEEN
ALFIERI-PARKWAY ASSOCIATES,
AS LANDLORD
-AND-
INTELLIGROUP, INC.,
AS TENANT
PREMISES: 499 THORNALL STREET
EDISON, NEW JERSEY
10TH & 11TH FLOORS
DATED: MARCH 17,1998
================================================================================
<PAGE>
INDEX
-----
ARTICLE CAPTION PAGE
- ------- ------- ----
1 Demised Premises, Term, Rent......................... 1
2 Use.................................................. 2
3 Preparation of the Demised Premises.................. 3
4 When Demised Premises Ready for Occupancy............ 3
5 Additional Rent...................................... 4
6 Subordination, Notice to Mortgagees.................. 8
7 Quiet Enjoyment...................................... 9
8 Assignment, Mortgaging, Subletting................... 9
9 Compliance with Laws and Requirements of
Public Authorities................................. 11
10 Insurance............................................ 12
11 Rules and Regulations................................ 14
12 Tenant's Changes..................................... 14
13 Tenant's Property.................................... 16
14 Repairs and Maintenance.............................. 17
15 Electricity.......................................... 18
16 Heating, Ventilation and Air-Conditioning............ 20
17 Landlord's Other Services............................ 20
18 Access, Changes in Building Facilities, Name......... 21
19 Notices of Accidents................................. 22
20 Non-Liability and Indemnification.................... 23
(i)
<PAGE>
21 Destruction or Damage................................ 23
22 Eminent Domain....................................... 25
23 Surrender............................................ 27
24 Conditions of Limitation............................. 27
25 Re-Entry by Landlord................................. 28
26 Damages.............................................. 29
27 Waivers.............................................. 31
28 No Other Waivers or Modifications.................... 31
29 Curing Tenant's Defaults............................. 32
30 Broker............................................... 33
31 Notices.............................................. 33
32 Estoppel Certificate................................. 33
33 Arbitration.......................................... 34
34 No Other Representations, Construction,
Governing Law...................................... 35
35 Security............................................. 35
36 Parties Bound........................................ 36
37 Consents............................................. 37
38 Mortgage Financing - Tenant Cooperation.............. 37
39 Environmental Compliance............................. 37
40 Holding Over......................................... 38
41 Certain Definitions & Constructions.................. 39
(ii)
<PAGE>
42 Relocation of Tenant................................. 39
43 Option to Renew...................................... 40
44 Right of First Negotiation........................... 40
45 Satellite Dish....................................... 41
EXHIBIT A - Description of Land
EXHIBIT B - Floor Plan
EXHIBIT C - Separate Workletter
EXHIBIT D - Cleaning and Maintenance Specifications
EXHIBIT E - Rules and Regulations
EXHIBIT F - Definitions
EXHIBIT G - Subordination, Non-Disturbance
and Attornment Agreement
EXHIBIT H - Form of Commencement Letter
(iii)
<PAGE>
LEASE, dated March 17, 1998, between ALFIERI-PARKWAY ASSOCIATES, a New
Jersey General Partnership, c/o Alfieri Property Management, having its
principal office located at 399 Thornall Street, P.O. Box 2911, Edison, New
Jersey 08S18-2911, ("Landlord"), and INTELLIGROUP, INC., a New Jersey
Corporation, having its principal office located at 70 Wood Avenue, Iselin, New
Jersey 08830, ("Tenant").
WITNESSETH:
-----------
ARTICLE 1
DEMISED PREMISES, TERM, RENT
1.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the premises hereinafter described, in the building located at 499
Thornall Street, Edison, New Jersey, ("Building") on the parcel of land more
particularly described in Exhibit A ("Land"), for the term hereinafter stated,
for the rents hereinafter reserved and upon and subject to the conditions
(including limitations, restrictions and reservations) and covenants hereinafter
provided. Each party hereby expressly covenants and agrees to observe and
perform all of the conditions and covenants herein contained on its part to be
observed and performed.
1.02. The premises hereby leased to Tenant is the 10th and 11th floors of
the Building, as shown on the floor plans annexed hereto as Exhibit B. Landlord
and Tenant have mutually agreed that the premises leased has a total rentable
area of 48,476 square feet which includes Tenant's share of the common area.
Said premises, together with all fixtures and equipment which at the
commencement, or during the term of this Lease are thereto attached (except
items not deemed to be included therein and removable by Tenant as provided in
Article 13) constitute the "Demised Premises".
1.03. The term of this Lease, for which the Demised Premises are hereby
leased, shall commence on a date ("Commencement Date") which shall be (i) the
day on which the Demised Premises are ready for occupancy (as defined in Article
4) or (ii) the day Tenant, or anyone claiming under or through Tenant, first
occupies the Demised Premises for business, whichever occurs earlier, and shall
end at noon on the last day of the calendar month in which occurs the day
preceding the tenth (10th) anniversary of the Commencement Date, which ending
date is hereinafter called the "Expiration Date", or shall end on such earlier
date upon which said term may expire or be canceled or terminated pursuant to
any of the conditions or covenants of this Lease or pursuant to law. Promptly
following the Commencement Date, the Landlord shall notify Tenant in writing of
the Commencement Date and the Expiration Date as determined in accordance with
this Section. Attached hereto as Exhibit H is a form of the notice which shall
be used by Landlord to identify the Commencement Date.
<PAGE>
1.04. The rents reserved under this Lease, for the term thereof, shall be
and consist of:
(a) Fixed rent of $1,163,424.00 per year, (calculated on the basis of
$24.00/sq. ft. for 48,476 sq. ft. of rentable area) which shall be payable in
equal monthly installments of $96,952.00 in advance on the first day of each and
every calendar month during the term of this Lease, (except Tenant shall pay,
upon execution and delivery of this Lease by Tenant, the sum of $96,952.00 to be
applied against the first monthly installment or installments of fixed rent
becoming due under this Lease) and
(b) Additional rent consisting of all such other sums of money as
shall become due from and payable by Tenant to Landlord hereunder (for default
in payment of which Landlord shall have the same remedies as for a default in
payment of fixed rent),
all to be paid to Landlord at its office, or such other place, or to such agent
at such place, as Landlord may designate by notice to Tenant, in lawful money of
the United States of America.
1.05. Tenant shall pay the fixed rent and additional rent herein reserved
promptly as and when the same shall become due and payable, without demand
therefor and without any abatement, deduction or setoff whatsoever.
1.06. If the Commencement Date occurs on a day other than the first day of
a calendar month, the fixed rent for such calendar month shall be prorated and
the balance of the first month's fixed rent paid in accordance with Section 1.04
above shall be credited against the next monthly installment of fixed rent.
1.07. Late payments of any payment of rent, including monthly rent or any
portion thereof, which is not received within seven (7) days after it is due,
will be subject to a late charge equal to five percent (5%) of the unpaid
payment, or $100.00, whichever is greater. This amount is in compensation of
Landlord's additional cost of processing late payments. In addition, any rent
which is not paid when due, including monthly rent, will accrue interest at a
late rate charge of First Union Prime Rate plus three percent (3%) per annum, as
said rate is reasonably determined by Landlord from published reports, (but in
no event in an amount in excess of the maximum rate allowed by applicable law)
from the date on which it was due until the date on which it is paid in full
with accrued interest. Notwithstanding the foregoing, in every calendar year
Tenant shall be entitled to one instance of late payment of rent without any
late charge or late rate interest charge provided Tenant pays Landlord within
five (5) days of written demand served by Landlord upon Tenant. If Tenant is in
default of the Lease for failure to pay rent, in addition to the late charges
and interest set forth above, Tenant shall be charged with all attorney fees in
connection with any litigation successfully brought by Landlord for the
collection of all sums due Landlord.
-2-
<PAGE>
ARTICLE 2
USE
2.01. Tenant shall use and occupy the Demised Premises for executive and
general of offices for the transaction of Tenant's business and for no other
purpose.
2.02. The use of the Demised Premises for the purposes specified in Section
2.01 shall not include, and Tenant shall not use or permit the use of the
Demised Premises or any part thereof, for:
(a) A school of any kind other than for the training of Tenant's
present or future employees;
(b) An employment agency; or
(c) An office for any governmental or quasi governmental bureau,
department, agency, foreign or domestic, including any autonomous governmental
corporation or diplomatic or trade mission.
(d) Any telemarketing activities or other direct selling activities
where telemarketing is the primary operation; or
(e) Any use, including executive and general office use, which results
in a density of a population of more than one person for every 200 square feet.
The foregoing density standard shall not be deemed violated when exceeded under
short term or temporary events arising out of or relating to training activities
of Tenant.
2.03. If any governmental license or permit, other than a Certificate of
Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises, or any part thereof, and if failure to secure
such license or permit would in any way affect Landlord, Tenant, at its expense,
shall submit the same to inspection by Landlord. Tenant shall at all times
comply with the terms and conditions of each such license or permit.
2.04. Tenant shall not at any time use or occupy, or do or permit anything
to be done in the Demised Premises, in violation of the Certificate of Occupancy
(or other similar municipal ordinance) governing the use and occupation of the
Demised Premises or for the Building.
-3-
<PAGE>
ARTICLE 3
PREPARATION OF THE DEMISED PREMISES
3.01. The Demised Premises shall be completed and prepared for Tenant's
occupancy in the manner, and subject to the terms, conditions and covenants, set
forth in Exhibit C and any attachments thereto. The facilities, materials, and
work so to be furnished, installed, and performed in the Demised Premises by
Landlord at its expense are hereinafter and in Exhibit C referred to as
"Landlord's Work". Such other installations, materials, and work which may be
undertaken by or for the account of Tenant to equip, decorate, and furnish the
Demised Premises for Tenant's occupancy, commonly called finishing trades work,
are hereinafter and in Exhibit C called "Tenant's Finish Work." All terms and
provisions relating to allowances, bidding and construction, if any, shall be
set forth on Exhibit C and any attachments thereto. After review and completion
of the final construction drawings, Landlord shall notify Tenant in writing of
any restoration Tenant shall be responsible for upon the termination of this
Lease. In any event, Tenant shall remove from the Demised Premises all equipment
comprising Tenant's Voice, Data and Security Systems, including associated
outlets, wires, wiring trays and other equipment, materials and facilities,
whether located in the ceiling, floor and/or walls which in any way relates,
pertains to, constitutes or is connected with Tenant's Voice, Data and/or
Security Systems and regardless of whether Landlord or Tenant installed and/or
paid for the installation of such systems.
ARTICLE 4
WHEN DEMISED PREMISES READY FOR OCCUPANCY
4.01. The Demised Premises shall be deemed ready for occupancy on the
earliest date on which all of the following conditions have been met:
(a) A Certificate of Occupancy (temporary or final) has been issued by
the applicable governmental authorities, permitting Tenant's use of the Demised
Premises for the purposes for which the same have been leased.
(b) Landlord's Work, and so much of Tenant's Finish Work as Landlord
shall have undertaken in accordance with Exhibit C or by separate letter
agreement, in the Demised Premises have been substantially completed, and same
shall be so deemed notwithstanding the fact that minor or insubstantial details
of construction, mechanical adjustment, or decoration or special Finish Work
requested by Tenant, such as cabinetry remain to be performed, the
non-completion of which does not materially interfere with Tenant's use of the
Demised Premises.
(c) Reasonable means of access and facilities necessary to Tenant's
use and occupancy of the Demised Premises, including corridors, elevators and
stairways, and
-4-
<PAGE>
heating ventilating, air conditioning, sanitary, water, and electrical
facilities, have been installed and are in reasonably good operating order and
available to Tenant.
4.02. If making the Demised Premises ready for occupancy shall be delayed
by any act or omission of Tenant or any of its employees, agents or contractors
or any failure (not due to any act or omission of Landlord or any of its
employees, agents or contractors) to plan or execute Tenant's Finish Work
diligently or by reason of Tenant's failure to submit Tenant's plans and
specifications in the manner set forth in this Lease, the Demised Premises shall
be deemed ready for occupancy on the date when they would have been ready but
for such delay. Landlord shall provide Tenant with fax or telephonic notice with
a 48 hour cure period before claiming a Tenant Delay.
4.03. If and when Tenant shall take actual possession of the Demised
Premises, it shall be conclusively presumed that the same were in satisfactory
condition (except for latent defects) as of the date of such taking of
possession, unless within ninety (90) days after such date Tenant shall give
Landlord notice specifying the respects in which the Demised Premises were not
in satisfactory condition. Landlord shall complete any incomplete items in a
timely manner.
4.04. Notwithstanding anything to the contrary contained in Article 3 and
Article 4, but subject to Section 4.02 and Tenant's final approval of plans and
specifications, Landlord shall proceed with dispatch and due diligence towards
preparation of construction drawings and the obtaining of all applicable
construction permits. Tenant agrees that it shall cooperate with and facilitate
Landlord's efforts with regard thereto. Landlord further confirms that, subject
to Section 4.02, it shall substantially complete Landlord's Work in accordance
with Section 4.01 within five (5) months of the issuance of all applicable
construction permits and the execution of all acceptable construction agreements
as required by Exhibit C. If Landlord has not substantially completed Landlord's
Work within the aforesaid five (5) months in accordance with Section 4.01,
Tenant at its option, shall have the right to provide Landlord with a written
notice of termination with such notice being served no earlier than the last day
of the five (5) month period. Thereupon, this Lease shall terminate within
thirty (30) days of Landlord's receipt of such written notice unless Landlord
shall have substantially completed Landlord's Work in accordance with Section
4.01. In the event Landlord has readied the Demised Premises for occupancy in
accordance with Section 4.01 during such thirty (30) day period, then this Lease
shall continue without regard to such notice of termination.
4.05. Landlord and Tenant further agree that if at such time as Landlord
has applied or is about to apply for construction permits, the Township of
Edison and/or other applicable construction permitting agencies have announced
an official moratorium on the issuance of construction permits applicable (but
whether or not so limited) to the Township of Edison, Landlord shall so advise
Tenant of such moratorium. If such moratorium shall continue for four (4) months
therefrom such that Landlord is unable to obtain or apply for applicable
construction permits, then Tenant shall have the right to terminate this Lease
upon ten (10) days written notice to Landlord served after the expiration of
such four (4) month period. In that event Tenant shall vacate any temporary
space occupied by Tenant within twenty (20) days of its
-5-
<PAGE>
notice of termination and Landlord upon such vacation shall return to Tenant any
deposits and security deposits required under this Lease. In that event, this
Lease and any temporary Lease shall terminate without any further liability of
one party to the other upon such vacation. If Tenant determines not to exercise
its right to terminate by reason of such moratorium, then this Lease shall
continue in full force and effect. However, thereafter and for a further four
(4) months from the expiration of the initial four (4) months the moratorium
continues, then after the passage of such further four (4) month period, either
Landlord or Tenant shall have the right to terminate this Lease upon ten (10)
days written notice to the other. In that event, the Tenant shall vacate any
temporary space and this Lease shall terminate all as aforesaid.
ARTICLE 5
ADDITIONAL RENT
5.01. For the purpose of Sections 5.01 through 5.03.
(a) "Taxes" shall mean real estate taxes, special and extraordinary
assessments and governmental levies against the Land and Building of which the
Demised Premises (but excluding therefrom that portion of the real estate taxes
directly attributable to improvements made by other tenants in the Building
beyond Landlord's allowances) are a part provided, however, if at any time
during the term of this Lease the method of taxation prevailing at the date of
this Lease shall be altered so that in lieu of, or as an addition to, or as a
substitute for any or all of the above there shall be assessed, levied or
imposed (i) a tax, assessment, levy, imposition or charge based on the income or
rents received therefrom whether or not wholly or partially as a capital levy or
otherwise; or (ii) a tax assessment, levy, imposition or charge measured by or
based in whole or in part upon all or any part of the Land and/or Building and
imposed upon Landlord; or (iii) a license fee measured by the rents; or (iv) any
other tax, assessment, levy, imposition, charge or license fee however described
or imposed, then all such taxes, assessments, levies, impositions, charges or
license fees or the part thereof so measured or based shall be included in the
definition of "Taxes." Landlord, as of the date of this Lease, has no knowledge
of any proposed or pending substitute or "in lieu of" taxes. Tenant shall pay to
Landlord directly that portion of any real estate taxes directly attributable to
improvements made by Tenant beyond Landlord's allowances (hereinafter referred
to as "Tenant's Direct Tax Payment"). Landlord states that to the best of his
knowledge and based on Landlord's experience at the Building, the work described
on Exhibit C would not be expected to result in a Tenant's Direct Tax Payment
obligation.
(b) "Base Taxes" shall mean the assessed valuation of the Land and
Building as finally determined following completion of construction and issuance
of an initial Certificate of Occupancy for any portion of the Building (or such
equivalent certification if Certificates of Occupancy are not to be used),
multiplied by the tax rate for the Tax Year 1998. Base Taxes shall assume that
the Building was 95% occupied.
(c) "Tax Year" shall mean each calendar year for which Taxes are
levied by any governmental authority.
-6-
<PAGE>
(d) "Operational Year" shall mean each calendar year commencing with
calendar year 1999.
(e) "Tenant's Proportionate Share of Increase" shall mean 18.3%
multiplied by the increase in Taxes in any Operational Year in excess of the
Base Taxes. Tenant's Proportionate Share of Increase for the first Operational
Year shall be prorated to reflect the actual occupancy by Tenant for said
Operational Year.
(f) "Tenant's Projected Share of Increase" shall mean Tenant's
Proportionate Share of Increase in Taxes for the projected Operational Year
divided by twelve (12) and payable monthly by Tenant to Landlord as additional
rent.
5.02. Commencing with the first Operational Year and thereafter, Tenant
shall pay to Landlord as additional rent for the then Operational Year, Tenant's
Projected Share of Increase in Taxes in equal monthly installments.
5.03. After the expiration of each Operational Year, Landlord shall furnish
to Tenant a written statement of the Taxes incurred for such Operational Year as
well as Tenant's Proportionate Share of Increase, if any. If the statement
furnished by Landlord to Tenant pursuant to this Section at the end of the then
Operational Year shall indicate that Tenant's Projected Share of Increase
exceeded Tenant's Proportionate Share of Increase, Landlord shall either
forthwith pay the amount of excess directly to Tenant concurrently with the
statement or credit same against Tenant's next monthly installment of rent. If
such statement furnished by Landlord to Tenant shall indicate that the Tenant's
Proportionate Share of Increase exceeded Tenant's Projected Share of Increase
for the then Operational Year, Tenant shall forthwith pay the amount of such
excess to Landlord.
Commencing with the first Operational Year, Tenant shall pay to Landlord in
equal monthly installments together with its payment of fixed rent one-twelfth
(1/12) of Tenant's Direct Tax Payment.
5.04. As used in Sections 5.04 through 5.06:
(a) "Operating Expenses" shall mean any or all expenses incurred by
Landlord in connection with the operation of the Land and Building of which the
Demised Premises are a part, including all expenses incurred as a result of
Landlord's compliance with any of its obligations hereunder other than
Landlord's Work and such expenses shall include: (i) salaries, wages, medical,
surgical and general welfare benefits, (including group life insurance) and
pension payments of employees of Landlord engaged in the operation and
maintenance of the Building; (ii) social security, unemployment, and payroll
taxes, workers' compensation, disability coverage, uniforms, and dry cleaning
for the employees referred to in Subsection (i); (iii) the cost for the Building
and common areas of all charges for oil, gas, electricity (including, but not
limited to, fuel cost adjustments), steam, heat, ventilation, air-conditioning,
heating, and water including any taxes on any such utilities, but excluding from
Operating Expenses the
-7-
<PAGE>
Landlord's cost, including taxes thereon, of electric energy, other than for
heating and air-conditioning, furnished to the Demised Premises (which electric
energy so furnished shall be paid for by Tenant pursuant to the provisions of
Article 15 hereof); (iv) the cost of all premiums and charges for the following
insurances: rent, casualty, liability, fidelity and war risk (if obtainable from
the United States Government); (v) the cost of all building and cleaning
supplies for the common areas of the Building and charges for telephone for the
Building; (vi) the cost of all charges for management, window cleaning, security
services, if any, and janitorial services, and any independent contractor
performing work included within the definition of operating expenses; (vii)
legal and accounting services and other professional fees and disbursements
incurred in connection with the operation and management of the Land and
Building (other than as related to new leases, enforcing Landlord's rights under
existing leases, or sales of the Building); (viii) general maintenance of the
Building and the cost of maintaining and replacing the landscaping; (ix)
maintenance of the common area; (x) the cost of capital expenditures, including
the purchase of any item of capital equipment or the leasing of capital
equipment, that have the effect of reducing the expenses which would otherwise
be included in Operating Expenses, which costs shall be included in Operating
Expenses for the Operational Year in which the costs are incurred and subsequent
Operational Years on a straight-line basis, to the extent that such items are
amortized over such period of time as Landlord reasonably estimates, with an
interest factor equal to the interest rate at the time of Landlord's having made
said expenditure; and (xi) that portion of the cost of any capital expenditures
incurred in connection with the operation of the Land and Building amortized on
a straight line basis, to the extent that such items are amortized over an
appropriate period, but not more than ten years, with an interest factor equal
to the interest rate, at the time of Landlord's having made said expenditure,
excluding therefrom any capital expenditure which (a) increases the size of the
Building (b) corrects any defect to the steel skeleton of the Building (c)
creates a new elevator shaft (d) constitutes a repair, replacement or correction
of any matter whatsoever, the need for which existed on or before July 1999 (e)
adds levels to the parking deck. In addition and by way of further clarification
and exception to subsection (xi) above. Landlord agrees that excluded from
subsection (xi) capital expenditures shall be the costs incurred in implementing
new systems or additional systems related to the operation of the Building which
are different from existing systems, unless such new system can be justified
under subsection (x) above. An example of an excluded capital expenditure for a
new system would be capital improvements to allow the Building to be heated
through oil or gas in lieu of electric energy.
If during all or part of any Operational Year, Landlord shall not furnish
any particular item(s) of work or service (which would otherwise constitute an
Operating Expense hereunder) to portions of the Building due to the fact that
(i) such portions are not occupied or leased; (ii) such items of work or service
is not required or desired by the tenant of such portion; (iii) such tenant is
itself obtaining and providing such item of work or service; or (iv) for other
reasons, then, for the purposes of computing Operating Expenses, the amount for
such item and for such period shall be deemed to be increased by an amount equal
to the additional costs and expenses which would reasonably have been incurred
during such period by Landlord if it had at its own expense furnished such item
of work or services to such portion of the Building or such tenant. Landlord
agrees that the Operating Expenses for the Base Year shall be based on a 95%
occupancy.
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Notwithstanding the foregoing, the following costs and expenses shall not
be included in Operating Expenses:
(1) Executives' salaries above the grade of building manager;
(2) Amounts received by Landlord through proceeds of insurance
except to the extent they are compensation for sums previously included in
Operating Expenses hereunder;
(3) Cost of repairs or replacements incurred by reason of fire or
other casualty or condemnation to the extent Landlord is compensated therefor;
(4) Advertising and promotional expenditures;
(5) Costs incurred in performing work or furnishing service for
any tenant (including Tenant), whether at such tenant's or Landlord's expense,
to the extent that such work or service is in excess of any work or service that
Landlord is obligated to furnish to tenant at Landlord's expense;
(6) Depreciation, except as provided above;
(7) Brokerage commissions;
(8) Taxes (as hereinbefore defined);
(9) The cost of electricity (for other than heating and
air-conditioning) furnished to the Demised Premises or any other space leased to
tenants as reasonably estimated by Landlord;
(10) Refinancing costs and mortgage interest and amortization
payments.
(11 The cost of structural repairs to the Building including the
structural components of the roof.
(b) "Operational Year" shall mean each calendar year commencing with
calendar year 1999.
(c) "Base Year" shall mean calendar year 1998.
(d) "Tenant's Proportionate Share of Increase" shall mean 18.3%
multiplied by the increase in Operating Expenses for the Operational Year over
Operating Expenses for the Base Year. For purposes hereof, the Tenant's
Proportionate Share of Increase
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has been computed based upon a total square footage of the Building equal to
265,000 square feet, and a total square footage of the Demised Premises equal to
48,476 square feet.
(e) "Tenant's Projected Share of Increase" shall mean Tenant's
Proportionate Share of Increase for the projected Operational Year divided by
twelve (12) and payable monthly by Tenant to Landlord as additional rent.
5.05. Commencing with the first Operational Year after Landlord shall be
entitled to receive Tenant's Proportionate Share of Increase, Tenant shall pay
to Landlord as additional rent for the then Operational Year, Tenant's Projected
Share of Increase.
5.06. After the expiration of the first Operational Year and for each
Operational Year thereafter, Landlord shall furnish to Tenant a written detailed
statement of the Operating Expenses (certified to be true and correct by
Landlord) incurred for such Operational Year which statement shall set forth
Tenant's Proportionate Share of Increase, if any. If the statement furnished by
Landlord to Tenant, pursuant to this Section, at the end of the then Operational
Year shall indicate that Tenant's Projected Share of Increase exceeded Tenant's
Proportionate Share of Increase, Landlord shall either forthwith pay the amount
of excess directly to Tenant concurrently with the statement or credit same
against Tenant's next monthly installment of rent. If such statement furnished
by Landlord to Tenant hereunder shall indicate that the Tenant's Proportionate
Share of Increase exceeded Tenant's Projected Share of Increase for the then
Operational Year, Tenant shall forthwith pay the amount of such excess to
Landlord.
5.07. Every statement given by Landlord pursuant to Sections 5.03 and 5.06
shall be conclusive and binding upon Tenant unless (i) within one hundred twenty
(120) days after the receipt of such statement Tenant shall notify Landlord that
it disputes the correctness of the statement, specifying the particular respects
in which the statement is claimed to be incorrect; and (ii) if such dispute
shall not have been settled by agreement, shall submit the dispute to judicial
proceedings within one hundred eighty (180) days after receipt of the statement.
Within such one hundred twenty (120) day period Tenant shall have the right to
review, examine and audit Landlord's books and records for the applicable
calendar year. Tenant agrees that it and its representatives shall conduct a
review with complete confidentiality and shall enter into a reasonable
confidentiality agreement with Landlord respecting the review, examination and
audit. Pending the determination of such dispute by agreement or judicial
proceedings as aforesaid, Tenant shall, within thirty (30) days after receipt of
such statement, pay additional rent in accordance with Landlord's statement and
such payment shall be without prejudice to Tenant's position. If the dispute
shall be determined in Tenant's favor, Landlord shall forthwith pay Tenant the
amount of Tenant's overpayment of rents resulting from compliance with
Landlord's statement.
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ARTICLE 6
SUBORDINATION, NOTICE TO MORTGAGEES
6.01. Subject to Section 6.02, this Lease is subject and subordinate in all
respects to all mortgages which may now or hereafter affect the Land and/or the
Building whether or not such mortgages shall also cover other lands and/or
buildings, to each and every advance made or hereafter to be made under such
mortgages, and to all renewals, modifications, replacements, and extensions of
such mortgages and spreaders and consolidations of such mortgages. This Section
shall be self-operative and no further instrument of subordination shall be
required. In confirmation of such subordination, Tenant shall promptly execute
and deliver an instrument that Landlord, or the holder of any such mortgage or
any of their respective successors in interest may reasonably request to
evidence such subordination. mortgages to which this Lease is, at the time
referred to, subject and subordinate are hereinafter sometimes called "superior
mortgages", and the holder of a superior mortgage or its successor in interest
at the time referred to is sometimes hereinafter called a "superior mortgagee."
6.02. Landlord shall make a good faith effort to obtain from any future
Mortgagee a Subordination, Non-Disturbance and Attornment Agreement (the
"Non-Disturbance Agreement") in favor of Tenant utilizing such Mortgagee's
standard form. With respect to the existing mortgage, such Mortgagee's
Non-Disturbance Agreement form is attached as Exhibit G. Landlord agrees, within
120 days of the execution of this Lease and Tenant's execution of Exhibit G, to
promptly obtain Mortgagee's approval to execute the Non-Disturbance Agreement.
If Tenant fails to accept the Non-Disturbance Agreement as described in Exhibit
G attached, it shall be considered that Landlord has satisfied any requirement
respecting the existing Mortgagee. As to any future mortgagee, Landlord agrees
that it shall use its best efforts to obtain a similar Non-Disturbance Agreement
which Tenant shall accept as a condition to a future subordination by Tenant
under Section 6.01.
ARTICLE 7
QUIET ENJOYMENT
7.01. Subject to the terms of this Lease, so long as Tenant pays all of the
fixed rent and additional rent due hereunder and performs all of Tenant's other
obligations hereunder, Tenant shall peaceably and quietly have, hold, and enjoy
the Demised Premises.
ARTICLE 8
ASSIGNMENT, MORTGAGING, SUBLETTING
8.01. Neither this Lease, nor the term and estate hereby granted, nor any
part hereof or thereof, nor the interest of Tenant in any sublease, or the
rentals thereunder, shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred by Tenant, and neither the
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Demised Premises, nor any part thereof shall be encumbered in any manner by
reason of any act or omission on the part of Tenant or anyone claiming under or
through Tenant or shall be sublet, or offered or advertised for subletting, or
be used or occupied or permitted to be used or occupied, or utilized for desk
space or for mailing privileges, by anyone other than Tenant or for any purpose
other than as permitted by this Lease, without the prior written consent of
Landlord in every case, except as expressly otherwise provided in this Article.
8.02. If this Lease be assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Demised Premises or any part thereof be sublet or be used or occupied by anybody
other than Tenant, whether or not in violation of this Lease, Landlord may,
after default by Tenant and expiration of Tenant's time to cure such default,
collect rent from the undertenant or occupant. In either event, Landlord may
apply the net amount collected to the rents herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
any of the provisions of Section 8.01, or the acceptance of the assignee,
undertenant or occupants as Tenant, or a release of Tenant from the further
performance by Tenant of Tenant's obligations under this Lease. The consent by
Landlord to assignment, mortgaging, underletting or use or occupancy by others
shall not in any way be considered to relieve Tenant from obtaining the express
written consent of Landlord to any other or further assignment, mortgaging or
underletting or use or occupancy by others not expressly permitted by this
Article.
8.03. The following provisions shall govern in connection with the
subletting of all or a portion of the Demised Premises:
(a) Tenant shall submit in writing to Landlord (i) the name of the
proposed subtenant; (ii) the nature and character of the proposed subtenant's
business, and the intended use to be made of the Demised Premises by the
proposed subtenant; (iii) the terms and conditions of the proposed sublease; and
(iv) such reasonable financial information as Landlord may request regarding the
proposed subtenant.
(b) Within thirty (30) days of Landlord's receipt of the information
described in (a) above, Landlord, at Landlord's election may (i) provided the
sublease is for the entire remaining term of the lease, cancel this Lease as to
that portion of the Demised Premises which Tenant desires to sublease, in which
event Tenant agrees to surrender all of its right, title, and interest hereunder
and Landlord may thereafter enter into a direct Lease with the proposed
subtenant or with any other persons as Landlord may desire; or (ii) consent to
the subletting on such terms and conditions as established by Landlord,
including Landlord's participation in any rentals received by Tenant. Landlord's
participation in rentals shall be limited to 50% of all sums received by Tenant
after deducting (x) brokerage costs payable to outside brokers unaffiliated with
either Tenant or the subtenant (and which shall not exceed 5% of the rent); (y)
fit up costs provided same were performed in accordance with Article 12 hereof
and (z) fixed and additional rent due under this Lease.
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(c) As a condition to Landlord's consent, if given under (b) above,
Landlord shall have obtained consent to such proposed subletting by a superior
mortgagee, provided such superior mortgagee requires consent to the subletting.
(d) In connection with any subletting, Tenant shall not offer the
Demised Premises, or any part thereof, to any other tenant in the Building or
their subsidiaries or affiliates at a rental rate less than the current rental
rate for office buildings in the surrounding area.
8.04. Tenant shall remain fully liable for the performance of all Tenant's
obligations hereunder notwithstanding any subletting provided for herein (except
to Landlord), and without limiting the generality of the foregoing, shall remain
fully responsible and liable to Landlord for all acts and omissions of any
subtenant or anyone claiming under or through any subtenant which shall be in
violation of any of the obligations of this Lease and any such violation shall
be deemed to be a violation by Tenant.
8.05. Tenant shall not, without the prior written consent of Landlord,
assign this Lease, and the provisions of Section 8.03 with respect to subletting
shall equally apply to any assignment of this Lease. Tenant herein named, or any
immediate or remote successor in interest of Tenant herein named, shall remain
liable jointly and severally (as a primary obligor) with its assignee and all
subsequent assignees for the performance of Tenant's obligations hereunder. In
the event that Tenant hereunder is a corporation (other than one whose shares,
now or in the future, are regularly and publicly traded on a recognized stock
exchange, including over the counter, or is a public company or merges with a
public company), then any substantial change in the ownership of and/or power to
vote the majority of the outstanding capital stock; of Tenant, other than by
inheritance or operation of law, shall be deemed an assignment of this Lease and
the provisions with respect to assignment shall be applicable.
8.06. Notwithstanding anything to the contrary contained in this Article
with respect to assignment or subletting, Landlord's consent to any assignment
and/or subletting (i) to any parent, affiliate or wholly-owned subsidiary of
Tenant (as defined in Rule 240.12b-2 under the Securities Exchange Act of 1934)
or (ii) to any corporation or other entity which succeeds to all or
substantially all of the assets and business of Tenant, shall not be
unreasonably withheld.
8.07. Tenant agrees that in connection with each separate request for a
Landlord's consent to a subletting or assignment, Tenant shall pay to Landlord
the sum of $500.00 representing a reasonable compensation to Landlord for the
administration costs of evaluating and responding to the request.
8.08. Tenant further agrees that it shall not place any signs on the
windows located in the Demised Premises indicating that all or any portion of
the Demised Premises are available for subleasing or assignment.
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ARTICLE 9
COMPLIANCE WITH LAWS AND REQUIREMENTS
OF PUBLIC AUTHORITIES
9.01. Tenant shall give prompt notice to Landlord of any notice it receives
of the violation of any law or requirement of public authority, and at its
expense shall comply with all laws and requirements of public authorities which
shall, with respect to the Demised Premises or the use and occupation thereof,
or the abatement of any nuisance, impose any violation, order or duty on
Landlord or Tenant, arising from (i) Tenant's use of the Demised Premises; (ii)
the manner of conduct of Tenant's business or operation of its installation,
equipment or other property therein; (iii) any cause or condition created by or
at the instance of Tenant, other than by Landlord's performance of any work for
or on behalf of Tenant; or (iv) the breach of any of Tenant's obligations
hereunder. Furthermore, Tenant need not comply with any such law or requirement
of public authority so long as Tenant shall be contesting the validity thereof,
or the applicability thereof to the Demised Premises, in accordance with Section
9.02.
Nothing contained herein shall be construed to require Tenant to make
structural alterations to the Building except to the extent that same are
required by reason of Tenant's specific use (other than general office).
9.02. Tenant may, at its expense (and if necessary, in the name of but
without expense to Landlord) contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any law or requirement of public authority, and Landlord shall
cooperate with Tenant in such proceedings provided that:
(a) Tenant shall defend, indemnify, and hold harmless Landlord against
all liability, loss or damage which Landlord shall suffer by reason of such
noncompliance or contest, including reasonable attorney's fees and other
expenses reasonably incurred by Landlord;
(b) Such non-compliance or contest shall not constitute or result in
any violation of any superior mortgage; and
(c) Tenant shall keep Landlord advised as to the status of such
proceedings.
ARTICLE 10
INSURANCE
10.01. Tenant shall not violate, or permit the violation of, any condition
imposed by the all-risk casualty policy issued for the Building and shall not do
anything, or permit anything to be kept, in the Demised Premises which would
increase the fire or other
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casualty insurance rate on the Building or the property therein over the rate
which would otherwise then be in effect, (unless Tenant pays the resulting
increased amount of premium as provided in Section 10.02) or which would result
in insurance companies of good standing refusing to insure the Building or any
of such property in amounts and at normal rates reasonably satisfactory to
Landlord. However, Tenant shall not be subject to any liability or obligation
under this Article by reason of the proper use of the Demised Premises for the
purposes permitted by Article 2.
10.02. If, by reason of any act or omission on the part of Tenant, the rate
of fire insurance with extended all-risk coverage on the Building or equipment
or other property Of Landlord or other tenants shall be higher than it otherwise
would be, Tenant shall reimburse Landlord, on demand, for that part of the
premiums for fire insurance and extended all-risk coverage paid by Landlord
because of such act or omission on the part of Tenant, which sum shall be deemed
to be additional rent and collectible as such.
10.03. In the event that any dispute should arise between Landlord and
Tenant concerning insurance rates, a schedule or "make up" of rates for the
Building or the Demised Premises, as the case may be, issued by the Fire
Insurance Rating Organization of New Jersey or other similar body making rates
for fire insurance and extended coverage for the premises concerned, shall be
presumptive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates with extended coverage then applicable to
such premises.
10.04. Tenant shall obtain and keep in full force and effect during the
term of this Lease, at its own cost and expense, Comprehensive General Liability
Insurance, such insurance to afford protection in an amount of not less than
$1,000,000 for injury or death to any one person, $3,000,000 for injury or death
arising out of any- one occurrence, and $1,000,000 for damage to property,
protecting and naming the Landlord, Alfieri Property Management and the Tenant
as insured against any and all claims for personal injury, death or property
damage occurring in, upon, adjacent, or connected with the Demised Premises and
any part thereof. Tenant shall name such other insureds associated with the
Building as Landlord reasonably requests. Tenant shall pay all premiums and
charges therefor and upon failure to do so Landlord may, but shall not be
obligated to, make payments, and in such latter event the Tenant agrees to pay
the amount thereof to Landlord on demand and said sum shall be deemed to be
additional rent, and in each instance collectible on the first day of any month
following the date of notice to Tenant in the same manner as though it were rent
originally reserved hereunder, together with interest thereon at the rate of
three points in excess of Prime Rate of the First Union. Tenant will use its
best efforts to include in such Comprehensive General Liability Insurance policy
a provision to the effect that same will be non-cancelable, except upon
reasonable advance written notice to Landlord. The original insurance policies
or appropriate certificates shall be deposited with Landlord together with any
renewals, replacements or endorsements to the end that said insurance shall be
in full force and effect for the benefit of the Landlord during the term of this
Lease. In the event Tenant shall fail to procure and place such insurance, the
Landlord may, but shall not be obligated to, procure and place same, in which
event the amount of the premium paid shall be refunded by Tenant to Landlord
upon demand and shall in each instance be collectible on the first day of the
month or any subsequent month following the date of payment by
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Landlord, in the same manner as though said sums were additional rent reserved
hereunder together with interest thereon at the rate of three points in excess
of the Prime Rate of the First Union.
10.05. Landlord and Tenant agree to use their best efforts to include in
each of its insurance policies a waiver of the insurer's right of subrogation
against the other party or if such waiver shall be unobtainable or unenforceable
(a) an express agreement that such policy shall not be invalidated if the
insured waives or has waived before the casualty, the right of recovery against
any party responsible for a casualty covered by the policy or (b) any other form
of permission for the release of the other party. If such waiver, agreement, or
permission shall not be or shall cease to be obtainable without additional
charge, or at all, the insured party shall so notify the other party after
learning thereof. In such a case, if the other party shall agree in writing to
pay the insurer's additional charge therefor, such waiver agreement or
permission shall, if obtainable, be included in the policy.
10.06. Each party hereby releases the other party with respect to any claim
(including a claim for negligence) which it might otherwise have against the
other party for loss, damage, or destruction with respect to its property
(including rental value or business interruption) occurring during the term of
this Lease to the extent to which it is insured under a policy or policies
containing a waiver of subrogation or permission to release liability or naming
the other party as an additional insured, as provided in Sections 10.04 and
10.05. If notwithstanding the recovery of insurance proceeds by either party for
loss, damage or destruction of its property (or rental value or business
interruption) the other party is liable to the first party with respect thereto
or is obligated under this Lease to make replacement, repair, or restoration or
payment, then provided that the first party's right of full recovery under its
insurance policies is not thereby prejudiced or otherwise adversely affected,
the amount of the net proceeds of the first party's insurance against such loss,
damage or destruction shall be offset against the second party's liability to
the first party thereof, or shall be made available to the second party to pay
for replacement, repair, or restoration, as the case may be.
10.07 The waiver of subrogation or permission for release referred to in
Section 10.05 shall extend to the agents of each party and their employees and,
in the case of Tenant, shall also extend to all other persons and entities
occupying, using or visiting the Demised Premises in accordance with the terms
of this Lease, but only if and to the extent that such waiver or permission can
be obtained without additional charge (unless such party shall pay such charge).
The releases provided for in Section 10.06 shall likewise extend to such agents,
employees and other persons and entities, if and to the extent that such waiver
or permission is effective as to them. Nothing contained in Section 10.06 shall
be deemed to relieve either party of any duty imposed elsewhere in this Lease to
repair, restore or rebuild or to nullify any abatement of rents provided for
elsewhere in this Lease. Except as otherwise provided in Section 10.04, nothing
contained in Sections 10.05 and 10.06 shall be deemed to impose upon either
party any duty to procure or maintain any of the kinds of insurance referred to
therein or any particular amounts or limits of any such kinds of insurance.
However, each party shall advise the other, upon request, from time to time (but
not more often than once a year) of all of the policies of insurance it is
carrying of any of the kinds referred to in Sections 10.01 and 10.04, and if it
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shall discontinue any such policy or allow it to lapse, shall notify the other
party thereof with reasonable promptness. The insurance policies referred to in
Sections 10.05 and 10.06 shall be deemed to include policies procured and
maintained by a party for the benefit of its lessor, mortgagee, or pledgee.
ARTICLE 11
RULES AND REGULATIONS
11.01. Tenant and its employees and agent shall faithfully observe and
comply with the Rules and Regulations annexed hereto as Exhibit E, and such
reasonable changes therein (whether by modification, elimination, or addition)
as Landlord at any time or times hereafter may make and communicate in writing
to Tenant, which do not unreasonably affect the conduct of Tenant's business in
the Demised Premises; provided, however, that in case of any conflict or
inconsistency between the provisions of this Lease and any of the Rules and
Regulations as originally promulgated or as changed, the provisions of this
Lease shall control.
11.02. Nothing contained in this Lease shall be construed to impose upon
Landlord any duty or obligation to Tenant to enforce the Rules and Regulations
or the terms, covenants, or conditions in any other lease, as against any other
tenant and Landlord shall not be liable to Tenant for violation of the same by
any other tenant or its employees, agents or visitors. However, Landlord shall
not enforce any of the Rules and Regulations in such manner as to discriminate
against Tenant or anyone claiming under or through Tenant.
ARTICLE 12
TENANT'S CHANGES
12.01. Tenant shall make no changes, alterations, additions, installations,
substitutions, or improvements (hereinafter Collectively called "changes", and,
as applied to changes Provided for in this Article, "Tenant's Changes") in and
to the Demised Premises without the express prior written consent of Landlord.
All proposed Tenant's Changes shall be submitted to Landlord for written
consent at least sixty (60) days prior to the date Tenant intends to commence
such changes, such submission to include all plans and specifications for the
work to be done, proposed scheduling, and the estimated cost of completion of
Tenant's Changes. If Landlord consents to Tenant's Changes, Tenant may commence
and diligently prosecute to completion Tenant's Changes, under the direct
supervision of Landlord. Tenant shall be liable for restoration of all or part
of a Tenant Change but only if and to the extent the Landlord identifies the
required restoration when granting its consent.
Tenant shall pay to Landlord a supervision fee (which shall include the
cost of review of the proposed Tenant's Changes) equal to the lesser of
Landlord's actual costs or ten percent (10%) of the certified cost of completion
of Tenant's Changes. Prior to the
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commencement of Tenant's Changes, Tenant shall pay to Landlord ten percent (10%)
of the estimated cost of completion (the "Estimated Payment") as additional
rent. Within fifteen (15) days after completion of Tenant's Changes, Tenant
shall furnish Landlord with a statement, certified by an officer or a principal
of Tenant to be accurate and true, of the total cost of completion of Tenant's
Changes (the "Total Cost"). If such certified statement furnished by Tenant
shall indicate that the Estimated Payment exceeded the lesser of Landlord's
actual costs or ten percent (10%) of the Total Cost, Landlord shall forthwith
either (i) pay the amount of excess directly to Tenant concurrently with the
delivery of the certified statement or (ii) permit Tenant to credit the amount
of such excess against the subsequent payment of rent due hereunder. If such
certified statement furnished by Tenant shall indicate that the lesser of
Landlord's actual costs or ten percent (10%) of the Total Cost exceeded Tenant's
Estimated Payment, Tenant shall, simultaneously with the delivery to Landlord of
the certified statement, pay the amount of such excess to Landlord as additional
rent. There shall be no supervision fee charged for painting or carpeting.
12.02. Notwithstanding the provisions of Section 12.01, all proposed
Tenant's Changes which shall affect or alter:
(a) The outside appearance or the strength of the Building or of any
of its structural parts; or
(b) Any part of the Building outside of the Demised Premises; or
(c) The mechanical, electrical, sanitary and other service systems or
the Building, or increase the usage of such systems;
shall be performed only by the Landlord, at a cost to be mutually agreed upon
between Landlord and Tenant.
12.03. Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of Tenant's
Changes and for final approval thereof upon completion, and shall cause Tenant's
Changes to be performed in compliance therewith and with all applicable laws and
requirements of public authorities, and with all applicable requirements of
insurance bodies, and in good and workmanlike manner, using new materials and
equipment at least equal in quality and class to the original installations in
the Building. Tenant's Changes shall be performed in such manner as not to
unreasonably interfere with or delay and (unless Tenant shall indemnify Landlord
therefor to the latter's reasonable satisfaction) as not to impose any
additional expense upon Landlord in the construction, maintenance or operation
of the Building. Throughout the performance of Tenant's Changes, Tenant, at its
expense, shall carry, or cause to be carried, workmen's compensation insurance
in statutory limits and general liability insurance for any occurrence in or
about the Building, in which Landlord and its agents shall be named as parties
insured in such limits as Landlord may reasonably prescribe, with insurers
reasonably satisfactory to Landlord. Tenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in effect at or before
the commencement of Tenant's Changes and, on request, at reasonable intervals
thereafter
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during the continuance of Tenant's Changes. If any of Tenant's Changes shall
involve the removal of any fixtures, equipment or other property in the Demised
Premises which are not Tenant's Property (as defined in Article 13), such
fixtures, equipment or other property shall be promptly replaced, at Tenant's
expense, with new fixtures, equipment or other property (as the case may be) of
like utility and at least equal value. In addition, unless Landlord shall
otherwise expressly consent in writing, the Tenant shall deliver such removed
fixtures to Landlord.
12.04. Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with Tenant's Changes which shall be issued by any public
authority having or asserting jurisdiction. Tenant shall defend, indemnify and
save harmless Landlord against any and all mechanic's and other liens filed in
connection with Tenant's Changes, including the liens of any security interest
in, conditional sales of, or chattel mortgages upon, any material, fixtures or
articles so installed in and constituting part of the Demised Premises and,
against all costs, expenses and liabilities incurred in connection with any such
lien, security interest, conditional sale or chattel mortgage or any action or
proceeding brought thereon. Tenant, at its expense, shall procure the
satisfaction or discharge of all such liens within fifteen (15) days after
Landlord makes written demand therefor. However, nothing herein contained shall
prevent Tenant from contesting, in good faith and at its own expense, any such
notice of violation, provided that Tenant shall comply with the provisions of
Section 9.02.
12.05. Tenant agrees that the exercise of its rights pursuant to the
provisions of this Article 12 shall not be done in a manner which would create
any work stoppage, picketing, labor disruption or dispute or violate Landlord's
union contracts affecting the Land and Building, nor interference with the
business of Landlord or any tenant or occupant of the Building. Prior to Tenant
being in default of the foregoing, Landlord shall advise Tenant in writing of
specific issues and problems and Tenant shall have a fifteen (15) day period to
cure.
ARTICLE 13
TENANT'S PROPERTY
13.01. All fixtures, equipment, improvements, and appurtenances attached to
or built into the Demised Premises at the commencement of or during the term of
this Lease, whether or not by or at the expense of Tenant, shall be and remain a
part of the Demised Premises, shall be deemed the property of Landlord and shall
not be removed by Tenant, except as hereinafter in this Article expressly
provided.
13.02. All business and trade fixtures, machinery and equipment,
communications equipment and office equipment, whether or not attached to or
built into the Demised Premises, which are installed in the Demised Premises by
or for the account of Tenant, without expense to Landlord, and can be removed
without permanent structural damage to the Building, and all furniture,
furnishings and other articles of movable personal property owned by Tenant and
located in the Demised Premises (all of which are sometimes called "Tenant's
Property"), shall be and shall remain the property of Tenant and may be removed
by it at any
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time during the term of this Lease; provided that if any of Tenant's Property is
removed, Tenant shall repair or pay the cost of repairing any damage to the
Demised Premises or to the Building resulting from such removal. Any equipment
or other property for which Landlord shall have granted any allowance or credit
to Tenant shall not be deemed to have been installed by or for the account of
Tenant, without expense to Landlord, and shall not be considered Tenant's
Property.
13.03. At or before the Expiration Date, or the date of an earlier
termination of this Lease, or as promptly as practicable after such an earlier
termination date, Tenant at its expense, shall remove from the Demised Premises
all of Tenant's Property except such items thereof as Tenant shall have
expressly agreed in writing with Landlord were to remain and to become the
property of Landlord, and, if requested by Landlord, all items of work done by
or on behalf of Tenant after the Commencement Date shall be removed by Tenant
and Tenant shall repair any damage to the Demised Premises or the Building
resulting from such removal. If Tenant fails to remove its Property (other than
inconsequential items of furnishings or personal property) and/or otherwise
fails to perform any restoration required of it under this Lease, then Tenant
shall be deemed a hold-over Tenant as contemplated in Article 40.
13.04. Any other items of Tenant's Property (except money, securities, and
other like valuables) which shall remain in the Demised Premises after the
Expiration Date or after a period of fifteen (15) days following an earlier
termination date, may, at the option of the Landlord, be deemed to have been
abandoned, and in such case either may be retained by Landlord as its property
or may be disposed of, without accountability, in such manner as Landlord may
see fit, at Tenant's expense.
ARTICLE 14
REPAIRS AND MAINTENANCE
14.01. Tenant shall take good care of the Demised Premises. Tenant, at its
expense, shall promptly make all repairs, ordinary or extraordinary, interior or
exterior, structural or otherwise in and about the Demised Premises, except as a
result from normal wear and tear, and the Building, as shall be required by
reason of (i) the performance of Tenant's Finish Work or Tenant's Changes; (ii)
the installation, use or operation of Tenant's Property in the Demised Premises
by Tenant, its agents or employees; (iii) the moving of Tenant's Property in or
out of the Building; or (iv) the misuse or neglect of Tenant or any of its
employees, agents, contractors or invitees; but Tenant shall not be responsible,
and Landlord shall be responsible, for any of such repairs as are required by
reason of Landlord's neglect or other fault in the manner of performing any of
Tenant's Finish Work or Tenant's Changes which may be undertaken by Landlord for
Tenant's account or are otherwise required by reason of neglect or other fault
of Landlord or its employees, agents, or contractors. Except if required by the
neglect or other fault of Landlord or its employees, agents, or contractors,
Tenant, at its expense, shall replace all scratched, damaged or broken doors or
other glass in or about the Demised Premises and shall be responsible for all
repairs, maintenance, and replacement of wall and floor coverings in the Demised
Premises and, for the repair and maintenance of all lighting fixtures therein,
except as a result from normal wear and tear.
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14.02. Landlord, subject to the provisions of Section 5.04, shall keep and
maintain the Building and its fixtures, appurtenances, systems and facilities
serving the Demised Premises, in good working order, condition, and repair and
shall make with all due diligence all repairs, structural and otherwise,
interior and exterior, as and when needed in or about the Demised Premises,
except for those repairs for which Tenant is responsible pursuant to any other
provisions of this Lease.
14.03. Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption, or injury to Tenant's business arising
from Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease or required by law, to make in or to any portion of the
Building or the Demised Premises, or in or to the fixtures, equipment of
appurtenances of the Building or the Demised Premises, provided that Landlord
shall use due diligence with respect thereto and shall perform such work, except
in case of emergency, at a time reasonably convenient to Tenant and otherwise in
such a manner as will not materially interfere with Tenant's use of the Demised
Premises.
ARTICLE 15
ELECTRICITY
15.01. Landlord shall furnish the electric energy that Tenant shall require
in the Demised Premises. Tenant shall pay to Landlord, as additional rent, the
costs and charges for all electric energy furnished to Tenant at the Demised
Premises. Additional rent for such electric energy shall be calculated and
payable in the manner hereinafter set forth.
15.02. Within a reasonable time after the commencement of the term of this
Lease, subsequent to Tenant's having taken occupancy of the Demised Premises and
having installed and commenced the use of Tenant's electrical equipment,
Landlord, at Tenant's sole expense, shall cause a survey to be made by a
reputable independent electrical engineer or similar agency of the estimated use
of electric energy (other than for Building standard heat and air conditioning
as described in Exhibit C) to the Demised Premises, and shall compute the cost
thereof for the quantity so determined at prevailing retail rates. Tenant shall
pay Landlord the cost of such electric energy, as so calculated, on a monthly
basis, as additional rent, together with its payment of fixed rent.
Until such time as Landlord shall complete the aforedescribed survey,
Tenant shall pay to Landlord, each and every month, as additional rent, for and
on account of Tenant's electrical consumption, the sum of $5,049.58 to be
applied against Tenant's obligations hereunder. Upon completion of the survey,
there shall be an adjustment for the period from the Commencement Date through
the date that the results of the survey shall be effectuated as shall be
required. Landlord shall have the right, during any calendar year following the
calendar year in which the first survey is performed, to cause the Demised
Premises to be resurveyed. Such resurvey shall be limited to one (1) per every
calendar year unless an electrical emergency creates the need for further
resurveys. The cost of such resurveys shall be borne by Landlord
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unless Tenant's usage increased by more than 5% from the prior survey or
resurvey. In the event that such resurvey shall indicate increased or decreased
electrical consumption by Tenant at the Demised Premises, there shall be an
adjustment in the amount paid by Tenant to Landlord for Tenant's electrical
consumption in accordance with the resurvey as well as an adjustment retroactive
to the date Landlord establishes Tenant's increase or decrease in electrical
consumption in excess of the consumption established by the prior survey.
Landlord shall submit to Tenant the results of any electrical survey
and the same shall be deemed binding upon Tenant unless Tenant shall object to
same within ninety (90) days of the date that Landlord shall furnish Tenant with
the results of the survey. In the event that Landlord and Tenant cannot agree
upon the results of a survey the same shall be submitted to arbitration in
accordance with Article 33, provided, however, until such time as the
arbitration shall have been concluded, the results of Landlord's survey shall be
utilized for the purposes of determining Tenant's electrical consumption with an
appropriate adjustment to be made based upon the results of the arbitration.
15.03. Landlord shall not be liable in any way to Tenant for any failure or
defect in the supply or character of electric energy furnished to the Demised
Premises by reason of any requirement, act, or omission of the public utility
serving the Building with electricity or for any other reason. Landlord shall
furnish and install all replacement lighting tubes, lamps, bulbs, and ballasts
required in the Demised Premises at Tenant's expense.
15.04. Tenant's use of electric energy in the Demised Premises shall not at
any time exceed the capacity of any of the electrical conductors and equipment
in or otherwise serving the Demised Premises. Landlord states that the capacity
for Tenant's connected load is approximately 4 +/- watts per square foot. In
order to insure that such capacity is not exceeded and to avert possible adverse
effect upon the Building electric service, Tenant shall not, without Landlord's
prior written consent in each instance (which shall not be unreasonably
withheld), connect any additional fixtures, appliances, or equipment to the
Building electrical distribution system or make any alteration or addition to
the electric system of the Demised Premises existing on the Commencement Date.
Should Landlord grant such consent, all additional risers, HVAC equipment or
other electrical equipment required therefor shall be provided by Landlord and
the cost of installation and maintenance thereof shall be paid by Tenant upon
Landlord's demand. As a condition to granting such consent, Landlord, at
Tenant's sole expense, may cause a new survey to be made of the use of electric
energy (other than for Building standard heating and air-conditioning as
described in Exhibit C) in order to calculate the potential additional electric
energy to be made available to Tenant based upon the estimated additional
capacity of such additional risers or other equipment. When the amount of such
increase is so determined, and the estimated cost thereof is calculated, the
amount of monthly additional rent payable pursuant to Section 15.02 hereof shall
be adjusted to reflect the additional cost, and shall be payable as therein
provided.
15.05. If the public utility rate schedule for the supply of electric
current to the Building shall be increased during the term of this Lease, the
additional rent payable pursuant to Section .15.02 hereof shall be equitably
adjusted to reflect the resulting increase in Landlord's
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cost of furnishing electric service to the Demised Premises effective as of the
date of any increase. Landlord and Tenant agree that the rate charged to Tenant
for electricity shall not be greater than the rate Tenant would have paid had
the Demised Premises been separately metered.
15.06. Tenant agrees within three (3) months from the Commencement Date to
submit to Landlord a list of fixtures and equipment utilizing electric current
including, but not limited to, copying machines, computers and word processing
equipment and equipment of a similar nature. On the first day of each calendar
quarter thereafter, Tenant shall submit to Landlord a statement indicating any
substantial changes in the list previously supplied as same may be updated by
the required quarterly statements.
ARTICLE 16
HEATING, VENTILATION AND AIR-CONDITIONING
16.01. Landlord, subject to the provisions of Section 5.04, shall maintain
and operate the heating, ventilating, and air-conditioning systems (hereinafter
called "the systems") and shall furnish heat, ventilating, and air conditioning
(hereinafter collectively called "air conditioning service") in the Demised
Premises through the systems, in compliance with the performance specifications
set forth in Exhibit C, as may be required for comfortable occupancy of the
Demised Premises from 8:00 A.M. to 6:00 P.M. Monday through Friday except days
observed by the Federal or the state government as legal holidays ("Regular
Hours") throughout the year. If Tenant shall require air-conditioning service at
any other time (hereinafter called "after hours"), Landlord shall furnish such
after hours air-conditioning service upon reasonable advance notice from Tenant,
and Tenant shall pay Landlord's then established charges therefor on Landlord's
demand. Landlord confirms that its current charge for after hours service is
$65.00 per hour. Landlord agrees that that rate shall apply for a twelve (12)
month period calculated from the Commencement Date.
16.02. Use of the Demised Premises, or any part thereof, in a manner
exceeding the design conditions (including occupancy and connected electrical
load) specified in Exhibit C for air-conditioning service in the Demised
Premises, or rearrangement of partitioning which interferes with normal
operation of the air-conditioning in the Demised Premises, may require changes
in the air-conditioning system servicing the Demised Premises. Such changes, so
occasioned, shall be made by Landlord, at Tenant's expense, as Tenant's Changes
pursuant to Article 12.
ARTICLE 17
LANDLORD'S OTHER SERVICES
17.01. Landlord, subject to the provisions of Section 5.04, shall provide
public elevator service, passenger and service, by elevators serving the floor
on which the Demised Premises are situated during Regular Hours, and shall have
at least one passenger elevator subject to call at all other times.
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17.02. Landlord, subject to the provisions of Section 5.04, shall cause the
Demised Premises, including the exterior and the interior of the windows
thereof, to be cleaned. Tenant shall pay to Landlord on demand the costs
incurred by Landlord for (a) extra cleaning work in the Demised Premises
required because of (i) misuse or neglect on the part of Tenant or its employees
or visitors; (ii) use of portions of the Demised Premises for preparation,
serving or consumption of food or beverages, data processing, or reproducing
operations, private lavatories or toilets or other special purpose areas
requiring greater or more difficult cleaning work than office areas; (iii)
unusual quantity of interior glass surfaces; (iv) non-building standard
materials or finishes installed by Tenant or at its request; and (b) removal
from the Demised Premises and the Building of so much of any refuse and rubbish
of Tenant as shall exceed that ordinarily accumulated daily in the routine of
business office occupancy. Landlord, its cleaning contractor, and their
employees shall have after-hours access to the Demised Premises and the free use
of light, power, and water in the Demised Premises as reasonably required for
the purpose of cleaning the Demised Premises in accordance with Landlord's
obligations hereunder.
17.03. Landlord, subject to the provisions of Section 5.04, shall furnish
adequate hot and cold water to each floor of the Building for drinking,
lavatory, and cleaning purposes, together with soap, towels, and toilet tissue
for each lavatory. If Tenant uses water for any other purpose, Landlord, at
Tenant's expense, shall install meters to measure Tenant's consumption of cold
water and/or hot water for such other purposes and/or steam, as the case may be.
Tenant shall pay for the quantities of cold water and hot water shown on such
meters, at Landlord's cost thereof, on the rendition of Landlord's bills
therefor.
17.04. Landlord, at its expense, and at Tenant's request, shall insert
initial listings on the Building directory of the names of Tenant, and the names
of any of their officers and employees, provided that the names so listed shall
not take up more than Tenant's proportionate share of the space on the Building
directory. All Building directory changes made at Tenant's request after the
Tenant's initial listings have been placed on the Building directory shall be
made by Landlord at the expense of Tenant, and Tenant agrees to promptly pay to
Landlord as additional rent the cost of such changes within ten (10) days after
Landlord has submitted an invoice therefor.
17.05. Landlord reserves the right, without any liability to Tenant, to
stop service of any of the heating, ventilating, air conditioning, electric,
sanitary, elevator, or other Building systems serving the Demised Premises, or
the rendition of any of the other services required of Landlord under this
Lease, whenever and for so long as may be necessary, by reason of accidents,
emergencies, strikes, or the making of repairs or changes which Landlord is
required by this Lease or by law to make or in good faith deems necessary, by
reason of difficulty in securing proper supplies of fuel, steam, water,
electricity, labor (other than Landlord's own employees) or supplies, or by
reason of any other cause beyond Landlord's reasonable control.
17.06. Landlord shall make available for Tenant's use Tenant's
Proportionate Share of parking spaces in common with other tenants of the
Building in the parking areas
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adjacent to the Building. The Landlord agrees that if, from and after the date
hereof, it should grant to any other tenant of the Building, assigned or
reserved parking spaces, then it shall also reserve to Tenant assigned or
reserved parking spaces at the same ratio or pro-rata percentage as Landlord
allowed to the other tenant and reasonably proportionate with regard to
proximity.
17.07. The Building and the Demised Premises shall be cleaned in accordance
with the Cleaning and Maintenance Schedule set forth on Exhibit D annexed hereto
and made a part hereof.
17.08. Tenant acknowledges that as part of the consideration for this
Lease, and in order not to interfere with the rights of other tenants or other
tenants' quiet enjoyment of the common areas of the Building and otherwise
prevent Landlord from performing its services without causing increases to the
cost of such services, Tenant agrees that it shall not permit its employees to
congregate in hallways or elevators, shall not permit its employees to create an
unsightly condition in or about any passageway from the Building or the common
areas or to the parking lot/deck, with regard to smoking, including the disposal
of cigarettes, in the courtyard and/or outer areas adjacent to the Building and
will otherwise require its employees to act and conduct themselves in the common
areas in such a manner as will not disturb other tenants or the use and
enjoyment by other tenants of the Building.
17.09. Landlord states that (i) the existing windows are thermal pane
windows, (ii) the windows are free of leaks and (iii) the windows are in good
working condition.
ARTICLE 18
ACCESS, CHANGES IN BUILDING FACILITIES, NAME
18.01. All walls, windows, and doors bounding the Demised Premises
(including exterior Building walls, core corridor walls and doors, and any core
corridor entrance), except the inside surfaces thereof, any terraces or roofs
adjacent to the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, pipes, conduits, fan room, ducts, electric or
other utilities, sinks or other Building facilities, and the use thereof, as
well as access thereto through the Demised Premises for the purposes of
operation, maintenance, decoration, and repair are reserved to Landlord.
18.02. Tenant shall permit Landlord to install, use, and maintain pipes,
ducts, and conduits within the demising walls, bearing columns, and ceilings of
the Demised Premises.
18.03. Landlord or Landlord's agent shall have the right upon request
(except in emergency under clause (ii) hereof) to enter and/or pass through the
Demised Premises or any part thereof, at reasonable times during reasonable
hours, (i) to examine the Demised Premises and to show them to the fee owners,
holders of superior mortgages, or prospective purchasers, mortgagees, or lessees
of the Building as an entirety; and (ii) for the purpose of making such repairs
or changes or doing such repainting in or to the Demised Premises or its
facilities, as may be provided for by this Lease or as may be mutually agreed
upon by the parties or as Landlord
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may be required to make by law or in order to repair and maintain said structure
or its fixtures or facilities. Landlord shall be allowed to take all materials
into and upon the Demised Premises that may be required for such repairs,
changes, repainting, or maintenance, without liability to Tenant (except for
damages arising out of Landlord's negligence) but Landlord shall not
unreasonably interfere with Tenant's use of the Demised Premises. Landlord shall
also have the right to enter on and/or pass through the Demised Premises, or any
part thereof, at such times as such entry shall be required by circumstances of
emergency affecting the Demised Premises or the Building.
18.04. During the period of six (6) months prior to the Expiration Date,
Landlord may exhibit the Demised Premises to prospective tenants.
18.05. Landlord reserves the right, at any time after completion of the
Building, without incurring any liability to Tenant therefor (except for damages
arising out of Landlord's negligence), to make such changes in or to the
Building and the fixtures and equipment thereof, as well as in or to the street
entrances, halls, passages, elevators, escalators, and stairways thereof, as it
may deem necessary or desirable, provided, however, that such changes shall not
reduce the size or otherwise adversely affect the practical usability of the
Demised Premises.
18.06. Landlord may adopt any name for the Building. Landlord reserves the
right to change the name or address of the Building at any time. If the address
is changed, Landlord shall replace, at Landlord's cost, the stationery in
Tenant's inventory.
ARTICLE 19
NOTICE OF ACCIDENTS
19.01. Tenant shall give notice to Landlord, promptly after Tenant learns
thereof, of (i) any accident in or about the Demised Premises for which Landlord
might be liable; (ii) all fires in the Demised Premises; (iii) all damage to or
defects in the Demised Premises, including the fixtures, equipment, and
appurtenances thereof, for the repair of which Landlord might be responsible;
and (iv) all damage to or defects in any parts or appurtenances of the
Building's sanitary, electrical, heating, ventilating, air-conditioning,
elevator, and other systems located in or passing through the Demised Premises
or any part thereof.
ARTICLE 20
NON-LIABILITY AND INDEMNIFICATION
20.01. Neither Landlord nor any agent or employee of Landlord shall be
liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of, any property of Tenant or
of any other person, irrespective of the cause of such injury, damage, or loss,
unless caused by or due to the negligence of Landlord, its agents, or employees
but subject to the contributory negligence laws of the jurisdiction.
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20.02. Tenant shall indemnify and save harmless Landlord and its agents
against and from (a) any and all claims (i) arising from (x) the conduct or
management of the Demised Premises or of any business therein, or (y) any work
or thing whatsoever done, or any condition created (other than by Landlord for
Landlord's or Tenant's account) in or about the Demised Premises during the term
of this Lease or during the period of time, if any, prior to the Commencement
Date that Tenant may have been given access to the Demised Premises, or (ii)
arising from any negligent or otherwise wrongful act or omission of Tenant or
any of its subtenants, invitees or licensees or its or their employees, agents,
or contractors, and (b) all costs, expenses, and liabilities incurred in or in
connection with each such claim or action or proceeding brought thereon. In case
any action or proceeding be brought against Landlord by reason of any such
claim, Tenant, upon notice from Landlord, shall resist and defend such action or
proceeding.
20.03. Except as otherwise expressly provided in this Lease, this Lease and
the obligations of Tenant hereunder shall be in no wise affected, impaired or
excused because Landlord is unable to fulfill, or is delayed in fulfilling, any
of its obligations under this Lease by reason of strike, other labor trouble
(other than Landlord's own employees), governmental preemption or priorities or
other controls in connection with a national or other public emergency or
shortages of fuel supplies or labor resulting therefrom, or other like cause
beyond Landlord's reasonable control.
20.04. Landlord shall indemnify and save harmless Tenant and its agents
against and from (a) any and all claims (i) arising from (x) the conduct or
management of the Building or of any business therein, or (y) any work or thing
whatsoever done, or any condition created (other than by Tenant for Landlord's
or Tenant's account) in or about the Building or the Demised Premises during the
term of this Lease or during the period of time, if any, prior to the
Commencement Date, or (ii) arising from any negligent or otherwise wrongful act
or omission of Landlord or any of its subtenants, invitees or licensees or its
or their employees, agents, or contractors, and (b) all costs, expenses, and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon. In case any action or proceeding be brought against
Tenant by reason of any such claim, Landlord, upon notice from Tenant, shall
resist and defend such action or proceeding.
ARTICLE 21
DESTRUCTION OR DAMAGE
21.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other cause, then whether or not the
damage or destruction shall have resulted from the fault or neglect of Tenant,
or its employees, agents or visitors (and if this Lease shall not have been
terminated as in this Article hereinafter provided), Landlord shall repair the
damage and restore and rebuild the Building and/or the Demised Premises, at its
expense, with reasonable dispatch after notice to it of the damage or
destruction; provided, however, that Landlord shall not be required to repair or
replace any of the Tenant's Property.
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21.02. If the Building or the Demised Premises shall be partially damaged
or partially destroyed by fire or other cause not attributable to the fault or
negligence of Tenant, its agents, or employees, the rents payable hereunder
shall be abated to the extent that the Demised Premises shall have been rendered
untenantable and for the period from the date of such damage or destruction to
the date the damage shall be repaired or restored; provided, however, if the
damage shall be attributable to the fault or negligence of Tenant, its agents or
employees, then rent shall continue but shall be reduced by any amounts received
by Landlord pursuant to Landlord's coverage for business interruption and/or
rent insurance attributable to the Demised Premises. If the Demised Premises or
a major part thereof shall be totally (which shall be deemed to include
substantially totally) damaged or destroyed or rendered completely (which shall
be deemed to include substantially completely) untenantable on account of fire
or other cause, the rents shall abate as of the date of the damage or
destruction and until Landlord shall repair, restore, and rebuild the Building
and the Demised Premises, provided, however, that should Tenant reoccupy a
portion of the Demised Premises during the period of restoration work is taking
place and prior to the date that the same are made completely tenantable, rents
allocable to such portion shall be payable by Tenant from the date of such
occupancy.
21.03. If the Building or the Demised Premises shall be totally damaged or
destroyed by fire or other cause, or if the Building shall be so damaged or
destroyed by fire or other cause (whether or not the Demised Premises are
damaged or destroyed) as to require a reasonably estimated expenditure of more
than twenty-five percent (25%) of the full insurable value of the Building
immediately prior to the casualty then in either such case Landlord may
terminate this Lease by giving Tenant notice to such effect within ninety (90)
days after the date of the casualty. Within such ninety (90) day period,
Landlord shall advise Tenant of the estimated length of time needed by Landlord
to restore the Demised Premises from the date of the notice if Landlord
determines not to cancel. If such time period is greater than ten (10) months,
Tenant may terminate the Lease by notice to Landlord within thirty (30) days of
such notice. If Tenant does not cancel within that time, Tenant may thereafter
cancel if Landlord has not completed the making of the required repairs and
restored and rebuilt the Building and the Demised Premises within the nine (9)
month period (or greater period in the notice if Tenant did not cancel) or
within such period after such date (not exceeding six (6) months) as shall equal
the aggregate period Landlord may have been delayed in doing so by adjustment of
insurance, labor trouble, governmental controls, act of God, or any other cause
beyond Landlord's reasonable control.
21.04. No damages, compensation, or claim shall be payable by Landlord for
inconvenience, loss of business, or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as not unreasonably to interfere with
Tenant's use and occupancy during such time that Tenant is able to use the
Demised Premises during Landlord's restoration.
21.05. Notwithstanding any of the foregoing provisions of this Article, if
Landlord or the holder of any superior mortgage shall be unable to collect all
of the insurance
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proceeds (including rent insurance proceeds) applicable to damage or destruction
of the Demised Premises or the Building by fire or other cause, by reason of
some action or inaction on the part of Tenant or any of its employees, agents or
contractors in connection with the processing of any claim, then, without
prejudice to any other remedies which may be available against Tenant, there
shall be no abatement of Tenant's rents.
21.06. Landlord will not carry insurance of any kind on Tenant's Property,
and, except as provided by law or by reason of its fault or its breach of any of
its obligations hereunder, shall not be obligated to repair any damage thereto
or replace the same; to the extent that Tenant shall maintain insurance on
Tenant's Property, Landlord shall not be obligated to repair any damage thereto
or replace the same.
21.07. The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty, and any law of the State of New Jersey providing for
such a contingency in the absence of an express agreement, and any other law of
like import, now of hereafter in force, shall have no application in such case.
21.08. If the Demised Premises and/or access thereto become partially or
totally damaged or destroyed by any casualty not insured against, then Landlord
shall have the right to terminate this Lease upon giving the Tenant thirty (30)
days notice and upon the expiration of said thirty (30) day notice period this
Lease shall terminate as if such termination date were the Expiration Date.
ARTICLE 22
EMINENT DOMAIN
22.01. If the whole of the Building shall be lawfully taken by condemnation
or in any other manner for any public or quasi-public use of purpose, this Lease
and the term and estate hereby granted shall forthwith terminate as of the date
of vesting of title on such taking (which date is herein after also referred to
as the "date of the taking"), and the rents shall be prorated and adjusted as of
such date.
22.02. If any part of the Building shall be so taken, this Lease shall be
unaffected by such taking, except that Tenant may elect to terminate this Lease
in the event of a partial taking, if the area of the Demised Premises remaining
would materially restrict, limit or otherwise adversely affect the use,
occupancy or enjoyment of Tenant of the Demised Premises. Tenant shall give
notice of such election to Landlord not later than seventy-five (75) days after
the date of such taking. Upon the giving of such notice to Landlord, this Lease
shall terminate on the date of service of notice and the rents apportioned to
the part of the Demised Premises so taken shall be prorated and adjusted as of
the date of the taking and the rents apportioned to the remainder of the Demised
Premises shall be prorated and adjusted as of such termination date. Upon such
partial taking and this Lease continuing in force as to any part of the Demised
Premises, the rents apportioned to the part taken shall be prorated and adjusted
as of the date of
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taking and from such date the fixed rent shall be reduced to the amount
apportioned to the remainder of the Demised Premises and additional rent shall
be payable pursuant to Article 5 according to the rentable area remaining.
22.03. Except as specifically set forth in Section 22.04. hereof, Landlord
shall be entitled to receive the entire award in any proceeding with respect to
any taking provided for in this Article without deduction therefrom for any
estate vested in Tenant by this Lease, and Tenant shall receive no part of such
award. Tenant hereby expressly assigns to Landlord all of its right, title, and
interest in or to every such award.
22.04. If the temporary use or occupancy of all or any part of the Demised
Premises shall be lawfully taken by condemnation or in any other manner for any
public or quasi-public use or purpose during the term of this Lease, Tenant
shall be entitled, except as hereinafter set forth, to receive any award which
does not serve to diminish Landlord's award in any respect and, if so awarded,
for the taking of Tenant's Property and for moving expenses, and Landlord shall
be entitled to receive that portion which represents reimbursement for the cost
of restoration of the Demised Premises. This Lease shall be and remain
unaffected by such taking and Tenant shall remain responsible for all of its
obligations hereunder insofar as such obligations are not affected by such
taking and shall continue to pay in full the fixed rent and additional rent when
due. If the period of temporary use or occupancy of the Demised Premises (or a
part thereof shall be divided between Landlord and Tenant so that Tenant shall
receive so much thereof as represents the period prior to the Expiration Date
and Landlord shall receive so much thereof as represents the period subsequent
to the Expiration Date. All moneys received by Tenant as, or as part of, an
award for temporary use and occupancy for a period beyond the date to which the
rents hereunder have been paid by Tenant shall be received, held, and applied by
Tenant as a trust fund for payment of the rents falling due hereunder.
22.05. In the event of any taking of less than the whole of the Building
which does not result in a termination of this Lease, or in the event of a
taking for a temporary use or occupancy of all or any part of the Demised
Premises which does not extend beyond the Expiration Date, Landlord, at its
expense, shall proceed with reasonable diligence to repair, alter, and restore
the remaining parts of the Building and the Demised Premises to substantially
their former condition to the extent that the same may be feasible and so as to
constitute a complete and tenantable Building and Demised Premises provided that
Landlord's liability under this Section 22.05 shall be limited to the net amount
(after deducting all costs and expenses, including, but not limited to, legal
expenses incurred in connection with the eminent domain proceeding) received by
Landlord as an award arising out of such taking. If such taking occurs within
the last three (3) years of the term of this Lease, Landlord shall have the
right to terminate this Lease by giving the Tenant written notice to such effect
within ninety (90) days after such taking, and this Lease shall then expire on
that effective date stated in the notice as if that were the Expiration Date,
but the fixed rent and the additional rent shall be prorated and adjusted as of
the date of such taking.
22.06. Should any part of the Demised Premises be taken to effect
compliance with any law or requirement of public authority other than in the
manner hereinabove provided in
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this Article then, (i) if such compliance is the obligation of Tenant under this
Lease, Tenant shall not be entitled to any diminution or abatement of rent or
other compensation from Landlord therefor, but (ii) if such compliance is the
obligation of Landlord under this Lease, the fixed rent hereunder shall be
reduced and additional rents under Article 5 shall be adjusted in the same
manner as is provided in Section 22.02 according to the reduction in rentable
area of the Demised Premises resulting from such taking.
22.07. Any dispute which may arise between the parties with respect to the
meaning or application of any of the provisions of this Article shall be
determined by arbitration in the manner provided in Article 33.
ARTICLE 23
SURRENDER
23.01. On the last day of the term of this Lease, or upon any earlier
termination of this Lease, or upon any re-entry by Landlord upon the Demised
Premises, Tenant shall quit and surrender the Demised Premises to Landlord in
good order, condition, and repair, except for ordinary wear and tear and such
damage or destructions as Landlord is required to repair or restore under this
Lease, and Tenant shall remove all of Tenant's Property therefrom except as
otherwise expressly provided in this Lease. Landlord reserves the right to
require Tenant to remove all items installed by, for or on behalf of Tenant in
excess of the Building standard items ("Landlord's Work"). After review and
completion of the final construction drawings, Landlord reserves the right to
notify Tenant of any restoration Tenant shall be responsible for upon the
termination of this Lease. If Tenant fails to perform any restoration required
of it under this Lease on or before the last day of the term of this Lease or
upon any earlier termination, Tenant shall be deemed a hold-over Tenant under
Article 40 of this Lease until such time as Tenant has completed such
restoration.
ARTICLE 24
CONDITIONS OF LIMITATION
24.01. Subject to applicable bankruptcy laws, this Lease and the term and
estate hereby granted are subject to the limitation that whenever Tenant shall
make an assignment of the property of Tenant for the benefit of creditors, or
shall file a voluntary petition under any bankruptcy or insolvency law, or an
involuntary petition alleging an act of bankruptcy or insolvency shall be filed
against Tenant under any bankruptcy or insolvency law, or whenever a petition
shall be filed by or against Tenant under the reorganization provisions of the
United States Bankruptcy Act or under the provisions of any law of like imports
or whenever a petition shall be filed by Tenant under the arrangement provisions
of any law of like import, whenever a permanent receiver of Tenant or of or for
the property of Tenant shall be appointed, then Landlord, (a) at any time of
receipt of notice of the occurrence of any such event, or (b) if such event
occurs without the acquiescence of Tenant, at any time after the event continues
for thirty (30) days, Landlord may give Tenant a notice of intention to end the
term of this Lease at the
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expiration of five (5) days from the date of service of such notice of
intention, and upon the expiration of said five (5) day period this Lease and
the term and estate hereby granted, whether or not the term shall theretofore
have commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 26.
24.02. This Lease and the term and estate hereby granted are subject to the
further limitation that:
(a) Whenever Tenant shall default in the payment of installment of
fixed rent, or in the payment of any additional rent or any other charge payable
by Tenant to Landlord, or any day upon which the same ought to be paid, and such
default shall continue for seven (7) days after written notice thereof; or
(b) Whenever Tenant shall do or permit anything to be done, whether by
action or inaction, contrary to any of Tenant's obligations hereunder, and if
such situation shall continue and shall not be remedied by Tenant within thirty
(30) days after Landlord shall have given to Tenant a written notice specifying
the same, or, in the case of a happening or default which cannot with due
diligence be cured within a period of thirty (30) days and the continuance of
which for the period required for cure will not subject Landlord to risk of
criminal liability or termination of any foreclosure of any superior mortgage if
Tenant shall not, (i) within said thirty (30) day period advise Landlord of
Tenant's intention to duly institute all steps necessary to remedy such
situation; (ii) duly institute within said thirty (30) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
same; (iii) complete such remedy within such time after the date of giving of
said notice to Landlord as shall reasonably be necessary; or
(c) Whenever any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm, or corporation other than Tenant, except as expressly permitted by
Article 8; or
(d) If Tenant shall default in the timely payment of rent or
additional rent and any such default shall continue to be repeated for a total
of five (5) months in any period of twelve (12) months, or more than three (3)
times in any six (6) month period, then, notwithstanding that such defaults
shall have each been cured within the applicable period, any similar monetary
default shall be deemed to be deliberate and Landlord may thereafter serve a
notice of termination upon Tenant without affording to Tenant opportunity to
cure such default, provided, however, in connection with any notice of default
for non-payment of rent for the fifth (5th) month or third time as aforesaid,
Landlord shall advise Tenant of the potential applicability of this Section
24.02 (d);
then, and in any of the foregoing cases, this Lease and the term and estate
hereby granted, whether or not the term shall theretofore have commenced, shall,
if the Landlord so elects, terminate upon ten (10) days written notice by
Landlord to Tenant of Landlord's election to
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terminate the Lease and the term hereof shall expire and come end on the date
fixed in such notice, with the same effect as if that day were the Expiration
Date, but Tenant shall remain liable for the rent and additional rent which
subsequently accrues and for damages as provided in Article 26.
ARTICLE 25
RE-ENTRY BY LANDLORD
25.01. If Tenant shall default in the payment of any installment of fixed
rent, or of any installment of additional rent, on any date upon which the same
ought to be paid and if such default shall continue for five (5) days after
written notice thereof, or if this Lease shall expire as provided in Article 24,
Landlord or Landlord's agents and employees may immediately or at any time
thereafter re-enter the Demised Premises, or any part thereof, in the name of
the whole, either by summary dispossess proceedings or by any suitable action or
proceeding at law, without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any persons therefrom, to
the end that Landlord may have, hold, and enjoy the Demised Premises again as
and of its first estate and interest therein. The word "re-enter", as herein
used, is not restricted to its technical legal meaning. In the event of any
termination of this Lease under the provisions of Article 24 or if Landlord
shall re-enter the Demised Premises under the provisions of this Article or in
the event of the termination of this Lease, or of re-entry, by or under any
summary dispossess or other proceeding or action or any provision of law by
reason of default hereunder on the part of Tenant, Tenant shall thereupon pay to
Landlord the fixed rent and additional rent payable by Tenant to Landlord up to
the time of such termination of this Lease, or of such recovery of possession or
the Demised Premises by Landlord, as the case may be, and shall also pay to
Landlord damages as provided in Article 26.
25.02. In the event of a breach or threatened breach by Landlord or Tenant
of any of their respective obligations under this Lease, either Landlord or
Tenant, as the case may be, shall also have the right of injunction. The special
remedies hereunder are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which the parties may lawfully be entitled
at any time.
25.03. If this Lease shall terminate under the provisions of Article 24, or
if Landlord shall re-enter the Demised Premises under the provisions of this
Article, or in the event of any termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all moneys, if any, paid by Tenant to Landlord, whether as
advance rent, security, or otherwise, but such moneys shall be credited by
Landlord against any fixed rent or additional rent due from Tenant at the time
of such termination or re-entry or, at Landlord's option, against any damages
payable by Tenant under Article 26 or pursuant to law.
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ARTICLE 26
DAMAGES
26.01. If this Lease is terminated under the provisions of Article 24, or
if Landlord shall re-enter the Demised Premises under the provisions of Article
25, or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action of any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord, either
(a) A sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord, as the case may be, represents the
then value of the excess, if any, of (i) the aggregate of the fixed rent and the
additional rent payable hereunder which would have been payable by Tenant
(conclusively presuming the additional rent to be the same as was payable for
the year immediately preceding such termination) for the period commencing with
such earlier termination of this Lease or the date of any such re-entry, as the
case may be, and ending with the Expiration Date, had this Lease not so
terminated or had Landlord not so re-entered the Demised Premises, over (ii) the
aggregate rental value of the Demised Premises for the same period, or
(b) Sums equal to the fixed rent and the additional rent (as above
presumed) payable hereunder which would have been payable by Tenant had this
Lease not so terminated, or had Landlord not so re-entered the Demised Premises,
payable upon the due dates therefor specified herein following such termination
or such re-entry and until the Expiration Date, provided, however, that if
Landlord shall relet the Demised Premises during said period, Landlord shall
credit Tenant with the net rents received by Landlord from such reletting, such
net rents to be determined by first deducting from the gross rents as and when
received by Landlord from such reletting, the expenses incurred or paid by
Landlord in terminating this Lease or in reentering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting, including
altering and preparing the Demised Premises for new tenants, brokers'
commissions, and all other expenses properly chargeable against the Demised
Premises and the rental therefrom; it being understood that any such reletting
may be for a period shorter or longer than the remaining term of this Lease; but
in no event shall Tenant be entitled to receive any excess of such net rents
over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be
entitled in any suit for the collection of damages pursuant to this Subsection
to a credit in respect of any net rents from a reletting, except to the extent
that such net rents are actually received by Landlord. Landlord shall use
commercially reasonable efforts to relet the Demised Premises so as to mitigate
damages. Landlord shall not be obligated to rent the Demised Premises any
differently from other vacant space in its inventory or in the inventory of
affiliated entities. Damages shall also include the unamortized portion of the
cost of Landlord's Work and any brokerage fees or commissions paid by Landlord.
If the Demised Premises or any part thereof should be relet in combination with
other space, then proper apportionment on a square foot basis shall be made of
the rent received from such reletting and of the expenses of reletting.
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If the Demised Premises or any part thereof to be relet by Landlord
for the unexpired portion of the term of this Lease, or any part thereof, before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting.
26.02. Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not been
so terminated under the provisions of Article 24, or under any provision of law,
or had Landlord not re-entered the Demised Premises. Nothing herein contained
shall be construed to limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder on
the part of Tenant. Nothing herein contained shall be construed to limit or
prejudice the right of Landlord to seek and obtain as liquidated damages by
reason of the termination of this Lease or re-entry on the Demised Premises for
the default of Tenant under this Lease, an amount equal to the maximum allowed
by any statute or rule of law in effect at the time when, and governing the
proceedings in which, such damages are to be proved whether or not such amount
be greater, equal to, or less than any of the sums referred to in Section 26.01.
26.03. Landlord and Tenant agree that with respect to any lawsuit
instituted or defended or any action to enforce all or any of the provisions of
this Lease, the successful party shall be entitled to all costs and expenses
incurred, including reasonably attorney's fees.
ARTICLE 27
WAIVERS
27.01. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Demised
Premises, including any claim of injury or damage, or any emergency or other
statutory remedy with respect thereto.
ARTICLE 28
NO OTHER WAIVERS OR MODIFICATIONS
28.01. The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this Lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the
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performance of such one or more obligations of this Lease or of the right to
exercise such election, but the same shall continue and remain in full force and
effect with respect to any subsequent breach, act, or omission. Any
modifications or amendments to this Lease shall be in writing and such writing
shall reference this Lease. No executory agreement hereafter made between
Landlord and Tenant shall be effective to change, modify, waive, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such executory agreement is in writing, refers expressly to this
Lease and is signed by the party against whom enforcement of the change,
modification, waiver, release, discharge, or termination of effectuation of the
abandonment is sought.
28.02. Without limiting Section 28.01, the following provisions shall also
apply:
(a) No agreement to accept a surrender of all or any part of the
Demised Premises shall be valid unless in writing and signed by Landlord. The
delivery of keys to an employee of Landlord or of its agent shall not operate as
a termination of this Lease or a surrender of the Demised Premises. If Tenant
shall at any time request Landlord to sublet the Demised Premises for Tenant's
account, Landlord or its agent is authorized to receive said keys for such
purposes without releasing Tenant from any of its obligations under this Lease,
and Tenant hereby releases Landlord from any liability for loss or damage to any
of Tenant's property in connection with such subletting unless due to the
willful acts or negligence of Landlord or its agents.
(b) The receipt by Landlord of rent with knowledge of breach of any
obligation of this Lease shall not be deemed a waiver of such breach.
(c) No payment by Tenant or receipt by Landlord of a lesser amount
than the correct fixed rent or additional rent due hereunder shall be deemed to
be other than a payment on account, nor shall any endorsement or statement on
any check or any letter accompanying any check or payment be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other remedy
in this Lease or at law provided.
ARTICLE 29
CURING TENANT'S DEFAULTS
29.01. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice, in a case of emergency, and in any other
case, only if such default continues after the expiration of (i) ten (10) days
from the date Landlord gives Tenant notice of intention so to do, or (ii) the
applicable grace period provided in Section 24.02 or elsewhere in this Lease for
cure of such default, whichever occurs later.
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ARTICLE 30
BROKER
30.01. Tenant covenants, warrants, and represents that there was no broker
except PETER ELLIOT NEW JERSEY, L.L.C., ("Broker") instrumental in consummating
this Lease and that it had no conversations or negotiations with any broker
except Broker concerning the renting of the Demised Premises. Tenant agrees to
hold Landlord harmless against any claims for a brokerage commission arising out
of any breach of warranty or representation under this Article. The foregoing
covenant, warranty and representation of Tenant shall not apply or extend to or
be applicable with respect to any claim of any broker arising out of any
conversations or negotiations had between such broker and Landlord or Landlord's
agents or representatives without knowledge, involvement or participation of
Tenant. Landlord agrees to pay Broker pursuant to a separate agreement.
ARTICLE 31
NOTICES
31.01. Any notice, statement, demand, or other communications required or
permitted to be given, rendered, or made by either party to the other, pursuant
to this Lease or pursuant to any applicable law or requirement of public
authority, shall be in writing (whether or not so stated elsewhere in this
Lease) and shall be deemed to have been properly given, rendered or made, if
sent by registered or certified mail, return receipt requested, addressed to the
other party at the address hereinabove set forth (except that after the
Commencement Date, Tenant's address, unless Tenant shall give notice to the
contrary,, shall be the Building) and shall be deemed to have been given,
rendered, or made on the date following the date of mailing. Notice may also be
given by facsimile transmittal (with a copy sent by regular first class mail) or
overnight mail. If such notice is given by facsimile transmittal, it shall be
deemed received the day it was sent and overnight mail shall be deemed received
the day after it was sent. Either party may, by notice as aforesaid, designate a
different address or addresses for notices, statements, demands, or other
communications intended for it. In the event of the cessation of any mail
delivery, for any reason, personal delivery, shall be substituted for the
aforedescribed method of sewing notices.
ARTICLE 32
ESTOPPEL CERTIFICATE
32.01. Tenant agrees, when requested by Landlord, to execute and deliver to
Landlord a statement certifying that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full force
and effect as modified and stating the modifications), certifying the dates to
which the fixed rent and additional rent have been paid, whether any dispute
exists with respect thereto and stating whether or not, to Tenant's best
knowledge, Landlord is in default in performance of any of its obligations under
this Lease, and,
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if so, specifying each such default of which Tenant may have knowledge, it being
intended that any such statement delivered pursuant hereto may be relied upon by
others. Such statement shall be served upon Landlord by Tenant within fifteen
(15) days of Landlord's request. If Tenant fails to deliver such notice,
Landlord shall be deemed appointed as Tenant's attorney-in-fact to prepare and
deliver such notice on behalf of Tenant, and Tenant shall be deemed bound
thereby upon Landlord's furnishing a copy of the notice to Tenant.
ARTICLE 33
ARBITRATION
33.01. The parties hereto shall not be deemed to have agreed to
determination of any dispute arising out of this Lease by arbitration unless
determination in such manner shall have been specifically provided for in this
Lease.
33.02. The party desiring arbitration shall give notice to that effect to
the other party and shall in such notice appoint a person as arbitrator on its
behalf. Within ten (10) days, the other party by notice to the original party
shall appoint a second person as arbitrator on its behalf. The arbitrators thus
appointed shall appoint a third person, and such three arbitrators shall as
promptly as possible determine such matter, provided, however that:
(a) If the second arbitrator shall not have been appointed as
aforesaid, the first arbitrator shall proceed to determine such matter; and
(b) If the two arbitrators appointed by the parties shall be unable to
agree, within ten (10) days after the appointment of the second arbitrator, upon
the appointment of a third arbitrator, they shall give written notice to the
parties of such failure to agree, and, if the parties fail to agree upon the
selection of such third arbitrator within ten (10) days after the arbitrators
appointed by the parties give notice as aforesaid, then within five (5) days
thereafter either of the parties upon notice to the other party may request such
appointment by the American Arbitration Association (or any organization
successor thereto), or in it absence, refusal, failure, or inability to act, may
apply for a court appointment of such arbitrator.
33.03. Each arbitrator shall be a fit and impartial person who shall have
had at least five years' experience in a calling connected with the matter of
dispute.
33.04. The arbitration shall be conducted, to the extent consistent with
this Article, in accordance with the then prevailing rules of the American
Arbitration Association (or any organization successor thereto). The arbitrators
shall render their decision and award, upon the concurrence of at least two of
their number, within thirty (30) days after the appointment of the third
arbitrator. Such decision and award shall be in writing and shall be final and
conclusive on the parties, and counterpart copies thereof shall be delivered to
each of the parties. In rendering such decision and award, the arbitrators shall
not add to, subtract from, or otherwise modify the provisions of this Lease.
Judgment may be had on the decision and award of the arbitrator(s) so rendered
in any court of competent jurisdiction. Notwithstanding the foregoing,
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the parties hereto agree that such judgment of the arbitrator shall not be
binding and may be the subject of litigation in the Superior Court of New Jersey
if it is alleged that the arbitrator made a mistake of fact or law.
33.05. Each party shall pay the fees and expenses of the one of the two
original arbitrators appointed by or for such party and the fees and expenses of
the third arbitrator and all other expenses of the arbitration (other than the
fees and disbursement of attorneys or witnesses for each party) shall be borne
by the parties equally.
33.06. Notwithstanding the provisions of this Article, if any delay in
complying with any requirements of this Lease by Tenant might subject Landlord
to any fine or penalty, or to prosecution for a crime, or if it would constitute
a default by Landlord under any mortgage, Landlord may exercise its right under
Article 29, to remedy such default and in such event the sole question to be
determined by the arbitrators under this Article, shall be whether Tenant is
liable for Landlord's cost and expenses of curing such default.
ARTICLE 34
NO OTHER REPRESENTATIONS, CONSTRUCTION, GOVERNING LAW
34.01. Tenant expressly acknowledges and agrees that Landlord has not made
and is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except to
the extent that the same are expressly set forth in this Lease. It is understood
and agreed that all understandings and agreements heretofore had between the
parties are merged in the Lease, which alone fully and completely express their
agreements and that the same are entered into after full investigation, neither
party relying upon any statement or representation not embodied in the Lease
made by the other.
34.02. If any of the provisions of this Lease, or the application thereof
to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
or provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and every
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
34.03. This Lease shall be governed in all respects by the laws of the
State of New Jersey.
ARTICLE 35
SECURITY
35.01. Tenant shall deposit with Landlord the sum of $96,952.00 upon the
execution of this Lease. Said deposit (sometimes referred to as the "Security
Deposit") shall be held by Landlord as security for the faithful performance by
Tenant of all the terms of the Lease
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by said Tenant to be observed and performed. The Security Deposit shall not and
may not be mortgaged, assigned, transferred, or encumbered by Tenant, without
the written consent of Landlord, and any such act on the part of Tenant shall be
without force and effect and shall not be binding upon Landlord. If any of the
fixed or additional rent herein reserved or any other sum payable by Tenant to
Landlord shall be overdue and unpaid, or if Landlord makes payment on behalf of
Tenant, or if Tenant shall fail to perform any of the terms, covenants, and
conditions of the Lease, then Landlord may, at its option and without prejudice
to any other remedy which Landlord may have on account thereof, appropriate and
apply the entire Security Deposit or so much thereof as may be necessary to
compensate Landlord toward the payment of fixed or additional rent and any loss
or damage sustained by Landlord due to such breach on the part of Tenant, plus
expenses; and Tenant shall forthwith upon demand restore the Security Deposit to
the original sum deposited. The issuance of a warrant and/or the re-entering of
the Demised Premises by Landlord for any default on the part of Tenant or for
any other reason prior to the expiration of the term shall not be deemed such a
termination of the Lease as to entitle Tenant to the recovery of the Security
Deposit. If Tenant complies with all of the terms, covenants, and conditions of
the Lease and pays all of the fixed and additional rent and all other sums
payable by Tenant to Landlord as they fall due, the Security Deposit shall be
promptly returned in full to Tenant after the expiration of the term of the
Lease and Tenant's satisfaction of all its obligations accruing prior to the
Lease expiration date. In the event of bankruptcy or other creditor-debtor
proceedings against Tenant, the Security Deposit and all other securities shall
be deemed to be applied first to the payment of fixed and additional rent and
other charges due Landlord for all periods prior to the filing of such
proceedings. In the event of sale by Landlord of the Building, Landlord may
deliver the then balance of the Security Deposit to the transferee of Landlord's
interest in the Demised Premises and Landlord shall thereupon be discharged from
any further liability with respect to the Security Deposit and this provision
shall also apply to any subsequent transferees. No holder of a superior mortgage
to which the Lease is subordinate shall be responsible in connection with the
Security Deposit, by way of credit or payment of any fixed or additional rent,
or otherwise, unless such mortgagee or lessor actually shall have received the
entire Security Deposit. However, in connection with any foreclosure if Landlord
fails to deliver the Security Deposit to the Landlord, then the Landlord shall
remain personally liable for the return of the Security Deposit or the turnover
of the Security Deposit notwithstanding Section 36.02.
ARTICLE 36
PARTIES BOUND
36.01. The obligation of this Lease shall bind and benefit the successors
and assigns of the parties with the same effect as if mentioned in each instance
where a party is named or referred to, except that no violation of the
provisions of Article 8 shall operate to vest any rights in any successor or
assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 24.
However, the obligations of Landlord under this Lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in event of such
transfer said obligations shall thereafter be binding upon each
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<PAGE>
transferee of the interest of Landlord herein named as such owner or lessee of
the Building, but only with respect to the period ending with a subsequent
transfer within the meaning of this Article.
36.02. If Landlord shall be an individual, joint venture, tenancy in
common, partnership, unincorporated association, or other unincorporated
aggregate of individuals and/or entities or a corporation, Tenant shall look
only to such Landlord's estate and property in the Building (or the proceeds
thereof) and, where expressly so provided in this Lease, to offset against the
rents payable under this Lease for the collection of a judgment (or other
judicial process) which requires the payment of money by Landlord in the event
of any default by Landlord hereunder. No other property or assets of such
Landlord shall be subject to levy, execution or other enforcement procedure for
the satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or Tenant's use or occupancy of
the Demised Premises. Further, Tenant agrees that Landlord shall not be liable
to Tenant for any special, indirect, or consequential damages arising out of
Landlord's breach of this Lease.
ARTICLE 37
CONSENTS
37.01. Wherever it is specifically provided in this Lease that a party's
consent is not to be unreasonably withheld, a response to a request for such
consent shall also not be unreasonably delayed. If either Landlord or Tenant
considers that the other had unreasonably withheld or delayed a consent, it
shall so notify the other party within ten (10) days after receipt of notice of
denial of the requested consent or, in case notice of denial is not received,
within twenty (20) days after making its request for the consent.
37.02. Tenant hereby waives any claim against Landlord which it may have
based upon any assertion that Landlord has unreasonably withheld or unreasonably
delayed any such consent, and Tenant agrees that its sole remedy shall be an
action or proceeding to enforce any such provision or for specific performance,
injunction or declaratory judgment. In the event of such determination, the
requested consent shall be deemed to have been granted, however, Landlord shall
have no liability to Tenant for its refusal or failure to give such consent. The
sole remedy for Landlord's unreasonably withholding or delaying of consent shall
be as provided in this Article.
ARTICLE 38
MORTGAGE FINANCING - TENANT COOPERATION
38.01. In the event that Landlord desires to seek mortgage financing
secured by the Demised Premises, Tenant agrees to cooperate with Landlord in the
making of any application(s) by Landlord for such financing including the
delivery to Landlord's mortgage broker or mortgagee, of such information as they
shall require with respect to Tenant's
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<PAGE>
occupancy of the Demised Premises, including, but not limited to the current
financial statement of Tenant, but Tenant shall not be required to deliver such
information directly to Landlord, all of the above to be at no cost and expense
of Tenant. In the event that Landlord's mortgagee shall request changes to the
within Lease in order to make same acceptable to Landlord's mortgagee, Tenant
agrees to consent to such changes, provided such changes shall not affect the
term of this Lease nor the financial obligations of Tenant hereunder, nor
adversely affect the practical usability of the Demised Premises or otherwise be
commercially unreasonable. The requirement of the mortgagee for notice of
defaults and an opportunity to cure shall not constitute a violation of this
provision.
ARTICLE 39
ENVIRONMENTAL COMPLIANCE
39.01. Tenant shall, at Tenant's sole cost and expense, comply with the New
Jersey Industrial Site Recovery Act and the regulations promulgated thereunder
(referred to as "ISRA") as same relate to Tenant's occupancy of the Demised
Premises, as well as all other state, federal or local environmental law,
ordinance, rule, or regulation either in existence as of the date hereof or
enacted or promulgated after the date of this Lease, that concern the
management, control, discharge, treatment and/or removal of hazardous discharges
or otherwise affecting or affected by Tenant's use and occupancy of the Demised
Premises. Tenant represents that Tenant's SIC number is 8980, and does not
subject it to ISRA. Tenant shall, at Tenant's own expense, make all submissions
to, provide all information to, and comply with all requirements of the Bureau
of Industrial Site Evaluation (the "Bureau") of the New Jersey Department of
Environmental Protection ("NJDEP"). Should the Bureau or any other division of
NJDEP, pursuant to any other environmental law, rule, or regulation, determine
that a cleanup plan be prepared and that a cleanup be undertaken because of any
spills or discharge of hazardous substances or wastes at the Demised Premises
which occur during the term of this Lease and were caused by Tenant or its
agents or contractors, then Tenant shall, at Tenant's own expense prepare and
submit the required plans and financial assurances, and carry out the approved
plans. In the event that Landlord shall have to comply with ISRA by reason of
Landlord's actions, Tenant shall promptly provide all information requested by
Landlord for preparation of non-applicability affidavits or a Negative
Declaration and shall promptly sign such affidavits when requested by Landlord.
Tenant shall indemnify, defend, and save harmless Landlord from all fines,
suits, procedures, claims, and actions of any kind arising out of or in any way
connected with any spills or discharges of hazardous substances or wastes at the
Demised Premises which occur during the term of this Lease and were caused by
Tenant or its agents or contractors, and from all fines, suits, procedures,
claims, and actions of any kind arising out of Tenant's failure to provide all
information, make all submissions and take all actions required by the Bureau or
any other division of NJDEP. Tenant's obligations and liabilities under this
Paragraph shall continue so long as Landlord remains responsible for any spills
or discharges of hazardous substances or wastes at the Demised Premises which
occur during the term of this Lease and were caused by Tenant or its agents or
contractors. Tenant's failure to abide by the terms of this paragraph shall be
restrainable by injunction. Tenant shall have no responsibility to obtain a
"Negative Declaration" or "Letter of Non-Applicability" from the NJDEP if the
sole reason for obtaining
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<PAGE>
same is in connection with a sale or other disposition of the real estate by
Landlord but Tenant agrees to cooperate with Landlord in Landlord's effort to
obtain same and shall perform at Tenant's expense any clean up required by
reason of Tenant's use and occupancy of the Demised Premises.
ARTICLE 40
HOLDING OVER
40.01. Tenant will have no right to remain in possession of all or part of
the Demised Premises after the expiration of the term. If Tenant remains in
possession of all or any part of the Demised Premises after the expiration of
the Lease, without the express consent of Landlord: (a) such tenancy will be
deemed to be a periodic tenancy from month-to-month only; (b) such tenancy will
not constitute a renewal or extension of this Lease for any further term; and
(c) such tenancy may be terminated by Landlord upon the earlier of (i) thirty
(30) days prior written notice, or (ii) the earliest date permitted by law. In
such event, monthly rent will be increased to an amount equal to one hundred
fifty percent (150%) during the first holdover month, one hundred seventy five
percent (175%) during the second holdover month, and thereafter, two hundred
percent (200%) of the monthly rent payable during the last month of the term,
and any other sums due under this Lease will be payable in the amount and at the
times specified in this Lease. Such month-to-month tenancy will be subject to
every other term, condition, and covenant contained in this Lease. The
provisions of this Section shall not be construed to relieve Tenant from
liability to Landlord for damages resulting from any such holding over, or
preclude Landlord from implementing summary dispossess proceedings. Tenant
further acknowledges that its failure to perform any restoration required of it
under this Lease shall be deemed the same as its remaining in possession of the
Demised Premises after the expiration of the term, subjecting it to hold-over
rent in accordance with this Article 40.
ARTICLE 41
CERTAIN DEFINITIONS AND CONSTRUCTIONS
41.01. For the purpose of this Lease and all agreements supplemental to
this Lease, unless the context otherwise requires, the definitions set forth in
Exhibit F annexed hereto shall be utilized.
41.02. The various terms which are italicized and defined in other Articles
of this Lease or are defined in Exhibits annexed hereto, shall have the meanings
specified in such other Articles and such Exhibits for all purposes of this
Lease and all agreements supplemental thereto, unless the context shall
otherwise require.
41.03. The submission of this Lease for examination does not constitute a
reservation of, or option for, the Demised Premises, and this Lease becomes
effective as a Lease only upon execution and delivery thereof by Landlord and
Tenant.
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<PAGE>
41.04. The Article headings in this Lease and the Index prefixed to this
Lease are inserted only as a matter of convenience in reference and are not to
be given any effect whatsoever in construing this Lease.
ARTICLE 42
RELOCATION OF TENANT
INTENTIONALLY DELETED
---------------------
ARTICLE 43
OPTION TO RENEW
43.01. Provided that Tenant is not then in default of the terms, covenants,
and provisions of this Lease, Landlord hereby grants to Tenant the right to
renew the term of this Lease for one (1) additional period of ten (10) years
(the "Renewal Period") commencing on the day after the initial Expiration Date
upon the same terms and conditions as set forth in this Lease other than the
fixed annual rental which shall be the Fair Market Rental of the Demised
Premises at the time of the commencement of the Renewal Period, adjusting as
necessary for the lapse of time between the date of Tenant's notification of
intent to exercise its option to renew and the date on which the Renewal Period
is scheduled to commence but in no event shall be less than the fixed rent
during the initial term. Said fixed annual rental shall be payable in equal
monthly installments in advance on the first day of each and every month of the
Renewal Period. The base year for calculation of additional rent for increase in
taxes and operating expenses for the Renewal Period shall be the calendar year
in which the Renewal Period commences. Tenant shall exercise the within Option
by giving written notice to Landlord not later than nine (9) months prior to the
initial Expiration Date, TIME BEING OF THE ESSENCE. If Tenant fails to give such
notice, Tenant will be deemed to have waived such Renewal Option and the
provisions of this Section shall be null and void. Fair Market Value shall mean
the rents obtainable for comparable space in the Metro Park (Edison), New Jersey
market area.
ARTICLE 44
RIGHT OF FIRST NEGOTIATION
44.01. Provided Tenant is not in default of this Lease, upon reasonable
written request of Tenant, Landlord shall provide Tenant with a list of existing
leases setting forth termination dates and option periods, if any, on any space
in the Building. Landlord and Tenant agree to negotiate towards a fair market
value rental for any space which Tenant notifies Landlord it is interested in
renting and is available or will become available, subject to the rights
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<PAGE>
of other tenants in the Building. For purposes of this Section, "rights" of
existing tenants shall include an existing tenant's right of first refusal, an
option to expand, an option to renew, a renewal of an existing lease whether or
not pursuant to an option or the right of a new tenant who executes a lease for
the vacant space while Landlord and Tenant are negotiating after the passage of
two (2) weeks from Tenant's notice. The foregoing shall not obligate either
Landlord or Tenant to enter into a lease for any space which is the subject of
negotiation by Landlord or Tenant pursuant to the foregoing.
44.02. In furtherance and notwithstanding the foregoing and subject to
availability of space, Landlord shall make available to Tenant 8,000 rentable
square feet of space on the 9th floor for one (1) year from the Commencement
Date of this Lease subject to the same terms and conditions of this Lease except
that the workletter shall be proportionately reduced by up to ten percent (10%)
on a proportionate basis depending upon if, as and when Tenant executes an
amendment for such space. Tenant shall also have the right to take any
additional space on the 9th floor above and beyond the 8,000 square feet if same
is available. However, Landlord shall have no obligation to keep such space
vacant during the aforesaid one (1) year period. Landlord shall have no
obligation to advise Tenant as to whether or not it is negotiating with any
tenant for space on the 9th floor and Landlord shall have no obligation to offer
any such space to Tenant. Landlord shall have no obligation to refrain from
leasing any space on the 9th floor. Tenant's rights under this Section 44.02
shall terminate as of the last day of the twelfth (12th) month calculated from
the Commencement Date.
ARTICLE 45
SATELLITE DISH
45.01. Permission is granted, free of rental charge, for the Tenant to
install one (1) satellite dish not to exceed three (3) feet in diameter nor
protrude above the lowest part of the roof line by more than 4 feet, including
all cable, wiring, conduits and related equipment necessary for the reception
(but not the transmission) of radio and satellite-generated television
transmissions (collectively the "Antenna") at the Demised Premises on the roof
of the Building, at Tenant's sole cost and expense, subject to the following
restrictions:
(a) The location and means of securing the Antenna must be approved by
Landlord or its designated agent, and such location shall be selected with the
goal of minimizing its visual impact. Roof penetration will not be accepted
except if performed by Landlord or its designated agent, all at Tenant's sole
cost and expense. Tenant shall be responsible for any damage to the Building
roof or any surrounding property resulting from the installation or operation of
the Antenna, including, but not limited to, damage resulting from wind, ice or
any other causes. The Antenna shall not damage the Building or the system of
communication devised by any other user authorized by Landlord or users at
neighboring properties. If such damage or interference shall occur, Tenant shall
correct same promptly.
(b) Prior to installation, Tenant must provide Landlord with a copy of
all zoning or use approvals which may be required, including, without
limitation, any Federal
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<PAGE>
Communications Commission ("FCC") licenses or approvals. Landlord agrees to
reasonably cooperate with Tenant in such regard, all without cost to Landlord.
(c) Tenant agrees to maintain the Antenna in a proper and safe
operating condition and shall procure separate liability insurance naming
Landlord as an additional insured.
(d) Tenant shall comply with all applicable codes, rules, regulations
and conditions of the FCC, Federal Aviation Agency, and local governmental
agencies, and shall pay for all legal, engineering and other expenses incident
thereto including all matters relating to hearings pursuant to the Municipal
Land Use Law.
(e) Installation of the Antenna shall be performed in a responsible
and workmanlike manner by a recognized professional satellite dish installer at
Tenant's sole cost and expense, through or under the supervision of Landlord.
Prior thereto, Tenant shall provide complete structural details signed and
sealed by an appropriately licensed engineer of the State of New Jersey, as well
as a sketch of the roof showing the proposed location of the antenna and all
relevant distances and heights. Landlord's supervision fee and, if the presence
or advice of Landlord's building engineer is required, Landlord's building
engineer fee, shall be reimbursed to Landlord by Tenant for actual time spent by
Landlord's architect and building engineer at prevailing rates. Prior to
installation, Tenant shall provide Landlord with a copy of its FCC construction
permit, license, or evidence of authority to operate from this location.
Landlord shall have final approval with respect to, as well as the right to
perform at Tenant's cost and expense, all roof penetrations and repairs.
(f) Installations or substitutes shall meet all codes and shall be
made using Teflon wire (or by running wires through approved conduits),
rust-proof clamps, non-rustable hardware U-bolts, or other similar devices of
the highest quality commonly found in the industry, capable of the bearing of
the stress and strain of the installation without impairing use and occupancy of
the Building and without adverse aesthetic impact upon any portion of the
Demised Premises.
(g) Tenant shall be responsible for any costs associated with
furnishing electricity for the Antenna.
(h) Tenant shall not sublet, license or otherwise permit any third
party use of the Antenna.
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<PAGE>
(i) Access to the Antenna for inspection, servicing or any other
reason will only be allowed with prior permission and supervision by Landlord or
its agents and Tenant shall reimburse Landlord and/or its agents at prevailing
rates (during normal business hours) for time spent by Landlord and/or its
agents.
(j) Landlord reserves the right to require the removal of the Antenna
at such time as the Landlord may have made provisions for acceptable alternative
arrangements, subject to Tenant's consent as to what constitutes an acceptable
alternative arrangement, which consent shall not be unreasonably withheld.
Landlord shall provide Tenant with prior notice of the amount of time, if any,
satellite services would be interrupted and coordinate work with Tenant to avoid
interruption of Tenant's business.
(k) Tenant shall remove the Antenna and restore the roof to its
original condition at the earlier of Tenant's cessation of use of the Antenna or
the expiration of the term of this Lease or any renewal term thereof, at
Tenant's sole cost and expense, notwithstanding any other provision of the
Lease. The Antenna shall, at all times, remain the property of Tenant and Tenant
shall have the right to remove it at any time, subject to the terms and
conditions herein.
(1) Tenant acknowledges that it has been advised by Landlord that a
new roof was installed at the Building which is still the subject of a
manufacturers/installers warranty/guarantee. Tenant must install, maintain and
remove the Antenna in such a manner as to be consistent with said
warranty/guarantee and not perform or fail to perform any act which would void,
or cause to be voidable, Landlord's warranty/guarantee. Upon Tenant's request
prior to the performance of any work, Landlord shall provide true copies of all
relevant warranties and guarantees.
(m) Tenant shall be responsible for implementing appropriate screening
as required by Landlord.
(n) Tenant agrees to indemnify, defend and hold Landlord harmless from
any claim resulting from property damage or personal injury arising in
connection with the installation, maintenance, existence or removal of the
Antenna and shall carry insurance to cover
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<PAGE>
such liability and property damages.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of
the day and year first above written.
WITNESS: LANDLORD:
ALFIERI-PARKWAY ASSOCIATES,
a New Jersey General Partnership
/s/ Dominick Alfieri
- ------------------------------ --------------------------------------
By: Dominick Alfieri
Title: General Partner
ATTEST: TENANT:
INTELLIGROUP, INC.,
a New Jersey Corporation
/s/ Ashok Pandey
- ------------------------------ --------------------------------------
By: Ashok Pandey
Title: Chairman,
President Corporate Services
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Job Offer Letter
April 22, 1998
Gerard Dorsey
Dear Rod:
I am pleased to offer you of the position of Chief Financial Officer of
Intelligroup, Inc., subject to the Offer Contingency below. This Offer contains
the provisions of the Employment Agreement that was referenced in our offer to
you of April 9,1998
Offer Contingency:
This offer, including this letter, is contingent on your having no conflicting
obligations that would prevent you from working for Intelligroup (please see
Paragraph 1.3 of the enclosed Employment Agreement).
Compensation: Your remuneration will be equivalent to a cash compensation of
$252,700, consisting of a Base compensation at the annual rate of US $190,000
gross per year, a non-recoverable draw of $18,000, and eligibility for an
initial annual CFO executive bonus of $62,700 (less the $18,000 draw). The
formula for your CFO executive bonus would be as follows:
[33% of the Base Compensation] times [Intelligroup revenue attainment divided by
the Intelligroup Board revenue target] times [Intelligroup Net Income divided by
Intelligroup Board Net Income target to a maximum of ratio of 1.5] less [that
part of the $18,000 draw paid at the time of the calculation]. As an
illustration: 190,000 x .33 = 62,700 x 1.085 [130,000,000/119,885,283] x 1.045
[8,500,000/8,134,758 = $71,091 - (x/12 x $18,000)
In addition, this offer includes the following:
Current Benefits: Term Life Insurance for you in the amount of $100,000.
Dental and Health Insurance through a group medical plan, currently Pro-Net will
be provided by Intelligroup, Inc. for you (and your family if desired) for a
relatively small monthly employee contribution, currently $50.00.
Vacation: You are allowed 15 days per year to be used as sick or vacation days.
401(k): Eligibility for participation in Company 401(k) Employee Retirement Plan
in accordance with Company guidelines.
<PAGE>
The Board has indicated that it will approve a grant of 100,000 options, subject
to the provisions of the 1996 Plan, at the fair market value price at the time
of actual start of employment.
Severance compensation for termination at the will of the Company or a
successor, initially equivalent to twelve months Base compensation, but
decreasing by one month for each month of employment until the end of six months
of employment, at which time the severance compensation will remain equivalent
of six months of Annual Base Compensation.
This offer supersedes all earlier job offers made to you and will be solely
governed by the provisions of the enclosed Employment Agreement. Nothing in any
past, present or future Company's employee policy guidelines or handbooks that
may be distributed either to you or to the Company's employees, in general,
shall be construed to be part of this offer.
Sincerely,
- ----------------
Ashok Pandey
President - Corporate Services
I have read the provisions of the Employment Agreement and I accept the above
offer.
- -----------------
Gerard Dorsey
<PAGE>
EMPLOYMENT AGREEMENT
Between:
INTELLIGROUP, INC.
and
Gerard Dorsey
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT DESCRIBES THE BASIC LEGAL
AND ETHICAL RESPONSIBILITIES THAT YOU ARE REQUIRED TO OBSERVE AS AN EMPLOYEE
EXPOSED TO HIGHLY SENSITIVE TECHNOLOGY AND STRATEGIC INFORMATION IN PERFORMING
YOUR DUTIES. THE COMPANY BELIEVES THAT THIS AGREEMENT STRIKES A FAIR BALANCE
BETWEEN ITS INTERESTS AND YOUR NEEDS AND EXPECTATIONS.
<PAGE>
EMPLOYMENT AGREEMENT
This Employment Agreement is effective on April 22, 1998 between
Intelligroup, Inc., a New Jersey Corporation with offices at 517 Highway 1
South, Fifth Floor, Iselin, New Jersey 08830 (the "Company"); and Gerard Dorsey
(the "Employee").
STATEMENTS
A. The Company is engaged in the business of the development and/or
implementation of computer software and other technology products for its
customers.
B. The Employee has education and experience which would be useful to
the Company in its business.
C. It is in the Company's best interest to secure the services of the
Employee and the Employee's specialized knowledge and unique capabilities with
respect to the business of the Company.
D. The Company and the Employee wish to set forth in writing the terms
and conditions of the employment of the Employee.
NOW, THEREFORE, the parties agree as follows:
ARTICLES OF AGREEMENT
ARTICLE 1. EMPLOYMENT
1.1 The Company agrees to employ the Employee as Chief Financial
Officer and the Employee accepts such employment by the Company on the terms and
conditions set forth in this Agreement. The Employee agrees to serve the Company
faithfully in this capacity, the duties and responsibilities of which may change
from time to time. The Employee understands that the location at which such
duties are to be rendered is subject to change at the discretion of Company
management.
1.2 The Employee agrees to devote the Employee's entire energy and full
and undivided time and attention during the expected working hours of the
Employee exclusively to the business of the Company unless the Company otherwise
consents in its sole discretion as evidenced by a writing signed by a Company
Executive Officer. The Employee under no circumstances may work for a competitor
of the Company or have any financial interest in any competitor of the Company;
provided, however, that this Agreement does not prohibit investment of a
reasonable part of the Employee's assets in the stock or securities of any
<PAGE>
competitor whose stock or securities are traded on a national exchange, provided
that this investment does not result in his collectively owning beneficially at
any one time one percent (1%) or more of the equity of any company engaging in
activities that are in competition with the Company or its affiliates.
1.3 The Employee agrees and represents to the Company that the Employee
is not subject to any existing contract which would affect or impede the
Employee's ability to perform in accordance with the terms of this Agreement,
including, by way of example, any restrictive covenants of past employers that
would prohibit the Employee's acceptance of the terms of this Agreement. The
Employee agrees not to disclose to the Company any confidential information or
trade secrets of others for which he may be under an obligation to a third party
not to disclose. The Employee also agrees not to breach any on-going fiduciary
duty still owed to a previous employer nor to appropriate any trade secrets
obtained while in the employ of such previous employer.
1.4 The Employee hereby acknowledges that he/she is in a position of
trust in performing services for the Company and its clients, including but not
limited to obtaining access to confidential and trade secret information. The
Employee represents and warrants that he/she has no criminal felony convictions
involving drugs, theft or violent behavior within the past five (5) years.
Furthermore, the Employee expressly authorizes the Company or its agents to
conduct criminal background check to verify his/her above-stated
representations.
ARTICLE 2. COMPENSATION
The Employee's initial compensation is specified in the Job Offer
Letter attached to this Agreement. Unless otherwise agreed, the Employee's Base
Compensation is payable in accordance with the customary payroll practices of
the Company.
ARTICLE 3. FRINGE BENEFITS
The Employee has the right to participate in such fringe benefit plan
of any nature (including medical, dental and term life insurance, pension plans,
profit-sharing plans or other as specified in the Job Offer Letter) as the Board
of Directors shall determine from time to time is available for the same level
of employees. The Company reserves the right to amend or reduce its benefit
plans or programs in its discretion.
ARTICLE 4. VACATIONS
The Employee is entitled to such paid vacation as specified in the Job
Offer Letter.
- 2 -
<PAGE>
ARTICLE 5. REIMBURSEMENT OF EXPENSES
The Company recognizes the Employee may make certain expenditures for
travel, entertainment and other business related expenses necessary to carry out
the Employee's duties under this Agreement. If consistent with the budget plan
and the Company's approved practices relating to the budget, the Company agrees
to reimburse the Employee promptly for all such expenses upon presentation of
proper evidence of payment.
ARTICLE 6. TERM
6.1 The term of this Agreement is at will. The actual start date is
approximately mid-May 1998 and will be confirmed in a writing signed by the
parties contemporaneously with or subsequent to the actual commencement.
Nothing in this Agreement shall be construed to prevent or constrain
the discretion of the Company's Board of Directors from removing the Employee as
an officer of the Company for any reason or no reason,
Should the Company (or any successor in the event there is a change in
control of the Company) terminate this Agreement without cause as set forth in
paragraph 6.4, in addition to reimbursement for any expenses already incurred
and owing in accordance with Article 5, the Company shall pay to the Employee,
as the Employee's sole remedy for such termination, the severance set forth in
the Job Offer Letter attached to this Agreement:
Cause for Termination shall include but is not limited to the following
conduct of the Employee:
Material breach of any provision of this Employment Agreement, provided
the Employee is given notice and opportunity to cure such breach if the breach
is of a nature amenable to cure within a reasonable time without prejudice to
the Company's interests.
Misconduct as an employee of the Company, including but not limited to
misappropriation of funds or any property of the Company, any attempt to obtain
any personal profit from any transaction in which the Employee has an interest
that is adverse to the Company or any breach of the duty of loyalty and fidelity
to the Company, or any act or omission that substantially impairs the Company's
ability to conduct its ordinary business in its usual manner.
Unreasonable neglect or any refusal to perform the duties assigned to
the Employee under or pursuant to this Employment Agreement.
The failure of the Employee to meet his performance goals for at least
two quarters, which goals were set forth in a writing by Management in the
normal course of business in light of the Company business plans and the Company
Budget approved by the Board, or if there is no specific writing setting forth
such goals, then based upon the budget that includes revenue and profitability
targets for the Company function that the Employee manages.
- 3 -
<PAGE>
Conviction of a felony or any serious crime.
Any other Employee act or omission which subjects the Company or any or
its affiliates to public disrespect, scandal, or ridicule or causes the Company
to be in violation of governmental regulations that subject the Company either
to sanctions by governmental authority or to civil liability to its employees or
third parties.
To the extent permissible under applicable law, the inability of the
Employee to perform his functions, other than due to a short-term disability due
to physical health problems lasting more than 90 calendar days.
Resignation of the Employee unless with the consent of the Company in a
writing that references the continued applicability of the payment provisions of
paragraph 6.3.1 of this Agreement.
The death of the Employee.
ARTICLE 7. CONFIDENTIALITY
7.1 The Company has acquired and developed, and will continue to
acquire and develop, without limitation, technical information (including
functional and technical specifications, designs, drawings, analysis, research,
processes, systems and procedures, computer programs, methods, ideas, "know how"
and the like), business information (sales and marketing research, materials,
plans, accounting and financial information, credit information on customers,
lists containing the names, addresses and business habits of customers, sales
reports, price lists, personnel records including names and addresses of
Intelligroup employees, contractors, and subcontractors and the like) whether or
not designated as confidential and other information designated as confidential
expressly or by the circumstances in which it is provided (all of the foregoing
is referred to as the "Proprietary Information"). This excludes common and
generic information as set forth by federal and state law or generally known in
the industry through no fault of the Employee.
7.2 The Proprietary Information is confidential, important, and unique
to the Company's business. The Company and the Employee acknowledge the
Proprietary Information represents trade secrets of the Company.
7.3 For the Company to protect the Proprietary Information properly,
the Employee recognizes it is essential that confidentiality be maintained by
the Employee and that certain restrictions be imposed upon the Employee during
the course of employment and continuing.
7.4 The Employee agrees to keep all Proprietary Information
confidential. The Employee agrees to refrain from communicating or divulging any
of the Proprietary Information to any person, firm or corporation or to use the
proprietary information for any purpose other
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<PAGE>
than a Company purpose during the term of employment and at all times following
the termination of this Agreement for any reason whatsoever.
7.5 The Company has acquired, and during the Term the Employee will
acquire much similar information about the business of the Company's customers
or other parties (such as a licensor or contractor) with whom the Company does
business under circumstances requiring confidentiality. The Employee agrees to
treat the information acquired about the Company's customers and licensors at
least in the same manner and under the same restrictions of this Article 7 or in
a manner contractually required by any such customer or third party to provide
greater security to such customer or third party.
7.6 Notwithstanding the foregoing restrictions, the Employee may
disclose any information to the extent required by an order of any U.S. federal
or state court or other federal or state governmental authority, but only after
the Company or its clients or contractors, as the case may be, have been so
notified and have had the opportunity, if possible, to obtain reasonable
protection for such information in connection with such disclosure.
7.7 Upon the request of the Company or upon the termination of this
Agreement, the Employee will cause to remain with the Company all memoranda,
notes, records, drawings, manuals, disks, or other documents and media
pertaining to the Company's business, including all copies of such.
7.8 The provisions of this Article 7 shall survive the Termination of
this Agreement.
ARTICLE 8. RESTRICTIVE COVENANT;
NONINTERFERENCE WITH CUSTOMER
AND COMPANY PERSONNEL RELATIONS
8.1 The Employee, recognizing the high level of trust and authority and
the unique access to Company Proprietary Information to which he is being
afforded by the Company, in exchange covenants and agrees that he will not
during the term of employment and for a period of two years thereafter, on
behalf of himself or on behalf of any other person or business entity or
enterprise directly or indirectly as an employee, proprietor, stockholder,
partner, consultant or otherwise, engage in any business or activity competitive
with the business activities or the Company or its affiliates as they now are or
hereafter undertaken by the Company.
8.2 The Employee further covenants and agrees that during the term of
employment and for a period of two years following the termination of employment
for any reason or no reason, the Employee shall not directly or indirectly do
any of the following without the consent of a Company executive, ratified by the
Board of Directors:
8.2.1 Solicit or accept any business similar to that provided by the
Company from a person, firm or corporation that is a customer of the Company
during the time the Employee is employed by the Company; and
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<PAGE>
8.2.2 Solicit or accept any business similar to that provided by the
Company from any person, firm or corporation that is a prospective customer of
the Company (based on Company prospect reports) during the term of employment.
8.2.3 Solicit, persuade, induce, entice or attempt to entice, directly
or indirectly or in aid of a third party, any employee or individual contractor
of the Company to terminate his or her employment or contractual relationship
with the Company.
8.2.4 Solicit, persuade, induce, entice or attempt to entice, directly
or indirectly or in aid of a third party, any customer of the Company to
terminate its business relationship with the Company. For the purpose of this
paragraph, such customer shall include as well firms, companies or other
business entities that have been customers of the Company within the 12 months
preceding Employee's termination but may not be actual customers at the time of
termination.
8.3 The restrictions of this Article 8 shall survive the termination of
this Agreement.
ARTICLE 9. REMEDIES OF COMPANY
9.1 The Employee acknowledges the restrictions imposed by this
Agreement are reasonable and are necessary to protect the legitimate business
interests of the Company.
9.2 If the Employee breaches or threatens to breach any of the
restrictions imposed by this Agreement, the Employee agrees the Company would
suffer irreparable harm for which money would be an inadequate remedy.
Accordingly, the Employee agrees that the Company has the right to obtain
injunctive or other equitable relief in addition to any other available remedies
and the Company shall have the additional right to recover from the Employee
court costs and reasonable attorneys fees incurred by the Company in protection
of its interests hereunder.
ARTICLE 10. BINDING EFFECT
This Agreement is not assignable by the Employee; nor may the
obligations of the Employee be delegated to any person or other entity. The
Company may assign this Agreement without the consent of the Employee to a
subsidiary of the Company, to an entity which is acquired by the Company, to an
entity that acquires the Company, or to an entity with which the Company merges.
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<PAGE>
ARTICLE 11. INVENTIONS, TRADEMARKS,
PATENTS AND OTHER WORK PRODUCTS
11.1 Unless otherwise authorized in writing by the Company and to the
extent the Employee generates works of authorship, copyrights, inventions,
trademarks, trade dress or other such work products dealing with the nature of
the Company's business (collectively the "Works") during the terms of employment
by the Company, or uses the premises, facilities or time of the Company to
create or fix the Works, the Employee shall and hereby does convey, assign and
transfer ownership to the Company of all right, title and interest in and to all
the Works throughout the world, including but not limited to any and all
copyright, patent, trademark and trade dress rights. Whenever permitted by law,
the Company shall have the exclusive right to obtain copyright, patent and/or
trademark registration or other protection in the Works in its own name as
inventor, author and owner and to secure any renewals and extensions of such
rights throughout the world.
11.2 The Employee hereby acknowledges that the Employee retains no
rights whatsoever with respect to the Works, including but not limited to any
rights to reproduce the Works, prepare derivative works based thereon, file
copyright or trademark applications for the Works, distribute copies of the
Works in any manner whatsoever, exhibit, use or display the Works publicly or
otherwise, or license or assign to any third party the right to do any of the
foregoing, except as otherwise authorized in writing by the Company.
11.3 The Employee agrees to execute any documents as may be reasonably
required by the Company to effect the Company's ownership rights as provided
herein or to otherwise further the purpose of this Agreement.
11.4 The Company shall be entitled to a shop right with respect to any
of the Works created by the Employee that is not assignable to the Company under
the terms of this Agreement. In the event of termination, expiration or
invalidation of this Agreement by statutory construction, judicial
interpretation or other means, Employee agrees that the Company has absolute
rights of first refusal to acquire any remaining portion or extension of the
copyright term in the Works.
ARTICLE 12. AMENDMENTS AND NON-WAIVER
This Agreement, including this Article 12, may only be changed or
amended by a written agreement signed by a Company Executive Officer and the
Employee. A waiver by the Company of a breach of any provision of this Agreement
by the Employee is not to be construed as a waiver of any other current or
subsequent breach.
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<PAGE>
ARTICLE 13. ENTIRE AGREEMENT
This Agreement, together with the initial compensation, fringe
benefits, and vacation time set forth in the Job Offer letter to which this
Agreement is attached, contains the entire understanding of the parties with
respect to the matters set forth herein. Each party acknowledges that there are
no warranties, representations, promises, covenants or understandings of any
kind except those that are expressly set forth in this Agreement.
This Agreement supersedes any previous agreements between the parties.
ARTICLE 14. NOTICES
All notices under this Agreement shall be made in writing and shall be
deemed given when (1) delivered in person, (2) deposited in the U.S. mail, first
class, with proper postage prepaid and properly addressed, or (3) delivered by
an overnight or other express delivery service carrier, or (4) sent through the
interoffice delivery service of Employer, if the Employee is still employed by
the Company at the time.
ARTICLE 15. GOVERNING LAW AND JURISDICTION
This Agreement is governed by and is to be construed and enforced in
accordance with the laws of New Jersey as though made and to be fully performed
in New Jersey (without regard to the conflicts of law rules of New Jersey). All
disputes arising under this Agreement are to be resolved in the courts of the
State of New Jersey. If any party desires to commence an action to enforce any
provision of this Agreement, such action must be instituted in the appropriate
New Jersey court. The parties consent to the jurisdiction of the New Jersey
courts. The parties agree that the courts of the State of New Jersey are to have
exclusive jurisdiction over this Agreement. The parties agree that service of
any process is effective if served in the manner that a Notice may be served
pursuant to this Agreement.
ARTICLE 16. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement
does not in any manner affect any other provision. If any provision is
determined to be invalid or unenforceable, this Agreement is to be construed as
if the invalid or unenforceable provision was omitted.
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<PAGE>
IN WITNESS WHEREOF, the parties have signed this Agreement.
INTELLIGROUP, INC.
By:/s/ Ashok Pandey
------------------------------
Ashok Pandey
President - Corporate Services
By:/s/ Gerard Dorsey
------------------------------
Gerard Dorsey
Job Offer Letter
April 27, 1998
Stephen A. Carns
Dear Steve:
I am pleased to offer you the position of President and Chief Executive
Officer of Intelligroup, Inc.
This offer replaces any prior consulting arrangement and your current
General Manager Employment Agreement, except with respect to the stock options
for 100,000 shares referenced in the Job Offer Letter of April 9, 1998 which
shall remain in force, supersedes all earlier job offers made to you, and is
solely governed by the provisions of the enclosed Employment Agreement. Nothing
in any past, present or future Company employee policy guidelines or handbooks
that may be distributed either to you or to the Company's employees in general
shall be construed to be part of this Employment Agreement.
We look forward to your leadership. With best wishes and welcome to
Intelligroup, Inc.
Sincerely,
------------------------------
Ashok Pandey
President - Corporate Services
<PAGE>
EMPLOYMENT AGREEMENT
Between:
INTELLIGROUP, INC.
and
Stephen A. Carns
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT DESCRIBES THE BASIC LEGAL
AND ETHICAL RESPONSIBILITIES THAT YOU ARE REQUIRED TO OBSERVE AS AN EMPLOYEE
EXPOSED TO HIGHLY SENSITIVE TECHNOLOGY AND STRATEGIC INFORMATION IN PERFORMING
YOUR DUTIES. THE COMPANY BELIEVES THAT THIS AGREEMENT STRIKES A FAIR BALANCE
BETWEEN ITS INTERESTS AND YOUR NEEDS AND EXPECTATIONS.
<PAGE>
EMPLOYMENT AGREEMENT
This Employment Agreement is dated April 27, 1998 between Intelligroup,
Inc., a New Jersey Corporation with offices at 517 Highway 1 South, Fifth Floor,
Iselin, New Jersey 08830 (the "Company"); and Stephen A. Carns (the "Employee").
STATEMENTS
A. The Company is engaged in the business of the development and/or
implementation of computer software and other technology products for its
customers.
B. The Employee has substantial experience which would be useful to the
Company in running its business and has served as a management consultant to the
Company for the past several months.
C. It is in the Company's best interest to secure the services of the
Employee and the Employee's knowledge, managerial skills, and unique
capabilities with respect to the business of the Company.
D. The Company and the Employee wish to set forth in writing the terms
and conditions of the employment of the Employee.
NOW, THEREFORE, the parties agree as follows:
ARTICLES OF AGREEMENT
ARTICLE 1. EMPLOYMENT
1.1 The Company agrees to employ the Employee as President and Chief
Executive Officer and the Employee accepts such employment by the Company on the
terms and conditions set forth in this Agreement. The Employee agrees to serve
the Company faithfully in this capacity, the duties and responsibilities of
which may change from time to time.
1.2 The Employee agrees to devote the Employee's entire energy and full
and undivided time and attention during the expected working hours of the
Employee exclusively to the business of the Company unless the Board of
Directors otherwise consents in its sole discretion. The Employee has disclosed
that he has a pending lawsuit against his past employer but states that he will
not permit the prosecution of such suit to significantly interfere with or
compromise his obligations to devote such energy and time to the business of the
Company. During the term of this Agreement, the Employee under no circumstances
may work for a competitor of the
<PAGE>
Company or its affiliates or have any financial interest in any competitor of
the Company or its affiliates; provided, however, that investment in a
competitor whose stock or securities are traded on a national exchange is not
prohibited if the employee's collectively owning beneficially such interest at
any one time does not exceed one percent (1%) or more of the equity of any
company engaging in activities that are in competition with the Company or its
affiliates.
1.3 The Employee agrees and represents to the Company that the Employee
is not subject to any existing contract which would affect or impede the
Employee's ability to perform in accordance with the terms of this Agreement,
including, by way of example, any restrictive covenants of present or past
employers that would prohibit the Employee's acceptance of the terms of this
Agreement. The Employee agrees not to disclose to the Company any confidential
information or trade secrets of others for which he may be under an obligation
to a third party not to disclose. The Employee also agrees not to breach any
on-going fiduciary duty still owed to a current or previous employer nor to
appropriate any trade secrets obtained while in the employ of such employer.
1.4 The Employee hereby acknowledges that he/she is in a position of
trust in performing services for the Company and its clients, including but not
limited to obtaining access to confidential and trade secret information. The
Employee represents and warrants that he/she has no criminal felony convictions
involving drugs, theft or violent behavior within the past five (5) years.
Furthermore, the Employee expressly authorizes the Company or its agents to
conduct criminal background check to verify his/her above-stated
representations.
ARTICLE 2. BASE COMPENSATION
The Employee's Base Compensation is $318,000.00 per year. Unless
otherwise agreed, the Employee's Base Compensation is payable twice a month as
per the normal policies of the Company. In addition the Options Committee of
Board of Directors has approved the granting of stock options as shown in the
attached Addendum A, which is incorporated and made a part of this Agreement. In
addition the Employee will be eligible to participate in the Company's Executive
Incentive Plan, the details of which are still being developed and require Board
approval.
ARTICLE 3. FRINGE BENEFITS
The Employee has the right to participate in such fringe benefit plan
of any nature (including medical, dental and term life insurance, pension plans,
profit-sharing plans or other as specified in the Job Offer Letter) as the Board
of Directors shall determine from time to time is available; but such
participation is conditioned on the Employee's not retaining any fringe benefits
that carry forward from or arise out of in any connection his previous
employment. To the degree that the Employee is receiving such benefits, the
Company's obligations to furnish such benefits shall be reduced accordingly. The
Company reserves the right to amend or reduce its benefit plans or programs in
its discretion.
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<PAGE>
ARTICLE 4. VACATIONS
The Employee is entitled to fifteen business days paid vacation per
each twelve months of employment, in accordance with Company policies.
ARTICLE 5. REIMBURSEMENT OF EXPENSES
The Company recognizes the Employee may make certain expenditures for
travel, entertainment and other business related expenses necessary to carry out
the Employee's duties under this Agreement. If consistent with the budget plan
and the Company's approved practices relating to the budget, the Company agrees
to reimburse the Employee promptly for all such expenses upon presentation of
proper evidence of payment. Commutation expenses to and from the Company
headquarters will not deemed to be a reimbursable business expense.
ARTICLE 6. TERM
The term of this Agreement is three years from the date of this
Agreement, commencing at the date first set forth above, but the Company may
dismiss the Employee at any time for any reason or for no reason, subject to the
compensatory provisions set forth in the other paragraphs of this Article. The
Employee may terminate this Agreement upon one month's notice.
Nothing in this Agreement shall be construed to prevent or constrain
the discretion of the Company's Board of Directors from removing the Employee as
an officer of the Company for any reason or no reason.
Should the Company terminate this Agreement without cause in addition
to reimbursement for any expenses already incurred and owing in accordance with
Article 5, the Company shall pay or make the following compensation to the
Employee as the Employee's sole remedy for such termination:
An amount equal to the monthly base salary over a period of 12 months
or the balance of the remaining term, which ever is less, paid in the same
manner as before the termination but reduced by any salary, equivalent
compensation, or payment received by the Employee arising out of any subsequent
employment, agency, partnership, proprietorship or independent contractor
relationship in which the Employee engages in a capacity similar to that
performed for the Company during the time such payments are due; provided,
however, in the event there is a change in control of the Company by merger or
consolidation with or into another corporation or by sale of substantially all
of the Company's assets, then the period of payment of this amount shall be for
the balance of the term of the Agreement.
Continuing coverage for the Employee and his dependents under all of
the Company benefit plans in effect at the date of termination to which the
Employee or any of his dependents were a participant, in the same manner or
proportion as prior to the termination, for a period of
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<PAGE>
12 months or the balance of the remaining term, which ever is less, or to any
greater extent required by law.
A prorated portion for the period up to the termination date of any
Executive Incentive that is paid to Executives but unpaid to the Employee.
The pro rata acceleration and vesting of the next portion of any
remaining options granted in Addendum A as of the date of termination, so that ,
by way of illustration, if the vesting schedule were 25%, 30%, and 45%, and the
Employee date of termination was three months following the vesting of the first
25%, then 7.5% of the granted stock option (3/12ths of 30%) would be deemed to
vest as of the date of termination.
Cause for termination shall include but is not limited to the following
conduct of the Employee:
Material breach of any provision of this Employment Agreement, provided
the Employee is given notice and opportunity to cure such breach.
Misconduct as an employee of the Company, including but not limited to
misappropriation of funds or any property of the Company, any attempt to obtain
any personal profit from any transaction in which the Employee has an interest
that is adverse to the Company or any breach of the duty of loyalty and fidelity
to the Company, or any act or omission that substantially impairs the Company's
ability to conduct its ordinary business in its usual manner.
Unreasonable neglect or any refusal to perform the duties assigned to
the Employee under or pursuant to this Employment Agreement.
Conviction of a felony or any serious crime.
Any other act or omission within the direct control or the Employee
that causes the Company to be in violation of governmental regulations which
subject the Company either to serious sanctions by governmental authority or to
significant civil liability to its employees or third parties.
To the extent permissible under applicable law, the inability of the
Employee to perform his functions, other than due to a short-term disability due
to physical health problems lasting less than 90 calendar days.
Resignation of the Employee unless with the consent of the Company in a
writing that references the continued applicability of the payment provisions of
Paragraph 6.3.1 of this Agreement.
The death of the Employee.
- 4 -
<PAGE>
The Employee agrees to meet the performance objectives as set forth in
the Company's Annual Budget for 1998, 1999, and 2000 as presented to and
approved by the Board of Directors. Any change to such objectives after approval
of an Annual Budget and prior to its annual update shall be set forth in
writing.
Should the Employee fail to achieve the performance objectives (except
for insignificant variations), the Company may terminate this Agreement in which
case the Company shall pay to the Employee as the Employee's sole remedy for
such termination the compensation set forth in Paragraphs 6.3.1 and 6.3.2, but
specifically excluding the remedies of Paragraphs 6.3.3 and 6.3.4.
Should the Employee notify the Company that he cannot agree with such
change to the objectives, then he may provide notice of termination of this
Agreement and in which case the Company shall pay to the Employee as the
Employee's sole remedy for such termination the compensation set forth in
Paragraphs 6.3.1, 6.3.2, and 6.3.3 but specifically excluding the provisions of
Paragraph 6.3.4.
ARTICLE 7. CONFIDENTIALITY
7.1 The Company has acquired and developed, and will continue to
acquire and develop, without limitation, i) technical information (including
functional and technical specifications, designs, drawings, analysis, research,
processes, systems and procedures, computer programs, methods, ideas, "know how"
and the like); ii) business information (sales and marketing research,
materials, plans, accounting and financial information, credit information on
customers, lists containing the names, addresses and business habits of
customers or companies with which the Company has cooperative business
relationships or alliances, sales reports, price lists, personnel records
including names and addresses of Intelligroup employees, potential hires,
contractors, and subcontractors and the like) whether or not such technical or
business information is designated as confidential; and iii) other information
designated as confidential expressly or by the circumstances in which it is
provided. All of the foregoing is referred to as the "Proprietary Information".
This excludes common and generic information as set forth by federal and state
law or generally known in the industry through no fault of the Employee.
7.2 The Proprietary Information is confidential, important, and unique
to the Company's business. The Company and the Employee acknowledge the
Proprietary Information represents trade secrets of the Company.
7.3 For the Company to protect the Proprietary Information properly,
the Employee recognizes it is essential that confidentiality be maintained by
the Employee and that certain restrictions be imposed upon the Employee during
the course of employment and continuing thereafter.
7.4 The Employee agrees to keep all Proprietary Information
confidential. The Employee agrees to refrain from communicating or divulging any
of the Proprietary Information
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<PAGE>
to any person, firm or corporation or to use the proprietary information for any
purpose other than a Company purpose during the term of employment and
thereafter at all times following the termination of this Agreement for any
reason whatsoever.
7.5 The Company has acquired, and during the Term the Employee will
acquire much similar information about the business of the Company's customers
or other parties (such as a licensor or contractor) with whom the Company does
business under circumstances requiring confidentiality. The Employee agrees to
treat the information acquired about the Company's customers and licensors at
least in the same manner and under the same restrictions of this Article 7 or in
a manner contractually required by any such customer or third party to provide
greater security to such customer or third party.
7.6 Notwithstanding the foregoing restrictions, the Employee may
disclose any information to the extent required by an order of any U.S. federal
or state court or other federal or state governmental authority, but only after
the Company or its clients or contractors, as the case may be, have been so
notified and have had the opportunity, if possible, to obtain reasonable
protection for such information in connection with such disclosure.
7.7 Upon the request of the Company or upon the termination of this
Agreement, the Employee will cause to remain with the Company all memoranda,
notes, records, drawings, manuals, disks, or other documents and media
pertaining to the Company's business, including all copies of such.
7.8 To the degree that the obligations of the Confidentiality Agreement
as of November 11, 1997 between Intelligroup and Stephen A. Carns are in
addition to those set forth in this Article 7, they shall be deemed to continue
in effect and are hereby incorporated into this Agreement
The provisions of this Article 7 shall survive the Termination of this
Agreement.
ARTICLE 8. RESTRICTIVE COVENANT;
NONINTERFERENCE WITH CUSTOMER AND
COMPANY PERSONNEL RELATIONS
8.1 The Employee, recognizing the high level of trust and authority and
the unique access to Company Proprietary Information to which he is being
afforded by the Company, in exchange covenants and agrees that he will not
during the term of employment and for a period of one year thereafter, on behalf
of himself or on behalf of any other person or business entity or enterprise
directly or indirectly as an employee, proprietor, stockholder, partner,
consultant or otherwise, engage in any business or activity competitive with the
business activities or the Company or its affiliates as they now are or
hereafter undertaken by the Company.
8.2 The Employee further covenants and agrees that during the term of
employment and for a period of one year following the termination of employment
for any reason or no
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<PAGE>
reason, the Employee shall not directly or indirectly do any of the following
without the consent of a Company executive, ratified by the Board of Directors:
8.2.1 Solicit or accept any business similar to that provided by the
Company from a person, firm or corporation that is a customer of the Company
during the time the Employee is employed by the Company; and
8.2.2 Solicit or accept any business similar to that provided by the
Company from any person, firm or corporation that is a prospective customer of
the Company (based on Company prospect reports) during the term of employment.
8.2.3 Solicit, persuade, induce, entice or attempt to entice, directly
or indirectly or in aid of a third party, any employee or individual contractor
of the Company to terminate his or her employment or contractual relationship
with the Company.
8.2.4 Solicit, persuade, induce, entice or attempt to entice, directly
or indirectly or in aid of a third party, any customer of the Company to
terminate its business relationship with the Company. For the purpose of this
paragraph, such customer shall include as well firms, companies or other
business entities that have been customers of the Company within the 12 months
preceding Employee's termination but may not be actual customers at the time of
termination.
8.3 The restrictions of this Article 8 shall survive the termination
of this Agreement.
ARTICLE 9. REMEDIES OF COMPANY
9.1 The Employee acknowledges the restrictions imposed by this
Agreement are reasonable and are necessary to protect the legitimate business
interests of the Company.
9.2 If the Employee breaches or threatens to breach any confidentiality
or restrictive covenants of the restrictions imposed by this Agreement, the
Employee agrees the Company would suffer irreparable harm for which money would
be an inadequate remedy. Accordingly, the Employee agrees that the Company has
the right to obtain injunctive or other equitable relief in addition to any
other available remedies and the Company shall have the additional right to
recover from the Employee court costs and reasonable attorneys fees incurred by
the Company in protection of its interests hereunder, should the Company
prevail.
ARTICLE 10. BINDING EFFECT
The rights and obligations of this Agreement are binding upon, inure to
the benefit of and are enforceable by the heirs, personal representatives,
successors and assigns of the parties. This Agreement is not assignable by the
Employee nor may the obligations of the Employee be delegated to any person or
other entity without the prior written consent of the Company. The
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<PAGE>
above notwithstanding, the Company may assign this Agreement without the consent
of the Employee to a subsidiary of the Company or to an entity which is acquired
by the Company, to an entity that acquires the Company, to an entity with which
the Company merges or to any other such successor, provided that the Employee's
duties and functions (but not tittle) remain substantially similar or
commensurate under the assignee; otherwise the Employee may resign at the time
of such assignment as though he were discharged without cause.
ARTICLE 11. INVENTIONS, TRADEMARKS, PATENTS
AND OTHER WORK PRODUCTS
11.1 Unless otherwise authorized in writing by the Company and to the
extent the Employee generates works of authorship, copyrights, inventions,
trademarks, trade dress or other such work products dealing with the nature of
the Company's business (collectively the "Works") during the terms of employment
by the Company, or uses the premises, facilities or time of the Company to
create or fix the Works, the Employee shall and hereby does convey, assign and
transfer ownership to the Company of all right, title and interest in and to all
the Works throughout the world, including but not limited to any and all
copyright, patent, trademark and trade dress rights. Whenever permitted by law,
the Company shall have the exclusive right to obtain copyright, patent and/or
trademark registration or other protection in the Works in its own name as
inventor, author and owner and to secure any renewals and extensions of such
rights throughout the world.
11.2 The Employee hereby acknowledges that the Employee retains no
rights whatsoever with respect to the Works, including but not limited to any
rights to reproduce the Works, prepare derivative works based thereon, file
copyright or trademark applications for the Works, distribute copies of the
Works in any manner whatsoever, exhibit, use or display the Works publicly or
otherwise, or license or assign to any third party the right to do any of the
foregoing, except as otherwise authorized in writing by the Company.
11.3 The Employee agrees to execute any documents as may be reasonably
required by the Company to effect the Company's ownership rights as provided
herein or to otherwise further the purpose of this Agreement.
11.4 The Company shall be entitled to a shop right with respect to any
of the Works created by the Employee that is not assignable to the Company under
the terms of this Agreement. In the event of termination, expiration or
invalidation of this Agreement by statutory construction, judicial
interpretation or other means, Employee agrees that the Company has absolute
rights of first refusal to acquire any remaining portion or extension of the
copyright term in the Works.
ARTICLE 12. AMENDMENTS AND NON-WAIVER
This Agreement, including this Article 12, may only be changed or
amended by a written agreement authorized by the Board of Directors and signed
by a Company Executive Officer and
- 8 -
<PAGE>
the Employee. A waiver by the Company of a breach of any provision of this
Agreement by the Employee is not to be construed as a waiver of any other
current or subsequent breach.
ARTICLE 13. ENTIRE AGREEMENT
This Agreement, together with the initial compensation set forth in the
Job Offer letter to which this Agreement is attached, contains the entire
understanding of the parties with respect to the matters set forth herein. Each
party acknowledges that there are no warranties, representations, promises,
covenants or understandings of any kind except those that are expressly set
forth in this Agreement. This Agreement supersedes any previous agreements
between the parties.
ARTICLE 14. NOTICES
All notices under this Agreement shall be made in writing and shall be
deemed given when (1) delivered in person, (2) deposited in the U.S. mail, first
class, with proper postage prepaid and properly addressed, (3) delivered by an
overnight or other express delivery service carrier, or (4) sent through the
interoffice delivery service of Employer, if the Employee is still employed by
the Company at the time.
ARTICLE 15 ARBITRATION
15.1 Issues. Except as to issues relating to breach of the Employee's
obligations under Article 7 (Confidentiality), of Article 8 (Restrictive
Covenant; Noninterference with Customer and Personnel Relations), and of Article
11 (Inventions, Trademarks, Patents And Other Work Products), any claim or
dispute regarding the terms or conditions of employment of this Agreement shall
be submitted to arbitration in accordance with this Article 15. These claims
without limitation specifically include: claims for breach of an implied or
expressed employment contract, claims for unlawful discharge, claims alleging a
violation of Title VII of the Civil rights Act, as amended, The Age
Discrimination in Employment Act of 1967, as amended, The Americans with
Disabilities Act, The Equal Pay Act, The Family Medical Leave Act, federal and
state Wage and Hour Laws, the Employee Retirement Income Security Act of 1974,
federal and state whistleblower laws, and other claims pursuant to federal,
state, or local law regarding discrimination based on race, age, sex, religion,
,marital status, disability, sexual orientation, or national origin, claims for
alleged violation of any other local, state, and federal law, regulations,
ordinance or public policy having any bearing whatsoever on the terms and
conditions of Employee's employment with the Company, or the termination of such
employment, including claims a alleging a violation of the New Jersey Law
Against Discrimination, Family Leave Act and Conscientious Employee Protection
Act, all claims pursuant to common law, or claims arising directly or indirectly
out of Employee's employment by or separation from employment with the Company.
15.2. Terms of Arbitration. All matters subject to arbitration under
this Article 15 shall be submitted to arbitration in accordance with the
Arbitration Rules of the American Arbitration
- 9 -
<PAGE>
Association applicable to employment matters, except as otherwise provided in
this Agreement. Arbitration shall be brought upon the written notice of one
party to the other of a demand for arbitration, including a recitation of the
claim or dispute for which arbitration is sought and a specification of the
Arbitrator chosen by such party from a list of potential arbitrators prepared by
the American Arbitration Association. Arbitration shall be before a panel of
three Arbitrators. Within 30 days of receipt of a demand for arbitration, the
party receiving the demand must select a second Arbitrator from the said list
and notify the other party of the first party's selection. Within 20 days
thereafter, these two Arbitrators shall select a third Arbitrator from the said
list. If they fail to select a third Arbitrator, then the third Arbitrator shall
be designated by the American Arbitration Association. If either party fails to
designate an Arbitrator, then the claim or dispute shall be submitted to
arbitration before a panel of three arbitrators, but the American Arbitration
Association shall choose an arbitrator for a party that failed to make a
designation as well as the third arbitrator.
15.3. Place. All matters subject to arbitration under this
Agreement shall be arbitrated in Middlesex County, New Jersey.
15.4. Final Award. The award in the arbitration proceeding shall be
final and binding on the parties, and judgment on such award may be entered in
any court having competent jurisdiction.
15.5. Fees and Expenses. All fees and expenses connected with the
arbitration proceeding, other than counsel fees incurred by either party, if
any, shall be shared equally by both parties; provided, however, that the
Arbitrators are authorized to award either party a sum to compensate the party
for the time and expense of the arbitration if they determine that arbitration
was demanded without reasonable cause. In such event, the Arbitrators may also
assess the costs of the arbitration proceeding against the party that
unreasonably demanded arbitration.
ARTICLE 16. GOVERNING LAW AND JURISDICTION
This Agreement is governed by and is to be construed and enforced in
accordance with the laws of New Jersey as though made and to be fully performed
in New Jersey (without regard to the conflicts of law rules of New Jersey). All
disputes arising under this Agreement not governed by the binding arbitration
provision of this Agreement are to be resolved in the courts of the State of New
Jersey. If any party desires to commence an action to enforce any provision of
this Agreement not governed by that binding arbitration provision, such action
must be instituted in the appropriate New Jersey court. The parties consent to
the jurisdiction of the New Jersey courts. The parties agree that the courts of
the State of New Jersey are to have exclusive jurisdiction over this Agreement.
The parties agree that service of any process is effective if served in the
manner that a Notice may be served pursuant to this Agreement.
- 10 -
<PAGE>
ARTICLE 17. SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement
does not in any manner affect any other provision. If any provision is
determined to be invalid or unenforceable, this Agreement is to be construed as
if the invalid or unenforceable provision was omitted.
IN WITNESS WHEREOF, the parties have signed this Agreement.
INTELLIGROUP, INC.
By:/s/ Ashok Pandey
------------------------------
Ashok Pandey
President - Corporate Services
By:/s/ Stephen A. Carns
------------------------------
Stephen A. Carns
<PAGE>
Attachment A
This is an attachment to the Employment Agreement between Intelligroup,
Inc. and Stephen A. Carns, dated April 27, 1998.
In accordance with Article 2 of the Agreement, the Company will also
recommend to the Board the granting of 200,000 options for shares of Common
Stock of Intelligroup, Inc pursuant to the 1996 Stock Option Plan with a vesting
schedule of 25% at the end of the first year of the term of this Agreement, 30%
at the end of the second year of the term of this Agreement, and 45% at the end
of the third year of the term of this Agreement, subject to shareholder approval
at that 1998 Annual Meeting of a proposal to expand the existing number of
shares available for option grants.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN THE
REGISTRANT'S FORM 10-Q FOR THE PERIOD ENDED MARCH 31, 1998 AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-Q.
</LEGEND>
<CIK> 0001016439
<NAME> Intelligroup, Inc.
<MULTIPLIER> 1,000
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> Dec-31-1998
<PERIOD-START> Jan-01-1998
<PERIOD-END> Mar-31-1998
<EXCHANGE-RATE> 1
<CASH> 3,425
<SECURITIES> 0
<RECEIVABLES> 30,763
<ALLOWANCES> 1,088
<INVENTORY> 0
<CURRENT-ASSETS> 35,756
<PP&E> 5,983
<DEPRECIATION> 830
<TOTAL-ASSETS> 42,128
<CURRENT-LIABILITIES> 7,372
<BONDS> 0
0
0
<COMMON> 120
<OTHER-SE> 34,414
<TOTAL-LIABILITY-AND-EQUITY> 42,128
<SALES> 27,323
<TOTAL-REVENUES> 27,323
<CGS> 17,943
<TOTAL-COSTS> 17,943
<OTHER-EXPENSES> 6,891
<LOSS-PROVISION> 250
<INTEREST-EXPENSE> (80)
<INCOME-PRETAX> 2,569
<INCOME-TAX> 727
<INCOME-CONTINUING> 1,842
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,842
<EPS-PRIMARY> 0.15 <F1>
<EPS-DILUTED> 0.15 <F2>
<FN>
<F1> This amount represents Basic Earnings per Share in accordance with the
requirements of Statement of Financial Accounting Standards No. 128 -
"Earnings per Share".
<F2> This amount represents Diluted Earnings per Share in accordance with
the requirements of Statement of Financial Accounting Standards No.
128 - "Earnings per Share".
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE AUDITED
CONSOLIDATED FINANCIAL STATEMENTS AT DECEMBER 31, 1997 AND FOR THE TWELVE-MONTH
PERIOD ENDED DECEMBER 31, 1997 WHICH ARE INCLUDED IN THE REGISTRANT'S FORM
10-KSB AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL
STATEMENTS.
</LEGEND>
<CIK> 0001016439
<NAME> Intelligroup, Inc.
<MULTIPLIER> 1,000
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> Dec-31-1997
<PERIOD-START> Jan-01-1997
<PERIOD-END> Dec-31-1997
<EXCHANGE-RATE> 1
<CASH> 8,391
<SECURITIES> 0
<RECEIVABLES> 17,688
<ALLOWANCES> 799
<INVENTORY> 0
<CURRENT-ASSETS> 34,695
<PP&E> 3,366
<DEPRECIATION> 635
<TOTAL-ASSETS> 38,668
<CURRENT-LIABILITIES> 5,984
<BONDS> 0
0
0
<COMMON> 120
<OTHER-SE> 32,342
<TOTAL-LIABILITY-AND-EQUITY> 38,668
<SALES> 80,189
<TOTAL-REVENUES> 80,189
<CGS> 55,976
<TOTAL-COSTS> 55,976
<OTHER-EXPENSES> 18,041
<LOSS-PROVISION> 765
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 6,510
<INCOME-TAX> 2,039
<INCOME-CONTINUING> 4,471
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 4,471
<EPS-PRIMARY> 0.39 <F1>
<EPS-DILUTED> 0.38 <F2>
<FN>
<F1> This amount represents Basic Earnings per Share in accordance with the
requirements of Statement of Financial Accounting Standards No. 128 -
"Earnings per Share".
<F2> This amount represents Diluted Earnings per Share in accordance with
the requirements of Statement of Financial Accounting Standards No.
128 - "Earnings per Share".
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN THE
REGISTRANT'S FORM 10-QSB FOR THE PERIOD ENDED SEPTEMBER 30, 1997 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-QSB.
</LEGEND>
<CIK> 0001016439
<NAME> Intelligroup, Inc.
<MULTIPLIER> 1,000
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> Dec-31-1997
<PERIOD-START> Jan-01-1997
<PERIOD-END> Sep-30-1997
<EXCHANGE-RATE> 1
<CASH> 11,176
<SECURITIES> 0
<RECEIVABLES> 22,213
<ALLOWANCES> 886
<INVENTORY> 0
<CURRENT-ASSETS> 34,311
<PP&E> 3,592
<DEPRECIATION> 530
<TOTAL-ASSETS> 37,666
<CURRENT-LIABILITIES> 6,245
<BONDS> 0
0
0
<COMMON> 120
<OTHER-SE> 31,250
<TOTAL-LIABILITY-AND-EQUITY> 37,666
<SALES> 56,797
<TOTAL-REVENUES> 56,797
<CGS> 38,631
<TOTAL-COSTS> 38,631
<OTHER-EXPENSES> 12,670
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (266)
<INCOME-PRETAX> 5,762
<INCOME-TAX> 2,175
<INCOME-CONTINUING> 3,587
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,587
<EPS-PRIMARY> 0.32 <F1>
<EPS-DILUTED> 0.31 <F2>
<FN>
<F1> This amount represents Basic Earnings per Share in accordance with the
requirements of Statement of Financial Accounting Standards No. 128 -
"Earnings per Share".
<F2> This amount represents Diluted Earnings per Share in accordance with
the requirements of Statement of Financial Accounting Standards No.
128 - "Earnings per Share".
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN THE
REGISTRANT'S FORM 10-QSB FOR THE PERIOD ENDED JUNE 30, 1997 AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-QSB.
</LEGEND>
<CIK> 0001016439
<NAME> Intelligroup, Inc.
<MULTIPLIER> 1,000
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> Dec-31-1997
<PERIOD-START> Jan-01-1997
<PERIOD-END> Jun-30-1997
<EXCHANGE-RATE> 1
<CASH> 2,638
<SECURITIES> 0
<RECEIVABLES> 17,196
<ALLOWANCES> 661
<INVENTORY> 0
<CURRENT-ASSETS> 29,836
<PP&E> 3,086
<DEPRECIATION> 425
<TOTAL-ASSETS> 32,758
<CURRENT-LIABILITIES> 4,651
<BONDS> 0
0
0
<COMMON> 118
<OTHER-SE> 27,936
<TOTAL-LIABILITY-AND-EQUITY> 32,758
<SALES> 34,893
<TOTAL-REVENUES> 34,893
<CGS> 24,292
<TOTAL-COSTS> 24,292
<OTHER-EXPENSES> 7,474
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (122)
<INCOME-PRETAX> 3,249
<INCOME-TAX> 1,245
<INCOME-CONTINUING> 2,004
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,004
<EPS-PRIMARY> 0.19 <F1>
<EPS-DILUTED> 0.18 <F2>
<FN>
<F1> This amount represents Basic Earnings per Share in accordance with the
requirements of Statement of Financial Accounting Standards No. 128 -
"Earnings per Share".
<F2> This amount represents Diluted Earnings per Share in accordance with
the requirements of Statement of Financial Accounting Standards No.
128 - "Earnings per Share".
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS INCLUDED IN THE
REGISTRANT'S FORM 10-QSB FOR THE PERIOD ENDED MARCH 31, 1997 AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-QSB.
</LEGEND>
<CIK> 0001016439
<NAME> Intelligroup, Inc.
<MULTIPLIER> 1,000
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> Dec-31-1997
<PERIOD-START> Jan-01-1997
<PERIOD-END> Mar-31-1997
<EXCHANGE-RATE> 1
<CASH> 5,330
<SECURITIES> 0
<RECEIVABLES> 13,443
<ALLOWANCES> 523
<INVENTORY> 0
<CURRENT-ASSETS> 19,210
<PP&E> 2,571
<DEPRECIATION> 299
<TOTAL-ASSETS> 21,856
<CURRENT-LIABILITIES> 3,804
<BONDS> 0
0
0
<COMMON> 107
<OTHER-SE> 17,892
<TOTAL-LIABILITY-AND-EQUITY> 21,856
<SALES> 15,738
<TOTAL-REVENUES> 15,738
<CGS> 11,336
<TOTAL-COSTS> 11,336
<OTHER-EXPENSES> 3,086
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (79)
<INCOME-PRETAX> 1,395
<INCOME-TAX> 558
<INCOME-CONTINUING> 837
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 837
<EPS-PRIMARY> 0.08 <F1>
<EPS-DILUTED> 0.08 <F2>
<FN>
<F1> This amount represents Basic Earnings per Share in accordance with the
requirements of Statement of Financial Accounting Standards No. 128 -
"Earnings per Share".
<F2> This amount represents Diluted Earnings per Share in accordance with
the requirements of Statement of Financial Accounting Standards No.
128 - "Earnings per Share".
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION FOR THE YEAR ENDED
DECEMBER, 31, 1996 EXTRACTED FROM THE ISSUER'S ANNUAL REPORT ON FORM 10-KSB AND
IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-KSB.
</LEGEND>
<CIK> 0001016439
<NAME> Intelligroup, Inc.
<MULTIPLIER> 1,000
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> Dec-31-1996
<PERIOD-START> Jan-01-1996
<PERIOD-END> Dec-31-1996
<EXCHANGE-RATE> 1
<CASH> 7,479
<SECURITIES> 0
<RECEIVABLES> 8,538
<ALLOWANCES> 546
<INVENTORY> 0
<CURRENT-ASSETS> 19,756
<PP&E> 1,281
<DEPRECIATION> 243
<TOTAL-ASSETS> 21,262
<CURRENT-LIABILITIES> 4,043
<BONDS> 0
0
0
<COMMON> 107
<OTHER-SE> 17,055
<TOTAL-LIABILITY-AND-EQUITY> 2,262
<SALES> 47,189
<TOTAL-REVENUES> 47,189
<CGS> 33,605
<TOTAL-COSTS> 33,605
<OTHER-EXPENSES> 9,908
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,235
<INCOME-PRETAX> 2,441
<INCOME-TAX> 500
<INCOME-CONTINUING> 1,941
<DISCONTINUED> 0
<EXTRAORDINARY> 1,148
<CHANGES> 0
<NET-INCOME> 793
<EPS-PRIMARY> 0.08 <F1>
<EPS-DILUTED> 0.07 <F2>
<FN>
<F1> This amount represents Basic Earnings per Share in accordance with the
requirements of Statement of Financial Accounting Standards No. 128 -
"Earnings per Share".
<F2> This amount represents Diluted Earnings per Share in accordance with
the requirements of Statement of Financial Accounting Standards No.
128 - "Earnings per Share".
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY INFORMATION EXTRACTED FROM INTELLIGROUP, INC. AND
SUBSIDIARIES FORM 10-QSB SEPTEMBER 30, 1996.
</LEGEND>
<CIK> 0001016439
<NAME> Intelligroup, Inc.
<MULTIPLIER> 1,000
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> Dec-31-1996
<PERIOD-START> Jan-01-1996
<PERIOD-END> Mar-31-1996
<EXCHANGE-RATE> 1
<CASH> 169
<SECURITIES> 0
<RECEIVABLES> 9,561
<ALLOWANCES> 566
<INVENTORY> 0
<CURRENT-ASSETS> 32,405
<PP&E> 0
<DEPRECIATION> 716
<TOTAL-ASSETS> 33,330
<CURRENT-LIABILITIES> 16,958
<BONDS> 0
0
0
<COMMON> 107
<OTHER-SE> 16,200
<TOTAL-LIABILITY-AND-EQUITY> 33,330
<SALES> 33,471
<TOTAL-REVENUES> 33,471
<CGS> 23,972
<TOTAL-COSTS> 23,972
<OTHER-EXPENSES> 6,896
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,264
<INCOME-PRETAX> 1,339
<INCOME-TAX> 410
<INCOME-CONTINUING> 929
<DISCONTINUED> 0
<EXTRAORDINARY> (1,034)
<CHANGES> 0
<NET-INCOME> (105)
<EPS-PRIMARY> 0.01 <F1>
<EPS-DILUTED> 0.01 <F2>
<FN>
<F1> This amount represents Basic Earnings per Share in accordance with the
requirements of Statement of Financial Accounting Standards No. 128 -
"Earnings per Share".
<F2> This amount represents Diluted Earnings per Share in accordance with
the requirements of Statement of Financial Accounting Standards No.
128 - "Earnings per Share".
</FN>
</TABLE>
