UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended April 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Transition Period from ____________________ to ____________________
Commission File Number: 0-21793
VERSATILITY INC.
(Exact name of registrant as specified in its charter)
DELAWARE 52-1214354
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
11781 Lee Jackson Memorial Highway
Seventh Floor
Fairfax, Virginia 22033
(703) 591-2900
(Address and telephone number of principal executive offices)
Securities registered pursuant to Section 12(b) of the Act: None
Securities registered pursuant to Section 12(g) of the Act: Common Stock, $.01
par value
Indicate by check mark whether registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. YES [X] NO [ ]
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of the Form 10-K. [ ]
The aggregate market value of the voting stock held by non-affiliates of the
Registrant, based on the closing sale price of the Common Stock on July 14,
1997, as reported on the Nasdaq National Market was approximately $30,842,559.
Shares of Common Stock held by each executive officer and director and by each
person who is known to own 5% or more of the outstanding Common Stock have been
excluded from this computation in that such persons may be deemed to be
affiliates. This determination of affiliate status is not a conclusive
determination for other purposes. As of July 14, 1997 the Registrant had
7,355,753 shares of Common Stock outstanding, par value $.01 per share.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's Definitive Proxy Statement dated July 28, 1997 to
be delivered to the Stockholders in connection with the Annual Meeting of
Stockholders to be held on August 26, 1997 are incorporated by reference in Part
III hereof.
<PAGE>
Table of Contents
<TABLE>
<S> <C>
PART I.
Item 1. Business...................................................................................... 3
Item 2. Properties.................................................................................... 10
Item 3. Legal Proceedings............................................................................. 10
Item 4. Submission of Matters to a Vote of Security Holders........................................... 10
PART II.
Item 5. Market for Registrant's Common Stock and Related Stockholder Matters.......................... 10
Item 6. Selected Financial Data....................................................................... 11
Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations......... 11
Item 7A. Quantitative and Qualitative Disclosures about Market Risk.................................... 20
Item 8. Financial Statements and Supplementary Data................................................... 20
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.......... 20
PART III.
Item 10. Directors and Executive Officers of the Registrant............................................ 21
Item 11. Executive Compensation........................................................................ 21
Item 12. Security Ownership of Certain Beneficial Owners and Management................................ 21
Item 13. Certain Relationships and Related Transactions................................................ 21
PART IV.
Item 14. Exhibits, Financial Statements and Reports on Form 8-K........................................ 21
SIGNATURE.............................................................................................. 23
</TABLE>
2
<PAGE>
PART I
This document contains various forward-looking statements and information
that are based on management's beliefs as well as assumptions made by and
information currently available to management. Such statements are subject to
various risks and uncertainties which could cause actual results to vary
materially from those contained in such forward looking statements. Should one
or more of these risks or uncertainties materialize, or should underlying
assumptions prove incorrect, actual results may vary materially from those
anticipated, estimated, expected or projected. Certain of these risks and
uncertainties as well as other risks and uncertainties are described in Factors
Which May Effect Future Operating Results herein and in the Company's
Registration Statement on Form S-1 filed under the Securities Act of 1933, as
amended, and declared effective on December 12, 1996.
ITEM 1. BUSINESS
OVERVIEW
Versatility is a leading provider of client/server customer interaction
software that enables businesses to automate and enhance their telemarketing and
teleselling capabilities. The Company's software products are designed to
increase the productivity and revenue-generating capabilities of organizations
operating call centers to interact with existing and potential customers. The
Company's products include desktop software applications, development and
customization tools and optional server-based software services, and support a
wide variety of leading computing platforms, allowing users to implement a
scalable, flexible and interoperable software solution that can be used
independently or as part of an integrated enterprise-wide customer interaction
implementation. Versatility also offers fee-based professional, consulting and
maintenance services to provide implementation, integration and ongoing support
of the Company's software products.
The Company's products are used by customers operating large and mid-sized
call centers for activities including telebanking, claims servicing, customer
service, consumer product telesales and other applications. Since introducing
the Versatility Series in May 1995, the Company has licensed Versatility Series
applications for use on over 12,000 agent desktops. The Company's customers
include Avantel, S.A., British Telecommunications, Plc, Chase Card Member
Services and Mellon Bank. Versatility markets its products and services to
customers in a number of targeted industries, including the financial services
and communications industries. The Company sells its software and services in
the United States through a direct sales organization that focuses primarily on
enterprise-wide, large-scale solutions with complex requirements. In addition,
Versatility markets and sells software through value-added resellers,
distributors and third party systems integrators, in the United States and
internationally.
Versatility provides a suite of software applications and related services
that allow its customers to operate flexible and highly functional inbound
and/or outbound call centers, which can significantly enhance their
telephony-based sales and marketing capabilities. The Company's applications
allow an organization to automate the most significant telephony-based customer
interaction functions, including generating and qualifying sales leads,
providing comprehensive product or service information, generating order quotes
and processing and fulfilling customer orders. The Company's products are
designed to support both formal call centers, typically involving large and
mid-sized installations, and informal call centers, requiring a smaller scale
implementation, for customers in the United States and internationally.
The Company's products include a number of software applications which
provide call center agents with desktop access to a variety of information in an
easy-to-use graphical format, including customer identity and call history,
comprehensive product descriptions such as features and benefits, and a list of
related products or services which an agent can cross-sell or up-sell to the
customer. The Company's software includes scripting capabilities which
efficiently guide agents through each stage of the sales process, including
initial contact, presentation of product offerings, responses to frequently
asked questions or objections, quote generation, order taking and fulfillment.
In addition, the Company's products can be easily tailored to the specific needs
of the organization or marketing campaign and customized to match the skill sets
of individual call center agents. The Company's products also facilitate
exchange of information between the call center and the organization's other
information systems, allowing the organization to incorporate data generated in
the call center into their other business operations, including new product
development. In addition to desktop applications, the Company's products include
optional server-based software which allows customers to leverage CTI and other
technologies to increase the speed and productivity of their telephony-based
activities.
The Versatility Series, the Company's principal product, uses an advanced,
scalable three-tier client/server architecture capable of supporting
installations with more than 1,000 simultaneous users on a single server. The
Versatility Series is highly
3
<PAGE>
customizable, allowing modification to suit a specific industry or application.
The Versatility Series can also be integrated with the customer's information
systems or with third party applications, such as help desk or field sales
automation software, to provide a customer with a comprehensive, enterprise-wide
customer interaction solution.
In August 1996, the Company released the Versatility CallCenter
client/server packaged software application which provides the basic features
and functions of the Versatility Series desktop applications to smaller formal
or informal call centers, typically found in mid-sized companies or departments
of larger organizations. Customers using the Versatility CallCenter product can
expand to the more scalable Versatility Series.
Products
The Company's products include the Versatility Series, a suite of modular
applications that includes optional software-based marketing and telephony
services. The Versatility Series can be modified with available customization
tools and is designed to support customers with large user populations. For
smaller installations, the Company offers Versatility CallCenter, which includes
key elements of the Versatility Series applications, scaled to support 50 users
or less.
Versatility Series. The Versatility Series is generally marketed to large
organizations operating formal call centers. At the core of the Versatility
Series are the Versatility Call Center Applications, which allow call center
agents to effectively conduct telemarketing, telesales and customer services
activities. Versatility Series customers purchase one of the Versatility Call
Center Applications and usually purchase one or more optional services from
either the Versatility Marketing Management Services or the Versatility Open
Telephony Services.
The Versatility Series includes applications to address telemarketing,
telesales and customer services activities with Versatility
Telesales/Teleservice. The Company is also developing two additional
applications, Versatility Financial Services and Versatility Telecom, which will
include the same architecture and core functionality as the Company's current
application, with additional features specifically designed to address the
financial and telecommunications industries. The Versatility Series supplies a
call center agent with customer information as an outbound telephone call is
made or as an inbound call is routed to that agent. Once customer contact is
made, an agent can access product information, such as features, benefits and
commonly asked questions, in order to effectively and accurately market and sell
that product. An agent can then click to descriptions of other products to
cross-sell or up-sell. To close a sale, an agent can access on-line order taking
and fulfillment capabilities. Building on these core functions, the Versatility
Series provides additional capabilities to generate on-line quotes, readily
access information regarding discounts and schedule automatic customer
call-backs.
All Versatility Call Center Applications are Windows-based and are
integrated with the Versatility PowerGuide facility, a presentation support tool
providing call guides and scripting capabilities. Versatility PowerGuide enables
selling scripts to be tailored to the needs of the company or marketing campaign
and customized to match the skill sets of particular telemarketing agents.
Versatility PowerGuide can integrate with one or more external applications,
such as word processing, spreadsheet, and graphics presentation applications,
using Microsoft's Dynamic Data Exchange standard to exchange information between
applications. Versatility PowerGuide can also be used to generate Microsoft
Visual Basic forms and applications.
Versatility Call Center Applications allow customers to develop many
versions of the application which can be tailored extensively and used
simultaneously. For example, a call center may want to have a different
application design and functionality for each marketing and selling campaign.
Each tailored application can be augmented by its own tailored Versatility
PowerGuide session.
In addition to Versatility Call Center Applications, the Versatility Series
provide network server services, called the Versatility Marketing Management
Services, which provide the call center network and its managers with a number
of capabilities, including list, database and campaign management, adaptive
marketing, statistical tracking, data warehousing, decision support, document
production, integration with document management systems and centralized call
center operations management. Additionally, the Versatility Series CTI services,
called Versatility Open Telephony Services, which integrate the telephone and
computer systems, provide functions such as screen-based telephony, "screen
pops" in which relevant caller information appears on an agent's screen as an
inbound call arrives or as an outbound call is initiated, predictive dialing of
outbound campaigns, coordination of service levels, inbound and outbound dynamic
call blending and IVR integration and coordination.
4
<PAGE>
All Versatility Series products are licensed based on the total number of
concurrent desktop users. The U.S. list price of the Versatility Series is $1950
per licensed user and includes Versatility Telesales/Teleservice, Versatility
PowerGuide, and Versatility OpenTel. Specific add-ons differ depending on
whether a customer's business model calls for an inbound only, outbound only, or
blended (inbound/outbound) center. These modules include Versatility Predictive
and Versatility Campaign Plus for outbound, and Versatility Call Blending for
blended centers. Other optional modules sold depend on the interfaces to the
customer interaction center and include Versatility OpenWeb for integrating the
Web with the call center, and Versatility IVR for integrating IVR with the call
center. The U.S. list price of these modules ranges from $200 to $1,000 per user
per service. A majority of the revenue from the Versatility Series products has
been derived from contracts with customers in amounts in excess of $200,000.
Versatility CallCenter. In August 1996, the Company released Versatility
CallCenter, a CD-ROM-based call center software application that supports formal
or informal call centers of 50 agents or less. Versatility CallCenter includes
many of the features of the Versatility Call Center Applications, including
customer profiles, product information, product features and benefits, question
and objection handling, quotation preparation and order taking and servicing,
literature fulfillment, activity tracking with call back calendars and
reminders, scripting and call guides. In addition, the product supports list
management and call recycling for outbound campaigns and CTI for screen-based
dialing and incoming call management, including screen pops of customer profile
information. Versatility CallCenter also incorporates several network-based
server facilities that include elements of the Versatility Marketing Management
and Versatility Open Telephony services, redesigned to meet the needs of this
smaller customer. Versatility CallCenter is also licensed based on the number of
concurrent users and has a U.S. list price of $1,695 per user.
Federal, state and foreign law, including the Telephone Consumer Protection
Act of 1991 and the Federal Fair Debt Collection Practices Act regulate certain
uses of outbound call processing systems. Although compliance with these laws
may limit the potential uses of the Company's products in some respects, the
Company's products can be programmed to operate automatically in full compliance
with these laws through the use of appropriate calling lists and calling
campaign time parameters. There can be no assurance, however, that future
legislation further restricting telephone solicitation practices, if enacted,
would not adversely affect the Company.
Services
Versatility provides fee-based maintenance and support services designed to
increase the effectiveness and ongoing performance of its customer's call center
operations and to increase the Company's revenue base. Substantially all of the
Company's customers have ongoing maintenance contracts. As of April 30, 1997,
the Company employed 31 employees providing professional services, maintenance
and training.
Professional Services. The Company's consultants work closely with customers
to provide assistance with application implementation and customization,
interface development, communications and information systems integration,
planning and project management. Fees for professional services are charged
separately from the Company's software product licenses and are generally
charged on a time-and-materials basis.
Maintenance. Maintenance services are available for an annual fee equal to a
percentage of the total license price. Maintenance services include software
updates, maintenance releases and technical support. The Company offers
telephone, pager, electronic mail, dialup modem and facsimile customer support.
The Company also provides customers with account management services, technical
bulletins, weekly status reports and ongoing communications on new features or
products under development.
Training. The Company offers a comprehensive set of training courses
covering systems administration, specific training on certain product modules
and project team training as well as training courses for the Company's
resellers. Training classes are offered at the Company's offices in Fairfax,
Virginia and Aldermaston, U.K. The Company also provides extensive on-site
training services for most enterprise installations, including customized
training for each customer. Fees for education and training are generally
charged in addition to the license fees and are charged on a per-student,
per-class or time-and-materials basis.
Customers
Since introducing the Versatility Series in May 1995, the Company has
licensed Versatility Series applications for use on over 12,000 agent desktops.
For the fiscal year ended April 30, 1997, the Company's eight largest customers
accounted for 59.3% of the Company's total revenue, of which one customer,
British Telecommunications, Plc ("BT"), accounted for 23.6%. Although the
particular customers may change from period to period, the Company expects that
large sales to a limited number of customers will
5
<PAGE>
continue to account for a significant percentage of its total revenue in any
particular period. Revenue from customers outside the United States accounted
for 16.3%, 40.8 % and 41.2% of the Company's total revenue for fiscal 1995, 1996
and 1997, respectively. See further discussion regarding the business segment
and geographic area information in Note 11 of Notes to the Consolidated
Financial Statements.
Technology and Product Development
The Company's core technology was designed to facilitate the development and
customization of enterprise-wide customer interaction applications which are
interoperable with a number of other applications and can be used by a wide
variety of customers. The Company's applications are built upon a common core
architecture that is designed to leverage efficiently the performance and
scalability of client/server computing and object-oriented development
methodologies. Versatility believes that its product architecture allows it to
craft tailored solutions for its customers and to simplify and facilitate new
product development.
The Versatility Series and Versatility CallCenter products are built using a
highly scalable and flexible three-tier client/server model which takes
advantage of the difference in computing power between the desktop client and
the server to free-up limited desktop computing power and memory. The Company's
products support a number of client computing platforms, such as Microsoft
Windows 3.1, Microsoft Windows 95 and Microsoft Windows NT; leading relational
databases from Oracle, Informix, Sybase, Ingres, and Microsoft; and server
operating systems, such as Microsoft Windows NT Server and various versions of
Unix. The Company's products have been developed using Microsoft Visual C++,
Microsoft Foundation Classes and Centura Team Developer.
Versatility began the development of products based on a client/server
architecture in November 1993. The Company made substantial investments in new
product development in 1994 and introduced the Versatility Series in May 1995.
In August 1996, the Company released Versatility CallCenter. The Company
continues to make substantial investments in product development to improve and
enhance the functionality of its existing products. The Company also intends to
expand its existing product offerings and to introduce new products for the
client/server applications market. Although the Company expects that certain of
its new products will be developed internally, the Company may, based on timing
and cost considerations, acquire technology and products from third parties.
The Company's current development efforts include the completion of the
first two industry specific versions of the Versatility Series - Versatility
Telecom and Versatility Financial Services. These vertical versions are due to
ship in the fall and are designed to significantly lower the customization
efforts and costs by pre-building many of the vertical components typically
requiring customization during deployment of the customer interaction
application. By working with its existing customers and prospects in these
particular verticals, as well as industry analysts, Versatility has been able to
identify and develop these vertical requirements.
In June 1997, Versatility announced the industry's first components-based
application architecture and delivered the initial products - Versatility
Telesales/Teleservice v3.0 and Versatility PowerGuide v2.0 of this component
based framework. The company will be working aggressively over the rest of the
fiscal year to deliver the other components of this Application Framework.
In addition, Versatility continues to significantly expand the CTI
middleware options supported by Versatility OpenTel. Versatility OpenTel is the
window on telephony for the desktop and provides the desktop application with
access to various PBX, ACD, and IVRs. In the past, Versatility OpenTel primarily
supported the Dialogic CT-Connect CTI product that was resold by Versatility.
Now, Versatility OpenTel either supports or will support within the next three
months Genesys' T-Server product, Nabnasset's VESP product, and the Microsoft
TAPI 2.1 standard in addition to CT-Connect.
Lastly, Versatility continues to do integration work with Nortel's new
Symposium platform. In May, 1997, the two companies announced the selection of
Versatility as a Nortel Symposium Partner which provides for the reselling of
the Versatility products by the various Nortel distributors and resellers in the
U.S.
As of April 30, 1997, the Company's research and development and quality
assurance staff consisted of 35 employees. The Company's total expenses for
research and development for fiscal years 1995, 1996 and 1997 were $711,000,
$2.1 million and $2.9 million, respectively. The Company anticipates that it
will continue to commit substantial resources to research and development in the
future.
6
<PAGE>
The Company's future success will depend on its ability to enhance its
current products and to develop and introduce new products on a timely basis
that keep pace with technological developments, emerging industry standards and
the increasingly sophisticated needs of its customers and markets. There can be
no assurance that the Company will not experience difficulties that could delay
or prevent the successful development, introduction and marketing of these
products, or that its new products and product enhancements will adequately meet
the requirements of the marketplace and achieve market acceptance. Furthermore,
changing resource allocations can delay new products and certain product
enhancements. If the Company is unable, for technological or other reasons, to
develop and introduce new products or enhancements, the Company's business,
financial condition and results of operations will be materially adversely
affected. In addition, software products as complex as those offered by the
Company may contain undetected errors or failures when first introduced or when
new versions are released. The Company has in the past discovered software
errors in certain of its new products or enhancements and has experienced delays
or lost revenue during the period required to correct these errors. Although the
Company has not experienced material adverse effects resulting from such errors
to date, there can be no assurance that, despite testing by the Company and by
current and potential customers, errors will not be found in new products or
releases after commencement of commercial shipments, resulting in loss of or
delay in market acceptance, which could have a material adverse effect upon the
Company's business, financial condition and results of operations.
Sales and Marketing
Sales. The Company believes that the coordinated use of multiple selling
channels is required to reach the diverse and growing base of prospective
customers. Based on their telemarketing strategies and buying patterns, these
prospective customers can be divided into three groups: (i) customers with
large-scale installations which are best served through direct sales teams, (ii)
customers with large-scale installations who require turnkey system solutions
from third party systems integrators, and (iii) customers with mid-sized
installations who need basic solutions that can be purchased relatively
inexpensively and can be quickly implemented. To address these groups, in
November 1995, the Company established four strategic selling units to focus
attention and specific solutions to targeted selling channels and markets. These
four selling units were Enterprise Solutions, Alliances, Channels and
International. Enterprise Solutions consists of two selling groups, which sell
directly to specific vertical markets, financial institutions and communications
services companies. In February 1997, Alliances and Channels were combined,
becoming Commercial Markets, which focuses on other opportunities in other
commercial markets, most of which are sold through third party resellers. The
International selling unit markets through third party resellers to customers in
Europe, the Middle East, South Africa and the Pacific Rim.
Enterprise Solutions. Enterprise Solutions consists of two selling
groups, Financial Services and Telecommunications. These direct sales units
focus on the financial services and communications industries throughout
North America. They market the Versatility Series to large organizations
which require a customized and integrated call center application. These
selling units include 40 employees divided into sales and sales support
teams for each target market, a professional services organization that
performs implementation, project management and customization activities and
a customer services group responsible for post-implementation support. In
addition, the Company has begun enlisting the support of a specific group of
professional services organizations which will engage in the practice of
implementing and customizing the Company's software products. Referred to as
"Practice Partners," these organizations do not resell or otherwise market
the Company's products. Instead, the Company intends to support the Practice
Partners' efforts to learn to install, customize and support the Company's
products.
Commercial Markets. The Commercial Markets selling unit markets the
Versatility Series to prospects in other markets, primarily through third
party systems integrators and distributors who provide comprehensive
solutions to large-scale enterprise-wide environments and who want to
provide their customers with an integrated call center solution. This
selling unit consists of sales and sales personnel supporting third party
systems integrators and distributors and a services department that handles
certain support activities for the distributors or for their customers. The
Company currently has active relationships with several third party systems
integrators including Electronic Data Systems Corporation, Norstan Inc. and
Cincom Systems, Inc. The unit also targets mid-sized companies that operate
formal and informal call centers of 10 to 50 agents with a product called
Versatility CallCenter. This product is sold through Versatility Integration
Professional ("VIP") resellers or is sold directly to an end user customer
if there is not a trained VIP reseller in place to support the sale. This
selling unit was formed to develop regional-based sales and support teams to
evaluate, recruit and train VIP resellers. As of April 30, 1997, this
selling unit consisted of 25 employees and had arrangements with 36 VIP
resellers.
7
<PAGE>
International. The International selling unit markets the Versatility
Series and Versatility CallCenter products to third party systems
integrators, distributors and resellers outside of North America. This
selling unit has regional sales and support teams covering Western Europe,
the Middle East and certain African countries and expects to begin selling
in the Pacific Rim and Latin American regions. The International selling
unit is headquartered in Aldermaston, U.K., with support personnel located
in the Netherlands and Sweden and, as of April 30, 1997, consisted of 10
employees.
Marketing. The Company's marketing efforts support each of the strategic
selling units. The Company's marketing programs include product management,
product marketing, maintenance and enhancement of the Company's Web site, direct
marketing, including the operation of the Company's in-house direct mail and
telemarketing operation, public relations and press and analyst communications
and event support. The Company's marketing department also maintains marketing
relationships with a variety of third party vendors, such as telephone switch
manufacturers, computer manufacturers, database providers and others. As of
April 30, 1997, the Company's marketing department consisted of 23 employees.
The Company uses the Versatility CallCenter product in its in-house direct
marketing and telemarketing facility.
Competition
The market for the Company's products is intensely competitive, highly
fragmented and subject to rapid change. Because the Company offers multiple
applications which can be purchased separately or integrated as part of the
Versatility Series, the Company competes with a variety of companies depending
on the target market for their applications software products. The Company's
principal competitors in the customer interaction software market are Brock
International, Inc., Digital Systems International, Inc., Information Management
Associates, Inc., Scopus Technology, Inc., and The Vantive Corporation. For
installations where telephony functions are of prime importance, competitors
include Davox Corporation, Early Cloud and Company (a division of IBM) and EIS
International, Inc. The Company also competes with third party professional
service organizations that develop custom software and with the information
technology departments of potential customers. The Company's potential
competitors also include a number of large hardware and software companies that
may develop or acquire products that compete with the Company's products. The
Company believes that the principal competitive factors affecting its market
include product features such as flexibility, scalability, interoperability,
functionality and ease of use, as well as product reputation, quality,
performance, price, customer service and support, the effectiveness of sales and
marketing efforts and vendor reputation. Although the Company believes that its
products currently compete favorably with respect to such factors, there can be
no assurance that the Company can maintain its competitive position against
current and potential competitors, especially those with significantly greater
financial, marketing, service, support, technical and other resources.
In addition, the Company believes that existing competitors and new market
entrants will attempt to develop fully integrated customer interaction solution
applications suites that may include call center telesales and telemarketing
applications which provide comparable functionality to the Company's existing
applications. The Company also expects that competition will increase as a
result of software industry consolidation. Current and potential competitors
have established or may establish cooperative relationships among themselves or
with third parties to increase the ability of their products to address the
needs of the Company's potential customers. Accordingly, it is possible that new
competitors or alliances among competitors will emerge and rapidly acquire
significant market share.
Increased competition is likely to result in price reductions, reduced
operating margins and loss of market share, any of which could materially
adversely affect the Company's business, financial condition and results of
operations. Many of the Company's current and potential competitors have
significantly greater financial, technical, marketing and other resources than
the Company. As a result, they may be able to respond more quickly to new or
emerging technologies and changes in customer requirements, or to devote greater
resources to the development, promotion and sale of their products than can the
Company. There can be no assurance that the Company will be able to compete
successfully against current and future competitors or that competitive
pressures faced by the Company will not materially adversely affect its
business, financial condition and results of operations.
Intellectual Property and Other Proprietary Rights
The Company relies on a combination of copyright, trade secret and trademark
laws, confidentiality procedures and contractual provisions to protect its
proprietary rights in its products and technology. The Company does not rely
upon patent protection and does not currently expect to seek patents on any
aspects of its technology. There can be no assurance that the confidentiality
agreements and other methods on which the Company relies to protect its trade
secrets and proprietary technology will be adequate. Further, the Company may be
subject to additional risks as it enters into transactions in countries where
intellectual property laws
8
<PAGE>
are not well developed or are poorly enforced. Legal protections of the
Company's rights may be ineffective in such countries. Litigation to defend and
enforce the Company's intellectual property rights could result in substantial
costs and diversion of resources and could have a material adverse effect on the
Company's business, financial condition and results of operations, regardless of
the final outcome of such litigation. Despite the Company's efforts to safeguard
and maintain its proprietary rights both in the United States and abroad, there
can be no assurance that the Company will be successful in doing so, or that the
steps taken by the Company in this regard will be adequate to deter
misappropriation or independent third-party development of the Company's
technology or to prevent an unauthorized third party from copying or otherwise
obtaining and using the Company's products or technology. There also can be no
assurance that others will not independently develop similar technologies or
duplicate any technology developed by the Company. Any such events could have a
material adverse effect on the Company's business, financial condition and
results of operations.
The Company has entered into agreements with a small number of its customers
requiring the Company to place its source code in escrow. These escrow
agreements typically provide that these customers have a limited, non-exclusive
right to use such code in the event that there is a bankruptcy proceeding by or
against the Company, if the Company ceases to do business or if the Company
fails to meet its support obligations. Entering into such agreements may
increase the likelihood of misappropriation by third parties.
As the number of customer interaction software applications in the industry
increases and the functionality of these products further overlaps, software
development companies like the Company may increasingly become subject to claims
of infringement or misappropriation of the intellectual property rights of
others. There can be no assurance that third parties will not assert
infringement or misappropriation claims against the Company in the future with
respect to current or future products. Any claims or litigation, with or without
merit, could be time-consuming, result in costly litigation, cause product
shipment delays or require the Company to enter into royalty or licensing
arrangements. Such royalty or licensing arrangements, if required, may not be
available on terms acceptable to the Company, if at all, which could have a
material adverse effect on the Company's business, financial condition and
results of operations. Adverse determinations in such claims or litigation could
also have a material adverse effect on the Company's business, financial
condition and results of operations.
Regulatory Environment
Federal, state and foreign law regulate certain uses of outbound call
processing systems. The Federal Telephone Consumer Protection Act (the "TCPA")
prohibits the use of automatic dialing equipment to call emergency telephone
lines, health care and similar facility patient telephone lines, and telephone
lines where the called party is charged for incoming calls, such as those used
by pager and cellular phone services. The TCPA prohibits use of such equipment
to engage two or more lines of a multi-line business simultaneously. Among other
things, the TCPA required the Federal Communications Commission ("FCC") to
create regulations protecting residential telephone subscribers from unwanted
telephone solicitations. The rules adopted by the FCC require that telemarketers
maintain a company-specific "do-not-call list" which contains the names and
numbers of residential subscribers who do not want to receive calls. An entity
which has an "established business relationship" with a party it calls and
tax-exempt nonprofit organizations are exempt from do-not-call lists. The rules
also require that telemarketers may call consumers only after 8 a.m. and before
9 p.m., local time. Certain states have enacted similar laws limiting access to
telephone subscribers who object to receiving solicitations. Although compliance
with these laws may limit the potential use of the Company's products in some
respects, the Company's systems can be programmed to operate automatically in
full compliance with these laws through the use of appropriate calling lists and
calling campaign time parameters. There can be no assurance, however, that
future legislation further restricting telephone solicitation practices, if
enacted, would not adversely affect the Company.
Employees
As of April 30, 1997, the Company had 186 full-time employees, of which 165
were based in the United States and 21 were based internationally. None of the
employees of the Company is covered by a collective bargaining agreement. The
Company does not have long-term employment agreements with any of its employees.
The Company considers its relations with its employees to be good.
The Company believes its future success will depend in large part on the
Company's ability to recruit and retain qualified employees, especially
experienced software engineering and sales personnel. The competition for such
personnel is intense. There can be no assurance that the Company will be
successful in retaining or recruiting key personnel.
9
<PAGE>
ITEM 2. PROPERTIES
The Company's principal administrative, sales, marketing, support, and
research and development facility is located in 41,940 square feet of modern
office space in Fairfax, Virginia. This facility is leased to the Company
through 2004. In addition, the Company has entered into a lease for an
additional 9,033 square feet of office space located in a building in Fairfax,
Virginia near its existing offices. The Company also leases 2,463 square feet in
Irvine, California and 6,600 square feet in Aldermaston, U.K. Management
believes its current facilities are adequate to meet its needs through the next
twelve months and that, if required, suitable additional or alternative space
will be available to accommodate expansion of the Company's operations on
commercially reasonable terms.
ITEM 3. LEGAL PROCEEDINGS
One of the Company's former VARs has filed a claim for arbitration
(non-binding) against the Company asserting, among other things, that the
Company misrepresented the functionality of its products and wrongfully
terminated the VAR's reseller agreement, and claiming not less than $1.0 million
in damages. The Company defended this action in arbitration proceedings that
ended in April 1997. Upon conclusion, the arbitration panel awarded $267,000 in
net damages to the plaintiff in the proceedings. The Company has challenged the
findings of the arbitration panel on the grounds that the arbitrator appointed
by the plaintiff was also a witness to the actions of the plaintiff and the
Company which led to the action. The Company maintains that, as a result, the
plaintiff-appointed arbitrator lacked objectivity and has filed a motion to have
the findings vacated. The Company intends to vigorously pursue this and all
other avenues available through which the findings of the arbitration panel
might be vacated. Because all these avenues are in a preliminary stage, the
Company cannot predict the outcome of such actions. While neither the Company
nor its legal counsel can offer any assurances that the findings of the
arbitration panel might be overturned, management currently believes that the
resolution of this matter will not have a material adverse impact on its
financial position and therefore has not recorded a loss accrual. However, if
the motion to overturn the decision is denied, the outcome could materially
affect consolidated results of operations in a given year or quarter.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
No matters were submitted to a vote of security holders in the quarter ended
April 30, 1997.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON STOCK AND RELATED STOCKHOLDER MATTERS
The Company's Common Stock is traded on the Nasdaq National Market under the
symbol "VERS." Following the Company's initial public offering on December 13,
1996, Nasdaq reported the following high and low sales prices in each quarter:
<TABLE>
<CAPTION>
High Low
---- ---
<S> <C>
Quarter ended January 31, 1997 (subsequent to December 13, 1996)...... $18.25 $13.13
Quarter ended April 30, 1997.......................................... 13.63 8.00
</TABLE>
As of July 14, 1997, the Company had approximately 30 holders of record of
its Common Stock. The Company has never declared or paid cash dividends on its
Common Stock. The Company currently intends to retain any earnings for use in
its business and does not anticipate paying any cash dividends on its capital
stock in the foreseeable future. In addition, the Company's loan agreement with
its commercial bank prohibits the payment of cash dividends.
10
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA
<TABLE>
<CAPTION>
Year Ended April 30,
--------------------------------------------------
1993 1994 1995 1996 1997
------ ------ ------ ------ ------
(In thousands, except per share data)
<S> <C>
Consolidated Statement of Operations
Data:
Revenue:
License revenue..................... $5,510 $5,393 $ 8,045 $ 10,345 $ 18,590
Service and maintenance revenue..... 2,411 2,987 3,440 6,190 8,762
------ ------ -------- -------- --------
Total revenue................... 7,921 8,380 11,485 16,535 27,352
------ ------ -------- -------- --------
Cost of revenue:
License revenue..................... 1,890 1,924 1,493 573 889
Service and maintenance revenue..... 1,745 2,056 2,385 4,267 5,544
------ ------ -------- -------- --------
Total cost of revenue........... 3,635 3,980 3,878 4,840 6,433
------ ------ -------- -------- --------
Gross margin.......................... 4,286 4,400 7,607 11,695 20,919
------ ------ -------- -------- --------
Operating expenses:
Selling, general and administrative. 4,048 3,717 4,550 7,770 15,252
Research and development............ 183 389 711 2,074 2,860
Depreciation and amortization....... 438 133 365 161 301
Write-off of capitalized software... -- -- -- 829 --
------ ------ -------- -------- --------
Total operating expenses........ 4,669 4,239 5,626 10,834 18,413
------ ------ -------- -------- --------
Income (loss) from operations......... (383) 161 1,981 861 2,506
Interest income (expense), net........ (7) (20) (9) 3 404
------ ------ -------- -------- --------
Income (loss) before provision
(benefit) for income taxes............ (390) 141 1,972 864 2,910
Provision (benefit) for income taxes.. (18) 31 715 207 965
------ ------ -------- -------- --------
Net income (loss)..................... $ (372) $ 110 $ 1,257 $ 657 $ 1,945
====== ====== ======== ======== ========
Net income per share (1).............. $ 0.12 $ 0.30
======== ========
Average common and common equivalent
shares outstanding (1)................ 5,603 6,457
======== ========
</TABLE>
<TABLE>
<CAPTION>
April 30,
--------------------------------------------------
1993 1994 1995 1996 1997
-------- -------- -------- -------- --------
<S> <C>
Consolidated Balance Sheet Data:
Cash and cash equivalents............. $ 108 $ 192 $ 1,414 $ 2,280 $18,826
Working capital (deficiency).......... (318) (573) 446 5,028 34,525
Total assets.......................... 2,832 2,060 4,288 9,631 46,833
Long-term debt, less current portion.. 101 114 51 70 287
Redeemable convertible preferred stock -- -- -- 3,561 --
Stockholders' equity (deficit)........ (35) 75 1,331 1,834 37,968
</TABLE>
- ----------
(1) Calculated on the basis described in Note 1 of Notes to Consolidated
Financial Statements.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Overview
Versatility is a leading provider of client/server customer interaction
software that enables businesses to automate their telemarketing and teleselling
capabilities. Founded in 1981 as an information management consulting firm,
Versatility introduced its first commercial product in 1985, a telemarketing
application product based on the Digital Equipment Corporation ("DEC") VAX/VMS
System. The Company operated as a DEC value-added reseller, supplying turnkey
call center solutions to large and mid-sized companies in a variety of
industries, until the end of fiscal 1994. In November 1993, the Company began
developing applications based on the client/server architecture which culminated
with the release of the Versatility Series in May 1995. In fiscal 1996,
substantially all of the Company's revenue was derived from sales or services
related to the Versatility Series. In August 1996, the Company released
Versatility CallCenter, a CD-ROM-based call center software application that
supports call centers of 50 agents or less.
The Company's revenue is derived principally from two sources: (i) product
license fees for the use of the Company's software products and (ii) service
fees for implementation, maintenance, consulting and training related to the
Company's software products. Historically, the Company's service and maintenance
revenue has increased with license revenue. However, to the extent the Company
is successful in implementing its strategy of distributing a greater proportion
of its products through third party systems
11
<PAGE>
integrators and VARs, who will perform such services, the Company expects that,
in future periods, service and maintenance revenue will decrease as a percentage
of total revenue. While hardware sales relating to implementation of the
Company's VAX/VMS application represented 12.1% of the Company's revenue in
fiscal 1995, the Company has not had significant levels of hardware revenue
since the introduction of its client/server products beginning in fiscal 1996.
Revenue from hardware sales has been included in license revenue for such years.
The Company's contracts with its customers often involve significant
customization and installation obligations. In these situations, license revenue
is recognized based on the percentage of completion method which is based on
achievement of certain milestones. When the Company is under no obligation to
install or customize the software, license revenue is recognized upon shipment.
Service revenue for implementation, consulting and training is recognized as the
service is performed. Revenue from maintenance services is recognized ratably
over the term of the service agreement.
The Company's strategy is to increase its use of third party systems
integrators and VARs to distribute its products. Because the Company generally
has no obligation to provide installation, maintenance, training or other
services under such arrangements, the Company generally recognizes software
license revenue from third party systems integrators and VARs upon shipment of
an order. The Company does not expect to receive substantial amounts of service
or maintenance revenue under such arrangements.
For the fiscal year ended April 30, 1997, the Company's eight largest
customers accounted for 59.3% of the Company's total revenue, of which one
customer, BT, accounted for 23.6%. Although the particular customers may change
from period to period, the Company expects that large sales to a limited number
of customers will continue to account for a significant percentage of its total
revenue in any particular period. Given the customer concentration and the
duration of the sales and implementation cycle, the loss of a major customer or
any reduction or delay in sales to or implementation by these or other customers
could have a material adverse effect on the Company's operating results in any
particular period.
Revenue from customers outside the United States accounted for 16.3%, 40.8%
and 41.2% of the Company's total revenue for fiscal 1995, 1996 and 1997,
respectively. While the Company's expenses incurred in foreign countries are
typically denominated in the local currencies, revenue generated by the
Company's international sales typically is paid in U.S. dollars or British
pounds. Although exposure to currency fluctuations to date has been
insignificant, there can be no assurance that fluctuations in currency exchange
rates in the future will not have a material adverse impact on the Company's
international operations. The Company currently does not engage in hedging
activities.
During the course of the development of the client/server software
applications, the Company capitalized costs associated with the Versatility
Series in compliance with Statement of Financial Accounting Standards No. 86
"Accounting for the Costs of Computer Software to be Sold, Leased or Otherwise
Marketed" ("SFAS 86"). The amount of software capitalized totaled $995,000 and,
beginning in November 1994, was amortized over three years on a straight-line
basis. In connection with two major implementations of the Versatility Series
product in July 1995, the Company decided to add features and functions which
were substantially different than those included in the software as originally
capitalized. Management determined that these features and functions
substantially altered the content of the product, effectively eliminating any
remaining useful life of the capitalized asset. Accordingly, the Company wrote
off the remaining asset of $829,000 in the first quarter of fiscal 1996. The
Company anticipates that for the foreseeable future, no software development
costs will meet the requirements for capitalization under SFAS 86.
12
<PAGE>
Results of Operations
The following table sets forth certain financial data for the periods
indicated as a percentage of total revenue:
<TABLE>
<CAPTION>
Percentage of Total Revenue
---------------------------
Year Ended April 30,
--------------------------------
1995 1996 1997
---------- ---------- ----------
<S> <C>
Revenue:
License revenue......................... 70.0% 62.6% 68.0%
Service and maintenance revenue......... 30.0 37.4 32.0
-------- -------- --------
Total revenue...................... 100.0 100.0 100.0
-------- -------- --------
Cost of revenue:
License revenue......................... 13.0 3.5 3.2
Service and maintenance revenue......... 20.8 25.8 20.3
-------- -------- --------
Total cost of revenue.............. 33.8 29.3 23.5
-------- -------- --------
Gross margin................................. 66.2 70.7 76.5
-------- -------- --------
Operating expenses:
Selling, general and administrative..... 39.6 47.0 55.8
Research and development................ 6.2 12.5 10.5
Depreciation and amortization........... 3.2 1.0 1.1
Write-off of capitalized software....... -- 5.0 --
-------- -------- --------
Total operating expenses........... 49.0 65.5 67.4
-------- -------- --------
Income from operations....................... 17.2 5.2 9.1
Interest income (expense), net............... (0.1) (0.0) 1.5
-------- -------- --------
Income before provision for income taxes..... 17.1 5.2 10.6
Provision for income taxes................... 6.2 1.2 3.5
-------- -------- --------
Net income................................... 10.9% 4.0% 7.1%
======== ======== ========
</TABLE>
The following table sets forth, for each component of revenue, the cost of
such revenue expressed as a percentage of such revenue for the periods
indicated:
<TABLE>
<CAPTION>
Year Ended April 30,
-------------------------------
1995 1996 1997
---------- ---------- ---------
<S> <C>
Cost of license revenue..................... 18.6% 5.5% 4.8%
Cost of service and maintenance revenue..... 69.3% 68.9% 63.3%
</TABLE>
Fiscal 1997 Compared to Fiscal 1996
Revenue. Total revenue increased 65.4% from $16.5 million in fiscal 1996 to
$27.4 million in fiscal 1997. Revenue from license fees increased 79.7% from
$10.3 million in fiscal 1996, or 62.6% of total revenue, to $18.6 million in
fiscal 1997, or 68.0% of total revenue. Service and maintenance revenue
increased 41.6% from $6.2 million in fiscal 1996, or 37.4% of total revenue, to
$8.8 million in fiscal 1997, or 32.0% of total revenue. The increase in total
revenue was significantly influenced by the roll-out of the Versatility Series
at BT, which contributed $4.4 million in license revenue and $2.1 million in
service and maintenance revenue. The composition of revenue was also influenced
by the development of Versatility's indirect channels. For fiscal 1997, the
domestic and international indirect sales groups together generated $7.7 million
or 28.3% of total revenue.
Cost of Revenue. Total cost of revenue increased from $4.8 million in fiscal
1996, or 29.3% of total revenue to $6.4 million in fiscal 1997, or 23.5% of
total revenue. Cost of license revenue increase from $573,000 in fiscal 1996, or
5.5% of license revenue, to $889,000 in fiscal 1997, or 4.8% of license revenue.
The increase was primarily the result of higher licenses volume partially offset
by a decrease resulting from the Company's shift away from providing lower
margin third-party hardware and software products. The cost of service and
maintenance revenue increased from $4.3 million in fiscal 1996, or 68.9% of
service and maintenance revenue, to $5.5 million in fiscal 1997, or 63.3% of
service and maintenance revenue. The increase represents the addition of
consulting and other staff to support additional revenue as well as the costs
relating to the installation of the Company's products at BT and Avantel.
Selling, General and Administrative. The Company's selling, general and
administrative expenses increased from $7.8 million in fiscal 1996, or 47.0% of
total revenue, to $15.3 million in fiscal 1997, or 55.8% of total revenue. The
increase was attributable to additions to the Company's headcount, primarily
sales and marketing staff. During fiscal 1997, the number of the Company's
employees grew from 135 to 186. Of the increase, 28 new hires joined the sales
and marketing departments, with the remainder accepting management or
administrative positions.
13
<PAGE>
Research and Development. Research and development expenses increased from
$2.1 million in fiscal 1996, or 12.5% of total revenue, to $2.9 million in
fiscal 1997, or 10.5% of total revenue. The number of staff devoted to research
and development increased over 34.6%. This increase in research and development
expenditures resulted from the addition of software developers needed to support
the Company's new product development, as well as costs relating to enhancements
to the Versatility Series and Versatility CallCenter products.
Depreciation and Amortization and Write-off of Capitalized Software.
Depreciation and amortization expenses increased from $161,000 in fiscal 1996 to
$301,000 in fiscal 1997. While the Company entered into operating leasing
arrangements for capital equipment acquired both in fiscal 1996 and 1997, the
volume of assets purchased that were either retained or financed through capital
leases, led to the increase in depreciation expense. Additionally, in fiscal
1996, the Company wrote off all remaining capitalized software totaling
$829,000. No amounts were written off in fiscal 1997 and the Company anticipates
that, for the foreseeable future, no software development costs will meet the
requirements for capitalization.
Interest Income (Expense), Net. Interest income (expense), net was $3,000 in
fiscal 1996 and $404,000 in fiscal 1997. The difference resulted from higher
available cash balances in fiscal 1997, primarily due to the cash raised in the
Company's Initial Public Offering.
Provision for Income Taxes. The Company's provision for income taxes was
$207,000 in fiscal 1996 compared to $964,000 in fiscal 1997. The effective rate
in fiscal 1996 was 24.0% versus an effective rate of 33.1%. The Company incurred
a lower effective rate in fiscal 1996 due to tax benefits derived from sales
made through the Company's Foreign Sales Corporation and due to a previously
unrecognized tax benefit derived from the write-off in a previous period of an
investment in a discontinued subsidiary.
Net Income. Net income increased from $657,000 for fiscal 1996 to $1.9
million for fiscal 1997. If the Company had not been required to capitalize
software development costs and no amortization or write-off had been recorded,
net income for fiscal 1996 would have been $1.3 million.
Fiscal 1996 Compared to Fiscal 1995
Revenue. Total revenue increased 44.0% from $11.5 million in fiscal 1995 to
$16.5 million in fiscal 1996. Revenue from license fees increased 28.6% from
$8.0 million in fiscal 1995, or 70.0% of total revenue, to $10.3 million in
fiscal 1996, or 62.6% of total revenue. Service and maintenance revenue
increased 79.9% from $3.4 million in fiscal 1995, or 30.0% of total revenue, to
$6.2 million in fiscal 1996, or 37.4% of total revenue. The increase in total
revenue was significantly influenced by the roll-out of the Versatility Series
at BT, which contributed $3.0 million in license revenue and $1.2 million in
service and maintenance revenue. Revenue from hardware sales decreased from $1.4
million in fiscal 1995 to $139,000 in fiscal 1996, as the Company completed its
transition to licensing products based on a client/server architecture. Hardware
revenue in fiscal 1995 was derived primarily from sales of DEC VAX/VMS hardware,
while such revenue for fiscal 1996 consisted of incidental sales of hardware
related to the Versatility Series product. The Company does not expect
significant hardware sales to occur in the future.
Cost of Revenue. Total cost of revenue increased from $3.9 million in fiscal
1995, or 33.8% of total revenue, to $4.8 million in fiscal 1996, or 29.3% of
total revenue. Cost of license revenue decreased from $1.5 million in fiscal
1995, or 18.6% of license revenue, to $573,000 in fiscal 1996, or 5.5% of
license revenue. This decrease resulted from the Company's shift away from
providing complete hardware and software configurations for its customers using
DEC hardware and software. The cost of service and maintenance revenue increased
from $2.4 million in fiscal 1995, or 69.3% of service and maintenance revenue,
to $4.3 million in fiscal 1996, or 68.9% of service and maintenance revenue. The
increase represents the addition of consulting and other staff to support
additional revenue as well as the costs relating to the installation of the
Company's products at BT.
Selling, General and Administrative. The Company's selling, general and
administrative expenses increased from $4.6 million in fiscal 1995, or 39.6% of
total revenue, to $7.8 million in fiscal 1996, or 47.0% of total revenue. The
increase was primarily attributable to additions to the Company's sales and
marketing staff. During fiscal 1996, the number of the Company's employees grew
from 67 to 135. Of the increase, 45 new hires joined the sales and marketing
departments, with the remainder accepting management or administrative
positions.
Research and Development. Research and development expenses increased from
$711,000 in fiscal 1995, or 6.2% of total revenue, to $2.1 million in fiscal
1996, or 12.5% of total revenue. In addition, $743,000 of research and
development expenditures were capitalized in fiscal 1995, while no such costs
were capitalized in fiscal 1996. If these capitalized software development
14
<PAGE>
expenditures were added, research and development expenses for fiscal 1995,
would have been $1.5 million. This increase in research and development
expenditures resulted from the addition of software developers needed to support
the Company's new product development, as well as costs relating to enhancements
to the Versatility Series and Versatility CallCenter products.
Depreciation and Amortization and Write-off of Capitalized Software.
Depreciation and amortization expenses decreased from $365,000 in fiscal 1995 to
$161,000 in fiscal 1996. Certain assets had been fully amortized in fiscal 1995
and the Company entered into leasing arrangements for capital equipment acquired
in fiscal 1996. Depreciation and amortization expenses in fiscal 1995 included
$166,000 of amortization of capitalized software. The unamortized portion of
this asset, amounting to $829,000, was written off in fiscal 1996 as management
determined that no net realizable value in the asset remained. No such write-off
was recorded in fiscal 1995.
Interest Income (Expense), Net. Interest income (expense), net was ($9,000)
in fiscal 1995 and $3,000 in fiscal 1996. The difference resulted from higher
available cash balances in fiscal 1996, primarily due to the cash raised in a
private placement in January 1996, which was partially offset by increased
interest expense due to borrowings under the Company's line of credit.
Provision for Income Taxes. The Company's provision for income taxes was
$715,000 in fiscal 1995 compared to $207,000 in fiscal 1996. The effective rate
in fiscal 1995 was 36.3%, while the effective rate in fiscal 1996 was 24.0%. The
Company incurred a lower effective rate in fiscal 1996 due to tax benefits
derived from sales made through the Company's Foreign Sales Corporation and due
to a previously unrecognized tax benefit derived from the write-off in a
previous period of an investment in a discontinued subsidiary.
Net Income. Net income decreased from $1.3 million for fiscal 1995 to
$657,000 for fiscal 1996. If the Company had not been required to capitalize
software development costs and no amortization or write-off had been recorded,
net income for fiscal 1995 and fiscal 1996 would have been $889,000 and $1.3
million, respectively.
Liquidity and Capital Resources
The Company has funded its operations to date primarily through cash
generated from operations, through the private sale of preferred stock in
January 1996 totaling $3.5 million, from funds obtained from revolving credit
facilities with commercial banks and the Company's initial public offering in
December 1996 that raised $30.6 million in net proceeds. The Company's existing
$2.5 million line of credit had an outstanding balance of $2.3 million at April
30, 1997, and $437,000 was outstanding under its $1.0 million equipment line of
credit. Advances under the working capital line bear interest at a variable
annual rate equal to the prime rate of the bank plus 0.5%, and advances under
the equipment line bear interest at a variable annual rate equal to the prime
rate of the bank plus 1.0%. Both lines expire on August 5, 1997.
At April 30, 1997, the Company had $18.8 million in cash and cash
equivalents and $16.0 million in accounts receivable. For the year ended April
30, 1997, net cash used by operations totaled $6.3 million. In addition, the
Company used $9.2 million for investing activities, which included $952,000 for
the capital expenditures, $516,000 loaned to Serenity Real Properties Limited
Partnership and $7.5 million to purchase investments in corporate and municipal
bonds. These uses of cash were offset by the net proceeds of $30.6 million from
the Company's initial public offering and net borrowings of $1.5 million under
the Company's working capital line of credit, resulting in a net cash increase
of $16.5 million.
The $5.7 million in accounts receivable at April 30, 1996 compares to $16.0
million at April 30, 1997. While some of this increase resulted in the ordinary
course from growth in the Company's revenue year to year, approximately $3
million of the accounts receivable at April 30, 1997 represented balances over
90 days past due from customers with negotiated extended payment terms
(originally not to exceed 90 days from invoice date) as a condition to their
purchase or during the course of the implementation process. The Company does
not anticipate a further extension of payment terms. To the extent that
significant customers of the Company continue to have the negotiating leverage
to obtain extended payment terms, the Company's working capital requirements
will be increased.
The Company invested $156,000, $235,000 and $952,000 in capital expenditures
in fiscal 1995, 1996 and 1997, respectively. Capital expenditures include
purchases of computer hardware used primarily in product development, product
demonstrations, training and support. Over the course of fiscal 1996, the
Company had financed a portion of its capital equipment needs through operating
leases. During fiscal 1997, the Company financed $437,000 of the capital assets
acquired through a capital lease under its $1.0 million equipment line of credit
with the remainder through operating leases.
15
<PAGE>
The Company anticipates that its existing cash balances, funds anticipated
to be generated from operations, combined with the proceeds from the initial
public offering and interest thereon, will be adequate to satisfy its working
capital requirements for its current and planned operations for at least the
next twelve months. The Company's future operating and capital requirements will
depend on numerous factors, including the progress of the Company's internal
research and development programs, the level of resources the Company devotes to
the development of marketing and sales capabilities, technological advances, the
status of competing products, and the successful development and timely
introduction of its own products. In the longer term, the Company may require
additional equity or debt financing. No assurance can be given that these funds
will be available to the Company on acceptable terms, if at all.
Factors Which May Effect Future Operating Results
The Company does not provide forecasts of future, financial performance.
While the Company's management is optimistic about its long-term prospects, the
following issues and uncertainties, among others, should be considered in
evaluating its growth outlook.
Dependence on New Products; Risk Associated with Servicing the Customer
Interaction Software Market. The Company currently derives substantially all of
its revenue from sales of its Versatility Series software and related services.
The Versatility Series was introduced in May 1995, and the Company expects that
this product and related services, together with Versatility CallCenter,
introduced in August 1996, will continue to account for a substantial portion of
the Company's revenue for the foreseeable future. However, the Company has
little operating history with the Versatility Series and Versatility CallCenter
products. The Company's financial results for periods prior to fiscal 1996
reflect sales of the Company's previous generation of products, which the
Company no longer actively markets. The lifecycle of the Company's current
products is difficult to estimate as a result of many factors, including the
unknown future demand for customer interaction software and the effects of
competition in this market. Moreover, although the Company intends to enhance
these products and develop related products, the Company's strategy is to
continue to focus on providing customer interaction software applications as its
sole line of business. As a result, any factor adversely affecting the market
for customer interaction software applications in general, or the Versatility
Series and Versatility CallCenter products in particular, could adversely affect
the Company's business, financial condition and results of operations. The
market for customer interaction software products is intensely competitive,
highly fragmented and subject to rapid change. The Company's future success will
depend on continued growth in the market for customer interaction applications.
There can be no assurance that the market for customer interaction applications
will continue to grow. If this market fails to grow or grows more slowly than
the Company currently anticipates, the Company's business, financial condition
and results of operations would be materially adversely affected.
Dependence on Large License Fees and Customer Concentration. A relatively
small number of customers have accounted for a significant percentage of the
Company's revenue in any given period. In fiscal 1997, the Company's eight
largest customers accounted for 59.3% of the Company's total revenue, of which,
BT accounted for 23.6%. Although the particular customers may change from period
to period, the Company expects that large sales to a limited number of customers
will continue to account for a significant percentage of its revenue in any
particular period for the foreseeable future. Therefore, the loss, deferral or
cancellation of an order could have a significant impact on the Company's
operating results in a particular quarter. The Company has no long-term
contracts with its customers and there can be no assurance that its current
customers will place additional orders, or that the Company will obtain orders
of similar magnitude from other customers. The loss of any major customer or any
reduction, delay in or cancellation of orders by any such customer, or the
failure of the Company to market successfully to new customers could have a
materially adverse effect on the Company's business, financial condition and
results of operations.
Some of the Company's increase in accounts receivable resulted in the
ordinary course from growth in the Company's revenue year to year, approximately
$3 million of the accounts receivable at April 30, 1997 represented balances
over 90 days past due from customers which negotiated extended payment terms as
a conditions to their purchase or during the course of the implementation
process. The Company does not anticipate a further extension of payment terms.
To the extent that significant customers of the Company continue to have the
negotiating leverage to obtain extended payment terms, the Company's working
capital requirements will be increased.
Quarterly Fluctuations in Revenue and Operating Results. The Company's
revenue and operating results could fluctuate significantly from quarter to
quarter due to a combination of factors, including variations in the demand for
the Company's products, the level of product and price competition, the length
of the Company's sales process, the size and timing of individual transactions,
the mix of products and services sold, the mix of sales through direct and
indirect channels, any delay in or
16
<PAGE>
cancellation of customer implementations, the Company's success in expanding its
customer support organization, direct sales force and indirect distribution
channels, the timing of new product introductions and enhancements by the
Company or its competitors, the ratio of international to domestic sales,
commercial strategies adopted by competitors, changes in foreign currency
exchange rates, customers' budgets constraints, and the Company's ability to
control costs. In addition, a limited number of relatively large customer orders
has accounted for and is likely to continue to account for a substantial portion
of the Company's total revenue in any particular quarter. The timing of such
orders can be difficult to predict given the average size of the Company's
orders and the length of its sales process. The Company has in the past
recognized a substantial portion of its revenue in the last month of a quarter.
Therefore, the loss, deferral or cancellation of an order could have a
significant adverse impact on the Company's revenue and operating results in a
particular quarter. Because the Company's operating expense levels are
relatively fixed and tied to anticipated levels of revenue, any delay in the
recognition of revenue from a limited number of license transactions could cause
significant variations in operating results from quarter to quarter. Based upon
all of the foregoing, the Company believes that quarter-to-quarter comparisons
of its results of operations are not necessarily meaningful and such comparisons
should not be relied upon as indications of future performance. It is also
likely that the Company's future quarterly operating results in any given period
will not meet the expectations of market analysts or investors, which could have
an adverse effect on the price of the Company's Common Stock.
Length of Sales and Implementation Processes. Selling the Company's products
generally requires the Company to provide a significant level of education to
prospective customers regarding the use and benefits of the Company's products.
In addition, implementation of the Company's products involves a significant
commitment of resources by prospective customers and is commonly associated with
substantial integration efforts which may be performed by the Company, by the
customer, or by a third party systems integrator. For these and other reasons,
the length of time between the date of initial contact with the potential
customer and the implementation of the Company's products is often lengthy,
typically ranging from two to nine months or more, and is subject to delays over
which the Company has little or no control. The Company's implementation cycle
could be lengthened by increases in the size and complexity of its
implementations and by delays in its customers' adoption of client/server
computing environments. Delay in or cancellation of the sale or implementation
of applications could have a materially adverse effect on the Company's
business, financial condition and results of operations and cause the Company's
operating results to vary significantly from quarter to quarter.
Expansion of Sales Force and Channels of Distribution. Historically, the
Company has distributed its products primarily through its direct sales force.
An integral part of the Company's strategy includes expanding its direct sales
force while developing additional marketing, sales and implementation
relationships with third party systems integrators and VARs. The Company's
ability to achieve significant revenue growth in the future will depend on its
ability to attract, train and retain additional qualified direct sales
personnel. In addition, the Company currently is investing, and intends to
continue investing, significant resources to develop its relationships with
third party systems integrators and VARs, especially in international markets.
The Company has only limited experience distributing its products through
indirect channels. If the Company is unable to develop its relationships with
third party systems integrators and VARs, or if the third party systems
integrators and VARs with which the Company develops relationships are unable to
effectively market, sell and implement the Company's software applications, the
Company's business, financial condition and results of operations could be
materially adversely affected.
Dependence on Indirect Distribution Channels; Potential for Channel
Conflict. The Company's strategy is to increase its use of third party systems
integrators and VARs to distribute its products. These independent sales
organizations, which generally install and support the product lines of a number
of companies, are not under the direct control of the Company, are not subject
to any minimum purchase requirements and can discontinue marketing the Company's
products at any time without cause. Many of the Company's third party systems
integrators and VARs sell or co-market potentially competitive products.
Accordingly, the Company must compete for the focus and sales efforts of its
third party systems integrators and VARs. Additionally, selling through indirect
channels may limit the Company's contacts with its customers. As a result, the
Company's ability to accurately forecast sales and revenue, evaluate customer
satisfaction and recognize emerging customer requirements may be hindered. In
addition, the Company's gross profit on sales to third party systems integrators
and VARs tends to be lower than on its direct sales, although the Company's
selling and marketing expenses and servicing costs also tend to be lower with
respect to these sales. There can be no assurance that the Company's current
third party systems integrators and VARs will continue to distribute or
recommend the Company's products or do so successfully. There can also be no
assurance that one or more of these companies will not begin to market products
in competition with the Company. The termination of one or more of these
relationships could adversely affect the Company's business, financial condition
and results of operations.
17
<PAGE>
The Company's strategy of marketing its products directly to end-users and
indirectly through VARs and third party systems integrators may result in
distribution channel conflicts. The Company's direct sales efforts may compete
with those of its indirect channels and, to the extent different resellers
target the same customers, resellers may also come into conflict with each
other. Although the Company has attempted to manage its distribution channels in
a manner to avoid potential conflicts, there can be no assurance that channel
conflicts will not materially adversely affect its relationships with existing
third party systems integrators or VARs or adversely affect its ability to
attract new third party systems integrators and VARs.
Dependence on Practice Partners. The Company is currently enlisting the
support of a specific group of professional services organizations which will
engage in the practice of implementing and customizing the Company's software
products. Referred to as "Practice Partners," these organizations do not resell
or otherwise market the Company's products. Instead, the Company intends to
support the Practice Partners' efforts to learn to install, customize and
support the Company's products. The Company's future revenues may depend on the
ability of the Practice Partners to achieve this goal. Further, the costs
required to enlist, train and assist the Practice Partners could have a
materially adverse affect on the Company's business, financial condition and
results of operations.
International Operations. Revenue from sales outside the United States in
fiscal 1995, 1996 and 1997 accounted for approximately 16.3%, 40.8% and 41.2%,
respectively, of the Company's total revenue. International operations are
subject to inherent risks, including the impact of possible recessionary
environments in economies outside the United States, changes in demand for the
Company's products resulting from fluctuations in exchange rates, unexpected
changes in legal and regulatory requirements including those relating to
telemarketing activities, changes in tariffs, seasonality of sales, costs of
localizing products for foreign markets, longer accounts receivable collection
periods and greater difficulty in accounts receivable collection, difficulties
and costs of staffing and managing foreign operations, reduced protection for
intellectual property rights in some countries, potentially adverse tax
consequences and political and economic instability. There can be no assurance
that the Company will be able to sustain or increase international revenue, or
that the factors listed above will not have a material adverse impact on the
Company's international operations. While the Company's expenses incurred in
foreign countries are typically denominated in the local currencies, revenue
generated by the Company's international sales typically is paid in U.S. dollars
or British pounds. Although exposure to currency fluctuations to date has been
insignificant, there can be no assurance that fluctuations in currency exchange
rates in the future will not have a material adverse impact on the Company's
international operations. The Company currently does not engage in hedging
activities.
A significant element of the Company's strategy is to continue the expansion
of its operations in international markets. This expansion has required and will
continue to require significant management attention and financial resources to
develop international sales channels. Because of the difficulty in penetrating
new markets, along with the Company's size and geographic location, there can be
no assurance that the Company will be able to maintain or increase international
revenue. To the extent that the Company is unable to do so, the Company's
financial condition and results of operations could be materially adversely
affected. A substantial portion of the Company's international sales are
expected to be made using indirect selling channels, such as third party systems
integrators and VARs. A reduction in sales by all or some of these distributors
or a termination of their relationships with the Company could have a material
adverse effect on the Company's business, financial condition and results of
operations.
Competition. The market for the Company's products is intensely competitive,
highly fragmented and subject to rapid change. Because the Company offers
multiple applications which can be purchased separately or integrated as part of
the Versatility Series, the Company competes with a variety of companies
depending on the target market for their applications software products. The
Company's principal competitors in the customer interaction software market are
Brock International, Inc., Digital Systems International, Inc., Information
Management Associates, Inc., Scopus Technology, Inc. and The Vantive
Corporation. For installations where telephony functions are of prime
importance, competitors include Davox Corporation, Early Cloud and Company (a
division of IBM) and EIS International, Inc. The Company also competes with
third party professional service organizations that develop custom software and
with the information technology departments of potential customers, which
develop applications internally. Among the Company's potential competitors are
also a number of large hardware and software companies that may develop or
acquire products that compete with the Company's products. Increased competition
is likely to result in price reductions, reduced operating margins and loss of
market share, any of which could materially adversely affect the Company's
business, financial condition and results of operations. Many of the Company's
current and potential competitors have significantly greater financial,
technical, marketing and other resources than the Company. As a result, they may
be able to respond more quickly to new or emerging technologies and changes in
customer requirements, or to devote greater resources to the development,
promotion and sale of products than can the Company. There can be no assurance
that the Company will be able to compete
18
<PAGE>
successfully against current and future competitors or that competitive
pressures faced by the Company will not materially adversely affect its
business, financial condition and results of operations.
Management of Growth. The Company has recently experienced significant
growth in revenue, operations and personnel. Continued growth will challenge the
Company's management systems and resources and require the Company to improve
and upgrade its management information systems. In addition, the Company will
need to hire more technical, sales and marketing, support and administrative
personnel to adequately service and support its growing customer base. There can
be no assurance that the Company will be able to successfully upgrade its
systems or to attract, retain and successfully train the necessary personnel to
accomplish its growth strategies or that it will not experience constraints that
will adversely affect its ability to satisfy customer demand in a timely fashion
or to satisfactorily support its customers. Any of these events could injure the
Company's reputation or lead to loss of customers. If the Company is unable to
manage growth effectively, the Company's business, financial condition and
results of operations could be adversely affected.
Dependence on Growth of Client/Server Computing Environment. The
client/server software environment is relatively new. The Company markets its
products solely to customers that have committed or are committing their call
center systems to client/server environments, or are converting legacy systems,
in part or in whole, to a client/server environment. The Company's success will
depend on further development of and growth in the number of organizations
adopting client/server computing environments. There can be no assurance,
however, that the client/server market will maintain its current rate of growth.
There also can be no assurance that the client/server computing trends
anticipated by the Company will occur or that the Company will be able to
respond effectively to the evolving requirements of this market. If the
client/server market fails to grow, or grows at a rate slower than experienced
in the past, the Company's business, financial condition and results of
operations could be materially adversely affected.
Rapid Technological Change and Product Development Risks. The customer
interaction software market is subject to rapid technological change, changing
customer needs, frequent new product introductions and evolving industry
standards that may render existing products and services obsolete. As a result,
the Company's position in this market could be eroded rapidly by unforeseen
changes in application features and functions. The life cycles of the Company's
products are difficult to estimate. The Company's growth and future operating
results will depend in part upon its ability to enhance existing applications
and develop and introduce new applications that meet or exceed technological
advances in the marketplace, that meet changing customer requirements, that
respond to competitive products and that achieve market acceptance. The
Company's product development and testing efforts are expected to require
substantial investments by the Company. There can be no assurance that the
Company will possess sufficient resources to make these necessary investments.
The Company has in the past experienced delays both in developing new products
and in customizing existing products, and there can be no assurance that the
Company will not experience difficulties that could cause delays in the future.
In addition, there can be no assurance that such products will meet the
requirements of the marketplace and achieve market acceptance, or that the
Company's current or future products will conform to industry standards. If the
Company is unable, for technological or other reasons, to develop and introduce
new and enhanced products in a timely manner, the Company's business, financial
condition and results of operations could be materially adversely affected.
Software products as complex as those offered by the Company may contain
errors that may be detected at any point in the products' life cycles. The
Company has, in the past, discovered software errors in certain of its products
and has experienced delays in shipment of products during the period required to
correct these errors. In particular, the computing environment is characterized
by a wide variety of standard and non-standard configurations that make
pre-release testing for programming or compatibility errors very difficult and
time consuming. There can be no assurance that, despite extensive testing by the
Company and by current and potential customers, errors will not be found,
resulting in loss of, or delay in, market acceptance and sales, diversion of
development resources, injury to the Company's reputation, or increased service
and warranty costs, any of which could have a material adverse effect on the
Company's business, financial condition and results of operations.
Difficulty in Protecting Proprietary Technology; Risk of Infringement. The
Company relies on a combination of copyright, trade secret and trademark laws,
confidentiality procedures and contractual provisions to protect its proprietary
rights in its products and technology. The Company does not rely upon patent
protection and does not currently expect to seek patents on any aspects of its
technology. There can be no assurance that the confidentiality agreements and
other methods on which the Company relies to protect its trade secrets and
proprietary technology will be adequate. Further, the Company may be subject to
additional risks as it enters into transactions in countries where intellectual
property laws are not well developed or are poorly enforced. Legal protections
of the Company's rights may be ineffective in such countries. Litigation to
defend and enforce the Company's
19
<PAGE>
intellectual property rights could result in substantial costs and diversion of
resources and could have a materially adverse effect on the Company's business,
financial condition and results of operations, regardless of the final outcome
of such litigation. Despite the Company's efforts to safeguard and maintain its
proprietary rights both in the United States and abroad, there can be no
assurance that the Company will be successful in doing so or that the steps
taken by the Company in this regard will be adequate to deter misappropriation
or independent third-party development of the Company's technology or to prevent
an unauthorized third party from copying or otherwise obtaining and using the
Company's products or technology. There also can be no assurance that others
will not independently develop similar technologies or duplicate any technology
developed by the Company. Any such events could have a material adverse effect
on the Company's business, financial condition and results of operations.
The Company has entered into agreements with a small number of its customers
requiring the Company to place its source code in escrow. These escrow
agreements typically provide that these customers have a limited, non-exclusive
right to use such code in the event that there is a bankruptcy proceeding by or
against the Company, if the Company ceases to do business or if the Company
fails to meet its support obligations. Entering into such agreements may
increase the likelihood of misappropriation by third parties.
As the number of customer interaction software applications in the industry
increases and the functionality of these products further overlaps, software
development companies like the Company may increasingly become subject to claims
of infringement or misappropriation of the intellectual property rights of
others. There can be no assurance that third parties will not assert
infringement or misappropriation claims against the Company in the future with
respect to current or future products. Any claims or litigation, with or without
merit, could be time-consuming, result in costly litigation, cause product
shipment delays or require the Company to enter into royalty or licensing
arrangements. Such royalty or licensing arrangements, if required, may not be
available on terms acceptable to the Company, if at all, which could have a
material adverse effect on the Company's business, financial condition and
results of operations. Adverse determinations in such claims or litigation could
also have a material adverse effect on the Company's business, financial
condition and results of operations.
Dependence on Key Personnel. The Company's success depends to a significant
extent upon the continued service of its executive officers and other key
management and technical personnel, and on its ability to continue to attract,
retain and motivate qualified personnel, such as experienced software developers
and sales personnel. Competition for such employees is very intense. The Company
has no long-term employment contracts with any of its employees. The loss of the
services of one or more of the Company's executive officers, software developers
or other key personnel or the Company's inability to recruit replacements for
such personnel could have a material adverse effect on the Company's business,
financial condition and results of operations. The Company maintains $1.0
million of key-man life insurance on Ronald R. Charnock, the Company's President
and Chief Executive Officer.
Regulatory Environment. Federal, state and foreign law regulate certain uses
of outbound call processing systems. Although the compliance with these laws may
limit the potential use of the Company's products in some respects, the
Company's systems can be programmed to operate automatically in full compliance
with these laws through the use of appropriate calling lists and calling
campaign time parameters. There can be no assurance, however, that future
legislation further restricting telephone solicitation practices, if enacted,
would not adversely affect the Company.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Not applicable.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
The Company's consolidated financial statements, together with related notes
and the report of Deloitte & Touche LLP, the Company's independent accountants,
are set forth on the pages indicated in Item 14.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
20
<PAGE>
PART III
Certain information required by Part III is omitted from this Annual Report
on Form 10-K since the Company will file its definitive Proxy Statement for its
Annual Meeting of Stockholders to be held on August 26, 1997, pursuant to
Regulation 14A of the Securities Exchange Act of 1934, as amended (the "Proxy
Statement"), not later than 120 days after the end of the fiscal year covered by
this Report, and certain information included in the Proxy Statement is
incorporated herein by reference.
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
(a) Executive Officers
The information required by this Item is incorporated by reference to
the information set forth under the caption "Occupation of Directors and
Executive Officers" on pages 3 and 4 of the Proxy Statement.
(b) Directors
The information required by this Item is incorporated by reference to
the information set forth under the caption "Occupation of Directors and
Executive Officers" on pages 3 and 4 of the Proxy Statement.
ITEM 11. EXECUTIVE COMPENSATION
The information required by this Item is incorporated by reference to the
information set forth under the caption "Compensation and Other Information
Concerning Directors and Officers" on pages 5 and 6 of the Proxy Statement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information required by this Item is incorporated by reference to the
information set forth under the caption "Management and Principal Holders of
Voting Securities" on pages 1 and 2 of the Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information required by this Item is incorporated by reference to the
information set forth under the caption "Certain Relationships and Related
Transactions" on page 10 of the Proxy Statement.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of this Report:
1. Financial Statements
Page
Independent Auditors' Report.........................................F-2
Consolidated Balance Sheets..........................................F-3
Consolidated Statements of Operations................................F-5
Consolidated Statements of Cash Flows................................F-6
Consolidated Statements of Changes in Stockholders' Equity...........F-7
Notes to Consolidated Financial Statements...........................F-8
2. Financial Statement Schedule
Schedule II - Valuation and Qualifying Accounts.................S-1
21
<PAGE>
3. Exhibits
See Index to Exhibits. The Exhibits listed in the accompanying
Index to Exhibits are filed herewith or incorporated by reference
as part of this report.
(b) Reports on Form 8-K:
None
(c) Exhibits
See (a) above
(d) Financial Statement Schedules
See (a) above
22
<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.
VERSATILITY INC.
Dated: July 23, 1997 By: /s/ Ronald R. Charnock
-----------------------
Ronald R. Charnock
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities and Exchange Act of 1934, this
Report on Form 10-K has been signed by the following persons in the capacities
and on the dates indicated:
SIGNATURE TITLE
/s/ Ronald R. Charnock Chairman, President and Chief Executive Officer
- ------------------------------
Ronald R. Charnock
/s/ Donald C. Yount Chief Financial Officer (Principal Financial
- ------------------------------ and Accounting Officer)
Donald C. Yount
/s/ Marcus W. Heth Director
- ------------------------------
Marcus W. Heth
/s/ Thomas A. Smith Director
- ------------------------------
Thomas A. Smith
/s/ Charles A. Johnson Director
- ------------------------------
Charles A. Johnson
/s/ Paul J. Palmer Director
- ------------------------------
Paul J. Palmer
/s/ James R. Walker Director
- ------------------------------
James R. Walker
23
<PAGE>
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
VERSATILITY INC.
<TABLE>
<CAPTION>
Page
----
<S> <C>
Independent Auditors' Report......................................................................................... F-2
Consolidated Balance Sheets at April 30, 1996 and 1997............................................................... F-3
Consolidated Statements of Operations for the years ended April 30, 1995, 1996 and 1997.............................. F-5
Consolidated Statements of Cash Flows for the years ended April 30, 1995, 1996 and 1997.............................. F-6
Consolidated Statements of Changes in Stockholders' Equity for the years ended April 30, 1995, 1996 and 1997......... F-7
Notes to Consolidated Financial Statements........................................................................... F-8
</TABLE>
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
Board of Directors of Versatility Inc.:
We have audited the accompanying consolidated balance sheets of Versatility
Inc. and its subsidiaries (the "Company") as of April 30, 1996 and 1997, and the
related consolidated statements of operations, of changes in stockholders'
equity, and of cash flows for each of the three years in the period ended April
30, 1997. We have also audited the financial statement schedule listed in Item
14(a)2 of this Form 10-K. These financial statements and financial statement
schedule are the responsibility of the Company's management. Our responsibility
is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, such consolidated financial statements present fairly, in
all material respects, the financial position of Versatility Inc. and its
subsidiaries at April 30, 1996 and 1997, and the results of their operations and
their cash flows for each of the three years in the period ended April 30, 1997
in conformity with generally accepted accounting principles. In addition, in our
opinion, the financial statement schedule referred to above, when considered in
relation to the basic consolidated financial statements taken as a whole,
presents fairly, in all material respects, the information set forth therein.
DELOITTE & TOUCHE LLP
Washington, DC
May 30, 1997
F-2
<PAGE>
VERSATILITY INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
April 30, April 30,
1996 1997
---- ----
ASSETS
Current assets:
Cash and cash equivalents....... $ 2,280,273 $18,825,764
Short-term investments.......... -- 6,039,255
Accounts receivable, net of
Allowance for doubtful accounts
of $157,874 and $356,195...... 5,670,503 15,971,315
Prepaid expenses................ 642,045 1,181,865
Inventory....................... -- 18,880
Note receivable-related party... -- 519,305
Deferred income taxes........... 130,238 230,729
----------- -----------
Total current assets....... 8,723,059 42,787,113
----------- -----------
Other assets:
Related party receivables....... 117,221 153,381
Deposits........................ 157,835 187,650
Related party investment........ 3,137 --
Investments..................... -- 1,433,464
Deferred income taxes........... -- 248,932
Assets held for sale............ 76,004 648,314
Purchased software, net of
Accumulated amortization of
$11,500 and $62,098........... 103,500 357,136
----------- -----------
Total other assets......... 457,697 3,028,877
----------- -----------
Property and equipment
Computers....................... 893,674 1,168,246
Office furniture and equipment.. 637,559 665,597
Leasehold improvements.......... 181,485 206,402
Capital leases.................. 160,822 652,533
----------- -----------
1,873,540 2,692,778
Less: Accumulated depreciation
and amortization............. (1,423,234) (1,675,749)
----------- -----------
Net property and equipment. 450,306 1,017,029
----------- -----------
Total................................ $ 9,631,062 $46,833,019
=========== ===========
See notes to the consolidated financial statements
F-3
<PAGE>
VERSATILITY INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
April 30, April 30,
1996 1997
---------- -----------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable....................... $ 824,745 $ 2,107,630
Accrued liabilities.................... 1,393,653 2,016,656
Related party payables................. 3,443 28,030
Income taxes payable................... 356,503 662,042
Capital lease payable.................. 30,848 181,069
Line of credit......................... 800,772 2,288,319
Deferred revenue....................... 284,700 978,008
---------- ------------
Total current liabilities......... 3,694,664 8,261,754
---------- ------------
Long-term liabilities:
Capital lease payable, less current
Maturities........................... 69,983 287,120
Deferred rent.......................... 221,899 316,360
Deferred income taxes.................. 249,401 --
---------- -----------
Total other liabilities........... 541,283 603,480
---------- -----------
Commitments and Contingencies (Note 6)
Redeemable preferred stock
Series A redeemable convertible preferred
stock, par value $.01 -- 992,061 shares
authorized, issued and outstanding,
liquidation preference -- $3.52784 per
share at April 30, 1996; no shares
authorized, issued or outstanding at
April 30, 1997............................ 3,561,293 --
Stockholders' equity
Preferred stock, $.01 par value, no
shares authorized, issued or
outstanding
at April 30, 1996; 2,000,000 shares
authorized, no shares issued or -- --
outstanding at April 30, 1996.........
Common stock, par value $.01 -- 20,000,000
shares authorized, 4,000,000 shares
issued and outstanding at April 30, 1997;
7,297,365 shares issued and
outstanding at April 30, 1997........ 40,000 72,974
Additional paid-in capital............. -- 34,349,298
Foreign currency translation
adjustments................................. (66,311) (83,880)
---------- -----------
Retained earnings...................... 1,860,133 3,629,393
---------- -----------
Stockholders' equity.............. 1,833,822 37,967,785
---------- -----------
Total....................................... $9,631,062 $46,833,019
========== ===========
See notes to the consolidated financial statements
F-4
<PAGE>
VERSATILITY INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Year Ended April 30,
1995 1996 1997
------------ ------------ -----------
<S> <C>
Revenue:
License revenue......................... $8,045,345 $10,345,323 $18,589,540
Service and maintenance revenue......... 3,439,806 6,189,949 8,762,355
---------- ----------- -----------
Total revenue...................... 11,485,151 16,535,272 27,351,895
---------- ---------- -----------
Cost of revenue:
License revenue......................... 1,493,194 573,329 889,163
Service and maintenance revenue......... 2,384,946 4,266,984 5,544,331
---------- ----------- -----------
Total cost of revenue.............. 3,878,140 4,840,313 6,433,494
---------- ----------- -----------
Gross margin................................ 7,607,011 11,694,959 20,918,401
--------- ----------- -----------
Operating expenses:
Selling, general and administrative..... 4,550,182 7,769,751 15,252,104
Research and development................ 710,828 2,073,797 2,859,639
Depreciation and amortization........... 365,490 161,346 300,985
Write off of capitalized software....... -- 829,026 --
---------- ----------- -----------
Total operating expenses........... 5,626,500 10,833,920 18,412,728
---------- ----------- -----------
Income from operations...................... 1,980,511 861,039 2,505,673
Interest income (expense), net.............. (8,977) 3,140 403,989
---------- ----------- -----------
Income before provision for income taxes... 1,971,534 864,179 2,909,662
Provision for income taxes.................. 714,947 207,309 964,402
---------- ----------- -----------
Net income.................................. $1,256,587 $ 656,870 $ 1,945,260
========== =========== ===========
Net income per share........................ $ 0.12 $ 0.30
=========== ===========
Weighted average common and common
equivalent shares outstanding............. 5,603,205 6,456,851
=========== ===========
</TABLE>
See notes to the consolidated financial statements
F-5
<PAGE>
VERSATILITY INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Year Ended April 30,
1995 1996 1997
------------ ------------ -------------
<S> <C>
Cash flows from operating activities:
Net income......................................... $1,256,587 $ 656,870 $ 1,945,260
Adjustments to reconcile net income (loss) to net
cash provided by operating activities:
Depreciation................................... 199,685 149,846 250,387
Amortization................................... 165,805 11,500 50,598
Loss (gain) on equity investment............... (122) 989 6
Deferred income taxes.......................... 288,719 (208,291) (598,824)
Write-off of capitalized software.............. -- 829,026 --
Changes in assets and liabilities:
Accounts receivable........................ (414,912) (4,284,630) (10,263,591)
Prepaid expenses........................... (8,156) (617,089) (539,820)
Inventory.................................. -- 7,356 (18,880)
Related party receivables.................. 3,143 34,016 (73,381)
Deposits................................... (52,184) (80,304) (29,815)
Accounts payable........................... 170,482 (65,710) 1,282,885
Accrued liabilities........................ 319,481 641,578 623,003
Related party payables..................... 4,460 (82,775) 24,587
Income taxes payable....................... 308,580 (92,264) 305,539
Deferred rent.............................. 20,938 67,893 94,461
Deferred revenue........................... (53,740) 96,594 693,308
---------- ----------- ------------
Net cash (used in) provided by
operating Activities................. 2,208,766 (2,935,395) (6,254,277)
---------- ----------- ------------
Cash flows from investing activities:
Purchase of investments............................ -- -- (7,472,719)
Purchase of property and equipment and assets held
for sale......................................... (155,734) (235,310) (952,036)
Software development costs......................... (743,396) -- --
Purchased software................................. -- (115,000) (304,234)
Related party note receivable...................... -- -- (516,174)
---------- ----------- ------------
Net cash used in investing activities.. (899,130) (350,310) (9,245,163)
---------- ----------- ------------
Cash flows from financing activities:
Borrowings under line of credit.................... -- 800,772 4,369,831
Payments under line of credit...................... -- -- (2,882,284)
Proceeds from sale of preferred stock, net......... -- 3,473,293 --
Proceeds from sale of common stock, net............ -- -- 30,644,979
Principal payments under note payable.............. (65,453) (35,250) --
Principal payments under capital leases............ (22,432) (20,731) (70,026)
---------- ----------- ------------
Net cash provided by (used in)
financing Activities................. (87,885) 4,218,084 32,062,500
---------- ----------- ------------
Effect of exchange rate changes on cash................ -- (66,311) (17,569)
---------- ----------- ------------
Net increase in cash and cash equivalents.............. 1,221,751 866,068 16,545,491
Cash and cash equivalents, beginning of period......... 192,454 1,414,205 2,280,273
---------- ----------- ------------
Cash and cash equivalents, end of period............... $1,414,205 $ 2,280,273 $18,825,764
========== =========== ============
Supplemental disclosures of cash flow information:
Interest paid...................................... $ 18,691 $ 27,732 $ 160,061
========== =========== ============
Income taxes paid.................................. $ 114,309 $ 506,490 $ 1,262,161
========== =========== ============
</TABLE>
See notes to the consolidated financial statements
F-6
<PAGE>
VERSATILITY INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
<TABLE>
<CAPTION>
Number of Foreign
Shares of Additional Currency
Common Common Paid-in Translation Retained
Stock Stock Capital Adjustments Earnings Total
--------- -------- ------------- ----------- ------------ -------------
<S> <C>
Balance, May 1, 1994........................ 4,000,000 $40,000 $ -- $ -- $ 34,676 $ 74,676
Net income............................... 1,256,587 1,256,587
--------- ------- ------------- ----------- ----------- -----------
Balance, April 30, 1995..................... 4,000,000 40,000 -- -- 1,291,263 1,331,263
Foreign currency translation
adjustments ........................... (66,311) (66,311)
Accretion of dividends on redeemable
preferred stock........................ (88,000) (88,000)
Net income............................... 656,870 656,870
--------- ------- ------------- ----------- ----------- -----------
Balance, April 30, 1996..................... 4,000,000 40,000 -- (66,311) 1,860,133 1,833,822
Conversion of redeemable preferred
stock.................................. 992,061 9,921 3,727,372 3,737,293
Issuance of common stock related to
public offering....................... 2,275,364 22,754 30,598,273 30,621,027
Issuance of common stock related to
Exercise of stock options.............. 29,940 299 23,653 23,952
Foreign currency translation
adjustments............................ (17,569) (17,569)
Accretion of dividends on redeemable
Preferred stock........................ (176,000) (176,000)
Net income............................... 1,945,260 1,945,260
--------- ------- ------------- ----------- ---------- -----------
Balance, April 30, 1997..................... 7,297,365 $72,974 $ 34,349,298 $ (83,880) $3,629,393 $37,967,785
========= ======= ============= =========== ========== ===========
</TABLE>
See notes to the consolidated financial statements
F-7
<PAGE>
VERSATILITY INC. AND SUBSIDIARIES
NOTES TO THE CONSOLIDATED FINANCIAL STATEMENTS
Years Ended April 30, 1995, 1996 and 1997
Versatility Inc. (the "Company") was incorporated as National Political
Resources, Inc, in the District of Columbia in 1981 and merged into NPRI, Inc.,
a Virginia corporation, in July 1991. In January 1996, NPRI, Inc. reincorporated
in Delaware. The Company changed its name to Versatility Inc. in June 1996.
The Company is a provider of client/server customer interaction software
that enables businesses to automate and enhance their telemarketing and
teleselling capabilities. The Company's products include software applications,
development and customization tools and optional software services. The Company
also offers fee-based professional, consulting and maintenance services.
In December 1996, Versatility Inc. (the "Company"), completed an initial
public offering of 2.2 million shares of common stock at $15.00 per share. In
addition, in January 1997, the underwriters in such public offering exercised
their option to purchase additional 189,000 shares of common stock at $15.00 per
share. Of the additional shares purchased, the Company issued 75,364 shares and
certain selling stockholders of the Company sold 113,636 shares. Simultaneous
with the closing of the initial public offering, all outstanding shares of
preferred stock were converted to common stock on a one-for-one basis.
1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Accounting Principles -- The financial statements are prepared on a basis
consistent with U.S. generally accepted accounting principles.
Principles of Consolidation -- The financial statements include the results
of Versatility Inc., and its wholly owned subsidiaries, NPRI Technologies, Ltd.
and Versatility (UK) Limited. All significant intercompany accounts and
transactions have been eliminated in consolidation. On April 30, 1996, NPRI
Technologies, Ltd. was dissolved, and its operations were merged with
Versatility Inc. The Company accounted for its investment in Serenity Real
Property Limited Partnership using the equity method (See Note 3).
Cash and Cash Equivalents -- For purposes of the Statements of Cash Flows,
the Company considers all highly liquid investments with an original maturity of
three months or less to be cash equivalents. The Company's investments consist
of money market accounts, commercial paper and corporate bonds.
Estimates and Assumptions -- The preparation of financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities at the date of the financial statements and the reported amounts of
revenue and expenses during the reported period. Actual results could differ
from those estimates.
Investments -- The Company accounts for investments in accordance with
Statement of Financial Accounting Standard No. 115, "Accounting for Certain
Investments in Debt and Equity Securities" (SFAS 115). Under SFAS 115, the
investments are reported at amortized cost and are classified as
held-to-maturity since the Company has the positive intent and ability to hold
the securities to maturity. At April 30, 1997, the Company's investments
consisted primarily of treasury notes, municipal bonds and corporate bonds.
Remaining maturities at the time of purchase are generally less than one year.
Fair value, which is based on quoted market prices, approximates carrying value.
At April 30, 1996, the Company had no investments.
F-8
<PAGE>
As of April 30, 1997, the Company's investments consisted of the following:
Maturity of Securities
Amortized Within One One to Five Five to Ten
Cost Basis Year Years Years
---------- ---------- ----------- -----------
Treasury notes........ $ 803,044 $ 803,044 $ -- $ --
Municipal bonds....... 1,737,175 303,711 1,160,809 272,655
Corporate bonds....... 4,932,500 4,932,500 -- --
---------- ---------- ---------- --------
$7,472,719 $6,039,255 $1,160,809 $272,655
========== ========== ========== ========
Inventory -- Inventory consists of miscellaneous marketing collateral and is
stated at the lower of cost or market, on a first-in, first-out basis.
Capitalized Software -- During the course of the development of the
Versatility Series software, the Company capitalized its development costs in
compliance with Statement of Financial Accounting Standards No. 86 "Accounting
for the Costs of Computer Software to be Sold, Leased or Otherwise Marketed."
The amount of software capitalized totaled $995,000 and, beginning in November
1994, was amortized over three years on a straight-line basis. In connection
with two major implementations of the Versatility Series product in July 1995,
the Company decided to add features and functions to the product that were
substantially different than those included in the software as originally
capitalized. Management determined that these features and functions
substantially altered the content of the product, effectively eliminating any
remaining useful life of the capitalized asset. Accordingly, the Company wrote
off the remaining asset of $829,000 in the first quarter of fiscal 1996.
Purchased Software -- Purchased software is amortized on a straight-line
basis over the shorter of five years or the useful life of the asset.
Property and Equipment -- Property and equipment are stated at cost.
Depreciation on property and equipment, including amortization on capital
leases, is computed on a straight-line basis over the estimated useful lives of
the assets, ranging from three to ten years. The leasehold improvements are
depreciated over the shorter of the useful life of the assets or the term of the
related lease. Repairs and maintenance are charged to operations as incurred.
Major improvements and betterments are capitalized.
Deferred Rent -- Deferred rent represents the effects of certain rent
concessions that are amortized over the life of the lease on a straight-line
basis.
Recapitalization -- In conjunction with the issuance of the Series A
redeemable convertible preferred stock (the "Series A Preferred Stock") (See
Note 7), the Company declared, on January 24, 1996, a 4,000 for 1 stock split on
its common stock, and changed the par value from $1.00 to $.01. The shares
outstanding have been restated to give effect to the stock split.
Redeemable Preferred Stock -- The Company accreted the increase in the
redemption value of its Series A Preferred Stock through a charge to retained
earnings through December 13, 1996 when the Series A Preferred Stock was
converted to common stock (See Note 7).
Currency Translation -- Assets and liabilities of the Company's foreign
operations are translated into U.S. dollars at the exchange rate in effect at
the balance sheet date and revenues and expenses are translated at average rates
in effect during the period. The unrealized currency translation adjustment is
reflected as a separate component of stockholders' equity on the balance sheet.
Revenue Recognition -- The Company's revenue is derived principally from two
sources: (i) product license fees for the use of the Company's software products
and (ii) service fees for implementation, maintenance, consulting and training
related to the Company's software products. The Company's contracts with its
customers often involve significant customization and installation obligations.
In these situations, license revenue is recognized based on the percentage of
completion method, which is based on achievement of certain milestones. When the
Company is under no obligation to install or customize the software, license
revenue is recognized upon shipment. Service revenue for implementation,
consulting services and training is generally recognized as the services are
performed. Revenue from maintenance services is recognized ratably over the term
of the service agreement.
F-9
<PAGE>
Revenue from hardware sales relating to the implementation of the Company's
VAX/VMS application is included in license revenue. These hardware sales were
$1.4 million for the year ended April 30, 1995. Hardware sales for the years
ended April 30, 1996 and 1997 were insignificant.
Income Taxes -- The Company accounts for income taxes under the provisions
of Statement of Financial Accounting Standards No. 109, "Accounting for Income
Taxes" (SFAS 109). SFAS 109 requires, among other things, using the liability
method of computing deferred income taxes.
Net Income Per Share -- Net income per share is computed using the weighted
average number of common and common equivalent shares outstanding during the
period. Common equivalent shares consist of redeemable convertible preferred
stock (using the as if converted method) and stock options (using the treasury
stock method). Common equivalent shares are excluded from the computation if
their effect is antidilutive except that pursuant to the Securities and Exchange
Commission Staff Accounting Bulletins and staff policy, such computations
include all common and common equivalent shares issued within the 12 months
preceding the filing date of the initial public offering as if they were
outstanding for all periods presented (using the treasury stock method).
Historical earnings per share prior to fiscal 1996 have not been presented since
such amounts are not deemed meaningful due to the significant change in the
Company's capital structure that occurred in connection with the public
offering.
In February 1997, Statement of Financial Accounting Standards No. 128,
"Earnings Per Share" (SFAS 128) was issued and will become effective during the
Company's fiscal year ending April 30, 1998. The Company expects that the
implementation of SFAS 128 should not have a material effect on the earnings per
share calculation.
Non-cash Transactions-- The Company acquired $47,544 and $437,384 of
equipment through capital leases during fiscal 1996 and 1997, respectively.
Concentration of Credit Risk -- Financial instruments which potentially
subject the Company to a concentration of credit risk principally consist of
accounts receivable. In fiscal 1996, two customers accounted for 25.7% and 22.2%
of the Company's total revenue, respectively, and in fiscal 1997, one customer
accounted for 23.6% of the Company's total revenue. As of April 30, 1997, 39.7%
of accounts receivable was concentrated with three customers. The Company
generally does not require collateral on accounts receivable as the majority of
the Company's customers are large, well established companies. The Company
provides reserves for credit losses and such losses have been insignificant.
Stock Based Compensation -- The Company grants stock options for a fixed
number of shares to employees with an exercise price not less than the estimated
fair value of the shares as determined by the Board of Directors (prior to the
initial public offering) or the market price of the stock at the date of grant.
The Company accounts for stock option grants in accordance with APB Opinion No.
25, "Accounting for Stock Issued to Employees". In October 1995, Statement of
Financial Accounting Standard No. 123, "Accounting for Stock-Based Compensation"
(SFAS 123) was issued, which is effective for fiscal years beginning after
December 15, 1995. As permitted by SFAS 123, the Company accounts for
stock-based compensation in accordance with APB Opinion No. 25 and, accordingly,
recognizes compensation expense for stock option grants only when the exercise
price is less than the fair value of the shares at the date of grant. Pro forma
net income and pro forma earnings per share disclosures are provided for
employee stock option grants made in fiscal 1997 as if the fair-value-based
method defined in SFAS 123 had been applied (see Note 9).
Reclassifications -- Certain amounts previously reported have been
reclassified to conform with current year presentation.
Recent Pronouncements -- In June 1997, Statement of Financial Accounting
Standard No. 130, "Reporting Comprehensive Income" and Statement of Financial
Accounting Standard No. 131, "Disclosures about Segments of an Enterprise and
Related Information" were issued, which are effective for fiscal years beginning
after December 15, 1997. The Company will comply with all requirements no later
than fiscal 1999.
2. BUSINESS ACQUISITION
Versatility (UK) Limited was acquired by the Company during December 1995.
The stockholders of the Company were the same stockholders of Versatility (UK)
Limited, with proportionate ownership in both companies being the same. The
acquisition was completed by exchanging 2,000,000 shares of common stock of the
Company for all of the outstanding capital stock of
F-10
<PAGE>
Versatility (UK) Limited. The shares of Versatility (UK) Limited were
subsequently retired. The business combination has been treated as an exchange
between companies under common control, which is accounted for in a manner
similar to a pooling of interests. Accordingly, the consolidated financial
statements for all periods prior to the combination have been restated to
reflect the combined operations. Intercompany transactions have been eliminated.
The following is a reconciliation of revenue and earnings previously
reported by the Company for the year ended April 30, 1995 with the combined
amounts currently presented in the financial statements for that year:
<TABLE>
<CAPTION>
Versatility Intercompany Consolidated
Company (UK) Limited Royalties Amounts
------- ------------ --------- -------
<S> <C>
Net sales................... $10,516,837 $1,801,964 ($833,650) $11,485,151
Income from operations...... 951,896 1,028,615 -- 1,980,511
</TABLE>
Included in consolidated results of operations for the year ended April 30,
1996 are the following results of the previously separate companies for the
period of May 1, 1995 to December 31, 1995:
<TABLE>
<CAPTION>
Versatility Intercompany Consolidated
Company (UK) Limited Royalties Amounts
------- ------------ --------- -------
<S> <C>
Net sales................. $6,688,983 $2,530,343 ($571,361) $8,647,965
Income from operations.... 191,137 344,775 -- 535,912
</TABLE>
3. RELATED PARTY TRANSACTIONS
Related Party Receivables -- The Company has the following non-current
receivables from related parties or affiliated entities at April 30, 1996 and
1997 as follows:
April 30,
----------------------
1996 1997
--------- ---------
Stockholder loan.................... $102,765 $117,755
Other............................... 14,456 35,626
--------- ---------
$117,221 $153,381
The stockholder loan accrues interest at the prime rate. The loans and any
interest accrued thereunder is payable on the earliest of (i) demand and (ii)
November 6, 1997. Included in the stockholder loan for fiscal 1996 and 1997 is
$37,221 and $4,740, respectively, of accrued interest.
The Company leased office space from Serenity Real Properties Limited
Partnership (the "Partnership"). The limited partners are stockholders in the
Company and the Company was the general partner.
Rent expense paid to the Partnership for fiscal 1995, 1996 and 1997 was
$120,000, $120,000 and $50,000, respectively.
Sale of Partnership Interest and Termination of Lease
Prior to October 31, 1996, the Company was the 1% general partner of the
Partnership of which Mr. Ronald R. Charnock, the Company's President and Chief
Executive Officer, Mr. Marcus W. Heth, the Company's Senior Vice President,
Technologies, and Mr. Keith P. Roberts, the Company's Director of Product
Development, were the limited partners holding the remaining 99% of the
partnership interests (the "Limited Partners"). The Partnership is the owner of
an office building in Alexandria, Virginia (the "Property"), which was the
Company's headquarters until October 1994 and which was leased by the Company
under a lease expiring in April 1997 and providing for monthly rental payments
of $10,000. In addition, the Company had guaranteed a mortgage loan made by a
commercial bank to the Partnership, which had an outstanding balance of $614,000
at September 30, 1996. This loan was also guaranteed by each of the Limited
Partners and was collateralized by a mortgage on the Property.
On October 31, 1996, the Company sold its general partnership interest in
the Partnership, for consideration equal to its capital account of $3,131, to
Serenity L.L.C., whose members are the Limited Partners. In connection with the
sale of its general partnership interest in the Partnership, the Company made to
the Partnership a loan of $519,305 evidenced by a Deed of Trust Note
F-11
<PAGE>
which bears interest at the same rate and is payable upon the earliest of (i)
the sale of the Property, (ii) demand by the Company and (iii) October 31, 1997.
The Deed of Trust Note is collateralized by a mortgage on the Property and is
guaranteed by each of the Limited Partners. The Partnership used the proceeds of
this loan to repay its loan from the bank and discharge its mortgage on the
Property. In connection with these transactions, the Partnership agreed to the
termination of its lease with the Company.
4. ACCRUED LIABILITIES
Accrued liabilities consisted of the following as of April 30, 1996 and
1997:
April 30,
------------------------
1996 1997
---------- ----------
Accrued commissions and salaries............... $ 335,395 $ 511,676
Accrued bonuses................................ 461,586 362,467
Accrued payroll taxes and withholdings......... 341,397 195,001
Accrued vacation............................... 203,219 289,034
Sales tax payable (credit)..................... (44,529) 334,410
Other.......................................... 96,585 324,068
---------- ----------
$1,393,653 $2,016,656
========== ==========
5. LINE OF CREDIT
On August 28, 1996, the Company obtained a new $2.5 million operating line
of credit from a bank for financing accounts receivable and working capital and
a new $1.0 million equipment line of credit from the same bank to finance
acquisition of property and equipment. These lines of credit expire on August 5,
1997 and are secured by all of the Company's assets. The operating and equipment
lines of credit bear interest at the prime rate plus 0.5% and 1.0%,
respectively. The weighted average interest rate for fiscal 1996 and 1997 was
9.1% and 9.0%, respectively. The lines of credit are collateralized with a first
priority security interest in all assets. The lines of credit have various
covenants, including limitations on disposition of assets. The Company also must
maintain certain financial ratios and is prohibited from paying cash dividends.
The Company is in compliance with all debt covenants. The amount outstanding
under the operating line plus accrued interest at April 30, 1997 was $2.3
million. The amount borrowed under the equipment line was $437,384 at April 30,
1997 and is included with the capital lease payable.
6. COMMITMENTS AND CONTINGENCIES
Operating Leases --The Company leases office space, equipment and
automobiles under noncancelable operating leases expiring through 2004. The
leases for office space have abatements that range from two to six months and
scheduled annual rent escalations of approximately 3%. None of the equipment or
automobile agreements contain unusual renewal or purchase options. Total rent
expense for the years ended April 30, 1995, 1996 and 1997 was $514,963, $876,093
and $1.4 million, respectively.
As of April 30, 1996, future minimum lease payments for the operating leases
are as follows:
Years Ending April 30,
----------------------
1998.......................................... $ 1,373,342
1999.......................................... 1,314,992
2000.......................................... 1,210,442
2001.......................................... 1,014,924
2002.......................................... 761,819
Thereafter.................................... 2,015,145
-----------
Total......................................... $ 7,690,664
===========
F-12
<PAGE>
Capital Leases -- The Company is obligated under capital leases for various
office equipment. As of April 30, 1997, future minimum lease payments for the
capital leases are as follows:
Years Ending April 30,
----------------------
1998................................................ $224,251
1999................................................ 179,916
2000................................................ 122,747
2001................................................ 7,920
--------
Total............................................... 534,834
Less: Imputed interest at 10%....................... (66,645)
--------
Present value of future minimum lease payments...... $468,189
========
Legal Proceedings -- One of the Company's former VARs has filed a claim for
arbitration (non-binding) against the Company asserting, among other things,
that the Company misrepresented the functionality of its products and wrongfully
terminated the VAR's reseller agreement, and claiming not less than $1.0 million
in damages. The Company defended this action in arbitration proceedings that
ended in April 1997. Upon conclusion, the arbitration panel awarded $267,000 in
net damages to the plaintiff in the proceedings. The Company has challenged the
findings of the arbitration panel on the grounds that the arbitrator appointed
by the plaintiff was also a witness to the actions of the plaintiff and the
Company, which led to the action. The Company has filed a motion to have the
findings vacated. The Company intends to vigorously pursue this and all other
avenues available through which the findings of the arbitration panel might be
vacated. Because all these avenues are in a preliminary stage, the Company
cannot predict the outcome of such actions. While neither the Company nor its
legal counsel can offer any assurances that the findings of the arbitration
panel might be overturned, management currently believes that the resolution of
this matter will not have a material adverse impact on its financial position
and therefore has not recorded a loss accrual. However, if the motion to
overturn the decision is denied, the outcome could materially affect
consolidated results of operations in a given year or quarter.
7. REDEEMABLE CONVERTIBLE PREFERRED STOCK
On January 24, 1996, the Company issued 992,061 shares of the Company's
Series A Preferred Stock. Shares of Series A Preferred Stock have the same
voting rights as common stock. On December 13, 1996 each share of Series A
Preferred Stock converted into one share of common stock as part of the public
offering. Subsequent to the public offering, the Second Amended and Restated
Certificate of Incorporation was filed, which deleted all references to the
formerly designated Series A Preferred Stock. In addition, 2,000,000 shares of
preferred stock were authorized. The Board of Directors has the authority to
issue the preferred stock in one or more series and to fix the rights,
preferences, privileges and restrictions thereof.
8. STOCKHOLDERS' EQUITY
As of April 30, 1995, the Company had 5,000 shares of common stock
authorized, 1,000 shares issued and outstanding, and no preferred stock
authorized, issued or outstanding. In January 1996, a recapitalization of the
Company was effected. A new corporation was formed, whereby 4,000 shares of
Versatility Inc. common stock were issued for every one share previously
outstanding. The total authorized shares of common stock were increased to
20,000,000 and 992,061 shares of Series A Preferred Stock were authorized.
Subsequently, the Series A Preferred Stock was canceled and 2,000,000 shares of
preferred stock was authorized (see Note 7).
9. BENEFIT PLANS
401(k) Plan. The Company has a savings and investment plan (the "Plan")
which covers employees of the Company and that qualifies under section 401(k) of
the Internal Revenue Code. All full-time employees who are at least 21 years old
and have completed at least six months of service are eligible to participate.
Under the terms of the Plan, employees may defer a portion of their salaries as
employee contributions. A discretionary corporate contribution is determined
annually. The Company made a contribution of $44,191 in fiscal 1997. No
contributions were made in fiscal 1995 and 1996. Employee contributions are
vested immediately; however, discretionary company contributions are 100% vested
upon three years of service. The Company is not obligated under any other post
retirement benefit plans.
Stock Option Plans. The 1996 Stock Option Plan (the "1996 Plan") provides
for the granting of incentive and nonqualified stock options to purchase up to
750,000 shares of common stock. The option price must be equal to or greater
than the fair market value at the date of grant. Options are granted for terms
of up to ten years and most are exercisable in cumulative annual
F-13
<PAGE>
increments of 20% each year, with the first 20% becoming exercisable upon the
date of grant. The 1996 Plan superceded the 1995 Employee Plan (the "Employee
Plan") and the 1995 Incentive Plan (the "Incentive Plan") (collectively, the
"1995 Plans"), and on September 30, 1996 the Board of Directors determined that
no further options would be granted under the 1995 Plans.
Information regarding the Company's stock option plans is summarized below:
<TABLE>
<CAPTION>
1995 Plans 1996 Plan
---------- ---------
Employee Plan Incentive Plan
------------- --------------
Weighted Weighted Weighted
Average Average Average
Number Exercise Number Exercise Number Exercise
Outstanding Price Outstanding Price Outstanding Price
----------- ----- ----------- ----- ----------- -----
<S> <C>
May 1, 1995 options outstanding....... -- $ -- -- $ -- -- $ --
Granted............................. 228,758 0.80 62,569 0.80 -- --
Exercised........................... -- -- -- -- -- --
Cancelled........................... -- -- -- -- -- --
------- --------- -------- -------- ------- -------
April 30, 1996 options outstanding.... 228,758 0.80 62,569 0.80 -- --
Granted............................. -- -- -- -- 139,000 10.50
Exercised........................... (29,194) 0.80 (746) 0.80 -- --
Cancelled........................... -- -- -- -- -- --
------- ---------- -------- -------- ------- -------
April 30, 1997 options outstanding.... 199,564 $ 0.80 61,823 $ 0.80 139,000 $ 10.50
======= ========= ======== ======== ======= =======
Exercisable as of April 30, 1996...... 228,758 $ 0.80 12,514 $ 0.80 -- $ --
======= ========= ======== ======== ======= =======
Exercisable as of April 30, 1997...... 199,564 $ 0.80 24,282 $ 0.80 32,300 $ 10.50
======= ========= ======== ======== ======= =======
Available for future grant............ -- -- 611,000
======= ======== =======
</TABLE>
Options to purchase 320,000 shares of Common Stock were granted to an
officer on January 17, 1996. These options are not part of the above plans.
These stock options vested immediately with an exercise price of $.80 per share,
which was determined by the Board of Directors of the Company to be the fair
market value. None of these options were exercised or cancelled.
1996 Employee Stock Purchase Plan. On September 30, 1996, the Board of
Directors adopted the 1996 Employee Stock Purchase Plan (the "1996 Purchase
Plan"). The 1996 Purchase Plan took effect on May 1, 1997 and provides for the
issuance of a maximum of 100,000 shares of common stock. The 1996 Purchase Plan
will enable eligible employees to purchase common stock at 85% of the lower of
the fair market value of the Company's common stock on the first day or the last
day of each six-month purchase period. No shares have been purchased under the
1996 Purchase Plan as of April 30, 1997.
The Company has computed the pro forma disclosures required under SFAS 123
for all stock options granted as of April 30, 1997 using the Black-Scholes
option pricing model prescribed by SFAS 123. The weighted average fair value at
date of grant for options granted during fiscal 1996 and 1997 was $0.45 and
$5.96, respectively.
The assumptions used and the weighted average information for the years
ended April 30, 1996 and 1997 are as follows:
1996 1997
---- ----
Risk-free interest rates........................ 6.0% 6.0%
Expected dividend yield......................... 0.0% 0.0%
Expected lives.................................. 3.5 years 3.5 years
Expected volatility............................. 75.0% 75.0%
F-14
<PAGE>
Stock options outstanding and exercisable at April 30, 1997 follows:
Options Outstanding Options Exercisable
------------------- -------------------
Weighted Average
----------------
Remaining Weighted
Exercise Contractual Average
Price Number Life in Exercise Number Exercise
Range Outstanding Years Price Exercisable Price
- ----- ----------- ----- ----- ----------- -----
$ 0.80 582,133 3.78 $ 0.80 543,846 $ 0.80
$10.50 139,000 9.58 10.50 32,300 10.50
The effect of applying SFAS 123 would be as follows:
1996 1997
---- ----
Pro forma net income............................ $459,933 $1,672,750
Pro forma net income per share.................. $ 0.80 $ 0.26
10. INCOME TAXES
The provision for income taxes is computed based on pretax accounting
income. Deferred income taxes include the tax effects of temporary differences
between pretax accounting income and tax income. A deferred income tax liability
has been recorded to reflect the temporary differences between the financial
statements and the tax returns.
The provision for income taxes at April 30, 1995, 1996 and 1997 consist of
the following:
<TABLE>
<CAPTION>
1995 1996 1997
--------- ---------- -----------
<S> <C>
Current provision:
Federal.................................... $ 335,267 $ 284,641 $1,019,313
Foreign.................................... 51,518 78,520 14,971
State...................................... 39,443 51,229 230,434
--------- --------- -----------
Total current provision............... 426,228 414,390 1,264,718
--------- --------- -----------
Deferred provision:
Federal.................................... 258,328 (175,496) (241,705)
Foreign.................................... -- -- --
State...................................... 30,391 (31,585) (58,611)
--------- --------- -----------
Total deferred provision (benefit).... 288,719 (207,081) (300,316)
--------- --------- -----------
Total provision for income taxes................ $ 714,947 $ 207,309 $ 964,402
========= ========= ===========
</TABLE>
The approximate tax effects of each type of temporary difference that gave
rise to the Company's deferred tax assets and liabilities are as follows:
1995 1996 1997
---- ---- ----
Deferred tax assets:
Vacation expense...................... $ 19,125 $ 70,309 $ 84,560
Accrued bonus expenses................ 78,703 -- --
Bad debt reserve...................... 26,735 59,929 146,046
Rent expense.......................... -- 84,233 129,712
Deferred revenue...................... -- -- 204,356
Other................................. 2,202 -- 123
---------- --------- ---------
Total deferred tax assets............. 126,765 214,471 564,797
Valuation allowance................... (126,765) -- --
---------- --------- ---------
Net deferred tax assets............... $ -- $ 214,471 $ 564,797
========== ========= =========
Deferred tax liabilities:
Software costs........................ $ 315,030 $ -- $ --
Accelerated depreciation and other.... 12,424 333,634 85,136
---------- --------- ---------
Total deferred tax liabilities........ $ 327,454 $ 333,634 $ 85,136
========== ========= =========
F-15
<PAGE>
The provision for income taxes differs from the amount computed by applying the
statutory U.S. Federal income tax rate to income before taxes as a result of the
following:
<TABLE>
<CAPTION>
1995 1996 1997
-------- -------- --------
<S> <C>
U.S. Federal statutory rate............................. 34.0% 34.0% 34.0%
State income taxes, net of Federal income tax benefit... 4.0 4.0 4.6
Impact of foreign earnings and taxes.................... (1.0) (1.7) --
General business credits................................ (3.1) -- --
Benefit from foreign sales corporation.................. -- (13.4) (5.0)
Other................................................... 2.4 1.0 (0.5)
------- ------- ------
Effective tax rate...................................... 36.3% 23.9% 33.1%
======= ======= ======
</TABLE>
11. BUSINESS SEGMENT AND GEOGRAPHIC AREA INFORMATION
Geographic Area Information -- The Company operates in one industry segment,
the development and marketing of computer software programs and related
services. The Company markets its products worldwide and operations can be
grouped into two main geographic areas. Pertinent financial data by major
geographic area is summarized below.
<TABLE>
<CAPTION>
Eliminations
and Other
United United Corporate
States Kingdom Expenses Consolidated
------ ------- -------- ------------
<S> <C>
Years ending April 30, 1995:
Revenue................... $ 10,516,837 $1,801,964 $ (833,650) $11,485,151
Income from operations.... 2,969,058 1,028,615 (2,017,162) 1,980,511
Identifiable assets....... 3,834,339 453,273 -- 4,287,612
1996:
Revenue................... $ 14,241,435 $2,991,493 $ (697,656) $16,535,272
Income from operations.... 5,250,464 1,060,603 (5,450,028) 861,039
Identifiable assets....... 9,518,498 112,564 -- 9,631,062
1997:
Revenue................... $23,776,666 $3,831,683 $ (256,454) $27,351,895
Income from operations.... 8,610,693 270,548 (6,375,568) 2,505,673
Identifiable assets....... 45,278,885 1,554,134 -- 46,833,019
</TABLE>
The Company charges a royalty to Versatility (UK) Limited for software sales
of the Company's products sold by Versatility (UK) Limited. The royalty is
intended to cover primarily software development expense and marketing expense.
Versatility (UK) Limited reflects the royalty as a cost of revenue. For fiscal
1995, 1996 and 1997 the royalty was $833,650, $697,656 and $256,454,
respectively. These amounts were eliminated in consolidation and are not
reflected in the revenue and income from operations amounts above.
Included in United States revenue is $68,654, $3.8 million and $7.4 million
of export revenue for fiscal 1995, 1996 and 1997, respectively. For fiscal 1996
and 1997, $2.1 million and $4.4 million of United States export sales were
generated in the United Kingdom, with the remaining sales in both fiscal 1995,
1996 and 1997 generated in Canada and Mexico. Included in United Kingdom revenue
is $617,544, $527,681 and $1.3 million of export revenue for fiscal 1995, 1996
and 1997, respectively, which was mainly generated in Western Europe, exclusive
of the United Kingdom.
Significant customers -- The Company had the following customers with
revenue in excess of 10%:
1995 1996 1997
-------- -------- --------
Customer A........ -- 25.7% 23.6%
Customer B........ -- 22.2% --
Customer C........ 17.7% -- --
F-16
<PAGE>
12. INTEREST INCOME (EXPENSE), NET
Interest income (expense), net includes interest income of $9,369, $66,643
and $544,096 in fiscal 1995, 1996 and 1997, respectively, and interest expense
of $18,346, $63,503, and $140,107 in fiscal 1995, 1996 and 1997, respectively.
F-17
<PAGE>
Versatility Inc.
Schedule II-Valuation and Qualifying Accounts and Reserves
<TABLE>
<CAPTION>
Additions
---------------------------
Charged to Charged to
Balance at Costs and Other Balance at
Description May 1, Expenses Accounts Deductions April 30
----------- ------ -------- -------- ---------- --------
Fiscal 1995
-----------
<S> <C>
Allowance for doubtful accounts $ 70,354 $102,241 $102,241 $ 70,354
<CAPTION>
Fiscal 1996
-----------
Allowance for doubtful accounts 70,354 122,424 34,904 157,874
<CAPTION>
Fiscal 1997
-----------
Allowance for doubtful accounts 157,874 443,740 245,419 356,195
</TABLE>
S-1
<PAGE>
Index to Exhibits
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
- ------ -----------------------
<S> <C>
3.1 Amended and Restated Certificate of Incorporation of the Company, as amended (1)
3.2 Form of Second Amended and Restated Certificate of Incorporation of the Company (1)
3.3 Amended and Restated By-laws of the Company (1)
4.1 Specimen Certificate representing the Common Stock (1)
4.2 Registration Rights Agreement between the Company and certain securityholders, dated as of
January 24, 1996 (1)
10.1 1995 Employee Stock Option Plan (1)
10.2 1995 Incentive Stock Option Plan (1)
10.3 1996 Employee Stock Purchase Plan (1)
10.4 1996 Stock Option Plan (1)
10.5 Lease Agreement between the State of California Public Employees' Retirement System and the
Company dated July 10, 1994, as amended (1)
10.6 Loan and Security Agreement between the Company and Silicon Valley Bank dated as of August 28,
1996 (1)
10.7 Deed of Trust Note dated as of October 31, 1996 issued by Serenity Real Properties Limited
Partnership to the Company (1)
10.8 * Lease Agreement between the Commonwealth Atlantic Land II Inc. and the Company dated June 5,
1997
11.1 * Computation of Earnings Per Share
21.1 * Subsidiaries
23.1 * Consent of Deloitte & Touche LLP
27.1 * Financial Data Schedule
</TABLE>
* Filed herewith.
(1) Incorporated by reference to the Company's Registration Statement on
Form S-1 (File No. 333-13771), as amended.
Exhibit 10.8
================================================================================
DEED OF LEASE
BETWEEN
Commonwealth Atlantic Land II Inc.,
as Landlord,
AND
Versatility Inc.
as Tenant
Dated: May ___, 1997
================================================================================
For Premises Located At
The Greenwood Corporate Center
12015 Lee Jackson Highway
Fairfax, Virginia 22033
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1: BASIC LEASE PROVISIONS...............................................1
1.1 Premises..................................................1
1.2 Building..................................................1
1.3 Term......................................................1
1.4 Commencement Date.........................................1
1.5 Expiration Date...........................................1
1.6 Base Rent Paid Upon Execution. ...........................1
1.7 Base Rent.................................................1
1.8 Security Deposit..........................................2
1.9 Base Year for Operating Expenses..........................2
1.10 Base Year for Real Estate Taxes...........................2
1.11 Tenant's Proportionate Share of Operating Expenses. ......2
1.12 Tenant's Proportionate Share of Real Estate Taxes.........2
1.13 Parking Space Allocation..................................2
1.14 Permitted Use.............................................2
1.15 Tenant's Trade Name.......................................3
1.16 Broker(s).................................................3
1.17 Landlord's Address for Payment of Rent....................3
1.18 Landlord's Address for Notice Purposes....................3
1.19 Tenant's Address..........................................3
1.20 Intentionally Deleted.....................................3
ARTICLE 2: DEFINITIONS..........................................................4
2.1 Additional Rent...........................................4
2.2 Agents....................................................4
2.3 Alterations...............................................4
2.4 Calendar Year.............................................4
2.5 Common Area...............................................4
2.6 Event of Bankruptcy.......................................4
2.7 Event of Default..........................................4
2.8 Guarantor.................................................4
2.9 Hazardous Materials.......................................4
2.10 Herein, hereafter, hereunder and hereof...................5
2.11 Interest Rate.............................................5
2.12 Force Majeure.............................................5
2.13 Land......................................................5
2.14 Lease Year................................................5
2.15 Legal Requirements........................................5
2.16 Mortgage..................................................5
2.17 Mortgagee.................................................5
2.18 Normal Business Hours.....................................5
2.19 Operating Expenses........................................6
2.20 Parking Facilities........................................6
2.21 Real Estate Taxes.........................................6
2.22 Rent......................................................6
2.23 Rules and Regulations.....................................6
2.24 Substantial Completion....................................6
2.25 Substantial Part..........................................6
2.26 Tenant's Property.........................................6
2.27 Work Agreement............................................6
</TABLE>
-ii-
<PAGE>
<TABLE>
<S> <C>
ARTICLE 3: THE PREMISES.........................................................6
3.1 Lease of Premises.........................................6
3.2 Landlord's Reservations...................................7
ARTICLE 4: TERM.................................................................7
4.1 Lease Term................................................7
ARTICLE 5: RENT.................................................................8
5.1 Base Rent.................................................8
5.2 Payment of Base Rent......................................8
5.3 Additional Rent...........................................8
5.4 Acceptance of Rent........................................8
ARTICLE 6: SECURITY DEPOSIT......................................................9
ARTICLE 7: OPERATING EXPENSES...................................................9
7.1 Tenant's Proportionate Share of Operating Expenses........9
7.2 Operating Expenses Defined................................9
7.3 Exclusions from Operating Expenses.......................12
7.4 Estimated Payments.......................................13
7.5 Actual Operating Expenses................................14
7.6 Tenant's Right to Audit..................................14
ARTICLE 8: TAXES...............................................................15
8.1 Tenant's Proportionate Share of Real Estate Taxes........15
8.2 Estimated and Actual Payments............................16
ARTICLE 9: PARKING.............................................................17
9.1 Parking Spaces...........................................17
9.2 Changes to Parking Facilities............................17
ARTICLE 10: USE................................................................17
10.1 General..................................................17
10.2 Tenant's Personal Property...............................17
10.3 Indoor Air Quality.......................................18
ARTICLE 11: ASSIGNMENT AND SUBLETTING..........................................18
11.1 General..................................................18
11.2 Restriction on Transfer..................................18
11.3 Landlord's Options.......................................19
11.4 Additional Conditions; Excess Rent.......................19
11.5 Reasonable Disapproval...................................20
11.6 Release..................................................21
11.7 Administrative and Attorneys' Fees.......................21
11.8 Material Inducement......................................22
ARTICLE 12: MAINTENANCE AND REPAIR.............................................22
12.1 Landlord's Obligation....................................22
12.2 Tenant's Obligation......................................22
12.3 Landlord's Right to Maintain or Repair...................23
ARTICLE 13: ALTERATIONS........................................................23
</TABLE>
-iii-
<PAGE>
<TABLE>
<S> <C>
13.1 Initial Construction.....................................23
13.2 Tenant's Alterations.....................................23
13.3 Mechanics' Liens.........................................25
13.4 Landlord Alterations.....................................25
ARTICLE 14: SIGNS..............................................................26
14.1 General..................................................26
ARTICLE 15: TENANT'S PROPERTY..................................................26
15.1 Tenant's Equipment.......................................26
15.2 Removal of Tenant's Property.............................27
ARTICLE 16: RIGHT OF ENTRY.....................................................27
16.1 General..................................................27
ARTICLE 17: INSURANCE..........................................................28
17.1 Insurance Rating.........................................28
17.2 Liability Insurance......................................28
17.3 Insurance for Tenant's Property..........................29
17.4 Additional Insurance.....................................29
17.5 Requirements of Insurance Coverage.......................29
17.6 Waiver of Subrogation....................................30
17.7 Security.................................................30
17.8 Landlord's Insurance.....................................30
17.9 Coverage.................................................31
ARTICLE 18: LANDLORD SERVICES AND UTILITIES....................................31
18.1 Ordinary Services to the Premises........................31
18.2 After-Hours Services to the Premises.....................32
18.3 Utility Charges..........................................32
ARTICLE 19: LIABILITY OF LANDLORD..............................................33
19.1 No Liability.............................................33
19.2 Indemnity................................................34
19.3 Limitation on Recourse...................................34
ARTICLE 20: RULES AND REGULATIONS..............................................35
20.1 General..................................................35
ARTICLE 21: DAMAGE AND CONDEMNATION............................................35
21.1 Damage to the Premises...................................35
21.2 Condemnation.............................................36
ARTICLE 22: DEFAULT............................................................37
22.1 Events of Default........................................37
22.2 Landlord's Remedies......................................38
22.3 Tenant's Liability for Damages...........................38
22.4 Liquidated Damages.......................................39
22.5 Rights Upon Possession...................................40
22.6 No Waiver................................................40
22.7 Right of Landlord to Cure Tenant's Default...............41
22.8 Late Payment.............................................41
22.9 Landlord's Lien..........................................41
</TABLE>
-iv-
<PAGE>
<TABLE>
<S> <C>
22.10 Landlord Default.........................................42
ARTICLE 23: BANKRUPTCY.........................................................42
23.1 Event of Bankruptcy......................................42
23.2 Remedies.................................................43
ARTICLE 24: MORTGAGES..........................................................44
24.1 Subordination............................................44
24.2 Mortgagee Protection.....................................45
24.3 Modification Due to Financing............................46
24.4 Attornment. .............................................46
ARTICLE 25: SURRENDER AND HOLDING OVER.........................................47
25.1 Surrender of the Premises................................47
25.2 Holding Over.............................................47
ARTICLE 26: QUIET ENJOYMENT....................................................48
26.1 General..................................................48
ARTICLE 27: TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS...................48
27.1 Definition...............................................48
27.2 General Prohibition......................................48
27.3 Notice...................................................49
27.4 Survival.................................................49
ARTICLE 28: MISCELLANEOUS......................................................50
28.1 No Representations by Landlord...........................50
28.2 No Partnership...........................................50
28.3 Brokers..................................................50
28.4 Estoppel Certificate.....................................50
28.5 Waiver of Jury Trial.....................................51
28.6 Notices..................................................52
28.7 Invalidity of Particular Provisions......................52
28.8 Gender and Number........................................52
28.9 Benefit and Burden.......................................52
28.10 Entire Agreement.........................................53
28.11 Authority................................................53
28.12 Attorneys' Fees..........................................53
28.13 Governing Law............................................53
28.14 Time of the Essence......................................53
28.15 Force Majeure............................................54
28.16 Headings.................................................54
28.17 Memorandum of Lease......................................54
28.18 Landlord's Relocation Option.............................54
28.19 Attorney-in-Fact.........................................54
28.20 Effectiveness............................................54
28.21 Exhibits and Riders......................................55
28.22 Transportation Management................................55
28.23 Mortgagee's Consent......................................55
28.24 Termination Option.......................................55
28.25 Option to Renew..........................................55
</TABLE>
-v-
<PAGE>
LIST OF EXHIBITS
----------------
Exhibit A Plan Showing Premises [NOT TO SCALE]
Exhibit B Work Agreement
Exhibit C Rules and Regulations
Exhibit D Declaration of Commencement Date
Exhibit E SNDA Form
-vi-
<PAGE>
DEED OF LEASE
THIS DEED OF LEASE ("Lease") is made as of the ____ day of
____________, 1997 (for reference purposes only, "Date of Lease"), by and
between Commonwealth Atlantic Land II Inc., a Virginia corporation ("Landlord"),
and Versatility Inc., a Delaware corporation ("Tenant").
Landlord and Tenant, intending legally to be bound, hereby covenant and
agree as set forth below.
ARTICLE 1: BASIC LEASE PROVISIONS
The following are the basic terms of this Lease which shall have the
meanings indicated:
1.1 Premises. The Premises is deemed to be approximately 9,033 square
feet of rentable area, located on the second (2nd) floor of the Building as
outlined on Exhibit A attached hereto and made a part hereof.
1.2 Building. The Building contains 150,961 square feet of rentable
area and includes all alterations, additions, improvements, restorations or
replacements now or hereafter made thereto, including the Common Area, with an
address of 12015 Lee Jackson Highway, Fairfax, Virginia, 22033.
1.3 Term. Approximately seven (7) years and six (6) months.
1.4 Commencement Date. The earlier of Substantial Completion or July
15, 1997, subject to adjustment as set forth in Article 4.
1.5 Expiration Date. December 31, 2004, unless sooner terminated in
accordance with the provisions of this Lease.
1.6 Base Rent Paid Upon Execution. $14,302.25 attributable to the first
(1st) month of the first Lease Year.
1.7 Base Rent. In accordance with the following schedule:
<PAGE>
Lease Year Annual Base Rent Monthly Installment
- ---------- ---------------- -------------------
1 $171,627.00 $14,302.25
2 $176,775.81 $14,731.32
3 $182,105.28 $15,175.44
4 $187,525.08 $15,627.09
5 $193,125.54 $16,093.80
6 $206,674.04 $17,222.92
7 $212,907.81 $17,742.32
8.* $219,321.24 $18,276.77
* Partial Lease Year
1.8 Security Deposit. Intentionally Deleted.
1.9 Base Year for Operating Expenses. The Base Year for calculation of
Operating Expenses shall be Calendar Year 1997.
1.10 Base Year for Real Estate Taxes. The Base Year for calculation of
Real Estate Taxes shall be Calendar Year 1997.
1.11 Tenant's Proportionate Share of Operating Expenses. Six percent
(6%) of the Operating Expenses allocable to the Building which is based upon the
Premises containing 9,033 square feet of rentable area (on the Commencement
Date) of the Building containing 150,961 square feet of rentable area (on the
Commencement Date).
1.12 Tenant's Proportionate Share of Real Estate Taxes. Six percent
(6%) of the Real Estate Taxes allocable to the Building which is based upon the
Premises containing 9,033 square feet of rentable area (on the Commencement
Date) of the Building containing 150,961 square feet of rentable area (on the
Commencement Date).
1.13 Parking Space Allocation. Twenty-nine (29) unreserved,
non-exclusive parking spaces in the Parking Facilities.
1.14 Permitted Use. General office use and for no other purpose.
1.15 Tenant's Trade Name. Intentionally Deleted.
1.16 Broker(s).
-2-
<PAGE>
Landlord's: CB Commercial Real Estate Group, Inc.
Tenant's: Barnes, Morris, Pardoe & Foster
1.17 Landlord's Address for Payment of Rent. of Rent.
c/o CB Commercial Real Estate, Inc.
12015 Lee Jackson Highway, Suite 130
Fairfax, Virginia 22033
Attn: Property Manager
1.18 Landlord's Address for Notice Purposes.
c/o Commonwealth Atlantic Properties, Inc.
Main Street Centre
600 East Main Street
Suite 2300
Richmond, Virginia 23219
Attn: Jeffrey T. Sherman, Senior Vice President
With a copy to:
McGuire Woods Battle & Boothe, L.L.P.
8280 Greensboro Drive, Suite 900
McLean, Virginia 22102
Attention: John H. Toole, Esquire
1.19 Tenant's Address.
Before occupancy:
Versatility Inc.
11781 Lee Jackson Highway, Suite 700
Fairfax, Virginia 22033
Attn: Mr. Don Yount
After Occupancy:
Versatility Inc.
11781 Lee Jackson Highway, Suite 700
Fairfax, Virginia 22033
Attn: Mr. Don Yount
1.20 Intentionally Deleted.
ARTICLE 2: DEFINITIONS
In addition to the terms defined in Article 1 above, the following
defined terms are used in this Lease and shall have the meanings indicated.
2.1 Additional Rent. As defined in Section 5.3.
-3-
<PAGE>
2.2 Agents. Officers, partners, directors, trustees, mortgagees,
collateral agents, employees, agents, licensees, customers, contractors,
invitees, affiliates, sublessees and assignees.
2.3 Alterations. Alterations, decorations, additions or improvements of
any kind or nature to the Premises or the Building, whether structural or
non-structural, interior, exterior or otherwise.
2.4 Calendar Year. A period of twelve (12) months commencing on each
January 1 during the Term, except that the first Calendar Year shall be that
period from and including the Commencement Date through December 31 of that same
year, and the last Calendar Year shall be that period from and including the
last January 1 of the Term through the earlier of the Expiration Date or date of
Lease termination.
2.5 Common Area. All areas, improvements, facilities and equipment from
time to time designated by Landlord for the common use or benefit of Tenant,
other tenants of the Building and their Agents, including, without limitation,
entrances and exits, landscaped areas, exterior lighting, loading areas,
pedestrian walkways, roadways, sidewalks, atriums, courtyards, concourses,
stairs, ramps, washrooms, maintenance and utility rooms and closets, exterior
utility lines, hallways, lobbies, elevators and their housing and rooms, common
window areas, common walls, common ceilings, common trash areas and Parking
Facilities. Landlord may in its reasonable discretion designate other land and
improvements outside the boundaries of the Land and Building to be part of the
Common Area, provided that such other land and improvements have a reasonable
and functional relationship to the Land and Building.
2.6 Event of Bankruptcy. As defined in Article 23.
2.7 Event of Default. As defined in Article 22.
2.8 Guarantor. Intentionally Deleted.
2.9 Hazardous Materials. As defined in Article 27.
2.10 Herein, hereafter, hereunder and hereof. Under this Lease,
including, without limitation, all Exhibits and any Riders.
2.11 Interest Rate. Per annum interest rate listed as the base rate on
corporate loans at large U.S. money center commercial banks as published from
time to time under "Money Rates" in The Wall Street Journal plus two percent
(2%), but in no event greater than the maximum rate permitted by law. In the
event The Wall Street Journal
-4-
<PAGE>
ceases to publish such rates, Landlord shall choose at Landlord's sole
discretion a similar publication which publishes such rates.
2.12 Force Majeure. As defined in Section 28.15.
2.13 Land. The piece or parcel of land described herein and all rights,
easements and appurtenances thereunto belonging or pertaining, or such portion
thereof as shall be allocated by Landlord to the Building.
2.14 Lease Year. Each consecutive twelve (12) month period elapsing
after (i) the Commencement Date if the Commencement Date occurs on the first day
of a month, or (ii) the first day of the month following the Commencement Date
if the Commencement Date does not occur on the first day of a month.
2.15 Legal Requirements. All laws, statutes, ordinances, orders, rules,
ordinances, regulations and requirements (including but not limited to any and
all energy conservation requirements applicable to the Building and customary
industry indoor air quality standards and practices) of all federal, state and
municipal governments, and the appropriate agencies, officers, departments,
boards and commissions thereof whether now or hereafter in force which relate or
are applicable to the Land, Premises or the Building or any part thereof.
2.16 Mortgage. Any mortgage, deed of trust, security interest or title
retention interest affecting the Building or the Land, including a leasehold or
subleasehold mortgage, and any and all renewals, modifications, consolidations
of any such interest.
2.17 Mortgagee. The holder of any note or obligation secured by a
mortgage, deed of trust, security interest or title retention interest affecting
the Building or the Land, including, without limitation, lessors under ground
leases, sale-leasebacks and lease-leasebacks.
2.18 Normal Business Hours. Between 8:00 and 6:00 p.m., Monday through
Friday, and between 8:00 a.m. and 1:00 p.m. on Saturday, except for legal
holidays observed by the federal government.
2.19 Operating Expenses. As defined in Section 7.2.
2.20 Parking Facilities. All parking areas now or hereafter made
available by Landlord for use by tenants, including, without limitation, surface
parking, parking decks and parking areas under or within the Building, whether
reserved, exclusive, non-exclusive or otherwise.
2.21 Real Estate Taxes. As defined in Section 8.1.
2.22 Rent. Base Rent and Additional Rent.
-5-
<PAGE>
2.23 Rules and Regulations. The rules and regulations set forth in
Exhibit C attached hereto and made a part hereof, as the same may be amended or
supplemented from time to time.
2.24 Substantial Completion. As defined in the Work Agreement attached
hereto and made a part hereof as Exhibit B.
2.25 Substantial Part. More than fifty percent (50%) of the rentable
square feet of the Premises or the Building, as the case may be.
2.26 Tenant's Property. Any and all personal property, furniture,
business trade fixtures, inventory and equipment located in the Premises and
owned by Tenant together with all leasehold and tenant improvements and
Alterations installed in or performed by Tenant or its Agents or on behalf of
Tenant or by Landlord on behalf of Tenant pursuant to the Work Agreement (as
hereinafter defined) or the terms of this Lease but expressly excluding those
items of standard base building work insured by Landlord and provided at
Landlord's sole cost and expense as more fully described in the Work Agreement.
2.27 Work Agreement. As set forth in Exhibit B attached hereto and made
a part of.
ARTICLE 3: THE PREMISES
3.1 Lease of Premises. In consideration of the agreements contained
herein, Landlord hereby conveys, bargains, grants and leases a leasehold
interest in the Premises to Tenant, and Tenant hereby leases a leasehold
interest in the Premises from Landlord, for the Term and upon the terms and
conditions hereinafter provided. As an appurtenance to the Premises, Tenant
shall have the non-exclusive right, together with other tenants of the Building
and their Agents, to use the Common Area. Landlord shall retain absolute
dominion and control over the Common Area and shall operate and maintain the
Common Area in such manner as Landlord, in its sole discretion, shall determine;
provided, however, such exclusive right shall not operate to prohibit Tenant
from its use of the Premises for the Permitted Use. The Premises are leased
subject to, and Tenant agrees not to violate, all present and future covenants,
conditions and restrictions of record which affect the Building. The Premises
shall not include an easement for light, air or view.
3.2 Landlord's Reservations. In addition to the other rights of
Landlord under this Lease, Landlord reserves the right (i) to change the street
address and/or name of the Building, (ii) to install, erect, use, maintain and
repair mains, pipes, conduits and other such facilities to serve the Building's
tenants in and through the Premises, (iii)
-6-
<PAGE>
to grant to anyone the exclusive right to conduct any particular business or
undertaking in the Building, (iv) to establish a condominium regime for the
Building, the Land and/or the Common Area and to include the Premises therein,
(v) to control the use of the roof and exterior walls of the Building for any
purpose, and (vi) perform such other acts and make such other changes with
respect to the Common Area and Building as Landlord may, in the exercise of
sound business judgment, deem to be appropriate. Landlord may exercise any or
all of the foregoing rights without being deemed to be guilty of an eviction,
actual or constructive, or a disturbance or interruption of the business of
Tenant or Tenant's use or occupancy of the Premises. Landlord shall use
commercially reasonable efforts to minimize interference with Tenant's business
operations.
ARTICLE 4: TERM
4.1 Lease Term. The Term shall commence on the Commencement Date and
expire at midnight on the Expiration Date. If Tenant uses or accepts the
Premises before the date set forth in Article 1 as the Commencement Date, then
the Commencement Date shall be the date upon which Tenant uses or accepts the
Premises. In the event Tenant fails to accept the Premises on or before the
Commencement Date, the Expiration Date remains unchanged. If requested by
Landlord, Tenant shall within fifteen (15) days of such request sign a
declaration acknowledging the Commencement Date and the Expiration Date in the
form attached hereto and made a part hereof as Exhibit D .
-7-
<PAGE>
ARTICLE 5: RENT
5.1 Base Rent. Tenant shall pay to Landlord the Base Rent as specified
in Section 1.7.
5.2 Payment of Base Rent. Base Rent for each Lease Year shall be
payable in equal monthly installments, in advance, without demand, notice,
deduction, offset or counterclaim, on or before the first day of each and every
calendar month during the Term; provided, however, that at the time Tenant
executes this Lease it shall pay to Landlord the advance Base Rent described in
Section 1.6 herein. If the Commencement Date occurs on a date other than on the
first day of a calendar month, Base Rent shall be prorated from such date until
the first day of the following month. Tenant shall pay the Base Rent and all
Additional Rent, by good check or in lawful currency of the United States of
America, to Landlord at the address set forth in Section 1.17 herein, or to such
other address or in such other manner as Landlord from time to time specifies by
written notice to Tenant. Any payment made by Tenant to Landlord on account of
Base Rent may be credited by Landlord to the payment of any late charges then
due and payable and to any Base Rent or Additional Rent then past due before
being credited to Base Rent currently due.
5.3 Additional Rent. All sums payable by Tenant under this Lease, other
than Base Rent, shall be deemed "Additional Rent," and, unless otherwise set
forth herein, shall be payable in the same manner as set forth above for Base
Rent. Whenever the word "rent" or "Rent" is used in this Lease it shall be
deemed to include Additional Rent unless the context specifically or clearly
implies that only the Base Rent is referenced. All remedies available to
Landlord pursuant to the terms of this Lease for non-payment of Base Rent shall
be applicable for non-payment of Additional Rent.
5.4 Acceptance of Rent. If Landlord shall direct Tenant to pay Base
Rent or Additional Rent to a "lockbox" or other depository whereby checks issued
in payment of Base Rent or Additional Rent (or both, as the case may be) are
initially cashed or deposited by a person or entity other than Landlord (albeit
on Landlord's authority), then, for any and all purposes under this Lease: (i)
Landlord shall not be deemed to have accepted such payment until ten (10) days
after the date on which Landlord shall have actually received such funds, and
(ii) Landlord shall be deemed to have accepted such payment if (and only if)
within said ten (10) day period, Landlord shall not have refunded (or attempted
to refund) such payment to Tenant. Nothing contained in the immediately
preceding sentence shall be construed to place Tenant in default of Tenant's
obligation to pay Rent if
-8-
<PAGE>
and for so long as Tenant shall timely pay the Rent required pursuant to this
Lease in the manner designated by Landlord.
ARTICLE 6: SECURITY DEPOSIT [Intentionally Deleted]
ARTICLE 7: OPERATING EXPENSES
7.1 Tenant's Proportionate Share of Operating Expenses. Commencing
after the first twelve (12) months of occupancy, Tenant shall pay to Landlord
throughout the Term, as Additional Rent, Tenant's Proportionate Share of the
amount by which the Operating Expenses during each Calendar Year exceed the
Operating Expenses during the Base Year for Operating Expenses. In the event
that the Commencement Date or the Expiration Date are other than the first day
of a Calendar Year then Tenant's Proportionate Share of the Operating Expenses
shall be adjusted to reflect the actual period of occupancy during the Calendar
Year.
7.2 Operating Expenses Defined.
(a) As used herein, the term "Operating Expenses" shall mean
all expenses, disbursements and costs of every kind and nature which Landlord
incurs because of or in connection with the ownership, maintenance, management,
repair, alteration, replacement and operation of the Building (which expressly
includes the Land, the Parking Facilities and the Common Area) including,
without limitation, the following:
(1) Wages and salaries of all employees,
including without limitation an on-site management agent and staff, whether
employed by Landlord or the Building's management company, such wages and
salaries shall be commercially reasonable, and all costs related to or
associated with such employees or the carrying out of their duties, including
uniforms and their cleaning, taxes, auto allowances and insurance and benefits
(including, without limitation, contributions to pension and/or profit sharing
plans and vacation or other paid absences);
(2) All supplies and materials, including
janitorial and lighting supplies;
(3) All utilities, including, without
limitation, electricity, telephone (including, without limitation, all costs and
expenses of telephone service for the sprinkler alarm system, if any), water,
sewer, power, gas, heating, lighting and air conditioning for the Building,
except to the extent such utilities are charged directly to or paid directly by,
a tenant of the Building;
-9-
<PAGE>
(4) All insurance (including any deductibles)
purchased by Landlord or the Building's management company relating to the
Building and any equipment or other property contained therein or located
thereon including, without limitation, casualty, liability, rental loss,
sprinkler and water damage insurance;
(5) All repairs to the Building and all
mechanical components and equipment therein (excluding repairs paid for by the
proceeds of insurance or by Tenant or other third parties other than as a part
of the Operating Expenses), including interior, exterior, structural or
non-structural, and regardless of whether foreseen or unforeseen;
(6) All maintenance of the Building and all
mechanical components and equipment therein including, without limitation,
painting, ice and snow removal, landscaping, groundskeeping and the patching,
painting and resurfacing of driveways and parking lots;
(7) A management fee payable to Landlord and/or
the company or companies managing the Building including but not limited to a
separate fee for the Parking Facilities, if any; provided such management fee
shall be comparable to the fees charged for other first class office buildings
in Northern Virginia;
(8) All maintenance, operation and service
agreements for the Building, and any equipment related thereto, including,
without limitation, service and/or maintenance agreements for the sprinkler
system in the Building, if any (excluding those paid for by Tenant or any third
parties other than as a part of Operating Expenses);
(9) Commercially reasonable accounting,
consulting and legal fees;
(10) Any additional services not provided to the
Building at the Commencement Date but thereafter provided by Landlord as
Landlord shall deem necessary or desirable;
(11) All condominium dues and related charges and
all assessments, whether general, special or otherwise, levied against Landlord
or the Building pursuant to any condominium regime or any declaration or other
instrument affecting the Building or any part or component thereof;
(12) All computer rentals for energy management
or security monitoring systems, if any;
(13) Any capital improvements made to the
Building after the Commencement Date (other than those made for the addition of
rentable square footage to the Building or for the sole benefit of a Building
-10-
<PAGE>
tenant pursuant to its lease), the cost of which shall be amortized over such
reasonable period as Landlord shall determine, together with interest on the
unamortized balance of such cost at the Interest Rate or such higher rate as may
have been paid by Landlord on funds borrowed for the purposes of constructing
said capital improvements but only to the extent that such capital improvement
is (i) intended by Landlord to result in the reduction of Operating Expenses,
(ii) necessary to comply with Legal Requirements, or (iii) necessary to comply
with insurance requirements or recommendations of Landlord's insurer or
Mortgagee;
(14) All costs incurred in implementing and
operating any transportation management program, ride sharing program or similar
program including, but not limited to, the cost of any transportation program
fees, mass transportation fees or similar fees charged or assessed by any
governmental or quasi-governmental entity or pursuant to any Legal Requirements;
(15) Any payments made by the Landlord under any
easement or license agreement, declaration, restrictive covenant or instrument
pertaining to the payment of sharing of costs among property owners; and
(16) Reasonable reserves for replacements,
repairs and contingencies.
(b) If during any Calendar Year (including the Base Year for
Operating Expenses), the average occupancy rate for the Building is less than
ninety-five percent (95%) or Landlord is not supplying services to 95% of the
rentable area of the Building at any time during any such Calendar Year,
Operating Expenses for such Calendar Year shall be deemed to include all
additional costs and expenses of ownership, maintenance, management and
operation of the Building which Landlord determines that it would have paid or
incurred during any such Calendar Year if such average occupancy rate for the
Building had been 95% and had Landlord been supplying services to 95% of the
rentable square feet of the Building throughout such Calendar Year. If any
amounts comprising Operating Expenses are incurred not just with respect to the
office area of the Building, but also with respect to the retail area of the
Building, if any, then Landlord shall endeavor in good faith and use its
reasonable efforts to allocate such amounts between the office and retail areas
of the Building. Such allocation shall be made on a fair and equitable basis,
based on the usage of or benefits received from the service, utility or item in
question. Notwithstanding the foregoing, in no event shall Landlord be entitled
to receive or collect from Tenant more Operating Expenses than what actually
incurred.
-11-
<PAGE>
7.3 Exclusions from Operating Expenses.
(a) Operating Expenses shall not include the following:
(1) Legal fees, space planners' fees, real
estate brokers' leasing commissions and advertising expenses incurred in
connection with the original or future leasing of space in the Building;
(2) Costs and expenses of alterations or
improvements of the Premises or the leasehold premises of other individual
tenants in the Building;
(3) Costs of correcting defects in, or
inadequacy of, the design or construction of the Building or the materials used
in the construction of the Building or the equipment or appurtenances thereto to
the extent covered by warranties and recovered by Landlord;
(4) Depreciation, interest and principal
payments on mortgages and other financing costs, if any, other than amortization
of and the interest factor attributable to permitted capital improvements;
(5) Costs and expenses associated with the
operation of the business of the person or entity which constitutes Landlord as
the same are distinguished from the costs of operation of the Building,
including accounting and legal matters, costs of defending any lawsuits with any
Mortgagee (except to the extent the actions of Tenant or any other tenant may be
in issue), costs of selling or financing any of Landlord 's interest in the
Building and outside fees paid in connection with disputes with other tenants;
(6) Costs and expenses directly resulting from
the gross negligence or willful misconduct of Landlord or its Agents to the
extent provable by Tenant; and
(7) Real Estate Taxes;
(8) Ground lease rents;
(9) Costs incurred by Landlord for the repair of
damage to the Building to the extent that Landlord is reimbursed by insurance or
other third parties;
(10) Any cost representing an amount paid for
first class services and/or materials to a related person, firm, or entity to
the extent such amount exceeds the amount that would be paid for such first
class services and/or materials at the then existing market rates to an
unrelated person, firm, or entity;
-12-
<PAGE>
(11) Costs incurred due to the late payment of
taxes, utility bills or other amounts owing, so long as Landlord was obligated
to make such payments and did not in good faith dispute the amount of such
payments;
(12) Costs or expenses incurred by Landlord in
financing, refinancing, pledging, selling, granting or otherwise transferring or
encumbering ownership rights in the Building or Land; and (13)
(13) Any fines, interest or penalties incurred by
Landlord by reason of Landlord's failure to pay in a timely manner any Real
Estate Taxes.
7.4 Estimated Payments. Landlord shall submit to Tenant, before the
beginning of each Calendar Year, a statement of Landlord's estimate of the
Operating Expenses payable by Tenant during such Calendar Year. In addition to
the Base Rent, Tenant shall pay to Landlord on or before the first day of each
month during such Calendar Year an amount equal to one-twelfth (1/12) of the
estimated Operating Expenses payable by Tenant for such Calendar Year as set
forth in Landlord's statement. If Landlord fails to give Tenant notice of its
estimated payments due under this Section for any Calendar Year, then Tenant
shall continue making monthly estimated payments in accordance with the estimate
for the previous Calendar Year until a new estimate is provided by Landlord. If
Landlord determines that, because of unexpected increases in Operating Expenses
or other reasons, Landlord's estimate of the Operating Expenses was too low,
then Landlord shall have the right to give a new statement of the estimated
Operating Expenses due from Tenant for such Calendar Year or the balance thereof
and to bill Tenant for any deficiency which may have accrued during such
Calendar Year, and Tenant shall thereafter pay monthly estimated payments based
on such new statement.
7.5 Actual Operating Expenses. Within one hundred eighty (180) days
after the end of each Calendar Year, Landlord shall submit a statement to Tenant
showing the actual Operating Expenses for such Calendar Year and Tenant's
Proportionate Share of the amount by which such Operating Expenses exceed the
Operating Expenses during the Base Year. If for any Calendar Year, Tenant's
estimated monthly payments exceed Tenant's Proportionate Share of the amount by
which the actual Operating Expenses for such Calendar Year exceed the Operating
Expenses during the Base Year, then Landlord shall give Tenant a credit in the
amount of the overpayment toward Tenant's next monthly payments of estimated
Operating Expenses. If for any Calendar Year Tenant's estimated monthly payments
are less than Tenant's Proportionate Share of the amount by which the actual
Operating Expenses for such
-13-
<PAGE>
Calendar Year exceed the Operating Expenses during the Base Year, then Tenant
shall pay the total amount of such deficiency to Landlord within thirty (30)
days after receipt of the statement from Landlord. Landlord's and Tenant's
obligations with respect to any overpayment or underpayment of Operating
Expenses shall survive the expiration or earlier termination of this Lease.
7.6 Tenant's Right to Audit. Tenant shall pay to Landlord all amounts
payable pursuant to Sections 7.4 and 7.5 herein without off-set or deduction
within the time periods provided for in each respective Section notwithstanding
that Tenant may object to Landlord's statement rendered pursuant thereto. In the
event Tenant shall dispute the amount set forth in Landlord's statement as
described in Section 7.5 herein and Tenant pays the full amount set forth in
Landlord's reconciliation statement then, Tenant shall have the right, not later
than sixty (60) days following receipt of such statement, to cause Landlord's
books and records with respect to the preceding Calendar Year to be audited by
an independent Certified Public Accountant mutually acceptable to Landlord and
Tenant, and who shall not be compensated on a contingency basis. Such audit
shall occur upon not less than twenty (20) days prior written notice to
Landlord, at Landlord's place of business or the actual location of Landlord's
books and records if different from Landlord's place of business, during
Landlord's normal business hours. The amounts payable under this Section by
Landlord to Tenant or by Tenant to Landlord, as the case may be, shall be
appropriately adjusted on the basis of such audit. If such audit discloses a
liability for further refund by Landlord to Tenant in excess of five percent
(5%) of the payments previously made by Tenant for such Calendar Year, the
actual out-of-pocket cost of such audit incurred by Tenant shall be borne by
Landlord and paid within thirty (30) days of demand from Tenant subject to
Landlord's right to dispute the results of Tenant's audit as hereinafter
described; otherwise, the cost of such audit shall be borne by Tenant.
Notwithstanding the foregoing, in no event shall Landlord's cost for such audit
exceed Three Thousand Dollars ($3,000). In the event that the Landlord disputes
the results of the Tenant's audit, Landlord shall notify Tenant within thirty
(30) days of delivery of the results of the Tenant's audit together with
reasonably detailed documentation related thereto. If Landlord disputes Tenant's
audit, Landlord shall within said 30-day period, designate an independent
Certified Public Accounting firm from one of the "Big-Six" (i.e., Arthur
Anderson & Co. or similar company) and said firm shall review Tenant's audit
and, if necessary, shall re-audit Landlord's books and records and issue a final
report within ninety (90) days of the expiration of said 30-day period. Tenant
shall fully cooperate and instruct its auditor to fully cooperate with the
-14-
<PAGE>
review conducted by the Big-Six firm. The findings of the Big-Six firm shall be
conclusive and binding on the parties hereto as it relates to the statement at
issue. In the event that the Big-Six firm's report confirms Tenant's audit then
Landlord shall pay the cost of the Big-Six audit which shall be in addition to
any obligation Landlord may have to pay for any overpayment of Operating
Expenses. In the event that the report discloses a liability by Landlord to
Tenant of substantially less than the amount of Tenant's audit then in that
event the Tenant shall pay the cost of the Big-Six audit which shall be in
addition to any obligation Tenant may have to pay Landlord's expenses as
aforesaid. If Tenant shall not request an audit in accordance with the
provisions of this Section within sixty (60) days of receipt of Landlord's
reconciliation statement of actual Operating Expenses, such statement shall be
conclusive and binding upon Landlord and Tenant.
ARTICLE 8: TAXES
8.1 Tenant's Proportionate Share of Real Estate Taxes. Commencing after
the first twelve (12) months of occupancy, Tenant shall pay to Landlord
throughout the Term, as Additional Rent, Tenant's Proportionate Share of the
amount by which the Real Estate Taxes during each Calendar Year exceed the Real
Estate Taxes for the Base Year for Real Estate Taxes. In the event the
Commencement Date or the Expiration Date are other than the first day of a
Calendar Year, the Tenant's Proportionate Share of the Real Estate Taxes shall
be adjusted to reflect the actual period of occupancy during the Calendar Year.
(a) As used herein, the term "Real Estate Taxes" shall mean
all taxes and assessments, general or special, ordinary or extraordinary,
foreseen or unforeseen, assessed, levied or imposed by any governmental
authority upon the Building (which expressly includes the Land, the Parking
Facilities and the Common Area) and upon the fixtures, machinery, equipment or
systems in, upon or used in connection with any of the foregoing, and the
rental, revenue or receipts derived therefrom, under the current or any future
taxation or assessment system or modification of, supplement to, or substitute
for such system. Real Estate Taxes also shall include special assessments which
are in the nature of or in substitution for real estate taxes, including,
without limitation, road improvement assessments, special use area assessments,
school district assessment, vault space rentals and any business, professional
and occupational license tax payable by Landlord in connection with the
Building. If at any time the method of taxation prevailing at the Date of Lease
shall be altered so that in lieu of, as a substitute for or in addition to the
whole or any part of the taxes now levied or assessed, there shall be levied or
-15-
<PAGE>
assessed a tax of whatever nature, then the same shall be included as Real
Estate Taxes hereunder. Further, for the purposes of this Article, Real Estate
Taxes shall include the reasonable expenses (including, without limitation,
attorneys' fees) incurred by Landlord in challenging or obtaining or attempting
to obtain a reduction of such Real Estate Taxes, regardless of the outcome of
such challenge. Notwithstanding the foregoing, Landlord shall have no obligation
to challenge Real Estate Taxes. If as a result of any such challenge, a tax
refund is made to Landlord, then the amount of such refund less the expenses of
the challenge shall be deducted from Real Estate Taxes due in the Lease Year
such refund is received.
8.2 Estimated and Actual Payments. Landlord shall charge Tenant for its
Proportionate Share of Real Estate Taxes and Tenant shall pay such charges in
accordance with the procedures established under Sections 7.4 and 7.5 for
payment of Operating Expenses.
-16-
<PAGE>
ARTICLE 9: PARKING
9.1 Parking Spaces. During the Term, Tenant shall be provided with the
Parking Space Allocation. Tenant may obtain additional monthly parking spaces in
the Parking Facilities, as available, by contracting for them separately at the
then-prevailing monthly rate, including any rate increases.
9.2 Changes to Parking Facilities. Landlord shall have the right, from
time to time, without Tenant's consent, to change, alter, add to, temporarily
close or otherwise affect the Parking Facilities in such manner as Landlord, in
its sole discretion, deems appropriate including, without limitation, the right
to designate reserved spaces available only for use by one or more tenants
(however, in such event, those parking spaces shall still be deemed Common Area
for the purpose of the definition of Operating Expenses), provided that, except
in emergency situations or situations beyond Landlord's control, Landlord shall
use commercially reasonable efforts to provide alternative Parking Facilities.
Notwithstanding the preceding, Landlord shall in no event reduce Tenant's
Parking Space Allocation.
ARTICLE 10: USE
10.1 General. Tenant shall occupy the Premises solely for the Permitted
Use under Tenant's Trade Name. The Premises shall not be used for any other
purpose without the prior written consent of Landlord. Tenant shall comply, at
Tenant's expense, with (i) all Legal Requirements applicable to the Premises,
and (ii) any reasonable requests of Mortgagee or any insurance company providing
coverage with respect to the Premises. Tenant shall not use or occupy the
Premises or allow the Premises to be used in violation of any recorded
covenants, conditions and restrictions affecting the Premises or the Building or
of any Legal Requirements, or of any certificate of occupancy issued for the
Premises or Building or in any manner that is dangerous or that shall constitute
waste, unreasonable annoyance or a nuisance to Landlord or the other tenants of
the Building.
10.2 Tenant's Personal Property. Tenant shall pay before delinquency
any business, rent or other tax or fee that is now or hereafter assessed or
imposed upon Tenant's use or occupancy of the Premises, the conduct of Tenant's
business in the Premises or Tenant's Property. If any such tax or fee is enacted
or altered so that such tax or fee is imposed upon Landlord or so that Landlord
is responsible for collection or payment thereof, then Tenant shall pay the
amount of such tax or fee as Additional Rent.
-17-
<PAGE>
10.3 Indoor Air Quality. Tenant shall not permit any person to smoke
tobacco in any part of the Building except in those areas, if any, that are
clearly designated by the Landlord as smoking areas. Tenant shall not use, store
or handle or permit the usage, storing or handling of any materials in levels
that exceed those established for indoor air quality pursuant to applicable
Legal Requirements.
ARTICLE 11: ASSIGNMENT AND SUBLETTING
11.1 General. Except as otherwise expressly provided in this Article,
11, no Transfer (as hereinafter defined) shall be permitted without Landlord's
prior written consent which consent Landlord may withhold in its sole and
absolute discretion.
-18-
<PAGE>
11.2 Restriction on Transfer. Subject to the provisions of Sections
11.3, 11.4 and 11.5, Tenant shall not, without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, assign, or otherwise
transfer or convey this Lease or any interest herein or sublet the Premises or
any part thereof or enter into any licenses or concessions or permit the use and
occupancy of the Premises by any party other than Tenant or transfer the
Premises or any part thereof by operation of law or other voluntary or
involuntary transfer (any such assignment, sublease or any of the other
foregoing shall sometimes be hereinafter referred to as a "Transfer"). Tenant
shall not mortgage or encumber this Lease or any interest herein without the
prior written consent of Landlord, which consent may be withheld at Landlord's
absolute discretion, and any such mortgage or encumbrance shall be deemed a
"Transfer." Any Transfer without Landlord's consent shall constitute an Event of
Default by Tenant under this Lease, without the benefit of any additional notice
or cure period specified in Section 22.2(ii) herein, and in addition to all of
Landlord's other remedies at law, in equity or under this Lease, such Transfer
shall be voidable at Landlord's election. In addition, this Lease shall not, nor
shall any interest of Tenant herein be assignable by operation of law without
the written consent of Landlord. For purposes of this Article 11, if Tenant is a
corporation, partnership or other entity, any transfer, assignment, encumbrance
or hypothecation of twenty-five percent (25%) or more (individually or in the
aggregate) of any stock or other ownership interest in such entity, and/or any
transfer, assignment, hypothecation or encumbrance of any controlling ownership
or voting interest in such entity, or any merger of consolidation in which the
Tenant is involved, shall be deemed an assignment of this Lease and shall be
subject to all of the restrictions and provisions contained in this Article 11.
Notwithstanding the foregoing, the immediately preceding sentence shall not
apply to any transfers of stock of Tenant if Tenant is a publicly-held
corporation and such stock is transferred publicly over a recognized security
exchange or over-the-counter market. In addition, Tenant shall be permitted to
sublet the Premises to a successor-in-interest, subsidiary or affiliated company
without Landlord's prior consent, but Tenant shall provide Landlord notice of
such sublease.
11.3 Landlord's Options. If at any time or from time to time during the
Term, Tenant desires to effect a Transfer, Tenant shall deliver to Landlord
written notice ("Transfer Notice") setting forth the terms and provisions of the
proposed Transfer and the identity of the proposed assignee, sublessee or other
transferee (sometimes referred to hereinafter as a "Transferee"). Tenant shall
also deliver to Landlord with the Transfer Notice, a current financial statement
and financial statements for the preceding two (2) years of the Transferee which
have been certified or
-19-
<PAGE>
audited by a reputable independent accounting firm acceptable to Landlord, and
such other information concerning the business background and financial
condition of the proposed Transferee as Landlord may reasonably request.
Landlord shall have the option, exercisable by written notice delivered to
Tenant within twenty (20) days after Landlord's receipt of the Transfer Notice,
such financial statements and other information, either to:
(a approve or disapprove such Transfer, which approval
shall not be unreasonably withheld or delayed; or
(b terminate this Lease with respect to the entire
Premises (or, in the case of a proposed sublease,
only that portion of the Premises which the Tenant
has requested to sublease), which termination shall
be effective thirty (30) days after Tenant's receipt
of Landlord's notice.
11.4 Additional Conditions; Excess Rent. If Landlord does not exercise
its termination option and instead approves of the proposed Transfer pursuant to
Section 11.3(a) above, Tenant may enter into the proposed Transfer with such
proposed Transferee subject to the following further conditions:
(a the Transfer shall be on the same terms set forth in
the Transfer Notice delivered to Landlord (if the
terms have changed, Tenant must submit a revised
Transfer Notice to Landlord and Landlord shall have
another twenty (20) days after receipt thereof to
make the election in Section 11.3(a) or 11.3(b)
above);
(b no Transfer shall be valid and no Transferee shall
take possession of the Premises until an executed
counterpart of the assignment, sublease or other
instrument effecting the Transfer has been delivered
to Landlord pursuant to which the Transferee shall
expressly assume all of Tenant's obligations under
this Lease (or with respect to a sublease of a
portion of the Premises or for a portion of the Term,
all of Tenant's obligations applicable to such
portion);
(c no Transferee shall have a further right to assign,
encumber or sublet except on the terms herein
contained; and
(d one-half (1/2) of any rent or other economic
consideration received by Tenant as a result of such
Transfer which exceeds, in the aggregate, (i) the
total rent which Tenant is obligated
-20-
<PAGE>
to pay Landlord under this Lease (prorated to reflect
obligations allocable to any portion of the Premises
subleased), plus (ii) any advertising costs,
reasonable brokerage commissions, attorneys' fees,
remodeling costs and moving costs and other
incidental expenses incurred by Tenant in connection
with such Transfer, shall be paid to Landlord within
ten (10) days after receipt thereof as Additional
Rent under this Lease, without affecting or reducing
any other obligations of Tenant hereunder.
11.5 Reasonable Disapproval. Landlord and Tenant hereby acknowledge
that Landlord's disapproval of any proposed Transfer pursuant to Section 11.3(a)
shall be deemed reasonably withheld if based upon any reasonable factor,
including, without limitation, any or all of the following factors: (i) the
proposed Transfer would result in more than two subleases of portions of the
Premises being in effect at any one time during the Term; (ii) the net effective
rent payable by the Transferee (adjusted on a rentable square foot basis) is
less than the net effective rent of the most recent market transactions
completed by Landlord for new leases in the Building for comparable size space
for a comparable period of time; (iii) the proposed Transferee is an existing
tenant of the Building or is negotiating with Landlord (or has negotiated with
Landlord in the last six (6) months) for space in the Building; (iv) the
proposed Transferee is a governmental entity; (v) the portion of the Premises to
be sublet or assigned is irregular in shape with inadequate means of ingress and
egress; (vi) the use of the Premises by the Transferee (A) is not permitted by
the use provisions in Article 10 hereof, or (B) violates any exclusive use
granted by Landlord to another tenant in the Building; (vii) the Transfer would
likely result in significant increase in the use of the parking areas or Common
Areas by the Transferee's employees or visitors, and/or significantly increase
the demand upon utilities and services to be provided by Landlord to the
Premises; (viii) the Transferee does not have the financial capability to
fulfill the obligations imposed by the Transfer; (ix) the Transferee is not in
Landlord's reasonable opinion of reputable or good character or consistent with
Landlord's desired tenant mix; or (x) the Transferee is a real estate developer
or landlord or is acting directly or indirectly on behalf of a real estate
developer or landlord.
11.6 Release. No Transfer shall release Tenant of Tenant's obligations
under this Lease or alter the primary liability of Tenant to pay the rent and to
perform all other obligations to be performed by Tenant hereunder. Landlord may
require that any Transferee remit directly to Landlord on a monthly basis, all
monies due Tenant by said Transferee. However, the acceptance of rent by
Landlord from any other person shall not be deemed to be a
-21-
<PAGE>
waiver by Landlord of any provision hereof. Consent by Landlord to one Transfer
shall not be deemed consent to any subsequent Transfer. If an Event of Default
occurs by any Transferee of Tenant or any successor of Tenant in the performance
of any of the terms hereof, Landlord may proceed directly against Tenant without
the necessity of exhausting remedies against such Transferee or successor.
Landlord may consent to subsequent assignments of the Lease or sublettings or
amendments or modifications to the Lease with assignees of Tenant, without
notifying Tenant, or any successor of Tenant, and without obtaining its or their
consent thereto and any such actions shall not relieve Tenant of liability under
this Lease.
11.7 Administrative and Attorneys' Fees. If Tenant effects a Transfer
or requests the consent of Landlord to any Transfer, then Tenant shall, upon
demand, pay Landlord a non-refundable administrative fee of One Thousand Five
Hundred Dollars ($1,500.00), which shall include the cost of Landlord's
consultants', engineers' and reasonable attorneys' fees in connection with such
Transfer or request for consent. Acceptance of the $1,500.00 administrative fee
shall in no event obligate Landlord to consent to any proposed Transfer.
11.8 Material Inducement. Tenant understands, acknowledges and agrees
that (i) Landlord's option to terminate this Lease upon any proposed Transfer as
provided in Section 11.3(b) above rather than approve the proposed Transfer, and
(ii) Landlord's right to receive any excess consideration paid by a Transferee
in connection with an approved Transfer as provided in Section 11.4(d) above,
are a material inducement for Landlord's agreement to lease the Premises to
Tenant upon the terms and conditions herein set forth.
-22-
<PAGE>
ARTICLE 12: MAINTENANCE AND REPAIR
12.1 Landlord's Obligation. As long as no Event of Default has occurred
and is continuing, and except for repairs which Tenant is required to make
pursuant to Section 12.2, Landlord shall keep and maintain in good repair and
working order the Building, including the Common Area and the equipment within
and serving the Premises and the Building (excluding Tenant's Property) that are
required for the normal maintenance and operation of the Premises and the
Building. The cost of such maintenance and repairs to the Building and said
equipment shall be included in the Operating Expenses and paid by Tenant as
provided in Article 7 herein. Tenant shall immediately give Landlord written
notice of any defect or need for repairs. After such notice, Landlord shall have
a reasonable opportunity to repair or cure such defect. Landlord's liability
with respect to any defects, repairs or maintenance for which Landlord is
responsible under any of the provisions of this Lease shall be limited to the
cost of such repairs or maintenance or the curing of such defect.
12.2 Tenant's Obligation. Tenant shall, at its own expense, maintain
the Premises and all of Tenant's Property in good, clean and safe condition,
promptly making all necessary repairs and replacements. Tenant shall repair at
its expense, any and all damage caused by Tenant or Tenant's Agents to the
Building, Common Area, the Premises and Tenant's Property, including equipment
within and serving the Building, ordinary wear and tear excepted. Such
maintenance and repairs shall be performed with due diligence, lien-free and in
a first-class workmanlike manner, by such contractor(s) selected by Tenant and
approved by Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding the foregoing, Tenant shall bear the
cost of, but shall not itself perform any such repairs which would (i) affect
the Building's structure or mechanical or electrical systems, (ii) which would
be visible from the exterior of the Building or from any interior Common Area of
the Building, or (iii) were originally performed by Landlord under the Work
Agreement. Where Landlord performs such repairs, Tenant shall promptly pay to
Landlord upon demand all costs incurred in connection therewith together with
interest thereon at the Interest Rate from the demand date until paid. Without
the prior written consent of the Landlord which may be withheld in Landlord's
sole discretion, Tenant shall not have access to the roof of the Building for
any purpose whatsoever.
12.3 Landlord's Right to Maintain or Repair. In the event that repairs
required to be made by Tenant pursuant to this Lease become critical (i.e., pose
an imminent threat of harm to persons or property) by reason of
-23-
<PAGE>
Tenant's failure to commence to repair or replace any damage to the Building,
Common Area, Premises or Tenant's Property which is Tenant's obligation to
perform, and diligently pursue timely completion of such repair and replacement,
Landlord may with reasonable notice (but with no notice if an emergency or
critical situation), at its option, perform Tenant's obligations and Tenant
shall promptly pay Landlord all costs incurred in connection therewith plus
interest thereon at the Interest Rate from the due date until paid.
ARTICLE 13: ALTERATIONS
13.1 Initial Construction. Landlord and Tenant agree that the
construction of the Tenant Work (as defined in the Work Agreement) and other
initial construction with respect to the Premises shall be performed in
accordance with the Work Agreement attached hereto as Exhibit B and made a part
hereof.
13.2 Tenant's Alterations. Tenant shall not make or perform, or permit
the making or performance of, any alterations, installations, improvements,
additions or other physical changes in or about the Premises (referred to
collectively as "Alterations") without Landlord's prior consent. Within thirty
(30) days after Landlord receives Tenant's request for approval of an
Alteration, together with the plans and the identity of the contractors to
perform the Alterations, Landlord shall give Tenant a notice of its approval or
disapproval of Tenant's request. Notwithstanding the foregoing provisions of
this Section or Landlord's consent to any Alterations, all Alterations shall be
made and performed in conformity with and subject to the following provisions:
(i) except as otherwise provided in Section 13.1, all alterations shall be made
and performed at Tenant's sole cost and expense and at such time and in such
manner as Landlord may reasonably designate; (ii) Alterations shall be made only
by contractors or mechanics approved by Landlord, (iii) no Alterations shall
materially and adversely affect any part of the Building or adversely affect any
service required to be furnished by Landlord to Tenant or to any other tenant or
occupant of the Building; (iv) all business machines and mechanical equipment
shall be placed and maintained by Tenant in settings sufficient in Landlord's
reasonable judgment to absorb and prevent vibration, noise and annoyance to
other tenants or occupants of the Building; (v) Tenant shall (a) submit to
Landlord reasonably detailed plans and specifications for each proposed
Alteration and (b) not commence any such Alteration without first obtaining
Landlord's approval of such plans and specifications, which approval will not be
unreasonably withheld, conditioned or delayed; (vii) notwithstanding Landlord's
approval of plans and specifications for any Alterations, all Alterations shall
be made and performed in full compliance with all Legal Requirements and in
accordance with the Rules and
-24-
<PAGE>
Regulations; (viii) all materials and equipment to be incorporated in the
Premises as a result of all Alterations shall be of reasonably good quality and
the Alterations shall be performed in good and workmanlike manner; and (ix)
Tenant shall require any contractor performing Alterations to carry and maintain
at all times during the performance of the work, at no expense to Landlord, (A)
a policy of comprehensive public liability insurance, including contractor's
liability coverage, contractual liability coverage, completed operations
coverage, contractor's protective liability coverage and a broad form property
damage endorsement, naming Landlord and (at Landlord's request) any Mortgagee of
the Building and any management agent as additional insured(s), with such policy
to afford protection to the limit of not less than Two Million and 00/100
Dollars ($2,000,000.00) with respect to bodily injury or death to any number of
persons in any one accident and to the limit of not less than One Million and
00/100 Dollars ($1,000,000.00) to damage to the property of any one owner from
one occurrence, and (B) workmen's compensation or similar insurance in the form
and amounts required by the laws of the Commonwealth of Virginia.
Notwithstanding anything to the contrary contained in this Section,
Tenant shall have the right from time to time and at any time, without
Landlord's consent, to perform the following work within the Premises: (i)
install, remove and relocate nonstructural office partitioning, provided such
work does not materially and adversely affect the Building base building
structure or HVAC systems, (ii) paint and install wall coverings, (iii) install
and remove office furniture, (iv) relocate electrical outlets, (v) install and
remove work stations, (vi) install and remove Tenant's equipment and perform
cable pulls in connection therewith and (vii) such other nonstructural Tenant
changes as Tenant deems reasonably necessary; provided, however, that the
anticipated costs of any of such work does not exceed Five Thousand and 00/100
Dollars ($5,000.00) and shall not materially and adversely affect the Building
base building structure or HVAC systems.
13.3 Mechanics' Liens. Notice is hereby given that Landlord shall not
be liable for any labor or materials furnished or to be furnished to Tenant upon
credit, and that no mechanic's, materialman's or other lien for any such labor
or materials shall attach to or affect the reversion or other estate or interest
of Landlord in and whenever and as often as any mechanic's lien or materialman's
lien shall have been filed against the Premises or the Building based upon any
act or interest of Tenant or of anyone claiming through Tenant, or if any lien
or security interest with respect thereto shall have been filed affecting any
materials, machinery or fixtures used in the construction, repair or operation
thereof or annexed thereto by Tenant or its successors in interest, including
but not
-25-
<PAGE>
limited to the Tenant's Property, Tenant shall cause such lien to be removed or
satisfied by bonding, deposit or otherwise payment in full within thirty (30)
days after written notice from Landlord. In the event Tenant fails to remove or
satisfy said lien or encumbrance within said 30-day period, Landlord, in
addition to any other remedy under this Lease, may pay the amount secured by
such lien or security interest or discharge the same by deposit and the amount
so paid or deposited shall be collectible as Additional Rent plus interest
thereon at the Interest Rate until paid.
13.4 Landlord Alterations. Landlord shall have no obligation to make
any Alterations in or to the Premises, the Building, the Common Area or the Land
except as specifically provided in the Work Agreement. Landlord hereby reserves
the right, from time to time, to make Alterations to the Building, change the
Building dimensions, erect additional stories thereon and attach other buildings
and structures thereto, and to erect such scaffolding and other aids to
construction as Landlord deems appropriate, and no such Alterations, changes,
construction or erection shall constitute an eviction, constructive or
otherwise, or permit Tenant any abatement of Rent or claim.
ARTICLE 14: SIGNS
14.1 General. No sign, advertisement or notice shall be inscribed,
painted, affixed, placed or otherwise displayed by Tenant on any part of the
Land or the outside or the inside (including, without limitation, the windows)
of the Building or the Premises. Landlord shall, at its expense, provide one (1)
building standard door sign and one (1) directory strip on the Building
directory located in the main lobby. If any prohibited sign, advertisement or
notice is nevertheless exhibited by Tenant, Landlord shall have the right to
remove the same, and Tenant shall pay any and all expenses incurred by Landlord
in such removal upon demand, together with interest thereon at the Interest
Rate, until paid. Landlord shall have the right to prohibit any sign,
advertisement, notice or statement to the public by Tenant which, in Landlord's
opinion, tends to impair the reputation of the Building or its desirability as a
first class office building.
ARTICLE 15: TENANT'S PROPERTY
-26-
<PAGE>
15.1 Tenant's Equipment. Tenant shall not install or operate in the
Premises (i) any electrically operated equipment or other machinery, other than
normal and customary general office equipment that does not require wiring,
cooling or other service in excess of Building standards, (ii) any equipment of
any kind or nature whatsoever which will require any changes, replacements or
additions to, or changes in the use of, any water, heating, plumbing, air
conditioning or electrical system of the Premises or the Building, or (iii) any
equipment which causes the floor load to exceed the load limits set by Landlord
for the Building. Landlord's consent to such installation or operation may be
withheld in Landlord's sole and absolute discretion and if such consent is given
shall be conditioned upon, among other things, the payment by Tenant of
additional compensation for any excess consumption of utilities and any
additional power, wiring, cooling or other service (as determined in the sole
discretion of Landlord) that may result from such equipment. In order to ensure
that Building standards are not exceeded and to avert a possible adverse effect
upon the Building electrical service, Tenant shall give prior notice to Landlord
whenever Tenant wants to connect to the Building electrical distribution system
any electrically operated equipment other than lamps, personal computer
terminals and other similar normal and customary small general office equipment.
Machines and equipment which cause noise or vibration that may be transmitted to
the structure of the Building or to any space therein so as to be objectionable
to Landlord or any other Building tenant shall, to the extent permitted by
Landlord, be installed and maintained by Tenant, at its expense, on vibration
eliminators or other devices sufficient to eliminate such noise and vibration.
Neither Tenant nor its Agents, shall at any time enter, adjust, tamper with,
touch or otherwise in any manner affect the building systems or facilities of
the Building.
15.2 Removal of Tenant's Property. Except to the extent Tenant requests
and Landlord designated otherwise at the time of installation, all or any part
of the Tenant's Property (excluding any items of Tenant's personal property,
furniture, and business trade fixtures which subject to Section 22.9 herein,
shall be removed by Tenant at the expiration or earlier termination of this
Lease or be subject to the terms of Section 22.5 herein), whether made with or
without the consent of Landlord, shall, at the election of Landlord, either be
removed by Tenant at its expense before the expiration of the Term (and Tenant
shall restore the Premises to its prior condition reasonable wear and tear
excepted) or shall remain upon the Premises and be surrendered therewith at the
Expiration Date or earlier termination of this Lease as the property of Landlord
without disturbance, molestation or injury and in good operating condition. Any
and all damage or injury to the Premises or the Building caused by the moving or
removal
-27-
<PAGE>
of the Tenant's Property into or out of the Premises, or due to the same being
on the Premises, shall be repaired by Landlord, at the expense of Tenant and
paid to Landlord within ten (10) days of demand, plus interest thereon at the
Interest Rate until paid. Tenant shall promptly remove from the Common Area any
of Tenant's Property there deposited.
ARTICLE 16: RIGHT OF ENTRY
16.1 General. Subject to Tenant's security requirements, Tenant shall
permit Landlord or its Agents, at reasonable times and with reasonable notice
(except that no notice shall be required for emergency situations), to enter the
Premises, without charge therefor to Landlord and without diminution of Rent,
(i) to examine, inspect and protect the Premises and the Building, (ii) to make
such alterations and repairs or perform such maintenance which in the sole
judgment of Landlord may be deemed necessary or desirable, (iii) to exhibit the
same to prospective purchasers of the Building or to present or future
Mortgagees or (iv) to exhibit the same to prospective tenants during the last
eighteen (18) months of the Term and to erect on the Premises a suitable sign
indicating the Premises are available. Landlord's access to Premises shall be
subject to Tenant's security requirements and made upon reasonable notice except
if such access is required for emergency purposes.
-28-
<PAGE>
ARTICLE 17: INSURANCE
17.1 Insurance Rating. Tenant shall not conduct or permit any activity,
or place any equipment or material, in or about the Premises, the Building or
the Common Area which will invalidate or increase the rate of fire or other
insurance on the Building or insurance benefitting any other tenant of the
Building; and if any increase in the rate of insurance is stated by any
insurance company or by the applicable insurance rating bureau to be due to any
activity, equipment or material of Tenant in or about the Premises, the
Building, or the Common Area, such statement shall be conclusive evidence that
the increase in such rate is due to the same and, as a result thereof, Tenant
shall pay such increase to Landlord upon demand plus interest thereon at the
Interest Rate until paid. If any insurance coverage carried by Landlord pursuant
to this Article 17 or otherwise with respect to the Building or Land shall be
cancelled or reduced (or cancellation or reduction thereof shall be threatened)
by reason of the use or occupancy of the Premises by Tenant or by anyone
permitted by Tenant to be upon the Premises, and if Tenant fails to remedy such
condition within ten (10) days after delivery of written notice thereof, it
shall be deemed an event of Default under this Lease, without the benefit of any
additional notice or cure period specified in Section 22.2(ii) herein, and
Landlord shall have all remedies provided in this Lease, at law or in equity,
including, without limitation, the right (but not the obligation) to enter upon
the Premises and attempt to remedy such condition at Tenant's sole cost and
expense which will be Additional Rent when incurred by Landlord payable upon
demand plus interest thereon at the Interest Rate until paid.
17.2 Liability Insurance. Tenant shall, at its sole cost and expense,
procure and maintain throughout the Term a commercial general liability policy
insuring against claims, demands or actions for bodily injury, death, personal
injury, and loss or damage to property arising out of or in connection with: (i)
the Premises and Tenant's Property; (ii) the condition of the Premises; (iii)
Tenant's operations in, maintenance and use of the Premises, Building and Common
Area, and (iv) Tenant's liability assumed under this Lease. Such insurance shall
afford protection to the limit of not less than $2,000,000 with respect to
bodily injury or death to any one individual, to the limit of not less than
$3,000,000 with respect to bodily injury or death to any number of individuals
in any one accident and to the limit of $1,000,000 with respect to damage to the
property of any one owner from one occurrence and shall be primary over any
insurance carried by Landlord. Endorsements shall be obtained for
cross-liability and contractual liability.
-29-
<PAGE>
17.3 Insurance for Tenant's Property. Tenant shall, at its sole cost
and expense, procure and maintain throughout the Term a property insurance
policy (written on an "All Risk" basis) insuring all of Tenant's Property for
not less than the full replacement cost of said property. All proceeds of such
insurance shall be used to repair or replace Tenant's Property. If this Lease is
terminated as the result of a casualty in accordance with Article 21 herein, the
proceeds of said insurance attributable to the repair and/or replacement of any
leasehold improvements, tenant improvements or Alterations performed by or on
behalf of Tenant or by Landlord pursuant to the terms of the Work Agreement or
this Lease shall be the property of the Landlord and paid to Landlord upon
demand together with interest thereon at the Interest Rate until paid.
17.4 Additional Insurance.
(a Tenant shall, at its sole cost and expense, procure and
maintain business interruption insurance in an amount not less than the Base
Rent due hereunder for the first Lease Year, which amount shall be revised from
time to time upon the reasonable request of the Landlord or its Mortgagee.
(b Tenant shall, at all times during the term hereof, maintain
in effect workers' compensation insurance as required by applicable Legal
Requirements.
17.5 Requirements of Insurance Coverage. All such insurance required to
be carried by Tenant herein shall be with an insurance company licensed to do
business in the Commonwealth of Virginia and rated not lower than A-XII in the
A.M. Best Rating Guide. Such insurance (i) shall contain an endorsement that
such policy shall remain in full force and effect notwithstanding that the
insured has released its right of action against any party before the occurrence
of a loss; (ii) shall name Landlord and, at Landlord's request, any Mortgagee or
ground lessor, as additional insured(s); (iii) shall provide that the policy
shall not be cancelled, failed to be renewed or materially amended without at
least thirty (30) days' prior written notice to Landlord and, at Landlord's
request, any Mortgagee, and (iv) shall be issued as primary policies and not
contributing with and not in excess of coverage which the Landlord may carry. On
or before the Commencement Date and, thereafter, not less than thirty (30) days
before the expiration date of the insurance policy, an original of the policy
(including any renewal or replacement policy) or a certified copy thereof,
together with evidence satisfactory to Landlord of the payment of all premiums
for such policy, shall be delivered to Landlord and, at Landlord's request, to
any Mortgagee. Tenant's insurance policies shall not include deductibles in
excess of Five Thousand and 00/100 Dollars ($5,000.00).
-30-
<PAGE>
17.6 Waiver of Subrogation. Each party hereby releases the other party
hereto from liability for any loss or damage to any building, structure or
tangible personal property, or any resulting loss of income, or losses under
worker's compensation laws and benefits, notwithstanding that such loss, damage
or liability may arise out of the negligent or intentionally tortious act or
omission of the other party or its Agents, if such loss or damage is covered by
insurance benefitting the party suffering such loss or damage or was required to
be covered by insurance pursuant to this Lease. Each party hereto shall require
its insurer(s) to include in its insurance policies a waiver of subrogation
clause (providing that such waiver of right of recovery against the other party
shall not impair the effectiveness of such policy or the insured's ability to
recover thereunder), and shall promptly notify the other in writing if such
clause cannot be included in any such policy; if such waiver of subrogation
clause shall not be available, then the foregoing waiver of right of recovery
shall be void.
17.7 Security. In the event that Landlord engages the services of a
professional security system for the Building, it is understood that such
engagement shall in no way increase Landlord's liability for occurrences and/or
consequences which such a system is designed to detect or avert and that Tenant
shall look solely to its insurer as set out above for claims for damages or
injury to any person or property.
17.8 Landlord's Insurance. Landlord shall procure and maintain
throughout the Term fire and extended coverage insurance on the Building in such
coverage and amounts as reasonably determined by Landlord in its prudent
management of the Building and as necessary to satisfy the requirements of
Landlord's Mortgagee, if any. At Landlord's option, such insurance may be
carried under any blanket or umbrella policies which Landlord has in force for
other buildings and projects. In addition, at Landlord's option, Landlord may
elect to self-insure all or any part of such required insurance coverage.
Landlord may, but shall not be obligated to, carry any other form or forms of
insurance as Landlord or the mortgagees or ground lessors of Landlord may
reasonably determined is advisable. The proceeds payable under all fire and
other hazard insurance policies maintained by Landlord on the Building shall
belong to and be the property of Landlord, and Tenant shall not have any
interest in such proceeds.
17.9 Coverage. Landlord makes no representation to Tenant that the
limits or forms of coverage specified above or approved by Landlord are adequate
to insure Tenant's Property or Tenant's obligations or assumption of contractual
liability under this Lease, and the limits of any insurance carried by Tenant
shall not limit its duties and obligations under this Lease.
-31-
<PAGE>
ARTICLE 18: LANDLORD SERVICES AND UTILITIES
-32-
<PAGE>
18.1 Ordinary Services to the Premises. As long as no Event of Default
has occurred and is continuing and subject to Legal Requirements and Force
Majeure events, Landlord shall use best efforts to furnish to the Premises
throughout the Term (i) electricity appropriate for the Permitted Use, (ii)
heating and air conditioning appropriate for the Permitted Use during Normal
Business Hours, (iii) regular janitorial service, (iv) regular trash removal
from the Premises, (v) hot and cold water from points of supply, (vi) adequate
supplies for restrooms located in the Common Area, and (vii) elevator service,
provided that Landlord shall have the right to temporarily remove such elevators
from service as may be required for moving, freight or for servicing or
maintaining the elevators or the Building or for security reasons. The cost of
all services provided by Landlord hereunder shall be included within Operating
Expenses, unless charged directly (and not as a part of Operating Expenses) to
Tenant or another tenant of the Building. The foregoing services shall be
furnished by Landlord and reimbursed by Tenant as part of Operating Expenses;
provided, however, that Landlord shall be under no responsibility or liability
for failure, defect or interruption in such services caused by Force Majeure,
breakage, accident, strikes, repairs or for any other cause or causes beyond the
control of Landlord, nor in any event for any indirect or consequential damages;
and failure or omission on the part of Landlord to furnish such service shall
not be construed as an eviction of Tenant, nor work an abatement of Rent, nor
render Landlord liable in damages, nor release Tenant from prompt fulfillment of
any of the covenants under this Lease. Landlord may comply with voluntary
controls or guidelines promulgated pursuant to any Legal Requirements relating
to the use or conservation of energy, water, gas, light, or electricity or the
reduction of automobile or other emissions without creating any liability of
Landlord to Tenant under this Lease. Landlord shall not be responsible if the
normal operation of the Building air-conditioning system shall fail to provide
conditioned air within comfortable temperatures levels (A) in any portions of
the Premises which have a connected electrical load for all purposes (including
lighting and power) or which have a human occupancy in excess of the average
electrical load and human occupancy factors for which the Building
air-conditioning system is designed, (B) because of Alterations made by or on
behalf of Tenant, (C) in any portions of the Premises exposed to direct sunlight
in which Tenant fails to keep the window treatments closed, or (D) because of
the failure by Tenant or its Agents to use the HVAC system in the manner in
which it was designed to be used. Tenant agrees to observe and comply with all
reasonable rules from time to time prescribed by Landlord for the proper
functioning and protection of the HVAC systems in the Building.
-33-
<PAGE>
18.2 After-Hours Services to the Premises. If Tenant requires or
requests that the services to be furnished by Landlord (except Building standard
electricity and elevator service) be provided during periods in addition to the
periods set forth in Section 18.1, then Tenant shall obtain Landlord's consent
thereto and, if such consent is granted, shall pay upon demand Landlord's
additional expenses resulting therefrom. Landlord may, from time to time during
the Term, set a per hour charge for after-hours service which shall include the
cost of utility, service, labor costs, administrative costs and a cost for
depreciation of the equipment used to provide such after-hours service.
After-hours HVAC charges shall be the actual costs incurred which shall be
documented by reasonable request of Tenant, but shall not exceed Twenty-Five and
00/100 Dollars ($25.00) per hour, per floor.
18.3 Utility Charges. All telephone, electricity, gas, heat and other
utility service furnished to the Premises shall be paid for directly by Tenant
except to the extent the cost of same is included within, and paid for by Tenant
as part of, Operating Expenses. Landlord reserves the right separately to meter
or monitor the utility services provided to the Premises. The cost of any such
meter shall be borne by the Tenant only if excess consumption is established.
Tenant shall reimburse Landlord for the cost of any excess utility usage in the
Premises. Excess usage shall mean the excess of the estimated usage in the
Premises (on a rentable square foot basis) during any billing period over the
building standard usage (which shall mean the average per square foot usage of
all office tenants in the Building during Normal Business Hours excluding the
Tenant or any other tenants notified by Landlord of excessive utility
consumption) during the same period as reasonably calculated by landlord. Tenant
shall pay for the excess consumption of electricity at the then-current price
per kilowatt hour and price per unit of demand charged Landlord by the utility
company plus a reasonable administrative cost which shall include service, labor
costs, administrative costs and a cost for depreciation of the equipment used to
provide such excess service.
ARTICLE 19: LIABILITY OF LANDLORD
-34-
<PAGE>
19.1 No Liability. Except where due to Landlord or its Agents' gross
negligence or willful misconduct, Landlord and its Agents shall not be liable to
Tenant or its Agents for, and Tenant, for itself and its Agents, does hereby
release Landlord and its Agents from liability for, any liability, damage,
compensation or claim arising from (i) the necessity of repairing any portion of
the Premises or the Building or the Common Area or any structural defects
thereto, (ii) any interruption in the use of the Premises or the Common Area for
any reason including any interruption or suspension of utility service, (iii)
fire or other casualty or personal or property injury, damage or loss resulting
from the use or operation (by Landlord, Tenant, or any other person whomsoever)
of the Premises or the Building or the Common Area, (iv) the termination of this
Lease, (v) robbery, assault, theft or other crime, or (vi) any leakage in the
Premises or the Building from water, rain, snow or casualty, or any other cause
whatsoever. No such occurrence shall give rise to diminution or abatement of
Rent or constructive eviction, unless the Premises are rendered untenable by
such failure, suspension, delay or interruption of services for five (5)
consecutive business days, in which event Tenant may abate paying rent from said
fifth (5th) day until such service is restored. Notwithstanding the foregoing,
any goods, automobiles, property or personal effects stored or placed by Tenant
or its Agents in or about the Premises, the Building or the Common Area shall be
at the sole risk of Tenant; Tenant hereby expressly waives its right to recover
against Landlord and its Agents therefor. Tenant hereby waives any claim it
might have against Landlord or its Agents for any consequential damages or
business losses sustained by Tenant arising out of the loss or damage to any
person or property of Tenant, or any interruption in the use of the Premises or
the Common Area, for any reason, except if due to Landlord's gross negligence
and willful misconduct. Tenant acknowledges its obligation to insure against
such losses and damages. Tenant shall not have the right to offset or deduct any
amount allegedly owed to Tenant pursuant to any claim against Landlord from any
rent or other sum payable to Landlord. Tenant's sole remedy for recovering upon
such claim shall be to institute an independent action against Landlord.
19.2 Indemnity. Tenant shall indemnify, defend, protect and hold
Landlord and its Agents harmless from and against any and all damage, claim,
liability, cost or expense (including, without limitation, reasonable attorneys'
or other professionals' fees) of every kind and nature (including, without
limitation, those arising from any injury or damage to any person, property or
business) incurred by or claimed against Landlord or its Agents, directly or
indirectly, as a result of, arising from or in connection with (i) Tenant's or
its Agents' use, occupancy, repair or
-35-
<PAGE>
maintenance of the Premises, the Building or the Common Area; (ii) Tenant's
breach of any provision of this Lease; or (iii) any act, omission or negligence
of Tenant or its Agents.
Tenant shall not be liable for, and Landlord shall indemnify
and save harmless Tenant from and against all fines, damages, suits, claims,
demands, losses and actions (including reasonable attorneys' fees) for any
injury to person (including death) or damage to or loss of property on or about
the common areas of the Building caused by the gross negligence or willful
misconduct of Landlord, its employees, contractors agents or by any other person
entering the common areas of the Building under the express or implied
invitation of Landlord, or arising out of Landlord's use of the common areas.
Tenant shall not be liable or responsible for any loss or damage to the property
or death or injury to any person occasioned by theft, fire, act of God, public
enemy, criminal conduct of third parties, injunction, riot, strike,
insurrection, war, court order, requisition or other governmental body or
authority, by other tenants of the Building or any other matter beyond the
reasonable control of Tenant, except the negligence or willful misconduct of
Tenant, its agents, employees, invitees, and contractors.
19.3 Limitation on Recourse. Notwithstanding anything contained in this
Lease to the contrary, the obligations of Landlord under this Lease (including
any actual or alleged breach or default by Landlord) do not constitute personal
obligations of the individual partners, directors, officers, shareholders,
trustees, advisors or agents of Landlord or Landlord's partners, and Tenant
shall not seek recourse against the individual partners, directors, officers or
shareholders, trustees, advisors or agents of Landlord or Landlord's partners,
or any of their personal assets for satisfaction of any liability with respect
to this Lease. In addition, in consideration of the benefits accruing hereunder
to Tenant and notwithstanding anything contained in this Lease to the contrary,
Tenant hereby covenants and agrees for itself and all of its successors and
assigns that the liability of Landlord for its obligations under this Lease
(including any liability as a result of any actual or alleged failure, breach or
default hereunder by Landlord), shall be limited solely to, and Tenant's and its
successors' and assigns' sole and exclusive remedy shall be against Landlord's
interest in the Building and Land and proceeds therefrom, and no other assets of
Landlord. In the event that the original Landlord hereunder, or any successor
owner of the Building, shall sell or convey the Building, all liabilities and
obligations on the part of the original Landlord, or such successor owner, under
this Lease occurring thereafter shall terminate as of the day of such sale, and
thereupon all such liabilities and obligations shall be binding on the new
owner.
-36-
<PAGE>
ARTICLE 20: RULES AND REGULATIONS
20.1 General. Tenant and its Agents shall at all times abide by and
observe the Rules and Regulations and any amendments thereto that may be
promulgated from time to time by Landlord for the operation and maintenance of
the Building and the Common Area and the Rules and Regulations shall be deemed
to be covenants of the Lease to be performed and/or observed by Tenant. Landlord
shall use commercially reasonable efforts to equitably enforce all Rules and
Regulations. Landlord shall not be liable to Tenant for any violation by any
party of the Rules and Regulations or the terms of any other Building lease. If
there is any inconsistency between this Lease and the Rules and Regulations,
this Lease shall govern. Landlord reserves the right to amend and modify the
Rules and Regulations as it deems necessary, provided that such Rules and
Regulations shall not materially affect nor substantially interfere with the
intended use of the Premises as general office use.
ARTICLE 21: DAMAGE AND CONDEMNATION
-37-
<PAGE>
21.1 Damage to the Premises. If the Premises shall be damaged by fire
or other cause without the fault or negligence of Tenant or its Agents, Landlord
shall diligently and as soon as practicable after such damage occurs (taking
into account the time necessary to effect a satisfactory settlement with any
insurance company involved and any delays beyond the direct control of Landlord)
repair such damage to the Premises (excluding the Tenant's Property) at the
expense of Landlord; provided, however, that Landlord's obligation to repair
such damage shall not exceed the proceeds of insurance available to Landlord
(reduced by any proceeds retained pursuant to the rights of Mortgagee).
Notwithstanding the foregoing, (i) if the Premises or the Building is damaged by
fire or other cause to such an extent that, in Landlord's sole judgment, the
damage cannot be substantially repaired within two hundred (200) days after the
date of such damage then Landlord within sixty (60) days from the date of such
damage may terminate this Lease by written notice to Tenant, or (ii) if the
Premises are damaged during the last Lease Year, then Landlord or Tenant within
thirty (30) days from the date of such damage may terminate this Lease by
written notice to the other. If either Landlord or Tenant terminates this Lease,
the Rent shall be apportioned and paid to the date of such termination. If
neither Landlord nor Tenant so elects to terminate this Lease but the damage
required to be repaired by Landlord is not repaired within two hundred (200)
days from the date of such damage (such two hundred (200) day period to be
extended by the period of any delay outside the direct control of Landlord plus
a reasonable period for a satisfactory settlement with any insurance company
involved), Tenant, within thirty (30) days from the expiration of such two
hundred (200) day period (as the same may be extended), may terminate this Lease
by written notice to Landlord. During the period that Tenant is deprived of the
use of the damaged portion of the Premises, and provided such damage is not the
consequence of the fault or negligence of Tenant or its Agents, Base Rent and
Tenant's Proportionate Share shall be reduced by the ratio that the rentable
square footage of the Premises damaged bears to the total rentable square
footage of the Premises before such damage. Notwithstanding anything herein to
the contrary, Landlord shall not be required to rebuild, replace or repair of
the Tenant's Property. In the event that neither party terminates this Lease as
aforesaid, Tenant shall be required to repair or replace the Tenant's Property.
21.2 Condemnation. If the whole or a Substantial Part of the Premises
or the Building shall be taken or condemned by any governmental or
quasi-governmental authority for any public or quasi-public use or purpose
(including, without limitation, sale under threat of such a taking), then the
Term shall cease and terminate as of the date when title vests in such
governmental or quasi-governmental authority, and Rent shall be prorated to the
date
-38-
<PAGE>
when title vests in such governmental or quasi-governmental authority. If less
than a Substantial Part of the Premises is taken or condemned by any
governmental or quasi-governmental authority for any public or quasi-public use
or purpose (including, without limitation, sale under threat of such a taking),
Base Rent and Tenant's Proportionate Share shall be reduced by the ratio that
the portion so taken bears to the rentable square footage of the Premises before
such taking, effective as of the date when title vests in such governmental or
quasi-governmental authority, and this Lease shall otherwise continue in full
force and effect. Tenant shall have no claim against Landlord (or otherwise) as
a result of such taking, and Tenant hereby agrees to make no claim against the
condemning authority for any portion of the amount that may be awarded as
compensation or damages as a result of such taking; provided, however, that
Tenant may, to the extent allowed by law, claim an award for moving expenses and
for the taking of any of Tenant's Property (other than its leasehold interest in
the Premises) which does not, under the terms of this Lease, become the property
of Landlord at the termination hereof, as long as such claim is separate and
distinct from any claim of Landlord and does not diminish Landlord's award.
Tenant hereby assigns to Landlord any right and interest it may have in any
award for its leasehold interest in the Premises.
ARTICLE 22: DEFAULT
22.1 Events of Default. Each of the following shall constitute an Event
of Default: (i) Tenant fails to pay Rent within five business (5) days after
written notice from Landlord; provided that no such notice shall be required if
at least two such notices shall have been given during the same Lease Year; (ii)
Tenant fails to observe or perform any other term, condition or covenant herein
binding upon or obligating Tenant (or be diligently and continuously pursuing
same) within twenty (20) days after written notice from Landlord, (iii) Tenant
abandons or vacates the Premises; (iv) Tenant or any Guarantor makes or consents
to a general assignment for the benefit of creditors or a common law composition
of creditors, or a receiver of the Premises or all or substantially all of
Tenant's or Guarantor's assets is appointed; (v) a Transfer in violation of
Article 11 herein; or (vi) the failure by Tenant to timely perform any of those
covenants described in Section 17.1 of this Lease.
22.2 Landlord's Remedies. Upon the occurrence of an Event of Default,
Landlord, at its option, without further notice or demand to Tenant, may in
addition to all other rights and remedies provided in this Lease, at law or in
equity:
-39-
<PAGE>
(a) Terminate this Lease and Tenant's right of possession of
the Premises. If Landlord elects to terminate the Lease, every obligation of the
parties shall cease as of the date of such termination, except for those
obligations of the Tenant that survive the expiration or earlier termination of
the Lease and as provided in Section 22.3.
(b) Terminate Tenant's right of possession of the Premises
without terminating this Lease, in which event Landlord may, but shall not be
obligated to, relet the Premises, or any part thereof, for the account of
Tenant, for such rent and term and upon such other conditions as are acceptable
to Landlord in its sole and absolute discretion. For purposes of such reletting,
Landlord is authorized to repair, alter and improve the Premises to the extent
necessary in Landlord's sole discretion.
(c) Re-enter and repossess the Premises and remove all persons
and effects therefrom, by summary proceeding, ejectment or other legal action or
by using such force as may be necessary. Landlord shall have no liability by
reason of any such re-entry, repossession or removal.
22.3 Tenant's Liability for Damages. If Landlord terminates this Lease
or the Tenant's right to possession pursuant to Section 22.2, Tenant shall
remain liable (in addition to accrued liabilities) to the extent legally
permissible for (i) the sum of (A) all Base Rent and Additional Rent provided
for in this Lease until the date this Lease would have expired had such
termination not occurred, and (B) any and all reasonable costs, expenses and
damages incurred by Landlord in terminating the Lease, reentering the Premises,
repossessing the same, making good any default of Tenant, painting, altering or
dividing the Premises, combining the same with any adjacent space for any new
tenants, putting the same in proper repair, reletting the same (including any
and all rental concessions to new tenants, repairs, Alterations, attorneys' fees
and disbursements and brokerage fees and commissions), and any and all expenses
which Landlord may incur during the occupancy of any new tenant (other than
expenses of a type that are Landlord's responsibility under the terms of this
Lease); less (ii) the proceeds of any reletting. Tenant agrees to pay to
Landlord the difference between items (i) and (ii) above with respect to each
month during the Term, at the end of such month. Any suit brought by Landlord to
enforce collection of such difference for any one month shall not prejudice
Landlord's right to enforce the collection of any difference for any subsequent
month. In addition to the foregoing, Tenant shall pay to Landlord such sums as
the court which has jurisdiction thereover may adjudge reasonable as attorneys'
fees with respect to any successful lawsuit or action instituted by Landlord to
enforce the
-40-
<PAGE>
provisions of this Lease. Landlord shall have the right, at its sole option, to
relet the whole or any part of the Premises for the whole of the unexpired Term,
or longer, or from time to time for shorter periods, for any rental then
obtainable, giving such concessions of rent and making such special repairs,
Alterations and paintings for any new tenant as Landlord, in its sole but good
faith discretion, may deem advisable. To the extent that Landlord attempts to
relet the Premises, Landlord shall be under no obligation to lease all or any
portion of the Premises before any other space in the Building is fully leased
by Landlord and that if at the time of any reletting of the Premises there
exists other reasonably comparable space in the Building available for leasing,
then the Premises shall be deemed the last space rented, even though the
Premises may be relet prior to the date such other reasonable comparable space
is leased. Tenant's liability as aforesaid shall survive the institution of
summary proceedings and the issuance of any warrant thereunder. Upon the
occurrence of an Event of Default, Landlord may recover from Tenant the value
and/or cost of all concessions to Tenant under this Lease.
22.4 Liquidated Damages. If Landlord terminates this Lease pursuant to
Section 22.2, Landlord shall have the right, at any time, at its option, to
require Tenant to pay to Landlord, on demand, as liquidated and agreed final
damages in lieu of Tenant's liability under Section 22.3 (other than for
Tenant's liability for concessions, attorneys' and brokerage fees), an amount
equal to the difference, discounted to the date of such demand at an annual rate
of interest equal to the then-current yield on actively traded U.S. Treasury
bonds with 10-year maturities, as published in the Federal Reserve Statistical
Release for the week prior to the date of such termination, between (i) the Base
Rent and Additional Rent, computed on the basis of the then-current annual rate
of Base Rent and Additional Rent and all fixed and determinable increases in
Base Rent, which would have been payable from the date of such demand to the
date when this Lease would have expired, if it had not be terminated, and (ii)
the then fair rental value of the Premises for the same period as determined by
the Landlord. Upon payment of such liquidated and agreed final damages, Tenant
shall be released from all further liability under this Lease with respect to
the period after the date of such demand except for those obligations of the
Tenant that survive the expiration or earlier termination of the Lease. If,
after the Event of Default giving rise to the termination of this Lease, but
before presentation of proof of such liquidated damages, the Premises, or any
part thereof, shall be relet by Landlord for a term of one year or more, the
amount of rent reserved upon such reletting shall be deemed to be the fair
rental value for the part of the Premises so relet during the term of such
reletting.
-41-
<PAGE>
22.5 Rights Upon Possession. If Landlord takes possession pursuant to
this Article, with or without terminating this Lease, Landlord may, at its
option, enter into the Premises, remove Tenant's Alterations, signs, personal
property, equipment and other evidences of tenancy, and store them at Tenant's
risk and expense, or dispose of them after notice to Tenant, as Landlord may see
fit, and take and hold possession of the Premises; provided, however, that if
Landlord elects to take possession only without terminating this Lease, such
entry and possession shall not terminate this Lease or release Tenant or any
Guarantor, in whole or in part, from the obligation to pay the Rent reserved
hereunder for the full Term or from any other obligation under this Lease or any
guaranty thereof.
22.6 No Waiver. If Landlord shall institute proceedings against Tenant
and a compromise or settlement thereof shall be made, the same shall not
constitute a waiver of any other covenant, condition or agreement herein
contained, nor of any of Landlord's rights hereunder. No waiver by Landlord of
any breach shall operate as a waiver of such covenant, condition or agreement,
or operate as a waiver of such covenant, condition or agreement itself, or of
any subsequent breach thereof. No payment of Rent by Tenant or acceptance of
Rent by Landlord shall operate as a waiver of any breach or default by Tenant
under this Lease. No payment by Tenant or receipt by Landlord of a lesser amount
than the monthly installment of Rent herein stipulated shall be deemed to be
other than a payment on account of the earliest unpaid Rent, nor shall any
endorsement or statement on any check or communication accompanying a check for
the payment of Rent be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such Rent or to pursue any other remedy provided in this Lease.
No re-entry by Landlord, and no acceptance by Landlord of keys from Tenant,
shall be considered an acceptance of a surrender of the Lease.
22.7 Right of Landlord to Cure Tenant's Default. If an Event of Default
shall occur, then Landlord may (but shall not be obligated to) make such payment
or do such act to cure the Event of Default, and charge the amount of the
expense thereof, together with interest thereon at the Interest Rate, to Tenant.
Such payment shall be due and payable upon demand; however, the making of such
payment or the taking of such action by Landlord shall not be deemed to cure the
Event of Default or to stop Landlord from the pursuit of any remedy to which
Landlord would otherwise be entitled. Any such payment made by Landlord on
Tenant's behalf shall bear interest until paid at the Interest Rate.
-42-
<PAGE>
22.8 Late Payment. If Tenant fails to pay any Rent within five (5)
business days after written notice that such Rent is due and payable, Tenant
shall pay to Landlord a late charge of five percent (5%) of the amount of such
overdue Rent, except that the late charge shall be waived by Landlord for the
first two (2) occurrences of such a late payment during a Calendar Year. In
addition, any such late Rent payment shall bear interest from the date such Rent
became due and payable to the date of payment thereof by Tenant at the Interest
Rate. Such late charge and interest shall be due and payable within two (2) days
after written demand from Landlord.
22.9 Landlord's Lien. As security for the performance of Tenant's
obligations, Tenant grants to Landlord a lien upon and a security interest in
Tenant's Property both existing or hereafter acquired. Such lien shall be in
addition to Landlord's rights of distraint, if any. Within twenty (20) days
after request, Tenant shall execute, acknowledge and deliver to Landlord a
financing statement and any other document submitted to Tenant in form
reasonably acceptable to Tenant evidencing or establishing such lien and
security interest. During any period that an Event of Default exists hereunder,
Tenant shall not sell, transfer or remove from the Premises all or any portion
of Tenant's Property except to repair, exchange, or replace such items of
Tenant's Property comprised of personal property, furniture, and business trade
fixtures and equipment; provided such repair, exchange, or replacement of such
designated items is of equal or greater value. Landlord hereby agrees that its
lien upon Tenant's Property comprised of personal property, furniture, and
business trade fixtures and equipment shall be automatically subordinated to any
purchase money security interest or to the line of any institutional lender of
Tenant, if required by such lender. In confirmation of such subordination upon
the reasonable request of Tenant, Landlord shall at Tenant's expense, execute a
commercially reasonable and customary subordination instrument in form
acceptable to Landlord in its sole and absolute discretion.
22.10 Landlord Default. If Landlord shall fail to keep or perform any
of its obligations under this Lease, then Tenant may (but shall not be obligated
to do so) upon the continuance of such failure on Landlord's part for thirty
(30) days after Landlord's receipt of written notice from Tenant specifying the
failure (or, in the case of any such failure which cannot with due diligence be
cured within said thirty (30) day period, within such additional period, if any,
as may be reasonably required by Landlord to cure such failure with due
diligence), and without waiving or releasing Landlord from any obligation, make
such payment or perform such obligation and all sums so paid by Tenant and all
necessary and incidental costs and expenses, including reasonable attorney's
fees paid to
-43-
<PAGE>
independent legal counsel, incurred by Tenant in making such payment or
performing such obligation, together with interest thereon at the Interest Rate
from the date of payment, shall be paid by Landlord to Tenant within thirty (30)
days of written demand, and if not so paid by Landlord, Tenant shall have the
right to pursue any legal remedies available to it to collect payment, but shall
not be entitled to offset such payment against Rent thereafter payable under
this Lease.]
ARTICLE 23: BANKRUPTCY
23.1 Event of Bankruptcy. An "Event of Bankruptcy" is: the occurrence,
with respect to Tenant, of any of the following: (i) Tenant's becoming
insolvent, as that term is defined in Title 11 of the United States Code (the
"Bankruptcy Code"), or under the insolvency laws of any state (the "Insolvency
Laws"); (ii) appointment of a receiver or custodian for any property of Tenant,
or the institution of a foreclosure or attachment action upon any property of
Tenant; (iii) filing of a voluntary petition by Tenant under the provisions of
the Bankruptcy Code or Insolvency Laws; (iv) filing of an involuntary petition
against Tenant as the subject debtor under the Bankruptcy Code or insolvency
Laws, which either (A) is not dismissed within sixty (60) days after filing, or
(B) results in the issuance of an order for relief against the debtor; or (v)
Tenant's making or consenting to an assignment for the benefit of creditors or a
composition of creditors.
23.2 Remedies. Upon occurrence of an Event of Bankruptcy, Landlord
shall have all rights and remedies available pursuant to Article XXII; provided,
however, that while a case (the "Case") in which Tenant is the subject debtor
under the Bankruptcy Code is pending, Landlord's right to terminate this Lease
shall be subject, to the extent required by the Bankruptcy Code, to any rights
of Tenant or its trustee in bankruptcy (collectively, "Trustee") to assume or
assign this Lease pursuant to the Bankruptcy Code. Trustee shall not have the
right to assume or assign this Lease unless Trustee promptly: (i) cures all
defaults under this Lease; (ii) compensates Landlord for damages incurred as a
result of such defaults; (iii) provides adequate assurance of future performance
on the part of Tenant or Tenant's assignee; (iv) complies with the other
requirements of this Article; and (v) complies with all other requirements of
the Bankruptcy Code. If Trustee fails to assume or assign this Lease in
accordance with the requirements of the Bankruptcy Code within sixty (60) days
after entry of an order for relief then Trustee shall be deemed to have rejected
this Lease. Adequate assurance of future performance shall require that the
-44-
<PAGE>
following minimum criteria be met: (A) Tenant's gross receipts in the ordinary
course of business during the thirty (30) days preceding the Case must be
greater than ten (10) times the next monthly installment of the Base Rent and
additional rent; (B) both the average and median of Tenant's monthly gross
receipts in the ordinary course of business during the seven (7) months
preceding the Case must be greater than ten (10) times the next monthly
installment of the Base Rent and additional rent; (C) Trustee must pay its
estimated pro-rata share of the cost of all services performed or provided by
Landlord (whether directly or through agents or contractors and whether or not
previously included as part of the Base Rent) in advance of the performance or
provision of such services; (D) Trustee must agree that Tenant's business shall
be conducted in a first-class manner, and that no liquidating sale, auction or
other non-first-class business operation shall be conducted in the Premises; (E)
Trustee must agree that the use of the Premises as stated in this Lease shall
remain unchanged and that no prohibited use shall be permitted; (F) Trustee must
agree that the assumption or assignment of this Lease shall not violate or
affect the rights of other tenants in the Building and the complex or area in
which the Building is located; (G) Trustee must pay at the time the next monthly
installment of the Base Rent is due, in addition to such installment, an amount
equal to the monthly installments of the Base Rent and additional rent due for
the next six (6) months thereafter, such amount to be held as a security
deposit; (H) Trustee must agree to pay, at any time Landlord draws on such
security deposit, the amount necessary to restore such security deposit to its
original amount; and (I) all assurances of future performance specified in the
Bankruptcy Code must be provided. If Trustee shall propose to assume and assign
this Lease to any person who shall have made a bona fide offer to accept an
assignment of this Lease on terms acceptable to Trustee, then notice of such
proposed assignment shall be given to Landlord by Trustee no later than twenty
(20) days after receipt by Trustee of such offer, but in any event no later than
ten (10) days prior to the date that Trustee shall make application to the court
of competent jurisdiction for approval to assume this Lease and enter into such
assignment, and Landlord shall thereupon have the option, to be exercised by
notice to Trustee given at any time prior to the date of such application, to
accept an assignment of this Lease upon the same terms and conditions and for
the same consideration, if any, as the offer made by such person, less any
brokerage commissions which may be payable out of the consideration to be paid
by such person for the assignment of this Lease.
ARTICLE 24: MORTGAGES
Subordination.
-45-
<PAGE>
(a) This Lease and Tenant's interest hereunder shall be, at
the option of Mortgagee's collateral agent, subordinate to or superior to the
lien of any Mortgage made by Landlord. If at any time or from time to time
during the Term, a Mortgagee or prospective Mortgagee, or a collateral agent
therefor, requests that this Lease be subject and subordinate to its Mortgage,
this Lease and Tenant's interest hereunder shall be subject and subordinate to
the lien of such Mortgage and to all renewals, modifications, replacements,
consolidations and extensions thereof and to any and all advances made
thereunder and the interest thereon. Tenant agrees that, within twenty (20) days
after receipt of a written request therefor from Landlord, it will, from time to
time, execute and deliver any instrument or other document required by any such
Mortgagee to subordinate this Lease and its interest in the Premises to the lien
of such Mortgage. If, at any time or from time to time during the Term, a
Mortgagee of a Mortgage made prior to the date of this Lease shall request that
this Lease have priority over the lien of such Mortgage, and if Landlord
consents thereto, this Lease shall have priority over the lien of such Mortgage
and all renewals, modifications, replacements, consolidations and extensions
thereof and all advances made thereunder and the interest thereon, and Tenant
shall, within ten (10) days after receipt of a request therefor from Landlord,
execute, acknowledge and deliver any and all documents and instruments
confirming the priority of this Lease. In any event, however, if this Lease
shall have priority over the lien of a first Mortgage, this Lease shall not
become subject or subordinate to the lien of any subordinate Mortgage, and
Tenant shall not execute any subordination documents or instruments for any
subordinate Mortgagee, without the written consent of the first Mortgagee.
Notwithstanding the foregoing to the contrary, with respect to each
Mortgage that may encumber the Building on or after the Commencement Date,
Landlord agrees, upon receipt of written request from Tenant, to use reasonable
efforts to obtain on behalf of Tenant a subordination, nondisturbance and
attornment agreement in the usual form of such Mortgagee, such form for the
current Mortgagee attached hereto as Exhibit E. Tenant shall bear all reasonable
and customary costs and expenses of such Mortgagee in connection with obtaining
such subordination, nondisturbance and attornment agreement(s), if any.
(b) This Lease and Tenant's interest hereunder shall be
subject and subordinate to each and every ground or underlying lease hereafter
made of the Building or the land on which it is located, or both, and to all
renewals, modifications, consolidations, replacements and extensions thereof.
Tenant agrees that, within twenty (20) days after receipt of request therefor
from Landlord, it will, from time to time, execute, acknowledge and deliver any
-46-
<PAGE>
instrument or other document required by any such lessor to subordinate this
Lease and its interest in the Premises to such ground or underlying lease.
24.2 Mortgagee Protection. Tenant agrees to give any Mortgagee or
Mortgagee's collateral agent, by certified mail, return receipt requested, a
copy of any notice of default served upon Landlord, provided that before such
notice Tenant has been notified in writing of the address of such Mortgagee or
Mortgagee's collateral agent. Tenant further agrees that if Landlord shall have
failed to cure such default within the time provided for in this Lease, then the
Mortgagee or Mortgagee's collateral agent shall have an additional thirty (30)
days within which to cure such default; provided, however, that if such default
cannot be reasonably cured within that time, then such Mortgagee or Mortgagee's
collateral agent shall have such additional time as may be necessary to cure
such default so long as Mortgagee or Mortgagee's collateral agent has commenced
and is diligently pursuing the remedies necessary to cure such default
(including, without limitation, the commencement of foreclosure proceedings, if
necessary), in which event Tenant shall not exercise any remedies for default
while such remedies are being so diligently pursued. In the event of the sale of
the Land or the Building, by foreclosure or deed in lieu thereof, the Mortgagee
or purchaser at such sale shall be responsible for the return of the Security
Deposit only to the extent that such Mortgagee or purchaser actually received
the Security Deposit.
24.3 Modification Due to Financing. If, in connection with obtaining
construction or permanent financing for the Premises, the Building or the Land,
any lender (or Mortgagee) shall request reasonable modifications of this Lease
as a condition to such financing, Tenant shall promptly execute a modification
of this Lease, provided such modifications do not materially increase the
financial obligations of Tenant hereunder or materially adversely affect the
leasehold interest hereby created or Tenant's reasonable use and enjoyment of
the Premises. Tenant and any Guarantor shall each, prior to execution and
throughout the Term, upon request from time to time, provide such financial
information and documentation about itself to Landlord or Mortgagee as may be
requested.
24.4 Attornment. In the event of (i) a transfer of Landlord's interest
in the Premises, (ii) the termination of any ground or underlying lease of the
Building or the land on which it is constructed, or both, or (iii) the purchase
of the Building or Landlord's interest therein in a foreclosure sale or by deed
in lieu of foreclosure under any Mortgage or pursuant to a power of sale
contained in any Mortgage, then in any of such events Tenant shall, at the
-47-
<PAGE>
request of Landlord or Landlord's successor in interest, attorn to and recognize
the transferee or purchaser of Landlord's interest or the lessor under the
terminated ground or underlying lease, as the case may be, as Landlord under
this Lease for the balance then remaining of the Term, and thereafter this Lease
shall continue as a direct lease between such lessor, transferee or purchaser,
as "Landlord," and Tenant, as "Tenant," except that such lessor, transferee or
purchaser shall not be liable for any act or omission of Landlord prior to such
lease termination or prior to its succession to title, nor be subject to any
offset, defense or counterclaim accruing prior to such lease termination or
prior to such succession to title, nor be bound by any payment of Base Rent or
Additional Rent prior to such lease termination or prior to such succession to
title for more than one month in advance. Tenant shall, upon request by Landlord
or the transferee or purchaser of Landlord's interest or the lessor under the
termination ground or underlying lease, as the case may be, execute and deliver
an instrument or instruments confirming the foregoing provisions of this
Section. Tenant hereby waives the provisions of any present or future law or
regulation which gives or purports to give Tenant any right to terminate or
otherwise adversely affect this Lease, or the obligations of Tenant hereunder,
upon or as a result of the termination of any such ground or underlying lease or
the completion of any such foreclosure and sale.
ARTICLE 25: SURRENDER AND HOLDING OVER
25.1 Surrender of the Premises. Tenant shall peaceably surrender the
Premises to Landlord on the Expiration Date or earlier termination of this
Lease, in broom-clean condition and in as good condition as when Tenant took
possession, including, without limitation, the repair of any damage to the
Premises caused by the removal of any of Tenant's Property except for reasonable
wear and tear and loss by fire or other casualty not caused by Tenant or its
Agents. If, for any reason, Tenant fails to surrender the Premises on the
expiration or earlier termination of this Lease with such removal and repair
obligations completed, then, in addition to the provisions of Section 25.2
herein and Landlord's rights and remedies under Article 22 and the other
provisions of this Lease, Tenant shall indemnify, defend (by counsel reasonably
approved in writing by Landlord) and hold Landlord harmless from and against any
and all claims, judgments, suits, causes of action, damages, losses, liabilities
and expenses (including attorneys' fees and court costs) resulting from such
failure to surrender, including, without limitation, any claim made by any
succeeding tenant based thereon. The foregoing indemnity shall survive the
expiration or earlier termination of this Lease.
-48-
<PAGE>
25.2 Holding Over. In the event that Tenant shall not immediately
surrender the Premises to Landlord on the Expiration Date or earlier termination
of this Lease, Tenant shall be deemed to be a month to month tenant upon all of
the terms and provisions of this Lease, except the monthly Base Rent shall be
equal to the greater of: (a) one hundred fifty percent (150%) of the Base Rent
and Additional Rent applicable to the Premises immediately prior to the date of
such expiration or earlier termination; or (b) one hundred fifty percent (150%)
of the prevailing market rate excluding any rental or other concessions (as
reasonably determined by Landlord) for the Premises in effect on the date of
such expiration or earlier termination. Acceptance by Landlord of rent after
such expiration or earlier termination shall not constitute a consent to a hold
over hereunder or result in an extension of this Lease. Tenant shall pay an
entire month's Rent calculated in accordance with this Section 25.2 for any
portion of a month it holds over and remains in possession of the Premises
pursuant to this Section.
ARTICLE 26: QUIET ENJOYMENT
26.1 General. Landlord covenants that if Tenant shall pay Rent and
perform all of the terms and conditions of this Lease to be performed by Tenant,
Tenant shall during the Term peaceably and quietly occupy and enjoy possession
of the Premises without molestation or hindrance by Landlord or any party
claiming through or under Landlord, subject to the provisions of this Lease and
any Mortgage to which this Lease is subordinate and easements, conditions and
restrictions of record affecting the Land.
ARTICLE 27: TENANT'S COVENANTS REGARDING HAZARDOUS MATERIALS
27.1 Definition. As used in this Lease, the term "Hazardous Material"
means any flammable items, explosives, radioactive materials, hazardous or toxic
substances, material or waste or related materials, including any substances
defined as or included in the definition of "hazardous substances," "hazardous
wastes," "infectious wastes," "hazardous materials" or "toxic substances" now or
subsequently regulated under as defined in any Legal Requirements including,
without limitation, oil, petroleum-based products, paints, solvents, lead,
cyanide, DDT, printing inks, acids, pesticides, ammonia compounds and other
chemical products, asbestos, PCBs and similar compounds, and including any
different products and materials which are subsequently found to have adverse
effects on the environment or the health and safety of persons.
27.2 General Prohibition. Tenant shall not cause or permit any
Hazardous Material to be generated, produced, brought upon, used, stored,
treated, discharged, released, spilled or disposed of on, in, under or about the
-49-
<PAGE>
Premises, the Building or the Land by Tenant or its Agents. Tenant shall
indemnify, defend and hold Landlord harmless from and against any and all
actions (including, without limitation, remedial or enforcement actions of any
kind, administrative or judicial proceedings, and orders or judgments arising
out of or resulting therefrom), costs, claims, damages (including, without
limitation, punitive damages), expenses (including, without limitation,
attorneys', consultants' and experts' fees, court costs and amounts paid in
settlement of any claims or actions), fines, forfeitures or other civil,
administrative or criminal penalties, injunctive or other relief (whether or not
based upon personal or bodily injury, property damage, or contamination of, or
adverse effects upon, the environment, water tables or natural resources),
liabilities or losses arising from a breach of this prohibition by Tenant or its
Agents. Notwithstanding the foregoing, Tenant may use in the Premises common
office products or other office shelf products commonly used as part of a
customary business office, provided such usage is in compliance with all
applicable laws.
27.3 Notice. In the event that Hazardous Materials are discovered upon,
in, or under the Premises, the Building or the Land, and applicable Legal
Requirements require the removal of such Hazardous Materials, Tenant shall be
responsible for removing those Hazardous Materials arising out of or related to
the use or occupancy of the Premises by Tenant or its Agents. Notwithstanding
the foregoing, Tenant shall not take any remedial action in or about the
Premises, the Building or the Land without first notifying Landlord of Tenant's
intention to do so and affording Landlord the opportunity to protect Landlord's
interest with respect thereto. Tenant immediately shall notify Landlord in
writing of: (i) any spill, release, discharge or disposal of any Hazardous
Material in, on or under the Premises, the Building, the Land or any portion
thereof, (ii) any enforcement, cleanup, removal or other governmental or
regulatory action instituted, contemplated, or threatened (if Tenant has notice
thereof) pursuant to any Legal Requirements; (iii) any claim made or threatened
by any person against Tenant, the Premises, the Building or the Land relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from
or claimed to result from any Hazardous Materials; and (iv) any reports made to
any governmental agency or entity arising out of or in connection with any
Hazardous Materials in, on, under or about or removed from the Premises, the
Building or the Land, including any complaints, notices, warnings, reports or
asserted violations in connection therewith. Tenant also shall supply to
Landlord as promptly as possible, and in any event within five (5) business days
after Tenant first
-50-
<PAGE>
receives or sends the same, copies of all claims, reports, complaints, notices,
warnings or asserted violations relating in any way to the Premises, the
Building, the Land or Tenant's use or occupancy thereof.
27.4 Survival. The respective rights and obligations of Landlord and
Tenant under this Article 27 shall survive the expiration or earlier termination
of this Lease.
ARTICLE 28: MISCELLANEOUS
28.1 No Representations by Landlord. Tenant acknowledges that neither
Landlord or its Agents nor any broker has made any representation or promise
with respect to the Premises, the Building, the Land or the Common Area, except
as herein expressly set forth, and no rights, privileges, easements or licenses
are acquired by Tenant except as herein expressly set forth. Tenant, by taking
possession of the Premises shall accept the Premises and the Building "AS IS,"
and such taking of possession shall be conclusive evidence that the Premises and
the Building are in good and satisfactory condition at the time of such taking
of possession.
28.2 No Partnership. Nothing contained in this Lease shall be deemed or
construed to create a partnership or joint venture of or between Landlord and
Tenant, or to create any other relationship between Landlord and Tenant other
than that of landlord and tenant.
28.3 Brokers. Landlord recognizes Broker(s) as the sole broker(s)
procuring this Lease and shall pay Broker(s) a commission therefor pursuant to a
separate agreement between Broker(s) and Landlord. Landlord and Tenant each
represents and warrants to the other that it has not employed any broker, agent
or finder other than Broker(s) relating to this Lease. Landlord shall indemnify
and hold Tenant harmless, and Tenant shall indemnify and hold Landlord harmless,
from and against any claim for brokerage or other commission arising from or out
of any breach of the indemnitor's representation and warranty.
28.4 Estoppel Certificate. Tenant shall, without charge, at any time
and from time to time, within fifteen (15) business days after request therefor
by Landlord, Mortgagee, any purchaser of the Land or the Building or any other
interested person, execute, acknowledge and deliver to such requesting party a
written estoppel certificate certifying, as of the date of such estoppel
certificate, the following: (i) that this Lease is unmodified and in full force
and effect (or if modified, that the Lease is in full force and effect as
modified and setting forth such modifications); (ii) that the Term has commenced
(and setting forth the Commencement Date and Expiration Date); (iii) that Tenant
is presently occupying the Premises; (iv) the amounts of Base Rent and
Additional Rent currently
-51-
<PAGE>
due and payable by Tenant; (v) to the best of Tenant's knowledge that any
Alterations required by the Lease to have been made by Landlord have been made
to the satisfaction of Tenant; (vi) to the best of Tenant's knowledge that there
are no existing set-offs, charges, liens, claims or defenses against the
enforcement of any right hereunder, including, without limitation, Base Rent or
Additional Rent (or, if alleged, specifying the same in detail); (vii) that no
Base Rent (except the first installment thereof) has been paid more than thirty
(30) days in advance of its due date; (viii) that Tenant has no knowledge of any
then uncured default by Landlord of its obligations under this Lease (or, if
Tenant has such knowledge, specifying the same in detail); (ix) that Tenant is
not in default; (x) that the address to which notices to Tenant should be sent
is as set forth in the Lease (or, if not, specifying the correct address); and
(xi) any other reasonable certifications requested by Landlord. Any such
estoppel certificate delivered pursuant to this Subsection 28.4 may be relied
upon by any mortgagee, beneficiary, purchaser or prospective purchaser of any
portion of the Land, as well as their assignees. Tenant's failure to deliver
such estoppel certificate within such time shall be conclusive upon Tenant that:
(a) this Lease is in full force and effect without modification, except as may
be represented by Landlord; (b) there are no uncured defaults in Landlord's or
Tenant's performance; and (c) not more than one (1) month's rental has been paid
in advance. Tenant shall indemnify, defend (with counsel reasonably approved by
Landlord in writing) and hold Landlord harmless from and against any and all
claims, judgments, suits, causes of action, damages, losses, liabilities and
expenses (including attorneys' fees and court costs) attributable to any failure
by Tenant to timely deliver any such estoppel certificate to Landlord pursuant
to this Section 28.4. In addition, within fifteen (15) business days after
request by Landlord, Tenant shall deliver to Landlord audited financial
statements of Tenant for its most recently ended fiscal year and interim
unaudited financial statements for its most recently ended quarter.
28.5 Waiver of Jury Trial. LANDLORD AND TENANT AND IF APPLICABLE THE
GUARANTOR, HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT OR PROCEEDING THAT LANDLORD OR TENANT MAY HEREINAFTER
INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR IN ANY
WAY RELATED TO THIS LEASE OR THE PREMISES. TENANT CONSENTS TO SERVICE OF PROCESS
AND ANY PLEADING RELATING TO ANY SUCH ACTION AT THE PREMISES; PROVIDED, HOWEVER,
THAT NOTHING HEREIN SHALL BE CONSTRUED AS REQUIRING SUCH SERVICE AT THE
PREMISES.
-52-
<PAGE>
LANDLORD, TENANT AND THE GUARANTOR(S), IF APPLICABLE, WAIVE ANY OBJECTION TO THE
VENUE OF ANY ACTION FILED IN ANY COURT SITUATED IN THE JURISDICTION IN WHICH THE
BUILDING IS LOCATED AND WAIVE ANY RIGHT UNDER THE DOCTRINE OF FORUM NON
CONVENIENS OR OTHERWISE TO TRANSFER ANY SUCH ACTION FILED IN ANY SUCH COURT TO
ANY OTHER COURT. TENANT HEREBY WAIVES ANY RIGHT TO PLEAD ANY COUNTERCLAIM,
OFFSET OR AFFIRMATIVE DEFENSE IN ANY ACTION OR PROCEEDINGS BROUGHT BY LANDLORD
AGAINST TENANT. THE AFORESAID WAIVER SHALL NOT BE CONSTRUED, HOWEVER, AS A
WAIVER OF TENANT'S RIGHT TO ASSERT ANY CLAIM IN A SEPARATE ACTION BROUGHT BY
TENANT AGAINST LANDLORD. TENANT AGREES TO PAY ALL RENT WITHOUT ABATEMENT, OFFSET
OR REDUCTION OF ANY KIND WHATSOEVER.
28.6 Notices. No notice, request, consent, approval, waiver or other
communication which may be or is required or permitted to be given under this
Lease shall be effective unless the same is in writing and is delivered in
person or sent by overnight courier service or registered or certified mail,
return receipt requested, first-class postage prepaid, (i) if to Landlord, at
Landlord's Address, or (ii) if to Tenant, at Tenant's Address, or at any other
address that may be given by one party to the other by notice pursuant to this
subsection. Such notices, if sent by registered or certified mail, shall be
deemed to have been given three (3) days after mailing; otherwise they shall be
deemed to have been given upon delivery or attempted delivery.
28.7 Invalidity of Particular Provisions. If any 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 to persons or circumstances other than those to
which it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Lease shall be valid and be enforced to the full extent
permitted by law.
28.8 Gender and Number. All terms and words used in this Lease,
regardless of the number or gender in which they are used, shall be deemed to
include any other number or gender as the context may require.
28.9 Benefit and Burden. Subject to the provisions of Article 11 and
except as otherwise expressly provided, the provisions of this Lease shall be
binding upon, and shall inure to the benefit of, the parties hereto and
-53-
<PAGE>
each of their respective representatives, heirs, successors and assigns.
Landlord may freely and fully assign its interest hereunder.
28.10 Entire Agreement. This Lease (which includes the Exhibits
attached hereto) contains and embodies the entire agreement of the parties
hereto, and no representations, inducements or agreements, oral or otherwise,
between the parties not contained in this Lease shall be of any force or effect.
This Lease (other than the Rules and Regulations, which may be changed from time
to time as provided herein) may not be modified, changed or terminated in whole
or in part in any manner other than by an agreement in writing duly signed by
Landlord and Tenant.
28.11 Authority.
(i) If Tenant signs as a corporation, the person executing
this Lease on behalf of Tenant hereby represents and warrants that Tenant is a
duly formed and validly existing corporation, in good standing, qualified to do
business in the Commonwealth of Virginia, that the corporation has full power
and authority to enter into this Lease and that he or she is authorized to
execute this Lease on behalf of the corporation.
(ii) If Tenant signs as a partnership, the person executing
this Lease on behalf of Tenant hereby represents and warrants that Tenant is a
duly formed, validly existing partnership qualified to do business in the
Commonwealth of Virginia, that the partnership has full power and authority to
enter into this Lease, and that he or she is authorized to execute this Lease on
behalf of the partnership.
28.12 Attorneys' Fees. If, as a result of any default of Landlord or
Tenant in its performance of any of the provisions of this Lease, the other
party uses the services of an attorney in order to secure compliance with such
provisions or recover damages therefor, or to terminate this Lease or evict
Tenant, the non-prevailing party shall reimburse the prevailing party upon
demand for any and all attorneys' fees and expenses so incurred by the
prevailing party.
28.13 Governing Law. This Lease is governed by the laws of the
Commonwealth of Virginia. It is the intention of the parties hereto that this
Lease shall be construed and enforced in accordance with the laws of the
Commonwealth of Virginia.
28.14 Time of the Essence. Time is of the essence as to Tenant's
obligations contained in this Lease.
-54-
<PAGE>
28.15 Force Majeure. Except for Tenant's obligations to pay Rent under
this Lease, neither Landlord nor Tenant shall be required to perform any of its
obligations under this Lease, nor shall such party be liable for loss or damage
for failure to do so, nor shall the other party thereby be released from any of
its obligations under this Lease, where such failure by the non-performing party
arises from or through acts of God, strikes, lockouts, labor difficulties,
explosions, sabotage, accidents, riots, civil commotions, acts of war, results
of any warfare or warlike conditions in this or any foreign country, fire or
casualty, legal requirements, energy shortage or other causes beyond the
reasonable control of the non-performing party, unless such loss or damage
results from the willful misconduct or gross negligence of the non-performing
party.
28.16 Headings. Captions and headings are for convenience of reference
only.
28.17 Memorandum of Lease. Tenant shall, at the request of Landlord,
execute and deliver a memorandum of lease in recordable form. Tenant shall not
record such a memorandum or this Lease without Landlord's consent.
28.18 Landlord's Relocation Option. At any time during the Term,
Landlord shall have the option to relocate Tenant, at no direct cost of Tenant,
to space comparable to the Premises elsewhere in the Building, provided Landlord
gives Tenant three (3) months' written notice. Such relocation space shall be
mutually acceptable to the parties. Upon relocation, such new space shall be
deemed to be the "Premises" hereunder, and Tenant's Proportionate Share shall be
recalculated by Landlord to equal that fraction, the numerator of which is the
rentable square footage of the Premises and the denominator of which is the
rentable square footage of the Building (as reasonably determined by Landlord).
28.19 Attorney-in-Fact. If Tenant fails or refuses to execute and
deliver any instrument or certificate required to be delivered by Tenant
hereunder (including, without limitation, any instrument or certificate required
under Article 24 or Section 28.4 hereof) within the time periods required
herein, then Tenant hereby appoints Landlord as its attorney-in-fact with full
power and authority to execute and deliver such instrument or certificate for
and in the name of Tenant.
28.20 Effectiveness. The submission to Tenant of an unsigned copy of
this document, including drafts and correspondence submitted to Tenant by any
person on Landlord's behalf, shall not constitute an offer or option to
-55-
<PAGE>
lease. This Lease shall become effective and binding only upon execution and
delivery by both Landlord and Tenant.
28.21 Exhibits and Riders. All Exhibits and Riders attached to this
Lease are hereby incorporated in this Lease as though set forth at length
herein.
28.22 Transportation Management. Tenant shall fully comply with all
present or future programs implemented or required by any Legal Requirements or
by Landlord to manage parking, transportation, air pollution or emissions, or
traffic in and around the Building or the metropolitan area in which the
Building is located.
28.23 Mortgagee's Consent. In the event the Premises shall have an area
of 75,000 square feet or greater, this Lease, and any termination, renewal or
amendment thereof, shall be subject to the prior approval of Mortgagee, which
approval shall not be unreasonably withheld or delayed.
28.24 Termination Option. Tenant shall have the right to terminate this
Lease effective September 30, 1999, provided (a) Tenant is not in default under
this Lease either at the time notice of this option is delivered or on the
proposed termination date; (b) Tenant delivers a written notice to Landlord of
its intention to terminate no later than the first (1st) day of February, 1999;
and (c) Tenant delivers to Landlord, with notice provided in (b), a payment
equal to $77,762.75
28.25 Option to Renew. Tenant shall have the right to extend the term
of the Lease for one (1) additional five (5) year lease term (the "Renewal
Term"), upon the following conditions:
(a) Tenant is not in default under the Lease, either at
the time any notice hereunder is given, or at the
time the Renewal Term is to commence;
(b) Landlord has made a good faith determination that
Tenant remains creditworthy;
(c) Tenant has delivered to Landlord notice of its
intention to exercise this option, not less than 270
days prior to the end of the Lease Term;
(d) All lease terms for the Renewal Term shall be the
same as in this Lease, except that the Base Rent and
Landlord concessions, if any, for the Renewal Term
shall be negotiated in goof faith between the
parties; and
(e) If Landlord and Tenant fail to agree as to all terms
and sign an Addendum to the Lease extending the Lease
term as provided in this Section at least 180 days
prior to the end of
-56-
<PAGE>
the Lease Term, then Tenant's right to extend the
term of this Lease shall lapse and Tenant's renewal
option shall be of no force and effect. The renewal
option is personal to Tenant and is non-transferable.
.
-57-
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease as of
the day and year first above written.
ATTEST/WITNESS: LANDLORD:
___________________________ Commonwealth Atlantic Land II Inc.,
Name: _____________________ a Virginia corporation
By: ___________________________________
Name:___________________________________
Title:______________________________ [SEAL]
ATTEST/WITNESS: TENANT:
Versatility Inc.,
a Delaware corporation
___________________________
Name:______________________ By:_________________________________ [SEAL]
Name:___________________________________
-58-
<PAGE>
EXHIBIT A
(PLAN SHOWING PREMISES)
<PAGE>
EXHIBIT B
WORK AGREEMENT
(WITH IMPROVEMENT ALLOWANCE)
This Work Agreement is attached to and made a part of that certain
Lease Agreement dated _______________ 1997 (the "Lease"), between Commonwealth
Atlantic Land II Inc. a Virginia corporation ("Landlord"), and Versatility Inc.,
a Delaware corporation ("Tenant"). The terms used in this Exhibit that are
defined in the Lease shall have the same meanings as provided in the Lease.
1. General.
1.1 Purpose. This Agreement sets forth the terms and conditions
governing the design, permitting and construction of the
tenant improvements ("Tenant Work") to be installed in the
Premises.
1.2 Tenant's Representative. Tenant acknowledges that Tenant has
appointed Barbara Thompson as its authorized representative
("Tenant's Representative") with full power and authority to
bind Tenant for all actions taken with regard to the Tenant
Work. Tenant hereby ratifies all actions and decisions with
regard to the Tenant Work that the Tenant's Representative may
have taken or made prior to the execution of this Work
Agreement. Landlord shall not be obligated to respond to or
act upon any plan, drawing, change order or approval or other
matter relating to the Tenant Work until it has been executed
by Tenant's Representative. Neither Tenant nor Tenant's
Representative shall be authorized to direct Landlord's
general contractor with respect to the Tenant Work. In the
event that the Landlord's general contractor performs any such
work under the direction of Tenant or Tenant's Representative,
then Landlord shall have no liability for the cost of such
work, the cost of corrective work required as a result of such
work, any delay that may result from such work, or any other
problem in connection with such work.
<PAGE>
2. Work and Materials
2.1 Standard Base Building. The standard base building work has
been or will be performed by Landlord at Landlord's sole cost
and expense. The term standard base building means and refers
to the following elements of the Premises: concrete floor
(without floor covering); unfinished perimeter walls;
unfinished ceilings (without acoustical ceilings, ceiling
tiles, suspension system, insulation or light fixtures);
closets for telephone and electrical systems (but not the
systems themselves); building systems within the building core
only as follows: mechanical (including heating, ventilating
and air conditioning systems but excluding any supplemental
HVAC required by the Tenant Plans (as defined below)),
electrical and plumbing systems; and primary fire sprinkler
distribution loop connected to core (secondary branch
distribution to the Premises to accommodate Tenant's specific
tenant improvements shall not be considered standard base
building work).
2.2 Tenant Improvements. Landlord, at Tenant's expense, shall
construct the Premises in accordance with the Tenant Plans,
using reasonable quantities of materials and finishes from
Landlord's building standard inventory. The Tenant Plans shall
be conclusive as to the entire scope of work to be performed
by Landlord ("Tenant Improvements"). Tenant hereby designates
Tucan as Construction Manager of Premises in accordance with
Tenant Plans.
Any remaining Excess Cost shall, at Landlord's option, be paid for in
full by Tenant prior to the commencement of Tenant Work. Landlord and
Tenant shall execute an amendment to the Lease setting forth the amount
of the Excess Cost and Tenant's payment schedule therefore. Landlord
agrees to provide Tenant with an allowance not to exceed Five and
00/100 Dollars ($5.00) per rentable square foot which is equal to a
total of $46,165.00 for the Tenant Improvements ("Improvement
Allowance"). The Tenant Improvements constitute all work, services and
materials which are to be provided at the expense of Landlord in
connection with the Tenant Work (including construction drawings and
specifications). Any unused portion of the Improvement Allowance may be
used by Tenant for improvements which have been previously performed at
its premises located at Oakwood Plaza.
-2-
<PAGE>
3. Design. Tenant shall retain Lederer & Associates as the designated
architect, whose fee shall be paid from the Improvement Allowance.
Tenant shall also use Landlord's MEP contractor. Landlord shall not
provide any design services.
3.1 Services at Landlord's Expense. [Intentionally deleted].
3.2 Services at Tenant's Expense. [Intentionally deleted]
3.3 Time Periods for Tenant's Actions. [Intentionally deleted].
3.4 Approvals by Landlord. All Tenant Plans for the Tenant Work
shall be subject to Landlord's prior written approval, which
shall not be unreasonably withheld, except that Landlord shall
have complete discretion with regard to granting or
withholding approval of Tenant Plans to the extent they impact
the Building's structure or systems or would be visible from
the exterior of the Building or any Common Area within the
Building. Any changes, additions or modifications that Tenant
desires to make to the Tenant Plans also shall be subject to
Landlord's prior written approval, which shall not be
unreasonably withheld except as provided above for Building
structure, system or appearance impact.
4. Pricing and Construction.
4.1 Cost Estimate. [Intentionally deleted].
4.2 Construction. After approval of the Construction Drawings and
Specifications, Landlord shall administer the construction of
the Tenant Work in accordance with the approved Construction
Drawings and Specifications and approved change orders. All
Tenant Work shall be constructed by Tenant's contractor with
the exception of those items constructed by Tenant's
contractor or vendor which shall be limited to telephone
equipment and specialized office equipment wiring. Landlord's
fee for construction management shall not exceed four percent
(4%) of the actual construction costs incurred.
5. Change Orders. [Intentionally deleted].
6. Substantial Completion.
6.1 General. Landlord shall Substantially Complete (as defined
below) the Tenant Work on or before July 1, 1997, subject to
delays beyond the reasonable control of Landlord, but neither
the validity
-3-
<PAGE>
of this Lease nor the obligations of Tenant under this Lease
shall be affected by a failure to Substantially Complete the
Premises by such date, and Tenant shall have no claim against
Landlord because of Landlord's failure to Substantially
Complete the Premises on the date originally fixed therefor.
6.2 Substantial Completion. "Substantial Completion" of the
Premises shall be conclusively deemed to have occurred as soon
as the Tenant Work to be installed by Landlord pursuant to
this Work Agreement has been constructed in accordance with
the approved Construction Drawings and Specifications and
approved change orders and the Premises are ready to be
utilized for their intended purpose, as certified by Tenant's
architect. The issuance of a temporary certificate of
occupancy by the proper governmental entity shall not be
required for Substantial Completion but, if granted, shall be
deemed conclusive evidence that Substantial Completion has
occurred. Notwithstanding the above, the Premises shall be
considered Substantially Complete and ready to be utilized for
their intended purpose even though (a) there remain to be
completed in the Premises punch list items reasonably
acceptable to Landlord and Tenant, including but not limited
to minor or insubstantial details of construction, decoration
or mechanical adjustment, the lack of completion of which will
not materially interfere with Tenant's permitted use of the
Premises, and/or (b) there is a delay in the Substantial
Completion of the Premises due to a "Tenant delay" as defined
below.
6.3 Tenant Delays. The following items shall be referred to
individually as a "Tenant delay":
(a) Tenant's failure to comply with any of the deadlines
specified in this Work Agreement; or
(b) Tenant's request for changes or additions to the
Tenant Work subsequent to the date of Landlord's
approval of the Construction Drawings and
Specifications; or
(c) Tenant's failure to pay when due any amounts required
pursuant to this Work Agreement; or
(d) The performance of any work by any person or firm
employed or retained by Tenant; or
(e) Tenant's request for materials, finishes or
installations which are not available as needed to
meet the general contractor's schedule for
Substantial Completion; or
-4-
<PAGE>
(f) Tenant's or Tenant's agent, including Tenant's
contractors, vendors, and Representative's
interference with the general contractor's schedule;
or
(g) Any other Tenant-caused delay.
6.4 Punch List. Prior to delivery of possession of the Premises to
Tenant, Tenant's architect shall prepare a preliminary punch
list in writing for Landlord and Tenant's review and Landlord
and Tenant shall examine the Premises and shall agree on a
final "punch list" which shall specify the items of work that
require correction, repair or replacement. Tenant shall
approve such punch list in writing within two (2) working days
of the walk-through.
7. Possession by Tenant. The taking of possession of the Premises by
Tenant shall constitute an acknowledgment by Tenant that the Premises
are in good condition and that all work and materials provided by
Landlord are satisfactory, except as to any latent defects discovered
within the first (1st) Lease Year of the Term or items contained in the
punch list prepared as provided in Paragraph 6.4. Landlord agrees to
correct and complete any such items outlined in the punch list as soon
as practicable.
[SIGNATURES APPEAR ON NEXT PAGE]
-5-
<PAGE>
IN WITNESS WHEREOF, Landlord and Tenant have executed this Work
Agreement as of the _____ day of _____________ 1997.
ATTEST/WITNESS: LANDLORD:
___________________________ Commonwealth Atlantic Land II Inc.,
Name:______________________ a Virginia corporation
By: ___________________________
Name:___________________________
Title:_____________________________ [SEAL]
ATTEST/WITNESS: TENANT:
Versatility Inc.,
a Delaware corporation
___________________________
Name:______________________ By:________________________________ [SEAL]
Name:___________________________________
-6-
<PAGE>
EXHIBIT C
---------
RULES AND REGULATIONS
---------------------
The following rules and regulations have been formulated for the safety
and well-being of all the tenants of the Building and become effective upon
occupancy. Strict adherence to these rules and regulations is necessary to
guarantee that each and every tenant will enjoy a safe and unannoyed occupancy
in the Building. Any repeated or continuing violation of these rules and
regulations by Tenant after notice from Landlord, shall be sufficient cause for
termination of this Lease at the option of Landlord.
Landlord may, upon request by any tenant, waive the compliance by such
tenant of any of the foregoing rules and regulations provided that (i) no waiver
shall be effective unless signed by Landlord or Landlord's authorized agent;
(ii) any such waiver shall not relieve such tenant from the obligation to comply
with such rule or regulation in the future unless expressly consented to by
Landlord, and (iii) no waiver granted to any tenant shall relieve any other
tenant from the obligation of complying with the foregoing rules and regulations
unless such other tenant has received a similar waiver in writing from Landlord.
1. The sidewalks, entrances, passages, courts, vestibules, or
stairways, or other parts of the Building not occupied by any tenant shall not
be constructed or encumbered by any tenant or used for any purpose other than
ingress and egress to and from any tenant's Premises. Landlord shall have the
right to control and operate the public portions of the Building, and the
facilities furnished for the common use of the tenants, in such manner as
Landlord deems best for the benefit of the tenants generally. No tenant shall
permit the visit to its Premises of persons in such numbers or under such
conditions as to interfere with the use and enjoyment by other tenants of the
entrances, corridors, elevators, and other public portions or facilities of the
Building.
2. No signs, awnings or other projections shall be attached to the
outside walls of any building without the prior written consent of Landlord. No
drapes, blinds, shades or screens shall be attached to or hung in, or used in
connection with, any window or door of the Premises, without the prior consent
of Landlord. Such signs, awnings, projections, curtains, blinds, screens or
other fixtures must be of a quality, type, design and color, and attached in the
manner approved by Landlord.
3. No show cases or other articles shall be put in front of or affixed
to any part of the exterior of the Building, nor placed in any interior Common
Area without the prior written consent of Landlord.
<PAGE>
4. The water and wash closets and other plumbing fixtures shall not be
used for any purpose other than those for which they were constructed, and no
sweepings, rubbish, rags, or other substances shall be thrown therein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose servants, employees, agents, visitors, or licensees, shall have
caused the same.
5. There shall be no marking, painting, drilling into or in anyway
defacing any part of the Premises or the Building. No boring, cutting or
stringing or wires shall be permitted. No tenant shall construct, maintain, use
or operate within its Premises or elsewhere within or on the outside of the
Building, any electrical device, wiring or apparatus in connection with a loud
speaker system or other sound system.
6. Tenant will fill out move-in/move-out sheets and will return such
sheets signed and dated within ten (10) days of moving in or out of the
Premises.
7. No animals, birds or pets of any kind shall be brought into or kept
in or about the Premises, and no cooking shall be done or permitted by any
tenant on its Premises except for a tenant's employee's own use. No tenant shall
cause or permit any unusual or objectionable odors to be produced or permeate
from its Premises.
8. No tenant shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or any
neighboring building or Premises or with any person having business with such
occupants. No tenant shall throw anything out of the doors or windows or down
the corridors or stairs.
9. No inflammable, combustible, or explosive fluid, chemical or
radioactive substance shall be brought or kept upon the Premises.
10. No additional locks or bolts of any kind shall be placed upon any
of the doors, or windows, by any tenant, nor shall any changes be made in
existing locks or the mechanism thereof without prior approval from Landlord.
Each tenant shall, upon termination of its tenancy, restore to Landlord all keys
of stores, offices, storage, and toilet rooms either furnished to, or otherwise
procured by, such tenant, and in the event of the loss of any keys so furnished
such tenant shall pay to Landlord the cost of replacement thereof.
11. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place during the hours
which Landlord or its Agent may determine from time to time. Landlord reserves
the right to inspect all freight to be brought into the Premises and to exclude
from the Premises all freight which violates any of these Rules and Regulations
or the Lease of which these Rules and Regulations are a part.
-2-
<PAGE>
12. Any person employed by any tenant to do janitorial work within its
Premises must obtain Landlord's consent and such person shall, while in the
Building and outside of the Premises, comply with all instructions issued by the
superintendent of the Building. No tenant shall engage or pay any employees on
its Premises, except those actually working for such tenant on its Premises.
13. No tenant shall purchase spring water, ice, coffee, soft drinks,
towels, or other like service, from any company or persons whose repeated
violations of these Regulations have caused, in Landlord's opinion, a hazard or
nuisance to the Building and/or its occupants.
14. Landlord reserves the right to exclude from the Building at all
times any person who is not known or does not properly identify himself to the
Building management. Landlord may at its option require all persons admitted to
or leaving the Building between the hours of 6 p.m. and 8 a.m., Monday through
Friday, and at all times on Saturday, Sunday, and legal holidays, to register.
Each tenant shall be responsible for all persons for whom he authorizes entry
into or exit out of the Building and shall be liable to Landlord for all acts of
such persons.
15. The Premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
16. No Tenant shall occupy or permit any portion of its Premises to be
used or occupied for the possession, storage, manufacture, or sale of liquor,
narcotics, tobacco in any form, or as a barber or manicure shop, or as an
employment bureau, unless said Tenant's lease expressly grants permission to do
so. No Tenant shall engage or pay any employees on its Premises, except those
actually working for such Tenant on said Premises, nor advertise for laborers
giving an address at said Premises.
17. Landlord's employees shall not perform any work for Tenant or do
anything outside of their regular duties, unless under special instruction from
the management of the Building.
18. Canvassing, soliciting, and peddling on the Premises is prohibited
and each Tenant shall cooperate to prevent the same.
19. No water cooler, plumbing or electrical fixtures shall be installed
by any Tenant without the prior written consent of Landlord.
20. There shall not be used in any space, or in the public halls of the
Building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
-3-
<PAGE>
21. Where carpet is installed over access plates to under-floor ducts,
Tenant will be required, at Tenant's expense, to provide access to said access
plates when necessary.
22. Mats, trash, or other objects shall not be placed in the public
corridors.
23. Tenant shall not overload the floors or exceed the maximum floor
weight limits of the Premises.
24. If Landlord designates a certain portion of parking area for
employee parking, Tenant covenants that it will require its employees to park in
such area to the extent of spaces available. Landlord shall not be responsible
for enforcing Tenant's parking rights against any third parties.
25. Tenant agrees to conduct any vehicle or machine repair, painting,
or similar work only inside the Premises.
26. Tenant agrees not to operate any machinery in the Premises which
may cause vibration or damage to the Premises; not to use a loudspeaker which
can be heard outside the Premises, or to extend curb service to customers.
-4-
<PAGE>
EXHIBIT D
---------
DECLARATION BY LANDLORD AND TENANT
AS TO DATE OF DELIVERY AND ACCEPTANCE OF
POSSESSION, LEASE COMMENCEMENT DATE, ETC.
THIS DECLARATION is hereby attached to and made a part of the Lease
dated ____________, 1997 (the "Lease"), between Commonwealth Atlantic Land II
Inc., a Virginia corporation ("Landlord") and Versatility Inc., a Delaware
corporation ("Tenant"). All terms used in this Declaration have the same meaning
as they have in the Lease.
(i) Landlord and Tenant do hereby declare that possession of the
Premises was accepted by Tenant on __________________________;
(ii) As of the date hereof, the Lease is in full force and effect, and
Landlord has fulfilled all of its obligations under the Lease required to be
fulfilled by Landlord on or prior to said date;
(iii) The Commencement Date is hereby established to be
_________________; and
(iv) The Expiration Date is hereby established to be ________________,
unless the Lease is sooner terminated pursuant to any provision thereof.
ATTEST/WITNESS: LANDLORD:
___________________________ Commonwealth Atlantic Land II Inc.,
Name:______________________ a Virginia corporation
By: ___________________________
Name:___________________________
Title:_______________________________ [SEAL]
ATTEST/WITNESS: TENANT:
Versatility Inc.,
a Delaware corporation
___________________________
Name:______________________ By:__________________________________ [SEAL]
Name:___________________________________
<PAGE>
Exhibit E
---------
Subordination, Non-Disturbance and Attornment Agreement
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is made and entered into as of this ____ day of ____________, 1997,
by and between VERSATILITY INC., a Delaware corporation (hereinafter referred to
as "Tenant"), whose address is 12015 Lee Jackson Highway, Fairfax, Virginia
22033-3300; COMMONWEALTH ATLANTIC LAND II INC., a Virginia corporation
(hereinafter referred to as "Landlord"), whose address is c/o Commonwealth
Atlantic Properties Inc., 66 Canal Center Plaza, 7th Floor, Alexandria, Virginia
22314; LaSALLE NATIONAL BANK, as collateral agent for the benefit of the
"Lenders" under the Loan Agreement defined below (the "Mortgagee"), whose
address is 135 South LaSalle Street, Suite 1740, Chicago, Illinois 60603; and
__________________, as sole acting trustee ("Trustee").
PRELIMINARY STATEMENT OF FACTS:
A. Pursuant to a deed of trust, assignment of leases and rents,
security agreement and fixture filing dated as of December 2, 1996 among
Landlord and other mortgagors, Gary G. Peterson and James C. Brincefield, as
trustees, either of whom may act, and the Mortgagee, recorded in, among other
offices, the Clerk's Office of the Circuit Court of the City of Alexandria,
Virginia, in Deed Book 1588 at page 1085 (as the same may be extended, renewed,
supplemented or modified, the "Mortgage"), Landlord conveyed to the trustees
named therein certain real estate and other property, including the real estate
described in Exhibit A attached hereto (the "Mortgaged Property"), in trust to
secure the payment of a principal indebtedness in the aggregate amount of up to
$359,480,000 as may be outstanding from time to time (the "Loan") in accordance
with a loan agreement dated as of December 2, 1996 among Goldman Sachs Mortgage
Company, as agent and as one of the Lenders, RF&P Corporation, as borrower, Main
Street Mortgage Company, as servicer, LaSalle National Bank, as collateral agent
for the Lenders, and the other Lenders from time to time party thereto (as the
same may be extended, renewed, supplemented or modified, the "Loan Agreement").
B. Tenant is the present tenant under a lease dated , 1997, (said lease
and all amendments thereto being hereinafter referred to as the "Lease"), made
by Landlord pursuant to which Tenant has been demised a portion of the Mortgaged
Property, said portion being more fully described in Exhibit B attached hereto
and hereinafter referred to as the "Premises".
C. The Loan Agreement requires that Tenant subordinate the Lease and
its interest in the Premises to the lien of the Mortgage.
NOW, THEREFORE, in consideration of the sum of One and 00/100 Dollar
($1.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by each party, it is agreed as follows:
1. SUBORDINATION. Subject to the provisions of this Agreement, Tenant
hereby agrees that the Lease and the rights of Tenant in and to the Premises are
subject and subordinate to the Mortgage, and to all amendments, supplements,
modifications, renewals and extensions thereof, as fully and with the same
effect as if the Mortgage had been duly executed, acknowledged and recorded
prior to the execution of the Lease and delivery of possession of the Premises
to Tenant; provided, however, that Mortgagee agrees and consents to the terms
and provisions of the Lease.
2. NON-DISTURBANCE. If the interest of Landlord in the Premises shall
be transferred by reason of foreclosure or other proceedings brought by
Mortgagee under the Mortgage, including a deed in lieu of foreclosure (a
"Transfer"), and if Tenant is not then in default under the Lease (beyond any
applicable grace or cure periods), Mortgagee agrees that Tenant's rights and
privileges under the Lease, and its possession of the Premises,
<PAGE>
shall not be terminated, diminished or interfered with by Mortgagee in the
exercise of any of Mortgagee's rights under the Mortgage. Mortgagee agrees not
to join Tenant as a party defendant in any action or proceeding foreclosing the
Mortgage unless such joinder is necessary to foreclose the Mortgage and then
only for such purpose and not for the purpose of terminating the Lease.
3. ATTORNMENT. Upon the occurrence of a Transfer, Tenant shall be bound
to the successor to Landlord's interest (hereinafter referred to as "Owner")
under all of the terms, covenants, and conditions of the Lease for the balance
of the term thereof remaining and any extensions or renewals thereof which may
be effected in accordance with any option therefor in the Lease, and Tenant does
hereby attorn to Owner as its landlord, said attornment to be effective and
self-operative immediately without the execution of any further instruments on
the part of either Tenant or Owner. However, at the request of Owner, Tenant
will execute an instrument confirming such attornment. From and after such
attornment, Owner shall be bound to Tenant under all of the terms, covenants,
and conditions of the Lease as a direct indenture of Lease with the same force
and effect as if originally entered into between Tenant and Owner; provided,
however, that Tenant shall be under no obligation to pay rent to Owner until
Tenant receives written notice from the Owner that Owner has succeeded to the
interest of Landlord under the Lease, in which case Landlord agrees to
indemnify, defend, protect and hold Tenant harmless from any liability it may
suffer as a result of compliance with Owner's written instructions to pay rent.
4. MORTGAGEE'S RIGHT TO CURE LEASE DEFAULTS. In the event of a default
by Landlord or other occurrence under the Lease that would give rise to an
offset against rent payable pursuant to the Lease, Tenant will give Mortgagee
notice of such default or occurrence pursuant to the terms of Section 11 of this
Agreement and will give Mortgagee such time as is provided to the Landlord under
the Lease to cure such default or rectify such occurrence. It is understood that
the time period available to Mortgagee to cure such default may run concurrently
with the time period available to Landlord to cure such default. Tenant agrees
that notwithstanding any provision of the Lease to the contrary, it will not be
entitled to cancel the Lease, or to abate or offset against the rent, or to
exercise any other right or remedy until Mortgagee has been given notice of
default and an opportunity to cure the same as provided herein.
5. OWNER NOT BOUND BY CERTAIN ACTS OF LANDLORD. Following any Transfer
of the Premises, Owner shall not be:
(a) either (i) personally liable for any of the obligations of
the Landlord under the Lease (whether such obligations arose prior to or after
the Transfer) and Tenant shall look solely to the interest of Owner, its
successors and assigns, in the Mortgaged Property for the satisfaction of each
and every remedy of Tenant in the event of default by Landlord under the Lease;
or (ii) liable for any act or omission of any prior landlord (including
Landlord) unless such act or omission of a prior landlord is of a continuing
nature and Mortgagee had notice of such act or omission prior to the Transfer;
provided, however, that the foregoing shall not be enforced or construed to, or
limit the Tenant's right to obtain injunctive relief regarding any term,
covenant or condition in the Lease;
(b) liable for either prepaid rent or additional rent for more
than one (1) month in advance or any security deposit paid and not delivered or
credited to Mortgagee; or
(c) bound by any amendment or modification of the Lease made
without its consent; provided, however, that Mortgagee agrees it shall not
unreasonably delay or withhold its consent unless such amendment either
materially increases Landlord's obligations or materially decreases Landlord's
rights under the Lease.
6. ASSIGNMENT OF LEASE. Under the Mortgage, Landlord has assigned its
interest in the rents and payments due under the Lease to Mortgagee as security
for repayment of the Loan. If in the future there is a default by Landlord in
the performance and observance of the terms of the Mortgage, Mortgagee may, at
its option, require that all rents and other payments due under the Lease be
paid directly to Mortgagee. Upon written notification by Mortgagee to Tenant
demanding such rent payments be made to Mortgagee, Landlord hereby authorizes
and directs Tenant, and Tenant hereby agrees to pay Mortgagee, any payments due
under the terms of the
2
<PAGE>
Lease and Landlord shall indemnify and hold Tenant harmless from any liability
or claim (including reasonable attorneys' fees) which may be asserted against
Tenant as a result of Tenant's rent payment to Mortgagee or other sums due under
the Lease. The assignment of rents under the Mortgage does not diminish any
obligations of Landlord under the Lease or impose any such obligations on
Mortgagee.
7. AMENDMENT. This Agreement may not be modified orally or in any
manner other than by a written instrument signed by the parties hereto or their
successors in interest.
8. SUCCESSORS AND ASSIGNS. This Agreement and each and every covenant,
agreement and other provision hereof shall be binding upon and inure to the
benefit of the parties hereto and their heirs, administrators, representatives,
successors and assigns.
9. CHOICE OF LAW. This Agreement is made and executed under and in all
respects is to be governed by and construed in accordance with the laws of the
State where the Premises are situate.
10. CAPTIONS AND HEADINGS. The captions and headings of the various
sections of this Agreement are for convenience only and are not to be construed
as confining or limiting in any way the scope or intent of the provisions
hereof. Whenever the context requires or permits, the singular shall include the
plural, the plural shall include the singular and the masculine, feminine and
neuter shall be freely interchangeable.
11. NOTICE. Any notice which any party hereto may desire or may be
required to give to any other party shall be in writing to the addresses as set
forth above, or to such other place any party hereto may by notice in writing
designate, and such notice shall be deemed to have been given as of the date
such notice is (i) delivered to the party intended, (ii) delivered to the
current address of the party intended, or (iii) rejected at the current address
of the party intended, provided such notice was prepaid. All notices shall be
given by (a) personal delivery (including a reputable overnight courier
service), or (b) certified mail, return receipt requested, postage prepaid.
12. NEW LEASE. If the Lease is ever terminated by operation of law
pursuant to Section 55-96 of the Code of Virginia, as amended, Tenant agrees
that it shall enter into a new lease with Mortgagee or Owner, whichever shall
then own the Premises and/or the Mortgaged Property, and such party agrees that
it will enter into a new lease with the Tenant. Such new lease shall be
effective as of the date of termination of the Lease for the remainder of the
term of the Lease, at the rent provided for therein, and upon the same terms,
covenants, conditions and agreements as are contained in the Lease, including,
without limitation, all termination rights, all renewal options and all rent
adjustment provisions.
13. TRUSTEE. Mortgagee certifies that it is duly authorized on behalf
of the Lenders to enter into this Agreement and hereby authorizes and directs
Trustee to execute this Agreement.
3
<PAGE>
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement
to be executed as of the date first above written.
TENANT:
-------
VERSATILITY INC., a Delaware corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
LANDLORD:
---------
COMMONWEALTH ATLANTIC LAND II INC.,
a Virginia corporation
By:_____________________________________
Name:___________________________________
Title:__________________________________
MORTGAGEE:
----------
LaSALLE NATIONAL BANK, as collateral agent
By:_____________________________________
Name:___________________________________
Title:__________________________________
TRUSTEE:
--------
Name:___________________________________
4
<PAGE>
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF __________, to wit:
The foregoing instrument was acknowledged before me on ___________,
19___ by ______________________ as ____________________ of Versatility Inc., a
Delaware corporation, on behalf of the corporation.
Notary Public
My Commission expires:__________
[SEAL]
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF __________, to wit:
The foregoing instrument was acknowledged before me on ___________,
19___ by ______________________ as ____________________ of Commonwealth
Atlantic Land II Inc., a Virginia corporation, on behalf of the corporation.
Notary Public
My Commission expires:__________
[SEAL]
5
<PAGE>
STATE OF ______________________
CITY/COUNTY OF __________, to wit:
The foregoing instrument was acknowledged before me on ___________,
19___ by ______________________ as ____________________ of LaSalle National
Bank, as collateral agent, on behalf of the bank.
Notary Public
My Commission expires:__________
[SEAL]
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF __________, to wit:
The foregoing instrument was acknowledged before me on ___________,
19___ by ______________________ as Sole Acting Trustee.
Notary Public
My Commission expires:__________
[SEAL]
Exhibit 11.1
Computation of Historical Net Income (loss) Per Common Share
<TABLE>
<CAPTION>
Year Ended April 30,
1995 1996 1997
---- ---- ----
<S> <C>
Net income $1,256,587 $ 656,870 $1,945,260
========== ========== ==========
Weighted average number of shares
outstanding 4,000,000 5,858,601
Add:
Shares issuable upon conversion of
Series A Redeemable Convertible
Preferred Stock 992,061
Shares issuable from the assumed exercise
of options as determined by the
application of the treasury stock method 611,144 598,250
---------- ----------
5,603,205 6,456,851
========== ==========
Net income per common share $ 0.12 $ 0.30
========== ==========
</TABLE>
The above computations include all common equivalent shares issued within the 12
months preceding the filing date as if they were outstanding for all periods
presented (using the treasury stock method) and the as if converted method with
regards to the Series A redeemable convertible preferred stock. Earnings per
share for fiscal 1995 has not been presented since such amounts are not deemed
meaningful due to the significant change in the Company's capital structure that
occurred in connection with the public offering.
Exhibit 21.1
SUBSIDIARIES OF THE REGISTRANT
Versatility (UK) Limited
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the prospectus in Versatility
Inc.'s Registration Statement No. 333-24071 on Form S-8 of our report dated May
30, 1997, appearing in the Annual Report on Form 10-K of Versatility Inc. for
the year ended April 30, 1997.
DELOITTE & TOUCHE LLP
Washington, DC
July 23, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
ACCOMPANYING CONDENSED CONSOLIDATED FINANCIAL STATEMENTS AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> APR-30-1997
<PERIOD-START> MAY-01-1996
<PERIOD-END> APR-30-1997
<CASH> 18,825,764
<SECURITIES> 6,039,255
<RECEIVABLES> 16,327,510
<ALLOWANCES> 356,195
<INVENTORY> 18,880
<CURRENT-ASSETS> 42,787,113
<PP&E> 2,692,778
<DEPRECIATION> 1,675,749
<TOTAL-ASSETS> 46,833,019
<CURRENT-LIABILITIES> 8,261,754
<BONDS> 287,120
0
0
<COMMON> 72,974
<OTHER-SE> 37,894,811
<TOTAL-LIABILITY-AND-EQUITY> 46,833,019
<SALES> 18,589,540
<TOTAL-REVENUES> 27,351,895
<CGS> 889,163
<TOTAL-COSTS> 6,433,494
<OTHER-EXPENSES> 18,412,728
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 403,989
<INCOME-PRETAX> 2,909,662
<INCOME-TAX> 964,402
<INCOME-CONTINUING> 1,945,260
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,945,260
<EPS-PRIMARY> .30
<EPS-DILUTED> .30
</TABLE>
