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Securities and Exchange Commission
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION
13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY
PERIOD ENDED DECEMBER 31, 1996
Commission File Number: 000-18839
_______________
UNITED AMERICAN HEALTHCARE CORPORATION
(Exact Name of Registrant as Specified in Charter)
_______________
Michigan 38-2526913
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
United American Healthcare Corporation
1155 Brewery Park Boulevard, Suite 200
Detroit, Michigan 48207
(313) 393-0200
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
_______________
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
---- ----
Indicate the number of shares outstanding of each of the registrant's classes
of common stock, as of the latest practicable date.
6,560,941 Common Shares as of
February 10, 1997
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UNITED AMERICAN HEALTHCARE CORPORATION
FORM 10-Q
TABLE OF CONTENTS
PART I
<TABLE>
<CAPTION>
<S> <C> <C>
Item 1. Financial Statements
Consolidated Balance Sheets--December 31, 1996
and June 30, 1996 2
Consolidated Statements of Operations--Three and Six Months
Ended December 31, 1996 and 1995 4
Consolidated Statements of Cash Flows--Six Months
Ended December 31, 1996 and 1995 5
Notes to Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9
PART II
Item 1. Legal Proceedings 16
Item 2. Changes in Securities 17
Item 3. Defaults Upon Senior Securities 17
Item 4. Submission of Matters to a Vote of Security Holders 17
Item 5. Other Information 17
Item 6. Exhibits and Reports on Form 8-K 19
SIGNATURES 20
EXHIBITS 21
</TABLE>
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PART 1. - ITEM 1. FINANCIAL STATEMENTS
UNITED AMERICAN HEALTHCARE CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (UNAUDITED)
<TABLE>
<CAPTION>
ASSETS DECEMBER 31, JUNE 30,
1996 1996
--------------- -----------
<S> <C> <C>
CURRENT ASSETS
Cash and cash equivalents $16,620,968 $22,962,655
Restricted cash - 716,696
Marketable securities 2,818,236 4,348,682
Accounts receivable
Commission and service fees 8,304,879 6,445,753
Capitation 1,979,443 4,729,913
Related parties - 656,934
Recoverable premium taxes - 786,527
Other 1,579,464 1,278,145
----------- -----------
11,863,786 13,897,272
Refundable federal income tax - 846,114
Deferred income taxes - 315,511
Prepaid expenses and other 786,882 854,521
----------- -----------
Total current assets 32,089,872 43,941,451
FURNITURE AND EQUIPMENT- AT COST 20,054,340 17,103,354
Less accumulated depreciation and amortization (7,357,430) (5,680,585)
----------- -----------
12,696,910 11,422,769
INTANGIBLE ASSETS 23,195,999 21,914,170
Less accumulated amortization (3,442,857) (2,373,817)
----------- -----------
19,753,142 19,540,353
INVESTMENTS IN AND ADVANCES TO AFFILIATE 2,100,000 2,100,000
OTHER ASSETS
Marketable securities 7,160,510 2,902,744
Long-term accounts and notes receivable - related party 2,991,388 2,991,388
Statutory reserves 3,767,778 7,863,553
Sundry 2,151,971 2,314,441
Deferred income taxes 560,455 -
----------- -----------
16,632,102 16,072,126
----------- -----------
$83,272,026 $93,076,699
=========== ===========
</TABLE>
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UNITED AMERICAN HEALTHCARE CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS (UNAUDITED)- CONTINUED
<TABLE>
<CAPTION>
DECEMBER 31, JUNE 30,
LIABILITIES 1996 1996
-------------- -----------
<S> <C> <C>
CURRENT LIABILITIES
Current portion of long-term debt $ 2,912,500 $ 2,912,500
Accounts payable - trade 4,932,157 3,411,046
Medical claims payable 10,448,958 25,677,806
Accrued liabilities
Related party - 297,984
Salaries and wages 1,038,584 889,076
Vacation and sick pay 1,277,075 1,172,202
Payroll and other taxes 439,376 270,390
----------- -----------
2,755,035 2,629,652
Federal income tax 274,582 -
----------- -----------
Total current liabilities 21,323,232 34,631,004
LONG-TERM DEBT, LESS CURRENT PORTION 22,702,556 18,741,664
ACCRUED RENT 1,293,108 1,240,830
DEFERRED INCOME TAXES - 641,000
CONTINGENCIES - -
STOCKHOLDERS' EQUITY
Preferred shares-authorized, 5,000,000 shares; none
issued - -
Common shares-authorized, 15,000,000 shares; issued
and outstanding, 6,560,941 shares 10,625,382 10,625,382
Retained earnings 27,532,899 27,411,032
Unrealized net holding losses on marketable securities (205,151) (214,213)
----------- -----------
37,953,130 37,822,201
----------- -----------
$83,272,026 $93,076,699
============ ===========
</TABLE>
The accompanying notes are an integral part of these statements.
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UNITED AMERICAN HEALTHCARE CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS (UNAUDITED)
<TABLE>
<CAPTION>
THREE MONTHS ENDED DECEMBER 31, SIX MONTHS ENDED DECEMBER 31,
------------------------------------- ------------------------------------------
1996 1995 1996 1995
----------- ----------- ---------- -----------
<S> <C> <C> <C> <C>
REVENUES
Medical premiums $16,027,722 $ - $34,129,926 $ -
Management fees from related parties 9,943,031 12,596,529 19,765,579 26,838,350
Commission and service fees 4,407,273 2,263,815 9,570,500 5,346,876
Interest and other income 479,370 335,250 1,002,947 708,572
----------- ----------- ---------- -----------
Total revenues 30,857,396 15,195,594 64,468,952 32,893,798
EXPENSES
Medical services 13,297,568 - 27,902,607 -
Marketing, general and administrative 15,385,743 13,687,974 32,176,717 27,206,779
Depreciation and amortization 1,382,898 688,885 2,760,287 1,450,817
Interest expense 365,881 178,341 764,474 376,500
Contract settlement - 9,684,974 - 9,684,974
Equity in net (earnings) of
unconsolidated affiliates - (3,262,582) - (2,896,524)
----------- ----------- ---------- -----------
Total expenses 30,432,090 20,977,592 63,604,085 35,822,546
----------- ----------- ---------- -----------
Earnings (loss) before income tax
expense (credit) 425,306 (5,781,998) 864,867 (2,928,748)
Income tax expense (credit) 311,000 (3,507,000) 743,000 (2,074,000)
----------- ----------- ---------- ----------
NET EARNINGS (LOSS) $ 114,306 $(2,274,998) $121,867 $(854,748)
=========== =========== ========== ===========
NET EARNINGS (LOSS) PER COMMON SHARE $ 0.02 $ (0.35) $0.02 $(0.13)
========== =========== ========== ===========
</TABLE>
The accompanying notes are an integral part of these statements.
4
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UNITED AMERICAN HEALTHCARE CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
<TABLE>
<CAPTION>
SIX MONTHS ENDED DECEMBER 31,
--------------------------------
1996 1995
--------------- ---------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net earnings (loss) $ 121,867 $ (854,748)
Adjustments to reconcile net earnings (loss) to net cash
(used in) provided from operating activities:
Bad debt expense - 186,901
Loss on disposal of assets - 18,932
Depreciation 1,024,752 857,083
Amortization 1,735,535 593,734
Accrued rent 52,278 52,032
Contract settlement - 9,684,974
Deferred income taxes (credit) (721,865) 1,162,938
Equity in net (earnings) of unconsolidated affiliates - (2,896,524)
Changes in assets and liabilities
Decrease in restricted cash 716,696 -
Decrease (increase) in accounts receivable 2,033,486 (2,939,162)
Decrease (increase) in refundable income taxes 846,114 (2,936,122)
Decrease (increase) in prepaid expenses and other 67,639 (566,754)
Decrease (increase) in statutory reserves 4,095,775 (211,585)
Increase in accounts payable 1,521,111 431,920
Increase (decrease) in accrued liabilities 125,383 (1,469,684)
(Decrease) in medical claims payable (15,228,848) -
Increase in federal income taxes 274,582 -
------------- -----------
Total adjustments (3,457,362) 1,968,683
------------- -----------
Net cash (used in) provided from operating activities (3,335,495) 1,113,935
CASH FLOWS FROM INVESTING ACTIVITIES
Proceeds from the sale of marketable securities 1,382,320 2,112,934
Purchase of marketable securities (4,119,860) -
Purchase of furniture and equipment (2,154,331) (1,335,545)
Investments in and advances to affiliates - (4,235,878)
(Increase) in intangible assets (455,000) -
Decrease (increase) in sundry assets 162,470 (256,880)
(Increase) in software development costs - (974,740)
(Decrease) in long-term notes receivable - (1,975,743)
Acquisition of a business, net of cash acquired (1,032,683) -
------------ -----------
Net cash (used in) investing activities (6,217,084) (6,665,852)
CASH FLOWS FROM FINANCING ACTIVITIES
Borrowings under line of credit 3,939,018 5,413,101
Payments made on long-term debt (728,126) (835,417)
------------ -----------
Net cash provided from financing activities 3,210,892 4,577,684
------------ -----------
Net (decrease) in cash and cash equivalents (6,341,687) (974,233)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 22,962,655 6,197,656
------------ -----------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 16,620,968 $ 5,223,423
============ ===========
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION
Cash paid for
Interest $ 765,000 $ 395,000
============ ===========
Income taxes $ 469,000 $ 466,000
============ ===========
</TABLE>
Non cash investing activities for fiscal 1997 represents the acquisition of
certain contract rights, assets and assumed liabilities of Spectera, Inc., as
follows: Fair value of assets acquired of $1,782,683 less liabilities assumed
of $750,000.
The accompanying notes are an integral part of these statements.
5
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UNITED AMERICAN HEALTHCARE CORPORATION AND SUBSIDIARIES
NOTES TO THE FINANCIAL STATEMENTS
DECEMBER 31, 1996 AND 1995
(Unaudited)
NOTE A - BASIS OF PREPARATION
The financial statements as of and for the six months ended December 31,
1996 and 1995 are unaudited, and in the opinion of management include all
adjustments necessary for a fair presentation thereof. The results of
operations for the period ended December 31, 1996 are not necessarily
indicative of the results of operations for the full fiscal year ending June
30, 1997. Audited June 30, 1996 financial statements can be found in the
Company's most recent Form 10-K with accompanying footnotes.
The accompanying consolidated financial statements include the accounts of
the Company and all majority-owned subsidiaries. Intercompany transactions and
balances have been eliminated. Non- majority investments in affiliates in
which management has the ability to exercise significant influence are recorded
on the equity method.
Certain reclassifications have been made to the fiscal 1996 balances to
conform to the current period classifications.
NOTE B - ACQUISITIONS
OMNICARE-TN
Effective July 1, 1994, the Company acquired a 50% equity interest in
OmniCare-TN for approximately $1.3 million in cash and on January 31, 1996
acquired an additional 25% of the voting common stock and 100% of the preferred
stock for $11 million, of which approximately $2.4 million was paid for in the
form of cash and $8.6 million in the conversion of debt to equity. This
increased the Company's ownership in the voting common stock of OmniCare-TN to
75%.
ULTRAMEDIX
Effective February 1, 1994, the Company acquired a 30.4% equity interest
in UltraMedix and a five year warrant to acquire up to 51% total equity
interest in UltraMedix for approximately $1.4 million in cash and on January
29, 1996 acquired an additional 20.6% of the voting common stock, and 100% of
the preferred stock of UltraMedix for approximately $1.9 million in cash.
This increased the Company's ownership in the voting common stock of UltraMedix
to 51%.
6
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UNITED AMERICAN HEALTHCARE CORPORATION AND SUBSIDIARIES
NOTES TO THE FINANCIAL STATEMENTS-CONTINUED
DECEMBER 31, 1996 AND 1995
(Unaudited)
NOTE B - ACQUISITIONS (CONTINUED)
CHF
Effective December 31, 1996, the Company acquired certain contract rights,
assets and assumed certain liabilities of Spectera, Inc., for approximately
$1.8 million in cash and debt. The excess purchase price over the fair market
value of the net assets acquired of approximately $1.0 million has been charged
to goodwill.
These acquisitions were accounted for under the purchase method of
accounting.
The unaudited pro forma results of operations that follow for the six and
three months ended December 31, 1995 assume that the OmniCare-TN and UltraMedix
acquisitions had occurred as of June 30, 1995. In addition to combining the
historical results of operations of the companies, the pro forma calculations
include adjustments for the estimated effect on the Company's historical
results of operations for amortization related to the acquisition. The pro
forma results of operations do not purport to be indicative of the results
which would actually have been obtained had the acquisitions occurred on the
date indicated or which may be obtained in the future.
<TABLE>
<CAPTION>
SIX MONTHS ENDED DECEMBER 31,
----------------------------------
1996 (ACTUAL) 1995 (PRO FORMA)
---------------- ----------------
<S> <C> <C>
Total revenues $64,469,000 $69,561,000
Net earnings (loss) $ 122,000 $(1,649,000)
Earnings (loss) per common share $ 0.02 $ (0.25)
<CAPTION>
THREE MONTHS ENDED DECEMBER 31,
----------------------------------
1996 (ACTUAL) 1995 (PRO FORMA)
---------------- ----------------
<S> <C> <C>
Total revenues $30,857,000 $28,027,000
Net earnings (loss) $ 114,000 $(3,579,000)
Earnings (loss) per common share $ 0.02 $ (0.55)
</TABLE>
NOTE C - NET EARNINGS (LOSS) PER COMMON SHARE
Net earnings (loss) per share is based on the average number of shares of
common stock outstanding during each period. The number of shares used in the
computation of earnings (loss) per share is 6,560,941 for the six and three
months ended December 31, 1996 and 1995.
7
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UNITED AMERICAN HEALTHCARE CORPORATION AND SUBSIDIARIES
NOTES TO THE FINANCIAL STATEMENTS-CONTINUED
DECEMBER 31, 1996 AND 1995
(Unaudited)
NOTE D - CONTINGENCIES
Pursuant to the contingent promissory note related to the May 7, 1993
acquisition of CHF, the Company, depending upon CHF's earnings over seven years
from the acquisition date, could increase the purchase price by a maximum
amount of approximately $6.6 million. Through December 31, 1996, the purchase
price was increased by approximately $5.0 million.
As previously reported by the Company, certain senior officers and the
Company are named defendants in a shareholder lawsuit filed in the United
States District Court for the Eastern District of Michigan in August 1995. In
October 1996, the plaintiffs filed a consolidated amended complaint. Two of
the four named plaintiffs withdrew as named plaintiffs. The Company is aware
that the remaining plaintiffs in this action intend to seek class status. The
amended complaint alleges that certain senior officers and the Company issued
reports and made statements that were false or misleading in violation of
federal securities laws. The Company and the officers have filed an answer
denying these allegations and any liability to plaintiffs. The Company and the
officers contend that all material facts were disclosed during the alleged
period, or were already available in the financial market place. The discovery
process has commenced and a motion for class certification is pending.
Company's management believes that it is too early to form an opinion regarding
the potential financial impact of the lawsuit.
An unfavorable outcome in excess of insurance policy limits could have a
potential adverse impact on the Company's financial statements. The Company
has agreed to indemnify the named officers from monetary exposure in connection
with the lawsuit, subject to reimbursement by any named officer, in the event
he is found not to be entitled to such indemnification.
8
<PAGE> 10
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
MATERIAL CHANGES IN RESULTS OF OPERATIONS
OVERVIEW
In fiscal 1996, the Company acquired additional ownership in previously
unconsolidated affiliates that affect the year to date and quarter to quarter
comparability of its consolidated results of operations. In January 1996, the
Company purchased an additional 20.6% and 25% of the voting common stock of
UltraMedix and OmniCare-TN, respectively. This increased the Company's
ownership in UltraMedix and OmniCare-TN to 51% and 75%, respectively.
Accordingly, these majority-owned entities are now included in the Company's
consolidated financial results. Overall, the operations of UltraMedix resulted
in a net loss before income taxes of $2.5 million and $1.4 million for the six
and three months ended December 31, 1996, respectively, and OmniCare-TN
achieved net earnings before income taxes of $.6 million for the six months
ended December 31, 1996 and a net loss of $.3 million before income taxes for
the three months ended December 31, 1996.
UltraMedix is in the process of implementing an internal corrective action
plan to address the high level of medical cost incurred and to re-evaluate the
efficiency and effectiveness of overall operations. Integral components of the
corrective action plan include the resumption of Medicaid marketing effective
October 1996, commercial market expansion, renegotiation of capitated primary
care physician contracts from a fee-for-service to a capitated arrangement,
conversion of the Plan's management information system to the Company's
proprietary client server information system, and increased focus on
utilization and case management practices. MANAGEMENT BELIEVES THAT THE
SUCCESSFUL IMPLEMENTATION OF THE CORRECTIVE ACTION PLAN WILL RESULT IN THE
PLAN'S PROFITABILITY IN THE NEAR FUTURE. HOWEVER, THERE CAN BE NO ASSURANCES
THAT THESE MEASURES WILL BE SUFFICIENT TO ALLOW THE COMPANY TO CONTINUE TO
OPERATE IN THIS MARKET, AND IF UNSUCCESSFUL COULD HAVE A MATERIAL ADVERSE
EFFECT ON THE COMPANY'S FINANCIAL POSITION.
Additionally, effective June 30, 1996 the Company entered into a three
year contract to provide managed care services to the Injured Workers'
Insurance Fund ("IWIF"), a large workers' compensation insurer. Revenues
generated from the IWIF contract for the six and three months ended December
31, 1996, was $3.2 million and $2.2 million, respectively. The quarter ending
December 31, 1996 was also impacted by the Company's acquisition of certain
assets and contract rights involved in the medical management of the IWIF
contract. Accrued vendor contract expense of $1.3 million was reversed during
the quarter ended December 31, 1996 due to the vendor's lack of adequate
performance.
In the quarter ending December 31, 1995, the Company recognized contract
settlement expense of $9.7 million. This expense represented a one-time
adjustment to management fee revenues and its effect on other related accounts
based on the provisions of the revised management agreement as approved by the
state of Tennessee in November 1995, retroactive to January 1, 1994. This
adjustment also significantly impacted equity in net earnings of unconsolidated
affiliates. In the
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quarter ended June 30, 1996, the Company reached an agreement with OmniCare-TN,
pursuant to which OmniCare-TN agreed to reimburse the Company approximately
$8.7 million for start-up costs and other expenses incurred for the period
January 1994 through September 1995. Despite the fact that the Company and
OmniCare-TN took certain actions relating to this settlement agreement, the
transaction was not sufficiently documented so as to allow recognition of the
same on the Company's financial statements for the quarter ended December 31,
1995.
The effect of these changes were the primary reasons earnings before
income taxes increased $3.8 million and $6.2 million for the six and three
months ended December 31, 1996 from the comparable periods last year.
SIX MONTHS ENDED DECEMBER 31, 1996 COMPARED TO SIX MONTHS ENDED DECEMBER
31, 1995
Total revenues increased $31.6 million (96%) from $32.9 million in fiscal
1996 to $64.5 million in fiscal 1997.
HMO medical premium revenues were $34.1 million, of which $28.6 million
and $5.5 million related to OmniCare-TN and UltraMedix, respectively. The
average per member per month ("PMPM") premium rate for OmniCare-TN and
UltraMedix was approximately $104 and $95, respectively. The State of
Tennessee's disenrollment of approximately 7,000 members in the quarter ending
December 31, 1996, reduced OmniCare-TN's enrollment from approximately 48,000
at June 1996 to approximately 41,000 at December 1996. The State's basis for
taking this action was the return of undeliverable questionnaires mailed to
members. The Plan has contested the validity of this method in determining the
continued eligibility of the Medicaid recipients, and is currently attempting
to locate these disenrolled members and request them to contact the State to
regain their eligibility. MANAGEMENT ESTIMATES THAT IT WILL BE ABLE TO LOCATE
APPROXIMATELY 40% OF THESE DISENROLLED MEMBERS, AND EXPECTS THE STATE TO
RETROACTIVELY RE-ENROLL THE MEMBER UPON NOTIFICATION FROM THE RECIPIENT, BUT
THERE CAN BE NO ASSURANCE THAT THESE MEMBERS WILL BE LOCATED AND RE-ENROLLED.
UltraMedix has responded to the state of Florida's request for proposal to
competitively bid its Medicaid health services contract. This initiative will
mandate the enrollment of Medicaid recipients into managed care organizations.
The state is scheduled to announce the successful bidders on February 14, 1997.
The program is expected to start this summer. MANAGEMENT BELIEVES IT HAS
SUBMITTED A VERY COMPETITIVE PROPOSAL, HOWEVER, IF THE COMPANY IS NOT A
SUCCESSFUL BIDDER, IT COULD HAVE AN ADVERSE EFFECT ON THE COMPANY'S FINANCIAL
POSITION.
Management fees were $19.8 million in fiscal 1997, a decrease of $7.0
million (26%) over fees of $26.8 million in fiscal 1996, due in part to: (i)
decreased operating revenues of OmniCare-MI due primarily to a net decrease in
premium and enrollment rates of approximately 2%, which resulted in decreased
management fees to the Company of approximately $.3 million; (ii) increased
operating revenues of PPC due to increased enrollment of approximately 59%,
offset by a decrease in premium rates of approximately 15% which resulted in a
net increase in management fees to the Company of approximately $1.7 million,
and (iii) decreased management fees of $.8 million from approximately $.8
million in fiscal 1996 to zero for fiscal 1997 related to the Company's
administration of OmniCare-MI's coordination of benefits program.
10
<PAGE> 12
The premium rates at PPC were significantly impacted by the state of
Ohio's July 1996 mandated Medicaid initiative, which required premium
reductions from the participating plans. MANAGEMENT EXPECTATIONS ARE THAT THE
OHIO MEDICAID INITIATIVE WILL CONTINUE TO FAVORABLY AFFECT PPC'S FISCAL 1997
ENROLLMENT. THE STATE OF MICHIGAN'S MEDICAID INITIATIVE TO REDUCE COST,
INCLUDING A CARVE OUT OF CERTAIN MEDICAL SERVICES WHICH EFFECTIVELY REDUCES THE
PREMIUMS PAID TO OMNICARE-MI, IS EXPECTED TO BECOME EFFECTIVE IN THE COMPANY'S
EARLY FISCAL 1998 YEAR. THIS RATE DECLINE COULD BE POTENTIALLY OFFSET BY
MEMBERSHIP INCREASES RESULTING FROM THE SAME STATE INITIATIVE AND/OR OTHER
CHANGES IN PRODUCT MIX, BUT THERE CAN BE NO ASSURANCES THAT THIS WILL OCCUR.
The decrease in management fees was also due primarily to the purchase of
majority ownership interests in UltraMedix and OmniCare-TN in January 1996,
resulting in the consolidation of these entities, including, the
elimination of intercompany management fees for the six months ended December
31, 1996 compared to the six months ended December 31, 1995. Consolidated
management fees from these two entities for the six months ended December 31,
1995 were $7.6 million.
Commission and service fees relate primarily to the activities of CHF and
represent contract renewals and new contracts. Commission and service fees
were $9.6 million in fiscal 1997, a $4.2 million (79%) increase over fees of
$5.4 million in fiscal 1996. Approximately $3.2 million of the increase
relates to the new IWIF contract that began in June 1996 and the balance
primarily to net new groups.
Interest and other income in fiscal 1997 was $1.0 million, an increase of
$.3 million (42%) over income of $.7 million in fiscal 1996. $.6 million of
the increase was due to consolidating the HMOs, offset by a $.3 million
decrease from corporate resulting primarily from the decline in
cash and cash equivalents and marketable securities at the corporate level.
Total expenses in fiscal 1997 were $63.6 million, an increase of $27.8
million (78%) over expenses of $35.8 million in fiscal 1996.
Medical service expenses of $27.9 million relate to OmniCare-TN and
UltraMedix, and were $23.0 million and $4.9 million, respectively. The
percentage of medical service expense to medical premium revenue, or the
medical loss ratio ("MLR") was 80% and 90% for OmniCare-TN and UltraMedix,
respectively. MANAGEMENT BELIEVES THAT THE MLR FOR OMNICARE-TN WILL REMAIN
RELATIVELY CONSTANT, AND EXPECTS A DECREASE IN THE MLR FOR ULTRAMEDIX AS A
RESULT OF AN EXPECTED INCREASE IN THE MEMBERSHIP BASE TO SPREAD THE MEDICAL
RISK, RENEGOTIATIONS OF PROVIDER CONTRACTS AND OTHER CORRECTIVE ACTIONS TO
REDUCE MEDICAL SERVICE EXPENSE.
Marketing, general and administrative expenses ("MG&A") increased $5.0
million (18%) from $27.2 million in fiscal 1996 to $32.2 million in fiscal
1997, as follows: (i) MG&A for UA-OH increased $.9 million, but MG&A as a
percentage to management fee revenues decreased 14% from 98% in fiscal 1996 to
84% in fiscal 1997, due primarily to the mandated state Medicaid initiative
increasing enrollment but reducing the overall marketing effort; (ii) MG&A for
Corporate
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headquarters, including the cost to operate OmniCare-MI increased $.8 million,
and MG&A as a percentage to management fee revenues increased 15%, from 81% in
fiscal 1996 to 93% in fiscal 1997, due primarily to an approximate 2% decrease
in enrollment and premium rates of OmniCare-MI, no recognition of COB management
fees in fiscal 1997, increased payroll and promotional efforts to expand the
provider network, product development, and preparation for National Committee
for Quality Assurance accreditation reviews; and (iii) MG&A for CHF increased
$1.8 million, but MG&A as a percentage to commission and service fee revenues
decreased 19%, from 75% in fiscal 1996 to 61% in fiscal 1997, due primarily to
revenue from the new IWIF contract.
MG&A for UA-TN and UA-FL increased from $5.8 million in fiscal 1996 to
$6.9 million in fiscal 1997, a net increase of $1.1 million (19%), due
primarily to the consolidation of OmniCare-TN and UltraMedix activities.
The Company's development costs in Pennsylvania, Louisiana and Georgia
accounted for approximately $.4 million of the total MG&A increase. In October
1996, the Company withdrew its participation from the HealthChoices program in
Pennsylvania and its pending HMO license application in Georgia. See further
discussion under Liquidity and Capital Resources.
Depreciation and amortization in fiscal 1997 was $2.8 million, an increase
of $1.3 million (90%) from $1.5 million in fiscal 1996. The increase was due
primarily to the amortization of goodwill related to acquisitions and computer
software.
The $.4 million (103%) increase in interest expense from $.4 million in
fiscal 1996 to $.8 million in fiscal 1997, was due to increased borrowings
against the line of credit.
Contract settlement expense was $9.7 million in fiscal 1996. This expense
represents a one-time non-recurring net charge to adjust management fee
revenues and its effect on other related accounts based on the provisions of
the revised management agreement as approved by the State of Tennessee in
November 1995, retroactive to January 1, 1994. The contract settlement charge
represents the effect of retroactively applying the provisions of the revised
management agreement from January 1, 1994 to September 30, 1995. The effect on
management fee revenues for the period January 1, 1994 to September 30, 1995,
as adjusted in December 1995, was a reduction in management fees of
approximately $11.7 million, offset by a decrease in goodwill of approximately
$.6 million related to the Company's 50% equity ownership in OmniCare-TN at the
time. Additionally, the contract settlement charge was reduced by the $1.4
million reversal of the valuation allowance established in June 1995
representing a charge to adjust the carrying value of the Company's
investments, advances and notes receivable from and related to OmniCare-TN to
their estimated fair values at June 30, 1995. The Company subsequently
acquired a majority interest in OmniCare-TN.
Equity in unconsolidated affiliates' net earnings decreased $2.9 million,
from $2.9 in fiscal 1996 to zero in fiscal 1997, due to the Company's
recognition of its share of earnings as a shareholder of OmniCare-TN (50%) and
UltraMedix (30.4%) through January 1996, at which time the Company acquired a
majority interest in these plans.
12
<PAGE> 14
As a result of the foregoing, the Company recognized earnings before
income taxes of $.9 million in fiscal 1997 compared to losses before income
taxes of $2.9 million in fiscal 1996, a $3.8 million increase. The effective
tax rate increased from approximately 71% to 86% for the respective
six months ended December 30, primarily because goodwill amortization related
to equity investments is not deductible for tax purposes.
THREE MONTHS ENDED DECEMBER 31, 1996 COMPARED TO THREE MONTHS ENDED
DECEMBER 31, 1995
Total revenues increased $15.7 million (103%) from $15.2 million in fiscal
1996 to $30.9 million in fiscal 1997.
HMO medical premium revenues were $16.0 million, of which $13.2 million
($101 PMPM) and $2.8 million ($95 PMPM) related to OmniCare-TN and UltraMedix,
respectively. The state of Tennessee's disenrollment of approximately 7,000
members in the quarter ending December 31, 1996, resulting from undeliverable
questionnaires mailed to members, reduced OmniCare-TN's enrollment from
approximately 48,000 in September 1996 to approximately 41,000 in December
1996. MANAGEMENT ESTIMATES THAT IT WILL BE ABLE TO LOCATE APPROXIMATELY 40% OF
THESE DISENROLLED MEMBERS, AND EXPECTS THE STATE TO RETROACTIVELY RE-ENROLL THE
MEMBER UPON NOTIFICATION FROM THE RECIPIENT, BUT THERE CAN BE NO ASSURANCE THAT
THIS WILL OCCUR.
Management fees were $9.9 million in fiscal 1997, a decrease of $2.7
million (21%) over fees of $12.6 million in fiscal 1996, due in part to: (i)
decreased operating revenues of OmniCare-MI due primarily to a net decrease in
premium and enrollment rates of approximately 2%, which resulted in decreased
management fees to the Company of approximately $.1 million; (ii) increased
operating revenues of PPC due to increased enrollment of approximately 58%,
offset by a decrease in premium rates of approximately 14% which resulted in a
net increase in management fees to the Company of approximately $.9 million,
and (iii) decreased management fees of $.3 million from approximately $.3
million in fiscal 1996 to zero for fiscal 1997 related to the Company's
administration of OmniCare-MI's coordination of benefits program.
The decrease in management fees was also due primarily to the purchase of
majority ownership interests in UltraMedix and OmniCare-TN in January 1996,
resulting in the consolidation of these entities, including, the elimination of
intercompany management fees for the three months ended December 31, 1996
compared to the three months ended December 31, 1995. Consolidated management
fees from these two entities for the three months ended December 31, 1995 were
$3.1 million.
Commission and service fees relate primarily to the activities of CHF and
represent contract renewals and new contracts. Commission and service fees
were $4.4 million in fiscal 1997, a $2.1 million (95%) increase over fees of
$2.3 million in fiscal 1996. The increase relates primarily to the new IWIF
contract that began in June 1996.
Interest and other income in fiscal 1997 was $.5 million, an increase of
$.1 million (43%) over income of $.3 million in fiscal 1996. $.3 million of the
increase was due to consolidating the HMOs,
13
<PAGE> 15
offset by a net $.2 million decrease from corporate, resulting primarily from
the net decline in cash and cash equivalents and marketable securities at the
corporate level.
Total expenses in fiscal 1997 were $30.4 million, an increase of $9.4
million (45%) over expenses of $21.0 million in fiscal 1996.
Medical service expenses of $13.3 million relate to OmniCare-TN and
UltraMedix, and were $10.9 million (MLR of 82%) and $2.4 million (MLR of 88%),
respectively.
MG&A increased $1.7 million (12%) from $13.7 million in fiscal 1996 to
$15.4 million in fiscal 1997, as follows: (i) MG&A for UA-OH increased $.5
million, but MG&A as a percentage to management fee revenues decreased 14%,
from 96% in fiscal 1996 to 83% in fiscal 1997, due primarily to the mandated
state Medicaid initiative increasing enrollment but reducing the overall
marketing effort; (ii) MG&A for Corporate headquarters, including the cost to
operate OmniCare-MI increased $.4 million, and MG&A as a percentage to
management fee revenues increased 13%, from 85% in fiscal 1996 to 96% in fiscal
1997, due primarily to an approximate 2% decrease in enrollment and premium
rates of OmniCare-MI, no recognition of COB management fees in fiscal 1997,
increased payroll and promotional efforts to expand the provider network,
product development, and preparation for National Committee for Quality
Assurance accreditation reviews; and (iii) MG&A for CHF increased $.2 million,
but MG&A as a percentage to commission and service fee revenues for CHF
decreased 43%, from 89% in fiscal 1996 to 51% in fiscal 1997, due primarily to
the IWIF contract revenue and the reversal of vendor contract expense of
approximately $1.3 million discussed earlier.
MG&A for UA-TN and UA-FL increased from $2.8 million in fiscal 1996 to
$3.3 million in fiscal 1997, a net increase of $.5 million (18%), due primarily
to the consolidation of OmniCare-TN and UltraMedix activities.
Depreciation and amortization in fiscal 1997 was $1.4 million, an increase
of $.7 million (101%) from $.7 million in fiscal 1996. The increase was due
primarily to the amortization of goodwill related to acquisitions and computer
software.
The $.2 million (105%) increase in interest expense from $.2 million in
fiscal 1996 to $.4 million in fiscal 1997, was due to increased borrowings
against the line of credit.
As discussed earlier, contract settlement expense was $9.7 million in
fiscal 1996 and represents a one-time non-recurring net charge to adjust
management fee revenues and its effect on other related accounts based on the
provisions of the revised management agreement as approved by the State of
Tennessee in November 1995, retroactive to January 1, 1994.
Equity in unconsolidated affiliates' net earnings decreased $3.3 million,
from $3.3 million in fiscal 1996 to zero in fiscal 1997, due to the Company's
recognition of its share of earnings as a shareholder of OmniCare-TN (50%) and
UltraMedix (30.4%) through January 1996, at which time the Company acquired a
majority interest in these plans.
14
<PAGE> 16
As a result of the foregoing, the Company recognized earnings before
income taxes of $.4 million in fiscal 1997 compared to losses before income
taxes of $5.8 million in fiscal 1996, a $6.2 million increase. The effective
tax rate increased from approximately 61% to 73% for the respective
three months ended December 30, primarily because goodwill amortization related
to equity investments is not deductible for tax purposes.
LIQUIDITY AND CAPITAL RESOURCES
At December 31, 1996, the Company had (i) cash and cash equivalents and
short-term marketable securities of $19.4 million compared to $27.3 million at
June 30, 1996, (ii) working capital of $10.8 million compared to $9.3 million
at June 30, 1996, and (iii) a current assets to current liabilities ratio of
1.5-to-1 and 1.3-to-1 at December 31, 1996 and June 30, 1996, respectively.
The principal sources of funds for the Company during the six months ended
December 31, 1996 were long-term borrowings of $3.9 million and a decrease in
sundry assets of $.2 million, offset by $3.3 million used in net operating
activities, net purchases of marketable securities of $2.7 million, furniture
and equipment additions of $2.2 million, increase in intangibles of
$.5 million, acquisition of a business, net of cash acquired of $1.0 million
and, $.7 million to repay long term debt.
As of December 31, 1996, the Company had lent United/HealthScope, Inc.
("UHI") approximately $4.2 million out of a commitment of $4.3 million. The
Company has set up allowances of $1.1 million to adjust the carrying values of
notes receivable from UHI to their estimated fair values. The Company is
currently considering an offer from a private investment firm to purchase its
interest in UHI, including the value of warrants held by the Company and the
assumption or payoff of the outstanding indebtedness owed by UHI to the
Company. The parties are currently negotiating terms of the agreement and it
is the Company's expectation that the transaction may be finalized in the
1997 calendar year. The third party investor has loaned UHI $1.2
million, in partial consideration for which the Company has subordinated its
secured position to the extent thereof. Further, the third party intends to
lend UHI an additional $.3 million in the near future. However, neither party
has committed to consummate a transaction and there can be no assurances that
such a transaction will be consummated. If funding of future cash flow needs
is not obtained by UHI, this could have a material adverse effect on the
company in connection with its ability to collect its receivables from UHI.
PhilCare Health Systems, Inc., an HMO headquartered in Philadelphia,
Pennsylvania is 49% owned by the Company's wholly owned subsidiary, United
American Healthcare of Pennsylvania. PhilCare was developed to participate in
Pennsylvania's mandatory Medicaid pilot program, HealthChoices, and in June
1996, obtained its HMO license. In connection therewith, the Company funded
PhilCare's applicable statutory reserve and net worth requirements of $2.1
million in cash. On October 31, 1996, the Company announced that it decided to
withdraw its support of PhilCare's application for participation in the
HealthChoices program. After prolonged negotiations with the Commonwealth of
Pennsylvania, management felt it was in the best interest of the Company's
shareholders to withdraw from consideration in the HealthChoices program.
However, management intends to explore other potential business opportunities
in this market.
15
<PAGE> 17
In October 1994, the Company formed the wholly owned subsidiaries United
American Healthcare of Georgia, Inc. and OmniCare Health Plan of Georgia, Inc.
to pursue business opportunities initially in 19 metropolitan Atlanta counties.
An application for a commercial Certificate of Authority to operate as a
licensed HMO was submitted to the Department of Human Resources and the
Department of Insurance for review. In connection therewith, the Company
funded OmniCare-GA's statutory reserve and net worth requirements in the
aggregate amount of $4.1 million in fiscal 1995. As a result of management's
re-evaluation of the Company's growth strategy and its impact on the potential
benefit to shareholder value, on October 31, 1996, management announced its
withdrawal of its licensing application in Georgia. The Company also withdrew
the $4.1 million used to fund the statutory requirements. These amounts were
initially funded from the Company's line of credit arrangement.
In fiscal 1995 the Company provided a $1 million letter of credit on
behalf of OmniCare-LA and a $1 million capital contribution to OmniCare-LA, in
satisfaction of applicable statutory requirements. The capital contribution was
funded from the Company's line of credit arrangement.
The Company has also formed subsidiaries in Illinois, to participate in
the creation and management of an HMO for a Illinois Medicaid initiative and to
pursue commercial opportunities, initially in the metropolitan Chicago area.
The Company has had discussions with potential partners in the area. The HMO
licensing application has been drafted and completion is dependent upon partner
selection. The application will require approximately $2.0 million to satisfy
applicable statutory requirements, which the Company would intend to fund from
debt borrowings.
The Company anticipates that additional cash flow and working capital may
be necessitated by business expansion needs and new marketing program
requirements. The Company has submitted and expects to continue to submit
proposals to governmental, quasi-governmental and private entities to provide
managed care services. MANAGEMENT BELIEVES THAT, AS IT CONTINUES TO PURSUE
OTHER CONTRACTUAL RELATIONSHIPS, THE COMPANY'S CASH RESERVES, MARKETABLE
SECURITIES, FUTURE CASH FLOWS FROM OPERATIONS AND PROCEEDS FROM BORROWINGS WILL
BE SUFFICIENT TO ENABLE THE COMPANY TO CONTINUE TO DEVELOP ITS OPERATIONS,
SUPPORT ITS ANTICIPATED BUSINESS EXPANSION AND SATISFY ITS WORKING CAPITAL
NEEDS FOR THE FORESEEABLE FUTURE.
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
As previously reported by the Company, certain senior officers and the
Company are named defendants in a shareholder lawsuit filed in the United
States District Court for the Eastern District of Michigan in August 1995. In
October 1996, the plaintiffs filed a consolidated amended complaint. Two of
the four named plaintiffs withdrew as named plaintiffs. The Company is aware
that the remaining plaintiffs in this action intend to seek class status. The
amended complaint alleges that certain senior officers and the Company issued
reports and made statements that were false or misleading in violation of
federal securities laws. The Company and the officers have filed an answer
denying these allegations and any liability to plaintiffs. The Company and the
officers contend that all material facts were disclosed during the alleged
period, or were already available in the financial
16
<PAGE> 18
market place. The discovery process has commenced and a motion for class
certification is pending. Company's management believes that it is too early to
form an opinion regarding the potential financial impact of the lawsuit.
An unfavorable outcome in excess of insurance policy limits could have a
potential adverse impact on the Company's financial statements. The Company has
agreed to indemnify the named officers from monetary exposure in connection with
the lawsuit, subject to reimbursement by any named officer, in the event he is
found not to be entitled to such indemnification.
ITEM 2. CHANGES IN SECURITIES.
None.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
None.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
An annual meeting of the shareholders of the Company was held on December
2, 1996, and the following action was taken: (i) re-election of Julius V.
Combs, M.D., Ronald R. Dobbins, Karl D. Gregory, Ph.D. and Richard T. White,
Esq. as directors to serve for three-year terms; (ii) appointment of Grant
Thornton LLP as independent auditors of the Company for the 1996-1997 fiscal
year; (iii) adoption of an Employee Stock Purchase Plan; and (iv) approval to
amend the Company's Stock Option Plan to decrease the number of authorized
shares from 531,250 to 331,250.
Dr. Harris and Ms. Gorham, whose terms expire in 1998, and Messrs. Moten
and Nicholas, whose terms expire in 1997, continued in office as directors
after the meeting.
ITEM 5. OTHER INFORMATION.
MANAGEMENT AGREEMENTS
Personal Physician Care, Inc. ("PPC") has served notice of its intention
to terminate the Company's Management Agreement based upon a dispute of the
propriety of including non-emergent transportation cost for enrollees as a
marketing expense to the management Company. This matter will be submitted to
binding arbitration, in accordance with the Management Agreement. Management
believes arbitration will commence in the next three months.
BOARD VACANCIES
Effective January 1, and 7, 1997, Richard P. Sutkin and Karl D. Gregory,
Ph.D., respectively, resigned from the Company's Board of Directors. The Board
of Directors are actively seeking candidates to fill the vacancies created by
their resignations, as well as three existing Board vacancies, and anticipates
appointing directors during the Company's fiscal 1997 third quarter.
17
<PAGE> 19
CAUTIONARY STATEMENTS REGARDING FORWARD LOOKING STATEMENTS
The Private Securities Litigation Reform Act of 1995 provides a new
"safe harbor" for forward-looking statements to encourage companies to provide
prospective information about their companies without fear of litigation so long
as those statements are identified as forward-looking and are accompanied by
meaningful cautionary statements identifying important factors that could cause
actual results to differ materially from those projected in the statements. The
Company desires to take advantage of this "safe harbor" and, accordingly, hereby
IDENTIFIES FORWARD-LOOKING STATEMENTS THROUGH THE BOLDED ITALIC TEXT WITHIN THE
BODY OF THIS DOCUMENT and the following important factors which could cause the
Company's actual financial and enrollment results to differ materially from any
such results which might be projected, forecasted, estimated or budgeted by the
Company in forward-looking statements.
1. Inability to increase premiums and prospective or retroactive
reductions to premium rates commensurate with increases in medical costs
due to utilization, government regulation, or other factors.
2. Discontinuance of, limitations on or restructure of governmental-funded
programs.
3. Increases in medical cost, including increases in utilization and costs
of medical services and the effects of actions by competitors or groups of
providers.
4. Adverse state and federal legislation and initiatives, including
limitations on or reductions of premium payments; prohibition or
limitation of capitated arrangements or financial incentives to
providers; federal and state benefit mandates (including mandatory length
of stay and emergency room coverage); limitations on the ability to
manage care and utilization; and any willing provider or pharmacy laws.
5. The shift of employers from insured to self-funded coverage resulting
in reduced margins to the Company.
6. Failure to obtain new customer bases, retain existing customer bases or
reductions in work force by existing customers; failure to sustain
commercial enrollment to maintain an enrollment mix required by
government programs.
7. Termination of management agreements by the Managed Plans.
8. Increased competition between current organizations and the entrance of
new competitors; and the introduction of new products by new and existing
competitors.
9. Adverse publicity and media coverage.
10. Inability to carry out marketing and sales plans.
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<PAGE> 20
11. Loss or retirement of key executives.
12. Governmental financial assessments or taxes to subsidize uncompensated
care, other insurance carriers, or academic medical institutions.
13. Termination of provider contracts or renegotiation at less
cost-effective rates or terms of payment.
14. The selection by employers and individuals of higher
co-payments/deductible/ coinsurance plans with relatively lower premiums
or margins.
15. The impact upon the Company's medical loss ratio on greater net
enrollment in higher medical loss ratio lines of business such as
Medicare and Medicaid.
16. Adverse regulatory determinations resulting in loss or limitations of
licensure, certification or contracts with governmental payors.
17. Higher sales, administrative or general expenses occasioned by the
need for additional advertising, marketing, administrative, or management
information systems expenditures.
18. Increases by regulatory authorities of minimum capital, reserve and
other financial solvency requirements.
19. Denial of accreditation by quality accrediting agencies, e.g.,
National Committee for Quality Assurance.
20. Adverse results from significant litigation matters.
21. Interest rates causing a reduction of investment income, or in the
market value of interest rate sensitive investments.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K (A).
(a) Exhibits
Exhibit Number Description of Document
-------------- --------------------------
1 Purchase Agreement between
Statutory Benefits Management
Corporation and Spectera, Inc.
27 Financial data schedule
(b) None.
19
<PAGE> 21
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Company has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
UNITED AMERICAN HEALTHCARE CORPORATION
<TABLE>
<S> <C> <C>
Dated: February 10, 1997 By: /s/ Ronald R. Dobbins
--------------------------------------
Ronald R. Dobbins
President & Chief Operating Officer
Dated: February 10, 1997 By: /s/ Jagannathan Vanaharam
--------------------------------------
Jagannathan Vanaharam
Senior Vice President-Finance & Treasurer
</TABLE>
20
<PAGE> 22
EXHIBIT INDEX
Exhibit Number Description of Document
-------------- ------------------------
1 Purchase Agreement between
Statutory Benefits Management
Corporation and Spectera, Inc.
27 Financial data schedule
21
<PAGE> 1
EXHIBIT 1 - PURCHASE AGREEMENT BETWEEN STATUTORY BENEFITS MANAGEMENT
CORPORATION AND SPECTERA, INC.
<PAGE> 2
EXHIBIT 1
AGREEMENT
THIS AGREEMENT, made this 22nd day of November, 1996, by and between
Statutory Benefits Management Corporation (SBMC), a Michigan corporation, and
Spectera, Inc. (Spectera), a Maryland corporation.
WHEREAS, SBMC has entered into a contract (the "IWIF Contract") with
the Injured Workers Insurance Fund (IWIF) to administer and medically manage
the treatment of injured workers insured by IWIF;
WHEREAS, Spectera has hired the trained staff, and has acquired and
assembled the equipment, facilities, protocols and procedures to medically
manage in an efficient manner the treatment of such injured workers and has in
fact undertaken the medical management of such claims since August of 1996 at
the direction of SBMC;
WHEREAS, SBMC wishes to acquire from Spectera, Spectera's rights to
medically manage the IWIF claims and certain assets acquired and used by
Spectera to manage IWIF claims, and Spectera is willing to convey such assets
to SBMC;
NOW, THEREFORE, in consideration of the payments and covenants set
forth herein, the parties hereby agree as follows.
1. Sale and License
1-1. Transfer of Assets. As of the Closing, Spectera agrees
to transfer and assign to SBMC (i) all tangible assets (the "Assets")
located at 8725 Loch Raven Boulevard and any other tangible assets acquired by
and used by
<PAGE> 3
Spectera in the management of IWIF claims including, without limitation,
furnishings, leasehold improvements, fixtures and equipment, office supplies
and office equipment (the "Tangible Assets"); (ii) its rights under contracts
with third parties entered into in the normal course of business (the
"Contracts") for goods or services entered into for the exclusive purpose of
managing IWIF claims; (iii) its rights under equipment leases (the "Equipment
Leases") entered into for the exclusive purpose of managing IWIF claims; (iv)
its rights under a lease (the "Real Property Lease") for real property at 8725
Loch Raven Boulevard (the "Premises"); (v) the software licenses listed in
Exhibit A attached hereto and made a part hereof (the "Software"); (vi) its
rights, if any, in the trade name "Towson Comp Care" or any other trade name
used solely and exclusively in connection with the Business; (vii) all
telephone numbers used in the operation of the business; and (viii) all
security deposits and prepaid expenses. The Tangible Assets, the Contracts,
the Software, the Equipment Leases and the Real Estate Leases (collectively,
the "Business Assets" and the business operated with the Business Assets herein
referred to as the "Business"), are set forth on Exhibit A attached hereto.
Notwithstanding any other provision of this Agreement, the parties understand
that certain consents from third parties must be obtained to convey the
Software, the Real Property Lease, and the Equipment. On or before December
31, 1996, Spectera will use its best efforts to obtain such consents of third
parties necessary to transfer those Business Assets described in the foregoing
sentence.
2
<PAGE> 4
1-2. Intellectual Property. Spectera will grant to SBMC as of the date
hereof a pre-paid, non-exclusive license to use any software currently used in
the operation of the Business, which is proprietary to Spectera. SBMC
understands and agrees that Spectera may not have the right to transfer certain
property licensed to Spectera by third parties, including but not limited to the
"Episodes" software. SBMC further understands and agrees that the proprietary
software described in the first sentence above is transferred by non-exclusive
license only, shall remain the property of Spectera, shall be used only in
connection with the medical management of claims for IWIF and no other persons
or entities, that any and all such intellectual property shall be held in the
strictest confidence, that such intellectual property constitutes the valuable
trade secrets of Spectera, and SBMC shall not make any disclosure of such
intellectual property except to its employees and agents in the medical
management of IWIF claims.
2. Management. From the date hereof through the Closing
(the "Management Period"), Spectera hereby grants SBMC a license to manage the
Business, including a license to use all of the Business Assets. In
consideration for the foregoing license, except as specifically provided
herein, SBMC hereby agrees to pay to Spectera within five (5) days after demand
accompanied by reasonable documentation (which demand may be given in
sufficient time prior to when the payment is due, so that Spectra will not have
to advance the payment) all operational costs and expenses incurred by Spectera
in connection with the Business during the Management Period, including but not
limited to,
3
<PAGE> 5
the items listed in subparagraphs (ii) and (iii) of paragraph 4, it being the
intention that Spectera incur no operational expenses in connection with
the Business other than its central office overhead and Michael Pham's
compensation during the Management Period. SBMC shall directly pay any
operational expenses, which may be directly paid without causing Spectra to be
in default. Except as provided in this paragraph 2, Spectera shall not be
entitled to any payment after the date hereof under its existing contractual
arrangement with SBMC for services under the IWIF Contract. Spectera will use
its best efforts and will encourage "at will" employees to transfer their
employment relationship to SBMC as of the Closing Date. A schedule of the "at
will" employees (the "At Will Employees") that are intended to be hired by SBMC
at the Closing is attached hereto as part of Exhibit B. Spectera acknowledges
that during the Management Period, all of the employees of the business will be
under the control and supervision of SBMC, and Spectera agrees to take all
actions regarding any of the employees, which may at any time be reasonably
requested by SBMC. During the Management Period, Spectera shall provide the
computer consulting services described in paragraph 1(b) of the Consulting
Agreement, attached hereto and made a part hereof as Exhibit D, as if the
paragraph were incorporated herein, provided the sixty hour per month
limitation shall not apply during the Management Period, provided, further that
the parties recognize that there will be competing demands by them on Michael
Pham's services during the Management Period, that he cannot work exclusively
for
4
<PAGE> 6
either party during the Management Period and that the parties will cooperate
reasonably in scheduling and using Pham's services.
3. Closing.
3.1 Closing shall occur on or before December 31,
1996 at the Law Offices of Kaplan, Heyman, Greenberg, Engelman & Belgrad,
P.A., 10th Floor - 20 S. Charles Street, Baltimore, Maryland. Upon
payment of the consideration due on that date under paragraph 4 hereof,
and provided that SBMC is current in its obligations under paragraph 2,
Spectera shall execute and deliver to SBMC a Bill of Sale containing covenants
of general warranty conveying all of the Tangible Assets, an Assignment and
Assumption Agreement of the Real Property Lease, an assignment of all of the
Software licenses and contracts, and such other documents as may be reasonably
necessary to carry out the purposes of this Agreement, all of which shall be in
forms reasonably acceptable to Spectera and SBMC. Spectera agrees to
cooperate with SBMC to obtain a temporary license for Episodes until April 30,
1997.
3.2 Seller's Conditions to Consummation of the
Transaction. Consummation of the transaction contemplated by this Agreement is
subject to the fulfillment to the reasonable satisfaction of the Spectera at
the Closing, of each of the following conditions
(a) Representations and Warranties. The
representations and warranties by SBMC contained in this Agreement shall be
true and correct in all material respects on the date hereof and shall also
be true and correct in all
5
<PAGE> 7
material respects at and as of the Closing, with the same force and effect as
if made at and as of the Closing.
(b) SBMC shall have entered into a Consulting Agreement in the form
attached hereto and made a part hereof as Exhibit D (the "Consulting
Agreement"), which SBMC hereby covenants and agrees to do.
(c) Spectera or SBMC shall have obtained all necessary consents
required under any agreements between the Spectera and the landlord of the
Premises for the assignment of the Real Property Lease, and any consents
necessary to assign the licenses for any of the Software (collectively the
"Consents"). Spectera and SBMC agree to reasonably cooperate in providing all
information and taking all action necessary to obtain the Consents.
3.3. SBMC's Conditions to Consummation of the Transaction.
Consummation of the transaction contemplated by this Agreement is subject to the
fulfillment to the reasonable satisfaction of SBMC at the Closing, of each of
the following conditions:
(a) The representations and warranties by Spectera contained in this
Agreement shall be true and correct in all material respects on the date hereof
and shall also be true and correct in all material respects at and as of the
Closing, with the same force effect as if made at and as of the Closing.
Notwithstanding the foregoing, SBMC shall not be permitted the remedy of not
proceeding with Closing in the event of the inaccuracy the representations set
forth in subparagraph 5(e), 5(g), 5(h) and 5(i), the foregoing not to constitute
a wavier of any other remedy of SBMC for such inaccuracy.
6
<PAGE> 8
(b) Spectera shall have entered into the Consulting Agreement.
(c) All of the Consents shall have been obtained, provided that
in the event that consent to the assignment of the Software licenses cannot be
obtained, SBMC's sole remedy shall be to credit the purchase price for one-half
of the cost of obtaining a new license.
4. Consideration. In consideration of transfers and assignments by
Spectera to SBMC as listed in Section 1 hereof, SBMC shall pay to Spectera an
amount equal to the sum of (i) all direct costs incurred by Spectera in
connection with the operation of the Business at the Premises and the
acquisition cost of the Business Assets through the date of this Agreement, but
excluding any direct or indirect central office costs other than legal fees and
Grant Thorton fees not to exceed Fifteen Thousand Dollars ($15,000.00), minus
(ii) all amounts paid by SBMC to Spectera for services provided by Spectera in
connection with the IWIF Contract prior to the date of this Agreement. Examples
of the types of costs included and excluded in subparagraph (i) above are set
forth in Exhibit C attached hereto and made a part hereof. Within twenty (20)
days of the date hereof, Spectera shall provide SBMC a detailed accounting, with
appropriate back-up, of all items included in subparagraph (i) above. Spectera
shall allow SBMC complete access only to those financial books and records
regarding the Business that are necessary in order to verify the accounting.
SBMC shall submit to Spectera within fifteen (15) days after receipt of the
accounting, a list of any disputed items on the accounting. Thereafter, the
parties agree to negotiate
7
<PAGE> 9
in good faith to resolve any disputes. The parties agree that any disputes
in the determination of the purchase price shall be resolved by Mort
Goldman, C.P.A., or his designee if he is unavailable. The purchase price
shall be payable in two installments of cash or certified or cashiers
check. The first installment in the amount of $500,000.00 shall be due and
payable upon the full execution of this Agreement and shall be
non-refundable. The remainder of the purchase price shall be due at the
time of Closing. The part of the purchase price to be paid by SBMC at
Closing shall not be less than $685,000.00, nor more than $850,000.00. In
addition to the purchase price, effective as of the Closing, SBMC agrees to
assume responsibility and liability for:
(i) management of all IWIF claims, including all management
responsibilities previously performed by Spectera;
(ii) payment and performance under the Contracts, the Equipment
Leases, and the Real Estate Leases;
(iii) all amounts due and owing (or which become due and owing) with
respect to the At Will Employees, including, but not limited to, all
compensation payable to such employees, including temporary employees, all
accrued time for vacation, leave, sickness, severance, or any other accrued
time due such employees pursuant to Spectera's policies, all benefits and
accrued benefits due such employees, all Spectera self-insured medical
claims, all payroll, social security and other employment taxes, and all
employee welfare and benefit plan obligations including pension and
retirement plan obligations.
8
<PAGE> 10
5. Warranties and Representations of Spectera. Spectera warrants
and represents to SBMC the following, each of which shall be true and
correct as of the date of this Agreement and as of the date of Closing and
shall survive Closing:
(a) It is a corporation duly organized and validly existing under
the laws of the state of Maryland; that it has the full right, power and
authority to enter into and perform this Agreement; and that all corporate
action necessary to authorize the execution, delivery and performance of
this Agreement has been properly taken; and that this Agreement is
enforceable in accordance with its terms.
(b) The execution or delivery of this Agreement or the carrying
out of the transactions set forth herein will not conflict with, or result
in a breach or violation of, its Articles of Incorporation, and, to the
best of the knowledge of Spectera's officers, will not violate any
applicable law or regulation or any court order, or any material agreement
to which Spectera is a party (other than its bank agreements).
(c) Spectera has good and indefeasible title to all of the
Tangible Assets, free and clear of all encumbrances, mortgages, liens,
pledges, conditional sales agreements or charges, except monetary liens in
an amount less than the purchase price which will be discharged at the time
of Closing. Spectera has a validly issued license for all of the Software.
(d) There are (i) no suits, actions, claims, inquiries,
investigations by any private or governmental body, legal, administrative
or
9
<PAGE> 11
arbitration proceedings pending or, to Spectera's best knowledge,
threatened against or affecting the Business, the Business Assets or the
transactions contemplated hereby and (ii) no outstanding orders or writs,
injunctions or decrees of any court, governmental agency or arbitration
tribunal against or affecting the Business, the Business Assets or the
transactions contemplated by this Agreement.
(e) Spectera has operated the Business in material compliance
with all laws, judgments, orders, writs, injunctions, decrees, rules and
regulations applicable thereto.
(f) To Spectera's best knowledge, there are no defaults under the
Real Property Lease by Spectera or the landlord, and the Real Property
Lease is in full force and effect.
(g) Attached hereto as Exhibit E is an accurate list, as of the
date hereof, of all insurance policies carried by the Spectera. Such
insurance policies are in full force and effect. To the extent assignable
and to the extent that the insurance polices are used solely in the
operation of the Business, Spectera shall assign all insurance policies to
SBMC.
(h) Attached hereto as Exhibit F is a complete list of any
arrangement that Spectera has with any employee of the Business to provide
any benefit in excess of Spectera's standard employee benefits. Exhibit F
also contains a complete list of all independent contractor consultants
retained by Spectera in the Business.
10
<PAGE> 12
(i) Spectera is current in the payment of all of the obligations
described in subparagraphs (ii) and (iii) of paragraph 4 incurred prior to
the date hereof.
(j) Notwithstanding any other provision hereof, Spectera
makes no warranties or representations concerning compliance with its
obligations, if any, to SBMC or IWIF under any agreement, express; implied
or claimed to exist, with, by, between or among any or all of them, the
foregoing disclaimer not to constitute a waiver of any liability if the
conduct alleged to be violative of any such agreement also independently
constitutes a violation of any other warrants, representations, covenant or
agreement herein contained.
6. SBMC's Warranties and Representations. SBMC warrants and
represents that it is a duly organized and validly existing corporation
under the laws of Michigan; that it has the full right, power and authority
to enter into and perform this Agreement; that all corporate action
necessary to authorize the execution, delivery and performance of this
Agreement has been properly taken; that this Agreement is enforceable in
accordance with its terms; that neither the execution nor delivery of this
Agreement or the carrying out of the transactions set forth herein will
conflict with or result in a breach or violation of its Articles of
Incorporation, will violate, conflict with or result in a breach of any
provision of, or constitute a default under, any of the terms and
conditions of any agreement, including the IWIF Contract, or other
instrument to which it is a party and, to the best of the knowledge of
SBMC's officers, will not violate any applicable law or regulation or any
court order. There are (i) no suits, actions, claims, inquiries,
11
<PAGE> 13
investigations by any private or governmental body, legal, administrative or
arbitration proceedings pending or, to SBMC's best knowledge, threatened against
or affecting SBMC or any of its properties, assets or business and (ii) no
outstanding orders or writs, injunctions or decrees of any court, governmental
agency or arbitration tribunal against or affecting the SBMC or its properties,
assets or business. SBMC's warranties and representations shall be true and
correct as of the date of this Agreement and shall survive the Closing
hereunder.
7. Mutual Releases. Effective as of Closing, Spectera and SBMC, and
their respective directors, officers, employees and agents, hereby release each
other, and their respective directors, officers, employees and agents, from any
and all claims, demands, damages and expenses, including, but not limited to
reasonable attorneys' fees, arising out of or in connection with their
relationship, agreements, or any other matters in any way connected with the
IWIF Contract, the management of claims for IWIF, SBMC's agreements with IWIF,
or any other matters or transactions of any nature related to IWIF or the
medical management of workers' compensation claims of employees insured by IWIF,
excepting only their respective obligations and liabilities as set forth in this
Agreement and the agreements executed in connection herewith.
8. Indemnity.
(a) Spectera hereby agrees to indemnify, defend and hold
harmless SBMC, its directors, officers, employees and agents, from any and all
claims, damages and expenses, including but not limited to attorneys' fees,
arising out of (i) the breach of any agreement, representation or warranty made
12
<PAGE> 14
by Spectera hereunder, or (ii) any negligent or intentionally tortious act
by Spectera, its agents, officers, directors or employees in the operation of
the Business prior to the date hereof (A) involving personal injury or (B)
resulting in a claim by an IWIF insured or an employee of an IWIF insured
against SBMC or any party to whom SBMC could be liable arising out of Spectera's
claims processing. In no event shall Spectera's liability under this Section
8(a) exceed that portion of the purchase price payable at Closing.
(b) SBMC agrees to indemnify, defend and hold harmless Spectera, its
directors, officers, employees and agents, from any and all claims, damages and
expenses, including but not limited to attorneys' fees, arising out of or in
connection with (i) the breach of any warranty or representation made by SBMC
hereunder; (ii) SBMC's nonpayment or failure to honor any of the obligations
assumed by SBMC pursuant to the provisions of paragraphs 2 or 4 hereunder; or
(iii) any negligent or intentionally tortious act by SBMC, its agents (other
than Spectera), officers, directors or employees in the operation of the
Business after the date hereof (A) involving personal injury or (B) resulting in
a claim by an IWIF insured or an employee of an IWIF insured against Spectera or
any party to whom Spectera could be liable arising out of SBMC's claims
processing; or (iv) any or all claims by an IWIF insured or an employee of an
IWIF insured or any insured or claimant relating to the performance by Spectera
of claim management services or otherwise, except any claim arising out of a
matter for which Spectera has indemnified SBMC under subparagraph (a) above or
any claim covered by any insurance maintained by Spectera. In no event
13
<PAGE> 15
shall SBMC's liability under this Section 8(b) exceed that portion of the
purchase price payable at Closing.
(c) If any claim or action by a third party arises after the
Closing for which a party is liable to the other party under this paragraph
8, then the indemnified party shall notify the indemnifying party within
fifteen (15) days after such claim or action arises and is known to the
indemnified party and shall give the indemnifying party a reasonable
opportunity to: (i) take part in any examination of any books and records;
(ii) conduct any proceedings or negotiations in connection therewith and
necessary or appropriate to defend the indemnified party; (iii) take all
other required steps or proceedings to settle or defend any such claim or
action; and (iv) employ counsel to contest any such claim or action in the
name of the indemnified party or otherwise. If the indemnifying party
wishes to assume the defense of such claim or action, it shall give written
notice to the indemnified party and within ten (10) days thereafter, the
indemnified party shall permit, and the indemnifying party shall thereafter
assume, the defense of any such claim or liability, through counsel
reasonably satisfactory to the indemnified party; provided that the
indemnified party may participate in such defense at its own expense.
(d) If the indemnifying party shall not assume the defense of any
such claim or action, the indemnified party may defend against any such
claim or action in such manner as it may deem appropriate (provided that
the indemnifying party may participate in such defense at its own expense):
provided, however, that the indemnified party many not settle such claim or
14
<PAGE> 16
action, without the prior written consent of the indemnifying party. If no
settlement of such claim or action is made, the indemnifying party shall
satisfy any judgment rendered with respect to such claim or in such action,
before the indemnified party is required to do so, and pay all expenses,
legal or otherwise, including reasonable attorney's fees and costs
reasonably and necessarily incurred by the indemnified party in the defense
of such claim or action.
9. Arbitration. Except with respect to any claim for injunctive
relief or specific performance under paragraphs 10, 17 or 18 hereof, any
disputes arising under this Agreement including disputes as to the
interpretation hereof, the occurrence of a breach hereunder, and the
damages arising from such breach, shall be determined by binding
arbitration in the city of Baltimore pursuant to the Commercial Arbitration
Rules of the American Arbitration Association. The decisions and awards of
the arbitrators shall be final and binding upon the parties hereto and
shall be enforceable by any court having jurisdiction in the State of
Maryland under the Maryland Arbitration Act.
10. Competition. For purposes of this Section 10, Spectera and SBMC
shall include any parent, subsidiary or other business entity that has
fifty percent (50%) common ownership.
10.1. Spectera agrees that commencing on the date hereof and
for the period indicated, Spectera will not, except with the consent of
SBMC, be engaged in, perform work related in any manner to, render service
to or compete in, the worker's compensation managed care business (i) for a
period of two years from the date of Closing for any worker's compensation
insurance plan
15
<PAGE> 17
sponsored by any State (except that IWIF shall be governed by the provisions of
subparagraph (ii) below), and (ii) for a period of three (3) years from the date
of Closing, for IWIF, provided that in the event that the IWIF Contract is no
longer in effect as of two year from the date of Closing, then Spectera may
thereafter compete. Spectera agrees that Spectera's promises herein made so to
refrain from engaging in the activities stated herein means that Spectera will
not, directly or indirectly, either on Spectera's own account or as partner,
contractor, subcontractor agent or consultant, of or for any person, firm,
association or corporation, or as stockholder of any corporation, engage in the
activities described in this paragraph for the period provided. In no event
shall the provisions of this Section 10.1 be deemed to impair the ability of
Spectera to contract with MagnaCare for work not in the worker's compensation
claims management business or to contract with MagnaCare for work in the
worker's compensation claims management business for state sponsored worker's
compensation insurance plans in the States of New York and New Jersey.
10.2. Non-Solicitation of Employees. Spectera agrees that commencing on the
date hereof and for a period of one (1) year after Closing, Spectera shall not,
directly or indirectly, solicit or induce, or attempt to solicit or induce, any
of the employees listed on Exhibit B attached hereto and made a part hereof not
to become employed by SBMC or to leave SBMC for any reason whatsoever. SBMC
agrees that commencing on the date hereof and for a period of one (1) year after
Closing, SBMC shall not, directly or indirectly, solicit or
16
<PAGE> 18
induce, or attempt to solicit or induce, any employee of Spectera's Care
Division to leave Spectera for any reason whatsoever.
10.3. Enforceability. Each party acknowledges that the restrictions
contained herein are reasonable, but agrees that if any court of competent
jurisdiction shall hold any such restriction unreasonable as to time,
geographic area, activities, or otherwise, such restriction shall be deemed to
be reduced to the extent necessary in the opinion of the court to make it
reasonable. The covenants of each party set forth herein are of the essence of
this Agreement; they shall be construed as independent of any other agreement
between SBMC and Spectera and the existence of any claim or cause of action by
the restricted party against the other, whether predicated on this Agreement or
not, shall not constitute a defense to the enforcement by the other party
against the restricted party.
10.4 Each party acknowledges that a violation of any of the agreements
or covenants contained in this paragraph 10 or paragraphs 17 or 18 below could
cause irreparable injury to the other party and there may be no adequate remedy
at law for such violation. In the event of a breach by either party of the said
provisions of this Agreement, the other party shall have the right, in addition
to any other remedies available to it at law or in equity, to enjoin the
violating party or any of the violating party's representatives, agents,
subsidiaries, affiliates, employees of the violating party or any party
retaining the services of any of the foregoing, in a court of equity from
violating any of the provisions hereof. This subsection shall not be construed
to limit in any manner
17
<PAGE> 19
whatsoever any other rights and remedies either party may have by virtue of any
breach of this Agreement.
11. Broker's Fees. Each party hereto represents to the other that it has
not engaged a broker nor will it be obligated to pay any fee or commission in
connection with the transactions contemplated by this Agreement.
12. Taxes. SBMC covenants and agrees to pay promptly any taxes that are
due or become due in connection with the transfer of the Business or otherwise
pursuant to this Agreement.
13. Maryland Law. This Agreement shall be construed, interpreted and
enforced according to the laws of the State of Maryland.
14. Notices. Any notice given pursuant to this Agreement shall be in
writing and shall be delivered by mail, telex, facsimile or personally: to SBMC,
Spencer Vavas, President and Senior Consultant, 111 South Calvert Street,
Suite 2640, Baltimore, Maryland 21202; to Spectera, Blaise Sedney and Oscar
Camp, 2811 Lord Baltimore Drive, Baltimore, Maryland 21244.
15. Amendments. This Agreement constitutes the entire Agreement between
the parties and all other communications prior to its execution, whether written
or oral, with reference to the subject matter of this Agreement are superseded
hereby. No amendment to this Agreement shall be binding unless in writing and
signed by both parties.
16. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the other provisions hereof, and this Agreement
18
<PAGE> 20
shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
17. Announcement. No party to this Agreement has made or will make,
issue or release any public announcement, statement or acknowledgment of the
existence of or reveal the terms, conditions and status of, the transactions
provided for herein, or the course of dealing between the parties regarding the
services rendered by Spectera to SBMC in connection with IWIF, without the
written consent of the other party, provided that, such communication may be
made to IWIF by SBMC, the party's lawyers and accountants and parent companies,
and after having given notice to the other party, a party may make any such
release or announcement which is required by IWIF, which in the opinion of its
counsel is necessary to comply with applicable law. Each party acknowledges
that the other could suffer irreparable injury as a result of a violation of
this paragraph, and that other shall be entitled to ex parte injunctive relief
to remedy any such violation.
18. Default. In the event that either party is in violation of the
terms of this Agreement, the non-defaulting party shall give that party written
notice specifying the nature of the default. The defaulting party shall have a
period of fifteen (15) days in which to cure the default, and if the default is
of such a nature that it cannot be cured within fifteen (15) days, then the
defaulting party shall commence to cure the default within fifteen (15) days and
shall thereafter complete the cure within a reasonable time not to exceed sixty
(60) days. Closing shall be delayed to allow a defaulting party to cure its
default, provided
19
<PAGE> 21
that Closing shall not be delayed for any default that can be cured by the
payment of money, and the defaulting party shall place in escrow with the
respective counsel of the parties an amount necessary to cure the default.
Notwithstanding anything to the contrary herein contained, it shall be a non-
curable default by Spectera, without the necessity of notice from SBMC, if all
of the conditions precedent set forth in Section 3.2 hereof have been satisfied
and Spectera is unable to convey at Closing good and marketable title to the
Business Assets, other than the Software, free and clear of all liens and
encumbrances. It shall be a non-curable default by SBMC, without the
necessity of notice from Spectera, if all of the conditions precedent set forth
in Section 3.3 hereof have been satisfied, and SBMC does not pay the purchase
price at Closing. In the event of a default, which is not cured within any
applicable grace or notice period herein contained, the non-defaulting party
shall be entitled to the remedy of specific performance against the defaulting
party in addition to any and all other remedies available to it at law or in
equity. Each party acknowledges that the other could suffer irreparable injury
as a result of a violation of this paragraph, and that the other shall be
entitled to ex parte injunctive relief to remedy such violation.
19. Cooperation. The parties hereto recognize that they have
negotiated and executed this Agreement on an expedited basis and that their
future cooperation will be necessary to implement the terms of this Agreement.
Spectera and SBMC each covenant to the other that each will furnish its good
20
<PAGE> 22
faith, reasonable cooperation after the execution hereof to carry out and
implement the terms and intent of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives as of the day and year first above
written.
WITNESS: SPECTERA INC.
WITNESS:
[SIG] By: [SIG]
- --------------------- ---------------------------
Its: [SIG]
---------------------------
WITNESS: STATUTORY, BENEFITS
MANAGEMENT CORP
[SIG]
- --------------------- By: [SIG]
----------------------------
Its: CEO
---------------------------
FOR AND IN CONSIDERATION of the sum of One Dollar ($1.00), the sufficiency
and adequacy of which are hereby acknowledged, Corporate Healthcare Financing,
Inc. hereby guarantees the prompt payment and performance by SBMC of its
obligations under this Agreement, the Consulting Agreement and any other
documents executed in connection herewith.
WITNESS: CORPORATE HEALTHCARE
FINANCING INC.
[SIG] By: [SIG]
- -------------------- ------------------------
Its: CEO
-----------------------
21
<PAGE> 23
EXHIBIT C
Loch Raven Expenses Included:
Salaries
Employee Benefits
Social Security Tax
Unemployment Tax
Office Supplies
Postage
Rent
Repairs & Maint.
Rented Equipment
Telephone
Travel, Meals & Lodging
Utilities
Computer Expenses
Consulting Fees
Employee Fees
Insurance Expense
Professional Fees
Advertising
Self Insured Medical Claims
Legal/Grant
Fixed Assets
Home Office Expenses Excluded:
Salaries
Maint. Staff
Human Res. Staff
Purchasing Staff
Accounting Staff
Computer Staff
Care Staff
Benefits & Taxes
Repairs & Maint.
Consulting
Travel, Meals & Lodging
Telephone Expenses
Self Insured Medical Claims
22
<PAGE> 24
TOWSON CARE
FIXED ASSETS
THROUGH SEPTEMBER 30,1996
<TABLE>
<CAPTION>
Vendor Amount
<S> <C>
$ 761,151
==========
Computer Equipment $ 242,376
Equipment 252,318
Furniture and Fixtures 191,565
Computer Software 749,891
New assets Approximately 90,000
TOTAL FIXED ASSETS $ 851,151
==========
</TABLE>
<PAGE> 25
TOWSON CARE
FIXED ASSETS
THROUGH SEPTEMBER 30, 1996
<TABLE>
<CAPTION>
Vendor Amount
<S> <C>
Computer Software
Fred Rothenberg & Assoc.
E-Z Cap software (Total $63,500) $ 31,750
Balance due 31,750
E-Z Cap user conference 225
Best Buy 522
IDIS Corporation 517
Sterling Commerce Interchange 10,127
---------
TOTAL $ 74,891
=========
</TABLE>
<PAGE> 26
TOWSON CARE
FIXED ASSETS
THROUGH SEPTEMBER 30,1996
<TABLE>
<CAPTION>
Vendor Amount
<S> <C>
Furniture and Fixtures
Circuit City Stores $ 472
Corporate Express 1,214
Douron, Inc. 2,060
Douron, Inc. 2,685
Douron, Inc. 9,170
Douron, Inc. 1,435
Douron, Inc. 2,121
Douron, Inc. 1,789
Douron, Inc. 4,713
MSA Industries 50
MSA Industries 50
MSA Industries 16,610
Price Modern 130,475
Price Modern 2,886
R and S Electric 49,728
Safemasters 1,739
Sam's Club 1,367
Shirlen Co. Ltd Partnership Rent Depos 8,000
--------
TOTAL $191,565
========
</TABLE>
<PAGE> 27
TOWSON CARE
FIXED ASSETS
THROUGH SEPTEMBER 30, 1996
<TABLE>
<CAPTION>
Vendor Amount
<S> <C>
EQUIPMENT
Advance Business Systems $ 10,909
Advance Business Systems 10,389
Advance Business Systems 1,199
Call One 1,984
Fijitsu 1,012
Fijitsu 114,430
Fijitsu 8,637
ON Technology Corporation 2,922
ON Technology Corporation 4,798
Pitney Bowes 5,446
Pitney Bowes - balance due 10,893
Seltronics, Eyretel 76,017
TSI 2,217
T. Talbott Bond 1,465
----------
TOTAL $ 252,318
==========
</TABLE>
<PAGE> 28
TOWSON CARE
FIXED ASSETS
THROUGH SEPTEMBER 30, 1996
<TABLE>
<CAPTION>
Vendor Amount
<S> <C>
COMPUTER EQUIPMENT
Belair Computers $ 25,385
Cabletron Systems 11,092
Comp USA 740
Comp USA 1,134
Comp USA 1,644
Comp USA 1,018
COMP USA 2,192
Dell Computers 46,006
Dell Computers 17,094
Dell Computers 34,188
Docutech 8,098
Docutech 227
Docutech 1,272
Docutech 5,077
Docutech 2,541
Docutech 4,424
DPI Business Info Systems 10,672
DPI Business Info Systems 38,733
DPI Business Info Systems 302
DPI Business Info Systems 472
DPI Business Info Systems 6,333
DPI Business Info Systems 541
DPI Business Info Systems 520
DPI Business Info Systems 3,545
DPI Business Info Systems 3,545
Glen Burnie Computerized Acctg Systems. 1,163
Interconnect 14,420
---------
TOTAL $ 242,376
=========
</TABLE>
<PAGE> 29
EXHIBIT A
(ii) Third party contracts:
Pitney Bowes - Mail Machine
Advance Business System - Copiers & Shredder
T. Talbert Bond - Fax Machine
Broadway Services, Inc. - Cleaning
Wells Fargo - Alarm
Service America Corporation - Food Service
<PAGE> 30
<PAGE> 31
LEASE
By and Between
SHIRLEN COMPANY LIMITED PARTNERSHIP, Landlord
and
SPECTERA, INC., Tenant
<PAGE> 32
TABLE OF CONTENTS
Page
I. TENANCY .................................................. 1
II. SECURITY DEPOSIT ......................................... 6
III. REAL ESTATE TAXES ........................................ 7
IV. COMMON AREA DEFINITION AND CHARGE ........................ 8
V. INSURANCE ................................................ 9
VI. FIRE OR OTHER CASUALTY ................................... 11
VII. PREMISES OCCUPANCY AND MAINTENANCE ....................... 11
VIII. OPERATING RULES AND REGULATIONS .......................... 12
IX. EMINENT DOMAIN ........................................... 12
X. LANDLORD'S CONTROL AND MAINTENANCE ....................... 13
XI. ASSIGNMENT AND SUBLETTING ................................ 13
XII. SUBORDINATION AND ATTORNMENT ............................. 14
XIII. LANDLORD'S LIABILITY ..................................... 16
XIV. TENANT'S DEFAULT ......................................... 17
XV. EFFECT OF BREACH ......................................... 18
XVI. ACCESS BY LANDLORD ....................................... 22
XVII. ESTOPPEL CERTIFICATE ..................................... 23
XVIII. BROKERAGE COMMISSION ..................................... 23
XIX. NOTICES .................................................. 24
XX. RECORDATION .............................................. 24
XXI. SUCCESSORS AND INCLUDED PERSONS .......................... 24
XXII. RIGHTS OF AND CLAIMS AGAINST LANDLORD .................... 25
XXIII. GOVERNING LAW ............................................ 26
XIV. SEVERABILITY; REDUCTION OF-CHARGES ....................... 26
XXV. NO MERGER ................................................ 27
XXVI. TIME OF THE ESSENCE ...................................... 27
XXVII. COMMERCIAL PURPOSE ....................................... 27
XXVIII. COUNTERPARTS ............................................. 27
XXIX. ENTIRE AGREEMENT ......................................... 27
Signature Page ......................................................... 28
Exhibit A .............................................................. 29
Exhibit B .............................................................. 30
Exhibit C .............................................................. 31
Addendum B - Rules & Regulations ....................................... 32
ii
<PAGE> 33
LEASE
THIS LEASE, entered into this 23RD day of April 1996, by and
between SHIRLEN COMPANY LIMITED PARTNERSHIP, (the "Landlord"), whose address is
8605 Silver Meadow Lane, Baltimore, Maryland 21236, and SPECTERA, INC., a
Maryland Corporation ("the Tenant"), whose address is 2811 Lord Baltimore Drive,
Baltimore, Maryland 21244.
NOW THEREFORE, in consideration of the premises, the mutual terms,
covenants and conditions, the receipt and sufficiency whereof is hereby mutually
acknowledged, together with the rent reserved to be paid by Tenant to Landlord,
the parties do hereby agree and covenant as follows:
I. TENANCY:
A* Premises. Landlord owns and operates two (2) buildings
known as 8725 and 8727 Loch Raven Boulevard, Baltimore County, Maryland
(the "Complex"). The Complex contains a total of approximately 112,242
square feet of gross leasable area.
i. Landlord hereby leases to Tenant and Tenant hereby rents
from Landlord in the building known as 8725 Loch Raven Boulevard, Baltimore
County, Maryland (the "Facility"), that portion of the second floor (third
counting the mezzanine) designated on the attached Exhibit A, comprising of
approximately 8,000 square feet of space (the "Premises"). In order to
define this space precisely as to square footage, the demising walls will
be installed by the Landlord and the actual gross leasable area (the
"G.L.A.") will be determined by actual measurement.
ii. With the Lease of this space, Landlord currently leases
approximately 42,000 square feet in the Facility. Tenant's share of common
area fees will be based on actual space in the Facility leased by Tenant.
The total available space in the Facility is approximately 66,821 square
feet.
iii. This Lease is subject to any conditions, restrictions,
agreements limitations, encumbrances, and easements appearing of record,
zoning ordinances and regulations now existing, or that may hereafter exist
during the Term (as defined below), and any easements for public utilities
heretofore granted or reserved.
<PAGE> 34
B. Term. The initial term (the "Initial Term") of this Lease shall
be five (5) years, beginning on the earlier of thirty (30) days following
completion of Landlord's improvements to the Premises or the date on which
Tenant begins to operate its business at the Premises (the "Commencement
Date"). If the term shall commence or end on a date other than the lst day
of the month, the five (5) year term shall commence on the lst day of the
next full month.
C. Common Areas. The Tenant shall have the non-exclusive use
of the common areas of the Facility for ingress and egress of its customers
and employees; non-exclusive access to common areas servicing the Premises;
and non-exclusive use of designated parking areas serving the Facility
(subject to Landlord's regulation of employee parking).
D. Rent. All payments of Base Rent and all Additional Rent (as such
Terms are defined below and are collectively, the "Rent") shall be made to
Landlord at the address specified in Section XIX herein. If Tenant fails
to pay part or all of the Rent within ten (10) days after it is due,
Tenant shall also pay a late charge equal to five percent (5%) of the
unpaid Rent to cover the extra expense incurred by Landlord as a result of
a delinquent payment, which late charge shall be deemed Additional Rent.
Any payment, made by the Tenant to the Landlord on account of Rent may be
credited by the Landlord to the payment of any Rent then past due before
being credited to Rent currently falling due. Any such payment which is
less than the amount of Rent then due shall constitute a payment made on
account thereof, the parties hereto hereby agreeing that the Landlord's
acceptance of such payment (whether or not with or accompanied by an
endorsement or statement that such lesser amount or the Landlord's
acceptance thereof constitutes payment in full of the amount of Rent then
due) shall not alter or impair the Landlord's rights hereunder to be paid
all of such amount then due, or in any other respect.
(1) Base Rent. Tenant shall pay Landlord, as base rent (the
"Base Rent") during the term of the Lease, in twelve (12) equal monthly
installments, in advance, on or before the first day of each calendar month
without demand, abatement, deduction, recoupment, or setoff, the sums
calculated as follows based on the G.L.A. as determined pursuant to Section
A above:
lst Year - $6.00 per square foot
2nd Year - $6.50 per square foot
3rd Year - $7.00 per square foot
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4th Year - $7.50 per square foot
5th Year - $8.00 per square foot
(2) Commencement of Rent. In the event that the Commencement Date
does not occur on the first of the month, rent for the initial short period
shall be pro rated over the portion of the remaining initial month. For
example, if Tenant opens for business on the 10th of May, Tenant shall pay
Landlord monthly Base Rent times 10/31. For purposes of future rent
computation, the anniversary date of each year shall be the first full month
when Rent was initially due.
(3) Additional Rent. All charges and amounts payable by Tenant
under this Lease, other than Base Rent, shall be deemed additional rent
("Additional Rent"), regardless of whether such charges or amounts are
specifically so identified. Unless otherwise indicated in this Lease, all
payments of Additional Rent are due fifteen (15) days after the rendering of an
invoice therefor, without any deductions, set-offs, or counterclaims, and
failure to pay such sums of money or charges shall carry the same consequences
as Tenant's failure to pay Base Rent,
E. Option to Extend Term. Tenant, provided it is not in default under
the terms of this Lease Agreement, shall have the right to renew this Lease for
two (2) additional three (3) year terms (the "Option Term"), commencing
immediately upon the expiration of the last day of the Initial Term or the first
Option Term, as applicable, under this Lease. During each year of the Option
Terms, Tenant shall pay to Landlord as follows:
As to the first three (3) year extension term:
6th Year - $8.32 per square foot
7th Year - $8.65 per square foot
8th Year - $9.00 per square foot
As to the second three (3) year extension term:
9th Year - $ 9.36 per square foot
10th Year - $ 9.73 per square foot
11th Year - $10.12 per square foot
This Base Rent during the option Terms shall be payable in twelve (12) equal
monthly installments, in advance on the 1st day of each month, without demand,
deduction or setoff. All terms and
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provisions of this Lease shall remain in effect during each of the Option
Terms. The Initial Term and the Option Term(s) are hereafter collectively
referred to as the "Term".
(1) The Tenant shall give Landlord ninety (90) days written
notice of its intention to exercise each Option Term. Time is of the
essence. Such Option Term shall be subject to all terms and conditions of
the original Lease between the parties, except as expressly modified by
this option.
(2) In the event that Tenant does not give Landlord written
notice of its intention to exercise an Option Term within one hundred
twenty (120) days of the end of the Initial Term or the end of the first
Option Term, as applicable, Landlord shall have the right, beginning one
hundred twenty (120) days prior to termination of Tenant's tenancy, to show
the Premises to prospective Lessees. This right shall be exercised during
normal business hours and Landlord shall give Tenant at least twenty-four
(24) hours notice prior to exercising Landlord's option to show the
Premises.
F. Use: Tenant agrees to use the Premises in a clean, safe, orderly
and sanitary manner solely for non-medical business offices and not for
retail sales, warehousing or any other use, unless otherwise approved by
the Landlord. Any use of the Premises, which is not stated herein or
specifically approved in writing by Landlord, shall constitute a default
under this Lease.
G. Landlord Improvements. Subject to force majeure conditions or
other causes beyond its reasonable control, Landlord will, as promptly as
possible, perform the work, if any, as described in Exhibit B, at any time
after Landlord reasonably believes that enough of Landlord's work has been
done to permit Tenant to begin Tenant's work, Landlord, shall send Tenant
notice thereof. Promptly after Landlord furnishes notice to Tenant,
Tenant shall, at its sole cost, prepare the Premises for its use and
occupancy by doing all of the work required of Tenant, including, without
the limitation, installation of its fixtures and equipment.
H. Tenant Improvements.
(1) Landlord's Approval. Tenant agrees to make the following
improvements to the Premises, at its sole expense, as outlined on Exhibit
C. If Tenant desires to make additional improvements to the Premises
such improvements shall be subject to the prior written approval of
Landlord.
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All improvements shall be done in accordance with applicable
building codes and in compliance with the Americans with Disabilities Act
and Regulations, and after receipt of building permits and any required
zoning or building code variances. All improvements shall be performed by
contractors acceptable to Landlord, which contractors must hold valid
licenses, as required by the controlling municipalities. Such contractors
shall be insured and bonded to the extent required by Landlord to protect
its interest. The Tenant shall obtain all necessary building permits, use
and occupancy permits, and shall specifically, with respect to all common
elements, comply with fire code requirements requiring two hour fire code
walls and B label or better doors. Any necessary drawings for Tenant's
improvements shall be by way of licensed architect, engineer or authorized
builder. The Landlord shall approve any color scheme and lighting for the
Tenant Premises, which approval shall not be unreasonably withheld.
All Tenant improvements shall become the property of Landlord
upon termination of this Lease. The Tenant shall construct all improvements
pursuant to a set of plans and specifications approved by the Landlord
which shall be constructed at Tenant's sole expense and which shall be
constructed by contractors approved by the Landlord.
(2) Liens. No work performed by Tenant pursuant to this Lease,
whether in the nature of erection, construction, alteration or repair,
shall be deemed to be for the immediate use and benefit of Landlord, and no
mechanic's or other lien shall be allowed against Landlord by reason of any
consent given by Landlord to Tenant to improve, alter or repair the
Premises. Tenant shall pay promptly all persons furnishing labor and/or
materials with respect to any work performed by Tenant or its contractor on
or about the Premises. In the event any mechanic's or other lien shall at
any time be filed against the Premises by reason of work, labor,
services or materials performed or furnished, or alleged to have been
performed or furnished, to Tenant or to anyone holding the Premises through
or under Tenant, Tenant shall forthwith cause the same to be discharged of
record or bonded to the satisfaction of Landlord. If Tenant shall fail to
cause such lien to be so discharged or bonded within fifteen (15) days
after being notified of the filing thereof, the Landlord, in addition to
any other right or remedy of Landlord, may bond or discharge the same by
paying the amount claimed to be due and the amounts so paid by Landlord
including reasonable attorney's fees incurred by Landlord either in
defending against such lien or in
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procuring the bonding or discharge of such lien, shall be due and payable
by Tenant to Landlord as Additional Rent.
(3) Signs. Except as provided above, Tenant shall
not erect, display or maintain, or permit to be erected, displayed
or maintained, any sign, picture, advertisement, awning, canopy,
merchandise, notice, or light on the outside of the exterior of the
Premises without having secured the written approval of Landlord,
and further, Tenant shall not erect, display, or maintain any
illuminated sign or signs or lights in or about the show window or
front of the Premises which shall be visible to the exterior
without first securing the written approval of Landlord and subject
to Tenant's obtaining governmental approval. Tenant shall pay all
costs in connection with permitting, erecting and maintaining its
signage.
I. Right of First Refusal. In the event that Landlord
receives an acceptable offer to lease any other portion of the
second floor of the Facility, Landlord shall give Tenant notice of
such offer and the opportunity for Tenant to match such offer.
However, Tenant's agreement to match the offer (exercise its right
of first refusal) must be received by Landlord within seven (7)
days of the time Landlord has notified Tenant in writing of the
offer. In addition, Tenant shall have a period of nine (9) months
from the date of this Lease to lease additional contiguous space on
the second floor of the Facility on the same terms and conditions
as are stated in this Lease.
J. Parking. Landlord confirms that it has the right to
additional parking spaces on the Days-Inn parking lot and will
provide in excess of 250 parking spaces for the Complex, including
the spaces provided on the Days-Inn parking lot.
II. SECURITY DEPOSIT: Landlord hereby acknowledges receipt
from Tenant the sum of EIGHT THOUSAND DOLLARS ($8,000.00) as a
security deposit (the "Security Deposit"). The Security Deposit
will be held by Landlord, without interest accruing thereon, as
security for performance by Tenant of the terms and conditions of
this Lease. In no instance shall the amount of such Security
Deposit, whether or not applied, be considered as a measure of
liquidated damages. All or any part of the Security Deposit may be
commingled with other funds held by Landlord and applied by
Landlord in total or partial satisfaction of the costs incurred by
Landlord to cure any default by Tenant. If any part of the
Security Deposit applied Landlord to an obligation of Tenant,
Landlord shall require Tenant to restore the Security Deposit to
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its original amount by giving notice to Tenant and Tenant shall
immediately restore such Security Deposit by payment thereof to
Landlord. It is understood and agreed that should Landlord convey
its interest under this Lease, the Security Deposit shall be turned
over by Landlord to Landlord's grantee or transferee, and upon any
such delivery of Security Deposit, Tenant hereby releases Landlord
herein named of any and all liability with respect to the Security
Deposit, its application and return, and Tenant agrees to look
solely to such grantee or transferee, and it is further understood
that this provision shall apply to subsequent grantees and
transferees.
III. REAL ESTATE TAXES:
A. Payment of Taxes. Landlord shall be responsible for
payment of all real estate taxes, ad valorem taxes and general or
special assessments of every kind, as defined above, for the
Facility. Tenant shall pay as Additional Rent all other taxes,
fees, assessments and public charges imposed upon its business
operation, leasehold interest and improvements, fixtures,
equipment, merchandise and personal property of any kind owned,
installed or used by Tenant in, on or upon the Premises. In the
event Tenant's aforesaid obligations are assessed together with
Landlord's obligations, Landlord shall reasonably and equitably
apportion such assessment which shall be binding upon Tenant.
B. Tenant's Share of Tax Increases. Tenant shall pay its
share of the increase in Real Estate Taxes over the base period
July 1, 1995 to June 30, 1996. In the event those Real Estate
Taxes are reduced, Tenant shall be given the benefit by way of a
common area charge offset or credit against rent to the extent of
such reduction. The Tenant's share will be determined by taking
the total of the Tenant's G.L.A. of the Premises divided by the
G.L.A. of the Facility and multiplied by the increase. For
example, if the Tenant's G.L.A. is 13,000 square feet and the
Facility's G.L.A. is 40,000 square feet, any such increase shall be
multiplied by a factor of .325.
Landlord agrees to appeal the Real Estate Tax Assessment
at Tenant's request, provided that Tenant shall pay all expenses
incurred by Landlord as a result of that appeal.
Within ninety (90) days of receipt by Landlord of its new
Real Estate Tax statement, Landlord shall prepare a statement,
verified by Landlord's representative, showing any increase in real
estate taxes and Tenant's share. Tenant's share shall be paid to
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the Landlord as Additional Rent within thirty (30) days of receipt
of the statement by Tenant.
IV. COMMON AREA DEFINITION AND CHARGE:
A. Definition: Common Area. The Common Area shall be
defined as all automobile parking areas, driveways, entrances and
exits thereto, and other facilities furnished by Landlord, if any,
in or near the Facility and those areas used in common with 8727
Loch Raven Boulevard, including employee parking areas, pedestrian
sidewalks and ramps, landscaped areas, exterior stairways, rest
rooms and other areas and improvements provided by Landlord for the
general use, in common, of tenants, their officers, agents,
employees and customers. The Common Area shall also include the
sprinkler system serving the Facility. The Common Area shall be
maintained by Landlord as provided in Section X herein.
B. Payment of Common Area Charge. Within ninety (90)
days of the end of the prior calendar year, Landlord shall prepare
a statement for the prior year, verified by Landlord's
representative, showing the Operating Costs, Tenant's Share and
Tenant's payments. If such Share exceeds Tenant payment, then the
balance is due Landlord within sixty (60) days as Additional Rent.
If such Share is less than Tenant's payments, Landlord shall either
refund the difference or credit Tenant, at Landlord's election.
This sum shall be included as Additional Rent. However, the
parties agree that during the term of this Lease including
extensions, that this Common Area charge shall not exceed an
amount equal to $1.00 per square foot of G.L.A.
C. Common Area Charge Defined For purposes of this
Section IV, the Common Area Charge paid by the Tenant shall be
attributed to the total cost and expense (other than principal and
interest payments made by Landlord on any mortgage or expenditures
for capital improvements) incurred by Landlord in the repair,
maintenance and operating of the office portion of the Facility,
including the entrance, elevator, stairwell and parking area which
services it, as well as the janitorial service for that common
area, NO JANITORIAL SERVICE SHALL BE PROVIDED TO TENANT'S
INDIVIDUAL PREMISES BY LANDLORD. Common Area charges will also
include, but not be limited to: (i) utility services for the
Common Area and water and sanitary sewer charges for the entire
Complex; (ii) cleaning, snow removal, repainting, repairing,
restriping of the parking for the Common Area for the Complex;
(iii) roof maintenance and repair of the Facility; (iv) maintenance
and repair of the sprinkler system for the Facility; (v) direct
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payroll charges and costs in connection with any of the foregoing;
(vi) actual administrative costs regarding the administration of
the Complex. It is agreed and understood that Landlord shall in
the exercise of its reasonable judgment determine the amount, level
and extent of any maintenance service or repair in connection with
any of the foregoing. Landlord shall not be responsible for the
collecting removal of Tenant's refuse and garbage, which shall be
Tenant's responsibility. Unless otherwise agreed by the parties,
Tenant shall not use and dumpster provided by Landlord for other
Tenant's of the Complex,
V. INSURANCE:
A. Tenants Insurance. The Tenant, at Tenant's sole
cost and expense, shall maintain and keep in effect through the
Lease Term general public liability insurance against loss or
liability in connection with bodily injury or death or property
damage or destruction in or upon the Premises arising out of the
use of any portion of the Premises by the Tenant or its agents
employees, officers, invitees, visitors and guests. It shall have
limits as may be reasonably required by Landlord from time to time,
but in any event, not less than $500,000.00 per person,
$1,000,000.00 per occurrence for bodily injury and $50,000.00
property damage. The insurance coverage required of Tenant shall,
in addition, extend to any liability of Tenant arising out of
Tenant indemnities or obligations under this Lease. However, the
insurance policy shall not cover the obligation of Tenant to pay
Rent or Additional Rent to Landlord under this Lease. The Tenant
shall also provide insurance covering Tenant's improvements and
property insurance covering all of the items included in Tenant's
leasehold improvements, including alterations, heating, ventilation
and air conditioning equipment, trade fixtures and personal
property in or upon the Premises, in an amount not less than their
full replacement cost during the Lease Term, which provides
protection against perils included within the standard Maryland
form of fire and extended coverage insurance policy, together with
coverage against sprinkler damage, vandalism and malicious
mischief. Such policies aforesaid shall name the Landlord, any
other parties in interest designated by Landlord from time to time,
and the Tenant as the insured parties; shall provide that they
shall not be cancelable without at least thirty (30) days prior
written notice to the Landlord; and shall be issued by insurers of
recognized responsibility, licensed to do business in Maryland. At
least ten (10) days prior to the commencement of the Lease Term,
Tenant shall present to Landlord a certificate of insurance,
acceptable to Landlord or the originals or a signed duplicate copy
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of such policies shall be delivered by the Tenant to the Landlord,
and at least thirty (30) days before any such policy shall expire,
the Tenant shall deliver the original or a signed duplicate of a
replacement policy to the Landlord or a Certificate of Insurance
acceptable to Landlord.
B. Landlord's Insurance. The Landlord, during the Lease
Term, shall maintain insurance covering Landlord's Facility,
including Tenant's improvements to Tenant's Premises which have
become fixtures to the Premises (excluding Tenant's required
insurance) in an amount not less than 100% of full replacement cost
providing protection against perils included in a standard Maryland
form of fire and extended coverage; insurance against sprinkler
damage, vandalism and malicious mischief; and Landlord may carry
rent insurance on the Premises, not to exceed eighteen (18) times
the sum of the prorated, monthly Base Rent, plus estimated
Additional Rent herein.
C. Tenant's Share of Insurance Increases. Tenant shall
pay its share of the increase in Landlord's Insurance over the base
period ending July 31,1996. The Tenant's share shall be determined
by taking the total of Tenant's G.L.A. divided by the G.L.A. of the
Facility and multiplied by the increase. For example, if the
Tenant's G.L.A. is 13,000 square feet and the Facility's G.L.A. is
40,000 square feet, any such increase shall be multiplied by a
factor of .325. In the event that Landlord's Insurance is decreased
over the base period, Tenant shall be given the benefit by way of
a common area charge offset or credit against rent to the extent of
such reduction.
D. Waiver. Notwithstanding any other provisions of this
Lease to the contrary, Landlord and Tenant hereby waive any right
that each may have against the other on account of any loss or
damage occasioned to its property arising from any risk generally
covered by a standard Maryland form of fire and extended coverage
policy, including insurance against sprinkler damage, vandalism and
malicious mischief, whether or not such a policy shall be in force.
The parties also each, on behalf of their respective insurance
companies insuring the property of either Landlord or Tenant
against any such loss, waive any right of subrogation that such
insurance companies may have against Landlord, any other parties,
tenant or occupants, or Tenant as the case may be. If either
Landlord or Tenant shall be unable, after using best efforts, to
obtain and/or maintain the waiver of subrogation set forth in the
immediately preceding sentence from its insurance carrier(s) (or
from any other insurance carrier(s) without substantial increased
cost) and shall so notify the other party of such inability within
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thirty (30) days thereafter, then the above mutual waiver of
subrogation and mutual waiver of liability shall no longer be
effective until the mutual waiver of subrogation is again
obtainable by both parties.
VI. FIRE OR OTHER CASUALTY: In the event the Premises are
damaged by fire, the elements, unavoidable accident or other
casualty, Landlord shall promptly repair the Premises and if the
Premises are not thereby rendered untenantable, in whole or in
part, the Rent shall not abate; or if untenantable in part, rent
shall abate proportionately during untenantability; or if wholly
untenantable, Rent shall abate entirely during untenantability.
In no event shall Landlord be liable for interruption of
Tenant's business, damage or loss of Tenant's personalty of any
kind or leasehold improvements. If the Premises are rendered wholly
untenantable, or damaged for any cause not covered by Landlord's
insurance or substantially damaged, or if the Facility of which
the Premises are a part, but not the Premises, is damaged to the
extent that in Landlord's judgment, demolition of the Facility
and/or the Premises is necessary, then in any such event, either
party may terminate this Lease by giving the other party written
notice within thirty (30) days of the occurrence. Tenant's Base
Rent, Additional Rent and other charges shall be adjusted as of
cancellation date.
VII. PREMISES OCCUPANCY AND MAINTENANCE: Tenant shall, at its
cost and expense pay the costs of all utilities which service the
Premises including electricity for its general use, (including
heating and air conditioning), and any other utilities necessary to
service Tenant's Premises. Also, Tenant shall: (1) Maintain the
Premises in good and tenable condition; (2) Prevent waste; (3)
Promptly inform Landlord of needed repairs to the Premises that are
Landlord's responsibility; (4) Maintain all equipment and fixtures
installed by Tenant; (5) Provide and maintain Tenant's telephone
service; (6) Maintain all fire/emergency egress free and clear of
obstruction; (7) Not overload electrical service provided and
install, upon Landlord's approval, additional electrical wiring
required in connection with Tenant's needs; (8) Permit no
mechanic's liens or similar impediments to be imposed upon the
Premises; (9) Not make any significant alterations to the Premises
without Landlord's prior written approval or as provided herein;
(10) Make no structural alterations whatsoever except as provided
herein; (11) Otherwise comply with all obligations and
responsibilities under this Lease; (12) At its sole expense, for
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the first $3,000.00 of annual costs, maintain a maintenance and
service agreement on Tenant's heating and air conditioning system
which may he assignable at the end of the lease term to Landlord
(Tenant shall provide Landlord with evidence of such agreement upon
request); (13) Providing for the collection and removal of Tenant's
refuse and garbage; and (14) Maintain any of Tenant's signage. As
to Item 12 above, Landlord shall be responsible for the annual
expense in excess of $3,000.00 per year.
Landlord shall, at its expense, maintain all utility and
mechanical systems and structural components in or servicing the
Premises under Landlord's exclusive responsibility, which are
located outside of the Premises, except for Tenant's heating,
ventilating and air conditioning systems, which shall be maintained
by Tenant.
VIII. OPERATING RULES AND REGULATIONS: Tenant shall
faithfully observe and comply with the rules and regulations that
Landlord shall from time to time promulgate, including, but not
limited to, that set forth in Addendum B. The Landlord shall have
the right from time to time to make modifications, additions or
deletions to the Rules and Regulations, provided they do not
unreasonably and substantially interfere with Tenant's covenants to
quiet enjoyment and beneficial use, provided the same are uniformly
applied by Landlord. The Landlord shall retain exclusive control
over all common areas of the Facility, including Tenant's means of
ingress/egress. However, at no time shall Landlord block the
ingress of egress of Tenant.
IX. EMINENT DOMAIN: If the whole or any part of the Premises
shall be taken under the power of eminent domain, this Lease shall
terminate as to the part so taken on the date Tenant is required to
yield possession thereof to the condemning authority. The Landlord
shall make such repairs and alterations as may be necessary in
order to restore the part not taken, to useful condition. The Base
Rent and Tenant's other obligations shall be proportionately
adjusted for the portion taken. If the portion so taken
substantially impairs the usefulness of the Premises for the
authorized use, either party may terminate this Lease as of the
date Tenant is required to yield possession. All compensation
awarded for any taking of the fee and the leasehold shall belong to
and be the property of Landlord; provided, however, that Tenant,
and not Landlord, shall be entitled to any portion of the award
which does not serve to reduce Landlord's award, and is made
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directly to Tenant in reimbursement for Tenant's cost of removal of
its personalty, trade fixtures, moving and relocation costs.
X. LANDLORD'S CONTROL AND MAINTENANCE: Landlord will maintain
the common areas and public facilities in good condition and they
shall be properly lighted during operating hours and a reasonable
time thereafter. Landlord shall have the right to determine the
nature and extent of the common areas; the right to make changes
therein and thereto, which it deems, in its sole discretion, to be
in the best interests of the Facility, provided the same does not
unreasonably interfere with Tenants access to or use of the
Premises, or reduce Tenant's customer parking, or the visibility of
the Premises; or which result from laws, rules, regulations,
guidelines or order, Landlord shall have the exclusive right to use
all or any part of the roof, floor and walls exterior to the
Premises for any purpose whatsoever, including expansion and/or
alteration of the Facility, provided that access to the interior of
the Premises shall not be materially altered; there is no
encroachment upon interior of the Premises, and that Tenant and its
invitees use and enjoyment of the Premises shall not be
unreasonably denied. Landlord also reserves the right to enter upon
Tenant's Premises should Tenant default in the performance,
commission and/or omission of any of its obligations under this
Lease Agreement, and cure the Tenant's default(s) if Tenant fails
to cure after written notice and reasonable opportunity to cure
without further notice to Tenant.
XI. ASSIGNMENT AND SUBLETTING:
A. Tenant shall not make or permit an Assignment of
this Lease or any interest of Tenant herein, in whole or in part,
by operation of law or otherwise, without first obtaining in each
and every instance the prior written consent of Landlord, which
consent may not be unreasonably be withheld. No less than thirty
(30) days prior to the effective date of a proposed Assignment,
Tenant shall offer to reconvey to Landlord, as of the effective
date, that portion of the Premises which is the subject of the
proposed Assignment, which offer shall contain an undertaking by
Tenant to accept, as full and adequate consideration for the
reconveyance, Landlord's release of Tenant from all future Rent and
other obligations under this Lease with respect to the Premises or
the portion thereof so reconveyed. Landlord, in its absolute
discretion, shall accept or reject the offered reconveyance within
thirty (30) days of the offer, and, if Landlord accepts, the
reconveyance shall be evidenced by an agreement in form and
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substance acceptable to Landlord. If Landlord fails to accept or
reject the offer within the thirty (30) day period, Landlord shall
be deemed to have rejected the offer; however, no such rejection by
Landlord shall be deemed to be a consent to an Assignment.
B. Any consent by Landlord to an Assignment shall be
held to apply only to the specific transaction thereby authorized
and shall not constitute a waiver of the necessity for such consent
to any subsequent Assignment, including, but not limited to, a
subsequent Assignment by any trustee, receiver, liquidator, or
personal representative of Tenant. In the event Tenant executes an
agreement to effect an Assignment, such agreement shall provide
that (i) the subtenant or other occupier of space shall take
subject to this Lease, (ii) the occupier shall also fulfill all
obligations of Tenant under this Lease as they pertain to the
portion of the Premises set forth in the Assignment, and (iii) with
respect to such portion of the Premises the occupier shall be
deemed to be Tenant under this lease.
C. If this Lease or any interest herein be assigned or
if the Premises or any part thereof be sublet, used, or occupied by
anyone other than Tenant without Landlord's prior written consent
having been obtained thereto, Landlord may nevertheless collect
Rent (including Additional Rent) from the assignee, sublessee,
user, or occupant and apply the net amount collected to the Rents
herein reserved. Furthermore, in any such event Tenant shall pay to
Landlord monthly, as Additional Rent, the excess of the
consideration received or to be received during such month for such
Assignment (whether or not denoted as rent) over the Annual Rent
reserved for such month in this Lease applicable to such portion of
the Premises so assigned, sublet, or occupied. No such Assignment
or collection shall be deemed a waiver of the covenant herein
against Assignment by others, or the acceptance of the assignee,
subtenant, user, or occupant as Tenant hereunder, or constitute a
release of Tenant from the further performance by Tenant of the
terms and provisions of this Lease. If this Lease or any interest
of Tenant herein be assigned or if the whole or any part of the
Premises be sublet or used or occupied by others, after having
obtained Landlord's prior written consent thereto, Tenant shall
nevertheless remain fully liable for the full performance of all
obligations under this lease to be performed by Tenant, and Tenant
shall not be released therefrom in any manner.
D. If Tenant is a partnership and if at any time
during the Term of this Lease any person or entity which at the
time of the execution of this Lease owns a general partner's
interest ceases to own such general partners interest, such
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cessation of ownership shall constitute an Assignment of this Lease
for all purposes of this Section, and Tenant shall promptly notify
Landlord in writing of such change.
XII. SUBORDINATION AND ATTORNMENT:
A. Subordination. Tenant's rights under this Lease are, and
shall always be subject and subordinate to the operation and effect
of any mortgage or deed of trust or any other instrument of
financing now or hereafter placed upon the Facility or any part
thereof by Landlord, or any renewal, modification, consolidation,
replacement or extension of any such instrument (hereinafter
collectively referred to as "Financing Instrument"). The foregoing
sentence shall not authorize or allow any mortgagee, financing
institution, lender any party acquiring title to the Facility as a
result of a foreclosure or other sale under a Financing Instrument
or by deed in lieu of foreclosure, or any other successor to or
transferee of the rights of any mortgagee, financing institution,
or lender (collectively, including any successor or transferee,
"Bank") to cancel or affect any of Tenant's rights under this lease
upon the default of Landlord for non-payment, bankruptcy or
receivership. Tenant's rights under this Lease shall survive any
action against Landlord. If the interest of the Landlord in the
Facility shall be transferred to or owned by any Bank by reason of
foreclosure or other proceedings brought by Bank, or by deed in
lieu of foreclosure or in any other manner, Tenant shall be bound
to Bank under all of the terms, covenants, and conditions of this
Lease for the balance of the term thereof remaining and any
extensions or renewals thereof that may be effected in accordance
with any option therefor in this Lease. The foregoing provisions
shall be self-operative, and no further instrument of subordination
shall be necessary, but Tenant shall execute promptly any
instrument of subordination that Landlord or Bank may request. In
the event that Tenant fails to execute any instrument of
subordination that Landlord or Bank may request within ten (10)
days, beginning on the eleventh (11th) day, Tenant shall owe
Landlord One Hundred Fifty Dollars ($150.00) per day to compensate
Landlord as liquidated damages for the additional costs incurred by
Landlord in satisfying its lender in accordance with this
provision.
B. Attornment. Tenant agrees that in the event that any
Financing Instrument creates a security interest in a Bank, Tenant
hereby attorns to (a) any Bank as its Landlord when a Bank is in
possession of the Facility, or (b) any receiver appointed pursuant
to a Financing Instrument or in any action of proceeding to
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foreclosure any Financing Instrument, said attornment to be effective and
self-operative without the execution of any further instrument on the part of
Tenant or Bank, immediately upon Bank's succeeding to the interest of the
Landlord in the Facility. Except as herein provided, the respective rights and
obligations of Tenant and Bank upon such attornment, to the extent of the
then-remaining balance of the term of the Lease, and any such extensions or
renewals, shall be and are the same as now set forth herein, and Tenant will
pay to Bank of the rents and other monies required to be paid by Tenant
hereunder and perform all of the other terms, covenants, conditions and
obligations of this Lease contained as if Bank were the original Landlord
herein. Upon request, Tenant will execute a written Attornment Agreement in
favor of Bank at such time as Bank succeeds to the Landlord's interest in the
Facility.
C. If Bank shall succeed to the interest of the Landlord under the Lease,
Bank shall not be (a) liable for any act or omission of Landlord, (b) subject
to any offsets or defenses that Tenant might have against Landlord, (c) bound
by any rent, security deposit or additional rent which Tenant might have paid
for more than two (2) months in advance to Landlord, (d) bound by any amendment
or modification of the Lease made without Bank's consent, or (e) bound to
Tenant beyond the date at which Bank shall transfer title to the Facility to a
third party who assumes the rights and obligations of the Lease.
XIII. LANDLORD'S LIABILITY: To the best of Landlord's knowledge, the
water, gas, and sewer systems existing in the Complex are in good working
condition as of the date of the execution of this Lease. Landlord shall not be
liable to Tenant for any loss or damage that may be occasioned by or through
the acts by or omissions of persons occupying space in any other part of the
Facility, or for any loss or damage resulting to the Tenant or its property
from bursting, stoppage or leaking of water, gas, or sewer pipes or for any
damage caused by water leakage, or loss of property within the Premises from
any cause whatsoever, except Landlord's gross negligence or willful acts or
breach of this Lease. The Landlord shall not be required to reconstruct or
reinstall any alterations, additions or changes done to the Premises by Tenant.
Tenant covenants that neither the Landlord nor any owner of a portion of the
Facility shall be liable for any damage, liability, injury to or death of any
person or property during the Lease Term, arising out of the occupancy or
enjoyment of the Premises by the Tenant or any other person therein, unless by
Landlord's negligence, willfully caused tortious acts, or breach of this
Lease. Tenant shall indemnify and save harmless Landlord,
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other owners, mortgagees, and other parties of interest, from all claims,
actions, demands, costs and expenses, and liability whatsoever, including
reasonable attorney's fees, on the account of any such claim, damage or
liability and from all liens, claims or demands occurring in, on or arising out
of Tenant's use or possession of the Premises. Except for liabilities covered
by Tenant's required insurance under this Lease, Tenant shall not be liable for
damage or injury occasioned by the negligence or willful acts of the Landlord.
Landlord covenants that, provided Tenant is not in default under the Lease,
Tenant shall have quiet enjoyment of the Premises.
XIV. TENANT'S DEFAULT: This Lease is conditioned upon Tenant's faithful
and punctual performance of all obligations, covenants, conditions, rules,
regulations and agreements set forth in this Lease Agreement AND IN ALL OTHER
LEASE AGREEMENTS BETWEEN THE PARTIES FOR PROPERTIES WITHIN THE COMPLEX WHICH
ARE NOT COVERED BY THIS LEASE, IF ANY, IN PRESENT FORM OR AS modified from time
to time where permitted or reserved. Tenant default(s) shall constitute a
breach of this Lease, in addition to any rights or remedies under Maryland
law. By way of example rather than limitation, Tenant shall be in default by:
(1) failure to pay the Base Rent, Additional Rent and/or other charges herein
reserved as Rent, on the days and time and at the place the same are due
(subject to a late charge of 5% of Rent and the grace periods stated herein;
(2) failure to cure any non-monetary Tenant obligation, except holding over,
within fifteen (15) days of written notice from Landlord; (3) failure to
reimburse Landlord for cure of Tenant default within fifteen (15) days of
demand for repayment; (4) failure to restore the security deposit; (5) failure
to abide by and enforce rules and regulations after fifteen (15) days written
notice to cure or comply; (6) failure to maintain the required Tenant
insurance; (7) permitting an unauthorized assignment or sublet; (8) failure to
comply with any zoning requirements or violation notices; (9) failure to comply
with any building code, fire code, health code or similar regulations issued by
a duly authorized governmental agency or authority; or (10) otherwise expose
the Landlord to sanctions, tortuous claim or contractual claim not insured
under Landlord's casualty and liability insurance or expressly consented to by
the Landlord; or (11) DEFAULTING ON ANY PROVISION OF ANY LEASE AGREEMENT
BETWEEN THE PARTIES (LANDLORD AND TENANT) FOR PROPERTIES WITHIN THE COMPLEX.
It is further understood and agreed that the Landlord's acceptance of Rent
or any other consideration shall not be deemed as an accord and satisfaction
and Landlord shall have the absolute
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discretion to apply same against any sum for any period or any reason due
hereunder without the same constituting a release of any other sums remaining
due and unpaid and without release of any claims for Tenant's default. The
failure to insist in any one or more instances upon the performance of any of
the covenants and conditions of this Lease Agreement whether same constitutes a
Tenant default, shall not be construed as thereafter waiving or relinquishing
the Landlord's right to performance of any such covenants, conditions, rights
or privileges, and same shall continue and remain in full force and effect and
without waiver of default. Landlord's liability under a Landlord default shall
be limited to Landlord's interest in the Facility only.
The parties agree that Tenant shall have the right to dispute any
additional charges of the Landlord. However, such dispute shall not relieve
Tenant of the obligation to pay such amounts, pending settlement.
XV. EFFECT OF BREACH.
A. In the event of a breach of this Lease as set forth in Section XIV,
Landlord shall have the option to do any of the following in addition to and
not in limitation of any other remedy permitted by law or by this Lease: (i) to
re-enter the Premises, using force if necessary, to dispossess Tenant and all
other occupants from the Premises and to remove any or all of Tenant's property
at the Premises, (ii) to store Tenant's property in a public warehouse or
elsewhere at the cost, risk, and expense of Tenant, without Landlord's being
deemed guilty of trespass or becoming liable for any loss or damage which may
occur on Tenant's property, and (iii) upon fifteen (15) days' written notice to
Tenant, which the parties agree is commercially reasonable, to sell in a
commercially reasonable manner at public or private sale any or all of said
property, whether exempt or not from sale under execution or attachment (such
property being deemed charged with a lien in favor of Landlord for all sums due
hereunder), with the proceeds of sale to be applied: first, to the costs and
expenses of retaking, removal, storage, preparing for sale, and sale of the
property (including reasonable attorney's fees); second, to the payment of any
sum due hereunder to Landlord (including Rent, charges, and damages, both
theretofore and thereafter accruing); and, third, any surplus to Tenant.
B. Further, upon the occurrence of any such breach, Landlord, in addition
to any other remedies it may have at law, in equity, by statute, or under any
other provision of this Lease,
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shall have the right to terminate this Lease, as well as all right, title, and
interest of Tenant hereunder, by giving to Tenant not less than thirty (30)
days' advance written notice of Landlord election to cancel and to terminate
this Lease. Upon the expiration of the time fixed in the notice of
termination, this Lease and the balance of the Term then remaining, as well as
all of the right, title, and interest of Tenant under this Lease, shall expire
in the same manner and with the same force and effect (except for the Tenant's
liability as hereinafter set forth) as if the expiration of the time fixed in
the notice of termination was the date upon which the Term would normally have
expired. Tenant shall then immediately quit and surrender the Premises and
each and every part thereof to Landlord, and Landlord may enter upon the
Premises, by force, summary proceedings, or otherwise. In any of such events,
Landlord shall be entitled to the benefit of all provisions of the ordinances
and public local laws of the city or county where the Property is located and
of the Public General Laws of the State of Maryland dealing with the speedy
recovery of lands and tenements held over by tenants or proceedings in forcible
entry and detainer. Upon any entry or re-entry by Landlord, with or without
legal process, Landlord shall also have the right to relet the Premises, from
time to time, at the risk and expense of Tenant. No re-entry by Landlord with
or without a declaration of termination shall be deemed to be an acceptance or
a surrender of this Lease or as a release of the Tenant's liability for damages
under the provisions of this Section. Landlord shall use reasonable efforts to
mitigate its damages.
C. Tenant further agrees (i) notwithstanding re-entry by Landlord with or
without termination pursuant to the provisions of Subsection (a) of this
Section, or (ii) if this Lease is otherwise terminated by reason of Tenant's
default, or (iii) if Landlord retakes possession with or without process of
law and/or re-enters with or without a declaration of termination, or (iv) if
Landlord, following any of the foregoing events, lets or relets the Premises
(whether once or more than once during the remainder of the Term, and upon such
conditions as are satisfactory to Landlord) that Tenant shall, nevertheless,
subject to such mitigation, in each instance, remain liable for the performance
of any covenant of this Lease then in default and for all Rent and all other
charges and damages which may be due or sustained before and after the date of
default, together with the cost of seizure and repossession of the Premises and
reasonable attorney's fees incurred by Landlord as a result of the breach of
this Lease.
D. In any of the events described in the preceding Sub-section, Tenant
agrees that it will remain liable to Landlord
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for liquidated damages to be calculated and paid as follows: (1) Tenant shall
pay an amount of money equal to the total amount of Rent and all other payments
and charges which would have become payable during the unexpired portion of the
Term remaining at the time of re-entry, repossession, or termination, less the
net amount of Rent, if any, received by Landlord during the remaining Term from
others to whom the Premises may be rented, at such times, upon such terms and
conditions and at such rentals as Landlord shall deem proper; or (2) if the
Premises have not been rented at the time of Landlord's suit for breach,
Landlord shall be entitled to its actual damages for unpaid rent, Additional
Rent, and other sums then due Landlord under this Lease to the date of suit
plus an amount equal to the lesser of one (1) year's rent as of the date of
suit, or the amount of rent which would be due Landlord for the remainder of
the Lease, if such term is less than one (1) year.
E. In connection with. any such reletting(s), Landlord shall have the
absolute right, without such action's being or being deemed to be a surrender
of its rights or as a termination of this Lease or as a release of the Tenant's
liability hereunder for the balance of the Term or Option Term(s), to let or
relet the Premises for a longer or shorter term than that remaining after
Tenant's default, to lease more or less area than that contained in the
Premises, to lease the Premises together with other premises or property owned
or controlled by Landlord, and to change the character or use of the Premises.
Landlord shall deduct from any amounts received from any such letting or
reletting (i) first all reasonable costs and expenses incurred in connection
with Tenant's default, including, but not limited to, the cost to repair,
restore, renovate, or decorate the Premises for a new tenant, reasonable
attorney's fees, real estate commissions, the cost of any legal actions brought
against Tenant, and other costs reasonably incurred, and then (ii) Landlord
shall deduct all Monthly Installments of Annual Rent and Additional Rent due
hereunder. Tenant shall continue to be responsible for and liable for any
deficit created thereby, and Landlord shall retain and apply any surplus until
all such liquidated damages shall have been paid in full to Landlord. The
liquidated damages shall be payable in monthly installments, in advance, on the
first day of each calendar month following re-entry, with or without
termination, and shall continue until the date fixed herein as the normal
expiration date of the Term of this Lease. In no event shall Tenant be entitled
to receive any portion of the amounts received by Landlord in connection with
the letting or reletting of the Premises.
F. No entry or re-entry by Landlord, whether resulting
from summary proceedings or otherwise, nor any letting or reletting
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shall absolve or discharge Tenant from liability hereunder. Tenant's liability
hereunder, even if there be no letting or reletting, shall survive the issuance
of any dispossess warrant, order of court terminating this Lease, or any other
termination based upon Tenant's default. The words "enter," "re-enter," and
re-entry" as used in this Section and elsewhere in this Lease are not
restricted to their technical legal meanings.
G. Suit or suits for the recovery of such deficiency or damages or for a
sum equal to any Monthly Installment or Installments of Annual Rent and
Additional Rent and other charges payable hereunder may be brought by Landlord
from time to time, at Landlord's election. Nothing herein contained shall be
deemed to require Landlord to await the date when this Lease or the Term would
have normally expired had there been no such default by Tenant or no-such
termination by Landlord.
H. No payment received by Landlord from Tenant after re-entry or the
termination of this Lease in any lawful manner shall reinstate, continue, or
extend the Term of this Lease or affect any notice theretofore given to Tenant
by Landlord or operate as a waiver of the right of Landlord to recover
possession of the Premises by proper suit, action, proceedings, or other
remedy.
I. In the event Tenant fails to vacate the Premises at
any time after termination of this Lease as provided above, Tenant shall pay
150% of the Rent and Additional Rent for such holdover period.
J. Nothing in this Section shall limit or prejudice the right of Landlord
to prove and to obtain, as liquidated damages by reason of a termination
arising out of the provisions of this Section, an amount equal to the maximum
allowed by any statute or rule of law in effect as of the time when, and
governing the proceedings in which, such damages are to be proved, whether or
not such amount be greater, equal to, or less than the amount of liquidated
damages computed under this Section.
K. Notwithstanding anything contained in this Lease to the contrary,
Landlord shall never have any property interest in or lien on or right of
distraint against any cash, checks, notes, bonds, securities, records, or other
property held by Tenant for its customers on the Premises, whether for
safekeeping or collateral.
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XVI. ACCESS BY LANDLORD.
A. Landlord and its contractors and subcontractors and its or
their agents and employees may at all reasonable times during the Term of
this Lease enter to inspect the Premises and/or may show the Premises and
Building to others, provided that such entrance is with the prior notice to
Tenant and consistent with Tenant's security obligations. In the event of
notice of termination of this Lease or during the last four (4) months of the
Term, unless Tenant has theretofore properly exercised any remaining option to
extend this Lease, Landlord shall have the right from the date of such notice
to display (but not so as. to unreasonably obstruct the view thereof, or access
thereto) the customary "For Rent" sign, and Landlord may show the Premises and
all parts thereof to prospective tenants during Normal Business Hours.
B. Landlord also reserves the right after notice of intention to
so enter (except that in the event of an emergency, no notice shall be
required) to enter the Premises at any time and from time to time to make such
repairs, additions, or alterations or remedy any contamination as it may deem
necessary for the safety, improvements, preservation, or condition thereof, or
of the Property, but Landlord assumes no obligation to do so, and the
performance thereof by Landlord shall not constitute a waiver of Tenant's
default in failing to perform the same. Landlord shall in no event be liable
for any inconvenience, disturbance, loss of business, or other damage to Tenant
by reason of the performance by Landlord of any work in, upon, above, under, or
outside the Premises. If Tenant shall have vacated or abandoned the Premises,
or in the event of an emergency, or if in any other instance after Landlord has
given notice of Landlord's intention to enter, Tenant or Tenant's agents or
employees shall not be personally present to permit an entry into the Premises,
then in any such event, Landlord and its contractors and subcontractors and its
or their agents or employees may enter the same by the use of force or
otherwise without rendering Landlord liable therefor, and without in any manner
affecting Tenant's obligations under this Lease. If the work by Landlord
substantially interferes with the daily work of Tenant's employees, Tenant
shall not have to pay rent for the days such interference has occurred.
C. If during the last month of the Term Tenant has vacated the
Premises and removed all or substantially all of its personal property,
Landlord may immediately enter and alter, renovate, and redecorate the
Premises. The exercise of any such reserved right by Landlord shall not be
deemed an eviction or
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disturbance of Tenant's use and possession of the Premises and shall not render
Landlord liable in any manner to Tenant or to any other person, nor shall the
same constitute any grounds for an abatement of Rent hereunder.
XVII. ESTOPPEL CERTIFICATE: The Tenant agrees that at any time and from
time to time at reasonable intervals, within ten (10) days after written
request by Landlord, Tenant shall execute, acknowledge and deliver to the
Landlord and/or to such assignee, mortgagee, or other similar secured party as
may be designated by the Landlord, a certificate stating (i) that by such
certificate the Lease is ratified; (ii) the day on which the Tenant has entered
into occupancy of the Premises; (iii) the amount of the monthly portion of the
Rent; (iv) that the Lease is unmodified and in full force or effect (or if
there have been modifications, that the Lease is in full force and effect as
modified, identifying the modification agreements, or if the Lease is not in
full force and effect, the certificate shall so state); (v) that the Lease as
modified represents the entire agreement between the parties as to the leasing
(or, if such is not the case, the certificate shall so state); (vi) the date on
which the Lease expires; (vii) that all conditions under the Lease to be
performed by the Landlord have been satisfied and, that as of the date of such
certificate, there are not existing defenses or offsets which the Tenant has
against the enforcement of the Lease by the Landlord (or if such conditions
have not been satisfied, the certificate shall so state); (viii) the amount of
any advance rent which has been deposited with the Landlord; (ix) the month and
year through which the rent has been paid; and (x) such other matters related
to the Lease as may be reasonably requested by the Landlord or any of its
aforesaid designees. If the Tenant fails to provide statement within ten (10)
days after Landlord's written request therefor, Tenant hereby agrees to pay
Landlord as liquidated damages to reimburse Landlord for expense incurred by
Landlord in satisfying its needs for the estoppel certificate, in an amount
equal to One Hundred Fifty Dollars ($150.00) per day for each day following the
ten (10) day period until such time as the Tenant executes the estoppel
certificate or a certificate accurately stating the circumstances subject to
the Landlord's inquiry. This liquidated damage payment, shall constitute an
Additional Rent obligation of Tenant.
XVIII. BROKERAGE COMMISSION: The parties acknowledge they have dealt with
George L. Panos of Thornhill Properties, Inc., in connection with this Lease,
and that all fees charged will be paid to Thornhill Properties in its capacity
as Agent for Landlord. In
<PAGE> 56
the event that any claim by a real estate agent, broker, or finder is
made for commissions in procuring this Lease, the party contacting the agent,
broker, or finder, shall hold the other harmless from ay claims by that agent,
broker, or finder, shall hold the other harmless from any claims by that agent,
broker, or finder.
XIX. NOTICES: Any notice, demand, request, approval, consent or other
instrument which may be or is required to be given under this Lease shall be in
writing and, if mailed,by United States certified mail, return receipt
requested, postage, prepaid, addressed (a) if to the Landlord: SHIRLEN COMPANY
LIMITED PARNERSHIP, c/o MS. DOROTHY RAU, 8605 SILVER MEADOW LANE, BALTIMORE,
MARYLAND 21236 or to such other address as Landlord may from time to time
designate to Tenant by notice in accordance with this Section; with a COPY TO:
JOHN W. BECKLEY, ESQUIRE, FOWLEY & BECKLEY, P.A., 11 EAST LEXINGTON STREET,
4TH FLOOR, BALTIMORE, MARYLAND 21202 and (b) if to Tenant, to the Premises or
to such other address as Tenant may from time to time designate to Landlord by
notice in accordance with this Section; with a copy to SPECTERA, INC., 2811
Lord Baltimore Drive, Baltimore, Maryland 21244-2644. If so requested in
writing by the Landlord or a holder of mortgage covering the Premises, Tenant
shall send an additional copy to such third party or to such mortgage holder of
any notice it gives to Landlord at the same time Tenant gives such notice to
the Landlord.
XX. RECORDATION: Tenant shall not record this Lease without the written
consent of Landlord. Upon Landlord's request or with Landlord's written
consent, the parties agree to execute a short form of this Lease for recording
purposes containing such terms as Landlord believes appropriate or desirable,
the expense thereof to be borne by Tenant. If such a short form of this Lease
is recorded, upon the termination of this Lease Tenant shall execute,
acknowledge, and deliver to Landlord an instrument in writing releasing and
quitclaiming to Landlord an right, title, and interest of Tenant in and to the
Premises arising from this Lease or otherwise, all without cost or expense to
Landlord.
XXI. SUCCESSORS AND INCLUDED PERSONS: All rights, obligations, and
liabilities herein given to, or imposed upon, the respective parties hereto
shall extend to and bind the several respective personal representatives,
successors, and assigns of the said parties; and if Tenant shall consist of
more than one person or entity, they shall all be bound jointly and severally
by the terms, covenants, and conditions herein. No rights, however, shall
inure to the benefit of any personal representative, successor, or
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assign of Tenant unless the Assignment to such party has been approved by
Landlord.
In any provision of this Lease involving Landlord's being defended,
released from liability, indemnified, held harmless, or not being deemed to be
liable for any action, omission, or circumstance, the term "Landlord" shall
include Landlord and Landlord's contractors and subcontractors and its or their
present and future controlling persons, directors, officers, employees, and
agents.
In any provision of this Lease involving Tenants being defended, released
from liability, indemnified, held harmless, or not being deemed to be liable
for any action, omission, or circumstance, the term "Tenant" shall include
Tenant and Tenant's contractors and subcontractors and its or their present and
future controlling persons, directors, officers, employees, and agents.
XXII. RIGHTS OF AND CLAIMS AGAINST LANDLORD:
(a) Except to the extent specifically provided herein to the contrary,
whenever Landlord's consent or approval is required to be given under any
provision of this Lease, such consent or approval may be withheld in the sole
and absolute subjective discretion of Landlord, and Landlord shall not be
required to respond to any request for consent or approval within a time period
determined by Tenant. Whenever Landlord is authorized to exercise discretion,
Landlord shall have the sole and absolute right to determine how to exercise
such discretion.
(b) All obligations of Landlord hereunder shall be construed as
covenants, not conditions.
(c) Landlord may transfer all or part of its interest in the Premises and
this Lease without the consent of Tenant, at any time and from time to time.
If Landlord transfers its estate in the Premises, or if Landlord further leases
the Premises subject to this Lease, then Landlord shall be relieved of all
obligations of Landlord thereafter arising expressed in this Lease or implied
by law. Landlord and its successors shall be relieved of their obligation to
refund the Security Deposit and other similar funds to Tenant which they have
received from Tenant or a predecessor Landlord to the extent they transfer such
amounts to their respective transferees.
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(d) Landlord may lease any portion of the Facility to others on such terms
and for such purposes as Landlord considers appropriate and may terminate or
modify leases with others for any portion of the Facility without obligation to
Tenant and without relieving Tenant of any obligation under this Lease,
However, such uses shall not substantially interfere with the quiet enjoyment
of Tenant.
(e) In the absence of evidence satisfactory to Landlord of an Assignment
of this Lease to which Landlord consented and which included an assignment of
the right to receive any deposit made by Tenant or any balance thereof,
Landlord may return the Security Deposit or any balance thereof to Tenant
originally named herein, regardless of one or more Assignments of this Lease.
(f) If Tenant obtains a money judgment against Landlord or its successors
or assigns under any provisions of, or with respect to this Lease or on account
of any matter, condition, or circumstance arising out of the relationship of
the parties under this Lease, Tenant's occupancy of the Premises, or Landlord's
ownership of the Premises, Tenant shall be entitled to have execution upon
such judgment only upon Landlord's estate in the Complex and not out of any
other assets of Landlord, any of its partners, or its successors or assigns;
and Landlord shall be entitled to have any such judgment so qualified as to
constitute a lien only on Landlord's estate, subject to any liens antedating
such judgment; provided, however, that this sentence shall be inapplicable to
the extent that the judgment against Landlord is covered by insurance.
(g) At any time when there is an outstanding Mortgage covering Landlord's
interest in the Premises, Tenant may not exercise any remedies for default by
Landlord hereunder unless and until the Mortgagee shall have received written
notice of such default and fifteen (15) days to cure such default after
Landlord's period to cure shall have elapsed.
XXIII. GOVERNING LAW: The construction of this Lease and the rights and
remedies of the parties hereto shall be governed by the law of the State of
Maryland. Landlord and Tenant each agree to waive their right to a jury trial
for any proceeding arising under this Lease.
X1V. SEVERABILITY; REDUCTION OF CHARGES: If the application of any term or
provision of this Lease, whether in whole or in part, be held invalid or
unenforceable in general or in any
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instance, the remainder of this Lease shall not be affected by such holding
and shall be fully valid and enforceable.
In the event that any late charge, interest rate, or other payment
provided herein exceeds the maximum applicable charge legally allowed, such
late charge, interest rate, or other payment shall be reduced to the maximum
legal charge, rate, or amount.
XXV. NO MERGER:
There shall be no merger of this Lease or of the leasehold estate hereby
created with the fee estate in the Premises or any part thereof by reason of
the fact that the same person, firm, corporation, or other legal entity may
acquire or hold, directly or indirectly, this Lease or the leasehold estate and
the fee estate in the Premises or any interest in such fee estate, without the
prior written consent of Landlord's Mortgagee.
XXVI. TIME OF THE ESSENCE:
Time is of the essence in all provisions of this Lease to be
performed by or on behalf of each party.
XXVII. COMMERCIAL PURPOSE: The parties stipulate that the Premises is
being leased exclusively for business, commercial, manufacturing, mercantile,
or industrial purposes within the meaning of Section 8-110(a) of the Real
Property Article of the Annotated Code of Maryland, and that the provisions of
Section 8-110(b) of such Article (or any future statute) pertaining to the
redemption of reversionary interests under leases shall be inapplicable to this
Lease.
XXVIII. COUNTERPARTS: This Lease may be executed in multiple
counterparts or in duplicate, and when so executed by all parties shall
constitute one agreement.
XXIX. ENTIRE AGREEMENT: This Lease, together with Exhibits and Addendums
(if any), contains the entire understanding between the parties and supersedes
any prior written or oral agreements, representations or warranties, the
parties specifically denying same. If any portion of this Lease shall be held
invalid or unenforceable, the remainder of this Lease shall remain in full
27
<PAGE> 60
force and effect, such portion being deemed severable. No modification,
amendment, change or addition to this Lease shall be binding on the parties,
unless in writing, and executed by their authorized representatives. Wherever
applicable or context requires, gender and/or plurality may be substituted.
Paragraph headings are for convenience, not context. The terms "Landlord" and
"Tenant" shall include their respective agents, employees, contractors,
successors and assigns, except for where expressly otherwise provided. This
Lease shall, except where otherwise specified, benefit and bind the parties
hereto and their respective successors and assigns. Execution of the Lease, in
counterparts, shall be but one agreement in multiple originals.
THIS LEASE INCLUDES: Exhibits A, B and C, and Addendum B.
IN WITNESS WHEREOF, the parties hereto intend to be legally bound hereby,
have hereunto set their hands and seals the day and year first above written.
WITNESS/ATTEST: SHIRLEN COMPANY LIMITED PARTNERSHIP
(LANDLORD)
BY: SHIRLEN MANAGEMENT INC.
(GENERAL PARTNER)
PATRICIA A GAVIN BY: JOHN W BECKLEY
-----------------------------
John W. Beckley (Vice Pres)
ATTEST: SPECTERA, INC.
(TENANT)
[SIG] BY: [SIG]
- --------------------------------- --------------------------------------
28
<PAGE> 61
EXHIBIT A
That portion of the second floor (third counting the mezzanine), comprising
approximately 8,000 square feet of space in the building known as 8725 Loch
Raven Boulevard, Baltimore County, Maryland (the "Premises").
ATTACH DRAWING
29
<PAGE> 62
EXHIBIT B
LANDLORD'S IMPROVEMENTS
The following improvements shall be made by Tenant and Landlord shall
contribute up to the following sums for such improvements any excess shall be
paid by Tenant directly:
<TABLE>
<CAPTION>
Improvements Cost not to exceed
<S> <C>
Constructing walls within the Premises $ 6,500.00
Painting within the Premises 3,900.00
Painting the hallways of the first floor 1,700.00
and second floor (not including the
mezzanine) 13,000.00
Installing Carpet within the Premises
Landlord shall do the following improvements:
Replacing tile in the Common Area
Replacing one (1) window and cleaning and re-caulking
other windows in the Premises
Installing 400 amp electrical service for the Premises
(Tenant to cover $6,000.00 of this costs)
</TABLE>
30
<PAGE> 63
EXHIBIT C
TENANT'S IMPROVEMENTS
31
<PAGE> 64
LEASE ADDENDUM (B)
FACILITY RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, name or notice shall be
inscribed, displayed, printed or affixed on or to any part of the outside or
inside of the building with the prior written consent of the Landlord and
Landlord shall have the absolute right to remove any such item without notice
to Tenant at Landlord's expense.
2. Tenant shall not place or permit anything near the glass of any window,
door, partition or wall which may appear unsightly from outside the Premises.
3. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed or used by Tenant for any purpose other than
ingress or egress from the Premises.
4. Tenant shall not alter any lock or install new or additional locks or
any bolts on any doors or other access without Landlord's prior written
approval and will, at Tenant's expense, provide Landlord with duplicates of all
security devices installed by the Tenant.
5. All toilet rooms, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed and
shall at all times be maintained in a clean and sanitary condition.
6. Tenant shall not overload the Premises floor or deface the Premises.
7. Tenant shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises or permit or suffer the Premises to be
occupied or used in a manner offensive or objectionable to the Landlord or
other occupants of the Facility by reason of noise, odors and/or vibrations, or
interfere in any way with other tenants or those having business therein, nor
shall any animals or birds be brought in or kept in or about the Premises of
the Facility.
8. The Premises shall not be used for washing clothes, for lodging or
for any improper, objectionable, or immoral purposes.
32
<PAGE> 65
9. Tenant shall not use or keep in the Premises or the Facility any
inflammable or combustible fluid or material or use any method of heating or
air conditioning other than that approved by Baltimore County and currently
existing at the Facility.
10. Landlord reserves the right to expel or exclude from the Facility any
person who in the judgment of the Landlord is intoxicated or under the
influence of liquor or drugs, or who shall, in any manner do any act in
violation of any of the rules or regulations of the Facility.
11. Tenant shall not disturb, solicit or canvas any occupant
of the Facility and shall cooperate to prevent same.
12. Landlord shall have the right to control and operate the public
portions of the Facility, as well as any facilities furnished for the common
use of the tenants and in such manner as it deems best for the benefit of the
tenants generally.
13. All entrance doors to the Premises shall be left locked when the
Premises are not in use and all doors opening to public corridors shall be kept
closed except for normal ingress and egress from the Premises.
14. Tenant shall observe all fire code requirements regarding the closure
of ingress/egress to the Premises.
15. All tenants of Landlord shall require that their employees comply with
any parking regulations promulgated by Landlord in order to avoid parking in
front of retail entrances with the Complex.
16. Landlord shall require that Tenant place its Dumpster(s) along with
other Dumpsters where designated by Landlord, or utilize Dumpsters provided by
Landlord at the expense of Tenant and in accordance with Landlord's stated
rules therefor.
33
<PAGE> 66
EXHIBIT A(v)
SOFTWARE NEEDING LICENSE TRANSFERS
* Sterling Commerce
* E-Mail
* Formula One
* Reflections
* MS office
* Spectera Proprietary software for use with IWIF comprehensive "care only"
<PAGE> 67
- --------------------------------------------------------------------------------
From: Michael Pham
To: Blaise Sedney
Subject: Software licensed at Towson
- --------------------------------------------------------------------------------
====NOTE================11/18/96==4:04pm========================================
(1) OASYS - Occupational Analysis System ($5,000) *
(80) Lotus Suite - 1-2-3, Approach, FreeLance Plus ($300/user) *
(10 Ma Office - Excel, word, PowerPoint, Access ($500/user)
(80) Reflections ($160/user) (we only paid for a 25 user license; have
not - need to yet update our license agreement since implementation)
(1) MDR UCR - Medical UCR Listing (prob. $10K/year) *
(1) MDR Dental UCR - Dental UCR Listing (probl. $5K/ year) *
(80) PPO - Provider Network Steering Program - (internal; suggest we license
to them for $80/user/year)
(1) Clipper Development Environment ($500) *
(1) COMIX RDD Library ($500) *
(1) B-Linker ($500) *
(1) CA-Tools Library ($1,000) *
(1) ProVision Library ($1,000) *
(1) EZ-CAP Version 1.9 Site License ($65,000)
(1) EPISODES Site License *
Other than the network operation system software, which should be on your
hardware receipts that should be about it.
The following servers were probably not included in your receipts because it
was not accounted for in the original proposal:
Batch Server, FTP Server, MHS Server, SMTP Se
rver, & MPR Server (each about
$2,000)
Additional Assets Michael Made with parts.
- --------------------------------------------------------------------------------
T1 Link to Baltimore
<PAGE> 68
EXHIBIT B
PAGE 1 16:44:09 18 Nov
EMP....... Hire-Date DATE LAST DIV_DEPT_NO CO SUBCO Name.......................
PAID
5205 06/26/96 100095 751 D'IORIO, JOSEPHA
5191 06/10/96 100095 751 MILLER, ELIZABETHA
5193 05/28/96 100095 751 KWIATKOWSKI, LUANN
5173 05/28/96 100095 751 LUMADUE, DAWNAS
4306 03/27/95 100095 751 AMBROSE, ROSEM
5236 07/15/96 100095 751 ROSS, JOYCEE
5204 06/24/96 100095 751 GRIER, ELLAMAEL
5194 06/10/96 100095 751 MADDOX, DELORESL
5237 07/15/96 100095 751 GRIFFIN, SHIRVERNE
5196 06/10/96 100095 751 RILEY, CHRISTIANE
5147 04/29/96 100095 751 DALTON, BARBARA
5190 06/10/96 100095 751 PARKS, GLADYSTEEN
5174 05/28/96 100095 751 THOMAS, CLAUDIAA
5132 04/15/96 100095 751 MILLER, SUSANE
5240 07/29/96 100095 751 FONG, MI-JAN
5297 10/14/96 100095 751 PABST, SANDRAT
5235 07/15/96 100095 751 KIRKWOOD, CAROLA
5192 05/28/96 100095 751 CIERPIAL, DIANE
5129 04/15/96 100095 751 BROCATO, SUSANG
5130 04/15/96 100095 751 BROWN, ANGELAR
4892 12/27/95 100095 751 DUNLAP, BARBARAA
4904 02/26/96 100095 751 EDMONSTON, MARY
5241 07/29/96 100095 751 JENKINS, MARCIAK
5227 07/15/96 100095 751 WARRENDER, NANCYA
5260 08/13/96 100095 751 PARKERSON, JOHNB
5316 11/11/96 100095 751 RICHARD, ALBETAM
5136 04/15/96 100095 751 ARCIAGA, ERICJ
5152 05/06/96 100095 751 BARKSDALE, BRENDA
5165 05/28/96 100095 751 TRAGESER, STEPHENC
5242 07/29/96 100095 751 THOMPSON, CHERYLLEM
5167 05/28/96 100095 751 BYRD, ANTOINETTE
5318 11/11/96 100095 751 CLARK, LINDAY
5208 06/24/96 100095 751 DAVIS, LENNY
5207 06/24/96 100095 751 REUBEN, JESSIEC
5197 06/10/96 100095 751 REYNOLDS, LESLIEP
5289 09/24/96 100095 751 MCCANN, LYNN
5315 11/11/96 100095 751 BAIRD, CAROLYNG
5166 05/28/96 100095 751 WILLIG, DONNAL
5133 04/16/96 100095 751 SNYDER, MARVAJ
5256 08/19/96 100095 751 REDIFER, LISAD
5243 07/29/96 100095 751 GOODWIN, SHARONM
5244 07/29/96 100095 751 LINDENMUTH-SEARS, WENDY
5213 06/24/96 100095 751 KOCH, SANDRA
5171 05/28/96 100095 751 MITCHELL, BARBARAH
5279 09/09/96 100095 751 SCHADEL, WILLIAMM
<PAGE> 69
PAGE 2 16:44:22 18 NOV
EMP....... Hire-Date DATE LAST DIV_DEPT_NO CO SUBCO Name.......................
PAID
5280 09/09/96 100095 751 GONZALES, BERNARDO
5214 06/24/96 100095 751 O'NEILL, JANEF
5185 06/10/96 100095 751 BELL, DARLENER
5306 10/21/96 100095 751 BLACKWELL, EVELYNJ
5153 05/06/96 100095 751 WILLIAMS, TANYA
5186 06/10/96 100095 751 BRAWLEY, KALANDRAL
5229 07/15/96 100095 751 STARKE, TEASAL
5263 08/19/96 100095 751 SIEWIERSKI, MARGUERITE
5281 09/09/96 100095 751 NORMAN, OCTAVIOB
5225 07/15/96 100095 751 ZELLER, KENDRAL
5317 11/11/96 100095 751 STEWART, DEBRA
71 Rows Processed
<PAGE> 70
EXHIBIT D
CONSULTING AND ACCESS AGREEMENT
THIS AGREEMENT made this ____ day of _______ , 1996, by and between
SPECTERA, INC., a Maryland corporation ("Spectera") and STATUTORY
BENEFITS MANAGEMENT CORPORATION, a Michigan corporation ("SBMC").
RECITALS
WHEREAS, Spectera is a corporation engaged in the medical claims
management business, and in connection therewith retains a panel of medical
doctors engaging in specialty practices (the "Specialist Panel") and in
connection therewith has certain expertise in medical claims management
computer software; and
WHEREAS, SBMC is engaged in the business of planning, designing and
managing worker's compensation programs; and
WHEREAS, Spectera is willing to act as a consultant for SBMC, and SBMC
desires the services of Spectera as such consultant upon the terms and
conditions herein contained.
NOW, THEREFORE, in consideration of the mutual promises herein contained,
and other good and valuable considerations, the receipt and sufficiency of
which are hereby acknowledged by each of the parties hereto, Spectera and SBMC
agree as follows:
<PAGE> 71
1. Spectera Services. SBMC hereby contracts for the services of
Spectera as an independent contractor, and Spectera agrees to render such
services in such capacity, upon the terms and conditions herein contained. The
services to be rendered by Spectera are generally as follows:
(a) During the term of this Agreement (as defined in paragraph 2 below),
Spectera will allow SBMC access to the Specialist Panel for purposes of
conducting peer review on behalf of SBMC under its contract with the Maryland
Injured Worker's Insurance Fund ("IWIF" and the contract with IWIF herein
referred to as the "IWIF Contract").
(b) From the date of this Agreement through and including April 30, 1997,
Spectera shall assist SBMC in the use of and understanding of certain medical
management systems software, including but not limited to Episodes and E-Z Cap.
Spectera's services shall include documenting, programming and analyzing the
software. Services may be provided either remotely from another location via
data links or at SBMC's premises. Spectera shall provide an average of fifteen
(15) hours of services per week, but not to exceed sixty (60) hours, in any
month, under this subparagraph (b). The parties agree that Michael Pham
("Pham") shall be the person having the primary responsibility for the
performance of the computer consulting activities of Spectera, but SBMC
acknowledges that Pham will be on vacation from December 21, 1996 through
January 10, 1997. The parties understand that Spectera also requires Pham's
services during the same time period and the parties will have to cooperate and
work together in the event that there are
2
<PAGE> 72
competing demands for Pham's time. To the maximum extent possible, Pham's time
on behalf of SBMC will be scheduled as far in advance as possible to enable
orderly schedule planning. SBMC understands and acknowledges that Spectera
does not have an employment agreement with Pham and that it cannot guarantee
his performance. Spectera will use its best efforts to maintain its employment
relationship with Pham and to have him perform on behalf of SBMC and to
cooperate with SBMC in alternative arrangements in the event Pham is not
available at the time set forth herein.
(c) Spectera shall faithfully and industriously assume and perform with
skill, care, diligence and attention all of its responsibilities imposed upon
it under this Agreement.
(d) Spectera shall have no authority to enter into any contracts
binding upon SBMC, which would create any obligation on the part of SBMC.
2. Term. This Agreement shall be binding and fully enforceable against
the parties immediately upon the execution hereof. The term of this Agreement
(the "term") shall be for a period commencing on the date hereof and continuing
until the earlier of (i) the date that the IWIF Contract or SBMC's services
thereunder are terminated for any reason, or (ii) December 31, 1999.
3
<PAGE> 73
3. Access and Consulting Fee. Spectera, for the services to be rendered
hereunder, shall be paid a monthly access and consulting fee as follows: (i)
for the period from January 1, 1997 through December 31, 1998, SBMC shall pay
to Spectera a monthly fee in the amount of Ten ($.10) per covered employee of
all IWIF insured employers, not to exceed $25,000.00 per month, and (ii) for
the period from January 1, 1999 through December 31, 1999, SBMC shall pay to
Spectera a monthly fee in the amount of Ten Cents ($.10) per covered employee
of all IWIF insured employers, not to exceed $33,333.33 per month. In the
event that the number of employees covered by IWIF insurance falls below
330,000, then the parties agree to renegotiate the capitated amount, but not
the monthly cap, to reflect Spectera's increased capitated cost as a result of
lower volume. Each monthly installment shall be due and payable on the first
day of each calendar month without demand therefor. In the event that SBMC
fails to pay any monthly payment when due and such failure continues for seven
(7) days after written notice from Spectera, then in addition to the monthly
payment, SBMC shall pay to Spectera interest on the amount then due at the rate
of twelve percent (12%) per annum and shall be responsible for any costs of
collection incurred by Spectera, including court costs and reasonable
attorney's fees. The monthly payment shall cease upon the expiration of the
term, and in the event the term expires in the middle of a month Spectera shall
reimburse SBMC for a pro rata portion of the monthly fee for that month.
Notwithstanding the foregoing, as long as the IWIF Contract or SBMC's services
thereunder are
4
<PAGE> 74
not terminated prior to the expiration of the original three (3) year term
thereof, then Spectera shall be entitled to all monthly installments through
December 31, 1999, even if the IWIF Contract is not renewed or is terminated
during a renewal term.
4. Independent Contractor Status. Spectera shall perform services for
SBMC pursuant to this Agreement as an independent contractor only and neither
it nor any of its employees performing services under this Agreement will, for
any purposes, be treated as an employee of SBMC with respect to such services,
including for purposes of federal and/or state taxes. Spectera will withhold
and pay all employment taxes for its employees, and any and all income taxes
and other taxes of any type or description whatsoever without withholding or
contribution by SBMC. Accordingly, it is recognized by both parties that there
will be no withholding by SBMC of any FICA, FUTA or federal or state income
taxes, unless such withholding is required under any existing or future
Internal Revenue laws with respect to payments to independent contractors.
Additionally, Spectera acknowledges that neither it nor any of its employees
performing services under this Agreement shall be entitled to fringe benefits
of any nature from SBMC, as a result of serving as a consultant pursuant to the
terms of this Agreement. This Agreement shall not be construed as a
partnership and neither party hereto shall be liable for any obligation
incurred by the other. Spectera shall furnish to SBMC appropriate certificates
of insurance evidencing that Spectera has all required workers' compensation
insurance for its employees performing work under this Agreement and has
professional
5
<PAGE> 75
liability insurance with liability limits reasonably acceptable to SBMC, which
professional liability insurance policy shall name SBMC as an additional
insured.
5. Records of SBMC. Spectera, during the course of its consultation,
will receive certain information concerning SBMC as well as business records
of SBMC and of and about its customers, all of which matters are highly
confidential. Spectera understands and agrees that Spectera shall acquire no
rights to any of this information or records. All records, notes, memoranda,
files, financial statements, client and customer lists, brochures, documents,
and all other similar material relating to SBMC or its business or those of
its customers (hereinafter referred to as the "records") which come into the
possession of Spectera, or of which it gains knowledge, shall remain and be
deemed the property of SBMC. Spectera shall promptly return any originals and
all copies of the records to SBMC upon request. Upon termination of this
Agreement for whatever reason, Spectera shall promptly deliver to SBMC the
records in its possession or control or delivered to or otherwise acquired by
Spectera in connection with the performance of this Agreement.
6. Non-Disclosure. Spectera hereby acknowledges and agrees that the
records and all information which it acquires in connection with the
performance of this Agreement is confidential and that, except as necessary to
perform its obligations hereunder, Spectera, its officers, directors, employees
or agents will not directly or indirectly during or after the term of this
Agreement, disclose or reveal to or use for itself or others the confidential
information of SBMC or its including, but not limited to, the aforesaid records,
the business
6
<PAGE> 76
operations, internal structure, ownership or personnel of SBMC, any financial
data of or about SBMC, or any other information given to Spectera by or about
SBMC on a confidential basis. In addition, Spectera, its officers, directors,
employees and agents shall not disclose to any person or entity the
relationship it has entered into with SBMC, that it is performing services for
SBMC, or provide, publicize, use or otherwise disseminate to any person or
entity the name of SBMC as a client or customer of Spectera, without, in any
such event, the prior written approval of SBMC.
7. Remedies. Spectera acknowledges that a violation of any of the
agreements or covenants contained in Sections 5 and 6 by it or its officers,
directors, employees or agents could cause irreparable injury to SBMC for which
there is no adequate remedy of law. Spectera agrees that in the event of a
breach or threatened breach by Spectera, its officers, directors, agents and/or
employees of the provisions of this Agreement, SBMC shall have the right, in
addition to any other remedies available to it, at law or in equity, to
institute an action to enjoin Spectera or Spectera's officers, directors,
agents, employees, or the employer of any such person, in a court of equity,
from violating any of the provisions hereof. Spectera further agrees that
Spectera shall be liable for and pay to SBMC, any reasonable attorney's fees,
court costs or other expenses incurred by SBMC in enforcing this Agreement.
This subsection shall not be construed to limit in any manner whatsoever any
other rights and remedies SBMC may have by virtue of any breach of this
Agreement by Spectera. Notwithstanding the foregoing, except with respect to a
default under paragraph
7
<PAGE> 77
6 hereof, Spectera shall not be deemed to be in default unless and until SBMC
has given Spectera written notice specifying the nature of the violation, and
Spectera fails to cure such violation within thirty (30) days thereafter.
Except with respect to a default under Sections 5 and 6, SBMC's sole and
exclusive remedy for Spectera's default hereunder shall be as set forth in
Section 7 below.
8. Set off. In the event of a default under this Agreement occurring
before May 1, 1997 which is not cured within any applicable notice period
contained herein, or in the event that SBMC is entitled to indemnification
under the provisions of Section 8(a) of that certain Agreement of even date
herewith between Spectera and SBMC, in either case as finally as determined by
arbitration if requested by either party pursuant to this Agreement or pursuant
to Section 9 of the Spectera-SBMC Agreement, then SBMC shall be entitled to set
off against the next monthly installments of the Consulting Agreement, the
amount expended by SBMC to cure the default hereunder or the amount of such
indemnification. After institution of arbitration proceedings and pending a
final arbitration award, SBMC may pay amounts subject to set-off hereunder into
an escrow account to be held by an independent escrow agent subject to the
reasonable approval of the parties, or if the parties cannot agree determined
by the arbitrator, to be paid out in accordance with the award.
9. Miscellaneous.
(a) This Agreement shall be binding upon and the benefit shall
inure to the parties hereto, their respective successors and assigns.
8
<PAGE> 78
Neither party shall assign this Agreement without the written consent of the
other, which shall not be unreasonably withheld.
(b) All notices provided for under this Agreement shall be in writing,
shall be sufficient if sent by certified mail to the following listed addresses
of the parties hereto or to such other address as shall be designated in
writing to the other party.
Spectera, Inc.
2811 Lord Baltimore Drive
Baltimore, Maryland 21244
Attn: Mr. Blaise Sedney and
Dr. Oscar Camp
Statutory Benefits Management Corporation
111 South Calvert Street, Suite 2640
Baltimore, Maryland 21202
Attn: Mr. Spencer Vavas
(c) The failure of any party hereto to enforce at any time any of the
provisions or terms of this Agreement shall not be construed to be a waiver of
such provision or term, nor of the right of any party thereafter to enforce
such term or provision.
(d) This Agreement constitutes the entire agreement between SBMC and
Spectera regarding the rendering of consulting services and there are no
understandings concerning such agreement which are not fully set forth herein
or in other agreements referenced herein.
(e) If any provision of this Agreement is invalid or unenforceable in any
jurisdiction, the other provisions herein shall remain in full force and effect
and such jurisdiction shall be liberally construed in order to
9
<PAGE> 79
effectuate the purpose and intent of this Agreement, and the invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the durability of enforceability of any such provision in any other
jurisdiction.
(f) The titles of the paragraphs throughout this Agreement are for
convenience and reference only, and the words contained therein shall in no way
be held to explain, modify, amplify or aid in the interpretation, construction,
or meaning of the provisions of this instrument.
(g) Whenever any provision of this Agreement assumes a right or
responsibility to SBMC or Spectera after termination of this Agreement, said
right or responsibility shall survive the termination of this Agreement,
(h) Any disputes arising under this Agreement including disputes as to the
interpretation hereof, the occurrence of a breach hereunder, and the damages
arising from such breach, shall be determined by binding arbitration in the
city of Baltimore pursuant to the Commercial Arbitration Rules of the American
Arbitration Association. The decisions and awards of the arbitrators shall be
final and binding upon the parties hereto and shall be enforceable by any court
having jurisdiction in the State of Maryland under the Maryland Arbitration
Act.
10
<PAGE> 80
IN WITNESS WHEREOF, the parties hereto have signed, or caused to be signed
in these presence.
WITNESS: SPECTERA, INC.
______________________ By:___________________________(SEAL)
President
STATUTORY BENEFITS
MANAGEMENT CORPORATION
______________________ By:___________________________(SEAL)
President
11
<PAGE> 81
EXHIBIT E
UMBRELLA LIABILITY INSURANCE POLICY
Insurer: TWIN CITY FIRE INSURANCE COMPANY
HARTFORD, CONNECTICUT 06115 [ITT HARTFORD LOGO]
DECLARATIONS POLICY NO. 30 HU SL4307
PREVIOUS POLICY NO.
ITEMS NEW SPECTERA, INC.
(FORMERLY UNITED HEALTH CARE)
1. NAMED INSURED AND MAILING ADDRESS 2811 LORD BALTIMORE DRIVE
THE NAMED INSURED is: [ ] Individual BALTIMORE, MD 21244
[ ] Partnership [ ] Joint Venture
[X] Corporation [ ] Organization (Other than a
Partnership or Joint Venture)
06/25/96 06/25/97
-------------- ---------------
2. POLICY PERIOD Inception Date Expiration Date
12:01 a.m. Standard Time at the address of
the "first named insured" as stated herein.
PRODUCER'S NAME AND ADDRESS PRODUCER'S CODE NO.
INSURANCE INCORPORATED 720738
9603 DEERECO ROAD, SUITE 300
TIMONIUM, MD 21093-2185
<TABLE>
<S> <C> <C> <C>
3. AUDIT PERIOD IS THE POLICY PERIOD UNLESS OTHERWISE HEREIN STATED: [ ] Semi-Annual [ ] Quarterly [ ] Monthly
[X] Not subject to Audit
4. DEPOSIT PREMIUM $44,295. , which is [X] A Flat Charge Per Each Policy Period
[ ] Adjustable at the end of each Audit Period, Per
Premium Computation Endorsement
</TABLE>
MINIMUM RETAINED AUDIT PREMIUM ________________
MINIMUM RETAINED PREMIUM $22,150., not subject to adjustment in the event of
cancellation by you.
5. LIMITS OF LIABILITY
The Limits of Liability, subject to all the terms of this policy that apply
are:
Bodily Injury and Property Damage Limit - Each Occurrence $10,000,000.
Personal Injury and Advertising Injury Limit $10,000,000.
Occupational Disease Limit - Each Accident $10,000,000.
- Each Employee $10,000,000.
- Aggregate $10,000,000.
General Aggregate Limit (Other than Products-Completed
Operations) $10,000,000.
Products-Completed Operations Aggregate Limit $10,000,000.
6. SELF-INSURED RETENTION
Your self-insured retention, subject to all the terms of this policy that
apply, is:
$ 10,000.
7. SCHEDULE OF UNDERLYING INSURANCE POLICIES:
SEE ATTACHED EXTENSION SCHEDULE OF UNDERLYING INSURANCE POLICIES FORMING A
PART OF THE POLICY.
8. BUSINESS DESCRIPTION.
9. FORM NUMBERS OF POLICY PROVISIONS AND ENDORSEMENTS FORMING A PART OF THIS
POLICY:
SEE LISTING OF POLICY PROVISIONS AND ENDORSEMENTS FORMING A PART OF THE
POLICY AT ISSUE.
This policy will not be valid unless countersigned by our duly authorized
representative.
LK 8/10/96
FORM EX 00 02 13 (ED. 10/91) Printed in U.S.A. (NS)
Countersigned by________________________________
Authorized Representative
<PAGE> 82
This SPECIAL MULTI-FLEX POLICY is provided by the insurance company(s) of ITT
Hartford Insurance Group, shown below.
COMMON POLICY DECLARATIONS
POLICY NUMBER: 30 UEN HQ5161 [ITT HARTFORD LOGO]
RENEWAL OF: 30 UEN HQ5161
NAMED INSURED AND MAILING ADDRESS: SPECTERA, INC
(NO., STREET, TOWN, STATE, ZIP CODE) SEE IH1200
2811 LORD BALTIMORE DRIVE
BALTIMORE, MD 21207
POLICY PERIOD: FROM 06/25/96 TO 06/25/97
12:01 A.M., Standard time at your mailing
address shown above.
In return for the payment of the premium, and subject to all of the terms of
this policy, we agree with you to provide insurance as stated in this policy.
The Coverage Parts that are a part of this policy are listed below. The Advance
Premium shown may be subject to adjustment.
TOTAL ADVANCE PREMIUM: $28,715.00
COVERAGE PART AND INSURANCE COMPANY SUMMARY ADVANCE PREMIUM
COMMERCIAL AUTO
HARTFORD FIRE INSURANCE COMPANY
HARTFORD PLAZA
HARTFORD, CONNECTICUT 06115 $28,715.00
FORM NUMBERS OF COVERAGE PARTS, FORMS AND ENDORSEMENTS THAT ARE A PART OF THIS
POLICY AND THAT ARE NOT LISTED IN THE COVERAGE PARTS.
HM0001 IH00170295 G-1760-12(01) HM99011185 IL00211194 HA00250295
IH12001185 NAME INSURED
AGENT/BROKER NAME: INSURANCE INC
THIS POLICY IS NOT BINDING UNLESS COUNTERSIGNED BY OUR AUTHORIZED
REPRESENTATIVE.
Countersigned by
----------------------------------------------
Authorized Representative Date
ORIGINAL
FORM HM 00 10 02 95
<PAGE> 83
30 (Policy Provisions: WC 99 00 00 (NM ONLY), WC 99 00 00 A)
32
BT INFORMATION PAGE
WB WORKERS COMPENSATION AND EMPLOYERS LIABILITY POLICY
INSURER: TWIN CITY FIRE INSURANCE COMPANY
HARTFORD PLAZA, HARTFORD, CONNECTICUT 06115
NCCI COMPANY NUMBER: [14974]
COMPANY CODE: 7 [ITT HARTFORD LOGO]
SUFFIX
LARS RENEWAL
POLICY NUMBER: [30 WB BT3230] [03]
PREVIOUS POLICY NUMBER: [30 WB BT3230]
1. NAMED INSURED AND MAILING ADDRESS: UNITED HEALTH CARE INC
(No., Street, Town, State, Zip Code) (SEE ENDT)
2811 LORD BALTIMORE DRIVE
FEIN NUMBER: 521260282 BALTIMORE, MD 21207
STATE IDENTIFICATION NUMBER(S):
THE NAMED INSURED IS: CORPORATION
BUSINESS OF NAMED INSURED: OPTOMETRIST & HEALTH PLAN
OTHER WORKPLACES NOT SHOWN ABOVE: SEE ATTACHED SCHEDULES
2. POLICY PERIOD: FROM 06/25/96 TO 06/25/97
12:01 a.m., Standard time at the insured's mailing
address.
PRODUCER'S NAME: INSURANCE INC
PRODUCER'S CODE: 720738
ISSUING OFFICE: ITT HARTFORD
200 INTERNATIONAL CIRCLE, CENTERPOINTE BLDG.
HUNT VALLEY MD 21030
(410) 584-9000
TOTAL ESTIMATED ANNUAL PREMIUM: $72,461
DEPOSIT PREMIUM:
POLICY MINIMUM PREMIUM: $684 MD
AUDIT PERIOD: ANNUAL INSTALLMENT TERM: 10
The policy is not binding unless countersigned by our authorized
representative.
Countersigned by
-------------------------------------
Authorized Representative Date
FORM WC 00 00 01 A (1) Printed in U.S.A. PAGE 1 (Continued on next page)
PROCESS DATE: 06/29/96 POLICY EXPIRATION DATE: 06/25/97
<PAGE> 84
COMMERCIAL GENERAL LIABILITY SCHEDULE
[ITT HARTFORD LOGO]
POLICY NUMBER: 30 UUN AP9890
Entries herein, except as specifically provided elsewhere in this policy, do
not modify any of the other provisions of this policy.
RATING CLASSIFICATIONS
DESCRIPTION OF HAZARDS: PREMISES/OPERATIONS COVERAGE
REFER TO: COMMERCIAL GENERAL LIABILITY
COVERAGE PART (FORM HC 00 10)
PRMS/BLDG. NO: 001/001 TERR: 001
LOCATION: 200 W. SARATOGA STREET
BALTIMORE
MD. 21201
CLASSIFICATION CODE NUMBER
AND DESCRIPTION: 13759
HEARING AID STORES
PREMIUM AND RATING BASIS: GROSS SALES PER 1,000
EXPOSURE: 97,974
RATE: 1.2480
ADVANCE PREMIUM: 122.00
- --------------------------------------------------------------------------------
DESCRIPTION OF HAZARDS: PREMISES/OPERATIONS COVERAGE
REFER TO: COMMERCIAL GENERAL LIABILITY
COVERAGE PART (FORM HC 00 10)
PRMS/BLDG. NO: 001/001 TERR: 001
LOCATION 200 W. SARATOGA STREET
BALTIMORE
MD. 21201
CLASSIFICATION CODE NUMBER
AND DESCRIPTION: 15839
OPTICAL GOODS STORES
PREMIUM AND RATING BASIS: GROSS SALES PER 1,000
EXPOSURE: 9,116,357
FORM HC 12 10 11 85T Printed in U.S.A. (NS) PAGE 1 (CONTINUED ON NEXT PAGE)
<PAGE> 85
EXHIBIT F
INDEPENDENT CONTRACTOR CONSULTANTS
Cascade Rehabilitation Counseling, Inc.
Chesapeake Disability Mgt., Inc.
CRA Managed Care, Inc.
Crawford & Co. Healthcare Management
Disability Mgt. Serv.
IHAS, Inc.
Integrated Healthcare Auditing & Services, Inc.
Mintz & Assoc.
Resolve Rehabilitation Consulting
Resource Opportunities, Inc.
Rintelmann & Associates
ROI, Inc.
Smolkin Vocational Services
Tri-Area Rehabilitation
Vocational Counseling Associates, Inc.
Vocational Skills Inc.
EquipNet
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED BALANCE SHEETS AND THE CONSOLIDATED STATEMENTS OF OPERATIONS FILED
AS PART OF THE QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED DECEMBER 31,
1996 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH QUARTERLY REPORT ON
FORM 10-Q.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-START> JUL-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 16,620,968
<SECURITIES> 2,818,236
<RECEIVABLES> 11,863,786
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 32,089,872
<PP&E> 20,054,340
<DEPRECIATION> (7,357,430)
<TOTAL-ASSETS> 83,272,026
<CURRENT-LIABILITIES> 21,323,232
<BONDS> 0
0
0
<COMMON> 10,625,382
<OTHER-SE> (205,151)
<TOTAL-LIABILITY-AND-EQUITY> 83,272,026
<SALES> 0
<TOTAL-REVENUES> 64,468,952
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 62,839,611
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 764,474
<INCOME-PRETAX> 864,867
<INCOME-TAX> 743,000
<INCOME-CONTINUING> 121,867
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 121,867
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
