<PAGE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED March 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE TRANSITION PERIOD FROM ____________________ to ____________________
Commission File number 000-28844
ALGOS PHARMACEUTICAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 22-3142274
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Collingwood Plaza, 4900 Route 33, Neptune, New Jersey, 07753-6804
(Address of principal executive offices)
908-938-5959
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or 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 ___
The aggregate number of shares of the Registrant's common stock outstanding on
May 9, 1997 was 15,814,351.
<PAGE>
<PAGE>
PART I - FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
ALGOS PHARMACEUTICAL CORPORATION
(A DEVELOPMENT STAGE ENTERPRISE)
BALANCE SHEETS
<TABLE>
<CAPTION>
December 31 March 31
1996 1997
---- ----
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 48,575,719 $ 31,358,089
Marketable securities 6,873,705
Prepaid expenses 330,083 214,466
------------ ------------
Total current assets 48,905,802 38,446,260
Marketable securities, noncurrent 7,877,229
Property and equipment, net 86,682 76,634
Other assets 209,257 179,591
------------ ------------
Total assets $ 49,201,741 $ 46,579,714
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 456,684 $ 781,061
Other current liabilities 516,786 694,593
------------ ------------
Total current liabilities 973,470 1,475,654
------------ ------------
Commitments
Stockholders' equity:
Preferred stock, $100,000 aggregate liquidation preference 1,000 1,000
Common stock, $.01 par value, 50,000,000 shares authorized,
15,669,101 and 15,814,351 shares issued and outstanding, respectively 156,691 158,144
Additional paid-in-capital 55,902,403 55,931,950
Unearned compensation expense (856,150) (786,583)
Deficit accumulated during the development stage (6,975,673) (10,200,451)
------------ ------------
Total stockholders' equity 48,228,271 45,104,060
------------ ------------
Total liabilities and stockholders' equity $ 49,201,741 $ 46,579,714
============ ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
1
<PAGE>
<PAGE>
ALGOS PHARMACEUTICAL CORPORATION
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
For the three months ended Cumulative
March 31, from inception
--------------------------- to March 31,
1996 1997 1997
---- ---- ----
<S> <C> <C> <C>
Revenues $ - $ - $ 2,311,000
----------- ------------ -------------
Operating expenses:
Research and development 399,712 3,165,360 8,942,633
General and administrative 210,840 616,736 5,271,575
----------- ------------ -------------
Total operating expenses 610,552 3,782,096 14,214,208
----------- ------------ -------------
Loss from operations (610,552) (3,782,096) (11,903,208)
Interest income 42,587 557,318 1,702,757
----------- ------------ -------------
Net loss $ (567,965) $ (3,224,778) $(10,200,451)
=========== ============ =============
Pro forma net loss per common share $ (0.05) $ (0.20)
=========== ============
Pro forma weighted average common
shares outstanding 12,210,769 15,780,288
=========== ============
</TABLE>
The accompanying notes are an integral part of these financial statements
2
<PAGE>
<PAGE>
ALGOS PHARMACEUTICAL CORPORATION
(A DEVELOPMENT STAGE ENTERPRISE)
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
From the three months ended Cumulative
March 31, from inception
----------------------------- to March 31,
1996 1997 1997
---- ---- ----
<S> <C> <C> <C>
Cash flows from operating activities $ (623,825) $ (2,507,672) $ (7,448,228)
Cash flows from investing activities:
Investment in marketable securities (14,739,426) (14,739,426)
Purchases of property and equipment (3,356) (1,532) (199,511)
------------ ------------ ------------
Net cash used in investing activities (3,356) (14,740,958) (14,938,937)
------------ ------------ ------------
Cash flows from financing activities:
Proceeds from issuance of preferred stock 6,659,015
Proceeds from issuance of common stock 15,500 31,000 47,086,239
------------ ------------ ------------
Net cash provided by financing activities 15,500 31,000 53,745,254
------------ ------------ ------------
Net increase (decrease) in cash and cash equivalents (611,681) (17,217,630) 31,358,089
Cash and cash equivalents, beginning of period 3,707,100 48,575,719 --
------------ ------------ ------------
Cash and cash equivalents, end of period $ 3,095,419 $ 31,358,089 $ 31,358,089
------------ ------------ ------------
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
<PAGE>
<PAGE>
ALGOS PHARMACEUTICAL CORPORATION
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION
The condensed financial statements presented herein have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X and are unaudited. In the opinion of management, the financial
statements reflect all adjustments (which consist of normal recurring accruals
and adjustments) necessary for a fair statement of the results of the interim
periods presented.
2. EARNINGS PER SHARE
The pro forma net loss per share is based on the weighted average number
of shares of Common Stock outstanding during the period, after giving effect to
the conversion of Series A Preferred Stock into Common Stock as of January 1,
1995. In addition, pursuant to Securities and Exchange Commission Staff
Accounting Bulletin No. 83, all shares of Common Stock issuable upon the
conversion of Series B Preferred Stock and the exercise of common stock options
issued during the twelve months prior to the Company's initial public offering
have been included in the calculation of weighted average number of shares of
common stock outstanding for all periods prior to the offering.
The historical net loss per common share based on the actual weighted
average number of common shares outstanding is as follows:
<TABLE>
<CAPTION>
Three months ended March 31,
----------------------------
1996 1997
---- ----
<S> <C> <C>
Net loss per common share $(0.09) $(0.20)
Weighted average common shares outstanding 6,121,333 15,780,288
</TABLE>
3. MARKETABLE SECURITIES
Marketable securities at March 31, 1997 consist of the following:
<TABLE>
<CAPTION>
Amortized Estimated Fair Unrealized
Cost Market Value Gains (Losses)
--------- --------------- --------------
<S> <C> <C> <C>
U.S. treasury and federal agency debt securities $10,877,277 $10,818,800 ($58,477)
Corporate debt securities $ 3,836,356 $ 3,844,176 7,820
</TABLE>
The marketable securities are classified as held-to-maturity securities
and are stated at their amortized cost. Noncurrent marketable securities have
maturities in excess of one year and less than two years.
4. OTHER CURRENT LIABILITIES
Other current liabilities consist of the following:
<TABLE>
<CAPTION>
December 31 March 31
1996 1997
----------- ---------
<S> <C> <C>
Accrued research expenses $302,036 $621,593
Accrued compensation 214,750 73,000
========= =========
$516,786 $694,593
========= =========
</TABLE>
4
<PAGE>
<PAGE>
ALGOS PHARMACEUTICAL CORPORATION
(A DEVELOPMENT STAGE ENTERPRISE)
NOTES TO FINANCIAL STATEMENTS
5. LEASE AGREEMENT
The Company has entered into a ten-year operating lease agreement for an
office building to be constructed. Effective upon completion of the building,
minimum annual lease payments under the lease will amount to approximately
$269,000 per year for the first five years and aggregate approximately $1.6
million in the second five-year period. The agreement provides the Company with
an option to purchase the building.
5
<PAGE>
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
General
Algos, a development stage company, is engaged primarily in the
development and commercialization of proprietary pharmaceutical products. Since
its formation in January 1992, the Company has devoted a substantial amount of
its efforts to licensing technology, recruiting key management and staff,
developing products, filing patents and other regulatory applications and
raising capital. To date the Company has earned $2,000,000 of revenue from
license agreements.
The Company has incurred losses since its inception and expects to incur
operating losses in the future. The Company expects that its product development
expenses will increase significantly in 1997 and in future years as the drugs
that the Company currently has under development move into advanced clinical
trials and as additional drugs are developed.
Results of Operations
Three months ended March 31, 1996 and 1997
Research and development:
In the three months ended March 31, 1997, research and development
expenses increased $2,765,648 from $399,712 in the 1996 period to $3,165,360.
The increase is primarily attributable to increased costs associated with
additional clinical trials for MorphiDex'tm', the Company's most developmentally
advanced product, including bioavailability studies and Phase III clinical
studies in cancer patients and in post-operative pain. In addition, the
Company incurred the costs of manufacturing small-scale regulatory test
batches of MorphiDex'tm'.
General and administrative:
In the three months ended March 31, 1997, general and administrative
expenses increased $405,896 from $210,840 in the 1996 period to $616,736. The
Company incurred increased legal and other professional fees as a result of its
increased business activities and the completion of its initial public offering
("IPO") in October 1996. Additional insurance costs and the amortization of
unearned compensation expense associated with 1996 stock option grants also
contributed to the increase.
Interest income:
Interest income increased in the three months ended March 31, 1997 due
to the investment of the proceeds of the Company's IPO.
Liquidity and Capital Resources
As a result of its drug development efforts, the Company has experienced
net cash outflows from operations since its inception in 1992. In the three
months ended March 31, 1997, cash outflows from operations were $2,507,672 as
compared to $623,825 in the prior year period, primarily as a result of the
Company's increased development spending on MorphiDex'tm'.
The Company expects that its expenses will increase as its development
programs expand and additional preclinical studies and clinical trials of its
products are initiated. The Company has entered into several research and
development agreements pursuant to which the Company expects to incur
additional expenses, primarily related to its development of MorphiDex'tm'. The
Company's funding requirements will depend on a number of factors including the
results of its development efforts, the timing and costs of obtaining required
regulatory approvals, the
6
<PAGE>
<PAGE>
development of competing technologies, the amount of resources required for the
establishment of marketing and distribution capabilities, the execution of
licensing or other collaborative research agreements on terms acceptable to the
Company, and the cost of prosecuting and defending patents. The Company
currently expects that its cash and equivalents and marketable securities at
March 31, 1997 will be sufficient to fund its operations for the development of
products currently in clinical trials, based upon the Company's currently
anticipated schedule of clinical trials. If, however, additional trials are
deemed to be necessary or advisable or if additional products are developed, the
Company may require additional funds to complete such trials and, in the event
that revenue and income from successful product introductions or other
internally generated funds are insufficient for such efforts, the Company will
need to raise additional funds by incurring debt, issuing additional equity or
through collaborative or license arrangements.
Certain information set forth in the prior paragraphs contains
forward-looking statements as such term is defined in Section 27A of the
Securities Act of 1933 and Section 21E of the Exchange Act. All statements
concerning the expected use of funds, the Company's development schedule, and
the ability to fund operations for a specified period are forward-looking
statements. Certain factors discussed herein could cause actual results to
differ materially from those in the forward-looking statements. See "Risk
Factors" in the Company's Report on Form 10-K.
7
<PAGE>
<PAGE>
PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a). Exhibits:
<TABLE>
<CAPTION>
Exhibit
No. Title
- -------- ---------------------------------------------------------------------------------
<S> <C>
3.1 Form of Amended and Restated Certificate of Incorporation of Algos Pharmaceutical
Corporation(1)
3.2 Form of Amended and Restated By-laws of Algos Pharmaceutical Corporation(1)
4.1 Form of Stock Certificate of Common Stock(1)
10.1.1 Employment Agreement with Respect to John W. Lyle(1)
10.1.2 Employment Agreement with Respect to Gastone Bello(1)
10.1.3 Employment Agreement with Respect to Frank S. Caruso(1)
10.2.1 1994 Stock Option Plan(1)
10.2.2 Form of 1996 Stock Option Plan(1)
10.2.3 Form of 1996 Non-Employee Director Stock Option Plan(2)
10.3.1 Algos Pharmaceutical Corporation Stockholders' Agreement(1)
10.4.1 License Agreement with The Medical College of Virginia(1) 'D''D'
10.4.2 License Agreement with McNeil(1) 'D''D'
10.4.3 Registration Rights Agreement with The Medical College of Virginia(1)
10.5 Lease Agreement
11 Statement Regarding Computation of Per Share Earnings
21 Subsidiaries of the Registrant(1)
27 Financial Data Schedule 'D'
99 Risk Factors(2)
</TABLE>
(1) Incorporated by reference to the Registrant's registration statement on
Form S-1 declared effective on September 25, 1996.
(2) Incorporated by reference to the Registrant's Annual Report on Form 10-K
for the year ended December 31, 1996.
'D' Included in EDGAR filing only.
'D''D' Portions of this Exhibit have received confidential treatment pursuant
to Rule 406(b) under the Securities Act.
(b). Reports on Form 8-K
None
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ALGOS PHARMACEUTICAL CORPORATION
Date: 5/15/97 /s/ John W. Lyle
-------------------------------------
John W. Lyle
President and Chief Executive Officer
Date: 5/15/97 /s/ Gary R. Anthony
-------------------------------------
Gary R. Anthony
Chief Financial Officer (Principal
Accounting Officer)
8
STATEMENT OF DIFFERENCES
The trademark symbol shall be expressed as.................... 'tm'
The dagger symbol shall be expressed as....................... 'D'
<PAGE>
<PAGE>
Exhibit 10.5. Lease Agreement
LEASE AGREEMENT
BETWEEN: COMMERCIAL REALTY & RESOURCES CORP. (LANDLORD)
AND
ALGOS PHARMACEUTICAL CORPORATION
(TENANT)
RE: MONMOUTH SHORES CORPORATE PARK
CAMPUS PARKWAY
BLOCK #930, LOT #52
WALL, NEW JERSEY 07719
DATED: MARCH 13, 1997
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
COMMERCIAL REALTY & RESOURCES CORPORATION
(LANDLORD) AND ALGOS PHARMACEUTICAL CORPORATION (TENANT)
INDEX
<TABLE>
<CAPTION>
ARTICLE PAGE
<S> <C>
ARTICLE 1. LEASED PREMISES AND TERM_________________________________________________________3
ARTICLE 2. FIXED RENT_______________________________________________________________________4
ARTICLE 3. ADDITIONAL RENT, PAYMENT OF TAXES, ASSESSMENTS, UTILITY CHARGES__________________5
ARTICLE 4. RENEWAL OPTION___________________________________________________________________6
ARTICLE 5. OPTION TO PURCHASE_______________________________________________________________6
ARTICLE 6. CONSTRUCTION_____________________________________________________________________7
ARTICLE 7. USE, MAINTENANCE, ALTERATIONS, REPAIRS___________________________________________9
ARTICLE 8. MECHANIC'S LIEN_________________________________________________________________10
ARTICLE 9. INDEMNIFICATION OF LANDLORD; MUTUAL WAIVER OF SUBROGATION_______________________11
ARTICLE 10. INSURANCE REQUIREMENTS__________________________________________________________11
ARTICLE 11. DAMAGE OR DESTRUCTION___________________________________________________________12
ARTICLE 12. CONDEMNATION____________________________________________________________________13
ARTICLE 13. ASSIGNMENT, BANKRUPTCY, & SUBLETTING____________________________________________13
ARTICLE 14. DEFAULT PROVISIONS______________________________________________________________14
ARTICLE 15. LANDLORD'S REMEDIES_____________________________________________________________15
ARTICLE 16. LANDLORD'S RIGHT TO PERFORM - CUMULATIVE REMEDIES - WAIVERS - ATTORNEY'S FEES___16
ARTICLE 17. QUIET ENJOYMENT TRANSFER OF LANDLORD'S INTEREST________________________________16
ARTICLE 18. LANDLORD'S RIGHT TO SHOW PREMISES; EXPIRATION OF LEASE__________________________17
ARTICLE 19. SUBORDINATION; NON-DISTURBANCE__________________________________________________17
ARTICLE 20. ESTOPPEL CERTIFICATE____________________________________________________________18
ARTICLE 21. SHORT FORM LEASE________________________________________________________________18
ARTICLE 22. LATE CHARGE_____________________________________________________________________18
ARTICLE 23. ADVANCE RENT; SECURITY DEPOSIT__________________________________________________19
ARTICLE 24. BROKERAGE COMMISSION____________________________________________________________19
ARTICLE 25. LIMITATION ON LANDLORD'S LIABILITY______________________________________________19
ARTICLE 26. SUCCESSORS AND ASSIGNS__________________________________________________________20
ARTICLE 27. NOTICES_________________________________________________________________________20
ARTICLE 28. GOVERNING LAW___________________________________________________________________20
ARTICLE 29. MODIFICATION____________________________________________________________________20
ARTICLE 30. NO WAIVER_______________________________________________________________________20
ARTICLE 31. CAPTIONS________________________________________________________________________20
ARTICLE 32. SIGNS___________________________________________________________________________20
ARTICLE 33. PRONOUNS________________________________________________________________________21
ARTICLE 34. ACCESS TO PREMISES______________________________________________________________21
ARTICLE 35. COUNTERPARTS____________________________________________________________________21
ARTICLE 36. ISRA COMPLIANCE_________________________________________________________________21
ARTICLE 37. LATE CHARGE_____________________________________________________________________24
ARTICLE 38. AIR AND LIGHT___________________________________________________________________24
ARTICLE 39. NOTICE OF FIRE AND ACCIDENTS____________________________________________________24
ARTICLE 40. EASEMENTS FOR UTILITIES_________________________________________________________24
ARTICLE 41. CONSENTS AND APPROVALS__________________________________________________________24
ARTICLE 42. END OF TERM HOLDOVER____________________________________________________________25
ARTICLE 43. ENTIRE UNDERSTANDING____________________________________________________________25
ARTICLE 44. EXHIBITS________________________________________________________________________25
</TABLE>
2
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
This Lease entered into this 27th day of March, 1997, between Commercial
Realty & Resources Corp. organized and existing under the laws of the State of
New Jersey having its principle place of business at 1345 Campus Parkway,
Township of Wall County of Monmouth, State of New Jersey, referred to
hereinafter as "Landlord," and Algos Pharmaceutical Corporation, a Delaware
Corporation, having its principal office at 4900 Route 33, Township of Wall,
County of Monmouth, State of New Jersey 07753 referred to hereinafter as
"Tenant."
WITNESSETH:
ARTICLE 1. LEASED PREMISES AND TERM
SECTION 1.1.a. In consideration of the rents and additional rents
hereinafter reserved and all of the provisions, agreements, covenants, and
conditions hereinafter contained, Landlord leases to Tenant, and Tenant hires
from Landlord, all those lands and improvements as more particularly described
on Exhibit A dated December 27, 1996 annexed hereto and made a part hereof
together with all building and improvements (herein located and to be located
thereon and referred to as "Improvements") and made a part hereof, which
together constitute the premises (Premises) situate, lying and being in the
Township of Wall, County of Monmouth, State of New Jersey.
SECTION 1.1.b. This is a "build to suit" Lease. Landlord has agreed to
construct the "Improvements" substantially in accordance with the preliminary
cursory specifications (hereinafter referred to as Preliminary Cursory
Specifications) prepared by Commercial Realty and Resources Corp. attached
hereto and made a part hereof as Exhibit B. As soon as is practicable, Landlord
shall cause The Hillier Group, (hereinafter referred to as Architect) and Langan
Engineering & Environmental Services, Inc. (hereinafter referred to as the Site
Engineer) to prepare final plans and specifications (hereinafter referred to as
Final Plans including such changes as set forth in Section 6.1 of this Lease)
that substantially develop and carry out the concept of the Preliminary Plans.
The Final Plans shall be subject to the Tenant's approval, which shall not be
unreasonably withheld if they are consistent with and substantially develop the
concept of the Preliminary Plans. If not disapproved within twenty (20) days
after receipt by Tenant, they shall be deemed to be approved. The Improvements
shall be constructed by Landlord in accordance with the Final Plans and
specifications to be annexed hereto as Exhibit C, and made a part hereof.
SECTION 1.2.a. The term of this Lease ("Term") shall be for a period of
ten (10) years, commencing upon the date Landlord receives and Tenant accepts
(which acceptance shall not be unreasonably withheld) a Temporary Certificate of
Occupancy ("Commencement Date"). Landlord and Tenant agree that Tenant shall not
have to accept a Temporary Certificate of Occupancy if the plumbing, electric,
and HVAC systems are not in working order, or if the ceilings, doors and
hardware are not installed, of if the walls are not painted. In no event shall
the Commencement Date be later than the issuance of an unconditional Certificate
of Occupancy. The Term will expire on the date which is the tenth (10th)
anniversary of the last day of the calendar month in the lease year ("Expiration
Date").
SECTION 1.2.b. Either party shall, within ten (10) days following
request of the other, execute a written document, in recordable form, stating
the Commencement Date and Expiration Date of the Term of this Lease.
SECTION 1.2.c. The Leased Premises are subject to:
3
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
(i) the existing state of the title;
(ii) any state of facts which an accurate survey or physical inspection
would disclose;
(iii) all zoning regulations, restrictions, rules and ordinances in
effect now or adopted later by any governmental authority having
jurisdiction; and
(iv) any utility, sewer or drainage easements or agreements and the
installations made pursuant to those agreements existing now or
granted or installed later. Landlord represents that the proposed
use is permitted by the Land Use Ordinance of Wall Township.
SECTION 1.3. Landlord's obligations under this Lease are contingent upon
Landlord receiving all necessary governmental approvals for construction of the
building on the Leased Premises and agreements from utility companies that will
provide service to the Leased Premises, including, but not limited to, site plan
approval, soil conservation district approval, county site plan approval,
wetlands and any other necessary approvals issued by the New Jersey Department
of Environmental Protection, sewer permits, electrical service, gas service and
applicable building permits, no later than October 1, 1997. Landlord represents,
warrants and covenants that Landlord shall use due diligence to attempt to
obtain such approvals. In the event such approvals are not obtained by October
1, 1997, then either party, upon written notice to the other shall have the
right to cancel this Lease, whereupon neither party shall have any further
liability to the other. Unless the parties agree otherwise in writing, this
right to cancel must be exercised by November 1, 1997, or the contingency shall
be deemed to have been waived.
ARTICLE 2. FIXED RENT
SECTION 2.1. The fixed rent for the Term is Two Million Eight Hundred
Ninety Six Thousand Eight Hundred and Sixty Dollars ($2,896,860.00) which the
Tenant agrees to pay to the Landlord as follows:
Months 1 through 60 $22,385.00 monthly
Months 61 through 120 $25,896.00 monthly
in advance without demand setoff, counterclaim or abatement of any nature
whatsoever, except as expressly stated herein, on the first day of each calendar
month during the ten (10) year period. Payment shall be made at the office of
the Landlord or at any other place or to any other person designated by the
Landlord. Base rent shall be prorated for a fraction of a month, if any, based
on the number of days within the fractional month.
SECTION 2.2. The Fixed Rent set forth in this Lease has been determined
based upon an approximate square footage of the current improvements located and
to be located on the Premises, of twenty one thousand sixty-eight (21,068)
square feet, plus or minus measured from the exterior face of wall to the
exterior face of wall. The parties agree that the final plans and specifications
shall be determinative of the actual square footage of the improvements, and the
Fixed Rent or Additional Rent (as hereinafter defined) shall be based on such
final plans and specifications, utilizing the formula of $12.75 per square foot
multiplied by the square footage of such final plans and specifications during
months 1 through and including month 60 and $14.75 per square foot multiplied by
the square footage of such final plans and specifications during months 61
through and including month 120. The only other adjustments to the Rent payable
hereunder, whether Fixed or Additional, are those adjustments specifically set
forth in this Lease.
4
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
SECTION 2.3. All rents are payable by Tenant directly to Landlord, and
shall be paid to Landlord at the following address or such address as Landlord
shall designate by notice to Tenant:
1345 Campus Parkway
Post Office Box 1468
Wall, NJ 07719
SECTION 2.4. This is a "triple net" Lease. The rent reserved hereunder
shall be paid to Landlord without any claim on the part of Tenant for diminution
or abatement. Tenant's obligation to pay rent hereunder, and to perform the
covenants and agreements required to be performed by it hereunder, shall in no
way be affected, impaired or excused in any respect because Landlord is unable,
for any reason whatsoever, to fulfill any of its obligations hereunder, or
because Tenant's use and occupancy of the Premises shall be disturbed or
prevented for any reason whatsoever, excepting only Landlord's acts, or as
otherwise specifically provided in this Lease.
SECTION 2.5. Whenever under the terms of this Lease any sum of money is
required to be paid by Tenant in addition to the rent reserved hereunder, and
said additional amount payable is not designated as Additional Rent, said amount
shall nevertheless, at the option of the Landlord, if not paid when due, be
deemed Additional Rent, and collectible as such with any installment of rent
thereafter falling due hereunder. Nothing contained in this subparagraph shall
be deemed to suspend or delay the obligation of Tenant to pay rent and all other
sums as an when due hereunder, nor otherwise to limit or circumscribe any other
remedy of Landlord.
ARTICLE 3. ADDITIONAL RENT, PAYMENT OF TAXES, ASSESSMENTS, UTILITY CHARGES
SECTION 3.1. Tenant shall pay and discharge as Additional Rent, all real
estate taxes, assessments and water meter, water and sewer charges (including
any expenses incident to the installation, repair and replacement of any water
meter), and all other charges and payments of every kind and nature whatsoever,
whether or not now within the contemplation of the parties, imposed by any
governmental or public authority as shall, during the Term, be imposed or become
a lien upon all or any portion of the Leased Premises, and any and all
assessments and other charges imposed upon the Premises in lieu of or in
addition to the foregoing, under or by virtue of any present of future laws or
regulations of any governmental or lawful authority whatsoever. Nothing
contained herein shall be construed so as to require Tenant to pay or be liable
for any gift, inheritance, estate, franchise, income, profits, capital or
similar tax, or any tax in lieu of any of the foregoing, imposed upon Landlord
the successors or assigns of Landlord, unless such tax shall be imposed or
levied upon, or with respect to, rents payable to Landlord hereunder in lieu of
real estate taxes upon the premises.
SECTION 3.2. Tenant shall pay and discharge, as Additional Rent, all
charges for gas, electricity, water and all other public and private utility
services or services furnished to or for the benefit of the Leased Premises
during the Term. Tenant shall also pay and discharge as Additional Rent, his
proportionate share of common expenses incurred in the ordinary course of
business associated with the maintenance and upkeep of the common areas of
Monmouth Shores Corporate Park, including, but not limited to costs for street
lighting and maintaining the park entrances. Tenant's proportionate percentage
is Eight Point Four Four Six Percent (8.446%). Said proportionate percentage was
computed by determining Tenant's Leased Acreage to the total leaseable Acreage
in Monmouth Shores Corporate Park (10.98/130 acres) subject to a final survey
and deed description.
5
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
Landlord represents that the total combined percentage shares of all tenants of
the Monmouth Shores Corporate Park shall be 100%.
SECTION 3.3. Tenant shall also pay and discharge, as Additional Rent,
all taxes and assessments which shall or may, during the Term, be imposed or
become a lien upon the personal property the Tenant employed in the operation of
the Leased Premises or in connection with Tenant's conduct of business on the
Leased Premises.
SECTION 3.4. Tenant shall be deemed to have complied with the covenants
of this Article if payment of any such taxes, assessments or other charges is
made by Tenant within the period within which payment is permitted without
penalty of interest and if, upon Landlord's request, Tenant delivers to Landlord
receipted bills or other acceptable proof of timely payment. Nothing contained
herein shall be construed so as to require Tenant to pay or be liable for any
gift, inheritance, estate, franchise, income, profits, capital, or similar tax,
or any tax in lieu of any of the foregoing, imposed upon Landlord the successors
or assigns of Landlord, unless such tax shall be imposed or levied upon, or with
respect to, rents payable to Landlord hereunder in lieu of real estate taxes
upon the Leased Premises.
SECTION 3.5. Tenant may, in good faith, and at its sole expense, contest
by appropriate proceeding any such taxes, assessments, water meter or other
similar charges with respect to the Leased Premises, provided Tenant shall
deposit with Landlord a sum of money which shall be equal to seventy-five
percent (75%) of the amount of the items so contested, and also from time to
time, on demand of Landlord, such additional sums as may reasonably be required
to cover interest or penalties accrued or to accrue on any such item or items.
Landlord, may, upon reasonable notice to Tenant, if it in its sole and
unreviewable discretion deems it necessary, pay such contested item or items out
of any sum deposited by Tenant with Landlord. At Landlord's option, and where
such procedure is provided for by law, Tenant may pay such items under protest
or make proper deposit in court. When any such contested items shall have been
paid or canceled, any sums so deposited to cover them, and not applied by
Landlord as aforesaid, shall be repaid to Tenant. Any agreements required to
enable Tenant to effect the foregoing shall be executed and delivered by
Landlord on reasonable demand.
SECTION 3.6. Additional Rent for items such as (but not limited to)
taxes, water, sewer, Monmouth Shores Corporate Park common charges, etc., shall
be billed monthly on an actual consumption basis and adjusted annually
thereafter to reflect the actual cost incurred to operate the Leased Premises.
ARTICLE 4. RENEWAL OPTION
SECTION 4.1. Tenant shall have the option, provided it is not in
default, to extend this Lease for one (1) successive additional term of five (5)
years, upon the same terms and conditions as provided in this Lease except that
the annual rent during said extension period shall be the percentage increase
between the average of the twelve monthly price indices of the Consumer Price
Index for New York and Northeastern New Jersey for all Urban Consumers (CPI-U)
published by the Bureau of Labor Statistics, United States Department of Labor
for the first full year of the lease term and the average of the twelve monthly
price indices for the tenth full year of the lease term multiplied by the annual
fixed Rent as set for in Article 2. If the Consumer Price Index for New York and
Northeastern New Jersey for all Urban Consumers (CPI-U) published by the Bureau
of Labor Statistics, United States Department of Labor is not published, a
successor or substitute index will be used. However, in no event shall the
annual increase be less than two and one half percent (2-1/2%) Rent shall be
paid in the manner and at the time provided in Article 2. Tenant shall not have
an extension after the first renewal option.
6
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
Tenant shall give written notice to the Landlord not less than twelve (12)
months before the last day of the initial term of the Lease of its election to
extend the term or such renewal option shall be deemed waived.
ARTICLE 5. OPTION TO PURCHASE
SECTION 5.1. For and in consideration of the sum of One Dollar ($1.00),
receipt of which is hereby acknowledged, Landlord grants to Tenant the option to
purchase ("Purchase Option") the Lease Premises for the lesser sum of
$2,800,000.00 or 115% of Commercial Realty & Resources Corp.'s actual cost of
construction of the Leased Premises as determined solely by Commercial Realty &
Resources Corp. Tenant may exercise said option after the expiration of the
third (3rd) year of the Lease Term but in no event later than the expiration of
the fifth (5th) year of the Lease Term, TIME BEING OF THE ESSENCE FOR THIS
REQUIREMENT, by giving written notice to Landlord as otherwise required in this
Lease. Concurrent with the giving of such notice, Tenant shall deposit ten
percent (10%) of the option price with Landlord to be held in escrow in an
interest bearing account pending closing of title. Interest on such deposit
shall follow the deposit. Closing shall occur no later than sixty (60) days
after the exercise of the option, but in no event later than the expiration of
the fifth (5th) year of the Lease Term, TIME BEING OF THE ESSENCE FOR THIS
REQUIREMENT. In the event that Tenant fails to close title, then Landlord may
elect to terminate this Purchase Option and retain the deposit, whereupon Tenant
shall continue to be obligated under the terms of this Lease. In no event shall
this Purchase Option be assigned to a third party, except to a subsidiary or
affiliated corporate entity of Tenant. If Tenant fails to notify Landlord of its
intention to purchase then Tenant shall have been deemed to have waived his
rights to said Purchase Option. Any transferee of Landlord shall take any
interest in the Leased Premises subject to this Purchase Option.
ARTICLE 6. CONSTRUCTION
SECTION 6.1. Construction by Landlord: Landlord shall cause certain
improvements to be constructed on the Leased Premises. The improvements shall
include the construction of (i) a one-story 20,440 square foot office building
and various site improvements relating to the foregoing, and (ii) and other
improvements sometimes collectively referred to in this Lease as the
"Improvements") with (a) finished ceiling heights of not less than 9'-6" except
for lavatories, (b) height of the atrium to be approximately the height of the
ceiling peak in the lobby of the Waterford building located at Monmouth Shores
Corporate Park and (c) heights of ceilings in the atrium, lobby area, and two
(2) conference rooms (A & B) between main entrance and atrium shall not be less
than twelve (12) feet. The Improvements shall be constructed in complete
conformance with the provisions of the specifications set forth as Exhibit D
attached hereto and made a part hereof by reference and with Exhibits A, B, & E.
Landlord shall bear all costs incurred in the construction, including taxes,
permit fees, professional services, and costs of utility lines and services
whether located on or off the Premises. The plans and specifications contained
in Exhibits A, B, C, & D are to be considered together, and all facilities,
materials or work shown therein shall be furnished and provided by Landlord.
SECTION 6.2. Liability and Risk During Construction. Landlord shall
carry on the construction of the Improvements at its own risk until they are
completed in accordance with the provisions of Exhibits A, B, C, & D. Tenant
shall exercise no control over the construction.
7
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
SECTION 6.3. Construction of the Improvements shall be deemed to have
been completed when (i) the Improvements have been substantially completed in
accordance with the plans and specifications shown on, or referred to in,
Exhibits A, B, C, & D and all applicable requirements of governmental bodies
having jurisdiction over the construction of the Improvements have been
satisfied, (ii) all certificates of occupancy (however such certificates are
designated) required for the lawful occupancy of the Improvements have been
validly issued by the governmental authorities having jurisdiction and (iii)
Landlord shall have given written notice thereof to the Tenant (the "Completion
Requirements"). If the Completion Requirements are otherwise met but there are
minor "punch-list" items that are not completed and that do not materially
affect the Tenant's ability to use the Premises for their intended purpose, the
Completion Requirements will be deemed to be met. The Landlord will complete all
"punch-list" items within ninety (90) days after the Commencement Date.
SECTION 6.4. The date upon which the notice given shall be the
Commencement Date of this Lease, which Commencement Date shall be no earlier
than December, 1997. Tenant shall not occupy or use the Premises or any of the
Improvements prior to the Commencement Date without the express prior written
consent of the Landlord, which consent shall not be unreasonably withheld
provided that the Tenant (i) begins to pay Rent to the Landlord as of the
effective date of such occupancy and/or use (which Rent may be in proportion to
the amount of the Improvements to be occupied and/or used by the Tenant prior to
the Commencement Date as shall be mutually agreed by the Landlord and the
Tenant), (ii) shall be responsible for any and all governmental requirements for
such occupancy and/or use prior to the Commencement Date at the Tenant's sole
cost and expense and; furthermore, provided that the Tenant shall indemnify and
hold the Landlord harmless from all liabilities, requirements, costs and
expenses in connection therewith, and (iii) shall be obligated under all other
provisions of this Lease except that the Term of this Lease shall not begin to
run until the occurrence of the Commencement Date.
SECTION 6.5. When the Leased Premises are sufficiently complete for
Tenant to enter and perform the work to make the Leased Premises ready for
occupancy, Landlord or Landlord's general contractor shall give notice to
Tenant, and Tenant shall promptly begin the work that is necessary to open the
Leased Premises for business. Tenant must meet the insurance requirements of
Article 10 before beginning any work. By entering the Leased Premises to begin
work necessary to make the Leased Premises ready for occupancy, Tenant will not
be deemed to have taken occupancy, provided that no business of Tenant shall be
conducted .
SECTION 6.6. If Tenant claims that Landlord has not complied with one or
more of the construction requirements as of the date of occupancy, Tenant shall,
within forty-five (45) days submit to Landlord a written list of the work Tenant
claims has not been performed by Landlord, and Landlord shall have ninety (90)
days thereafter to complete such work.
SECTION 6.7. If there is a delay in the construction of the Leased
Premises caused by circumstances beyond Landlord's control, including but not
limited to labor disputes, fire, unusual delay in transportation, delays in
material deliveries, adverse weather conditions not reasonably anticipated,
unavoidable casualties or delay authorized by Tenant, that delay shall not be a
breach of this Lease, and the time periods and Commencement Date set forth in
this Lease shall be extended for a period of time equal to the period of delay,
but not more than a total of ninety (90) days.
SECTION 6.8. Landlord warrants to Tenant that all materials and
equipment furnished under this Lease Agreement will be new, unless specifically
agreed to in writing by Tenant, and that all Work will be of good quality, free
from improper
8
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
workmanship and defective materials and in conformance with the Final Plans.
Landlord agrees to correct all Work performed by it under this Lease Agreement
which proves to be defective in material and workmanship within a period of one
(1) year from the date of issuance of the Temporary Certificate of Occupancy, or
for such longer period of time as may be set forth with respect to specific
warranties, such as the roof (e.g., ten (10) year warranty) and the
air-conditioning compressors (e.g., four (4) year warranty).
SECTION 6.9. Landlord will collect all written warranties and equipment
manuals and assign them to the Tenant.
ARTICLE 7. USE, MAINTENANCE, ALTERATIONS, REPAIRS
SECTION 7.1. Except as otherwise set forth herein Tenant accepts the
Premises without any representation or warranty, expressed or implied, in fact
or by law, by Landlord and without recourse to Landlord as to the nature,
condition, or usability thereof or the use or uses to which the Premises or any
part thereof may be put.
SECTION 7.2. Throughout the Term, Landlord shall not be required to
furnish any services or facilities. nor to make any repairs, replacements, or
alterations, in or to the Leased Premises, except as set forth herein. Tenant
hereby assumes the full and sole responsibility for the condition, operation,
maintenance and management of the entire Leased Premises.
SECTION 7.3. The Leased Premises may be used for office, research and
development purposes. Tenant's SIC Code #2834.
SECTION 7.4. Tenant agrees to comply with the covenants, restrictions,
rules and regulations of the Landlord governing the use and maintenance of the
Monmouth Shores Corporate Park attached hereto and made a part hereof as
Exhibits E-1 and E-2.
SECTION 7.5.a. Notwithstanding the foregoing, Tenant shall not use or
occupy, nor permit the Leased Premises to be used or occupied, nor do, suffer or
permit anything to be done in or on the Leased Premises, in whole or in part, in
a manner which would in any way:
i. violate any certificate of occupancy affecting the Leased
Premises;
ii. make void or voidable any insurance then in force with respect
to the Leased Premises or Monmouth Shores Corporate Park;
iii. make it impossible to obtain fire or other insurance required
to be furnished by Tenant hereunder;
iv. cause injury to all or any portion of the Leased Premises;
v. constitute a public or private nuisance; or
vi. violate any present or future law, regulation or requirement
of any governmental, public, or quasi-public authority at any
time having jurisdiction of the Leased Premises.
SECTION 7.5.b. Tenant shall, at its own cost and expense, comply with
all: (i) requirements of law; (ii) laws, ordinances, orders, rules, requirements
and regulations of all federal, state, municipal, and other public agencies,
instrumentalities and authorities affecting the Leased Premises or having
jurisdiction thereover; and (iii) requirements of
9
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
the Fire Insurance Exchange or similar body, and of any liability insurance
company insuring Landlord against liability for accidents or on connected with
the Leased Premises, including without limitation all laws, ordinance, orders,
rules, and regulations which apply to the interior or exterior of the Leased
Premises or the structural parts thereof, whether ordinary or extraordinary,
foreseen or unforeseen.
SECTION 7.5.c. Tenant may, however, with the prior written consent of
Landlord (which consent shall not be unreasonably withheld if Tenant shall
secure Landlord to its reasonable satisfaction against loss or damage), contest
the validity of any such law, regulation or requirement and, pending the
determination of such contest, may postpone compliance therewith if such
postponement will not subject Landlord to any fine or penalty, nor to
prosecution for a crime, nor cause the Premises or any part thereof to be
condemned or to be subject to any type of lien whatsoever. Tenant shall
indemnify and hold Landlord harmless against any recovery or loss to which
Landlord may be subject or which Landlord may sustain, including without
limitation reasonable attorney's fees and expense incurred by Landlord arising
from or out of any breach of this covenant, or by reason of any action or
proceedings which may be brought against Landlord or against the Premises, or
any part thereof, by virtue of any such law, regulations or requirement. Tenant
will remedy any violations of this covenant and will pay the cost of same.
SECTION 7.6. Tenant shall, at it sole cost and expense, take good care
of the Leased Premises and make all repairs necessary thereto in order to
restore all buildings and improvements on the Leased Premises at least to the
extent of their value, and as near as practicable to their original quality and
character as in existence immediately prior to the occurrence necessitating the
repair, whether interior or exterior, structural or non-structural, ordinary or
extraordinary, and foreseen or unforeseen. Further, Tenant shall maintain and
keep the Leased Premises, lawns, sidewalks, and curbs adjacent hereto in good
repair and condition. Tenant shall also, at its sole cost and expense, keep all
such sidewalks, driveways, and parking lots free and clear from rubbish, ice and
snow and shall not encumber or instruct the same, nor allow the same to be
encumbered or obstructed in any manner.
SECTION 7.7. Only upon obtaining the prior written consent of Landlord,
(which consent shall not be unreasonably withheld) and, if Landlord so desires,
the prior written consent of any architect or engineer of Landlord's choice,
Tenant may, at its sole cost and expense, make additions, alterations, and
changes in and to the Leases Premises, provided that Tenant is not then in
default in the performance of any of Tenant's covenants, obligations, duties, or
agreements in this Lease. All erections, alterations, additions and
improvements, whether temporary or permanent in character which may be made upon
the Leased Premises by any person, except only the placement thereon of
furniture, movable trade fixtures and movable machinery or equipment of Tenant,
shall become the property of the Landlord, and shall remain upon and be
surrendered with the Leased Premises as a part thereof at the termination of
this Lease without any compensation whatsoever to Tenant or to anyone else. If
attached property is removed, Tenant agrees to restore the Leased Premises to
its original condition.
ARTICLE 8. MECHANIC'S LIEN
SECTION 8.1. Mechanic's Liens Prohibited. Tenant shall not suffer any
mechanic's lien to be filed against the Leased Premises by reason of work,
labor, services or materials, performed or furnished to Tenant or to anyone
holding the Leased Premises, or any part thereof, through or under Tenant. If
any mechanic's lien or any notice of intention to file a mechanic's lien shall
at any time be filed against the Leased Premises, (unless the labor or materials
were actually performed for or furnished to Landlord in connection with its
obligations under this lease) Tenant shall at Tenant's cost, within
10
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
twenty-one (21) days after knowledge or notice of the filing of any mechanic's
lien cause the same to be removed or discharged of record by payment, bond,
order of a court of competent jurisdiction, or otherwise.
SECTION 8.2. Landlord's Remedy for Tenant's Breach. With reference to
Section 8.1 preceding, if Tenant shall fail to remove or discharge any
mechanic's lien or any notice of intention to file a mechanic's lien within the
seven (7) days, then in addition to any other right or remedy of landlord,
Landlord may, at its option, procure the removal or discharge of the same by
payment or bond or otherwise. Any amount paid by Landlord for such purpose,
together with all legal and other expenses of Landlord in procuring the removal
or discharge of such lien or notice of intention shall be and become due and
payable immediately by Tenant to Landlord.
ARTICLE 9. INDEMNIFICATION OF LANDLORD; MUTUAL WAIVER OF SUBROGATION
SECTION 9.1. Landlord shall not be responsible or liable for any damage
or injury to any property or to any one or more persons at any time on or about
the Leased Premises arising from any cause whatsoever except for those acts
Landlord is directly responsible for under the terms and conditions of this
Lease. Tenant shall not hold Landlord in any way responsible or liable
therefore, and hereby releases and remises Landlord therefore. Tenant will
indemnify and hold Landlord harmless from and against (i) any and all claims,
liabilities, penalties, damages, expenses and judgments arising from injury to
persons or property of any nature in or upon the Leased Premises and (ii) any
and all of the foregoing arising from Tenant's occupation of, and its conduct of
business upon, the Leased Premises and the street and sidewalks adjacent
thereto. However, Tenant shall not hold Landlord harmless from claims arising
from acts for which Landlord is responsible for under this lease.
SECTION 9.2.a. Neither Tenant nor Landlord, nor their respective agents,
employees or representatives shall be liable to the other for loss or damage
covered by any insurance policy. The liability of Tenant to indemnify Landlord
as set forth in Article 9 hereof shall not extend to any matter to the extent
Landlord actually receives insurance proceeds therefore, provided, however, that
if any such liability shall exceed the amount of the effective and collectible
insurance in question, Tenant shall be liable for such excess.
SECTION 9.2.b. All insurance polices required under this Lease shall
contain waivers by properly endorsed amendments, if necessary, by the carriers
of all subrogation rights as against Landlord and Tenant.
ARTICLE 10. INSURANCE REQUIREMENTS
SECTION 10.1. During the Term, Tenant shall, at its sole cost and
expense, and for the benefit of Landlord any and all mortgages of the Leased
Premises, carry and maintain the following types of insurance in the amounts
hereinafter specified:
SECTION 10.1.a. fire and extended coverage insurance covering the Leased
Premises against loss or damage by fire and against loss or damage by other
risks now or hereafter embraced by "extended coverage" so called, in an amount
not less than one hundred percent (100%) of the full replacement cost of all
improvements and building on the Leased Premises (as determined and specified by
Landlord), without deduction or depreciation;
11
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
SECTION 10.1.b. comprehensive public liability insurance, including
property damage, insuring Landlord and Tenant against liability for injury or
damage or persons or property occurring in or about the Lease Premises or
arising out of the ownership, maintenance use or occupancy thereof. The
liability under such insurance shall not be less than (i) $1,000,000.00 for any
one person injured or killed, (ii) $1,000,000.00 for any one accident and (iii)
$50,000.00 for personal property damage per accident.
SECTION 10.1.c. boiler and pressure vessel insurance, including coverage
of pipes; and
SECTION 10.1.d. such other insurance, and in such amount, as may from
time to time be required by Landlord against other insurable hazards which at
the time are commonly insured against in the case of premises similarly situated
to the Leased Premises, including without limitation flood hazard insurance, if
the Leased Premises are located in a flood hazard area. These insurances will be
requested by Landlord only if future requirements may necessitate additional
insurance.
SECTION 10.2. All policies of insurance (except liability insurance)
carried or maintained hereunder shall provide by endorsement that any loss shall
be payable to Landlord or Tenant, as their respective interests may appear. All
such insurance shall be in form, and maintained with carriers, satisfactory to
Landlord.
SECTION 10.3. All policies of insurance carried or maintained hereunder
shall contain an agreement by the insurer that each such policy shall not be
canceled without at least thirty (30) days' prior written notice to Landlord.
SECTION 10.4. By the 15th day of March of each year during the Term
Tenant shall deliver to Landlord evidence of the above-mentioned insurance
coverage satisfactory to Landlord. Upon Tenant's failure to comply in full with
Article 10, Landlord shall have the immediate right to: (i) obtain the aforesaid
insurance coverage, (ii) pay the premiums therefore and (iii) add said premiums
to the monthly installment of rent next due, which amount shall be paid by
Tenant to Landlord in addition to said monthly installment of rent.
ARTICLE 11. DAMAGE OR DESTRUCTION
SECTION 11.1. If, at any time during the Term, the buildings or
improvements on the Leased Premises shall be wholly or partially damaged or
destroyed by fire or other casualty (including any casualty for which insurance
coverage was not obtained) of any nature whatsoever, regardless of where said
damage or destruction resulted from an act of God, the fault of Tenant or from
any other cause whatsoever, the Tenant shall promptly replace, repair and/or
rebuild the damaged or destroyed buildings and improvements on the Leased
Premises at least to the extent of the value, and as near as practicable to
their original quality and character, of all such buildings and improvements as
in existence immediately prior to the damage or destruction. Such rebuilding
shall be made in accordance with plans and specifications therefore which shall
first be submitted to, and approved in writing by, Landlord prior to
commencement of any repair or rebuilding.
SECTION 11.2.a. All insurance money collected by Landlord from any
policy of insurance on account of such damage or destruction, less the cost, if
any, incurred in connection with the adjustment of the loss and collection
thereof (herein sometimes referred to as the "insurance proceeds"), shall be
applied to the payment of the cost of the rebuilding. The insurance proceeds
shall be paid out to or for the account of Tenant from time to time as such work
progresses, upon Tenant's presentation to Landlord of valid bills or invoices
for repair or reconstruction of the Leased Premises. All sums so paid to
12
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
Tenant, and any other insurance proceeds received or collected by or for the
account of Tenant (other than by way of reimbursement to Tenant for sums
theretofore paid by Tenant), shall be held by Tenant in trust for the purpose of
paying the cost of such reconstruction.
SECTION 11.2.b. Upon Landlord's receipt of evidence reasonably
satisfactory to it that the repair or reconstruction has been completed and paid
for in full, and that there are no liens on the Premises as a result thereof,
Landlord shall, pay to Tenant any remaining balance of said insurance proceeds.
If the Insurance proceeds received by Landlord shall be insufficient to pay the
entire cost of repair or reconstruction and Tenant has not purchased insurance
in accordance with Article 9 then Tenant shall supply the amount of any such
deficiency and shall apply such monies to the payment of the cost of repair or
reconstruction as such becomes necessary for the prompt completion of the
repairs or reconstruction, and before calling upon Landlord for the disbursement
of any remaining insurance proceeds held by Landlord.
SECTION 11.2.c. Under no circumstances shall Landlord be obligated to
make any payment, disbursement or contribution towards the cost of the repair of
the damage or destruction as described in Article 11.1., except to the extent of
the insurance proceeds actually received by Landlord.
SECTION 11.3. No provision of Article 11 shall be construed to entitle
Tenant to any abatement, reduction, allowance against or suspension of rent for
any reasons whatsoever, except that in the event Tenant and Landlord's insurance
carriers agree that the property is so damaged that it cannot be repaired within
ninety (90) days from the date of such joint determination, then Tenant shall
thereafter be permitted to cancel this Lease.
ARTICLE 12. CONDEMNATION
SECTION 12.1. If the entire Leased Premises shall be taken under the
exercise of the power of eminent domain (or any similar governmental power in
the nature thereof) by an competent governmental authority, this Lease shall
terminate as of the date of such taking. In that event, all Rent reserved
hereunder shall be apportioned as of the date of such taking and all prepaid
rentals, if any, not theretofore applied towards the payment of accrued
installments of rent in accordance with the provisions hereof shall be repaid
promptly to Tenant.
SECTION 12.2. If less than the entire Leased Premises shall be taken
under the exercise of the power of eminent domain or any similar power, Tenant
shall make such repairs and restorations as may be necessary to fully restore
all remaining portion of the Leased Premises at least to the extent of their
value, and as near as practicable to their original quality and character as in
existence immediately prior to the taking. During the time such repairs or
restorations are being made, Tenant shall only be required to pay that
proportion of the aggregate Rent, costs and expenses reserved hereunder as the
area of the portion of the Leased Premises remaining tenantable bears to the
entire area of the Leased Premises prior to said taking. Upon completion of said
restoration, the Rent reserved hereunder shall be reduced for the remainder of
the Term and thereafter Tenant shall be required to pay that proportion of the
Rent as the area of restored Leased Premises bears to the area of the entire
Leased Premises prior to said taking, exclusive of non-material areas. Tenant
shall use the entire award from such partial taking for any such restoration.
Any of such proceeds received by Tenant shall be held in trust for the purpose
of paying the cost of such restoration.
13
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
SECTION 12.3. In the event of any taking, whether total or partial,
Tenant shall have no claim in or to any award of damages for such taking, except
to the extent that the proceeds of any partial taking must be used by Tenant for
restoration of the Leased Premises. Tenant hereby expressly assigns any and all
of its right, title and interest in and to all such awards to Landlord.
ARTICLE 13. ASSIGNMENT, BANKRUPTCY, & SUBLETTING
SECTION 13.1. Tenant shall not assign, mortgage, pledge, encumber or in
any manner transfer this Lease or any portion hereof or any interest herein, nor
sublease all or any portion of the Leased Premises, without the prior written
consent of Landlord which shall not be unreasonably withheld.
SECTION 13.2. In case of an assignment of this Lease or sub-letting of
the Leased Premises by Tenant, the obligations of Tenant under this Lease as a
primary obligor shall be unaffected and shall remain in full force and effect.
Should this Lease be assigned or sublet, any rental in excess of the level
Tenant would pay under the terms and conditions of this Lease shall be paid to
the Tenant until such time as Tenant has recouped (i) Tenant's actual cost of
any leasehold improvements in excess of allowances provided in this Lease, (ii)
Tenant's actual cost to provide any additional leasehold improvement or
allowances reasonably necessary to sublease or assign the space, and (iii)
Tenant's actual cost of subletting or assigning the space, including but not
limited to commissions and attorney's fees. Thereafter, all excess rental
amounts shall belong to Landlord.
SECTION 13.3. Anything contained herein to the contrary notwithstanding,
Tenant may assign this Lease or sublet the Leased Premises or any portion
thereof, without Landlord's consent, to any corporation which controls, is
controlled by or is under common control with Tenant, or to any corporation
resulting from a merger or consolidation with Tenant, or to any person or entity
which acquires all the assets of Tenant's business as a going concern, provided
that (i) the assignee or sublessee assumes, in full, the obligations of Tenant
under this Lease, (ii) Tenant remains fully liable under this Lease, and (iii)
Tenant sends Landlord prior notice of the proposed assignment or subletting.
SECTION 13.4. In the event of any voluntary or involuntary bankruptcy,
arrangement, plans or reorganization, assignment for the benefit of creditors or
other insolvency or related proceeding filed, instituted or conducted by,
against or otherwise on behalf of Tenant, the leasehold created hereby shall not
be assigned nor the Leased Premises sublet, nor shall either this leasehold or
the Leased Premises be otherwise conveyed or transferred, in whole or in part,
to any party unless it shall possess: (i) a minimum net worth of $1,000,000.00,
calculated in accordance with generally accepted accounting principles, and (ii)
minimum working capital of $500,000.00.
ARTICLE 14. DEFAULT PROVISIONS
SECTION 14.1. The occurrence of any of the following events ("Events of
Default") shall constitute a default under this Lease:
SECTION 14.1.a. Tenant fails to make lawful and timely payment of any
installment of Fixed or Additional Rent or any other sum payable by Tenant to
Landlord or to any other person, firm, entity, or governmental body, agency, or
organization whatsoever, and such failure continues for a period of thirty (30)
days, after written notice of default delivered by Landlord;
14
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
SECTION 14.1.b. Tenant fails to perform or observe any covenant, term or
condition of this Lease to be performed or observed by Tenant other than
defaults covered by subparagraph (a) hereof and such failure continues for a
period of ten (10) days, after receipt by Tenant of written notice of same,
unless Tenant has made a good faith effort to remedy the default and said
default cannot be remedied within the said ten (10) day period;
SECTION 14.1.c. Tenant ceases to do business as a going concern or files
any petition with respect to its own financial condition under any bankruptcy
law or any amendment thereto (including without limitation a petition or
reorganization, arrangement or extension), or under any other insolvency law or
laws providing for the relief of debtors;
SECTION 14.1.d. (i) A receiver, trustee, conservator or liquidator is
appointed for Tenant of all or a substantial portion of its assets, and the
underlying proceeding is not discharged within thirty (30) days after the
commencement thereof, (ii) this Lease, the estate hereby granted or the
unexpired balance of the Term would, by operation of law or otherwise, except
for this provision, pass to any person, firm or corporation other than Tenant,
or (iii) Tenant shall be adjudicated bankrupt or insolvent or in need of any
relief provided to debtors by any court; or
SECTION 14.1.e. Tenant shall cause or permit the Leased Premises to
become vacant or abandoned for any period of time whatsoever unless otherwise
consented to by Landlord which shall not be unreasonably withheld.
SECTION 14.1.f. Tenant fails to conform to the terms, conditions,
restrictions, expenses and responsibilities associated with the Protective
Covenants as set forth in Exhibit E-1 herein and the Maintenance Plan set forth
in Exhibit E-2 herein.
ARTICLE 15. LANDLORD'S REMEDIES
Upon the occurrence of an Event of Default which is not cured within the
period set forth in Article 14 hereof, Landlord may exercise any one or more of
the following remedies:
SECTION 15.1.a. Landlord may give Tenant a notice (the "Termination
Notice") of its intention to terminate this Lease specifying a date not less
than five (5) days thereafter, upon which date this Lease, the Term and estate
hereby granted and all rights of Tenant hereunder shall expire and terminate.
Notwithstanding the foregoing: (1) Landlord may institute dispossess proceedings
for non-payment of rent, distraint or other proceedings to enforce the payment
of rent without giving the Termination Notice.
SECTION 15.1.b. Upon any such termination or expiration of this Lease,
Tenant shall peaceably quit and surrender the Leased Premises to Landlord, and
Landlord may without further notice enter upon, re-enter, possess and repossess
itself thereof, by force, summary proceedings, ejectment or otherwise and may
have, hold and enjoy the Leased Premises and the right to receive all rental and
other income of and from the same.
SECTION 15.2. Landlord may, at Landlord's sole option (without imposing
any duty upon Landlord to do so), and Tenant hereby authorizes and empowers
Landlord to: (i) re-enter the Leased Premises as Tenant's agent or for any
occupant of the Leased Premises under Tenant, or for its own account or
otherwise, (ii) relet the same for any term, (iii) remodel the same if necessary
or desirable for such reletting purposes and (iv) receive and apply the rent so
received to pay all fees and expenses incurred by Landlord
15
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
as a result of such Event of Default, including without limitation any legal
fees and expenses arising therefrom, the cost of re-entry, repair, remodeling
and reletting and the payment of the Rent and other charges due hereunder. No
entry, re-entry or reletting by Landlord, whether by summary proceedings,
termination or otherwise, shall discharge Tenant from any of its liability to
Landlord as set forth in this Lease.
SECTION 15.3. Regardless of whether Landlord enters or re-enters by
summary proceedings, termination or otherwise, Tenant will pay Landlord, and be
liable to Landlord for, the full amount of all Fixed and Additional Rent and
other charges then due or thereafter to become due to Landlord hereunder,
subject to Landlord's obligation to attempt to mitigate such Fixed and
Additional Rent and other charges then due or thereafter to become due to
Landlord hereunder. Tenant shall not be liable to the extent Landlord can find
another tenant to lease the premises under the terms and conditions contained
herein.
SECTION 15.4. Tenant shall be liable for all costs, charges and
expenses, including without limitation, attorney's fees and disbursements,
incurred by Landlord by reason of the occurrence of any Event of Default or the
exercise of the Landlord's remedies with respect thereto.
SECTION 15.5. Tenant, for itself and on behalf of any and all persons
claiming through or under it, including without limitation creditors of every
kind, hereby waives and surrenders all rights and privileges which they or any
of them may have under or by reason of any present or future law to redeem the
Leased Premises, or to have a continuance of this Lease for the remainder of the
Term, after being dispossessed or ejected therefrom by process of law or after
the termination of this Lease as herein provided.
ARTICLE 16. LANDLORD'S RIGHT TO PERFORM - CUMULATIVE
REMEDIES - WAIVERS - ATTORNEY'S FEES
SECTION 16.1. If the Tenant shall fail to pay any taxes or make any
other payment required to be made under this Lease, or shall default in the
performance of any covenant, agreement, term, provision or condition herein
contained, Landlord may, without being under any obligation to do so and without
thereby waiving such default, make such payment and/or remedy such other default
for the account and at the sole expense of Tenant. Tenant shall pay to Landlord,
on demand, the amount of all sums so paid and all expenses from the date of
payment by Landlord until payment in full at the rate of ten percent (10%) per
annum.
SECTION 16.2. Landlord may restrain any breach or threatened breach of
any covenant, agreement, term, provision or condition herein contained. However,
the mention herein of any particular remedy shall not preclude the Landlord from
any other remedy it may have, either at law or in equity. The failure of
Landlord to insist upon the strict performance of any one of the terms of this
Lease, or to exercise any right, remedy or election herein contained or
permitted by law, shall not constitute or be construed as a waiver or
relinquishment for the future of such term, right, remedy or election, but the
same shall continue and remain in full force and effect. Any rights and remedies
of Landlord, whether created hereunder or existing at law, in equity or
otherwise upon breach by Tenant of any covenant contained in this Lease, shall
be distinct, separate and cumulative rights or remedies, and not one of them,
whether exercised by Landlord or not, shall be deemed to have been waived by
Landlord unless such waiver is in writing, signed by Landlord or its agent duly
authorized in writing. Receipt or acceptance of Fixed or Additional Rent by
Landlord shall not be deemed a waiver of any default under this Lease, nor of
any right which Landlord may be entitled to exercise under this Lease.
16
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
SECTION 16.3. In the event of any default by Tenant under this Lease,
Landlord shall be entitled, in addition to any other rights and remedies
hereunder, to the reimbursement by Tenant of attorney's fees incurred by
Landlord in the exercise of its rights and remedies.
ARTICLE 17. QUIET ENJOYMENT TRANSFER OF LANDLORD'S INTEREST
SECTION 17.1. Landlord covenants that if and for so long as Tenant keeps
and performs each and every covenant herein required to be kept and performed by
it, Tenant shall peacefully and quietly enjoy the Leased Premises without
hindrance or molestation by Landlord, subject to the covenants, agreements,
terms, provisions and conditions of this Lease.
SECTION 17.2. The term "Landlord" as used in this Lease, means only the
owner for the time being of the Leased Premises, and in the event of a sale,
assignment or transfer by such owner of its interest in all or any portion of
the Leased Premises and upon sixty (60) days written notice to Tenant before
such sale, assignment, or transfer, such owner shall thereupon be released and
discharged from all covenants and obligations of Landlord thereafter accruing
with respect to the portion of the Leased Premises so transferred. Such
covenants and obligations shall be binding upon each new Landlord.
ARTICLE 18. LANDLORD'S RIGHT TO SHOW PREMISES; EXPIRATION OF LEASE
SECTION 18.1. Landlord shall have the right to show the Leased Premises
during normal business hours, with advance notice to Tenant so as not to
interfere with the normal operation of Tenant's business. Landlord shall have
the right to show the Leased Premises at any time during the Term to any
prospective purchaser of the same, and may enter upon the Leased Premises or any
portion thereof, for the purpose of ascertaining the condition thereof, and
whether Tenant is observing and performing the obligations imposed upon it under
this Lease, all without hindrance or molestation from Tenant, except that a
representative of Tenant shall accompany Landlord and/or Landlord's agents at
all times that they are in the building on the Leased Premises. In the event
Tenant fails to make repairs or perform work required of Tenant hereunder,
Landlord shall have the right to enter upon the Leased Premises for the purpose
of making such repairs or performing such work, in which event Tenant shall pay,
as Additional Rent upon demand therefore, the cost to Landlord of such repairs
and/or such work, together with interest on such sums from the date of payment
by Landlord until payment in full by Tenant at the rate of ten percent (10%) per
annum. The above-mentioned rights of entry shall be exercisable at reasonable
times, at reasonable hours and on reasonable notice. However, nothing contained
herein shall impose or imply any duty on the part of Landlord at any time to
inspect the Leased Premises, make any such repairs or perform any such work.
SECTION 18.2. Upon the expiration of the Term or the sooner termination
thereof as provided in this Lease:
SECTION 18.2.A. Tenant shall peaceably and quietly leave and yield up
unto Landlord the entire Leased Premises free of occupants and all personal
property. Any removable property of Tenant which shall remain in or upon the
Leased Premises after the expiration of the Term or sooner termination thereof
and the removal of Tenant from the Leased Premises may, at the option of
Landlord, be deemed to have been abandoned, and may be either retained by
Landlord as its property, or disposed of in such manner as Landlord may in its
sole discretion deem appropriate; and
17
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
SECTION 18.2.b. If Tenant shall remain in the Leased Premises without
having executed and delivered a new lease with Landlord such holding over shall
not constitute a renewal or extension of this Lease. Landlord may, at its sole
option, elect to: (i) treat Tenant as one who has not removed at the end of its
term, and thereupon be entitled to all the remedies against Tenant provided for
by law or under this Lease regarding such situation; or (ii) construe such
holding over as a tenancy from month to month, subject to all terms and
conditions of this Lease, except the duration thereof. In that event, Tenant
shall pay monthly rent in advance at fifty percent (50%) above the rate provided
herein for the last month of the Term.
ARTICLE 19. SUBORDINATION; NON-DISTURBANCE
SECTION 19.1. This Lease shall be subject and subordinate at all times
to the lien of any and all mortgages hereafter on the Leased Premises, and to
all advances hereafter made under any one or more such mortgages. Landlord
represents that as of the date of the execution of this Lease, there is no
mortgage on the Leased Premises. The aforesaid provisions shall be
self-operative and no further instrument shall be required to subordinate this
Lease to any such mortgage or mortgages. However, Tenant will execute and
deliver such further instrument or instruments evidencing said subordination as
may be desired by Landlord or any mortgagee or proposed mortgagee. Tenant hereby
irrevocably appoints Landlord as Tenant's attorney-in-fact to execute and
deliver any such instrument or instruments for Tenant.
SECTION 19.2. Notwithstanding the foregoing, Landlord hereby covenants
that any mortgage hereinafter given on the Leased Premises ("mortgage") shall
contain a "non-disturbance" clause, so called, providing that for so long as
Tenant complies in full with all terms and conditions of this Lease, Tenant's
possession, occupation and use of the Leased Premises hereunder shall not be
disturbed or interfered with due to any non-compliance or default of Landlord
under any mortgage.
SECTION 19.3. In the event any mortgagee prevails in a foreclosure
action regarding the Leased Premises, Tenant agrees to attorn to such mortgagee
as Landlord hereunder. If the mortgagee shall so request, Tenant will promptly
execute a written attornment agreement.
ARTICLE 20. ESTOPPEL CERTIFICATE
SECTION 20.1. Within ten (10) days after either party hereto shall have
requested the same, the other party shall deliver a certificate to it,
certifying to the best of its knowledge that:
(a) this Lease has not been supplemented, amended or modified in any
respect, or specifying the manner in which it has been supplemented, amended or
modified;
(b) this Lease is in full force and effect, or if it is alleged that
this Lease is not in full force and effect, specifying the reasons therefore;
(c) there exists no default under this Lease, nor any event which, with
the giving of notice or lapse of time, or both, would become a default under
this Lease, or, if there exists such default or event, specifying the nature and
extent of the same; and
(d) there are no defenses, set-offs, recoupments, counterclaims or
claims of any nature whatsoever by or on behalf of Tenant against Landlord with
respect to this Lease.
18
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
ARTICLE 21. SHORT FORM LEASE
SECTION 21.1. Landlord and Tenant shall, each on request of the other,
execute a short form lease or memorandum of lease and/or purchase option in
proper form for recording, the cost and expense thereof to be paid by the party
requesting same. The Lease itself shall not be recorded. In addition, Tenant
shall deposit in escrow with Landlord's attorney undated but duly executed
releases of such memoranda, which Landlord's attorney may file upon any event of
default in this Lease (and/or the Purchase Option).
ARTICLE 22. LATE CHARGE
SECTION 22.1. At Landlord's option, Tenant shall pay a "late charge" of
five percent (5%) of any installment of rental (or any such other charge or
payment as may be considered additional rent under this Lease Agreement) when
paid more than ten (10) days after the due date thereof, to cover the extra
expenses involved in handling delinquent payments and such amounts shall bear
interest at the rate of one and one-half (1 1/2%) per month. Should Landlord
exercise this provision, it shall be without preclusion of any other remedies
for non-payment of rent.
ARTICLE 23. ADVANCE RENT; SECURITY DEPOSIT
SECTION 23.1. Simultaneously herewith, Tenant has deposited with
Landlord an Irrevocable Letter of Credit in the sum of One Hundred Fifty
Thousand Dollars ($150,000.00) as security for the faithful performance and
observance by Tenant of the terms, provisions and conditions of this Lease. At
the end of the fifth (5th) year of this Lease, this sum shall be reduced to
Seventy-Five Thousand Dollars ($75,000.00). It is agreed that in the event
Tenant defaults in respect of any of the terms, provisions and conditions of the
Lease, including without limitation, the payment of Fixed or Additional Rent,
Landlord may use, apply or retain all or any portion of the security so
deposited, to the extent so required for the payment of any Fixed and/or
Additional Rent and all other sums as to which Tenant is in default, and for all
sums which Landlord has expended or may be required to expend by reason of
Tenant's default in respect of any of the terms, covenants, and conditions of
the Lease, including without limitation of all damages and deficiencies arising
from the reletting of the Leased Premises, whether such damages or deficiencies
arose before, during or after summary proceedings or other re-entry by Landlord
or otherwise.
SECTION 23.2. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this Lease, the
security shall be returned to Tenant upon the expiration of the Term, and after
delivery of entire possession of the Leased Premises to Landlord pursuant to the
terms of this Lease.
SECTION 23.3. In the event of a sale, assignment of transfer of
Landlord's interest in the Leased Premises, Landlord shall have the right to
deliver the security to the transferee of the Leased Premises, and Landlord
shall thereupon be released by Tenant from all liability for the return of such
security. Tenant agrees in such event to look solely to the new Landlord for the
return of said security.
SECTION 23.4. Tenant further covenants that it will not assign or
encumber the monies deposited herein as security, and that neither Landlord nor
its successors or assigns shall be bound by any such actual or attempted
assignment or encumbrance.
19
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
ARTICLE 24. BROKERAGE COMMISSION
SECTION 24.1. The Landlord has entered into a separate brokerage
commission agreement with BLACK & COMPANY. Each party warrants and represents to
the other that no brokerage commission is due to any person, firm or entity with
respect to this Lease of the Premises except as set forth above and each party
agrees to indemnify and hold the other party harmless with respect to any
judgment, damages, legal fees, court costs and any and all liabilities of any
nature whatsoever arising from a breach of said representation.
ARTICLE 25. LIMITATION ON LANDLORD'S LIABILITY
SECTION 25.1. If Landlord or any successor(s) in interest or assignee(s)
shall be an individual, joint venture, tenancy in common, firm or partnership,
general or limited, or a trust, it is specifically understood and agreed that
there shall be no personal liability upon such individual or the members of the
joint venture, tenancy in common, firm or partnership, or the trustee(s) under
such trust or the beneficiaries thereunder, or upon such joint venture, tenancy
in common, firm or partnership, general or limited or trust. It is specifically
understood and agreed that there shall be no personal liability upon such
individual or the members of the joint venture, tenancy in common, firm or
partnership, or the trustee(s) under such trust or the beneficiaries thereunder,
or upon such joint venture, tenancy in common, firm, partnership or trust, in
respect to any of the covenants or conditions of this Lease. Tenant shall look
first to Landlord's equity in the Leased Premises for the satisfaction of the
remedies of Tenant in the event of a breach by Landlord of any of the terms,
covenants and conditions of the Lease to be performed by Landlord but in the
absence of any such equity in the Leased Premises, Landlord's liability shall
not exceed the sum of Two Hundred and Fifty Thousand Dollars ($250,000.00).
Thereafter, Tenant shall be entitled to a set-off against Fixed Rent, Additional
Rent, and credit for any security deposit held by Landlord hereunder.
ARTICLE 26. SUCCESSORS AND ASSIGNS
SECTION 26.1. This Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective successors and assigns.
ARTICLE 27. NOTICES
SECTION 27.1. All notices and other communications hereunder shall be
sent by certified mail, return receipt requested, and shall be deemed to have
been duly given when sent in the foregoing manner to the parties at their
respective addresses as set forth above, or to such other address as either
party shall notify the other by notice under this Article.
ARTICLE 28. GOVERNING LAW
SECTION 28.1. This Lease shall be governed by and construed in
accordance with the laws of the State of New Jersey.
ARTICLE 29. MODIFICATION
20
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
SECTION 29.1. Any modification or amendment of this Lease shall be
effective only if in writing, and executed by each party hereto.
ARTICLE 30. NO WAIVER
SECTION 30.1. No term of this Lease shall be deemed to have been waived
by either party unless such waiver is in writing; signed by the Landlord or its
agent duly authorized in writing.
ARTICLE 31. CAPTIONS
SECTION 31.1. The Article captions contained in this Lease are for
convenience only and do not define, limit, or construe the contents of the
Articles.
ARTICLE 32. SIGNS
SECTION 32.1. Tenant shall not place, install or maintain any sign upon
or outside the Leased Premises or on the building until approved by Landlord
which shall not be unreasonably withheld. Any such signs or logo must conform to
all applicable rules, regulations, codes and directives of governmental agencies
having jurisdiction. Tenant shall be solely responsible for the purchase,
maintenance and repairs respecting its signs.
SECTION 32.2. Landlord agrees, subject to approval by the Township of
Wall and applicable zoning regulations, that Tenant may install a sign that will
consist of the following: A brick-faced base that will match the finish of the
building and on the face of which will be the Tenant's corporate name in chrome
channel letters, and on top of which will be located a clear pyramid,
approximately four feet (4') square at the base, within which will be suspended
the Tenant's corporate logo. The pyramid and base will be externally
illuminated.
ARTICLE 33. PRONOUNS
SECTION 33.1. Words of any gender used in this Lease shall be held to
include any other gender, and words in the singular number shall be held to
include the plural, as the sense requires.
SECTION 33.2. If any provision of this Lease, or the application of any
provision is invalid, the remainder of this Lease shall not be affected.
ARTICLE 34. ACCESS TO PREMISES
SECTION 34.1. Landlord shall have the right to enter the Leased Premises
at reasonable times to make inspections and to make repairs, additions,
alterations, or improvements to the Leased Premises, the building in which the
Leased Premises are located or any property owned or controlled by Landlord
within the building, except that a representative of Tenant shall accompany
Landlord and/or Landlord's agents at all times that they are in the building on
the Leased Premises. Any such entry by Landlord shall not unreasonably interfere
with Tenant's use and occupancy of the Leased Premises
ARTICLE 35. COUNTERPARTS
21
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
SECTION 35.1. This Lease may be executed in several counterparts, each
of which shall be deemed to be an original copy, and all of which taken together
shall constitute one agreement binding on all parties hereto, notwithstanding
that the parties shall not have signed the same counterpart.
ARTICLE 36. ISRA COMPLIANCE
SECTION 36.1. Tenant shall, when and as appropriate and necessary, at
Tenant's own expense, comply with the Industrial Site Recovery Act, N.J.S.A.
13:1K-6 et. seq., the regulations promulgated thereunder and any successor
legislation and regulations ("ISRA") regarding the Leased Premises. Tenant
shall, at Tenant's own expense, make all submissions to, provide all information
to, and comply with all requirements of, the Industrial Site Evaluation or its
successor ("Element") of the New Jersey Department of Environmental Protection
and Energy or its successor ("NJDEPE").
SECTION 36.2. Tenant's obligations under this paragraph shall arise if
there is any closing, terminating or transferring of operations of an industrial
establishment at the Leased Premises pursuant to ISRA, triggered by Tenant.
SECTION 36.3. Provided this Lease is not previously canceled or
terminated by either party or by operation of law, Tenant shall commence its
submission to the Element in anticipation of the end of the Lease Term no later
than one (1) year prior to the expiration of the Term or any renewal term, as
Tenant shall promptly furnish to Landlord true and complete copies of all
documents, submissions, correspondence and oral or written communications
provided by Tenant to the Element, and all documents, reports, directives,
correspondence and oral or written communications by the Element to Tenant.
Tenant shall also promptly furnish to Landlord true and complete copies of all
sampling and test results and reports obtained and prepared from samples and
tests taken at and around the Leased Premises. Tenant shall notify Landlord in
advance of all meetings scheduled between Tenant and NJDEPE, and Landlord may
attend all such meetings.
SECTION 36.4. Should the Element or any other division of NJDEPE
determine that a cleanup plan be prepared and that a cleanup be undertaken
because of a spill or discharge of a hazardous substance or waste at the Leased
Premises which occurred during the Term of the Lease as a result of Tenant's
operations or in connection with Tenant's occupancy, Tenant shall, at Tenant's
own expense, promptly prepare and submit the required plans and financial
assurances and shall promptly carry out the approved plans.
SECTION 36.5. At no expense to Landlord, Tenant shall promptly provide
all information requested by Landlord or NJDEPE for preparation of a
non-applicability affidavit, de minimis quantity exemption application, limited
conveyance application or other submission and shall promptly sign such
affidavits and submissions when requested by Landlord or NJDEPE.
SECTION 36.6. Should Tenant's operations at the Leased Premises be
outside of those industrial operations covered by ISRA, Tenant shall, at
Tenant's own expense, obtain a letter of non-applicability or de minimis
quantity exemption from the Element prior to termination of the Term and shall
promptly provide Tenant's submission and the Element's exemption letter to
Landlord.
SECTION 36.7. If Tenant fails to obtain either: (i) a non-applicability
letter; (ii) a de minimis quantity exemption; (iii) a negative declaration; or
(iv) final approval of cleanup; (collectively referred to as "ISRA Clearance")
from the Element; or fails to clean up the Leased Premises pursuant to Section
36.4 above; prior to the expiration or earlier
22
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
termination of the Lease Term, or renewal term as applicable, then upon the
expiration or earlier termination of the Lease Term, Landlord shall have the
option either to consider the Lease as having ended or to treat Tenant as a
holdover tenant in possession of the Leased Premises. If Landlord considers the
Lease as having ended, then Tenant shall nevertheless be obligated to promptly
obtain ISRA Clearance and to fulfill the obligations set forth in Section 36.4
above. If Landlord treats Tenant as a holdover tenant in possession of the
Leased Premises, then Tenant shall monthly pay to Landlord one and one-half
(1-1/2) the Annual Base Rental and Additional Rent which Tenant would otherwise
have paid, until such time as Tenant obtains ISRA Clearance and fulfills its
obligations under Section 36.4 above, and during the holdover period all of the
terms of this Lease shall remain in full force and effect.
SECTION 36.8. Tenant's use of the Leased Premises shall be restricted to
the use set forth in the "Use" Section of this Lease unless Tenant obtains
Landlord's prior written consent to any change in use of the Leased Premises.
Upon demand of Landlord but in no event later than one (1) year prior to the
expiration of the Term hereunder, Tenant shall supply to Landlord an affidavit
of an officer of Tenant ("Officer's Affidavit") setting forth Tenant's S.I.C.
numbers and a detailed description of the operations and processes Tenant will
undertake at the Leased Premises, organized in the form of a narrative report
including a description and quantification of hazardous substances and wastes to
be generated, manufactured, refined, transported, treated, stored, handled or
disposed of at the Leased Premises. Following commencement of the Lease Term,
Tenant shall notify Landlord by way of Officer's Affidavit as to any changes in
Tenant's operation, S.I.C. number or use of generation of hazardous substances
and wastes, by way of a supplemental Officer's Affidavit. Tenant shall also
supplement and update Officer's Affidavit upon each anniversary of the
Commencement of the Lease Term. Tenant shall not commence or alter any
operations at the Leased Premises prior to (i) obtaining all required operating
and discharge permits or approvals, including but not limited to air pollution
control permits and pollution discharge elimination system permits from NJDEPE,
from all governmental or public authorities having jurisdiction over Tenant's
operations or the Premises, and (ii) providing copies of permits or approvals to
Landlord.
SECTION 36.9. Tenant shall permit Landlord and Landlord's agents,
servants and employees, including but not limited to legal counsel and
environmental consultants and engineers, access to the Leased Premises for the
purposes of environmental inspections and sampling during regular business
hours, or during other hours either by agreement of the parties or in the event
of any environmental emergency. Tenant shall not restrict access to any part of
the Premises, and Tenant shall not impose any conditions to access, except that
a representative of Tenant shall accompany Landlord's agents at all times that
they are in the building on the Leased Premises. In the event that Landlord's
environmental inspection shall include sampling and testing of the Leased
Premises, Landlord shall use its best efforts to avoid interfering with Tenant's
use of the Leased Premises, and upon completion of sampling and testing shall
repair and restore the affected areas of the Leased Premises from any damage
caused by the sampling and testing.
SECTION 36.10. Tenant shall indemnify, defend and hold harmless Landlord
from all fines, suits, procedures, claims and actions of any kind arising out of
or in any way connected with any spills or discharges of hazardous substances or
wastes at the Premises arising during the Term of this Lease as a result of
Tenant's operations or in connection with Tenant's occupancy hereunder.
Additionally, Tenant shall indemnify, defend and hold harmless Landlord from and
against all claims, liabilities, losses, damages and costs, foreseen or
unforeseen, including without limitation counsel, engineering and other
professional or expert fees, which Landlord may incur by reason of Tenant's
action or non-action with regard to Tenant's obligations under this Section
36.10. Similarly,
23
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
Landlord shall indemnify Tenant from all fines, suits, procedures, claims and
actions of any kind arising out of occurrences preceding the Commencement Date
of this Lease.
SECTION 36.11. This Article 36 shall survive the expiration or earlier
termination of this Lease. Tenant's failure to abide by the terms of this
Article 36 shall be restrainable by injunction.
SECTION 36.12. Tenant shall promptly supply Landlord with copies of all
notices, reports, correspondence and submissions made by Tenant (as provided
herein) to EPA, NJDEPE, the United States Occupational Safety and Health
Administration or any other local, state or federal authority which requires
submission of any information concerning environmental matters or hazardous
wastes or substances pursuant to laws including but not limited to the New
Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. and the
regulations promulgated thereunder, (the "Spill Act"), the Worker and Community
Right to Know Act, N.J.S.A. 34:5A-1 et seq. and the regulations promulgated
thereunder, the Hazardous Substance Discharge-Reports and Notices thereunder,
the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9601 et seq. and the regulations promulgated thereunder, and the
Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. and the
regulations promulgated thereunder, in connection with the Leased Premises.
SECTION 36.13. Tenant shall promptly notify Landlord as to any liens
threatened or attached against the Leased Premises or the parcel on which they
are located pursuant to the Spill Act or any other environmental law. In the
event that such a lien is filed against the said Leased Premises, then Tenant
shall, within thirty (30) days from the date that the lien is placed against the
said Leased Premises, and at any rate prior to the date any governmental
authority commences proceedings to sell the said Premises pursuant to the lien,
either (a) pay the claim and remove the lien from the said Leased Premises; or
(b) furnish either (i) a bond satisfactory to Landlord in the amount of the
claim out of which the lien arises, or (ii) a cash deposit in the amount of the
claim out of which the lien arises, or (iii) other security satisfactory to the
Landlord in an amount sufficient to discharge the claim out of which the lien
arises.
SECTION 36.14. As a condition precedent to Tenant's right to sublease
the Leased Premises or to assign this Lease, Tenant shall, if appropriate and
necessary and at Tenant's own expense, first comply with ISRA and fulfill all of
Tenant's environmental obligations under this Lease which also arise upon
termination of Tenant's Lease Term. If this condition shall not be satisfied,
then Landlord shall have the right to withhold consent to sublease or
assignment.
ARTICLE 37. LATE CHARGE
SECTION 37.1. Tenant shall pay a "Late Charge" of five percent (5%) on
any installment of rental (or any such other charge on payment as may be
considered additional rental under this Lease Agreement) when paid more than ten
(10) days after the due date thereof, to cover the extra expense involved in
handling delinquent payments. If installments of rental are or become overdue in
excess of thirty (30) days, such amounts shall bear interest at the rate of one
and one-half percent (1 1/2%) per month.
ARTICLE 38. AIR AND LIGHT
SECTION 38.1. This Lease does not grant any rights to light and air.
24
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
ARTICLE 39. NOTICE OF FIRE AND ACCIDENTS
SECTION 39.1. Tenant shall give Landlord notice in case of fire or
accident on the Premises, or, if involving Tenant, its servants, agents,
employees, invitees or licensees, in the Building or on the Real Property, no
later than one (1) day after same, excluding Saturdays, Sundays and legal
holidays. Additionally, Tenant shall make a representative available to Landlord
for emergency access to the building and Leased Premises twenty-four (24) hours
per day, seven (7) days per week during the term of this Lease.
ARTICLE 40. EASEMENTS FOR UTILITIES
SECTION 40.1. Landlord or its designee shall have the right to erect,
use, maintain and repair, pipes, cables, conduits, plumbing, vents and wires in,
to and through the Leased Premises to the extent necessary for the use,
operation and maintenance of the Leased Premises, or the building or any portion
of the parking area. Landlord's rights under this Article shall be exercised in
such a manner as to avoid unreasonable interference with Tenant's occupancy of
the Leased Premises.
ARTICLE 41. CONSENTS AND APPROVALS
SECTION 41.1. Where any provision of this Lease requires the Landlord's
consent or approval, Landlord shall not unreasonably delay any consent or
approval.
ARTICLE 42. END OF TERM HOLDOVER
SECTION 42.1. Upon the expiration or other termination of the Term of
this Lease, Tenant shall surrender to Landlord the Leased Premises, with all
improvements in good order except for reasonable wear and tear and damage by the
elements. If the last day of the Term of this Lease falls on a Sunday, or legal
holiday, this Lease shall expire on the business day immediately following.
Tenant shall remove any of its property. Any property not removed at the
expiration of this Lease shall be deemed to have been abandoned by Tenant and
may be retained or disposed of by Landlord at Tenant's expense.
ARTICLE 43. ENTIRE UNDERSTANDING
SECTION 43.1. This Lease contains the entire agreement of the parties
concerning the Leased Premises. Any prior oral or written statements or
representations are invalid unless they are contained in this instrument. This
Lease may not be modified in any way, except by a writing executed by both
Landlord and Tenant. This agreement shall not be binding until it has been
executed and delivered by Landlord and Tenant.
ARTICLE 44. EXHIBITS
SECTION 44.1. The following exhibits are attached:
EXHIBIT A Survey, Site Plan, & Floor Plan
EXHIBIT B Cursory Specifications
EXHIBIT C Final Plans & Specifications
EXHIBIT D Proposal Dated December 23, 1996
EXHIBIT E-1 MSCP Protective Covenants
EXHIBIT E-2 MSCP Maintenance Plan
25
<PAGE>
<PAGE>
COMMERCIAL REALTY & RESOURCES AND ALGOS PHARMACEUTICAL CORPORATION
LEASE AGREEMENT
IN WITNESS WHEREOF, the parties hereto have set their hands and seals on
the date first written above.
ATTEST: COMMERCIAL REALTY &
RESOURCES CORP. (Landlord)
SIGNATURE: /s/Brian Fitzpatrick
PRINTED NAME: Brian Fitzpatrick
TITLE: Asst. Secretary
DATE: 3/31/97
SIGNATURE: /s/John Lishak
PRINTED NAME: John Lishak
TITLE: President
DATE: 3/27/97
ATTEST: ALGOS PHARMACEUTICAL
CORPORATION (Tenant)
SIGNATURE: /s/James R. Ledley
PRINTED NAME: James R. Ledley
TITLE: Assistant Secretary
DATE: 4/25/97
SIGNATURE: /s/John W. Lyle
PRINTED NAME: John W. Lyle
TITLE: President
DATE: 3/14/97
26
<PAGE>
<PAGE>
Exhibit 11. Statement Regarding Computation of Per Share Earnings
<TABLE>
<CAPTION>
For the three months end
March 31,
---------------------------
1996 1997
---- ----
<S> <C> <C>
Net loss $ (567,965) $(3,224,778)
Weighted average number of common shares outstanding:
Weighted average number of common shares outstanding 6,121,333 15,780,288
Common shares issuable upon conversion of preferred stock 5,930,750
Incremental common shares outstanding from the exercise
of stock options granted within one year of
initial public offering 258,686
----------- ------------
12,310,769 15,780,288
=========== ============
Net loss per common share $ (0.05) $ (0.20)
=========== ============
</TABLE>
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 31,358,089
<SECURITIES> 6,873,705
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 38,446,260
<PP&E> 76,634
<DEPRECIATION> 0
<TOTAL-ASSETS> 46,579,714
<CURRENT-LIABILITIES> 1,475,654
<BONDS> 0
<COMMON> 158,144
0
1,000
<OTHER-SE> 44,944,916
<TOTAL-LIABILITY-AND-EQUITY> 46,579,714
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 3,782,096
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> (3,224,778)
<INCOME-TAX> 0
<INCOME-CONTINUING> (3,224,778)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,224,778)
<EPS-PRIMARY> (.20)
<EPS-DILUTED> 0
</TABLE>
