UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the Quarter Ended March 31, 2002 Commission File No. 0-12957
[LOGO]ENZON, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-2372868
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
20 Kingsbridge Road, Piscataway, New Jersey 08854
(Address of principal executive offices) (Zip Code)
(732) 980-4500
(Registrant's telephone number, including area code:)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes |X| No |_|
As of May 10, 2002, there were 42,999,673 shares of common stock, par value $.01
per share, outstanding.
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
ENZON, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
March 31, 2002 and June 30, 2001
March 31, 2002 June 30, 2001
(unaudited) *
------------- -------------
ASSETS
Current assets:
Cash and cash equivalents $ 128,623,024 $ 310,223,837
Short-term investments 34,197,312 129,520,083
Accounts receivable 20,495,041 11,087,748
Inventories 2,344,505 1,852,144
Other current assets 4,504,474 2,837,199
------------- -------------
Total current assets 190,164,356 455,521,011
------------- -------------
Property and equipment 18,754,368 13,181,671
Less accumulated depreciation and amortization 9,845,386 9,761,999
------------- -------------
8,908,982 3,419,672
------------- -------------
Other assets:
Marketable securities 326,574,444 76,634,780
Cost method equity investments 40,040,777 40,777
Debt issue costs, net 11,403,523 12,774,951
Patents and other assets, net 1,628,668 1,284,626
------------- -------------
379,647,412 90,735,134
------------- -------------
Total assets $ 578,720,750 $ 549,675,817
============= =============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 4,618,149 $ 4,670,259
Accrued expenses 4,404,376 4,740,081
Accrued interest 4,500,000 --
------------- -------------
Total current liabilities 13,522,525 9,410,340
------------- -------------
Accrued rent 561,582 581,438
Royalty advance-Aventis 694,814 694,814
Notes payable 400,000,000 400,000,000
------------- -------------
401,256,396 401,276,252
------------- -------------
Stockholders' equity:
Preferred stock-$.01 par value, authorized 3,000,000 shares; issued and
outstanding 7,000 shares at March 31, 2002 and June 30, 2001 (liquidation
preference aggregating $340,000
at March 31, 2002 and $333,000 at June 30, 2001) 70 70
Common stock-$.01 par value, authorized 90,000,000 shares, issued
and outstanding 42,998,347 shares at March 31, 2002 and
41,990,859 shares at June 30, 2001 429,984 419,909
Additional paid-in capital 262,540,017 257,682,479
Accumulated other comprehensive (loss) income (4,303,108) 884,935
Deferred compensation (1,278,958) (1,509,171)
Accumulated deficit (93,446,176) (118,488,997)
------------- -------------
Total stockholders' equity 163,941,829 138,989,225
------------- -------------
Total liabilities and stockholders' equity $ 578,720,750 $ 549,675,817
============= -------------
* Condensed from audited financial statement.
The accompanying notes are an integral part of these unaudited consolidated
condensed financial statements.
2
ENZON, INC.
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
Three and Nine Months Ended March 31, 2002 and 2001
(Unaudited)
Three months ended Nine months ended
March 31, March 31,
2002 2001 2002 2001
------------ ----------- ------------ -----------
Revenues:
Net sales $ 5,729,330 $ 5,382,060 $ 16,683,135 $14,964,832
Royalties 14,072,174 2,410,200 33,688,960 3,701,897
Contract revenue 42,649 2,139,494 217,548 2,457,784
------------ ----------- ------------ -----------
Total revenues 19,844,153 9,931,754 50,589,643 21,124,513
------------ ----------- ------------ -----------
Costs and expenses:
Cost of sales 1,376,450 988,380 4,222,870 2,860,592
Research and development expenses 5,062,732 3,684,268 12,548,297 8,829,537
Selling, general and administrative expenses 3,658,621 2,640,889 12,305,403 8,228,926
------------ ----------- ------------ -----------
Total costs and expenses 10,097,803 7,313,537 29,076,570 19,919,055
------------ ----------- ------------ -----------
Operating income 9,746,350 2,618,217 21,513,073 1,205,458
------------ ----------- ------------ -----------
Other income (expense):
Interest income 3,892,568 2,255,642 14,819,789 6,420,343
Interest expense (4,956,895) -- (14,871,764) --
Other income 3,217,878 1,483 3,217,878 13,352
------------ ----------- ------------ -----------
2,153,551 2,257,125 3,165,903 6,433,695
------------ ----------- ------------ -----------
Income before taxes 11,899,901 4,875,342 24,678,976 7,639,153
Tax benefit 267,174 632,879 363,845 577,603
------------ ----------- ------------ -----------
Net income $ 12,167,075 $ 5,508,221 $ 25,042,821 $ 8,216,756
------------ =========== ------------ ===========
Basic earnings per common share $ 0.28 $ 0.13 $ 0.59 $ 0.20
============ =========== ============ ===========
Diluted earnings per common share $ 0.28 $ 0.13 $ 0.57 $ 0.19
============ =========== ============ ===========
Weighted average number of common shares
outstanding basic 42,969,222 41,802,586 42,635,799 41,490,866
============ =========== ============ ===========
Weighted average number of common shares and dilutive
potential common shares outstanding 43,933,865 43,718,044 43,899,449 43,509,342
============ =========== ============ ===========
The accompanying notes are an integral part of these unaudited consolidated
condensed financial statements.
3
ENZON, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
Nine Months Ended March 31, 2002 and 2001
(Unaudited)
Nine Months Ended
March 31, March 31,
2002 2001
------------- ------------
Cash flows from operating activities:
Net income $ 25,042,821 $ 8,216,756
Adjustment for depreciation and amortization, including debt issue costs 2,022,995 414,487
Non-cash expense for issuance of common stock 230,213 --
Loss on retirement of assets 3,832 22
Amortization of bond premium/discount (2,978,323) (725,311)
Decrease in accrued rent (19,856) (19,857)
Increase in royalty advance - Aventis -- 3,134
Changes in assets and liabilities (7,905,247) (10,439,859)
------------- ------------
Net cash provided by (used in) operating activities 16,396,435 (2,550,628)
------------- ------------
Cash flows from investing activities:
Capital expenditures (6,038,248) (854,726)
Purchase of cost method equity investments (40,000,000) --
Proceeds from sale of marketable securities 252,249,000 19,600
Maturities of marketable securities 88,365,387 33,488,000
Purchases of marketable securities (497,441,000) (41,009,000)
------------- ------------
Net cash used in investing activities (202,864,861) (8,356,126)
------------- ------------
Cash flows from financing activities
Proceeds from exercise of common stock options 4,867,613 4,767,984
------------- ------------
Net decrease in cash and cash equivalents (181,600,813) (6,138,770)
Cash and cash equivalents at beginning of period 310,223,837 31,935,410
------------- ------------
Cash and cash equivalents at end of period $ 128,623,024 $ 25,796,640
============= ============
The accompanying notes are an integral part of these unaudited consolidated
condensed financial statements.
4
ENZON, INC. AND SUBSIDIARIES
Notes To Consolidated Condensed Financial Statements
(Unaudited)
(1) Organization and Basis of Presentation
The unaudited consolidated condensed financial statements have been
prepared from the books and records of Enzon, Inc. and its subsidiaries in
accordance with accounting principles generally accepted in the United States of
America for interim financial information. Accordingly, they do not include all
of the information and footnotes required for complete annual financial
statements. In the opinion of management, all adjustments (consisting only of
normal and recurring adjustments) considered necessary for a fair presentation
have been included. Certain prior year balances were reclassified to conform to
the 2002 presentation. Interim results are not necessarily indicative of the
results that may be expected for the year.
(2) Comprehensive Income
The following table reconciles net income to comprehensive income:
Three Months ended Nine Months ended
March 31, March 31,
2002 2001 2002 2001
------------ ---------- ------------ ----------
Net income $ 12,167,000 $5,508,000 $ 25,043,000 $8,217,000
Other comprehensive income (loss):
Unrealized holding gain (loss) arising
during the period on securities (3,036,000) 1,189,000 (5,188,000) 1,189,000
------------ ---------- ------------ ----------
Total other comprehensive income
(loss) (3,036,000) 1,189,000 (5,188,000) 1,189,000
------------ ---------- ------------ ----------
Total comprehensive income $ 9,131,000 $6,697,000 $ 19,855,000 $9,406,000
============ ========== ============ ==========
(3) Earnings Per Common Share
Basic earnings per share is computed by dividing the net income available
to common shareholders adjusted for cumulative undeclared preferred stock
dividends for the relevant period, by the weighted average number of shares of
Common Stock issued and outstanding during the periods. For purposes of
calculating diluted earnings per share for the three and nine months ended March
31, 2002 and 2001 the denominator includes both the weighted average number of
shares of Common Stock outstanding and the number of dilutive Common Stock
equivalents. The number of dilutive Common Stock equivalents includes the effect
of non-qualified stock options calculated using the treasury stock method, the
number of shares issuable upon conversion of the outstanding Series A preferred
stock and the unvested shares of restricted stock which have been issued. The
number of shares issuable upon conversion of the Company's 4.5% Convertible
Subordinated Notes due 2008 (the "Notes") have not been included as the effect
of their inclusion would be antidilutive. As of March 31, 2002, the Company had
6,536,000 dilutive potential common shares outstanding that could potentially
dilute future earnings per share calculations.
5
ENZON, INC. AND SUBSIDIARIES
Notes To Consolidated Condensed Financial Statements
(Unaudited)
The following table reconciles the basic and diluted earnings per share
calculation:
Three months ended Nine months ended
March 31, March 31,
2002 2001 2002 2001
----------- ----------- ----------- -----------
Net income $12,167,000 $ 5,508,000 $25,043,000 $ 8,217,000
Less: Preferred stock dividends 4,000 4,000 11,000 11,000
----------- ----------- ----------- -----------
Net income available to common
stockholders $12,163,000 $ 5,504,000 $25,032,000 $ 8,206,000
=========== =========== =========== ===========
Weighted average number of
common shares issued and
outstanding - basic 42,969,222 41,802,586 42,635,799 41,490,866
Effect of dilutive common stock
equivalents:
Conversion of preferred stock 16,000 16,000 16,000 16,000
Assumed exercise of non-qualified
stock options 948,643 1,899,458 1,247,650 2,002,476
----------- ----------- ----------- -----------
43,933,865 43,718,044 43,899,449 43,509,342
=========== =========== =========== ===========
(4) Inventories
The composition of inventories at March 31, 2002 and June 30, 2001 is as
follows:
March 31, June 30,
2002 2001
---------- ----------
Raw materials $ 800,000 $ 421,000
Work in process 1,321,000 737,000
Finished goods 224,000 694,000
---------- ----------
$2,345,000 $1,852,000
(5) Cash Flow Information
The Company considers all highly liquid securities with original
maturities of three months or less to be cash equivalents. Cash payments for
interest were approximately $9,000,000 for the nine months ended March 31, 2002.
There were no cash payments for interest for the nine months ended March 31,
2001. There were no income tax payments made for the nine months ended March 31,
2002 and 2001.
6
ENZON, INC. AND SUBSIDIARIES
Notes To Consolidated Condensed Financial Statements
(Unaudited)
(6) Stock Option Plans
During the nine months ended March 31, 2002, we issued 882,583 stock
options at an average exercise price of $52.94 per share under our Non-Qualified
Stock Option Plan, as amended, of which 550,000 were granted to executive
officers and 78,333 were granted to non-employee directors of the Company. None
of the options granted during the period are exercisable as of March 31, 2002.
Of the total options granted, 645,000 contain accelerated vesting provisions,
under which the vesting and exercisability of such shares will accelerate if the
closing price of the Company's common stock exceeds $100 per share for at least
twenty consecutive trading days as reported by the NASDAQ National Market. All
options were granted with exercise prices that equaled or exceeded the fair
market value of the underlying stock on the date of grant.
On December 4, 2001, the stockholders approved a proposal to adopt the
Company's 2001 Incentive Stock Plan and to reserve 2,000,000 shares for issuance
under such plan.
(7) Stockholder's Equity
On December 4, 2001, the stockholders voted to amend the Company's
Certificate of Incorporation to increase the authorized shares of common stock
from 60,000,000 to 90,000,000.
(8) Income Taxes
The Company expects to be profitable for the year ending June 30, 2002,
and accordingly has recognized a tax provision for the three and nine months
ended March 31, 2002 of $238,000 and $493,000, respectively. The tax provision
represents the Company's anticipated Alternative Minimum Tax liability based on
the anticipated fiscal 2002 taxable income. The tax provision was offset by a
sale of a portion of the Company's New Jersey state net operating loss carry
forwards. During the nine months ended March 31, 2002 and March 31, 2001, the
Company recognized a tax benefit of $857,000 and $728,000 resulting from the
sale of approximately $10,888,000 and $9,255,000, respectively, of its state net
operating loss carry forwards.
(9) Business Segments
A single management team that reports to the Chief Executive Officer
comprehensively manages the business operations. The Company does not operate
separate lines of business or separate business entities with respect to any of
its approved products or product candidates. In addition, the Company does not
conduct any operations outside of the United States. The Company does not
prepare discrete financial statements with respect to separate product areas.
Accordingly, the Company does not have separately reportable segments as defined
by Statement of Financial Accounting Standards No. 131, "Disclosures about
Segments of an Enterprise and Related Information".
(10) Collaborative Agreements
Schering-Plough
In August 2001, the Company's development partner for PEG-INTRON(R),
Schering-Plough Corporation, received approval from the United State Food and
Drug Administration (FDA) for PEG-INTRON for use in combination therapy with
REBETOL(R) capsules for the treatment of chronic hepatitis C. In October 2001,
Schering-Plough announced the U.S. launch of PEG-INTRON and REBETOL combination
therapy for the treatment of chronic hepatitis C. Under its licensing agreement
with Schering-Plough, Enzon is entitled to royalties on worldwide sales of
PEG-INTRON. The royalties received on these sales are recognized when earned.
Inhale Therapeutics
In January 2002, the Company entered into a broad strategic alliance with
Inhale Therapeutic Systems, Inc. that includes the following components:
7
ENZON, INC. AND SUBSIDIARIES
Notes To Consolidated Condensed Financial Statements
(Unaudited)
o The companies agreed to enter into a collaboration to jointly
develop three products to be specified over time using Inhale's
Inhance(TM) pulmonary delivery platform and SEDS(TM) supercritical
fluids platform. Inhale will be responsible for formulation
development, delivery system supply, and in some cases, early
clinical development. Enzon will have responsibility for most
clinical development and for commercialization.
o The two companies also agreed to collaborate on the development of
single-chain antibody (SCA(R)) products to be administered by the
pulmonary route.
o Enzon granted to Inhale the exclusive right to grant sub-licenses
under Enzon's PEG patents to third parties. Enzon will receive a
share of profits for certain products that currently incorporate
Enzon's branched PEG technology and royalties on sales of products
that are subject to new sub-licenses that Inhale grants to its
partners under Enzon's PEG patents. Enzon retains the right to use
all of its PEG technology for its own product portfolio, as well as
those products it develops in co-commercialization collaborations
with third parties.
o Enzon purchased $40 million of newly issued Inhale convertible
preferred stock in January 2002. The preferred stock is convertible
into Inhale common stock at a conversion price of $22.79 per share.
In the event Inhale's common stock price three years from the date
of issuance of the preferred stock or earlier in certain
circumstances is less than $22.79, the conversion price will be
adjusted down, although in no event will it be less than $18.23 per
share. Conversion of the preferred stock into common stock can occur
anywhere from 1 to 4 years following the issuance of the preferred
stock or earlier in certain circumstances. The preferred stock
investment will be accounted for under the cost method.
o The two companies also agreed in January 2002 to a settlement of the
patent infringement suit filed in 1998 by Enzon against Inhale's
subsidiary, Shearwater Polymers, Inc. Inhale will receive licensing
access to the contested patents under a cross-license agreement.
Enzon received a one-time payment of $3 million from Inhale to cover
expenses incurred in defending Enzon's branched PEG patents which is
included in other income.
(11) Leases
In March 2002, the Company entered into a lease for a facility in
Bridgewater, NJ which will serve as its corporate headquarters. This 19,000
square-foot space will be occupied by executive and administrative staff. The
lease has a term of five years, followed by one five year renewal option period.
Future minimum lease payments associated with this lease are as follows
(these costs do not include the Company's other operating lease commitments):
Year Ending June 30,
--------------------
2002 $ 39,000
2003 470,000
2004 470,000
2005 472,000
2006 489,000
2007 and thereafter 449,000
------------------- ----------
$2,389,000
==========
8
ENZON, INC. AND SUBSIDIARIES
Notes To Consolidated Condensed Financial Statements
(Unaudited)
(12) Subsequent Events
In April 2002 the Company entered into a multi-year strategic
collaboration with Micromet AG, a private company. The companies have agreed to
combine their patent estates and complementary expertise in single-chain
antibody (SCA) technology to create a leading platform of therapeutic products
based on antibody fragments. The companies will establish a new R&D Unit located
at Micromet's research facility in Germany. The unit will be staffed initially
with 25 scientists and plans to be fully operational by the end of calendar year
2002. In conjunction with this collaboration, Enzon will eliminate its SCA
operations and will incur a one-time charge of $500,000 to $750,000 in the
fourth quarter of fiscal year 2002. The Company and Micromet plan to share
equally the costs of research and development, and share the revenues generated
from technology licenses and from future commercialization of any developed
products. Enzon also purchased an $8 million convertible note issued by
Micromet. The note is convertible to Micromet stock at a price of $1,015 per
share, carries an interest rate of 3% and is payable in March 2006 if it is not
converted.
9
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
Information contained herein contains "forward-looking statements" which can be
identified by the use of forward-looking terminology such as "believes,"
"expects," "may," "will," "should," or "anticipates" or the negative thereof or
other variations thereon or comparable terminology, or by discussions of
strategy. We cannot assure you that the future results covered by the
forward-looking statements will be achieved. The matters set forth in the "Risk
Factors" section of the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 2001, which is incorporated herein by reference, constitute
cautionary statements identifying important factors with respect to such
forward-looking statements, including certain risks and uncertainties, that
could cause actual results to vary materially from the future results indicated
in such forward-looking statements. Other factors could also cause actual
results to vary materially from the future results indicated in such
forward-looking statements.
Results of Operations
Three months ended March 31, 2002 vs. Three months ended March 31, 2001
Revenues. Revenues for the three months ended March 31, 2002 increased by 100%
to $19,844,000, as compared to $9,932,000 for the three months ended March 31,
2001. The components of revenues are sales of our products, royalties we earn on
the sales of products by others, and contract revenues. Sales increased by 6% to
$5,729,000 for the three months ended March 31, 2002, as compared to $5,382,000
for the three months ended March 31, 2001. This increase was primarily due to
increased ONCASPAR sales. Sales of ONCASPAR during the three months ended March
31, 2002 declined compared to the three months ended December 31, 2001 by 12% or
$306,000 as we limited distribution of the product to only the approved
indication, due to a shortage of L-asparaginase, a raw material used in the
product. Additional supplies of L-asparaginase were received from our supplier
in the three months ended March 31, 2002, and we expect the distribution
restriction to be lifted during the three months ending June 30, 2002. Sales of
ADAGEN increased by 6% for the three months ended March 31, 2002 to $3,492,000
as compared to $3,307,000 for the three months ended March 31, 2001.
Royalties for the three months ended March 31, 2002, increased to
$14,072,000 as compared to $2,410,000 in the prior year. The increase was
primarily due to the commencement of sales of PEG-INTRON in combination with
REBETOL(R) in the U.S. and increased sales in Europe. Schering-Plough, our
marketing partner for PEG-INTRON, began selling PEG-INTRON in the European Union
in June 2000 and in the U.S. in February 2001. PEG-INTRON also received
marketing approval for use in combination with REBETOL for the treatment for
chronic hepatitis C in the European Union in March 2001 and in the U.S. in
August 2001. Schering-Plough launched PEG-INTRON as combination therapy with
REBETOL in the U.S. in October 2001.
We expect ADAGEN sales to grow at similar levels as achieved for the
current quarter over the next year. Royalties on PEG-INTRON are expected to
increase as Schering-Plough continues the roll out of PEG-INTRON in combination
with REBETOL in the U.S. We also expect to receive a lower revenue stream for
ONCASPAR in future quarters when Aventis resumes distribution of the product and
our revenue stream reverts back to the 27.5% royalty on sales.
During the three months ended March 31, 2002, we had export sales and
royalties on export sales of $6,870,000, of which $6,492,000 were in Europe.
Export sales and royalties recognized on export sales for the prior year quarter
were $2,979,000, of which $2,769,000 were in Europe.
Contract revenue for the three months ended March 31, 2002 decreased by
98% to $43,000 as compared to $2,139,000 in the same period in the prior year.
Contract revenue for the three months ended March 31, 2001 included a $2,000,000
milestone payment from our development partner Schering-Plough which was earned
as a result of the FDA's approval of PEG-INTRON during such quarter.
10
Cost of Sales. Cost of sales, as a percentage of sales increased to 24% for the
three months ended March 31, 2002 as compared to 18% for the prior year. This
increase was due to lower cost of goods sold during the prior year, as certain
finished goods which had previously been reserved for due to certain previously
disclosed manufacturing problems related to ONCASPAR were cleared and sold in
the prior year.
Research and Development. Research and development expenses increased by 37% to
$5,063,000 for the three months ended March 31, 2002 from $3,684,000 for the
same period last year. The increase was primarily due to increased clinical
trial costs for PROTHECAN (PEG-camptothecin) and PEG-paclitaxel and increased
payroll and related expenditures. Research and development activities are
expected to continue to increase significantly as we continue the advancement of
the current and additional Phase II clinical trials for PROTHECAN, we continue
our Phase I clinical trials for PEG-paclitaxel and we conduct pre-clinical and
clinical trials for additional compounds.
Selling, General and Administrative. Selling, general and administrative
expenses for the three months ended March 31, 2002 increased by 39% to
$3,659,000, as compared to $2,641,000 in 2001. The increase was primarily due to
increased payroll and related expenditures.
Other Income/Expense. Interest income for the three months ended March 31, 2002
increased to $3,893,000, as compared to $2,256,000 for the prior year. The
increase in interest income was attributable to the increase in interest bearing
investments primarily due to the issuance of $400,000,000 of 4.5% convertible
subordinated notes during June 2001. Other income increased to $3,218,000
primarily due to a $3,000,000 payment from Inhale Therapeutics related to the
settlement of the patent infringement suit against Inhale's subsidiary
Shearwater Polymers, Inc. This one-time payment was reimbursement for expenses
incurred in defending Enzon's branched PEG patent. Interest expense increased to
$4,957,000 for the three months ended March 31, 2002 due to the issuance of the
$400,000,000 in 4.5% convertible subordinated notes in June 2001.
Provision for taxes. We expect to be profitable for the year ending June 30,
2002, and accordingly have recognized a tax provision for the three months ended
March 31, 2002. The tax provision represents our anticipated Alternative Minimum
Tax liability based on our anticipated fiscal 2002 taxable income. The tax
provision was offset by the sale of a portion of our New Jersey State net
operating loss carry forwards. During the quarter ended March 31, 2002 and March
31, 2001, we recognized a tax benefit of $505,000 and $728,000 from the sale of
approximately $6,410,000 and $9,255,000, respectively, of our state net
operating loss carry forwards. A tax provision of $238,000 for the quarter ended
March 31, 2002 and $95,000 for the quarter ended March 31, 2001 was recorded.
Nine months ended March 31, 2002 vs. Nine months ended March 31, 2001
Revenues. Revenues for the nine months ended March 31, 2002 increased by 139% to
$50,590,000 as compared to $21,125,000 for the same period last year. The
components of revenues are sales, which consist of our sales of products and
royalties we earn on the sale of products by others, and contract revenues.
Sales increased by 6% to $16,683,000 for the nine months ended March 31, 2002,
as compared to $14,965,000 for the prior year. The increase was due to increased
ONCASPAR sales. The increase in ONCASPAR sales was due to the lifting of FDA
imposed distribution and labeling restrictions, which were in place during a
substantial portion of the prior year period. ADAGEN sales for the nine months
ended March 31, 2002 and 2001 were $9,745,000 and $9,796,000, respectively.
Royalties for the nine months ended March 31, 2002, increased to
$33,689,000 as compared to $3,702,000 in the prior year period. The increase was
primarily due to the commencement of sales of PEG-INTRON in combination with
REBETOL in the U.S. and increased sales of PEG-INTRON in Europe. Schering-Plough
launched PEG-INTRON as combination therapy with REBETOL in the U.S. in October
2001.
Contract revenue for the nine months ended March 31, 2002 decreased by 98%
to $217,000 as compared to $2,458,000 in the same period in the prior year. This
decrease was related primarily to a $2,000,000 milestone payment from our
development partner Schering-Plough which was earned as a result of the FDA'a
approval of PEG-INTRON in the nine months ended March 31, 2001.
11
During the nine months ended March 31, 2002, we had export sales and
royalties on export sales of $18,872,000, of which $17,679,000 were in Europe.
Export sales and royalties recognized on export sales for the prior year period
were $6,669,000, of which $6,148,000 were in Europe.
Cost of Sales. Cost of sales, as a percentage of sales increased to 25% for the
nine months ended March 31, 2002, as compared to 19% for the nine months ended
March 31, 2001. This increase was due to lower cost of goods sold during the
prior year period as certain finished goods, which had previously been reserved
for due to the previously disclosed manufacturing problems related to ONCASPAR,
were cleared and sold in the prior year.
Research and Development. Research and development expenses increased by 42% to
$12,548,000, as compared to $8,830,000 for the nine months ended March 31, 2001.
The increase was primarily due to increased clinical trial costs for PROTHECAN
and PEG-paclitaxel and increased payroll and related expenditures.
Selling, General and Administrative. Selling, general and administrative
expenses for the nine months ended March 31, 2002 increased by 50% to
$12,305,000, as compared to $8,229,000 in the prior year. The increase was
primarily due to (i) increased payroll and related expenditures, (ii) increased
costs related to patent litigation with Shearwater Polymers, Inc., and (iii)
costs related to the identification and review of potential strategic alliances
to gain access to technologies, products and companies.
Other Income/Expense. Interest income for the nine months ended March 31, 2002
increased to $14,820,000, as compared to $6,420,000 for the prior year. The
increase in interest income was primarily due to the increase in interest
bearing investments as a result of the issuance of $400,000,000 of 4.5%
convertible subordinated notes during June 2001. Other income increased to
$3,218,000 primarily due to a $3,000,000 payment from Inhale Therapeutics due to
the settlement of the patent infringement suit against Inhale's subsidiary
Shearwater Polymers, Inc. This one-time payment was reimbursement for expenses
incurred in defending Enzon's branched PEG patent. Interest expense increased to
$14,872,000 for the nine months ended March 31, 2002 due to the issuance of the
$400,000,000 in 4.5% convertible subordinated notes in June 2001.
Provision for taxes. We expect to be profitable for the year ending June 30,
2002, and accordingly we have recognized a tax provision for the nine months
ended March 31, 2002. The tax provision represents our anticipated Alternative
Minimum Tax liability based on our anticipated fiscal 2002 taxable income. The
tax provision was offset by the sale of a portion of our New Jersey State net
operating loss carry forwards. During the nine months ended March 31, 2002 and
March 31, 2001 we recognized a tax benefit of $857,000 and $728,000 from the
sale of approximately $10,888,000 and $9,255,000, respectively, of our state net
operating loss carry forwards. A tax provision of $493,000 for the nine months
ended March 31, 2002 and $150,397 for the nine months ended March 31, 2001 was
recorded.
Liquidity and Capital Resources
Total cash reserves, which include cash, cash equivalents and marketable
securities, were $489,395,000 as of March 31, 2002, as compared to $516,379,000
as of June 30, 2001. The decrease in total cash reserves was due to the purchase
of $40 million of Inhale Therapeutics convertible preferred stock as part of the
strategic alliance entered into in January 2002. We invest our excess cash
primarily in United States government-backed securities.
As of March 31, 2002, we had $400,000,000 of 4.5% convertible subordinated
notes outstanding. The notes bear interest at an annual rate of 4.5%. Interest
is payable on January 1 and July 1 of each year beginning January 1, 2002.
Accrued interest on the notes was approximately $4,500,000 as of March 31, 2002.
The holders may convert all or a portion of the notes into common stock at any
time on or before July 1, 2008. The notes are convertible into our common stock
at a conversion price of $70.98 per share, subject to adjustment in certain
events. The notes are subordinated to all existing and future senior
indebtedness. On or after July 7, 2004, we may redeem any or all of the notes at
specified redemption prices, plus accrued and unpaid interest to the day
preceding the redemption date. The notes will mature on July 1, 2008 unless
earlier converted, redeemed at our option or redeemed at the option of the
noteholder upon a fundamental change, as described in the indenture for the
notes.
12
Neither we nor any of our subsidiaries are subject to any financial covenants
under the indenture. In addition, neither we nor any of our subsidiaries are
restricted under the indenture from paying dividends, incurring debt, or issuing
or repurchasing our securities.
To date, our sources of cash have been the proceeds from the sale of our
stock through public offerings and private placements, the issuance of the 4.5%
convertible subordinated notes, sales of and royalties on sales of ADAGEN,
ONCASPAR and PEG-INTRON, sales of our products for research purposes, contract
research and development fees, technology transfer and license fees and royalty
advances.
Under our amended license agreement with Aventis, we received a payment of
$3,500,000 in advance royalties in January 1995. Royalties due under the amended
license agreement will be offset against an original credit of $5,970,000, which
represents the royalty advance plus reimbursement of certain amounts due Aventis
under the original agreement and interest expense, before cash payments will be
made under the agreement. The royalty advance is shown as a long-term liability.
The corresponding current portion of the advance is included in accrued expenses
on the consolidated balance sheets. We will reduce the advance as royalties are
recognized under the agreement. Through March 31, 2002, an aggregate of
$4,307,000 in royalties payable by Aventis has been offset against the original
credit.
As of March 31, 2002, 1,043,000 shares of Series A preferred stock had
been converted into 3,325,000 shares of common stock. Accrued dividends on the
converted Series A preferred stock in the aggregate of $3,770,000 were settled
by the issuance of 235,000 shares of common stock and cash payments of
$1,947,000. The preferred shares outstanding at March 31, 2002 are convertible
into approximately 16,000 shares of common stock. Dividends accrue on the
remaining outstanding shares of Series A preferred stock at a rate of $14,000
per year. As of March 31, 2002, there were accrued and unpaid dividends totaling
$168,000 on the 7,000 shares of Series A preferred stock outstanding. We have
the option to pay these dividends in either cash or common stock.
Our current sources of liquidity are cash, cash equivalents, marketable
securities and interest earned on such cash reserves, sales of and royalties
earned on sales of ADAGEN, ONCASPAR and PEG-INTRON, and license fees. Based upon
our currently planned research and development activities and related costs and
our current sources of liquidity, we anticipate our current cash reserves will
be sufficient to meet our capital, debt service and operational requirements for
the foreseeable future.
We may seek additional financing, such as through future offerings of
equity or debt securities or agreements with collaborators with respect to the
development and commercialization of products, to fund future operations and
potential acquisitions. We cannot assure you, however, that we will be able to
obtain additional funds on acceptable terms, if at all.
In January 2002, we purchased $40 million of newly issued Inhale
convertible preferred stock. The preferred stock is convertible into Inhale
common stock at a conversion price of $22.79 per share. In the event Inhale's
common stock price three years from the date of issuance of the preferred stock,
or earlier in certain circumstances, is less than $22.79, the conversion price
will be adjusted down, although in no event will it be less than $18.23 per
share.
In March 2002, we entered into a lease for a 19,000 square feet facility
located in Bridgewater, NJ that will serve as our corporate headquarters. The
lease has a term of 5 years, followed by one five year renewal option period.
The future minimum lease payments are approximately $2,389,000 throughout the
five year term of the lease. Total other commitments for operating leases total
$5,059,000 through the year 2007.
In April 2002, we entered into a multi-year strategic collaboration with
Micromet AG, a private company to combine our patent estates and complementary
expertise in single-chain antibody (SCA) technology to create a leading platform
of therapeutic products based on antibody fragments. As part of the
collaboration, we purchased an $8 million note issued by Micromet. The note is
convertible to Micromet stock at a price of $1,015 per share,
13
carries an interest rate of 3% and is due March 2006.
Critical Accounting Policies
In December 2001, the SEC requested that all registrants discuss their
most "critical accounting policies" in management's discussion and analysis of
financial condition and results of operations. The SEC indicated that a
"critical accounting policy" is one which is both important to the portrayal of
the company's financial condition and results and requires management's most
difficult, subjective or complex judgments, often as a result of the need to
make estimates about the effect of matters that are inherently uncertain. We
believe the following accounting policy to be critical:
Revenue Recognition. We have formed collaborative research and development
agreements and alliances with several pharmaceutical companies. These agreements
are in the form of research and development and license option agreements. The
agreements are for both early and late stage compounds. For the early stage
compounds, the agreements are relatively short-term agreements that are
renewable depending on the success of the compounds as they move through
preclinical development. The agreements call for milestone payments on achieving
significant milestone events, and in some cases ongoing research funding. The
agreements also contemplate royalty payments on sales if and when the compound
receives FDA marketing approval.
In accordance with Staff Accounting Bulletin No. 101 ("SAB 101") Revenue
Recognition in Financial Statements, upfront payments are recorded as deferred
revenue and recognized over the estimated service period. If the estimated
service period is subsequently modified, the period over which the upfront fee
is recognized is modified accordingly on a prospective basis. Nonrefundable
revenue from the achievement of research and development milestones, which
represent the achievement of a significant step in the research and development
process, are recognized when and if the specific milestones are achieved. None
of the payments received to date are refundable regardless of the outcome of the
project. Research funding is recorded in the period during which the expenses
covered by the funding occurred.
Recently Issued Accounting Standards
In July 2001, the FASB issued SFAS No. 141, Business Combinations, and
SFAS No. 142, Goodwill and Other Intangible Assets. SFAS 141 requires that all
business combinations be accounted for under a single method - the purchase
method. Use of the pooling-of-interests method no longer is permitted. SFAS 141
requires that the purchase method be used for business combinations initiated
after June 30, 2001. SFAS 142 requires that goodwill no longer be amortized to
earnings, but instead be reviewed for impairment. SFAS 142 which will officially
be adopted July 1, 2002, has no impact on our historical financial statements as
we do not have any goodwill or intangible assets, which resulted from business
combinations.
In August 2001, the FASB issued SFAS No. 143, Accounting for Asset
Retirement Obligations, which addresses financial accounting and reporting for
obligations associated with the retirement of tangible long-lived assets and the
associated asset retirement obligation as a liability in the period in which it
incurs a legal obligation associated with the retirement of tangible long-lived
assets. Since the requirement is to recognize the obligation when incurred,
approaches that have been used in the past to accrue the asset retirement
obligation over the life of the asset are no longer acceptable. SFAS 143 also
requires the enterprise to record the contra to the initial obligation as an
increase to the carrying amount of the related long-lived asset (i.e., the
associated asset retirement costs) and to depreciate that cost over the life of
the asset. The liability is increased at the end of each period to reflect the
passage of time (i.e., accretion expense) and changes in the estimated future
cash flows underlying the initial fair value measurement. Enterprises are
required to adopt SFAS 143 for fiscal years beginning after June 15, 2002. We
are in the process of evaluating SFAS 143 and the effect that it will have on
our consolidated financial statements and current impairment policy, but we do
not expect any material effect.
14
In August 2001, the FASB issued SFAS No. 144, Accounting for the
Impairment or Disposal of Long-Lived Assets. SFAS 144 requires that one
accounting model be used for long-lived assets to be disposed of by sale,
whether previously held and used or newly acquired. SFAS 144 is effective for
fiscal years beginning after December 15, 2001 and interim periods within those
fiscal years.
Item 3. Quantitative and Qualitative Disclosures About Market Risk
The following discussion about our exposure to market risk of financial
instruments contains forward-looking statements. Actual results may differ
materially from those described.
Our holdings of financial instruments are comprised of debt securities,
and time deposits. All such instruments are classified as securities
available-for-sale. We do not invest in portfolio equity securities or
commodities or use financial derivatives for trading purposes. Our debt security
portfolio represents funds held temporarily pending use in our business and
operations. We manage these funds accordingly. We seek reasonable assuredness of
the safety of principal and market liquidity by investing in rated fixed income
securities while at the same time seeking to achieve a favorable rate of return.
Our market risk exposure consists principally of exposure to changes in interest
rates. Our holdings are also exposed to the risks of changes in the credit
quality of issuers. We typically invest the majority of our investments in the
shorter-end of the maturity spectrum, and at March 31, 2002 all of our holdings
were in instruments maturing in four years or less.
The table below presents the principal amounts and related weighted
average interest rates by year of maturity for our investment portfolio as of
March 31, 2002.
2002 2003 2004 2005 2006 Total
----------- ----------- ------------ ------------ ------------ ---------------
Fixed Rate $14,109,000 $71,207,000 $ 76,937,000 $122,693,000 $ 80,129,000 $ 365,075,000
Average Interest Rate 6.18% 2.41% 3.48% 3.80% 4.37% 3.68%
----------- ----------- ------------ ------------ ------------ ---------------
$14,109,000 $71,207,000 $ 76,937,000 $122,693,000 $ 80,129,000 $ 365,075,000
=========== =========== ============ ============ ============ ===============
Our 4.5% convertible subordinated notes in the principal amount of
$400,000,000 due July 1, 2008 have fixed interest rates. The fair value of fixed
interest rate convertible notes is affected by changes in interest rates and by
changes in the price of our common stock.
15
PART II OTHER INFORMATION
Item 1. Legal Proceedings
On January 7, 2002, we settled our previously reported patent infringement
lawsuit against Shearwater Polymers, Inc. a wholly-owned subsidiary of Inhale
Therapeutic Systems, Inc. for a description of the terms on certain agreements
entered into in connection with such settlement, see Note 9 to the unaudited
financial statements included in Item 1 of Part I hereof.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits (numbered in accordance with Item 601 of Regulation S-K).
Page Number
or
Exhibit Incorporation
Number Description By Reference
------ ----------- ------------
3(i) Certificate of Incorporation as amended ~~
3(ii) By laws, as amended *(4.2)
3(iv) Certificate of Amendment to Certificate of Incorporation of Enzon, #
Inc. dated December 4, 2001
4.1 Indenture dated as of June 26, 2001, between the Company and
Wilmington Trust Company, as trustee, including the form of
4 1/2% Convertible Subordinated Note due 2008 attached as
Exhibit A thereto ++++(4.1)
4.2 Registration Rights Agreement dated as of June 26, 2001, between the
Company and the initial purchasers ++++(4.2)
10.1 Form of Change of Control Agreements dated as of January 20, 1995
entered into with the Company's Executive Officers ###(10.2)
10.2 Lease - 300-C Corporate Court, South Plainfield, New Jersey ***(10.3)
10.3 Lease dated April 1, 1995 regarding 20 Kingsbridge Road,
Piscataway, New Jersey ###(10.7)
10.4 Lease 300A-B Corporate Court, South Plainfield, New Jersey ++(10.10)
10.5 Form of Stock Purchase Agreement between the Company and the
purchasers of the Series A Cumulative Convertible Preferred Stock +(10.11)
10.6 Employment Agreement with Peter G. Tombros dated as of
August 10, 2000 //(10.15)
10.7 Stock Purchase Agreement dated as of June 30, 1995 ~(10.16)
10.8 Independent Directors' Stock Plan ~~~(10.24)
10.9 Underwriting Agreement dated March 20, 2000 with Morgan Stanley
& Co. Inc., CIBC World Markets Corp., and SG Cowen Securities
Corporation /(10.29)
10.10 Employment Agreement dated May 9, 2001, between the Company
and Arthur J. Higgins ///(10.30)
10.11 Amendment dated May 23, 2001, to Employment Agreement between
the Company and Arthur J. Higgins dated May 9, 2001 ///(10.31)
10.12 Form of Restricted Stock Award Agreement between the Company and
Arthur J. Higgins ////(4.3)
10.13 Form of Employee Retention Agreement dated as of August 3, 2001
between the Company and certain key employees +++
10.14 Lease - 685 Route 202/206, Bridgewater, New Jersey o
10.15 Employment Agreement with Ulrich Grau dated as of March 6, 2002 o
10.16 Amendment dated May 31, 2001 to Employment Agreement between o
the Company and Peter G. Tombros
o Filed herewith.
* Previously filed as an exhibit to the Company's Registration
Statement on Form S-2 (File No. 33-34874) and incorporated
herein by reference thereto.
*** Previously filed as an exhibit to the Company's Registration
Statement on Form S-18 (File No. 2-88240-NY) and incorporated
herein by reference thereto.
+ Previously filed as an exhibit to the Company's Registration
Statement on Form S-1 (File No. 33-39391) filed with the
Commission and incorporated herein by reference thereto.
++ Previously filed as an exhibit to the Company's Annual Report
on Form 10-K for the fiscal year ended June 30, 1993 and
incorporated herein by reference thereto.
+++ Previously filed as an exhibit to the Company's Annual Report
on Form 10-K for the fiscal year ended June 30, 2001 and
incorporated herein by reference thereto.
++++ Previously filed as an exhibit to the Company's Registration
Statement on Form S-3 (File No. 333-67509) filed with the
Commission and incorporated herein by reference thereto.
## Previously filed as an exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended December 31, 1997
and incorporated herein by reference thereto.
### Previously filed as an exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1995 and
incorporated herein by reference thereto.
~ Previously filed as an exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended December 31, 1995
and incorporated herein by reference thereto.
~~ Previously filed as an exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended March 31, 1996 and
incorporated herein by reference thereto.
~~~ Previously filed as an exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended December 31, 1996
and incorporated herein by reference thereto.
/ Previously filed as an exhibit to the Company's Registration
Statement on Form S-3 (File No. 333-30818) filed with the
Commission and incorporated herein by reference thereto.
// Previously filed as an exhibit to the Company's Annual Report
on Form 10-K for the year ended June 30, 2000 and incorporated
herein by reference thereto.
/// Previously filed as an exhibit to the Company's Current Report
on Form 8-K filed with the Commission on June 13, 2001 and
incorporated herein by reference thereto.
//// Previously filed as an exhibit to the Company's Registration
Statement on Form S-8 (File No. 333-64110) filed with the
Commission and incorporated herein by reference thereto.
# Previously filed as an exhibit to the Company's Quarterly
Report on Form 10-Q for the quarter ended December 31, 2001
and incorporated herein by reference thereto.
(b) Reports on Form 8-K.
On January 8, 2002 we filed with the Commission a current report on Form
8-K dated January 7, 2002 reporting under Item 5 our broad strategic alliance
with Inhale Therapeutic Systems, Inc.
On January 16, 2002 we filed with the Commission a Current Report on Form
8-K dated January 16, 2002 reporting under Item 5 that Schering-Plough believes
that the Access Assurance Program will soon need to transition to a wait list
for newly enrolling patients in the U.S. initially.
On February 26, 2002 we filed with the Commission a Current Report on Form
8-K dated February 25, 2002 reporting under Item 5 that Robert Parkinson, Jr.
was elected to the Board of Directors.
On February 26, 2002 we filed with the Commission a Current Report on Form
8-K dated February 26, 2002 reporting under Item 5 that Inhale Therapeutic
Systems, Inc. entered into two licensing agreements which will involve Enzon's
proprietary PEG technology.
On March 7, 2002 we filed with the Commission a Current Report on Form 8-K
dated March 7, 2002 that Schering-Plough would remove a large block of patients
from the PEG-INTRON Access Assurance Program wait list since the program was
transitioned to a wait-list system in January 2002.
On March 19, 2002 we filed with the Commission a Current Report on Form
8-K dated March 18, 2002 reporting under Item 5 that Ulrich M. Grau, Ph.D. was
appointed as the Company's Chief Scientific Officer.
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.
ENZON, INC.
(Registrant)
Date: May 15, 2002 By: /s/ Arthur J. Higgins
---------------------------------
Arthur J. Higgins
Chairman, President and
Chief Executive Officer
(Principal Executive Officer)
By: /s/ Kenneth J. Zuerblis
---------------------------------
Kenneth J. Zuerblis
Vice President, Finance,
Chief Financial Officer
(Principal Financial
and Accounting Officer) and
Corporate Secretary
Exhibit 10.14
LEASE AND LEASE AGREEMENT, dated as of March 27, 2002, between ROUTE 206
ASSOCIATES, a New Jersey partnership, with offices at 520 Route 22, P.O. Box
6872, Bridgewater, NJ 08807 (the "Landlord"), and ENZON, INC., a Delaware
corporation, with an office at 20 Kingsbridge Road, Piscataway, NJ 08854 (the
"Tenant").
Subject to all the terms and conditions set forth below, the Landlord and the
Tenant hereby agree as follows:
1. Definitions.
Certain terms and phrases used in this Agreement (generally those whose first
letters are capitalized) are defined in Exhibit E attached hereto and, as used
in this Agreement, they shall have the respective meanings assigned or referred
to in that exhibit.
2. Lease of the Leased Premises.
2.1. The Landlord shall, and hereby does, lease to the Tenant, and the Tenant
shall, and hereby does, accept and lease from the Landlord, the Leased Premises
during the Term. The Leased Premises consist of 18,809 square feet of gross
rentable floor space on the third floor of 685 Route 202/206, Bridgewater, New
Jersey as more fully described in the definition of Leased Premises set forth in
Exhibit E attached hereto.
2.2. The Landlord shall, and hereby does, grant to the Tenant, and the Tenant
shall, and hereby does, accept from the Landlord, the non-exclusive right to use
the Common Facilities during the Term for itself, its employees, other agents
and Guests in common with the Landlord, any tenants of Other Leased Premises,
any of their respective employees, other agents and guests and such other
persons as the Landlord may, in the Landlord's sole discretion, determine from
time to time.
3. Rent.
3.1. The Tenant shall punctually pay the Rent for the Leased Premises for the
Term to the Landlord in the amounts and at the times set forth below, without
bill or other demand and without any offset, deduction or, except as may be
otherwise specifically set forth in this Agreement, abatement whatsoever.
3.2. The Basic Rent for the Leased Premises during the Initial Term shall be at
the rate per year set forth below.
Years Annual Rate Monthly Installments
----- ----------- --------------------
one through three $470,225.04 $39,185.42
four and five $489,034.08 $40,752.84
The annual rate of Basic Rent for the Leased Premises during any Renewal
Term shall be calculated as set forth in subsection 6.1.4 of this Agreement for
the respective Renewal Term.
3.3. The Tenant shall punctually pay the applicable Basic Rent in equal monthly
installments in advance on the first day of each month during the Term, with the
exception of Basic Rent for the first full calendar month of the Initial Term.
The Tenant shall pay the Basic Rent for the first full calendar month of the
Initial Term upon execution and delivery of this Agreement. The Tenant shall
punctually pay the Basic Rent for a period of less than a full calendar month at
the beginning of the Term on the Commencement Date.
3.4. The Basic Rent and the Additional Rent for any period of less than a full
calendar month shall be prorated. In the event that any installment of Basic
Rent cannot be calculated by the time payment is due, such portion as is then
known or calculable shall be then due and payable; and the balance shall be due
thirty (30) days next following the Landlord's giving notice to the Tenant of
the amount of the balance due, subject to Tenant's right to make inquiry
regarding said calculation and receive reasonable back-up documentation from
Landlord with respect thereto.
3.5. The Additional Rent for the Leased Premises during the Term shall be
promptly paid by the Tenant in the respective amounts and at the respective
times set forth in this Agreement.
3.6. That portion of any amount of Rent or other amount due under this Agreement
which is not paid within five (5) days next following the date that such amount
is first due shall incur a late charge equal to the sum of: (i) five percent of
that portion of any amount of Rent or other amount due under this Agreement
which is not so paid, and (ii) interest on that portion of any amount of Rent or
other amount due under this Agreement which is not paid within five (5) days
next following the date that such amount is first due at the Base Rate(s) in
effect from time to time plus two additional percentage points from the day such
portion is first due through the day of receipt thereof by the Landlord. Any
such late charge due from the Tenant shall be due immediately upon invoicing.
4. Term.
4.1. The Initial Term shall commence on the Commencement Date and shall continue
for five years from the beginning of the Initial Year, unless sooner terminated
in accordance with section 24 of this Agreement. The Term shall commence on the
Commencement Date and shall continue until the later of the conclusion of the
Initial Term or the conclusion of any Renewal Term, unless sooner terminated in
accordance with section 24 of this Agreement. Anything herein contained to the
contrary notwithstanding, if (i) the Work is being done exclusively by
contractors selected and retained by the Landlord and (ii) the conditions set
forth in subsection 4.2 of this Agreement shall not have been satisfied by July
1, 2002 (the "Outside Date"), then in that event, Tenant shall have the right at
any time thereafter, at its option, upon ten (10) days prior written notice to
Landlord, to terminate this Lease and any and all obligations hereunder, and
receive a prompt refund of its Security Deposit and prepaid rents provided that
the termination shall be ineffective if the conditions set forth in subsection
4.2 of this Agreement shall have been satisfied within the ten (10) period. The
Outside Date shall be deferred one day for each day that delivery of the Tenant
Plan occurs after the Tenant Plan Due Date. Anything herein contained to the
contrary notwithstanding, if (i) the Work is being done exclusively by
contractors selected and retained by the Landlord and (ii) the required permits
for the performance of the Work are not issued by the authorities having
jurisdiction by May 15, 2002, notwithstanding Landlord's good faith efforts to
secure the same, then Landlord shall have the right to terminate this Lease by
written notice dispatched to Tenant on or before May 20, 2002. If required
permits for the performance of the Work are not issued by the authorities having
jurisdiction by June 3, 2002, then Tenant shall have the right to terminate this
Lease by written notice dispatched to Landlord on or before June 10, 2002;
provided that these dates shall be deferred one day for each day that delivery
of the Tenant Plan occurs after the Tenant Plan Due Date. If either party
terminates this Lease pursuant to the foregoing two sentencest, Tenant shall be
entitled to receive a prompt refund of its Security Deposit and prepaid rents.
4.2. Unless one or more of the conditions contemplated by subsection 4.3 of this
Agreement occurs, the Commencement Date shall be the later of:
4.2.1. the Target Date; or
4.2.2. ten (10) days after the date that the last of each of the
following conditions set forth in this
- 2 -
subsection 4.2.2 of the Agreement that is specifically
applicable shall have occurred:
4.2.2.1. if the Work is being performed exclusively by
contractors selected and retained by the Landlord,
the date the Leased Premises can first be legally
occupied for its intended use pursuant to a
temporary or permanent certificate of occupancy;
4.2.2.2. the Work is substantially completed (except for
(i) any long lead time items that may be required
that can not be delivered to the Leased Premises
in sufficient time to be incorporated into the
work in proper sequence and (ii) any preparation
work that is not being performed exclusively by
contractors selected and retained by the
Landlord); and
4.2.2.3. the Landlord can deliver actual and exclusive
possession of the Leased Premises, free of rubbish
and debris, to the Tenant (except for any
contractors not selected and retained by the
Landlord and their rubbish and debris).
4.2.2.4. Within ten (10) days of the execution of this
Lease, each party agrees to notify the other party
of the name and telephone number of its
construction representative for the project. The
ten (10) day period specified in subsection 4.2.2
shall commence when the Landlord's construction
representative notifies the Tenant's construction
representative that the conditions set forth in
subsection 4.2.2 of this Agreement will be met.
4.2.2.5. The Commencement Date shall occur even though no
temporary or permanent certificate of occupancy
has been issued if the issuance of the certificate
of occupancy is delayed because any work which is
being performed by contractors engaged by Tenant
is incomplete or fails to meet applicable code
requirements (a "Completion Delay").
4.2.2.6. If a Completion Delay occurs then, when the
Completion Delay is removed by Tenant, the
Landlord shall remain responsible promptly to
secure a certificate of occupancy. If the
certificate of occupancy is a temporary
certificate, the Landlord shall remain responsible
promptly to correct and complete any items
necessary to secure an unconditional certificate
of occupancy.
4.3. In the event one or more of the conditions contemplated by this subsection
4.3 of the Agreement occurs, notwithstanding anything to the contrary set forth
in subsection 4.2 of this Agreement, the Commencement Date shall be the earliest
applicable date specified below:
4.3.1. the earliest date the Tenant takes any of the following
actions shall be the Commencement Date in the event the Tenant
takes possession of the Leased Premises for the operation of
its business; it being agreed that anything in this Lease
contained to the contrary notwithstanding, Tenant shall have
access to the Leased Premises on a rent-free basis for thirty
(30) days prior to the Commencement Date for purposes of
taking measurements, installing cabling and wiring and
furniture, furnishings and equipment;
4.3.2. the Target Date in the event the Tenant does not timely: (i)
deliver the Tenant Plan to the Landlord by the Tenant Plan Due
Date and (ii) sign and return the notice contemplated by the
second sentence of subsection 5.3 of this Agreement to the
Landlord; or
4.3.3. the date that the last of the conditions set forth in
subsection 4.2.2 of this Agreement that is specifically
applicable shall have occurred if (i) the Tenant shall have
made a written
- 3 -
request to Landlord to complete the work before the Target
Date and (ii) Landlord shall have done so.
4.4. Once it is ascertained in accordance with subsections 4.2 and 4.3 of this
Agreement, the Landlord shall give prompt notice of the Commencement Date to the
Tenant; and if the Tenant does not object thereto by notice given to the
Landlord within 10 days of the Landlord's notice, the date set forth in the
Landlord's notice shall thereafter be conclusively presumed to be the
Commencement Date.
5. Preparation of the Leased Premises.
5.1. The Tenant shall cause the Tenant Plan to be prepared and shall deliver the
complete Tenant Plan to the Landlord not later than the Tenant Plan Due Date.
The Tenant Plan shall be prepared at the Tenant's expense which shall be
reimbursable from the Allowance. It shall include the details specified in the
definition of Tenant Plan and the location and extent of any special floor
loading; special air conditioning requirements, if any; plumbing requirements,
if any; and estimated total electrical load, including lighting requirements,
lighting switch requirements and electrical outlet requirements, if any, in
excess of the building standard being provided by the Landlord, setting forth
the amount of the load, locations and types.
5.2. The Landlord shall cause the work required to complete the Tenant Plan (the
"Work") to be performed by the Landlord or the Landlord's contractors in a good
and workmanlike manner substantially in accordance with the Tenant Plan
utilizing the Allowance to pay the price of the Work. The price shall include 5%
of the Landlord's contractors' aggregate price for the Landlord's overhead and
5% of the contractor's aggregate price as the Landlord's general contracting
fee, but only to the extent that the cost of the Work, as agreed by Landlord and
Tenant in writing, exceeds the total amount of the Allowance. If the cost of the
Work including the fees exceeds the Allowance, Tenant shall pay the balance of
such price to the Landlord in proportion to the progress of such work, as and
when billed by the Landlord at convenient intervals, with payment of any
remaining final balance due from the Tenant prior to the Commencement Date. If
the cost of the Work is less than the Allowance, the balance shall be credited
to Base Rent first falling due, until exhausted. The Work shall not include the
installation of any telecommunications or computer wiring or the cost thereof.
Tenant, at its expense, may install its own security system regulating access to
the Leased Premises but, in such event (i) Tenant must provide the names and
contact numbers for employees available to provide access for emergency services
on a 24 hour per day basis; (ii) Tenant must arrange for access for the cleaning
contractor and its personnel at the normal times which such contractor and its
personnel perform their services; (iii) Tenant must supply access information to
the Bridgewater Fire Department so that they can gain access in an emergency;
and (iv) Tenant must comply with the requirements of section 13 of this
Agreement.
5.3. Prior to commencing the work, within ten (10) business days of receipt of
the Tenant Plan Landlord shall provide a quote of the price to perform the Work.
Within five (5) days of receipt of the quote from Landlord, Tenant shall
confirm, in writing, that the price is acceptable. If Tenant is not satisfied
with the price and the parties are unable to agree upon the price then the
Tenant shall be free to engage its own contractors to perform the work provided
that Tenant shall select the heating, air-conditioning, sprinkler and electrical
contractors from a list of qualified contractors furnished to Tenant by
Landlord. In such event, Tenant shall secure all permits and perform the work in
a good and workmanlike manner in accordance with all applicable codes and secure
a certificate of occupancy. Landlord shall advance the Allowance at reasonable
intervals within not more than ten (10) days following Tenant's draw request, as
the Work progresses.
5.4. Within four (4) weeks of the Commencement Date, Landlord shall also perform
the work required by the Work Letter set forth in Exhibit C at no cost to the
Tenant.
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6. Options.
6.1 Tenant is hereby granted one option to renew this Lease for one five year
period upon the following terms and conditions:
6.1.1 At the time of the exercise of the option to renew and at the
time of said renewal, (a) the Tenant shall not be in default
following the delivery of notice and the expiration of all
applicable cure periods in accordance with the terms and
provisions of this Lease; and (b) Tenant shall occupy and be
in operation at the entire Leased Premises pursuant to this
Lease subject to approved subleases or sublease permitted
hereby and subject to arrangements contemplated by Section
17.7, below.
6.1.2 Notice of the exercise of the option shall be sent to the
Landlord in writing at least nine (9) months before the
expiration of the Initial Term.
6.1.3 The Renewal Term shall be for a period of five years to
commence at the expiration of the Initial Term, and all of the
terms and conditions of this Agreement, other than the amount
of Annual Rent, shall apply during any such renewal term.
6.1.4 Subject to the last sentence of this paragraph, the Annual
Rent to be paid during the Renewal Term shall be $545,460.96
payable in equal monthly installments of $45,455.08.
6.2. Tenant is hereby granted the following additional rights:
6.2.1. If Landlord learns that the suite contiguous to the Leased
Premises will become available, it shall first offer the same
to Tenant by written notice. This is the "Right of First
Offer". The notice shall contain the terms upon which the
space is offered including the basic rent, the commencement
date, the term, the allowance, if any, and any other terms
which Landlord proposes. If Tenant wishes to lease the space
on the terms offered, it shall notify the Landlord in writing
within seven (7) business days of Tenant's receipt of such
written notice setting forth all of the above-required
information, and, thereupon, Tenant shall be bound to lease
the same on the same terms as are set forth in this Agreement
modified by the specific terms which are set forth in
Landlord's notice. Tenant shall execute a lease amendment to
incorporate these terms including an obligation to execute a
Commencement Date certificate and estoppel certificates. If
Tenant fails to serve the written acceptance of the offer
within the seven (7) business day period, the Right of First
Offer shall thereupon expire and be of no further force and
effect. Notwithstanding the provisions of the preceding
sentence, the Right of First Offer shall revive if Landlord
does not consummate a lease with another tenant within five
(5) months after the expiration of the Right of First Offer as
above provided or if Landlord proposes to enter into a lease
with another tenant on terms which are materially more
favorable than the terms offered to Tenant. For this purpose,
the terms shall be considered materially more favorable if the
net effective rent offered to the other tenant is ninety-two
and one-half (92.5%) percent, or less, than the net effective
rent offered to Tenant or if the term offered to the other
tenant is eighty percent , or less, of the term offered to
Tenant. With respect to any further offers required under this
provision, if Tenant fails to serve a written acceptance of
the offer within a five (5) business day period following
receipt of Landlord's written offer, the Right of First Offer
shall, with respect to such offer, thereupon expire and be of
no further force and effect.
6.2.2. Until Landlord lets the available space in the basement,
Tenant may notify Landlord that it elects to lease the same
for the balance of the Term. This is the "Additional Right of
First
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Offer". After service of a notice electing to lease the
basement space, Tenant shall be bound to lease the same for
the balance of the Term for $13 per foot per year payable in
equal monthly installments. An amendment to this Agreement
shall be executed incorporating the storage space. The
inclusion of the storage space shall not change the Tenant's
Share. Tenant, at its expense, shall be responsible to install
the necessary fencing, lighting, outlets and switches and
other modifications required by applicable law for the use of
the storage space. Tenant shall comply with the provisions of
applicable law and the provisions of this Agreement including,
without limitation, section 12 in performing the work and in
the occupancy of the storage space. The storage space shall be
used primarily for storage of records and other office
equipment and supplies. If Landlord leases the basement space
to other tenants before service of a notice from the Tenant
exercising this Additional Right of First Offer, the
Additional Right of First Offer shall thereupon expire and be
of no further force and effect.
7. Use and Occupancy.
7.1. The Tenant may only occupy and use the Leased Premises during the Term
exclusively as a general office and such other ancillary and accessory uses as
are consistent with applicable codes.
7.2. In connection with the Tenant's use and occupancy of the Leased Premises
and use of the Common Facilities, the Tenant shall observe, and the Tenant shall
cause the Tenant's employees, other agents and Guests to observe, each of the
following:
7.2.1. the Tenant shall not do, or permit or suffer the doing of,
anything which might have the effect of creating an increased
risk of, or damage from, fire, explosion or other casualty;
7.2.2. the Tenant shall not do, or permit or suffer the doing of,
anything which would have the effect of (a) increasing any
premium for any liability, property, casualty or excess
coverage insurance policy otherwise payable by the Landlord or
(b) making any such types or amounts of insurance coverage
unavailable or less available to the Landlord;
7.2.3. to the extent they are not inconsistent with this Agreement,
the Tenant and the Tenant's employees, other agents and Guests
shall comply with the Building Rules and Regulations attached
hereto as Exhibit D, and with any changes made therein by the
Landlord if, with respect to any such changes, the Landlord
shall have given notice of the particular changes to the
Tenant and such changes shall not materially adversely affect
the conduct of the Tenant's business in the Leased Premises;
diminish the Tenant's rights under this Agreement or increase
Tenant's expenses under this Agreement;
7.2.4. the Tenant and the Tenant's employees, other agents and Guests
shall not create, permit or continue any Nuisance in or around
the Leased Premises, the Other Leased Premises, the Building,
the Common Facilities and the Property;
7.2.5. The Tenant and the Tenant's employees, other agents and Guests
shall not permit the Leased Premises to be regularly occupied
by more persons than are permitted by applicable codes. If the
Leased Premises are occupied by more than one individual per
200 square feet of usable floor space of the Leased Premises
then Tenant shall be responsible for any supplemental heating,
cooling and ventilation which may be required and the
performance of the heating and cooling systems according to
the specifications set forth in subsection 8.1.5 of this
Agreement is not guaranteed;
7.2.6. the Tenant and the Tenant's employees, other agents and Guests
shall comply with all
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Federal, state and local statutes, ordinances, rules,
regulations and orders as they pertain to the Tenant's
particular method or manner of use and occupancy of the Leased
Premises, to the conduct of the Tenant's business and to the
use of the Common Facilities, except that this subsection
shall not require the Tenant to make any changes that may be
required thereby that are generally applicable to commercial
office tenancies or to the Building as a whole;
7.2.7. the Tenant and the Tenant's employees, other agents and Guests
shall comply with the requirements of the Board of Fire
Underwriters (or successor organization) and of any insurance
carriers providing liability, property, casualty or excess
insurance coverage regarding the Property, the Building, the
Common Facilities or any portions thereof, and any other
improvements on the Property, except that this subsection
shall not require the Tenant to make any changes that may be
required thereby that are generally applicable to commercial
office tenancies or to the Building as a whole;
7.2.8. the Tenant and the Tenant's employees, other agents and Guests
shall not bring or discharge any material or substance (solid
liquid or gaseous) which is a Hazardous Substance, or conduct
any activity, in or on the Property, the Building, the Common
Facilities or the Leased Premises that shall have been
identified:
(i) by the scientific community, or
(ii) by any Federal, state or local statute (including,
without limiting the generality of the foregoing, the
Spill Compensation and Control Act (58 N.J.S.A. 10-23.11
et seq.); the Industrial Site Recovery Act ("ISRA")(13
N.J.S.A. 1 K-6 et seq.); the Resource Conservation and
Recovery Act of 1976 (42 U.S.C. 6901 et seq.) as
amended; the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (42 U.S.C. 9601
et seq.); the Federal Water Pollution Control Act/Clean
Water Act (33 U.S.C. 1251 et seq.); the Clean Water Act
(33 U.S.C. 1251 et seq.); the Clean Air Act (42 U.S.C.
7401 et seq.); the Toxic Substances Control Act (15
U.S.C. 2601 et seq.); the Hazardous Materials
Transportation Act (49 U.S.C. 5101 et seq.) and the Safe
Drinking Water Act (42 U.S.C. 300f through 300j) as
amended, and the regulations adopted and publications
promulgated pursuant to said laws; and in any revisions
or successor codes as toxic or hazardous to health or to
the environment ("Environmental Laws") As used herein,
"Hazardous Substance" means any material or substance
which is toxic, ignitable, reactive, or corrosive; or
which is defined as "hazardous waste", "extremely
hazardous waste" or a "hazardous substance" by
Environmental Laws; or which is an asbestos,
polychlorinated biphenyl or a petroleum product; or
which is regulated by Environmental Laws;
7.2.9. the Tenant and the Tenant's employees, other agents and Guests
shall not draw electricity in the Leased Premises in excess of
the rated capacity of the electrical conductors and safety
devices including, without limiting the generality of the
foregoing, circuit breakers and fuses, by which electricity is
distributed to and throughout the Leased Premises and, without
the prior written consent of the Landlord in each instance,
shall not connect any fixtures, appliances or equipment to the
electrical distribution system serving the Building and the
Leased Premises other than typical professional office
equipment such as minicomputers, microcomputers, typewriters,
copiers, telephone systems, coffee machines and table top
microwave ovens, none of which, considered individually and in
the aggregate, overall and per fused or circuit breaker
protected circuit, shall exceed the above
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limits. The electric system is designed to deliver an average
of 8 watts per rentable square foot of which 2 watts is
lighting, in addition to the power for Base Building HVAC. The
Tenant Plan shall provide for any necessary circuitry for
microwave ovens and any other kitchen equipment;
7.2.10. on a timely basis the Tenant shall pay directly and promptly
to the respective taxing authorities any taxes (other than
Taxes) charged, assessed or levied exclusively on Tenant's
personal property within the Leased Premises or arising
exclusively from the Tenant's use and occupancy of the Leased
Premises; and
7.2.11. the Tenant shall not initiate any appeal or contest of any
assessment or collection of Taxes for any period without, in
each instance, the prior written consent of the Landlord
which, without being deemed unreasonable, the Landlord may
withhold if the Building was not 90% occupied by paying
tenants throughout that period or if the Tenant is not joined
by tenants of Other Leased Premises that leased throughout
that period, and that are then leasing, at least 80% of all
Other Leased Premises, determined by their gross rentable
floor space.
8. Utilities, Services, Maintenance and Repairs.
8.1. The Landlord shall provide or arrange for the provision of:
8.1.1. such maintenance and repair of the Building (except the Leased
Premises and Other Leased Premises); the Common Facilities;
and the heating, ventilation and air conditioning systems (but
not including supplemental cooling installed by or at the
request of Tenant), any plumbing systems and the electrical
systems in the Building, the Common Facilities, the Leased
Premises and Other Leased Premises all as is customarily
provided for first class office buildings in the immediate
area;
8.1.2. maintenance and repair of the Leased Premises, except for
refinishing walls and wall treatments, base, ceilings, floor
treatments and doors in general from time to time or for
gouges, spots, marks, damage or defacement caused by anyone
other than the Landlord, its employees and other agents, and
except for the Tenant's furniture, furnishings, equipment and
other property;
8.1.3. such garbage removal from the Building and the Common
Facilities and such janitorial services for the Building, the
Leased Premises and Other Leased Premises as is customarily
provided for first class office buildings in the immediate
area including, without limitation, removal of trash and
properly prepared recycling from the Leased Premises;
8.1.4. the electricity required for the operation of the Building,
the Property and the Common Facilities during Regular Business
Hours and, on a reduced service basis, during other than
Regular Business Hours, and, at all times, the electricity
required for the Leased Premises;
8.1.5. such heat, ventilation and air conditioning (but not including
supplemental cooling installed by or at the request of Tenant)
for the Building, the Leased Premises and Other Leased
Premises as is customarily provided for first class office
buildings in the immediate area for the comfortable use of the
Building during Regular Business Hours. Except as otherwise
provided, so long as the outside conditions are no worse than
those listed below, the heating and cooling systems shall
perform to the following specifications:
Inside Conditions Outside Conditions
----------------- ------------------
Cooling Season: 78(Degree)F dry bulb 94(Degree)F dry bulb
+/-2(Degree) RH 50% +/-5% 73(Degree)F wet bulb
Heating Season: 70(Degree)F +/-2(Degree) dry bulb:maximum 13(Degree)F dry bulb;
- 8 -
8.1.6. water (including heated water) to the Building and, if the
appropriate plumbing has been installed therein, to the Leased
Premises;
8.1.7. sewage disposal for the Building;
8.1.8. passenger elevator service for the Building, 24 hours, 365
days per year;
8.1.9. snow clearance from, and sweeping of, Parking Facilities and
private access roads which are part of the Property or the
Common Facilities;
8.1.10. the maintenance of landscaping which is part of the Property
or the Common Facilities; and
8.1.11. Landlord shall use commercially reasonable efforts to provide
full cafeteria service on the first floor of the Building
serving five (5) days each week and seating not fewer than 90
patrons at any given time in its adjacent seating area. If the
cafeteria is reduced in size or eliminated then the Basic Rent
per foot shall be adjusted downward by the same amount by
which the Base Year Operating Expenses is reduced. The Basic
Rent shall be re-determined by multiplying the adjusted Gross
Footage by the adjusted Basic Rent per foot.
8.2. Except as specifically set forth in subsection 8.1 of this Agreement, the
Tenant shall maintain and repair the Leased Premises and keep the Leased
Premises in as good condition and repair, reasonable wear and use excepted, as
the Leased Premises are upon the completion of any improvements contemplated by
section 5 of this Agreement.
9. Allocation of the Expense of Utilities, Services, Maintenance, Repairs and
Taxes.
9.1. All Tenant Electric Charges shall be borne by the Tenant. It is agreed that
the Tenant Electric Charges are $1.50 per square foot per year, subject to the
provisions of subsection 10.10 of this Agreement.
9.2. Between the Commencement Date and the end of the No Pass Through Period,
the Tenant's Share of all Operational Expenses and Taxes incurred during such
period shall be borne by the Landlord.
9.3. Between the day after the end of the No Pass Through Period and the end of
the Term, the Tenant's Share of Operational Expenses and Taxes incurred during
each annual or shorter period ending on (a) December 31 of each year and (b) the
end of the Term shall be borne as follows:
9.3.1. the Tenant's Share of: Operational Expenses and Taxes incurred
during each such period of 12 months (or shorter period), up
to the amounts of Base Year Operational Expenses and Base Year
Taxes, respectively (or proportional amount thereof for
periods shorter than 12 months), shall be borne by the
Landlord; and
9.3.2. the Tenant's Share of: the amounts by which Operational
Expenses and Taxes incurred during each such period of 12
months (or shorter period) exceed Base Year Operational
Expenses and Base Year Taxes, respectively (or proportional
amount thereof for periods
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shorter than 12 months) shall be allocated to, and borne by,
the Tenant as more specifically set forth in section 10 of
this Agreement.
10. Computation and Payment of Allocated Expenses of Utilities, Services,
Maintenance, Repairs, Taxes and Capital Expenditures.
10.1. Subject to Tenant's right to request and promptly obtain from Landlord
detailed back-up information, Tenant's right to contest in good faith amounts
invoiced by Landlord, and Tenant's right to audit and inspect Landlord's books
and records, all as more fully hereinafter provided, the Tenant shall promptly
pay the following additional amounts to the Landlord at the respective times set
forth below:
10.1.1. commencing with the first day after the end of the No Pass
Through Period, and on the first day of each month thereafter
during the Term, one-twelfth of the Tenant's Share of the
amount by which Taxes for the then current calendar year
exceeds Base Year Taxes, computed in accordance with
subsection 10.5 of this Agreement. When Landlord knows of
facts which cause a revision of the estimate, it may serve a
revised estimate and, for the balance of the current calendar
year, the estimated payments shall be made accordingly;
10.1.2. within thirty (30) days of the Landlord's giving notice to the
Tenant after the close of each calendar year closing during
the Term, commencing with the first calendar year closing
after the close of the No Pass Through Period, and after the
end of the Term, the Tenant's Share of the difference between
the Landlord's previously projected amount of Taxes for such
period and the actual amount of Taxes for such period, in
either case in excess of Base Year Taxes, computed in
accordance with subsection 10.6 of this Agreement (unless such
difference is a negative amount, in which case the Landlord
shall credit such difference against any amounts next due from
the Tenant under subsections 10.1.1 and 10.5 of this
Agreement) or refund such amount to Tenant if at the
expiration of the Term;
10.1.3. commencing with the first day after the end of the No Pass
Through Period, and on the first day of each month thereafter
during the Term, one-twelfth of the Tenant's Share of the
amount by which Operational Expenses for the then current
calendar year exceed Base Year Operational Expenses, computed
in accordance with subsection 10.7 of this Agreement. When
Landlord knows of facts which cause a revision of the
estimate, it may serve a revised estimate and, for the balance
of the current calendar year, the estimated payments shall be
made accordingly;
10.1.4. within thirty (30) days of the Landlord's giving notice to the
Tenant after the close of each calendar year closing during
the Term, commencing with the first calendar year closing
after the close of the No Pass Through Period, and after the
end of the Term, the Tenant's Share of the difference between
the Landlord's previously projected amount of Operational
Expenses for such period and the actual amount of Operational
Expenses for such period, in either case in excess of Base
Year Operational Expenses, computed in accordance with
subsection 10.8 of this Agreement (unless such difference is a
negative amount, in which case the Landlord shall credit such
difference against any amounts next due from the Tenant under
subsections 10.1.3 and 10.7 of this Agreement) or refund such
amount to Tenant if at the expiration of the Term;
10.1.5. commencing with the first day of the first month after the
Landlord gives any notice contemplated by subsection 10.9 of
this Agreement to the Tenant and continuing on the first day
of each month thereafter until the earlier of (a) the end of
the Term or (b) the last month of the useful life set forth in
the respective notice, one-twelfth of the Tenant's Share
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of any Annual Amortized Capital Expenditure, computed in
accordance with subsection 10.9 of this Agreement;
10.1.6. on the first day of each month during the Term, the monthly
Tenant Electric Charges, set forth in section 9.1 of this
Agreement as the same may be revised in accordance with
subsection 10.10 of this Agreement; and
10.1.7. promptly as and when billed therefor by the Landlord, the
amount of any expense which would otherwise fall within the
definition of Operational Expenses, but which is specifically
paid or incurred by the Landlord for operation and maintenance
of the Building, the Common Facilities or the Property outside
Regular Business Hours at the specific request of the Tenant.
10.2. "Operational Expenses" means all expenses paid or incurred by the Landlord
in connection with the Property, the Building, the Common Facilities and any
other improvements on the Property and their operation and maintenance (other
than Taxes (which are separately allocated to the Tenant in accordance with
subsections 10.1.1 and 10.1.2 of this Agreement), Capital Expenditures (which
are separately allocated to the Tenant in accordance with subsection 10.1.5 of
this Agreement) and those expenses contemplated by subsections 10.1.6 and 10.1.7
of this Agreement)) including, without limiting the generality of the foregoing:
10.2.1. Utilities Expenses;
10.2.2. the expense of providing the services, maintenance and repairs
contemplated by subsection 8.1 of this Agreement, whether
furnished by the Landlord's employees or by independent
contractors or other agents including without limitation the
costs associated with inspections required by law or for
determining necessity for maintenance;
10.2.3. wages, salaries, fees and other compensation and payments and
payroll taxes and contributions to any social security,
unemployment insurance, welfare, pension or similar fund and
payments for other fringe benefits required by law or union
agreement (or, if the employees or any of them are not
represented by a union, then payments for benefits comparable
to those generally required by union agreement in first class
office buildings in the immediate area which are unionized)
made to or on behalf of any employees of Landlord performing
services rendered in connection with the operation and
maintenance of the Building, the Common Facilities and the
Property, including, without limiting the generality of the
foregoing, elevator operators, elevator starters, window
cleaners, porters, janitors, maids, miscellaneous handymen,
watchmen, persons engaged in patrolling and protecting the
Building, the Common Facilities and the Property, carpenters,
engineers, firemen, mechanics, electricians, plumbers, other
tradesmen, other persons engaged in the operation and
maintenance of the Building, Common Facilities and Property,
Building superintendent and assistants, Building manager, and
clerical and administrative personnel;
10.2.4. the uniforms of all employees and the cleaning, pressing and
repair thereof;
10.2.5. premiums and other charges incurred by Landlord with respect
to all insurance relating to the Building, the Common
Facilities and the Property and the operation and maintenance
thereof, including, without limitation: property and casualty,
fire and extended coverage insurance, including windstorm,
flood, hail, explosion, other casualty, riot, rioting
attending a strike, civil commotion, aircraft, vehicle and
smoke insurance;
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public liability insurance; elevator, boiler and machinery
insurance; excess liability coverage insurance; use and
occupancy insurance; workers' compensation and health,
accident, disability and group life insurance for all
employees; casualty rent insurance and such other insurance
with such limits as may, from time to time, be customary for
first class office buildings in the immediate area or which
Landlord may be required to secure by institutional mortgage
lenders;
10.2.6. sales and excise taxes and the like upon any Operational
Expenses and Capital Expenditures;
10.2.7. reasonable and customary management fees of any independent
managing agent for the Property, the Building or the Common
Facilities; and if there shall be no independent managing
agent, or if the managing agent shall be a person affiliated
with the Landlord, the management fees that would customarily
be charged for the management of the Property, the Building
and the Common Facilities by an independent, first class
managing agent in the immediate area, not to exceed five (5%)
percent of Basic Rent;
10.2.8. the cost of replacements forconsumable supplies used in the
operation, service, maintenance, inspection and repair of the
Building, the Common Facilities and the Property;
10.2.9. the cost of repainting or otherwise redecorating any part of
the Building or the Common Facilities incurred after the
expiration of first five years of the Term;
10.2.10. seasonal decorations for the lobbies and other Common
Facilities in the Building;
10.2.11. the cost of licenses, permits and similar fees and charges
related to operation, repair and maintenance of the Building,
the Property and the Common Facilities; and
10.2.12. any and all other commercially reasonable expenditures of the
Landlord in connection with the operation, repair or
maintenance of the Property, the Common Facilities or the
Building as a first-class office building and facilities in
the immediate area which are properly treated as an expense
fully deductible as incurred in accordance with generally
applied real estate accounting practice. In determining Base
Year Operational Expenses, Landlord may adjust any line item
which, when compared to the same line item for the year prior
to the Base Year, has increased at a rate which is more than
double the increase in the Index at the end of the year prior
to the Base Year compared to the Index at the end of the Base
Year. In such event, the actual expense incurred for the line
item in the Base Year shall be adjusted to equal the amount
incurred for the same line item for the year prior to the Base
Year multiplied by the sum of one plus the percentage increase
in the Index for the one year period. Similarly, with respect
to any line item which, when compared to the same line item
for the year prior to the Base Year has decreased at a rate
which is more than double any percentage change in the Index
at the end of the year prior to the Base Year compared to the
Index at the end of the Base Year, the actual expense incurred
for the line item in the Base Year shall be adjusted to equal
the amount incurred for the same line item for the year prior
to the Base Year multiplied by one minus the percentage change
in the Index for the one year period.
10.3. "Capital Expenditures" means the following described expenditures incurred
or paid by the Landlord during the term of this Lease in connection with the
Property, the Building, the Common Facilities and any other improvements on the
Property:
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10.3.1. all costs and expenses incurred by the Landlord in connection
with retro-fitting the entire Building or the Common
Facilities, or any portion thereof, to comply with any change
in Federal, state or local statute, rule, regulation, order or
requirement which change first takes effect after the
execution of this Lease; and
10.3.2. all costs and expenses incurred by the Landlord in connection
with the installation of any energy, labor or other cost
saving device or system on the Property or in the Building or
the Common Facilities but only to the extent that the
Landlord's reasonable projection of the Annual Amortized
Capital Expenditure is less than or equal to the Landlord's
reasonable estimate of the cost which would have been incurred
on an annual basis had the Capital Expenditure not been made.
10.4. Neither "Operational Expenses" nor "Capital Expenditures" shall include
any of the following:
10.4.1. principal or interest on any mortgage indebtedness on the
Property, the Building or any portion thereof or any ground
rents;
10.4.2. any capital expenditure, or amortized portion thereof, other
than those included in the definition of Capital Expenditures
set forth in subsection 10.3 above;
10.4.3. expenditures for any leasehold improvement which is made in
connection with the preparation of any portion of the Building
for occupancy by a new tenant or which is not also made
generally to or for the benefit of the Leased Premises and all
Other Leased Premises or generally to the Building or the
Common Facilities;
10.4.4. to the extent the Landlord actually receives or is eligible to
collect proceeds of property and casualty insurance policies
on the Building, other improvements on the Property or the
Common Facilities, expenditures for repairs or replacements
occasioned byfire or other casualty to the Building or the
Common Facilities;
10.4.5. expenditures for repairs, replacements or rebuilding
occasioned by any of the events contemplated by section 16 of
this Agreement;
10.4.6. expenditures for costs, including legal, accounting,
advertising and leasing commissions, incurred in connection
with efforts to lease portions of the Building and to procure
new tenants for the Building;
10.4.7. expenditures for the salaries and benefits of the employees,
if any, of the Landlord above the level of on-site manager;
10.4.8. depreciation of the Building, the Common Facilities and any
other improvement on the Property in accordance with GAAP; and
10.4.9. Notwithstanding any contrary provisions of Section 10 neither
"Operating Expenses" nor "Capital Expenditures" shall include
costs or expenditures for any of the following:
10.4.9.1. any costs or expenditures regarded as capital
costs or expenditures other than those expressly
provided at Section 10.3 above;
10.4.9.2. fines and penalties;
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10.4.9.3. tort claims and expenses of the investigation and
defense thereof;
10.4.9.4. amounts in excess of fair market rates in respect
of any transaction with, or provision of any item
or service by, Landlord or any affiliate of
Landlord;
10.4.9.5. personal property or equipment rental costs if the
purchase of same would not be includable in
Operating Expenses;
10.4.9.6. cost of acquisition of the land, construction of
the Building, site improvements, parking areas and
facilities now or hereafter forming a part of the
Property;
10.4.9.7. costs associated with the refinancing of any of
Landlord's debt;
10.4.9.8. reserves for future expenditures or liabilities
which would be incurred subsequent to the then
current accounting years;
10.4.9.9. any bad debt loss, rent loss or reserves for bad
debt or rent loss;
10.4.9.10. any and all legal and other fees, audit fees,
inspection fees (other than those described in
subsection 10.2.2 of this Agreement), appraisal
fees, leasing, commissions, advertising expenses
and other costs incurred in connection with the
acquisition, development, leasing and ownership of
the Property;
10.4.9.11. costs of repairing or restoring any portion of the
Building and the Property damaged or destroyed by
any casualty or peril whether insured or
uninsured, and costs of restoration following a
taking by condemnation or eminent domain;
10.4.9.12. costs associated with the clean-up, remediation
and removal of any hazardous wastes or substances
and any and all other costs of causing the
Property to comply with applicable environmental
laws and other applicable laws and codes;
10.4.9.13. costs of compliance with the Americans with
Disabilities Act; and
10.4.9.14. cost of rent insurance exceeding one year's
coverage, if obtained;.
In addition to the foregoing, Landlord's Operating Expenses shall be
reduced by each of the following before the calculation of Tenant's Share:
(i) recoveries by Landlord from any third parties as a result of any act,
omission, default or negligence of such parties, or as the result of a
breach or default by such parties under the provisions of applicable
agreements which have caused Landlord to incur such costs and expenses,
and (ii) recoveries by Landlord from insurance policies. to the extent
that the proceeds thereof reimburse Landlord for costs and expenses which
have previously been included or which would otherwise be included in
Landlord's Operating Expenses.
10.5. As soon as practicable after the close of the No Pass Through Period and
December 31 of each year thereafter, any portion of which is during the Term,
the Landlord shall furnish the Tenant with a notice setting forth:
10.5.1. Taxes billed, or if a bill has not then been received for the
entire period, the Landlord's reasonable projection of Taxes
to be billed, for the then current calendar year;
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10.5.2. the amount of Base Year Taxes;
10.5.3. the amount, if any, by which item 10.5.1 above exceeds item
10.5.2 above; and
10.5.4. the Tenant's Share of item 10.5.3 above and supporting
calculations including a copy of the current year's tax bill.
10.6. As soon as practicable after December 31 of each year during the Term and
after the end of the Term, the Landlord shall furnish the Tenant with a notice
setting forth:
10.6.1. the actual amount of Taxes for the preceding calendar year in
excess of Base Year Taxes (or proportional amount thereof for
shorter periods during the Term);
10.6.2. the Landlord's previously projected amount of Taxes for the
preceding calendar year in excess of Base Year Taxes (or
proportional amount thereof for shorter periods during the
Term);
10.6.3. the difference obtained by subtracting item 10.6.2 above from
item 10.6.1 above; and
10.6.4. the Tenant's Share of item 10.6.3 above and supporting
calculations including a copy of the current year's tax bill.
10.7. As soon as practicable after the close of the No Pass Through Period and
December 31 of each year thereafter, any portion of which is during the Term,
the Landlord shall furnish the Tenant with a notice setting forth:
10.7.1. the Landlord's reasonable projection of annual Operational
Expenses for the current period (if any portion thereof is
during the Term);
10.7.2. the amount of the Base Year Operational Expenses;
10.7.3. the amount, if any, by which item 10.7.1 above exceeds item
10.7.2 above; and
10.7.4. the Tenant's Share of item 10.7.3 above and supporting
calculations including a copy of the reasonably detailed
back-up documentation.
10.8. As soon as practicable after December 31 of each year during the Term and
after the end of the Term, the Landlord shall furnish the Tenant with a notice
setting forth:
10.8.1. the actual amount of Operational Expenses for the preceding
calendar year in excess of Base Year Operational Expenses (or
proportional amount thereof for shorter periods during the
Term);
10.8.2. the Landlord's previously projected amount of Operational
Expenses for the preceding calendar year in excess of Base
Year Operational Expenses (or proportional amount thereof for
shorter periods during the Term);
10.8.3. the difference obtained by subtracting item 10.8.2 above from
item 10.8.1 above; and
10.8.4. the Tenant's Share of item 10.8.3 above and supporting
calculations including a copy of the reasonably detailed
back-up documentation.
10.9. As soon as practicable after incurring any Capital Expenditure, the
Landlord shall furnish the
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Tenant with a notice setting forth:
10.9.1. a description of the Capital Expenditure and the subject
thereof;
10.9.2. the date the subject of the respective Capital Expenditure was
first placed into service and the period of useful life
selected by the Landlord in connection with the determination
of the Annual Amortized Capital Expenditure;
10.9.3. the amount of the Annual Amortized Capital Expenditure; and
10.9.4. the Tenant's Share of item 10.9.3 above and supporting
calculations including a copy of the reasonably detailed
back-up documentation.
10.10. From time to time after the Commencement Date, the Landlord may furnish
the Tenant with a notice setting forth its estimate of Tenant Electric Charges
per month. Unless the Tenant desires to question the Landlord's then most recent
estimate of Tenant Electric Charges exclusively in the manner set forth below,
the Landlord's then most recent estimate shall be binding and shall continue in
effect until any question raised by the Tenant is otherwise resolved in
accordance with this subsection 10.10 of the Agreement. If the Tenant desires to
question the Landlord's estimate of Tenant Electric Charges, the Tenant shall
give notice to the Landlord of its desire. Upon receipt of the Tenant's notice,
the Landlord shall obtain a reputable, independent electrical engineer's formal
written estimate and computation of the Tenant Electric Charges. The engineer's
estimate and computation of Tenant Electric Charges shall thereupon control for
a 12 month period commencing with the date as of which it is given effect as to
Tenant Electric Charges, and until the Landlord furnishes the Tenant with a
subsequent notice setting forth its estimate of Tenant Electric Charges per
month, except to the extent that the Landlord may increase them in proportion to
increases in Utilities Expenses during the same period. The bill of the
independent engineer shall be paid by Tenant if the engineer recomputes Tenant's
Electric Charges to the same or a higher amount, and by Landlord if Tenant's
Electrical Charges are recomputed by such engineer to a lower amount.
10.11. Within the one (1) year period after the Landlord gives any notice
enumerated in subsections 10.5 through 10.10 of this Agreement, the Tenant or
the Tenant's authorized agent or other professional, upon one week's prior
notice to the Landlord, may inspect the Landlord's books and records, as they
pertain to the particular expense or expenses in question, at the Landlord's
office regarding the subject of any such notice to verify the amount(s) and
calculation(s) thereof. After payment of the Tenant's Share in accordance with
the provisions of section 10 of this Agreement, no further audit shall be
conducted with respect to Operational Expenses, Taxes, Capital Expenditures,
Base Year Operational Expenses or Base Year Taxes except with respect to items
which may have been questioned within the one (1) year period. Tenant agrees
that no audit will be conducted by an auditor engagedsolely on a contingent fee
basis. If an audit is conducted, the Landlord shall have the right to verify
that the provisions of this prohibition have been satisfied.
10.12. The mere enumeration of an item within the definitions of Operational
Expenses and Capital Expenditures in subsections 10.2 and 10.3 of this
Agreement, respectively, shall not be deemed to create an obligation on the part
of the Landlord to provide such item unless the Landlord is affirmatively
required to provide such item elsewhere in this Agreement; provided, however, no
charges shall be passed through by Landlord for services not furnished to
Tenant. Landlord, at Tenant's expense, shall maintain any supplementary
facilities which are agreed to be installed by Landlord for Tenant including,
without limitation, supplementary heating, cooling or ventilation; electronic
locking devices; and kitchen facilities such as faucets, drains, pumps and
insta-hot lines.
10.13. Without limitation of Tenant's rights as enumerated above, it is agreed
that if at any time a dispute
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shall arise as to any amount or sum of money to be paid by Tenant under the
provisions of this Lease hereof. Tenant shall have the right to make payment
"under protest" and such payment shall not be regarded as a voluntary payment
and there shall survive the right on the part of Tenant to institute suit for
the recovery of such sum, and if it shall be adjudged that there was no legal
obligation on the part of Tenant to pay such sum or any part thereof, then
Tenant shall be entitled to recover such sum or so much thereof as it was not
legally required to pay under the provisions of the Lease.
11. Leasehold Improvements, Fixtures and Trade Fixtures.
All leasehold improvements to the Leased Premises, fixtures installed in the
Leased Premises and the blinds and floor treatments or coverings shall be the
property of the Landlord at the expiration or other termination of the Term,
regardless of when, by which party or at which party's cost the item is
installed. Movable furniture, furnishings, trade fixtures and equipment of the
Tenant which are in the Leased Premises shall be the property of the Tenant.
12. Alterations, Improvements and Other Modifications by the Tenant.
12.1. The Tenant shall not make any alterations, improvements or other
modifications to the Leased Premises which effect structural changes in the
Building or any portion thereof, diminish the functional utility or rental value
of the Leased Premises or, except as may be contemplated by section 5 of this
Agreement prior to the Commencement Date, affect in any material way the
mechanical, electrical, plumbing or other systems installed in the Building or
the Leased Premises.
12.2. The Tenant shall not make any alterations, improvements or modifications
to the Leased Premises, the Building or the Property or make any boring in the
ceiling, walls or floor of the Leased Premises or the Building (other than as
contemplated by this Lease, on the Tenant Plan as approved by the Landlord or in
the ordinary course of outfitting a business office) unless the Tenant shall
have first:
12.2.1. furnished to the Landlord detailed, New Jersey
architect-certified construction drawings, construction
specifications and, if they pertain in any way to
modifications to the heating, ventilation and air conditioning
or other systems of the Building, related engineering design
work and specifications regarding, the proposed alterations,
improvements or other modifications;
12.2.2. not received a notice from the Landlord reasonably objecting
thereto in any respect within ten (10) days of the furnishing
thereof (which shall not be deemed the Landlord's affirmative
consent for any purpose). Landlord may also notify Tenant
within the same period, but not thereafter, that, at the
expiration or earlier termination of the Term, Landlord will
require Tenant to remove any alteration which would require
Landlord to incur any unusual expense, delay or inconvenience
(specifying the items which must be removed and the reason for
Landlord's determination);
12.2.3. obtained any necessary or appropriate building permits or
other approvals from the Municipality and, if such permits or
other approvals are conditional, satisfied all conditions to
the satisfaction of the Municipality; and
12.2.4. met, and continued to meet, all the following conditions with
regard to any contractors selected by the Tenant and any
subcontractors, including materialmen, in turn selected by any
of them:
12.2.4.1. the Tenant shall have sole responsibility for
payment of, and shall pay, such contractors;
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12.2.4.2. the Tenant shall have sole responsibility for
coordinating, and shall coordinate, the work to be
supplied or performed by such contractors, both
among themselves and with any contractors selected
by the Landlord;
12.2.4.3. the Tenant shall not permit or suffer the filing
of any notice of construction lien claim or other
lien or prospective lien by any such contractor or
subcontractor with respect to the Property, the
Common Facilities, the Building or any other
improvements on the Property; and if any of the
foregoing should be filed by any such contractor
or subcontractor, the Tenant shall, within thirty
(30) days after notice of the lien, obtain and
file the complete discharge and release thereof or
provide such payment bond(s) from a reputable,
financially sound institutional surety as will, in
the reasonable opinions of the Landlord, the
holders of any mortgage indebtedness on, or other
interest in, the Property, the Building, the
Common Facilities or any other improvements on the
Property, or any portions thereof, and their
respective title insurers, be adequate to assure
the complete discharge and release thereof;
12.2.4.4. in connection with any contracts providing for an
expenditure by Tenant in excess of $25,000, or in
the instance of any work reasonably determined by
Landlord to be ultrahazardous, prior to any such
contractor's entering upon the Property, the
Building or the Leased Premises or commencing work
the Tenant shall have delivered to the Landlord
(a) all the Tenant's certificates of insurance set
forth in section 14 of this Agreement, conforming
in all respects to the requirements of section 14
of this Agreement, except that the effective dates
of all such insurance policies shall be prior to
any such contractor's entering upon the Property,
the Building or the Leased Premises or commencing
work (if any work is scheduled to begin before the
Commencement Date) and (b) similar certificates of
insurance from each of the Tenant's contractors
providing for coverage in equivalent amounts,
together with their respective certificates of
workers' compensation insurance, employer's
liability insurance and products-completed
operations insurance, the latter providing
coverage in at least the amount required for the
Tenant's comprehensive general public liability
and excess insurance;
12.2.4.5. each such contractor shall be a party to
collective bargaining agreements with those unions
that are certified as the collective bargaining
agents of all bargaining units of such contractor,
of which all such contractor's workpersons shall
be members in good standing;
12.2.4.6. each such contractor shall perform its work in a
good and workpersonlike manner and shall not
interfere with or hinder the Landlord or any other
contractor in any manner;
12.2.4.7. there shall be no labor dispute of any nature
whatsoever involving any such contractor or any
workpersons of such contractor or the unions of
which they are members with anyone; and if such a
labor dispute exists or comes into existence the
Tenant shall forthwith, at the Tenant's sole cost
and expense, remove all such contractors and their
workpersons from the Building, the Common
Facilities and the Property; and
12.2.4.8. the Tenant shall have the sole responsibility for
the security of the Leased
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Premises and all contractors' materials, equipment
and work, regardless of whether their work is in
progress or completed.
12.3. After the Commencement Date, the Tenant shall not apply any wall covering
(except latex based flat paint) or other treatment to the walls of the Leased
Premises without the prior written consent of the Landlord, which consent shall
not be unreasonably withheld or delayed and shall be deemed given if Landlord
shall fail to respond to Tenant's request (either consenting or reasonably
withholding consent with explanatory comment) within ten (10) days next
following Tenant's request. It shall be reasonable for Landlord to withhold
consent if the wall covering is flammable or if Landlord is likely to incur
unusual expense or delay in removing the same.
13. Landlord's Rights of Entry and Access.
The Landlord and its authorized agents shall have the following rights of entry
and access to the Leased Premises:
13.1. In case of any emergency or threatened emergency, at any time for any
purpose which the Landlord reasonably believes under such circumstances will
serve to prevent, eliminate or reduce the emergency, or the threat thereof, or
damage or threatened damage to persons and property.
13.2. Upon at least five (5) day's prior verbal advice to the Tenant's
authorized representative (who shall be designated from time to time by Tenant
in writing) during normal business hours, for the purpose of erecting or
constructing improvements, modifications, alterations and other changes to the
Building or any portion thereof, , whether for the benefit of the Landlord, the
Building, all tenants of Other Leased Premises in the Building, or one or more
tenants of Other Leased Premises, or others including, without limiting the
generality of the foregoing, the Leased Premises, the Common Facilities or the
Property (provided, however, that no access in or through the Leased Premises
shall be requested or granted for the performance of work outside of the Leased
Premises unless such work shall benefit the Leased Premises, or unless there are
no other commercially reasonable means of undertaking and completing such work);
or, upon at least one (1) day's prior verbal advice to the Tenant's authorized
representative (who shall be designated from time to time by Tenant in writing)
during normal business hours,for the purpose of repairing or maintaining the
Leased Premises; and without prior notice for the purpose of cleaning the Leased
Premises. If the entry is for the purpose of repairing or maintaining the Leased
Premises, Tenant's authorized representative may defer Landlord's entry for up
to two (2) days at the time the one (1) day notice is given. In connection with
any such improvements, modifications, alterations, other changes, repairs,
maintenance or cleaning, the Landlord may close off such portions of the
Property, the Building and the Common Facilities and interrupt such services as
may be necessary to accomplish such work, without liability to the Tenant
therefor and without such closing or interruption being deemed an eviction or
constructive eviction or requiring an abatement of Rent. However, in
accomplishing any such work, the Landlord shall endeavor not to materially
interfere with the Tenant's use and enjoyment of any portion of the Leased
Premises or the conduct of the Tenant's business and to minimize interference,
inconvenience and annoyance to the Tenant and in the event Tenant's use shall be
interrupted or materially impaired for any period in excess of twenty-four (24)
hours, then Rent shall equitably abate until such interruption or impairment
shall be fully terminated.
13.3. Upon not less than five (5) days prior verbal notice, during normal
business hours and at a time mutually convenient for Landlord and Tenant, for
the purpose of operating, inspecting or examining the Building, including the
Leased Premises, or the Property.
13.4. At any time after the Tenant has vacated the Leased Premises, for the
purpose of preparing the Leased Premises for another tenant or prospective
tenant.
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13.5. If practicable by appointment with the Tenant, at all reasonable hours for
the purpose of showing the Building to prospective purchasers, mortgagees and
prospective mortgagees and prospective ground lessees and lessors.
13.6. If practicable by appointment with the Tenant, at all reasonable hours
during the last nine months of the Term for the purpose of showing the Leased
Premises to prospective tenants thereof.
13.7. The mere enumeration of any right of the Landlord within this section 13
of the Agreement shall not be deemed to create an obligation on the part of the
Landlord to exercise any such right unless the Landlord is affirmatively
required to exercise such right elsewhere in this Agreement.
14. Liabilities and Insurance Obligations.
14.1. The Tenant shall, at the Tenant's own expense, purchase before the
Commencement Date, and maintain in full force and effect throughout the Term and
any other period during which the Tenant may have possession of the Leased
Premises, the following types of insurance coverage from financially sound and
reputable insurers, licensed by or lawfully doing business in the State of New
Jersey to provide such insurance and acceptable to the Landlord, in the minimum
amounts set forth below, each of which insurance policies shall be for the
benefit of Tenant, and shall name the Landlord, the Landlord's managing agent
and mortgagees and ground lessors known to the Tenant, if any, of the Building,
the Common Facilities, the Property or any interest therein, their successors
and assigns as additional persons insured, and none of which insurance policies
shall contain a "co-insurance" clause:
14.1.1. commercial general liability insurance (including "broad form
and contractual liability" coverage) and excess ("umbrella")
insurance which, without limiting the generality of the
foregoing, considered together shall insure against such risks
as bodily injury, death and property damage, with a combined
single limit of not less than $3,000,000.00 for each
occurrence; and
14.1.2. "all-risks" property insurance covering the Leased Premises in
an amount sufficient, as reasonably determined by the Landlord
from time to time, to cover the replacement costs for all
Tenant's alterations, improvements, fixtures and personal
property located in or on the Leased Premises; provided,
however that Tenant shall have the right to self-insure the
risks set forth in this Section 14.1.2. If Tenant shall
serlf-insure, Tenant shall indemnify Landlord against any
claims for which Landlord would have been protected had the
Tenant secured such insurance (including the effect of the
waiver of subrogation contained in such policy).
14.2. With respect to risks:
14.2.1. as to which this Agreement requires either party to maintain
insurance, or
14.2.2. as to which either party is effectively insured and for which
risks the other party may be liable,
14.2.3. the party required to maintain such insurance and the party
effectively insured shall use its best efforts to obtain a
clause, if available from the respective insurer, in each such
insurance policy expressly waiving any right of recovery, by
reason of subrogation to such party's rights or otherwise, the
respective insurer might otherwise have or obtain against the
other party, so long as such a clause can be obtained in the
respective insurance policy without additional premium cost.
If such a clause can be obtained in the respective insurance
policy, but only at additional premium cost, such party shall,
by notice to the
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other party, promptly advise the other party of such fact and
the amount of the additional premium cost. If the other party
desires the inclusion of such a clause in the notifying
party's respective insurance policy, the other party shall,
within 10 days of receipt of the notifying party's notice, by
notice advise the notifying party of its desire and enclose
therewith its check in the full amount of the additional
premium cost; otherwise the notifying party need not obtain
such a clause in the respective insurance.
14.3. Each party hereby waives any right of recovery against the other party for
any and all damages for property losses and property damages which are actually
insured by either party (or which are self-insured as above provided), but only
to the extent:
14.3.1. that the waiver set forth in this subsection 14.3 does not
cause or result in any cancellation of, or diminution in, the
insurance coverage otherwise available under any applicable
insurance policy;
14.3.2. of the proceeds of any applicable insurance policy (without
adjustment for any deductible amount set forth therein)
recoverable by such party for such respective loss or damages
or which would have been recoverable had the party not
self-insured.
The waiver set forth in this subsection 14.3 of the Agreement shall not apply
with respect to liability insurance policies (as opposed to property and
casualty insurance policies).
14.4. The Tenant hereby waives any right of recovery it might otherwise have
against the Landlord for losses and damages caused actively or passively, in
whole or in part, by any of the risks the Tenant actually insures or which the
Tenant is required to insure against in accordance with subsections 14.1.1 or
14.1.2 of this Agreement, unless such waiver would cause or result in a
cancellation of, or diminution in, the coverage of the Tenant's policies of
insurance against such risks. The Landlord hereby waives any right of recovery
it might otherwise have against the Tenant for losses and damages caused
actively or passively, in whole or in part, by any of the risks the Landlord
actually insures, or which Landlord is required to insure against in accordance
with this Agreement, unless such waiver would cause or result in a cancellation
of, or diminution in, the coverage of the Landlord's policies of insurance
against such risks.
14.5. The Landlord shall have no liability whatsoever to the Tenant or the
Tenant's employees, other agents or Guests or anyone else for any death, bodily
injury, property loss or other damages suffered by any of them or any of their
property except to the extent caused by the gross negligence or intentional
misconduct of the Landlord or any party for whose conduct Landlord is legally
responsible..
14.6. Each policy of insurance required under subsection 14.1 of this Agreement
shall include provisions to the effect that:
14.6.1. no act or omission of the Tenant, its employees, other agents
or Guests shall result in a loss of insurance coverage
otherwise available under such policy to any person required
to be named as an additional insured in accordance with
subsection 14.1 of this Agreement; and
14.6.2. the insurance coverage afforded by such policy shall not be
diminished, cancelled, permitted to expire or otherwise
terminated for any reason except upon 30 days' prior written
notice from the insurer to every person named as an additional
insured in accordance with subsection 14.1 of this Agreement.
14.7. With respect to each type of insurance coverage referred to in subsection
14.1 of this Agreement, prior to the Commencement Date the Tenant shall cause
its insurer(s) to deliver to the Landlord the
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certificate(s) of the insurer(s) setting forth the name and address of the
insurer, the name and address of each additional insured, the type of coverage
provided, the limits of the coverage, any deductible amounts, the effective
dates of coverage and that each policy under which coverage is provided
affirmatively includes provisions to the effect set forth in subsection 14.6 of
this Agreement. In the event any of such certificates indicates a coverage
termination date earlier than the end of the Term or the end of any other period
during which the Tenant may have possession of the Leased Premises, no later
than 10 days before any such coverage termination date, the Tenant shall deliver
to the Landlord respective, equivalent, new certificate(s) of the insurer(s).
15. Casualty Damage to Building or Leased Premises.
15.1. In the event of any damage to the Building or any portion thereof by fire
or other casualty, with the result that the Leased Premises are rendered
unusable, in whole or in part, then, subject to the rights of the parties to
terminate this Lease as hereinafter provided in subsection 15.1.1, the Landlord
shall, within twenty (20) business days of the casualty, determine the period of
time required to restore the Building and the Leased Premises (but not including
the improvements constructed or installed prior to the Term or during the Term
in excess of the original Allowance for the same) and notify Tenant of
Landlord's determination including the number of days which restoration is
estimated to take.
15.1.1. If, in Landlord's opinion, the restoration described above
will take more than 180 days from the date of the casualty to
complete then Landlord may elect to terminate this Agreement
effective as of the date of casualty. Notice of the Landlord's
election shall be served upon the Tenant within the twenty
(20) business day period described above. If Landlord does not
elect to terminate, Tenant may elect to terminate this Lease
by a written notice to Landlord sent within ten (10) days
after receipt of Landlord's determination of the time to
rebuild.
If, in Landlord's reasonable opinion the cost to repair the
damage exceeds the amount of insurance coverage by $500,000,
or more, which is not covered by insurance because of the
standard exclusions or limitations in the insurance which
Landlord carries, then Landlord also may elect to terminate
this Agreement effective as of the date of casualty. Notice of
the Landlord's election shall be served upon the Tenant within
the twenty (20) business day period described above.
15.1.2. If, in Landlord's opinion, the restoration described above
will take 180 days or less, or, if neither party terminates
this Agreement pursuant to the provisions of subsection
15.1.1, then Landlord shall restore the Building and the
Leased Premises as aforesaid. In either of such events, the
Landlord shall cause restoration to proceed diligently and
expediently to the extent the Landlord has received proceeds
of any property, casualty or liability insurance on the
damaged portions (or would have received such proceeds had it
obtained such coverage).
If Landlord proceeds with restoration but does not
substantially complete the same within the greater of (i) one
hundred eighty days from the date of the casualty; or (ii) the
number of days which Landlord specified in the notice given
pursuant to the provisions of subsection 15.1 of this
Agreement, then Tenant may serve a notice at any time
thereafter that this Agreement will terminate on a date
specified by Tenant in its notice, unless the restoration is
substantially completed within the thirty (30) day period
after service of such notice. For this purpose, the completion
of the portions of the Leased Premises which are being
restored shall be determined by the same criteria as
originally applied to completion of the Work. If this
Agreement terminates pursuant to this provision, Tenant shall
receive
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a prompt refund of its Security Deposit and any prepaid rent.
15.2. Rent shall abate from the date of the casualty until:
15.2.1. such time as the Leased Premises are again fully usable and be
reduced during such period by the amount which bears the same
proportion to the Rent otherwise payable during such period as
the gross rentable floor space of the Leased Premises which
are rendered unusable bears to the gross rentable floor space
of the Leased Premises. The restoration of the improvements
constructed or installed prior to the Term or during the Term
in excess of the original Allowance for the same shall be the
Tenant's responsibility. Tenant shall make reasonable, good
faith efforts to integrate the restoration which is its
responsibility with the work which is being performed by
Landlord. To the extent that is not feasible, Tenant shall be
allowed an additional, reasonable interval to complete its
work, not to exceed sixty days and Rent shall abate during the
interval required for such restoration. The Landlord shall
cooperate with Tenant to integrate the restoration of such
improvements during the reconstruction period; or
15.2.2. this Agreement is canceled pursuant to the provisions of
subsections 15.1.
15.3. If either party terminates this Agreement pursuant to the provisions of
subsection 15.1.1 then Landlord, in such event, may proceed with restoration (or
non-restoration) in any manner it chooses, without any liability to Tenant.
15.4. The Tenant shall promptly advise the Landlord by the quickest means of
communication of the occurrence of any casualty damage to the Building or the
Leased Premises of which the Tenant becomes aware.
16. Condemnation.
If the Leased Premises, or any portion thereof, or the Building or the Common
Facilities, or any substantial portion of any of the foregoing, shall be
acquired for any public or quasi-public use or purpose by statute, right of
eminent domain or private sale in lieu thereof, with the result the Tenant can
not reasonably use and occupy the Leased Premises for the purpose set forth in
subsection 7.1 of this Agreement, then this Lease shall terminate (and all
rental obligations shall be adjusted) as of the date that possession must be
delivered to the condemning authority. The Tenant hereby waives any claim
against the Landlord and the condemning authority for any thing of value,
tangible or intangible, including, without limiting the generality of the
foregoing, the putative value of any leasehold interest or loss of the use of
same, except for any right the Tenant might have to make a claim, independent
of, and without reference to or having any effect on, any award or claim of the
Landlord, against the condemning authority or other acquiring party regarding
the value of the Tenant's installed trade fixtures and other installed equipment
which are not removable from the Leased Premises or for ordinary and necessary
moving expenses occasioned thereby.
17. Assignment or Subletting by Tenant.
17.1. Except as may be specifically set forth in this section 17 (including,
without limitation, subsection 17.6) of the Agreement, the Tenant shall not:
17.1.1. assign this Agreement or any of the Tenant's rights hereunder;
17.1.2. sublet the Leased Premises or any portion thereof;
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17.1.3. license the use or occupancy of the Leased Premises or any
portion thereof;
17.1.4. otherwise transfer, or attempt to transfer any interest
including, without limiting the generality of the foregoing, a
mortgage, pledge or security interest, in this Agreement, the
Leased Premises or the right to the use and occupancy of the
Leased Premises; or
17.1.5. indirectly accomplish, or permit or suffer the accomplishment
of, any of the foregoing by merger or consolidation with
another entity, by acquisition or disposition of assets or
liabilities outside the ordinary course of the Tenant's
business or by acquisition or disposition, by the Tenant's
equity owners or subordinated creditors, of any of their
respective interests in the Tenant.
17.2. Except as may be specifically set forth in this section 17 (including,
without limitation, subsection 17.6) of the Agreement, the Tenant shall not
assign this Agreement or any of the Tenant's rights hereunder or sublet the
Leased Premises or any portion thereof without first giving seven (7) business
days' prior notice to the Landlord of its desire to assign or sublet and
requesting the Landlord's consent which consent shall not be unreasonably
withheld, delayed or conditioned. The Tenant's notice to the Landlord shall
include:
17.2.1. the full name, address and telephone number of the proposed
assignee or sublessee;
17.2.2. a description of the type(s) of business in which the proposed
assignee or sublessee is engaged and proposes to engage;
17.2.3. a description of the use to which the proposed assignee or
sublessee intends to put the Leased Premises or portion
thereof if not substantially the same as permitted in
subsection 7.1 and, if the use is not substantially the same,
any other information reasonably requested by the Landlord;
17.2.4. the proposed assignee's or subtenant's most recent quarterly
and annual financial statements prepared in accordance with
generally accepted accounting principles or any other evidence
of financial position and responsibility that the Tenant or
proposed assignee or sublessee may desire to submit;
17.2.5. by diagram and measurement of the actual square feet of floor
space, the precise portion of the Leased Premises proposed to
be sublet;
17.2.6. a complete, accurate and detailed description of the terms of
the proposed assignment or sublease including, without
limiting the generality of the foregoing, all consideration
paid or given, or proposed to be paid or to be given, by the
proposed assignee, sublessee or other person to the Tenant and
the respective times of payment or delivery; and
17.3. By the expiration of the seven (7) business day notice period provided in
subsection 17.2 of this Agreement, the Landlord, in its sole discretion, shall
take one of the following actions by notice to the Tenant:
17.3.1. grant consent on the terms and conditions set forth in
subsection 17.4 of this Agreement;
17.3.2. reasonably and in good faith decline to grant consent for any
of the reasons set forth in subsection 17.5 of this Agreement;
or
17.3.3. elect to terminate the Term as of (a) the end of the third
full month after the Tenant has
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given notice of the Tenant's desire to assign or sublet or (b)
the proposed effective date of the proposed assignment or
sublease.
17.4. The Landlord's consent to the Tenant's proposed assignment or sublease, if
granted under subsection 17.3.1 of this Agreement, shall be subject to all the
following terms and conditions:
17.4.1. any proposed assignee or sublessee shall, by document executed
and delivered forthwith to the Landlord, agree to be bound by
all the obligations of the Tenant set forth in this Agreement;
17.4.2. the Tenant shall remain liable under this Agreement, jointly
and severally with any proposed assignee or sublessee, for the
timely performance of all obligations of the Tenant set forth
in this Agreement;
17.4.3. the Tenant shall forthwith deliver to the Landlord manually
executed copies of all documents regarding the proposed
assignment or sublease and a written, accurate and complete
description, manually executed both by the Tenant and the
proposed assignee or sublessee, of any other agreement,
arrangement or understanding between them regarding the same;
17.4.4. with respect to any consideration or other thing of value
received or to be received by the Tenant directly in
consideration for such assignment or sublease (other than
advance rent payments and security deposits and those amounts
payable in equal monthly installments each month during the
proposed term of any such assignment or sublease), the Tenant
shall pay to the Landlord one-half of any such amount and
one-half of the fair market value (in excess of Tenant's
basis) of any other thing of value within 10 days of receipt
of same after Tenant shall have fully recovered any brokerage
fees, attorneys fees, repair and improvement costs, fees
payable to Landlord pursuant to Section 17.4.6, below, and
other costs and expenses incurred by Tenant in connection with
such assignment or subletting;
17.4.5. with respect to any amount payable to the Tenant in equal
monthly installments each month during the proposed term of
any such assignment or sublease in connection with such
assignment or sublease, which amount is in excess of the
amount which bears the same ratio to the monthly installment
of Rent due from the Tenant as the usable floor space of the
Leased Premises subject to the assignment or sublease bears to
the usable floor space of the entire Leased Premises, the
Tenant shall pay one-half of such excess to the Landlord
together with the Tenant's monthly installment of Rent after
Tenant shall have fully recovered any brokerage fees,
attorneys fees, repair and improvement costs, fees payable to
Landlord pursuant to Section 17.4.6, below, and other costs
and expenses incurred by Tenant in connection with such
assignment or subletting; and
17.4.6. Tenant shall reimburse Landlord for the reasonable expenses
incurred in connection with the review of the proposed
assignment or sublease and the documentation related thereto,
not to exceed $500 per transaction.
17.5. The Landlord's refusal to grant consent under subsection 17.3.2 of this
Agreement shall not be deemed an unreasonable withholding of consent if based
upon any of the following reasons (or any other reason permitted by that
subsection):
17.5.1. the Landlord desires to take one of the other actions
enumerated in subsection 17.3 of this Agreement;
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17.5.2. the proposed sublease is for a term which would expire after
the Term;
17.5.3. the general reputation, financial position or type of business
of, or the anticipated use of the Leased Premises by, the
proposed assignee or proposed sublessee is substantially
inconsistent with uses of those of tenants of Other Leased
Premises;
17.5.4. the proposed consideration to be paid to the Tenant during any
period of 12 months is less than sixty (60%) percent the
amount of the Market Rental Rate divided by the gross rentable
floor space of the Leased Premises and multiplied by that
portion of the gross rentable floor space of the Leased
Premises proposed to be subject to the proposed assignment or
sublease; or
17.5.5. the gross rentable floor space of the portion of the Leased
Premises proposed to be sublet is less than one-third of the
gross rentable floor space of the Leased Premises.
17.5.6. Tenant agrees that no advertisement offering any portion of
the Leased Premises for sublet or assignment shall state a
rental rate which is less than the Basic Rent, but it may
state "terms to be negotiated".
17.6. Anything in this section 17 to the contrary notwithstanding, and expressly
without triggering any advance notice requirement or Landlord termination or
recapture right, the Tenant shall have the right to assign this Agreement or
sublet the Leased Premises or portions thereof without the prior written consent
of the Landlord and without the application of subsections 17.1 and 17.2 of this
Agreement if one of the following is applicable:
17.6.1 the assignee or sublessee is an Affiliate of the Tenant and
the Affiliate relationship was not created to avoid the
operation of this section of the Agreement; or
17.6.2. the proposed assignee or sublessee is an entity (a) resulting
from the merger or consolidation of the Tenant with or into
such entity or (b) purchasing substantially all the assets
(subject to substantially all the liabilities) of the Tenant
or (c) purchasing substantially all the issued and outstanding
capital stock or other equity interests of the Tenant.
An "Affiliate" of any entity means a person or entity controlling, controlled
by, or under common control with, that person or entity.
17.7. The provisions of section 17 of this Agreement shall not at any time
prohibit Tenant from permitting any Venture Partner (as hereinafter defined) to
share temporarily a portion of the Leased Premises in common with Tenant for the
limited purpose of working together on the matter which is the subject of
Tenant's agreement with such Venture Partner, provided that (i) such portion of
the Leased Premises which is subject to sharing of space shall be at all times
less than fifty (50%) percent of the Leased Premises, and (ii) Tenant notifies
Landlord in writing of the space sharing agreement with such Venture Partner.
"Venture Partner" shall mean any person or party with whom Tenant has made an
agreement to collaborate jointly in a business undertaking. The provisions of
this subsection 17.7 relating to space sharing with any Venture Partner shall
not be deemed at any time to relieve Tenant of its obligations under the Lease
with respect to any portion of the Leased Premises which is the subject of a
space sharing arrangement with any Venture Partner.
18. Signs, Displays and Advertising.
18.1. The Tenant shall have one sign identifying the Landlord's assigned number
for the Leased Premises at the principal entrance to the Leased Premises. The
Tenant may identify itself in or on each of:
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the signs at the principal entrance to the Leased Premises, the Building
directory and the directory, if any, on the floor of the Building on which the
Leased Premises is located. All such signs, and the method and materials used in
mounting and dismounting them, shall be in accordance with the Landlord's
specifications. All such signs shall be provided and mounted by the Landlord at
the Landlord's expense, except that the Tenant shall bear any expense of
identifying itself on the sign at the principal entrance to the Leased Premises.
Landlord shall put the Tenant's name on the monument sign (or a new monument
sign installed by Landlord) in a size and style comparable to other names on
such sign.
18.2. No other sign, advertisement, fixture or display shall be used by the
Tenant on the Property or in the Building or the Common Facilities. Any signs
other than those specifically permitted under subsection 18.1 of this Agreement
shall be removed promptly by the Tenant or by the Landlord at the Tenant's
expense.
19. Quiet Enjoyment.
The Landlord is the owner of the Building, the Property and those Common
Facilities located on the Property. The Landlord has the right and authority to
enter into and execute and deliver this Agreement with the Tenant. So long as an
Event of Default shall not have occurred and be continuing after the delivery of
all required notices and the expiration of applicable cure periods, the Tenant
shall and may peaceably and quietly have, hold and enjoy the Leased Premises
during the Term in accordance with this Agreement free from hindrance or
molestation of or by Landlord or any person or party claiming by, through or
under Landlord subject to the provisions of section 25 of this Agreement.
20. Intentionally Omitted.
21. Surrender.
21.1 Upon expiration or earlier termination of the Term, or at any other time at
which the Landlord, by virtue of any provision of this Agreement has the right
to re-enter and re-take possession of the Leased Premises, the Tenant shall
surrender possession of the Leased Premises; remove from the Leased Premises all
property owned by the Tenant or anyone else other than the Landlord; remove from
the Leased Premises any alterations, improvements or other modifications to the
Leased Premises that the Landlord may request by notice; provided, however, that
Landlord may not require that Tenant remove any alterations, improvements or
other modifications to the Leased Premises unless the requirement that the same
be removed was contained in Landlord's notice to Tenant pursuant to subsection
12.2.2 of this Agreement as an express condition; make any repairs required by
such removal; clean the Leased Premises; leave the Leased Premises in as good
order and condition as it was upon the completion of any improvements
contemplated by section 5 of this Agreement, ordinary wear and use, damage by
fire or other casualty and Landlord's obligations excepted; return all copies of
all keys and passes to the Leased Premises, the Common Facilities and the
Building to the Landlord.
21.2 Within five (5) business days after the expiration or sooner termination of
the Term, Landlord may elect ("Election Right") by written notice to Tenant to:
21.2.1 Retain any or all wiring, cables and similar installations
appurtenant thereto installed by Tenant in the risers,
ceilings, plenums and electrical closets of the Building
("Wiring");
21.2.2 Remove any or all such Wiring and restore the Premises and the
Building to the condition existing prior to the installation
of the Wiring ("Wire Restoration Work"). Landlord shall
perform such Wire Restoration Work at Tenant's sole cost and
expense based upon reasonable, documented third-party charges
therefor; or
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21.2.3 Require Tenant to perform the Wire Restoration Work at
Tenant's sole cost and expense. In such event, Tenant shall
submit the contract for the Wire Restoration Work to Landlord
for Landlord's prior approval.
21.3 The provisions of this Clause shall survive the expiration or sooner
termination of the Lease.
21.4 In the event Landlord elects to retain the Wiring pursuant to
subsection 21.2.1 of this Agreement, Tenant covenants that
Tenant shall be the sole owner of such Wiring, that Tenant
shall have good right to surrender such Wiring, and that such
Wiring shall be free of all liens and encumbrances.
21.5. Notwithstanding anything to the contrary in section 29, Landlord may
retain Tenant's Security Deposit after the expiration or sooner termination of
the Lease until the earliest of the following events:
21.5.1 Landlord elects to perform the Wiring Restoration Work
pursuant to subsection 21.2.2 of this Agreement and the Wiring
Restoration Work is complete and Tenant has fully reimbursed
Landlord for all costs related thereto; or
21.5.2. Landlord elects to require the Tenant to perform the Wiring
Restoration Work pursuant to subsection 21.2.3 of this
Agreement and the Wiring Restoration Work is complete and
Tenant has paid for all costs related thereto;
21.5.3. In the event Tenant fails or refuses to pay all costs of the
Wiring Restoration Work within ten (10) business days of
Tenant's receipt of Landlord's notice requesting Tenant's
reimbursement for or payment of such costs, Landlord may apply
all or any portion of Tenant's Security Deposit toward the
payment of such unpaid costs relative to the Wiring
Restoration Work.
21.5.4. The retention or application of such Security Deposit by
Landlord pursuant to this section 21 does not constitute a
limitation on or waiver of Landlord's right to pursue any
other or further remedies at law or in equity.
21.6. Anything in this Section 21 to the contrary notwithstanding, and without
limitation of Tenant's rights, Tenant shall have the right, but not the
obligation, to remove, or to pay for the removal of, Wiring: (i) that was a part
of Tenant's initial fit-out of the Leased Premises, or (ii) that was
subsequently installed by Tenant with Landlord's consent, which consent did not
stipulate that such Wiring would be required to be removed at the expiration or
earlier termination of the Term.
22. Events of Default.
The occurrence of any of the following events shall constitute an Event of
Default under this Agreement:
22.1. the Tenant's failure to pay any installment of Basic Rent or any amount of
Additional Rent within five (5) days next following written notice from Landlord
that the same is past due, provided that if Landlord sends such a notice of
delinquency twice in any consecutive twelve month period then thereafter,for the
next twelve month period, Tenant's failure to pay Rent within five (5) days of
the date it is due;
22.2. the Tenant's failure to complete performance of any of the Tenant's
obligations under this Agreement (other than the payment of Rent) within twenty
(20) days after the Landlord shall have given notice to the Tenant specifying
which of the Tenant's obligations has not been performed and in what respects,
unless completion of performance within such period of twenty (20) days is not
practicable using diligence and expedience, then within a reasonable time of the
Landlord's notice so long as the Tenant
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shall have commenced substantial performance within such period of twenty (20)
days and shall have continued to provide substantial performance, diligently and
expediently, through to completion of performance;
22.3. the sale, transfer or other disposition of any interest of the Tenant in
the Leased Premises by way of execution or other legal process in contravention
of the terms of this Lease;
22.4. with the exception of those of the following events to which section 365
of the Bankruptcy Code shall apply in the context of an office lease (in which
case subsection 22.5 of this Agreement shall apply):
22.4.1. the Tenant's becoming a "debtor" under section 101 of the
Bankruptcy Code;
22.4.2. any time when either the value of the Tenant's liabilities
exceed the value of the Tenant's assets or the Tenant is
unable to pay its obligations as and when they respectively
become due in the ordinary course of business;
22.4.3. the appointment of a receiver or trustee of the Tenant's
property or affairs where such party shall not be dismissed or
discharged within a period of sixty (60) days; or
22.4.4. the Tenant's making an assignment for the benefit of, or an
arrangement with or among, creditors or filing a petition in
insolvency or for reorganization or for the appointment of a
receiver;
22.5. in the event of the occurrence of any of the events enumerated in
subsection 22.4 of this Agreement to which section 365 of the Bankruptcy Code
shall apply in the context of an office lease, the earlier of the bankruptcy
trustee's rejection or deemed rejection (as those terms are used in section 365
of the Bankruptcy Code) of this Agreement.
23. Rights and Remedies.
23.1. Upon the occurrence of an Event of Default the Landlord shall have all the
following rights and remedies:
23.1.1. to elect to terminate the Term by giving notice of such
election, and the effective date thereof, to the Tenant and to
receive Termination Damages;
23.1.2. to elect to re-enter and re-take possession of the Leased
Premises, without thereby terminating the Term, by giving
notice of such election, and the effective date thereof, to
the Tenant and to receive Re-Leasing Damages;
23.1.3. if the Tenant remains in possession of the Leased Premises
after the Tenant's obligation to surrender the Leased Premises
shall have arisen, to remove the Tenant and the Tenant's and
any others' possessions from the Leased Premises by any of the
following means without any liability to the Tenant therefor,
any such liability to the Tenant therefor which might
otherwise arise being hereby waived by the Tenant: legal
proceedings (summary or otherwise), writ of dispossession and
any other means and to receive Holdover Damages and, except in
the circumstances contemplated by section 20 of this
Agreement, to receive all expenses incurred in removing the
Tenant and the Tenant's and any others' possessions from the
Leased Premises, and of storing such possessions if the
Landlord so elects;
23.1.4. to be awarded specific performance, temporary restraints and
preliminary and permanent injunctive relief regarding Events
of Default where the Landlord's rights and remedies at
- 29 -
law are inadequate;
23.1.5. to receive all reasonable, documented expenses incurred in
securing, preserving, maintaining and operating the Leased
Premises during any period of vacancy, in making repairs to
the Leased Premises, in preparing the Leased Premises for
re-leasing and in re-leasing the Leased Premises including,
without limiting the generality of the foregoing, any
market-rate brokerage commissions;
23.1.6. to receive all reasonable legal expenses, including without
limiting the generality of the foregoing, attorneys' fees
incurred in connection with pursuing any of the Landlord's
rights and remedies, including indemnification rights and
remedies;
23.1.7. if the Landlord, in its sole discretion, elects to perform any
obligation of the Tenant under this Agreement (other than the
obligation to pay Rent) which the Tenant has not timely
performed, to receive all reasonable, documented expenses
incurred in so doing;
23.1.8. to elect to pursue any legal or equitable right and remedy
available to the Landlord under this Agreement or otherwise;
and
23.1.9. to elect any combination, or any sequential combination of any
of the rights and remedies set forth in subsection 23.1 of
this Agreement.
23.2. In the event the Landlord elects the right and remedy set forth in
subsection 23.1.1 of this Agreement, Termination Damages shall be equal to the
amount which, at the time of actual payment thereof to the Landlord, is the sum
of:
23.2.1. all accrued but unpaid Rent;
23.2.2. the present value (calculated using the most recently
available (at the time of calculation) published weekly
average yield on United States Treasury securities having
maturities comparable to the balance of the then remaining
Term) of the sum of all payments of Rent remaining due (at the
time of calculation) until the date the Term would have
expired (had there been no election to terminate it earlier)
less the present value (similarly calculated) of the fair
market rent for the Leased Premises through the end of the
Term (had there been no election to terminate it earlier) (and
it shall be assumed for purposes of such calculations that (i)
the amount of future Additional Rent due per year under this
Agreement will be equal to the average Additional Rent per
month due during the 12 full calendar months immediately
preceding the date of any such calculation, increasing
annually at a rate of three (3%) percent compounded, (ii) if
any calculation is made before the first anniversary of the
end of the No Pass Through Period, the average Additional Rent
due for any month after the end of the No Pass Through Period
will be equal to eight and fifty-eight hundredths (8.58%)
percent of the sum of the Base Year Operational Expenses, Base
Year Taxes and Tenant Electric Charges (considered on an
annual basis), (iii) if any calculation is made before the
beginning of the Base Year, the sum of Base Year Taxes and
Base Year Operational Expenses shall be assumed to be $8.00
per gross rentable square foot and (iv) if any calculation is
made before the end of the Base Year, Base Year Taxes and Base
Year Operational Expenses may be extrapolated based on the
year to date experience of the Landlord); and
23.2.3. the Landlord's reasonably estimated cost of demolishing any
leasehold improvements to the Leased Premises which the Tenant
was required to remove pursuant to the provisions of
subsection 21.1 of this Agreement.
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23.3. In the event the Landlord elects the right and remedy set forth in
subsection 23.1.2 of this Agreement, Re-Leasing Damages shall be equal to the
Rent less any rent actually received (discounted on a reasonable basis if
received late) by the Landlord from any lessee of the Leased Premises or any
portion thereof, payable at the respective times that Rent is payable under the
Agreement plus the cost, if any, to the Landlord of building out or otherwise
preparing the Leased Premises for, and leasing the Leased Premises to, any such
lessee.
23.4. In the event the Landlord elects the right and remedy set forth in
subsection 23.1.3 of this Agreement, Holdover Damages shall mean damages at the
rate per month or part thereof equal to the greater of: (a) one and one-half
times one-twelfth of the then Market Rental Rate plus all Additional Rent as set
forth in this Agreement or (b) double the average amount of all payments of Rent
due under this Agreement during each of the last 12 full calendar months prior
to the Landlord's so electing or, in the event the Term shall have terminated by
expiration under subsection 24.1.1 of this Agreement, the last full 12 calendar
months of the Term, in either case payable in full on the first day of each
holdover month or part thereof.
23.5. In connection with any summary proceeding to dispossess and remove the
Tenant from the Leased Premises under subsection 23.1.3 of this Agreement, the
Tenant hereby waives:
23.5.1. any right the Tenant might otherwise have to cause a
termination of the action or proceeding by paying to the
Landlord or into court or otherwise any Rent in arrears;
23.5.2. any right the Tenant might otherwise have to a period of
waiting between issuance of any warrant in execution of any
judgment for possession obtained by the Landlord and the
execution thereof; and
23.5.3. any right the Tenant might otherwise have to redeem the
Tenant's former leasehold interest between the entry of any
judgment and the execution of any warrant issued in connection
therewith by paying to the Landlord or into Court or otherwise
any Rent in arrears.
23.6. The enumeration of rights and remedies in this section 23 of the Agreement
is not intended to be exhaustive or exclusive of any rights and remedies which
might otherwise be available to the Landlord, or to force an election of one or
more rights and remedies to the exclusion of others, concurrently, consecutively
or sequentially. On the contrary, each right and remedy enumerated in this
section 23 of the Agreement is intended to be cumulative with each other right
and remedy enumerated in this section 23 of the Agreement and with each other
right and remedy that might otherwise be available to the Landlord; and the
selection of one or more of such rights and remedies at any time shall not be
deemed to prevent resort to one or more others of such rights and remedies at
the same time or a subsequent time, even with regard to the same occurrence
sought to be remedied.
23.7. It is expressly understood and agreed that the Landlord's sole obligation
to mitigate damages shall be the appointment of an exclusive agent to market the
Leased Premises. In the event the Landlord elects the right and remedy set forth
in subsection 23.1.2 of this Agreement, Re-Leasing Damages shall be equal to the
Rent less any rent actually and timely received by the Landlord from any lessee
of the Leased Premises or any portion thereof, payable at the respective times
that Rent is payable under the Agreement plus the cost, if any, to the Landlord
of building out or otherwise preparing the Leased Premises for, and leasing the
Leased Premises to, any such lessee. The Landlord may relet some or all of the
Leased Premises but shall have no duty to lease the Leased Premises in
preference to other available space. The Tenant shall retain its rights to
sublet or assign the Leased Premises, or portions thereof, pursuant to Article
17 hereof except to the extent that the Landlord shall have already relet the
same which shall abrogate the Tenant's
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rights, pro tanto.
23.8. If (i) an Event of Default has occurred and the Tenant moves out, whether
Landlord has terminated or otherwise, or (ii) if Tenant is dispossessed, and, in
either of such events, fails to remove any property, machinery, equipment and
fixtures or other property prior to such default, dispossess or removal, then
and in that event, the said property, machinery, equipment and fixtures or other
property shall be deemed, at the option of the Landlord, to be abandoned; or in
lieu thereof, at the Landlord's option, the Landlord may remove such property,
in cases in which removal of same is an express obligation of Tenant hereunder,
and charge the reasonable cost and expense of removal, storage and disposal to
the Tenant, together with an additional ten (10%) percent of such costs for
Landlord's overhead and profit, which total costs shall be deemed to be
additional rent hereunder. The Tenant shall be liable for any damage which it
causes in the removal of said property from the Leased Premises.
24. Intentionally Omitted.
25. Mortgage and Underlying Lease Priority.
25.1. This Agreement and the estate, interest and rights hereby created for the
benefit of the Tenant are, and shall always be, subordinate to any institutional
mortgage (other than a mortgage created by the Tenant or a sale, transfer or
other disposition by the Tenant in the nature of a security interest in
violation of subsections 17.1.4 and 22.3, respectively, of this Agreement)
already or afterwards placed on the Property, the Common Facilities, the
Building or any estate or interest therein including, without limiting the
generality of the foregoing, any new mortgage or any mortgage extension,
renewal, modification, consolidation, replacement, supplement or substitution.
This Agreement and the estate, interest and rights hereby created for the
benefit of the Tenant are, and shall always be, subordinate to any ground lease
already or afterwards made with regard to the Property, the Common Facilities,
the Building or any estate or interest therein including, without limiting the
generality of the foregoing, any new ground lease or any ground lease extension,
renewal, modification, consolidation, replacement, supplement or substitution.
The provisions of this section 25 of the Agreement shall be self-effecting; and
no further instrument shall be necessary to effect any such subordination.
Nevertheless, the Tenant hereby consents that any mortgagee or mortgagee's
successor in interest may, at any time and from time to time, by notice to the
Tenant, subordinate its mortgage to the estate and interest created by this
Agreement; and upon the giving of such notice, the subject mortgage shall be
deemed subordinate to the estate and interest created by this Agreement
regardless of the respective times of execution or delivery of either or of
recording the subject mortgage.
25.2. With respect to any mortgage which exists on the date of the execution of
this Agreement, Landlord shall use its best efforts to secure a non-disturbance
agreement in mortgagee's standard form which provides that Tenant's possession
will not be disturbed as long as Tenant is not in default after the delivery of
notice and the passage of all applicable cure periods under the terms of this
Agreement. With respect to any future mortgage, this Agreement shall only be
subordinate to the lien of the mortgage if it is an institutional mortgage and
if Landlord shall secure a non-disturbance agreement in mortgagee's standard
form which provides that Tenant's possession will not be disturbed as long as
Tenant is not in default after the delivery of notice and the passage of all
applicable cure periods under the terms of this Agreement.
26. Transfer by Landlord.
26.1. The Landlord shall have the right at any time and from time to time to
sell, transfer, lease or otherwise dispose of the Property, the Common
Facilities or the Building or any of the Landlord's interests therein at all
times subject to this Lease and Tenant's rights and privileges hereunder, or to
assign
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this Agreement or any of the Landlord's rights thereunder.
26.2. Upon giving notice of the occurrence of any transaction contemplated by
subsection 26.1 of this Agreement, the Landlord shall thereby be relieved of any
obligation that might otherwise exist under this Agreement with respect to
periods subsequent to the effective date of any such transaction. If, in
connection with any transaction contemplated by subsection 26.1 of this
Agreement the Landlord transfers, to the assignee any Security Deposit of the
Tenant and gives notice of that fact to the Tenant, the Landlord shall thereby
be relieved of any further obligation to the Tenant with regard to any such
Security Deposit; and the Tenant shall look solely to the transferee with
respect to any such Security Deposit.
26.3. In the event of the occurrence of any transaction contemplated by
subsection 26.1 of this Agreement the Tenant, upon written request therefor from
the transferee, shall attorn to and become the tenant of such transferee upon
the terms and conditions set forth in this Agreement.
26.4. Notwithstanding anything to the contrary that may be set forth in
subsections 26.1, 26.2 and 26.3 of this Agreement, in the event any future
mortgage contemplated by subsection 25.2 of this Agreement is enforced by the
respective mortgagee pursuant to remedies provided in the mortgage or otherwise
provided by law or equity and any person succeeds to the interest of the
Landlord as a result of, or in connection with, any such enforcement, the Tenant
shall, upon the request of such successor in interest, automatically attorn to
and become the Tenant of such successor in interest without any change in the
terms or provisions of this Agreement (provided that Tenant shall receive the
non-disturbance protection contemplated by subsection 25.2 of this Agreement),
except that such successor in interest shall not be bound by: (a) any payment of
Basic Rent or Additional Rent (exclusive of prepayments in the nature of a
Security Deposit) for more than one month in advance or (b) any amendment or
other modification of this Agreement which was made without the consent of such
mortgagee or such successor in interest; and, upon the request of such successor
in interest, the Tenant shall execute, acknowledge and deliver any instrument(s)
confirming such attornment.
26.5. If this Agreement and the estate, interest and rights hereby created for
the benefit of the Tenant are ever subject and subordinate to any ground lease
contemplated by section 25 of this Agreement:
26.5.1. upon the expiration or earlier termination of the term of any
such ground lease before the termination of the Term under
this Agreement, the Tenant shall attorn to, and become the
Tenant of, the lessor under any such ground lease and
recognize such lessor as the Landlord under this Agreement for
the balance of the Term; provided that the lessor recognizes
Tenant as its direct tenant upon all of the same terms and
conditions as are provided in this Lease and
26.5.2. such expiration or earlier termination of the term of any such
ground lease shall have no effect on the Term under this
Agreement.
27. Indemnification.
27.1. Subject to the waiver and release provisions of subsections 14.4, 14.5 and
14.6 of this Agreement, the Tenant shall, and hereby does, indemnify the
Landlord against any and all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses including, without limiting the generality
of the foregoing, expenses of investigation, defense and enforcement thereof or
of the obligation of Tenant set forth in this section 27 of the Agreement
including, without limiting the generality of the foregoing, attorneys' fees,
imposed on or incurred by the Landlord in connection with any of the following
matters which occurs during the Term; provided that, Tenant shall not be liable
for consequential damages in any event:
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27.1.1. any matter, cause or thing arising out of the use, occupancy,
control or management of the Leased Premises or any portion
thereof which is not caused by the gross negligence or
intentional act of Landlord or any party for whom Landlord is
legally responsible;
27.1.2. any negligence or intentional act on the part of the Tenant or
any party for whose conduct Tenant is legally responsible;
27.1.3. any accident, injury or damage to any person or property
occurring in or about the Leased Premises which is not caused
by the gross negligence or intentional act of Landlord or any
party for whom Landlord is legally responsible;
27.1.4. any representation made by the Tenant in this Agreement shall
have been inaccurate or incomplete in any material respect
either on the date it was made or the date as of which it was
made;
27.1.5. the imposition of any mechanic's, materialman's or other lien
on the Property, the Common Facilities, the Building, the
Leased Premises or any portion of any of the foregoing, or the
filing of any notice of intention to obtain any such lien, in
connection with any alteration, improvement or other
modification of the Leased Premises made or authorized by the
Tenant (which indemnification obligation shall be deemed to
include the Tenant's obligations set forth in subsection
12.2.4.3 of this Agreement); or
27.1.6. any failure on the part of the Tenant to perform or comply
with any obligation of the Tenant set forth in this Agreement.
27.2. Payment of indemnification claims by the Tenant to the Landlord shall be
due upon the Landlord's giving notice thereof to the Tenant.
27.3. The Landlord shall promptly give notice of any claim asserted, or action
or proceeding commenced, against it as to which it intends to claim
indemnification from the Tenant and, upon notice from the Tenant so requesting,
shall forward to the Tenant copies of all claim or litigation documents received
by it. Upon receipt of such notice the Tenant may, by notice to the Landlord,
participate therein and, to the extent it may desire, assume the defense thereof
through independent counsel selected by the Tenant. The Landlord shall not be
bound by any compromise or settlement of any such claim, action or proceeding
without its prior written consent.
27.4. Subject to the waiver and release provisions of subsections 14.4, 14.5 and
14.6 of this Agreement, the Landlord shall, and hereby does, indemnify the
Tenant against any and all liabilities, obligations, damages, penalties, claims,
costs, charges and expenses including, without limiting the generality of the
foregoing, expenses of investigation, defense and enforcement thereof or of the
obligations of Landlord set forth in this Section 27 of the Agreement including,
without limiting the generality of the foregoing, attorneys' fees, imposed on or
incurred by the Tenant in connection with any of the following matters which
occurs during the Term; provided that, Landlord shall not be liable for
consequential damages in any event:
27.4.1. any matter, cause or thing arising out of the use, occupancy,
control or management of the the Property, the Building or the
Common Facilities or any portion thereof, which is not caused
by the gross negligence or intentional act of Tenant or any
party for whom Tenant is legally responsible;
27.4.2 any negligence or intentional act on the part of the Landlord
or any party for whose conduct Landlord is legally
responsible;
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27.4.3. any accident, injury or damage to any person or property
occurring in or about the Leased Premises, the Property, the
Building or the Common Facilities or any portion thereof which
is not caused by the gross negligence or intentional act of
Tenant or any party for whom Tenant is legally responsible;
27.4.4. any representation made by the Landlord in this Agreement
shall have been inaccurate or incomplete in any material
respect either on the date it was made or the date as of which
it was made;
27.4.5. any failure on the part of the Landlord to perform or comply
with any obligation of the Landlord set forth in this
Agreement.
27.5. The Tenant shall promptly give notice of any claim asserted, or action or
proceeding commenced, against it as to which it intends to claim indemnification
from the Landlord and, upon notice from the Landlord so requesting, shall
forward to the Landlord copies of all claim or litigation documents received by
it. Upon receipt of such notice the Landlord may, by notice to the Tenant,
participate therein and, to the extent it may desire, assume the defense thereof
through independent counsel selected by the Landlord. The Tenant shall not be
bound by any compromise or settlement of any such claim, action or proceeding
without its prior written consent.
28. Parties' Liability.
28.1. None of the following occurrences shall constitute a breach of this
Agreement by the Landlord, a termination of the Term, an active or constructive
eviction or, except as otherwise provided, an occurrence requiring an abatement
of Rent:
28.1.1. the inability of the Landlord to provide any utility or
service to be provided by the Landlord, as described in
section 8 of this Agreement which is due to causes beyond the
Landlord's control, or to necessary or advisable improvements,
maintenance, repairs or emergency, so long as the Landlord
uses reasonable efforts and diligence under the circumstances
to restore the interrupted service or utility;
28.1.2. any improvement, modification, alteration or other change made
to the Property, the Building or the Common Facilities by the
Landlord consistently with the Landlord's obligations set
forth in subsection 13.2 of this Agreement; and
28.1.3. any change in any Federal, state or local law or ordinance.
28.1.4. If any utility or service is interrupted and Landlord can
remove the cause of such interruption with commercially
reasonable measures and fails to do so for a period of
seventy-two (72) hours after verbal notice, or more, then Rent
shall abate until the utility or service in question is
restored.
28.2. Except for the commencement, duration or termination of the Term (other
than under the circumstances contemplated by subsection 15.1 of this Agreement),
the Tenant's obligation to make timely payments of Rent, the Tenant's obligation
to maintain certain insurance coverage in effect, the Tenant's failure to
perform any of its other obligations under this Agreement if such failure has
caused loss or damage that can not promptly be cured by subsequent act of the
Tenant, any period of time during which the Landlord or the Tenant is prevented
from performing any of its respective obligations under this Agreement because
of fire, any other casualty or catastrophe, strikes, lockouts, civil commotion,
acts of God or the public enemy, governmental prohibitions or preemptions,
embargoes or inability to obtain labor or material due to shortage, governmental
regulation or prohibition, shall be added to the time when
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such performance is otherwise required under this Agreement.
28.3. In the event the Landlord is an individual, partnership, joint venture,
association or a participant in a joint tenancy or tenancy in common, the
Landlord, the partners, venturers, members and joint owners shall not have any
personal liability or obligation under or in connection with this Agreement or
the Tenant's use and occupancy of the Leased Premises; but recourse shall be
limited exclusively to the Landlord's interest in the Building, and the office
center property of which it may form a part, the rents issues and profits
thereof, and the sale and refinance proceeds therefrom.
28.4. If, at any time during the Term, the payment or collection of any Rent
otherwise due under this Agreement shall be limited, frozen or otherwise
subjected to a moratorium by applicable law, and such limitation, freeze or
other moratorium shall subsequently be lifted, whether before or after the
termination of the Term, such aggregate amount of Rent as shall not have been
paid or collected during the Term on account of any such limitation, freeze or
other moratorium, shall thereupon be due and payable at once. There shall be
added to the maximum period of any otherwise applicable statute of limitation
the entire period during which any such limitation, freeze or other moratorium
shall have been in effect.
28.5. If this Agreement is executed by more than one person as Tenant, their
liability under this Agreement and in connection with the use and occupancy of
the Leased Premises shall be joint and several.
28.6. In the event any rate of interest, or other charge in the nature of
interest, calculated as set forth in this Agreement would lead to the imposition
of a rate of interest in excess of the maximum rate permitted by applicable
usury law, only the maximum rate permitted shall be charged and collected.
28.7. The rule of construction that any ambiguities that may be contained in any
contract shall be construed against the party drafting the contract shall be
inapplicable in construing this Agreement.
29. Security Deposit.
29.1. The Tenant shall pay to the Landlord upon execution and delivery of this
Agreement the sum of $78,370.84 as a security deposit to be held by the Landlord
as security for the Tenant's performance of all the Tenant's obligations under
this Agreement (the "Security Deposit"). The Landlord may commingle the Security
Deposit with its general funds. Any interest earned on the Security Deposit
shall belong to the Landlord. The Tenant shall not encumber the Security
Deposit. The Landlord, in its sole discretion, may apply the Security Deposit to
cure any Event of Default under this Agreement. If any such application is made,
upon notice by the Landlord to the Tenant, the Tenant shall promptly replace the
amount so applied. If there has been no Event of Default, within 30 days after
termination of the Term the Landlord shall return the entire balance of the
Security Deposit to the Tenant or so much thereof as Landlord shall not have
previously applied to the cure of an Event of Default as hereinabove provided.
The Tenant will not look to any foreclosing mortgagee of the Property, the
Building, the Common Facilities or any interest therein for such return of the
balance of the Security Deposit, unless the mortgagee has expressly assumed the
Landlord's obligations under this Agreement or has actually received the balance
of the Security Deposit.
29.2. In the alternative as Tenant may elect:
29.2.1. upon execution of this Lease, the Tenant shall post with
Landlord as security for the full and faithful performance of
this Lease upon the part of the Tenant to be performed an
irrevocable, unconditional Letter of Credit in transferable
form (together with all increases, renewals, replacements,
amendments and substitutions, the "Letter of Credit") naming
Landlord as beneficiary, with a term of at least one (1) year
in the amount of $78,370.84
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from an institution acceptable to Landlord in the reasonable
exercise of its discretion (a "Qualified Bank"), presentable
in New Jersey. First Union National Bank or PNC Bank each
shall be considered a Qualified Bank. In no instance shall the
amount of such security be considered a measure of liquidated
damages. Tenant shall cause the Letter of Credit to be renewed
for additional one year periods for the entire term of the
Lease, and at least 15 days prior to the scheduled expiration
of the Letter of Credit each year, Tenant shall provide
Landlord with an extension of the Letter of Credit or
replacement Letter of Credit from a Qualified Bank. If Tenant
fails to provide such extension or replacement Letter of
Credit within the time period provided above, Landlord shall
have the right to draw immediately upon the entire balance of
the Letter of Credit and shall hold or disburse same in
accordance with the provisions of this section.
29.2.2. Upon termination of this Lease, and provided Tenant is not in
default hereunder following the delivery of notice and the
expiration of all applicable cure periods , the Landlord shall
return the Letter of Credit to the Tenant. During the term of
this Lease, Landlord shall have recourse to said security to
make good any default by Tenant following the delivery of
notice and the expiration of all applicable cure periods, in
which event Tenant shall, on demand, promptly restore said
Letter of Credit to its original amount. It is agreed that
should Landlord convey its interest under this Lease, the
security deposit may be turned over by Landlord to Landlord's
grantee or transferee, and Tenant shall cooperate with
Landlord by causing an appropriate amendment to the Letter of
Credit to be issued changing the name of the beneficiary. Upon
any such delivery of an amendment to the Letter of Credit,
provided that Tenant shall have written notice of the transfer
and accurate and current contact information regarding the
transferee, Tenant hereby releases Landlord herein named of
any and all liability with respect to the security deposit,
its application and return, and Tenant agrees to look solely
to such grantee or transferee, and it is further understood
that this provision shall also apply to subsequent grantees
and transferees. Tenant shall not mortgage, encumber or assign
said security.
30. Representations.
The Tenant hereby represents and warrants that:
30.1. its Standard Industrial Classification (SIC) code is 2836 and it will
promptly give notice of any change therein during the Term to the Landlord;
30.2. no broker or other agent has shown the Leased Premises or the Building to
the Tenant, or brought either to the Tenant's attention, except Julien J.
Studley, Inc. (the "Broker"), whose entire commission therefor is set forth in a
separate document and which commission the Tenant understands will be paid by
the Landlord directly to the Broker;
30.3. the execution and delivery of, the consummation of the transactions
contemplated by and the performance of all its obligations under, this Agreement
by the Tenant have been duly and validly authorized by its general partners, to
the extent required by their partnership agreement and applicable law, if the
Tenant is a partnership or, if the Tenant is a corporation, by its board of
directors and, if necessary, by its stockholders at meetings duly called and
held on proper notice for that purpose at which there were respective quorums
present and voting throughout; and no other approval, partnership, corporate,
governmental or otherwise, is required to authorize any of the foregoing or to
give effect to the Tenant's execution and delivery of this Agreement; and
30.4. the execution and delivery of, the consummation of the transactions
contemplated by and the
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performance of all its obligations under, this Agreement by the Tenant will not
result in a breach or violation of, or constitute a default under, the
provisions of any statute, charter, certificate of incorporation or bylaws or
partnership agreement of the Tenant or any affiliate of the Tenant, as presently
in effect, or any indenture, mortgage, lease, deed of trust, other agreement,
instrument, franchise, permit, license, decree, order, notice, judgment, rule or
order to or of which the Tenant or any affiliate of the Tenant is a party, a
subject or a recipient or by which the Tenant, any affiliate of the Tenant or
any of their respective properties and other assets is bound.
31. Reservation in Favor of Tenant.
Neither the Landlord's forwarding a copy of this document to any prospective
tenant nor any other act on the part of the Landlord prior to execution and
delivery of this Agreement by the Landlord shall give rise to any implication
that any prospective tenant has a reservation, an option to lease or an
outstanding offer to lease any premises.
32. Tenant's Certificates and Mortgagee Notice Requirements.
32.1. Promptly upon request of the Landlord at any time or from time to time,
but in no event more than twenty (20) days after the Landlord's respective
request (which request shall be made no more often than two (2) times in any
twelve (12) month period), the Tenant shall execute, acknowledge and deliver to
the Landlord or its designee an estoppel or other certificate, reasonably
satisfactory in form and substance to the Landlord and any of its mortgagees,
ground lessors or lessees or transferees or prospective mortgagees, ground
lessors or lessees or transferees, with respect to any of or all the following
matters:
32.1.1. whether this Agreement is then in full force and effect;
32.1.2. whether this Agreement has not been amended, modified,
superseded, canceled, repudiated or revoked;
32.1.3. whether the Landlord has satisfactorily completed all
construction work, if any, required of the Landlord or
contractors selected and retained by the Landlord in
connection with readying the Leased Premises for occupancy by
the Tenant in accordance with section 5 of this Agreement;
32.1.4. whether the Tenant is then in actual possession of the Leased
Premises;
32.1.5. to the best of Tenant's knowledge after reasonable inquiry,
whether the Tenant then has no defenses or counterclaims under
this Agreement or otherwise against the Landlord or with
respect to the Leased Premises;
32.1.6. to the best of Tenant's knowledge after reasonable inquiry,
whether Landlord is not then in breach of this Agreement in
any respect;
32.1.7. whether the Tenant then has knowledge of any assignment of
this Agreement, the pledging or granting of any security
interest in this Agreement or in Rent due and to become due
under this Agreement;
32.1.8. whether Rent is not then accruing under this Agreement in
accordance with its terms;
32.1.9. whether any Rent is not then in arrears;
32.1.10. whether Rent due or to become due under this Agreement has not
been prepaid by
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more than one month;
32.1.11. if the response to any of the foregoing matters is in the
negative, a specification of all the precise reasons that
necessitated the negative response in each instance; and
32.1.12. such information as the Landlord reasonably may request (and
which Tenant can reasonably furnish without independent
inquiry or investigation) for purposes of assuring compliance
with the Industrial Site Recovery Act (13 N.J.S.A. 1K-6 et
seq.), as it may be amended, and any other applicable Federal,
state or local statute, ordinance, rule, regulation or order
concerned with environmental matters.
32.2. If the Lease has been assigned to an assignee which is not a publicly
reporting company, and in connection with the Landlord's or a prospective
transferee's obtaining financing or refinancing of the Property, the Building,
the Common Facilities, any portion thereof or any interest therein, the Landlord
or a prospective lender shall so request, the Tenant shall furnish to the
requesting party within twenty (20) days of request summary financial
information regarding assignee's financial position as of the close of its most
recently completed fiscal year and its most recently completed interim fiscal
period and regarding its results of operations for the periods then ended and
comparable year earlier periods, certified by Tenant's chief financial officer
to be a complete, accurate and fair presentation of the summary financial
information purporting to be set forth therein.
32.3. If the Landlord or any of its mortgagees gives written notice to the
Tenant of any of their respective names and addresses from time to time, the
Tenant shall endeavor to give notice to each such mortgagee of any notice of
breach or default previously or afterwards given by the Tenant to the Landlord
under this Agreement and provide in such notice that if the Landlord has not
cured such breach or default within any permissible cure period then such
mortgagee shall have the greater of (a) an additional period of 30 days or (b)
if such default cannot practically be cured within such period, such additional
period as is reasonable under the circumstances, within which to cure such
default; provided, however that the foregoing agreement to furnish notice shall
not impair, limit or delay in any manner Tenant's exercise of any abatement,
self-help or offset rights as may be expressly provided in this Lease. Upon
request of the Landlord at any time or from time to time, the Tenant shall
execute, acknowledge and deliver to the Landlord or its designee an
acknowledgment of receipt of any such notice, an acknowledgment of receipt of
any notice of assignment of this Agreement or rights hereunder by the Landlord
to any of its mortgagees and the Tenant's agreement to the foregoing effect on
the respective forms, if any, furnished by the Landlord or the respective
mortgagees.
32.4. Approximately 30 days prior to the termination of the Term, the Tenant
shall apply to the New Jersey Department of Environmental Protection ("NJDEP"),
to obtain the Department's unconditional certificate of non-applicability or
approval of the Tenant's negative declaration or clean-up plan, together with
copies of all documents furnished to NJDEP in connection with obtaining such
certificate or approval, and deliver the same to Landlord upon receipt of the
same.
32.5. In the event evidence of compliance with ISRA is not delivered to the
Landlord prior to expiration or earlier termination of the Term (i) because
Tenant fails timely to apply for the same or (ii) because of some other action
for which Tenant is responsible, Tenant shall be liable for all actual,
third-party costs and expenses incurred by Landlord in enforcing Tenant's
obligations hereunder until such time as evidence of compliance with ISRA has
been delivered to the Landlord, and together with any costs and expenses,
including reasonable legal and environmental consultant fees incurred by
Landlord in enforcing Tenant's obligations under subsection 7.2.8 and subsection
32.4 of this Agreement. After the Term, Tenant shall nevertheless be obligated
to comply with its obligations hereunder. Evidence of compliance, as used
herein, shall mean an approved "negative declaration" or a "no further action
letter" issued by the
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NJDEP. Evidence of compliance shall be delivered to the Landlord, together with
copies of all submissions made to, and received from, the NJDEP, including all
environmental reports, test results and other supporting documentation. In
addition, if a Release is caused or permitted by Tenant, or parties for whom
Tenant is legally responsible, during the Term then, after end of the Term, and
because of the difficulty which the Landlord may experience in re-letting the
Leased Premises, the Tenant shall remain liable for the payment of the annual
rent in effect in the last month of the Term, prorated on a monthly basis (the
"Post-Term Rent"). The Post-Term Rent shall no longer be due when and if the
only remaining requirement is purely administrative action on the part of the
NJDEP or from and after the commencement date of a lease of the Leased Premises
to a third party. Additionally, if Tenant fails to commence the process required
by subsection 32.4 of this Agreement at least 30 days prior to the expiration of
the Term then the Post-Term Rent shall be equal to 150% of the annual rent in
effect in the last month of the Term, prorated on a monthly basis. Such
Post-Term Rent shall no longer be due when the only remaining requirement is
purely administrative action on the part of the NJDEP, evidence of compliance is
obtained from the NJDEP or from and after the commencement date of a lease of
the Leased Premises to a third party.
Notwithstanding the provisions of the preceding paragraph, Tenant shall
have no liability for Post-Term Rent if (i) Tenant delivers to Landlord an
unconditional certificate of non-applicability within ninety (90) days after the
termination of the Term; and (ii) the failure to deliver the unconditional
certificate of non-applicability until that time did not prevent the Landlord
from re-letting the Leased Premises (or any portions thereof) to other tenants,
if Landlord has a tenant ready, willing and able to lease the Leased Premises
(or any portions thereor) on terms acceptable to Landlord and such tenant.
32.6. If (i) Landlord fails to remedy any condition on or affecting the Leased
Premises which Landlord is responsible hereunder for remedying, and (ii) such
condition, if unremedied, shall adversely affect Tenant's use and occupancy of
the Leased Premises, Tenant, without any obligation to do so, in addition to
Tenant's rights and remedies under this Lease, may elect to remedy such
condition on behalf of Landlord after thirty (30) days prior written notice to
Landlord (or such shorter response time as reasonably is required under the
circumstances). Landlord shall reimburse Tenant for any actual, reasonable,
documented sums paid or third-party costs incurred by Tenant in remedying such
condition, including interest thereon at the Base Rate plus two (2) additional
percentage points, from the respective dates of Tenant's incurring such costs,
which sums and costs together with interest shall be due and payable by Landlord
to Tenant within ten (10) days following receipt of invoice therefor. In the
event Landlord fails to reimburse Tenant within thirty (30) days after receipt
of invoice, Tenant shall send Landlord a second request for payment and if
Landlord fails to reimburse Tenant within thirty (30) days after receipt of such
second request for payment, Tenant shall have the right to deduct amounts owed
to Tenant under this Section from installments of Base Rent next coming due
under this Lease until the full amount, with interest as aforesaid, shall be
recovered.
33. Waiver of Jury Trial.
The parties hereby waive any right they might otherwise have to a trial by jury
in connection with any dispute arising out of or in connection with this
Agreement or the use and occupancy of the Leased Premises.
34. Severability.
In the event that any provision of this Agreement, or the application of any
provision in any instance, shall be conclusively determined by a court of
competent jurisdiction to be illegal, invalid or otherwise unenforceable, such
determination shall not affect the validity or enforceability of the balance of
this Agreement.
- 40 -
35. Notices.
All notices contemplated by, permitted or required by this Agreement shall be in
writing. All notices required by this Agreement shall be personally delivered or
forwarded by recognized overnight carrier or by certified mail-return receipt
requested, addressed to the intended party at its address first set forth above
or, in the case of notices to the Tenant during the Term or any other period
during which the Tenant shall be in possession of the Leased Premises, at the
Leased Premises. A copy of any and all notices to Tenant also shall, as a
condition of the effectiveness thereof, be delivered to Gary A. Smith, Esquire,
Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, PA 19103. All
notices required under this Agreement shall be deemed given (i) upon delivery by
overnight carrier; (ii) upon deposit, properly addressed and postage prepaid, in
a postal depository if delivery is by certified mail; or (iii) upon personal
delivery to the intended party, regardless of whether delivery shall be refused.
Either party, by a notice served in accordance with the foregoing provisions,
may change the address to which notices shall be sent. Notices given by an
attorney for a party shall be deemed to be notices given by the party.
36. Captions.
Captions have been inserted at the beginning of each section of this Agreement
for convenience of reference only and such captions shall not affect the
construction or interpretation of any such section of this Agreement.
37. Counterparts.
This Agreement may be executed in more than one counterpart, each of which shall
constitute an original of this Agreement but all of which, taken together, shall
constitute one and the same Agreement.
38. Applicable Law.
This Agreement and the obligations of the parties hereunder shall be governed by
and construed in accordance with the laws of the State of New Jersey.
39. Exclusive Benefit.
Except as may be otherwise specifically set forth in this Agreement, this
Agreement is made exclusively for the benefit of the parties hereto and their
permitted assignees and no one else shall be entitled to any right, remedy or
claim by reason of any provision of this Agreement.
40. Successors.
This Agreement shall be binding upon the parties hereto and their respective
successors and assigns.
41. Amendments.
This Agreement contains the entire agreement of the parties hereto, subsumes all
prior discussions and negotiations and, except as may otherwise be specifically
set forth in this Agreement, this Agreement may not be amended or otherwise
modified except by a writing signed by all the parties to this Agreement.
42. Waiver.
Except as may otherwise be specifically set forth in this Agreement, the failure
of any party at any time or times to require performance of any provision of
this Agreement shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of any condition, or of the breach of any term,
- 41 -
covenant, representation or warranty set forth in this Agreement, whether by
conduct or otherwise, in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach, or
as a waiver of any other condition or of the breach of any other term, covenant,
representation or warranty set forth in this Agreement. The Landlord's
acceptance of, or endorsement on, any partial payment of Rent or any late
payment of Rent from the Tenant shall not operate as a waiver of the Landlord's
right to the balance of the Rent due on a timely basis regardless of any writing
to the contrary on, or accompanying, the Tenant's partial payment or the
Landlord's putative acquiescence therein.
43. Course of Performance.
No course of dealing or performance by the parties, or any of them, shall be
admissible for the purpose of obtaining an interpretation or construction of
this Agreement at variance with the express language of the Agreement itself.
44. Landlord's Concession.
The Landlord shall credit against any amount otherwise due from the Tenant in
accordance with section 5 of this Agreement the sum of $282,135 (the
"Allowance").
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
LANDLORD:
Route 206 Associates
By: /s/ Eugene Schenkman
------------------------------------
Eugene Schenkman Vice President
Route 206 Corp., General Partner
TENANT:
Enzon, Inc.
By: /s/ Arthur Higgins
------------------------------------
Arthur Higgins, President and CEO
- 42 -
EXHIBIT A
LEASED PREMISES FLOOR SPACE DIAGRAM
- 43 -
EXHIBIT B
PROPERTY DESCRIPTION
ALL THAT CERTAIN tract or parcel of land located in the Township of Bridgewater,
County of Somerset and State of New Jersey more particularly described, as
follows:
BEGINNING at a point in the westerly sideline of U.S. Route 202-206 said point
being the northeasterly corner of a lot of land now or formerly of Fennessey
Buick, Inc., as described in Deed Book 1231 page 656, and from said beginning
point running thence (1) along a line of partitioning as approved by the
Township of Bridgewater South 82 degrees 17 minutes 56 seconds West, a distance
of 546.28 feet to a point in the easterly No Access Right-of-Way line of U.S.
Interstate Route 287; thence (2) along said right-of-way line, North 23 degrees
02 minutes 52 seconds West, a distance of 155.84 feet to an angle point in said
right-of-way line; thence (3) still along said right-of-way line North 20
degrees 29 minutes 57 seconds West, a distance of 543.09 feet to a point, said
point being the southwesterly corner of Lot 21, Block 3501, as shown on the
official tax map of the Township of Bridgewater, said Lot 21 being also lands
now or formerly M & M, Inc. of New Jersey; thence (4) along said Lot 21 and part
of Lot 22 now or formerly M. Downey, North 82 degrees 17 minutes 56 seconds
East, a distance of 510.83 feet to a point, said point being the northwest
corner of Lot 23, Block 3501, now or formerly C. Dudeck; thence (5) along said
Lot 23, South 07 degrees 27 minutes 04 seconds East, a distance of 75.00 feet to
a point, said point being the southwest corner of said Lot 23; thence (6) still
along said Lot 23, North 82 degrees 17 minutes 56 seconds East, a distance of
200.00 feet to a point in the aforementioned westerly sideline of U.S. Route
202-206; thence (7) along said westerly sideline, South 07 degrees 27 minutes 04
seconds East, a distance of 605.04 feet to the point and place of Beginning.
Containing 9.512 acres as shown on a "Proposed Partition-Map of Survey, Lot 24,
Block 3501", Bridgewater Township, Somerset County, New Jersey, revised July 6,
1967,prepared by Donald H. Stires, P.E. & L.S, Somerville, New Jersey.
- 44 -
EXHIBIT C
WORK LETTER
The following is the Work Letter provided for in the Agreement of which this
exhibit is a part. Landlord shall refurbish the third floor common area
including painting, re-carpeting and wall covering comparable to the recently
refurbished area on the second floor of the Building.
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EXHIBIT D
BUILDING RULES AND REGULATIONS
The following are the Building Rules and Regulations adopted in accordance with
subsection 7.2.3 of the Agreement of which this exhibit is a part; and the
Tenant and the Tenant's employees, other agents and Guests shall comply with
these Building Rules and Regulations:
1. The sidewalks, driveways, entrances, passages, courts, lobby, esplanade
areas, plazas, elevators, vestibules, stairways, corridors, halls and other
Common Facilities shall not be obstructed or encumbered or used for any purpose
other than ingress and egress to and from the Leased Premises. Landlord, in its
discretion, may tow any vehicle left in the Common Facilities overnight;
provided that the owner of such vehicle shall receive a written violation notice
for its first parking infraction, and before its vehicle is towed. The Tenant
shall not permit or suffer any of its employees, other agents or Guests to
congregate in any of the said areas. No door mat of any kind whatsoever shall be
placed or left in any public hall or outside any entry door of the Leased
Premises.
2. No awnings or other projections shall be attached to the outside walls of the
Building. No curtains, drapes, blinds, shades or screens shall be attached to,
hung in or used in connection with any window or door of the Leased Premises
without the prior written consent of Landlord. If such consent is given, such
curtains, drapes, blinds, shades or screens shall be of a quality, type, design
and color, and attached in the manner, approved by Landlord.
3. Except as otherwise specifically provided in subsection 18.1 of the
Agreement, no sign, insignia, advertisement, object, notice or other lettering
shall be exhibited, inscribed, painted or affixed so as to be visible from
outside the Leased Premises or the Building. In the event of the violation of
the foregoing by the Tenant, the Landlord may remove same without any liability
and may charge the expense incurred in such removal to the Tenant.
4. The sashes, doors, skylights, windows, and doors that reflect or admit light
and air into the halls, passageways or other public places in the Building shall
not be covered or obstructed and no bottles, parcels or other articles shall be
placed on the window sills.
5. No showcase or other articles shall be placed in front of or affixed to any
part of the Building or the Common Facilities.
6. The lavatories, water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or other substances shall be
thrown or deposited therein. All damages resulting from any misuse thereof shall
be repaired at the expense of the Tenant that permitted or suffered the
violation hereof by the Tenant, the Tenant's employees, other agents or Guests.
7. Except as otherwise provided in the Lease or the Tenant Plan, the Tenant
shall not mark, paint, drill into or in any way deface any part of the Leased
Premises, the Building, the Common Facilities or the Property. Except as
otherwise provided in the Lease or the Tenant Plan, no boring, cutting or
stringing of wires shall be permitted, except with the prior written consent of
the Landlord, and as the Landlord may direct. Linoleum and other resilient floor
coverings shall be laid so that the same shall not come in direct contact with
the floor of the Leased Premises; and if linoleum or other resilient floor
coverings are desired, an interlining of builder's deadening felt shall be first
affixed to the floor by a paste or other material that is, and will remain,
soluble in water. The use of cement or other adhesive material that either is
not, or will not remain, soluble in water is prohibited.
- 46 -
8. No bicycles, vehicles, animals, reptiles, fish or birds of any kind shall be
brought into or kept in or about the Leased Premises.
9. No excessive noise including, without limiting the generality of the
foregoing, music or the playing of musical instruments, recordings, radio or
television which, in the reasonable judgment of Landlord, might disturb tenants
of Other Leased Premises shall be made or permitted by the Tenant. Nothing shall
be done or permitted in the Leased Premises by the Tenant which would impair or
interfere with the use or enjoyment of Other Leased Premises by any tenant
thereof. Nothing shall be thrown out of the doors, windows or skylights or down
the passageways of the Building.
10. The Tenant shall not manufacture any commodity or, except in connection with
kitchen spaces accessory to Tenant's use, prepare or dispense any foods or
beverages, tobacco, flowers or other commodities or articles without the prior
written consent of the Landlord.
11. Duplicates of keys and passes distributed to the Tenant by the Landlord
shall not be made. The Tenant shall provide appropriate security for keys.
Nothing shall be done to render any lock inoperable by the Building Grand Master
Key. No lock shall be installed without the Landlord's prior written consent;
and any lock so installed shall be operable by the Building Grand Master Key.
Upon termination of the Term, all keys, passes and duplicates provided by the
Landlord to the Tenant, or otherwise procured by the Tenant, shall be returned
to the Landlord. Any failure to comply with the foregoing which requires changes
in locks, new or additional keys, passes or duplicates or other services of a
locksmith shall be paid by the Tenant.
12. All deliveries and removals, and the carrying in or out of any safes,
freight, furniture, packages, boxes, crates or any other object or matter of any
description shall take place during such hours, in such manner and in such
elevators and passageways as the Landlord may determine from time to time and
publish in written notices to building tenants. Subject to the limitations of
applicable law, the Landlord reserves the right to inspect all objects and
matter being brought into the Building or the Common Facilities and to exclude
from the Building and the Common Facilities all objects and matter that violates
any of these Building Rules and Regulations or that are contraband. The Landlord
may (but shall not be obligated to) require any person leaving the Building or
the Common Facilities with any package or object or matter from the Leased
Premises to establish his authority from the Tenant to do so. The establishment
and enforcement of such a requirement shall not impose any responsibility on the
Landlord for the protection of the Tenant against the removal of property from
the Leased Premises. The Landlord shall not be liable to the Tenant for damages
or loss arising from the admission, exclusion or ejection of any person to or
from the Leased Premises or the Building or the Common Facilities under this
rule.
13. The Tenant shall not place any object in any portion of the Building that is
in excess of the safe carrying or designed load capacity of the structure.
14. The Landlord shall have the right to prohibit any advertising or display of
any identifying sign by the Tenant which in the reasonable exercise of
Landlord's judgment tends to impair the reputation of the Building or its
desirability; and, on written notice from the Landlord, the Tenant shall refrain
from or discontinue such advertising or display of such identifying sign.
15. The Landlord reserves the right to exclude from the Building and the Common
Facilities during hours other than Regular Business Hours all persons who do not
present a pass thereto signed by both the Landlord and the Tenant. All persons
entering or leaving the Building or the Common Facilities during hours other
than Regular Business may be required to sign a register. The Landlord will
furnish passes to persons for whom the Tenant requests same in writing. The
establishment and enforcement of such a requirement shall not impose any
responsibility on the Landlord for the protection of the Tenant against
- 47 -
unauthorized entry of persons.
16. The Tenant, before closing and leaving the Leased Premises at any time shall
use commercially reasonable measures to have all lights and appliances
generating heat (other than the heating system) turned off. All entrance doors
to the Leased Premises shall be left locked by the Tenant when the Leased
Premises are not in use. At any time when the Building or the Common Facilities
are locked during hours other than Regular Business Hours, the Building and the
Common Facilities locks shall not be defeated by any means, such as by leaving a
door ajar.
17. No person shall go upon the roof of the Building without the prior written
consent of the Landlord.
18. Any requirements of the Tenant may be attended to only upon application at
the office of the Building. The Landlord and its agents shall not perform any
work or do any work or do anything outside of the Landlord's obligations under
the Agreement except upon special instructions from the Landlord on terms
acceptable to the Landlord and the Tenant.
19. Canvassing, soliciting and peddling in the Building and the Common
Facilities are prohibited and the Tenant shall cooperate to prevent same.
20. There shall not be used in any space, or in the public halls or other Common
Facilities of the Building, in connection with the moving or delivery or receipt
of safes, freight, furniture, packages, boxes, crates, paper, office material,
or any other matter or thing, any hand trucks or dollies except those equipped
with rubber tires, side guards and such other safeguards as the Landlord
reasonably shall require. No hand trucks shall be used in passenger elevators,
and no passenger elevators shall be used for the moving, delivery or receipt of
the aforementioned articles. In connection with moving in or out any furniture,
furnishings, equipment, heavy articles and heavy packages, the Tenant shall take
such precautions as reasonably may be necessary to prevent excessive wear and
tear in the Building's Common Facilities and the Leased Premises including,
without limiting the generality of the foregoing, floor and wall treatments.
21. The Tenant shall not cause or permit any odors of cooking or other processes
or any unusual or objectionable odors to emanate from the Leased Premises which
might constitute a Nuisance.
22. The Landlord reserves the right not to enforce any Building Rule or
Regulation against any tenants of Other Leased Premises. The Landlord reserves
the right to rescind, amend or waive any Building Rule and Regulation when, in
the Landlord's reasonable judgment, it appears necessary or desirable for the
reputation, safety, care or appearance of the Building or the preservation of
good order therein or the operation of the Building or the comfort of tenants or
others in the Building; provided, however, that Landlord shall apply, enforce
and waive, as applicable, Building Rules and Regulations in a reasonable,
uniform and non-discriminatory manner.
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EXHIBIT E
DEFINITIONS AND INDEX OF DEFINITIONS
In accordance with section 1 of the Agreement of which this exhibit is a part,
throughout the Agreement the following terms and phrases shall have the meanings
set forth or referred to below:
1. "Additional Rent" means all amounts, other than Basic Rent and any
Security Deposit, required to be paid by the Tenant to the Landlord in
accordance with this Agreement.
2. "Additional Right of First Offer" is defined in subsection 6.2.2 of this
Agreement.
3. "Adjusted Gross Footage" is defined in definition 34 of this Agreement.
4. "Adjusted Tenant's Share" is defined in definition 62 of this Agreement.
5. "Affiliate" is defined in subsection 17.6 of this Agreement.
6. "Agreement" means this Lease and Lease Agreement (including exhibits), as
it may have been amended.
7. "Allowance" is defined in section 44 of this Agreement.
8. "Annual Amortized Capital Expenditure" means the payment amount determined
as an annuity in arrears using the cost incurred by the Landlord for any
Capital Expenditure as the present value, the number of years of its
useful life selected by the Landlord in accordance with GAAP, but without
reference to any tax regulations, as the number of periods and the Base
Rate in effect when the respective improvement is first placed into
service plus two additional percentage points as the annual rate of
interest.
9. "Base Rate" means the prime commercial lending rate per year as announced
from time to time by Fleet National Bank at its principal office.
10. "Base Year" means the full calendar year 2002 with respect to Operational
Expenses (adjusted in accordance with the definition of Base Year
Operational Expenses which follows) and Taxes.
11. "Base Year Operational Expenses" means Operational Expenses incurred by
the Landlord during the Base Year as defined in subsection 10.2 of this
Agreement. If less than 95% of the rentable area of the Building is
occupied during the Base Year then the Base Year Operational Expenses
shall be increased to the amount which normally would have been incurred
had the occupancy been 95%. If in any subsequent calendar year less than
95% of the rentable area of the Building is occupied, the Operational
Expenses for such calendar year shall be increased to the amount which
normally would have been incurred had the occupancy been 95%. If the
cafeteria is reduced in size or eliminated then the Base Year Operational
Expenses shall be adjusted by eliminating any expense associated with the
cafeteria which was incurred during the Base Year. If the cafeteria is
restored, then the full Base Year Operational Expenses shall be restored.
12. "Base Year Taxes" means the product of the final assessed value, as the
same may subsequently be adjusted in any appeal of the tax assessor's
valuation, of the Property, the Building and any other improvements on the
Property in the Base Year and the Municipality's lowest tax rate for
office buildings and the property on which they stand in effect during the
Base Year.
- 49 -
13. "Basic Rent" is defined in subsection 3.2 of this Agreement as revised by
subsection 8.1.11 of this Agreement and definition 34 of this Agreement.
14. "Broker" is defined in subsection 30.2 of this Agreement.
15. "Building" means the office building erected on the Property which is
commonly known as 685 Route 202/206, Bridgewater, New Jersey, as it may,
in the Landlord's sole discretion, be increased, decreased, modified,
altered or otherwise changed from time to time before, during or after the
Term. As the Building is presently constructed it is agreed to contain
137,139 gross rentable square feet of floor space. The Building also
contains 9,520 square feet of basement area.
16. "Capital Expenditure" is defined in subsection 10.3 of this Agreement.
17. "Commencement Date" is defined in section 4 of this Agreement.
18. "Common Facilities" means the areas, facilities and improvements provided
by the Landlord in the Building (except the Leased Premises and the Other
Leased Premises) and on or about the Property, including, without limiting
the generality of the foregoing, the Parking Facilities and access roads
thereto, for non-exclusive use by the Tenant in accordance with subsection
2.2 of this Agreement, as they may, in the Landlord's sole discretion, be
increased, decreased, modified, altered or otherwise changed from time to
time before, during or after the Term, and subject to rights which may be
granted to the major tenant to utilize the lobby as a common reception
area. If access roads are shared with other properties then the costs
associated therewith shall be allocated on an equitable basis among the
properties utilizing the access roads.
19. "Common Walls" means those walls which separate the Leased Premises from
Other Leased Premises.
20. "Completion Delay" is defined in subsection 4.2.2.5 of this Agreement.
21. "Election Right" is defined in subsection 21.2 of this Agreement.
22. "Electric Charges" means all the supplying utility's charges for, or in
connection with, furnishing electricity including charges determined by
actual usage, any seasonal adjustments, demand charges, energy charges,
energy adjustment charges and any other charges, howsoever denominated, of
the supplying utility, including sales and excise taxes and the like,
without any markup by the Landlord.
23. "Environmental Laws" is defined in subsection 7.2.8 (ii) of this
Agreement.
24. "Event of Default" is defined in section 22 of this Agreement.
25. "Expiring Term" means, when used in the context of any Option to Renew,
the Term as it is then scheduled to expire (immediately prior to exercise
of the next available Option to Renew).
26. "Gross Footage" is defined in definition 34 of this Agreement.
27. The Tenant's "Guests" shall mean the Tenant's licensees, invitees and all
others in, on or about the Leased Premises, the Building, the Common
Facilities or the Property, either at the Tenant's express or implied
request or invitation or for the purpose of soliciting or visiting the
Tenant.
28. "Hazardous Substance" is defined in subsection 7.2.8 (ii) of this
Agreement.
29. "Holdover Damages" is defined in subsection 23.4 of this Agreement.
- 50 -
30. "Index" means the "all items" index figure for the New York Northeastern
New Jersey average of the Consumer Price Index for all urban wage earners
and clerical workers which uses a base period of 1982-84=100, published by
the United States Department of Labor, so long as it continues to be
published. If the Index is not published for a period of three consecutive
months, or if its base period is changed, the term "Index" shall mean that
index, as nearly equivalent in purpose, function and coverage as
practicable to the original Index, which the Landlord shall have
designated by notice to the Tenant.
31. "Initial Term" means the period so designated in subsection 4.1 of this
Agreement.
32. "Initial Year" means the first 12 full calendar months of the Initial
Term.
33. "Landlord" means the person so designated at the beginning of this
Agreement and those successors to the Landlord's interest in the Property
and/or the Landlord's rights and obligations under this Agreement
contemplated by section 26 of this Agreement.
34. "Leased Premises" means that portion of the interior of the Building (as
viewed from the interior of the Leased Premises) bounded by the interior
sides of the unfinished floor and the finished ceiling on the floor (as
the floors have been designated by the Landlord) of the Building, the
centers of all Common Walls and the exterior sides of all walls other than
Common Walls, the outline of which floor space is designated on the
diagram set forth in Exhibit A attached hereto, which portion contains
15,436 usable square feet of floor space (the "Usable Footage") and 18,809
square feet of gross rentable floor space (the "Gross Footage"). If the
present square footage of the cafeteria is reduced, then the Gross Footage
shall be adjusted downward and the Basic Rent shall be redetermined by
multiplying the Adjusted Gross Footage by the Basic Rent per foot which
would otherwise be due under this Agreement. To determine the Adjusted
Gross Footage, the number of usable square feet of floor space which is
added to the Building's net rentable area (by reason of the elimination of
some or all of the cafeteria) shall be added to 112,409 square feet (the
"Revised Usable Footage"). A new factor shall be calculated (the "New
Multiplier") which, when multiplied by the Revised Usable Footage,
produces a product of 137,139 square feet. The Adjusted Gross Footage
shall equal the product of the Usable Footage multiplied by the New
Multiplier (the "Adjusted Gross Footage"). Similar adjustments shall be
made each time the size of the cafeteria is adjusted but the Gross Footage
shall not be increased to more than 18,809 square feet.
35. "Legal Holidays" means New Year's Day, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
36. "Market Rental Rate" means, at the time of reference, the gross rentable
floor space of the Leased Premises multiplied by that annual rate of Basic
Rent per square foot of gross rentable floor space which is the result of
arm's length negotiation between sophisticated landlords and tenants for
comparable other leased premises taking into consideration the term of the
lease, tenant improvements allowance and other concessions.
37. "Municipality" means Bridgewater, New Jersey, or any successor
municipality with jurisdiction over the Property.
38. "New Multiplier" is defined in definition 34 of this Agreement.
39. "No Pass Through Period" means, in the context of Operational Expenses and
Taxes, the period beginning on the Commencement Date and ending on the day
prior to the first anniversary of the Commencement Date.
- 51 -
40. "Nuisance" means any condition or occurrence which unreasonably or
materially interferes with the authorized use and enjoyment of the Other
Leased Premises and the Common Facilities by any tenant of Other Leased
Premises or by any person authorized to use any Other Leased Premises or
Common Facilities.
41. "Operational Expenses" is defined in subsection 10.2 of this Agreement.
42. "Option to Renew" is defined in subsection 6.1 of this Agreement.
43. "Other Leased Premises" means all premises within the Building, with the
exception of the Leased Premises, that are, or are available to be, leased
to tenants or prospective tenants, respectively.
44. "Outside Date" is defined in subsection 4.1 of this Agreement.
45. "Parking Facilities" means the parking area adjacent to the Building,
which parking area is provided as Common Facilities which includes not
fewer than four (4) standard-sized parking spaces per 1,000 usable square
feet within the Building.
46. "Person" includes an individual, a corporation, a partnership, a trust, an
estate, an unincorporated group of persons and any group of persons.
47. "Post-Term Rent" is defined in subsection 32.5 of this Agreement.
48. "Property" means the parcel of land, as it may, in the Landlord's sole
discretion, be increased, decreased, modified, altered or otherwise
changed from time to time before, during or after the Term, on which the
Building is erected. As the Property is presently constituted, it is more
particularly described in Exhibit B attached hereto.
49. "Regular Business Hours" means 8:00 A.M. to 7:00 P.M., Monday through
Friday; and 9:00 A.M. to 1:00 P.M. on Saturdays; except on Legal Holidays.
50. "Re-Leasing Damages" is defined in subsection 23.3.
51. "Renewal Term" means, at the time of reference, any portion of the Term,
other than the Initial Term, as to which the Tenant has properly exercised
an Option to Renew which Option to Renew has not been rescinded in
accordance with subsection 6.2 of this Agreement.
52. "Rent" means Basic Rent and Additional Rent.
53. "Revised Usable Footage" is defined in definition 34 of this Agreement.
54. "Right of First Offer" is defined in subsection 6.2.1 of this Agreement.
55. "Security Deposit" is designated in section 29 of this Agreement.
56. "Target Date" means, upon execution and delivery of this Agreement, the
then estimated Commencement Date which is hereby established to be June 1,
2002.
57. "Taxes" means, in any calendar year, the aggregate amount of real property
taxes, assessments and sewer rents, rates and charges, state and local
taxes, transit taxes and every other governmental charge, whether general
or special, ordinary or extraordinary (except corporate franchise taxes
and taxes imposed on, or computed as a function of, net income or net
profits from all sources and except taxes charged, assessed or levied
exclusively on the Leased Premises or arising exclusively from the
Tenant's
- 52 -
occupancy of the Leased Premises) charged, assessed or levied by any
taxing authority with respect to the Property, the Building, the Common
Facilities and any other improvements on the Property, less any refunds or
rebates (net of expenses incurred in obtaining any such refunds or
rebates) of Taxes actually received by the Landlord during such calendar
year with respect to any period during the Term for the benefit of the
Tenant, tenants of Other Leased Premises and the Landlord. If during the
Term there shall be a change in the means or methods of taxing real
property generally in effect at the beginning of the Term and another type
of tax or method of taxation should be substituted in whole or in part
for, or in lieu of, Taxes, the amounts calculated under such other types
of tax or by such other methods of taxation shall also be deemed to be
Taxes. Until such time as the actual amount of Taxes for any calendar year
becomes known, the amount thereof shall be the Landlord's estimate of
Taxes for that calendar year.
Tenant's proportionate share of Taxes shall only include those
installments thereof becoming due during the term of this Lease. If any
assessments may be paid in installments over a period of years, such
assessments shall be deemed to be payable over the longest number of years
permitted by the assessing authority, and only the installments coming due
during the term of this Lease, together with any interest or carrying
charges due will be included within the impositions payable by Tenant. In
addition, Landlord agrees to take advantage of opportunities providing
payment of impositions at a discount to the extent Landlord, in its
reasonable business judgment, shall determine.
In addition, Tenant's obligation hereunder shall expressly exclude any
excise, franchise, estate, succession or inheritance taxes, as well ass
any penalties imposed for late payment of any real estate tax, assessment
or other imposition (except for penalties on taxes which Landlord has not
paid as a result of a bona fide contest or for which it has not received
payment from Tenant) and shall in no event include any real estate tax or
assessment attributable solely to a period occurring prior to the
Commencement Date of this Lease.
58. "Tenant" means the person so designated at the beginning of this
Agreement.
59. "Tenant Electric Charges" means (a) during Regular Business Hours,
Electric Charges attributable to the Tenant's use of electricity in the
Leased Premises for purposes other than heating, ventilation and air
conditioning provided to the Leased Premises by the Landlord in accordance
with subsection 8.1.5 of this Agreement and (b) during other than Regular
Business Hours, a charge at the rate of $50.00 per hour or partial hour of
use plus Electric Charges attributable to the Tenant's use of electricity
in the Leased Premises for all purposes including, without limiting the
generality of the foregoing, heating, ventilation and air conditioning.
Landlord shall arrange for a system operating twenty-four (24) hours a day
by which Tenant may secure after hours heating and air-conditioning on
demand.
60. "Tenant Plan" means construction drawings and related construction
specifications regarding the build-out of the Leased Premises (with any
construction drawings in a reproducible diazo sepia mylar form and in CAD
readable format) including, without limiting the generality of the
foregoing, the finish schedule, signed and sealed by a New Jersey-licensed
architect, complying in all respects with applicable building and fire
codes and insurance underwriting standards in effect and in sufficient
detail to permit the Municipality to issue any required building permits
and to permit skilled contractors to supply and perform the work called
for therein. The Tenant Plan shall not include any specialized computer
installations or any telecommunications equipment or facilities.
61. "Tenant Plan Due Date" means March 18, 2002.
62. "Tenant's Share" of any amount means 13.715%. The Tenant's Share shall be
adjusted if the present square footage of the cafeteria is reduced. The
Adjusted Tenant's Share shall be determined by
- 53 -
dividing the Adjusted Gross Footage determined in accordance with
definition 34 of this Agreement by 1,371.39 (the "Adjusted Tenant's
Share"). Similar adjustments shall be made each time the size of the
cafeteria is adjusted but the Tenant's Share shall not be increased to
more than 13.715%.
63. "Term" means the Initial Term plus, at the time of reference, any Renewal
Term.
64. "Termination Damages" is defined in subsection 23.2 of this Agreement.
65. "Usable Footage" is defined in definition 34 of this Agreement.
66. "Utilities Expenses" means Electric Charges (other than Tenant Electric
Charges) and all charges for any other fuel that may be used in providing
electricity and services powered by electricity that the Landlord provides
in accordance with section 8 of this Agreement to the Building, the Leased
Premises, Other Leased Premises, the Common Facilities and the Property,
including sales and excise taxes and the like.
67. "Venture Partner" is defined in subsection 17.7 of this Agreement.
68. "Wire Restoration Work" is defined in subsection 21.2.2 of this Agreement.
69. "Wiring" is defined in subsection 21.2.1 of this Agreement.
70. "Work" is defined in subsection 5.2 of this Agreement.
71. "Work Letter" means Exhibit C attached hereto which describes the
improvements which Landlord will install without installation charge to
the Tenant in addition to the Work.
- 54 -
LEASE AND LEASE AGREEMENT
Between
Route 206 Associates
The Landlord
And
Enzon, Inc.
The Tenant
For Leased Premises In
685 Route 202/206, Bridgewater, New Jersey
March , 2002
Prepared by:
Gary O. Turndorf
520 Route 22
P.O. Box 6872
Bridgewater, NJ 08807
(908) 725-8100
TABLE OF CONTENTS
Page
----
1. DEFINITIONS ........................................................... 1
2. LEASE OF THE LEASED PREMISES .......................................... 1
3. RENT .................................................................. 1
4. TERM .................................................................. 2
5. PREPARATION OF THE LEASED PREMISES .................................... 4
6. OPTIONS ............................................................... 5
7. USE AND OCCUPANCY ..................................................... 6
8. UTILITIES, SERVICES, MAINTENANCE AND REPAIRS .......................... 8
9. ALLOCATION OF THE EXPENSE OF UTILITIES, SERVICES, MAINTENANCE, REPAIRS
AND TAXES ............................................................. 9
10. COMPUTATION AND PAYMENT OF ALLOCATED EXPENSES OF UTILITIES, SERVICES,
MAINTENANCE, REPAIRS, TAXES AND CAPITAL EXPENDITURES .................. 10
11. LEASEHOLD IMPROVEMENTS, FIXTURES AND TRADE FIXTURES ................... 17
12. ALTERATIONS, IMPROVEMENTS AND OTHER MODIFICATIONS BY THE TENANT ....... 17
13. LANDLORD'S RIGHTS OF ENTRY AND ACCESS ................................. 19
14. LIABILITIES AND INSURANCE OBLIGATIONS ................................. 20
15. CASUALTY DAMAGE TO BUILDING OR LEASED PREMISES ........................ 22
16. CONDEMNATION .......................................................... 23
17. ASSIGNMENT OR SUBLETTING BY TENANT .................................... 23
18. SIGNS, DISPLAYS AND ADVERTISING ....................................... 26
19. QUIET ENJOYMENT ....................................................... 27
20. ITENTIONALLY OMITTED .................................................. 27
21. SURRENDER ............................................................. 27
22. EVENTS OF DEFAULT ..................................................... 28
23. RIGHTS AND REMEDIES ................................................... 29
- i -
24. INTENTIONALLY OMITTED ................................................. 32
25. MORTGAGE AND UNDERLYING LEASE PRIORITY ................................ 32
26. TRANSFER BY LANDLORD .................................................. 32
27. INDEMNIFICATION ....................................................... 33
28. PARTIES' LIABILITY .................................................... 35
29. SECURITY DEPOSIT ...................................................... 36
30. REPRESENTATIONS ....................................................... 37
31. RESERVATION IN FAVOR OF TENANT ........................................ 38
32. TENANT'S CERTIFICATES AND MORTGAGEE NOTICE REQUIREMENTS ............... 38
33. WAIVER OF JURY TRIAL .................................................. 40
34. SEVERABILITY .......................................................... 40
35. NOTICES ............................................................... 41
36. CAPTIONS .............................................................. 41
37. COUNTERPARTS .......................................................... 41
38. APPLICABLE LAW ........................................................ 41
39. EXCLUSIVE BENEFIT ..................................................... 41
40. SUCCESSORS ............................................................ 41
41. AMENDMENTS ............................................................ 41
42. WAIVER ................................................................ 41
43. COURSE OF PERFORMANCE ................................................. 42
44. LANDLORD'S CONCESSION ................................................. 42
================================================================================
EXHIBIT DESCRIPTION PAGE
- --------------------------------------------------------------------------------
A LEASED PREMISES FLOOR SPACE DIAGRAM .......................... 43
B PROPERTY DESCRIPTION ......................................... 44
C WORK LETTER .................................................. 45
D BUILDING RULES AND REGULATIONS ............................... 46
E DEFINITIONS AND INDEX OF DEFINITIONS ......................... 49
================================================================================
- ii -
Exhibit 10.15
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of March 6, 2002 (the
"Effective Date"), between Enzon, Inc. (the "Company"), a Delaware corporation
with offices in Piscataway, New Jersey, and Uli Grau, Ph.D. (the "Executive"), a
resident of New York, New York.
WHEREAS, the Company is a biopharmaceutical company engaged in developing
advanced therapeutics for life threatening diseases; and
WHEREAS, Executive has extensive experience as an executive of a
pharmaceutical company; and
WHEREAS, the Company wishes to employ the Executive to render services for
the Company on the terms and conditions set forth in this Agreement, and the
Executive wishes to be retained and employed by the Company on such terms and
conditions;
NOW, THEREFORE, in consideration of the premises, the mutual agreements
set forth below and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. Employment.
The Company hereby employs the Executive, and the Executive accepts such
employment and agrees to perform services for the Company, for the period and
upon the other terms and conditions set forth in this Agreement.
2. Term.
Unless terminated at an earlier date in accordance with Section 9 hereof, the
term of the Executive's employment hereunder shall commence on the later of
April 1, 2002 or the first day of the month following the date on which the U.S.
Immigration and Naturalization Service grants employment authorization to
Executive to perform services for the Company (the "Commencement Date") and
shall extend through March 31, 2005, subject to automatic renewal for an
additional twenty-four (24) months, unless either party hereto receives written
notice from the other party no later than January 31, 2005 (a "notice of
non-renewal") that such other party does not wish for the term hereof to
continue beyond March 31, 2005, in which event the term hereof shall end on
March 31, 2005 (the period during which the Executive is employed by the Company
pursuant to this Section 2 being the "Term"). In the event the Commencement Date
does not occur on or prior to July 1, 2002, or such mutually agreed upon
extended period of time, this Agreement shall terminate and be of no further
force or effect and the parties shall have no obligation to each other under
this Agreement or otherwise.
3. Position and Duties.
(a) Service with Company. During the term of the Executive's employment,
the Executive agrees to perform such employment duties for the Company in an
executive and managerial capacity commensurate with the position of Chief
Scientific Officer of the Company. As Chief Scientific Officer, Executive shall
have the authority and duty generally to supervise and direct the research and
development activities of the Company, subject to the control and direction of
the Chief Executive Officer of the Company, the Board of Directors of the
Company (the "Board"), or any duly authorized Committee of the Board.
(b) Performance of Duties. The Executive agrees to serve the Company
faithfully and to the best of his ability and to devote his full time, attention
and efforts to the business and affairs of the Company during his employment by
the Company. Executive will not render or perform services for any other
corporation, firm, entity or person which are inconsistent with the provisions
of this Agreement. While he remains employed by the Company, the Executive may
participate in reasonable charitable activities and personal investment
activities so long as such activities do not conflict or interfere with the
performance of his obligations under this Agreement.
(c) Executive Representations and Warranties. Executive represents and
warrants to the Company that his entering into and performing this Agreement
will not constitute a breach of any employment, consulting, non-competition or
other agreement to which he is a party or any other obligation of Executive.
Executive represents and warrants to the Company that he has not been debarred
under the Generic Drug Enforcement Act of 1992 (Sections 306-308 of the Federal
Food, Drug and Cosmetic Act) nor has Executive received notice of action or
threat of action of debarment. Executive's employment hereunder shall be
conditioned upon his submission to a pre-employment drug test and receipt of a
negative test result and Executive shall comply with the Company's Substance
Abuse Policy during the term of this Agreement.
4. Compensation.
(a) Base Salary. As compensation in full for all services to be rendered
by the Executive under this Agreement, the Company shall pay to the Executive,
less applicable deductions and withholdings, a ratable base salary (the "Base
Salary") of Four Hundred Thousand Dollars ($400,000) per year, which Base Salary
shall be paid in accordance with the Company's normal payroll procedures and
policies for its senior management. The compensation payable to Executive during
each year after the first year of the Executive's employment shall be
established by the Board or the Compensation Committee thereof following an
annual performance review by the Board, but in no event shall the Base Salary
for any successive year of the Term be less than the Base Salary in effect
during the previous year of the Term.
(b) Annual Bonus. Executive shall be entitled to participate in the
Company's bonus plan for management and any successor bonus plan covering
management with respect to each fiscal year of the Company ending during the
Term (the "Bonus Plan"). Under the Bonus Plan, the Executive shall be eligible
to receive a performance-based cash bonus for each fiscal year ending during the
Term in an amount, and based on individual and/or corporate objectives, targets
and factors (and evaluation as to the extent of achievement thereof), to be
established and determined by the Board in its discretion following consultation
between the Chief Executive Officer and Executive prior to, or within sixty (60)
days after the commencement of, each fiscal
2
year (or in the case of the fiscal year ending June 30, 2002, within thirty (30)
days following the Commencement Date). Under the Bonus Plan for the Executive,
(i) the minimum cash bonus shall be zero (0), (ii) the target cash bonus shall
equal 50% of the Base Salary (the "Target Bonus"), and (iii) the maximum cash
bonus shall equal 82.5% of Base Salary. Any bonus payable with respect to the
fiscal year ending June 30, 2002 shall be pro rated by multiplying the bonus
which would have been payable for the entire fiscal year by a fraction, the
numerator of which is the number of days between the Commencement Date and June
30, 2002 and the denominator of which is 365.
(c) Participation in Benefit Plans. While he is employed by the Company,
Executive shall also be eligible to participate in any employee benefit plans or
programs which may be offered by the Company to the extent that Executive meets
the requirements for each individual plan and in all other plans in which
Company executives participate. The Company provides no assurance as to the
adoption or continuance of any particular employee benefit plan or program, and
Executive's participation in any such plan or program shall be subject to the
provisions, rules and regulations applicable thereto.
(d) Expenses. The Company will pay or reimburse Executive for all
reasonable and necessary out-of-pocket expenses incurred by him in the
performance of his duties under this Agreement, subject to the Company's normal
policies for expense verification. The Company will also bear the cost of a
corporate country club membership for use by Executive during the Term.
(e) Stock Options. Subject to Executive commencing his employment
hereunder as the Company's Chief Scientific Officer on the Commencement Date,
Executive shall be granted options to purchase an aggregate of 150,000 shares of
Common Stock of the Company, subject to the terms of the Enzon, Inc.
Non-Qualified Stock Option Plan, as amended (the "Option Plan"), and the Notice
of Option Grant attached hereto as Exhibit A. Except as otherwise provided
herein the Option Plan shall govern the terms of the options granted herein.
Executive acknowledges that he has received and reviewed a copy of the Option
Plan. The exercise price of such options shall be the last reported sale price
of a share of Common Stock as reported by the Nasdaq Stock Market on the
Commencement Date. Such options shall vest and become exercisable (a) as to
100,000 of such options, at the rate of 20,000 shares per year, commencing on
the first anniversary of the Commencement Date, provided that any unvested
portion of such 100,000 options shall immediately vest and become exercisable
(subject to the requirement in the Option Plan that such options not be
exercisable for the six months after the grant date thereof) when the last
reported sale price of a share of the Common Stock is at least one hundred
dollars ($100.00) as reported on the Nasdaq Stock Market for at least twenty
(20) consecutive trading days, and (b) as to 50,000 of such options, on the
fifth anniversary of the Commencement Date, provided such 50,000 options shall
immediately vest and become exercisable (subject to the requirement in the
Option Plan that such options not be exercisable for the six months after the
grant date thereof) on the date on which the audited financial statements of the
Company for a fiscal year are issued, which report net annual revenues of not
less than Fifty Million Dollars ($50,000,000) from the commercial sale of
product(s) used for organ rejection or autoimmune diseases ("Organ Rejection and
Autoimmune Products"), provided in the case of each of clause (a) and (b) of
this paragraph that, except as otherwise provided in Section 10 hereof,
Executive is then employed by the Company on a full-time basis as its Chief
Scientific Officer. For purposes of this Section "net annual revenues" shall
mean the Company's revenues for a fiscal year of the Company derived from "net
sales" of Organ Rejection and
3
Autoimmune Products by the Company as well as royalties paid to the Company
during such fiscal year by any licensee(s) from the sale of Organ Rejection and
Autoimmune Products. "Net sales" shall mean the proceeds actually received by
the Company from its sale of Organ Rejection and Autoimmune Products to
independent, third party customers in bona fide, arm's-length transactions less
(1) actual allowances for returns, damages or otherwise, and discounts, rebates
and allowances to customers, including cash, credit or free goods allowances;
and (2) freight or other transportation charges, including insurance, actually
allowed or paid on account of the delivery of Organ Rejection and Autoimmune
Products to purchasers thereof; and (3) taxes (except income taxes) or duties
paid, absorbed or otherwise imposed on the sale, including, without limitation,
value added taxes. The price of the Common Stock that triggers accelerated
vesting of such options shall be adjusted for stock splits, stock dividends and
other similar recapitalization events. Except as otherwise provided in Section
10 hereof, once such options become exercisable they shall remain exercisable
until 5:00 p.m. New York City time on the tenth (10th) anniversary of the
Commencement Date. In addition, at the discretion of the Board of Directors (or
its applicable committee), Executive shall be entitled to receive further grants
of stock options, subject to the terms of the Option Plan.
(f) Vacation. Executive shall be entitled to vacations in accordance with
the policy of the Company with respect to its senior management, in effect from
time to time.
5. Noncompetition and Confidentiality Covenant.
(a) Noncompetition. The "Noncompete Period" shall be:
(i) the Term of this Agreement, and
(ii) (A) with respect to any activity covered by clause (y) or (z)
below, the one (1) year period immediately following termination of
Executive's employment with the Company and (B) with respect to any
activity covered by clause (x) below, the two (2) year period immediately
following termination of Executive's employment with the Company (whether
any such termination covered by clause (A) or (B) is with or without Cause
or with or without Good Reason, or whether such termination is occasioned
by the Employee or the Company, or whether such termination occurs as a
result of the expiration or nonrenewal of the Term).
In consideration for the compensation payable to Executive pursuant to
this Agreement, including without limitation the stock options granted to
Executive hereunder, during the Noncompete Period, Executive will not directly,
or indirectly, whether as an officer, director, stockholder, partner,
proprietor, associate, employee, consultant, representative or otherwise,
become, or be interested in or associated with any other person, corporation,
firm, partnership or entity, engaged to a significant degree in (x) developing,
manufacturing, marketing or selling enzymes, protein-based biopharmaceuticals or
other pharmaceuticals that are modified using polyethylene glycol ("PEG"), (y)
developing, manufacturing, marketing or selling single-chain antigen-binding
proteins or (z) any activity which is in competition with or resembles any
technology, process, product or area of business in which the Company is engaged
or with Executive's participation has been actively planning to be engaged from
time to time during the term of this Agreement. For purposes of the preceding
sentence, to determine whether any entity is engaged in such activities to a
"significant degree", comparison will be made to the Company's operations at
that time. In other words, an entity will be deemed to be engaged in an activity
to a significant degree if the number of employees and/or amount of funds
devoted by such entity to
4
such activity would be material to the Company's operations at that time.
Executive is hereby prohibited from ever using any of the Company's proprietary
information or trade secrets to conduct any business, except for the Company's
business while Executive is employed by the Company as provided in Section 5(b)
hereof. The provisions contained in this Section 5(a) shall survive the
termination of Executive's employment pursuant to Section 9 hereof or otherwise.
In the event Executive breaches any of the covenants set forth in this Section
5(a), the running of the period of restriction set forth herein shall recommence
upon Executive's compliance with the terms of this Section 5(a).
(b) Confidentiality. Executive recognizes and acknowledges that
information relating to the Company's business, including, but not limited to,
information relating to patent applications filed or to be filed by the Company,
trade secrets relating to the Company's products or services, and information
relating to the Company's research and development activities, shall be and
remain the sole and exclusive property of the Company and is a valuable, special
and unique asset of the Company's business. The Executive will not, during or
after the term of his employment by the Company, disclose any such information
to any person, corporation, firm, partnership or other entity; provided,
however, that, notwithstanding the foregoing, during the term of Executive's
employment with the Company, Executive may make such disclosure if such
disclosure is in the Company's best interests, is made in order to promote and
enhance the Company's business, and sufficient arrangements are made with the
person or entity to whom such disclosure is made to ensure the confidentiality
of such disclosure. The provisions of this Section 5(b) shall survive the
termination of Executive's employment.
(c) Nonsolicitation of Employees. During the Noncompete Period, Executive
shall not, directly or indirectly, personally or through others, encourage to
leave employment with the Company, employ or solicit for employment, or advise
or recommend to any other person, firm, business, or entity that they employ or
solicit for employment, any employee of the Company or of any parent,
subsidiary, or affiliate of the Company. The provisions of this Section 5(c)
shall survive the termination of Executive's employment.
6. Ventures.
If, during the term of his employment, the Executive is engaged in or
associated with the planning or implementing of any project, program, venture or
relationship involving the Company and a third party or parties, all rights in
such project, program, venture or relationship shall belong to the Company.
Except as approved by the Board, the Executive shall not be entitled to any
interest in such project, program, venture or relationship or to any commission,
finder's fee or other compensation in connection therewith other than the
compensation to be paid to the Executive as provided in this Agreement and the
consideration payable by the Company to Vivo Healthcare under a purchase
agreement between the Company and Vivo Healthcare relating to the Company's
acquisition of an immunology product under development for organ rejection and
autoimmune diseases, from Vivo Healthcare.
7. Acknowledgment.
Executive agrees that the covenants and agreements contained in Section 5
hereof are the essence of this Agreement; that each of such covenants is
reasonable and necessary to protect and preserve the Company's interests,
properties and business; that irreparable loss and damage will be suffered by
the Company should Executive breach any of such covenants and agreements; that
each of such covenants and agreements is separate, distinct and severable not
5
only from the other of such covenants and agreements but also from the other and
remaining provisions of this Agreement; that the unenforceability or breach of
any such covenants or agreement shall not affect the validity or enforceability
of any other such covenant or agreement or any other provision of this
Agreement; and that, in addition to other remedies available to it, the Company
shall be entitled to both temporary and permanent injunctions and any other
rights or remedies it may have, at law or in equity, to end or prevent a breach
or contemplated breach by Executive of any such covenants or agreements.
(a) Geographic Extent of Executive's Obligations Concerning Section 5.
Given the nature of the Company's business, the restrictions contained in
Section 5 cannot be limited to any particular geographic region. Therefore, the
obligations of Executive under Section 5 shall apply to any geographic area in
which the Company (i) has engaged in business during the Term through its
investment or trading activities or otherwise, or (ii) has otherwise established
its goodwill, business reputation or any customer or vendor relations.
(b) Limitation of Covenant. Ownership by Executive, as a passive
investment, of less than one percent of the outstanding shares of capital stock
of any corporation listed on a national securities exchange or publicly traded
on Nasdaq shall not constitute a breach of Section 5.
(c) Blue Pencil Doctrine. If the duration or geographical extent of, or
business activities covered by, Section 5 are in excess of what is valid and
enforceable under applicable law, then such provision shall be construed to
cover only that duration, geographical extent or activities that are valid and
enforceable. Executive acknowledges the uncertainty of the law in this respect
and expressly stipulates that this Agreement be given the construction which
renders its provisions valid and enforceable to the maximum extent (not
exceeding its express terms) possible under applicable law.
(d) Disclosure. Executive shall disclose to any prospective employer,
prior to accepting or continuing employment, the existence of Section 5 of this
Agreement and shall provide such prospective employer with a copy of Section 5
of this Agreement. The obligation imposed by this subsection 7(d) shall
terminate two years after the end of the Term.
8. Intellectual Property and Related Matters.
(a) Disclosure and Assignment. Executive will promptly disclose in writing
to the Company complete information concerning each and every product,
invention, discovery, practice, process or method, whether patentable or not,
made, developed, perfected, devised, conceived or first reduced to practice by
Executive, either solely or in collaboration with others, during the Term, or
six months thereafter, whether or not during regular working hours, relating
either directly or indirectly to, or useful in, any aspect of the business,
products, practices or techniques of the Company ("Developments"). Executive, to
the extent that he has the legal right to do so, hereby acknowledges that any
and all of the Developments are the property of the Company and hereby assigns
and agrees to assign to the Company any and all of Executive's right, title and
interest in and to any and all of the Developments. At the request of the
Company, Executive will confer with the Company and its representatives for the
purpose of disclosing all Developments to the Company as the Company shall
reasonably request during the period ending one year after the Term.
(b) Limitation on Section 8(a). The provisions of Section 8(a) shall not
apply to any Development, for which no equipment, supplies, facility or trade
secret information of the
6
Company was used and which was developed entirely on Executive's own time,
unless (a) the invention relates (i) directly to the business of the Company, or
(ii) to the Company's actual or demonstrably anticipated research or
development, or (b) the invention results from any work performed by Executive
for the Company.
(c) Assistance of Executive. Upon request and without further compensation
therefor, but at no expense to Executive, Executive will do all lawful acts,
including but not limited to, the execution of papers and lawful oaths and the
giving of testimony, that in the opinion of the Company, may be necessary or
desirable in enforcing the Company's intellectual property and trade secret
rights, and for perfecting, affirming and recording the Company's complete
ownership and title thereto.
(d) Records. Executive will keep complete, accurate and authentic
accounts, notes, data and records of the Developments in the manner and form
requested by the Company. Such accounts, notes, data and records shall be the
property of the Company, and, upon the earlier of its request or the conclusion
of his employment, Executive will promptly surrender same to it.
(e) Copyrightable Material. All right, title and interest in all
copyrightable material that Executive shall conceive or originate, either
individually or jointly with others, and which arise out of the performance of
this Agreement, will be the property of the Company and are by this Agreement
assigned to the Company along with ownership of any and all copyrights in the
copyrightable material. Upon request and without further compensation therefor,
but at no expense to Executive, Executive shall execute all papers and perform
all other acts necessary to assist the Company to obtain and register copyrights
on such materials in any and all countries. Where applicable, works of
authorship created by Executive for the Company in performing his
responsibilities under this Agreement shall be considered "works made for hire,"
as defined in the U.S. Copyright Act.
(f) Know-How and Trade Secrets. All know-how and trade secret information
conceived or originated by Executive that arises out of the performance of his
obligations or responsibilities under this Agreement or any related material or
information shall be the property of the Company, and all rights therein are by
this Agreement assigned to the Company.
(g) Survival. The obligations imposed by this Section 8 on Executive shall
survive termination of this Agreement.
9. Termination of Employment.
(a) Grounds for Termination. Executive's employment pursuant to this
Agreement shall terminate prior to the expiration of the Term in the event that
at any time:
(i) Executive dies,
(ii) Executive becomes disabled (as defined below), so that he
cannot perform the essential functions of his position with or without
reasonable accommodation,
(iii) The Board elects to terminate Executive's employment for
"Cause" and notifies Executive in writing of such election, or
7
(iv) The Board elects to terminate Executive's employment without
"Cause" and notifies Executive in writing of such election.
If Executive's employment is terminated pursuant to clause (i), (ii) or
(iii) of this Section 9(a), such termination shall be effective immediately. If
Executive's employment is terminated pursuant to subsection (iv) of this Section
9(a), such termination shall be effective 30 days after delivery of the notice
of termination.
(b) "Cause" Defined. "Cause" shall mean (i) the willful engaging by
Executive in illegal conduct or gross misconduct which is demonstrably and
materially injurious to the Company, (ii) Executive's refusal to attempt to
perform his obligations to the Company hereunder (other than any such failure
resulting from illness or incapacity), which refusal is demonstrably and
materially injurious to the Company, (iii) Executive's breach of his obligations
under this Agreement, which breach is demonstrably and materially injurious to
the Company, or (iv) the failure of Executive to maintain his immigration status
with the U.S. Immigration and Naturalization Service or the Executive's failure
to maintain valid employment authorization to provide services to the Company.
For purposes of this Section 9(b), no act or failure to act on Executive's part
shall be deemed "willful" unless done, or omitted to be done, by Executive not
in good faith and without reasonable belief that Executive's action of omission
was in the best interest of the Company. Notwithstanding the foregoing, with
respect to the definitions of Cause set forth in clauses (i), (ii) and (iii)
above, Executive shall not be deemed to have been terminated for Cause unless
and until the Company delivers to Executive a copy of a resolution duly adopted
by the affirmative vote of not less than three-quarters of the entire membership
of the Board (not including Executive if he shall then serve as a director) at a
meeting of the Board called and held for such purpose (after reasonable notice
to Executive and an opportunity for Executive, together with counsel, to be
heard before the Board) finding that, in the good faith opinion of the Board,
Executive engaged in conduct set forth above and specifying the particulars
thereof in reasonable detail.
(c) Termination by Executive for Good Reason. Executive's employment
pursuant to this Agreement may terminate prior to the expiration of the Term in
the event Executive has a "Good Reason" to terminate his employment, which shall
mean the following:
(i) Any material adverse change in Executive's status or position as
an officer of the Company, including, without limitation, any material
adverse change in Executive's status or position as a result of a
diminution in Executive's duties, responsibilities or authority as of the
Commencement Date (or any status or position to which Executive may be
promoted after the Commencement Date) or the assignment to Executive of
any duties or responsibilities which are inconsistent with Executive's
status or position, or any removal of Executive from or any failure to
reappoint or reelect Executive to such position; or
(ii) The material breach by the Company of its obligations under
this Agreement; or
(iii) A reduction in Executive's annual Base Salary as the same may
be increased from time to time; or
(iv) The relocation of the Company's principal executive offices to
a location more than thirty-five (35) miles from the location of such
offices (other than a relocation
8
that results in the location of the offices in closer proximity to New
York City) or the Company requiring Executive to be based anywhere other
than the Company's principal executive offices, except for required travel
substantially consistent with Executive's business obligations.
Prior to the Executive being permitted to terminate his employment for
Good Reason, the Company shall have sixty (60) days to cure any such alleged
breach, assignment, reduction or requirement, after Executive provides the
Company written notice of the actions or omissions constituting such breach,
assignment, reduction or requirement.
(d) "Change of Control" Defined. "Change of Control" means the following:
(i) "Board Change" which, for purposes of this Agreement, shall have
occurred if, over any twenty-four month period, a majority of the seats
(other than vacant seats) on the Company's Board were to be occupied by
individuals who were neither (A) nominated by at least one-half (1/2) of
the directors then in office nor (B) appointed by directors so nominated,
but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either an actual or threatened
election contest or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person (as defined herein) other than the
Board, or
(ii) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934 (the "Exchange Act"), (a "Person") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of a
majority of the then outstanding voting securities of the Company (the
"Outstanding Company Voting Securities"); provided, however, that the
following acquisitions shall not constitute a Change of Control: (A) any
acquisition by the Company, or (B) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (C) any public offering or
private placement by the Company of its voting securities; or
(iii) a merger or consolidation of the Company with another entity
in which neither the Company nor a corporation that, prior to the merger
or consolidation, was a subsidiary of the Company, shall be the surviving
entity; or
(iv) a merger or consolidation of the Company following which either
the Company or a corporation that, prior to the merger or consolidation,
was a subsidiary of the Company, shall be the surviving entity and a
majority of the Outstanding Company Voting Securities is owned by a Person
or Persons who were not "beneficial owners," as defined in Rule 13d-3 of
the Exchange Act, of a majority of the Outstanding Company Voting
Securities immediately prior to such merger or consolidation; or
(v) a voluntary or involuntary liquidation of the Company; or
(vi) a sale or disposition by the Company of at least 80% of its
assets in a single transaction or a series of transactions (other than a
sale or disposition of assets to a subsidiary of the Company in a
transaction not involving a Change of Control or a change in control of
such subsidiary).
9
Transactions in which the Executive is part of the acquiring group do not
constitute a Change of Control.
(e) "Disabled" Defined. As used in this Agreement, the term "disabled"
means any mental or physical condition that renders Executive unable to perform
the essential functions of his position, with or without reasonable
accommodation, for a period in excess of 180 days.
(f) Surrender of Records and Property. Upon termination of his employment
with the Company, Executive shall deliver promptly to the Company all records,
manuals, books, lists, blank forms, documents, letters, memoranda, notes,
notebooks, reports, data, tables, calculations or copies thereof that relate in
any way to the business, products, practices or techniques of the Company, and
all other property, trade secrets and confidential information of the Company,
including, but not limited to, all documents that in whole or in part contain
any trade secrets or confidential information of the Company, which in any of
these cases are in his possession or under his control.
10. Effect of Termination.
(a) Termination Without Cause or for Good Reason or Upon the Company's
Notice of Non-Renewal.
In the event the Company terminates Executive's employment as the
Company's Chief Scientific Officer without Cause pursuant to Section 9(a)(iv)
hereof, Executive terminates his employment for Good Reason pursuant to Section
9(c) hereof or the Company provides a notice of non-renewal of the Term under
Section 2 hereof,
(i) Executive shall receive cash payments equal to his annual Base
Salary at the time of such termination;
(ii) Executive shall receive a cash payment equal to the Target
Bonus (based on the Base Salary at the time of such termination) which
would have been payable for the fiscal year which commences immediately
following the date of termination;
(iii) if Executive, and any spouse and/or dependents ("Family
Members") has medical and dental coverage on the date of such termination
under a group health plan sponsored by the Company, the Company will
reimburse Executive for the total applicable premium cost for medical and
dental coverage under the Consolidated Omnibus Budget Reconciliation Act
of 1986, 29 U.S.C. Sections 1161-1168; 26 U.S.C. Section 4980B(f), as
amended, and all applicable regulations (referred to collectively as
"COBRA") for Executive and his Family Members for a period of up to
eighteen (18) months commencing on the date of such termination; provided,
that the Company shall have no obligation to reimburse Executive for the
premium cost of COBRA coverage as of the date Executive and his Family
Members become eligible to obtain comparable benefits from a subsequent
employer;
(iv) Executive shall receive cash payments equal to any unpaid Base
Salary through the date of termination;
10
(v) Executive shall receive a cash payment equal to a pro rata
amount of the Target Bonus (based on the Base Salary at the time of such
termination) for the fiscal year during which termination occurs;
(vi) all options granted to Executive pursuant to Section 4(e)
hereof which have not vested at the time of such termination will
terminate as of the date of such termination and will be of no further
force or effect; provided however that (A) with respect to the options to
purchase 100,000 shares which become exercisable on a five-year vesting
schedule, a pro rated portion (based on the portion of the year between
anniversaries of the Commencement Date during which Executive is employed
by the Company) of the tranche of unvested options which were scheduled to
vest on the anniversary of the Commencement Date immediately following the
date of such termination shall vest, (B) with respect to the options to
purchase 50,000 shares which become exercisable on the fifth anniversary
of the Commencement Date, subject to acceleration upon the achievement of
an annual net revenue milestone, a pro rated portion (based on number of
full months elapsed following the Commencement Date to the date of
termination divided by 60) shall vest as of the date of termination, and
(C) all of the options which are exercisable at the date of termination
shall remain exercisable for 190 days following the date of termination;
(vii) the options granted to Executive pursuant to Section 4(e)
hereof which have not vested at the time of such termination will
terminate as of the date of such termination and will be of no further
force or effect; and
(viii) Executive shall continue to be entitled to any deferred
compensation and other unpaid amounts and benefits earned and vested prior
to Executive's termination.
(b) Termination For Cause. In the event the Company terminates Executive's
employment as the Company's Chief Scientific Officer for Cause pursuant to
Section 9(a)(iii) hereof, (i) Executive shall be entitled to receive payment of
his Base Salary through the date of termination, (ii) Executive shall continue
to be entitled to any deferred compensation and other unpaid amounts and
benefits earned and vested prior to Executive's termination, (iii) all options
granted to Executive pursuant to Section 4(e) hereof which have vested prior to
the date of Executive's termination shall remain exercisable for a period of 190
days following Executive's termination, and (iv) all options granted to
Executive pursuant to Section 4(e) hereof which have not vested prior to the
date of Executive's termination will terminate as of the date of such
termination and will be of no further force and effect.
(c) Death. In the event Executive's employment as the Company's Chief
Scientific Officer is terminated as a result of Executive's death, (i)
Executive's estate or Executive's duly designated beneficiaries shall be
entitled to payment of his Base Salary through the date of Executive's death,
(ii) Executive's estate or Executive's duly designated beneficiaries shall be
entitled to a pro rata amount of the Target Bonus (based on the Base Salary at
the time of death) for the fiscal year in which he dies, (iii) the options
granted to Executive pursuant to Section 4(e) hereof which have not vested at
the time of Executive's death will continue to vest in accordance with the
vesting schedule set forth in Section 4(e) hereof, and shall remain exercisable
(together with any options granted under Section 4(e) which had previously
vested), until the earlier of (A) one year from the date of death and (B) the
end of the remaining exercise term of such options set forth in Section 4(e)
hereof, and (iv) Executive's estate or Executive's duly designated beneficiaries
shall continue to be entitled to any deferred compensation and other unpaid
11
amounts and benefits earned and vested prior to Executive's death. If
Executive's Family Members have medical and dental coverage on the date of such
termination under a group health plan sponsored by the Company, the Company will
reimburse such Family Member for the total applicable premium cost for medical
and dental coverage under COBRA for such Family Members for a period of up to
twenty four (24) months commencing on the date of such termination; provided the
Company shall have no obligation to reimburse such Family Members for the
premium cost of COBRA coverage as of the date they become eligible to obtain
comparable benefits from another employer.
(d) Disability. Upon termination of Executive's employment as the
Company's Chief Scientific Officer on account of Executive's disability pursuant
to Section 9(a)(ii) hereof, (i) Executive shall be entitled to payment of his
Base Salary through the commencement of long term disability payments to
Executive under any plan provided or paid for by the Company, (ii) Executive
shall be entitled to a pro rata amount of the Target Bonus (based on the Base
Salary at the time of such termination) for the fiscal year in which his
employment is terminated, (iii) Executive shall be entitled to all compensation
and benefits to which Executive is entitled pursuant to the Company's disability
policies in effect as of the date of Executive's termination, (iv) the options
granted to Executive pursuant to Section 4(e) hereof which have not vested at
the date of termination of employment will continue to vest in accordance with
the vesting schedule set forth in Section 4(e) hereof, and shall remain
exercisable (together with any options granted under Section 4(e) which had
previously vested), until the earlier of (A) one year from the date of such
termination of Executive's employment and (B) the end of the remaining exercise
term of such options set forth in Section 4(e), hereof, and (v) Executive shall
continue to be entitled to any deferred compensation and other unpaid amounts
and benefits earned and vested prior to Executive's termination. If Executive
and his Family Members have medical and dental coverage on the date of such
termination under a group health plan sponsored by the Company, the Company will
reimburse Executive for the total applicable premium cost for medical and dental
coverage under COBRA for Executive and his Family Members for a period of up to
eighteen (18) months commencing on the date of such termination; provided the
Company shall have no obligation to reimburse Executive and his Family Members
for the premium cost of COBRA coverage as of the date they become eligible to
obtain comparable benefits from another employer.
(e) Voluntary Resignation or Upon Executive's Notice of Non-Renewal. In
the event Executive voluntarily terminates his employment as the Company's Chief
Scientific Officer, other than for Good Reason, or the Executive's employment
terminates following Executive having provided the Company with a notice of
non-renewal of the Term under Section 2 hereof, (i) Executive shall be entitled
to receive payment of his Base Salary through the date of termination, (ii)
Executive shall continue to be entitled to any deferred compensation and other
unpaid amounts and benefits earned and vested prior to Executive's termination,
(iii) all options granted to Executive pursuant to Section 4(e) hereof which
have vested prior to the date of such termination shall remain exercisable for a
period of 190 days following such termination, and (iv) all options granted to
Executive pursuant to Section 4(e) hereof which have not vested prior to the
date of such termination will terminate as of the date of such termination and
will be of no further force and effect.
(f) Termination Without Cause or For Good Reason In Connection With A
Change in Control. In the event the Company terminates Executive's employment as
the Company's Chief Scientific Officer without Cause pursuant to Section
9(a)(iv) hereof or Executive
12
terminates such employment for Good Reason pursuant to Section 9(c) hereof
within the period which commences ninety (90) days before and ends one (1) year
following a Change in Control, in lieu of the provisions of Section 10(a) or
10(e) above,
(i) Executive shall receive cash payments equal to any unpaid Base
Salary through the date of termination, plus an amount equal to the pro
rated portion of the Target Bonus (based on the Base Salary at the time of
such termination) which would have been payable to Executive for the
fiscal year during which such termination occurs;
(ii) Executive shall receive cash payments equal to the sum of the
following: (1) his Base Salary at the time of such termination and (2) the
Target Bonus (based on the Base Salary at the time of such termination)
for the fiscal year in which such termination occurs;
(iii) if Executive and his Family Members have medical and dental
coverage on the date of such termination under a group health plan
sponsored by the Company, the Company will reimburse Executive for the
total applicable premium cost for medical and dental coverage under COBRA
for Executive and his Family Members for a period of up to eighteen (18)
months commencing on the date of such termination and will continue to pay
Executive an amount equal to such COBRA reimbursement during the eighteen
(18) month period following such initial eighteen (18) month period after
such termination; provided, that the Company shall have no obligation to
reimburse Executive for the premium cost of COBRA coverage as of the date
Executive and his Family Members become eligible to obtain comparable
benefits from a subsequent employer;
(iv) the options granted to Executive pursuant to Section 4(e)
hereof shall be fully vested and shall remain exercisable until their
expiration dates; and
(v) Executive shall continue to be entitled to any deferred
compensation and other unpaid amounts and benefits earned and vested prior
to Executive's termination.
In the event the Executive becomes entitled to payments under this Section
10(f), the Company shall cause its independent auditors promptly to review, at
the Company's expense, the applicability of Section 4999 of the Internal Revenue
Code (the "Code") to such payments. If such auditors shall determine that any
payment or distribution of any type by the Company to Executive, whether paid or
payable or distributed or distributable pursuant to the terms of this Agreement
or otherwise (the "Total Payments"), would be subject to the excise tax imposed
by Section 4999 of the Code, or any interest or penalties with respect to such
excise tax (such excise tax, together with any such interest and penalties, are
collectively referred to as the "Excise Tax"), then Executive shall be entitled
to receive an additional cash payment (a "Gross-Up Payment") within 30 days of
such determination equal to an amount such that after payment by Executive of
all taxes (including any interest or penalties imposed with respect to such
taxes), including any Excise Tax, imposed upon the Gross-Up Payment, Executive
would retain an amount of the Gross-Up Payment equal to the Excise Tax imposed
upon the Total Payments. For purposes of the foregoing determination,
Executive's tax rate shall be deemed to be the highest statutory marginal state
and Federal tax rate (on a combined basis) (including his share of F.I.C.A. and
Medicare taxes) then in effect. If no determination by the Company's auditors is
made prior to the time a tax return reflecting the Total Payments is required to
be filed by Executive, Executive will be entitled to receive a Gross-Up Payment
calculated on the basis of the Total Payments reported by Executive in such tax
return, within 30 days of the filing of such
13
tax return. In all events, if any tax authority determines that a greater Excise
Tax should be imposed upon the Total Payments than is determined by the
Company's independent auditors or reflected in Executive's tax return pursuant
to this Section 10(f), the Executive shall be entitled to receive the full
Gross-Up Payment calculated on the basis of the amount of Excise Tax determined
to be payable by such tax authority from the Company within 30 days of such
determination.
(g) All payments made to Executive under any of the subsections of this
Section 10 which are based upon Executive's salary or bonus shall be made at
times and in a manner which is in accordance with the Company's standard payroll
practices for senior management; provided that any such payments which are still
owed to Executive under Section 10(f) hereof as of the second anniversary of the
termination of Executive's employment under Section 10(f) hereof shall be paid
to Executive within thirty (30) days after such second anniversary date.
(h) If and when during the Term, the Company shall adopt (or amend) a
severance plan for its executive officers, which provides for payments and
benefits upon certain events of termination of employment in connection with a
change of control of the Company at levels that are greater than those provided
herein under Section 10(f) (or provide in connection with a change of control of
the Company, for lump sum or otherwise more accelerated payments than those
provided for under Section 10(g)), then promptly following adoption (or
amendment) of such a plan, the Company and Executive agree to negotiate in good
faith an amendment to the provisions of Sections 10(f) and/or (g) to provide
Executive with comparable payments and benefits upon certain events of
termination in connection with a change of control of the Company to those
provided to other senior executive officers covered by such plan with the same
line of reporting to the Chief Executive Officer as Executive.
11. Miscellaneous.
(a) Entire Agreement. This Agreement (including the exhibits, schedules
and other documents referred to herein) contains the entire understanding
between the parties hereto with respect to the subject matter hereof and
supersedes any prior understandings, agreements or representations, written or
oral, relating to the subject matter hereof.
(b) Counterparts. This Agreement may be executed in separate counterparts,
each of which will be an original and all of which taken together shall
constitute one and the same agreement, and any party hereto may execute this
Agreement by signing any such counterpart.
(c) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law but if any provision of this Agreement is held to be invalid,
illegal or unenforceable under any applicable law or rule, the validity,
legality and enforceability of the other provision of this Agreement will not be
affected or impaired thereby.
(d) Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, personal
representatives and, to the extent permitted by subsection (e), successors and
assigns. The Company will require its successors to expressly assume its
obligations under this Agreement.
(e) Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable (including by operation of law)
14
by either party without the prior written consent of the other party to this
Agreement, except that the Company may, without the consent of the Executive,
assign its rights and obligations under this Agreement to any corporation, firm
or other business entity with or into which the Company may merge or
consolidate, or to which the Company may sell or transfer all or substantially
all of its assets, or of which 50% or more of the equity investment and of the
voting control is owned, directly or indirectly, by, or is under common
ownership with, the Company. After any such assignment by the Company, and
provided that such assignment arises by operation of law or involves an express
written assumption by the assignee, the Company shall be immediately released
and discharged from all further liability hereunder and such assignee shall
thereafter be deemed to be the Company for the purposes of all provisions of
this Agreement.
(f) Modification, Amendment, Waiver or Termination. No provision of this
Agreement may be modified, amended, waived or terminated except by an instrument
in writing signed by the parties to this Agreement. No course of dealing between
the parties will modify, amend, waive or terminate any provision of this
Agreement or any rights or obligations of any party under or by reason of this
Agreement. No delay on the part of the Company in exercising any right hereunder
shall operate as a waiver of such right. No waiver, express or implied, by the
Company of any right or any breach by Executive shall constitute a waiver of any
other right or breach by Executive.
(g) Notices. All notices, consents, requests, instructions, approvals or
other communications provided for herein shall be in writing and delivered by
personal delivery, overnight courier, mail, electronic facsimile or e-mail
addressed to the receiving party at the address set forth herein. All such
communications shall be effective when received.
Address for the Executive:
Uli Grau, Ph.D.
221 East 49th Street
New York, New York 10017
Address for the Company:
Enzon, Inc.
20 Kingsbridge Road
Piscataway, New Jersey 08854
Attn: Corporate Secretary
Any party may change the address set forth above by notice to each other party
given as provided herein.
(h) Headings. The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
(i) Governing Law. ALL MATTERS RELATING TO THE INTERPRETATION,
CONSTRUCTION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW JERSEY, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW PROVISIONS THEREOF.
15
(j) Resolution of Certain Claims - Injunctive Relief. The Executive
acknowledges that it would be difficult to fully compensate the Company for
damages resulting from any breach by him of the provisions of this Agreement.
Accordingly, the Executive agrees that, in addition to, but not to the exclusion
of any other available remedy, the Company shall have the right to enforce the
provisions of Sections 5 through 8 and 9(f) by applying for and obtaining
temporary and permanent restraining orders or injunctions from a court of
competent jurisdiction without the necessity of filing a bond therefor, and
without the necessity of proving actual damages, and the Company shall be
entitled to recover from the Executive its reasonable attorneys' fees and costs
in enforcing the provisions of Sections 5 through 8 and 9(f).
(k) Arbitration. Except as otherwise specifically provided for hereunder,
any claim or controversy arising out of or relating to this Agreement or the
breach hereof shall be settled by arbitration in accordance with the laws of the
State of New Jersey. Such arbitration shall be conducted in the State of New
Jersey in accordance with the rules then existing of the American Arbitration
Association. Judgment upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof. In the event of any dispute arising
under this Agreement, the respective parties shall be responsible for the
payment of their own legal fees and disbursements.
(l) Third-Party Benefit. Nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights, remedies, obligations or
liabilities of any nature whatsoever.
(m) Withholding Taxes. The Company may withhold from any benefits payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement as of the Effective Date.
ENZON, INC.
By: /s/ Arthur J. Higgins
-------------------------------------
Arthur J. Higgins,
President and Chief Executive Officer
/s/ Uli Grau
-------------------------------------
Uli Grau, Ph.D.
16
EXHIBIT A-1
Certificate No. ____________
No. of options: 100,000 Date granted: March 15, 2002 Price: ________
This Option is granted pursuant to the employment agreement dated as of March
15, 2002 (the "Employment Agreement") between the Optionee and Enzon Inc. (the
"Company"). The Optionee acknowledges receipt of a copy of the Enzon
Non-Qualified Stock Option Plan, as Amended (the "Plan"), and represents that he
is familiar with the terms and provisions of the Plan and the Employment
Agreement. The Optionee hereby accepts this Option subject to all the terms and
provisions of the Plan and the Employment Agreement, it being understood and
agreed that the vesting and exercise terms of this Option shall be governed by
the Employment Agreement. The Optionee hereby agrees to accept as binding,
conclusive, and final all decisions and interpretations of the Compensation
Committee or the Board of Directors upon any questions arising under the Plan.
As a condition to the issuance of shares of Common Stock of the Company under
this Option, the Optionee authorizes the Company to withhold, in accordance with
applicable law from any regular cash compensation payable to him, any taxes
required to be withheld by the Company under Federal, state or local law as a
result of his exercise of this Option.
Dated: March 15, 2002
ENZON, INC.
By:_____________________________________
Name:
Title:
_____________________________________
Ulrich M. Grau, Ph.D.
EXHIBIT A-2
Certificate No. ____________
No. of options: 50,000 Date granted: March 15, 2002 Price: ________
This Option is granted pursuant to the employment agreement dated as of March
15, 2002 (the "Employment Agreement") between the Optionee and Enzon Inc. (the
"Company"). The Optionee acknowledges receipt of a copy of the Enzon
Non-Qualified Stock Option Plan, as Amended (the "Plan"), and represents that he
is familiar with the terms and provisions of the Plan and the Employment
Agreement. The Optionee hereby accepts this Option subject to all the terms and
provisions of the Plan and the Employment Agreement, it being understood and
agreed that the vesting and exercise terms of this Option shall be governed by
the Employment Agreement. The Optionee hereby agrees to accept as binding,
conclusive, and final all decisions and interpretations of the Compensation
Committee or the Board of Directors upon any questions arising under the Plan.
As a condition to the issuance of shares of Common Stock of the Company under
this Option, the Optionee authorizes the Company to withhold, in accordance with
applicable law from any regular cash compensation payable to him, any taxes
required to be withheld by the Company under Federal, state or local law as a
result of his exercise of this Option.
Dated: March 15, 2002
ENZON, INC.
By:_____________________________________
Name:
Title:
_____________________________________
Ulrich M. Grau, Ph.D.
Exhibit 10.16
AMENDMENT TO EMPLOYMENT AGREEMENT
Enzon, Inc. (the "Company") and Peter Tombros (the "Executive")
agree to amend the Employment Agreement dated as of August 10, 2000 by and
between the Company and Executive (the "Agreement") as follows:
1. Unless otherwise defined herein, capitalized terms used herein shall
have the meaning ascribed thereto in the Agreement.
2. This amendment to the Agreement shall be effective as of May 31, 2001.
3. It is agreed that Executive's full-time employment as President and
Chief Executive Officer of the Company was terminated by Executive pursuant to
Section 4(b)(vi) of the Agreement as of May 31, 2001.
4. The first sentence of Section 2(a) of the Agreement is hereby amended
in its entirety as follows:
"(a) Based upon Executive's termination of his full-time employment as
President and Chief Executive Officer of the Company as of May 31, 2001 pursuant
to Section 4(b)(vi) hereof, the "Noncompete Period" shall be (i) the period
during which the Executive receives payments from the Company pursuant to
Section 3(d) hereof plus (ii) any period of time during which Executive receives
payments from the Company pursuant to Section 3(n) hereof."
5. The first two sentences of Section 3(d) of the Agreement are hereby
deleted and replaced by the following:
"(d) Based upon Executive's termination of his full-time employment as
President and Chief Executive Officer of the Company pursuant to Section
4(b)(vi) hereof as of May 31, 2001 (which is prior to the second anniversary of
the Effective Date (the "Second Anniversary Date")), Executive shall remain a
full-time employee of the Company and shall receive his base salary hereunder
during the period from June 1, 2001 through the Second Anniversary Date (the
Base Salary Period") at an annual rate of Three Hundred Sixty-Seven Thousand
Five Hundred Dollars ($367,500). As a full-time employee during the Base Salary
Period, Executive shall perform services for the Company to the extent requested
by the Chief Executive Officer of the Company (the "CEO"), it being understood
that (i) Executive may be required to devote up to 37 1/2 hours per week to the
Company, (ii) Executive will not be required to travel on behalf of the Company
and (iii) Executive will receive benefits as a full-time employee of the
Company, provided that Executive will not participate in any bonus program, and
further provided that Executive will not participate in the Company's health
insurance plans to the extent Executive receives payments under Section (o).
During such period as Executive provides services as a full-time employee under
this Section 3(d), Executive shall be deemed to be an employee for purposes of
the Non-Qualified Plan. It is understood and agreed that this determination of
Executive's status as an employee was made by the Compensation Committee of the
Board of Directors of the Company pursuant to its power to interpret and
construct the provisions of the Non-Qualified Plan pursuant to Section D thereof
and shall be the final and controlling determination of the Compensation
Committee on the issue of Executive's employee status under the Non-Qualified
Plan. In the event Executive shall be unable or unwilling to continue for any
reason to provide services as a full-time employee of the Company during the
Base Salary
Period, Executive shall notify the Company in writing of his inability or
unwillingness to provide such services, but Executive shall nevertheless
continue to receive the base salary payments payable to Executive under this
Section 3(d) as severance payments for the remainder of the Base Salary Period
after Executive's employment as a full-time employee of the Company terminates."
6. Section 3(n) is amended in its entirety to read as follows:
"(n) Based upon Executive's termination of his full-time employment as
President and Chief Executive Officer of the Company pursuant to Section
4(b)(vi) hereof as of May 31, 2001, Executive shall make himself available to
perform services for the Company as a part-time employee during the period
commencing on the earlier of (i) the date Executive ceases to perform services
as a full time employee pursuant to Section 3(d) hereof and (ii) as of July 2,
2002 and ending on the Termination Date (the "Part-Time Period"). During the
Part-Time Period, (i) Executive will be available to perform services for the
Company to the extent requested by the CEO upon at least ten (10) days prior
written notice to Executive (it being understood that Executive will not be
required to devote more than four (4) days per month to the Company and will not
be required to travel on behalf of the Company), (ii) Executive will receive
$10,000 per month, payable in accordance with Company's normal payroll
procedures (provided that the amount payable to Executive pursuant to Section
3(d) hereof shall be reduced by $10,000 per month to the extent Executive
receives the $10,000 monthly payment provided under this Section 3(n) during the
Base Salary Period), (iii) except as provided in Section 3(o) hereof and under
the Non-Qualified Plan, Executive will receive other benefits received by other
part-time employees of the Company, (iv) the Company will pay all reasonable
expenses incurred by Executive in providing such services under this Section
3(n) and (v) Executive will use reasonable efforts to fulfill any requests for
services under this Section 3(n), but shall not be in breach of any provision
hereof if health concerns prevent him from providing such services and Executive
may terminate his part-time employment service obligation under this Section
3(n) (and his employment under the Non-Qualified Plan) at any time upon notice
to the Company (it being understood that such termination shall not affect any
of Executive's rights hereunder except for the payments provided for in this
Section 3(n) which shall then terminate.) During the period in which Executive
provides services as a part-time employee of the Company under this Section
3(n), Executive will be deemed to be an employee of the Company for purposes of
the Non-Qualified Plan. It is understood and agreed that this determination of
Executive's status as an employee was made by the Compensation Committee of the
Board of Directors of the Company pursuant to its power to interpret and
construct the provisions of the Non-Qualified Plan pursuant to Section D thereof
and shall be the final and controlling determination of the Compensation
Committee on the issue of Executive's employee status under the Non-Qualified
Plan."
7. This will confirm that in the event Executive dies while employed by
the Company, options held by Executive which do not contain terms governing the
exercise of such options upon Executive's death and would, thus, be governed by
the Non-Qualified Plan in that respect, will be exercisable by the executors,
administrators, legatees or heirs of his estate within the 190 day period
following Executive's death. This will confirm that in the event Executive dies
within the 190 day period after his employment with the Company terminates,
options held by Executive which do not contain terms governing the exercise of
such options upon Executive's death, and would, thus, be governed by the
Non-Qualified Plan in that respect, will be exercisable by the executors,
administrators, legatees or heirs of his estate within the
2
remainder of such 190 day period which commenced on the date Executive's
employment with the Company terminates. The foregoing provisions relating to the
exercise of options upon Executive's death were determined by the Compensation
Committee of the Board of the Company pursuant to its authority to interpret and
construct the provisions, of the Non-Qualified Plan pursuant to Section D of
such Plan.
8. Except as amended herein, the Agreement shall remain in full force and
effect.
ENZON, INC.
By: /s/ Kenneth J. Zuerblis
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Kenneth J. Zuerblis
Vice President, Finance and Chief
Financial Officer
By: /s/ Peter Tombros
------------------------------------
Peter Tombros