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UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form 10-K

(Mark One)

 

  þ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2014

or

 

  ¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from              to             

Commission file number 001-34391

LOGMEIN, INC.

(Exact name of registrant as specified in its charter)

 

Delaware   20-1515952
(State or other jurisdiction of
incorporation or organization)
  (I.R.S. Employer
Identification No.)
320 Summer Street
Boston, Massachusetts
  02210
(Address of principal executive offices)   (Zip Code)

(781) 638-9050

(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act:

 

Title of Each Class

 

Name of Exchange on Which Registered

Common Stock, $.01 par value   NASDAQ Global Select Market

Securities registered pursuant to Section 12(g) of the Act:

None.

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes   þ         No   ¨

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes   ¨         No   þ

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   þ         No   ¨

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files).    Yes   þ         No   ¨

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.     þ

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer   þ   Accelerated filer   ¨   Non-accelerated filer   ¨   Smaller reporting company   ¨
  (Do not check if a smaller reporting company)

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).    Yes   ¨         No   þ

The aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold on the NASDAQ Global Select Market on June 30, 2014 was $872,638,381.

As of February 13, 2015, the registrant had 24,463,959 shares of Common Stock, $0.01 par value per share, outstanding.

Portions of the registrant’s definitive proxy statement to be filed with the Securities and Exchange Commission for the 2015 annual stockholders’ meeting to be held on May 21, 2015 are incorporated by reference into Items 10, 11, 12, 13 and 14 of Part III of this Annual Report on Form 10-K.

 

 

 


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LOGMEIN, INC.

INDEX

 

          Page
Number
 
   PART I   

ITEM 1.

   Business      1   

ITEM 1A.

   Risk Factors      9   

ITEM 1B.

   Unresolved Staff Comments      24   

ITEM 2.

   Properties      24   

ITEM 3.

   Legal Proceedings      24   

ITEM 4.

   Mine Safety Disclosures      25   
   PART II   

ITEM 5.

   Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities      26   

ITEM 6.

   Selected Financial Data      29   

ITEM 7.

   Management’s Discussion and Analysis of Financial Condition and Results of Operations      31   

ITEM 7A.

   Quantitative and Qualitative Disclosures About Market Risk      46   

ITEM 8.

   Financial Statements and Supplementary Data      47   

ITEM 9.

   Changes in and Disagreements With Accountants on Accounting and Financial Disclosure      77   

ITEM 9A.

   Controls and Procedures      77   

ITEM 9B.

   Other Information      80   
   PART III   

ITEM 10.

   Directors, Executive Officers and Corporate Governance      80   

ITEM 11.

   Executive Compensation      80   

ITEM 12.

   Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters      80   

ITEM 13.

   Certain Relationships and Related Transactions, and Director Independence      80   

ITEM 14.

   Principal Accounting Fees and Services      80   
   PART IV   

ITEM 15.

   Exhibits, Financial Statement Schedules      80   

SIGNATURES

     81   


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Forward-Looking Statements

Matters discussed in this Annual Report on Form 10-K relating to future events or our future performance, including any discussion, express or implied, of our anticipated growth, operating results, future earnings per share, market opportunity, plans and objectives, are “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. These statements are often identified by the words “may,” “will,” “expect,” “believe,” “anticipate,” “intend,” “could,” “estimate,” or “continue,” and similar expressions or variations. Such forward-looking statements are subject to risks, uncertainties and other factors that could cause actual results and the timing of certain events to differ materially from future results expressed or implied by such forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, those discussed in the section titled “Risk Factors,” set forth in Item 1A of this Annual Report on Form 10-K and elsewhere in this Report. The forward-looking statements in this Annual Report on Form 10-K represent our views as of the date of this Annual Report on Form 10-K. We anticipate that subsequent events and developments will cause our views to change. However, while we may elect to update these forward-looking statements at some point in the future, we have no current intention of doing so except to the extent required by applicable law. You should, therefore, not rely on these forward-looking statements as representing our views as of any date subsequent to the date of this Annual Report on Form 10-K.

PART I

 

ITEM 1. BUSINESS

Overview

LogMeIn provides a portfolio of cloud-based service offerings which make it possible for people and businesses to simply and securely connect to their workplace, colleagues and customers. Our services free millions of people to work from virtually anywhere on any Internet enabled device, empower IT professionals to securely embrace today’s mobile and cloud-centric workplace, transform how companies engage and support their customers, and help businesses bring the next generation of connected products to market. These services range from free downloadable mobile and web-based collaboration apps to enterprise grade professional helpdesk solutions to a cloud-based platform for the Internet of Things, all of which are accessible from anywhere with an Internet connection.

We incorporated under the laws of Bermuda as 3am Labs Ltd in February 2003. In August 2004, we completed a domestication in the State of Delaware under the name 3am Labs, Inc. We changed our name to LogMeIn, Inc. in March 2006. Our principal executive offices are located at 320 Summer Street, Boston MA 02210. Our website address is www.LogMeIn.com . We have included our website address in this report solely as an inactive textual reference. In 2004, we introduced our first cloud-based connectivity offering, which allowed users to securely connect to remote computer resources, including files, applications and the remote device itself. Used primarily by mobile professionals for the purposes of working remotely and by IT service providers to remotely manage computers and servers, this remote access solution was designed to give users the flexibility to work and interact with their computer resources from any other Internet-connected computer. We have since used this scalable technical foundation to expand the types of devices and data that can be accessed remotely, while introducing a variety of cloud-based offerings or applications built off of this foundation that address today’s collaboration, customer service, IT management and connected product development use cases.

Our services are delivered via the cloud as hosted services, meaning that the technology enabling the use of our services primarily resides on our servers, data centers and IT hardware, rather than those of our users. We call the software, hardware and networking technology used to deliver our cloud-based services “Gravity”. Gravity establishes secure connections over the Internet between two or more Internet-enabled devices and manages the direct transmission of data between remotely connected devices. With tens of millions of users and hundreds of millions of sessions brokered, we believe our services are used to connect more Internet-enabled devices worldwide, than any other connectivity platform on the market.

We offer both free and fee based, or premium, services. Sales of our premium services are generated through word-of-mouth referrals, web-based advertising, online search, off-line advertising, broadcast advertising, the conversion of free users and expiring free trials to paid subscriptions and direct marketing to new and

 

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existing customers. We complement our free services with our fee-based, or premium, services that can be easily accessed by users via time-bound free trials. The majority of these premium services are sold on an annual or monthly subscription basis.

We derive our revenue principally from subscription fees from SMBs, IT service providers, mobile carriers, customer service centers, original equipment manufacturers, or OEMs, and consumers and, to a lesser extent, from the delivery of professional services primarily related to our Xively business. The majority of our customers subscribe to our services on an annual basis. Our revenue is driven primarily by the number and type of our premium services for which our paying customers subscribe. During the fiscal years ended December 31, 2012, 2013 and 2014, we generated revenues of $138.8 million, $166.3 million, and $222.0 million, respectively.

Our Market Opportunity

Our cloud-based connectivity services allow our users to work remotely, use a mix of personal and employer-procured technology for work purposes, support and manage remote computers and other Internet-enabled devices, and collaborate with other users. We believe our services benefit users in the following ways:

 

   

Increased productivity both in and outside of traditional office environments.     Our collaboration and remote access services allow users to simply host and/or attend web-based meetings, access and control remote computers, access and secure cloud or web applications, run applications across different platforms and devices and save and share data with the cloud, thereby increasing their mobility and allowing them to remain productive from virtually anywhere on virtually any Internet-enabled device.

 

   

Reduced set-up, support and management costs.     Our services enable IT staff to administer, monitor and support workers, their applications, their data, and their computers and other Internet-enabled devices from a remote location. Businesses can easily set up our cloud-based services with little or no modification to the remote location’s network or security systems and without the need for upfront technology or software investment. Additionally, our customers are often able to lower their support and management costs by performing their management-related tasks remotely, thereby reducing or eliminating the costs of on-site support and management.

 

   

Increased end-user and customer satisfaction.     Our customers rely on our services to improve the efficiency and effectiveness of end-user support and customer service. Satisfaction with support and other customer engagement services is primarily measured by customer satisfaction, sales conversions, call-handling time and whether or not an issue is resolved on the first call. Our services enable helpdesk technicians, as well as customer service staff, to quickly and easily engage with users, gain access to and take control over a remote user’s Internet-enabled device. Once connected, technicians can diagnose and resolve problems while interacting with and possibly training the end user. Technicians can also answer questions and resolve common dilemmas via web chat, email, SMS and even social channels, like Twitter.

 

   

Reliable, fast and secure service.     Our cloud-based services are delivered by a common proprietary platform called “Gravity,” which is designed to ensure that our services are reliable, fast and secure. Gravity achieves redundancy by being physically hosted in seven geographically diverse data centers, four of which are located in the United States, one of which is located in the United Kingdom, one of which is located in Asia and one of which is located in Australia. Gravity transmits data directly between end-point devices, which helps us reduce our bandwidth related costs and enables our services to connect and manage devices at enhanced speeds. Gravity also utilizes industry standard security protocols and is designed to authenticate and authorize users of our services without storing passwords.

 

   

Easy to try, buy and use.     Our services are simple to install, which allows our prospective customers to use our services within minutes of registering for a trial. Additionally, our low service-delivery costs and hosted delivery model allow us to offer each of our services at competitive prices and to offer flexible payment options.

 

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Our Business Strengths

We believe that the following strengths differentiate us from our competitors and are key to our success:

 

   

Large established user community.     As of December 31, 2014, tens of millions of customers have connected hundreds of millions of Internet-enabled devices to our services. These users drive awareness of our services through personal recommendations, blogs, social media and other online communication methods and provide us with a significant audience to which we can market and sell premium services.

 

   

Efficient customer acquisition model.     We believe our free products and our large installed user base help to generate word-of-mouth referrals, which in turn increases the efficiency of our paid marketing activities. Sales of our premium services are generated through word-of-mouth referrals, web-based advertising, online search, off-line advertising, broadcast advertising, the conversion of free users and expiring free trials to paid subscriptions and marketing to our existing customer and user base. We believe this direct approach to acquiring new customers generates an attractive and predictable return on our sales and marketing expenditures.

 

   

Technology-enabled cost advantage.     Our service delivery platform, Gravity, establishes secure connections over the Internet between devices and manages the direct transmission of data between them. This patented platform reduces our bandwidth and other infrastructure requirements, which we believe makes our services faster and less expensive to deliver. We believe this cost advantage allows us to offer free services and serve a broader user community than our competitors.

 

   

Online, cloud-based delivery.     Delivering our services online via the cloud allows us to serve additional customers with little incremental expense and to deploy new applications and upgrades quickly and efficiently to our existing customers.

 

   

High recurring revenue and high transaction volumes.     We sell a majority of our premium services on a monthly or annual subscription basis, which provides greater levels of recurring revenues and predictability compared to traditional perpetual license-based business models. Approximately 99% of our subscriptions have a one-year term. We believe that our sales model of a high volume of new and renewed subscriptions at low transaction prices increases the predictability of our revenues compared to perpetual licensed-based software businesses.

Growth Strategy

Our objective is to extend our position as a leading provider of essential cloud-based services for all Internet connected devices. To accomplish this, we intend to:

 

   

Acquire new customers.     We acquire new customers through word-of-mouth referrals from our existing user community and from paid, online advertising designed to attract visitors to our website. We also encourage our website visitors to register for free trials of our premium services. We supplement our online efforts with email and other traditional marketing campaigns and by participating in trade events and web-based seminars. To increase our sales, we plan to continue to aggressively market our solutions and encourage trials of our services while expanding our sales force.

 

   

Increase sales to existing customers.     We upsell and cross-sell our broad portfolio of services to our existing premium subscriber customer base. To further penetrate this base, we plan to continue to actively market our portfolio of services through e-commerce and by expanding our sales force.

 

   

Continue to expand our service portfolio.     We intend to continue to invest in the development of new cloud-based connectivity services for businesses, IT service providers, consumers and mobile professionals.

 

   

Pursue strategic acquisitions.     We pursue acquisitions that complement our existing business, represent a strong strategic fit and are consistent with our overall growth strategy. We also target future acquisitions to expand or add functionality and capabilities to our existing portfolio of services, as well as add new services to our portfolio.

 

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Expand internationally.     We offer services in 12 different languages and our services are used in more than 240 countries. We believe there is a significant opportunity to increase our sales internationally. We intend to continue to expand our international sales and marketing personnel and increase our international marketing expenditures to take advantage of this opportunity.

 

   

Continue to build our user community.     We grow our community of users by marketing our services through paid advertising that targets prospective customers who are seeking essential cloud connectivity services and by offering popular free services, like join me. This strategy improves the effectiveness of our online advertising by increasing our response rates when people seeking remote access, collaboration, customer engagement and data services conduct online searches. In addition, our large and growing community of users drives awareness of our services and increases referrals of potential customers and users.

Our Services

Our core cloud-based services can generally be categorized into four business lines based on customer needs and respective use cases.

Collaboration.     Our collaboration business is comprised of services designed to make it easy for users to interact with and access the computers, devices, data and people that make up their digital world. These individual services are as follows:

 

   

join.me , join.me pro and join.me enterprise are our free and premium browser-based online meeting and screen sharing services that give users the ability to quickly and securely host an online meeting with other people. These services can be initiated through a visit to the http://join.me website, through a small downloadable desktop application or through mobile applications. The free version of join.me provides users with access to basic online meeting and collaboration tools such as file sharing, use of a dedicated VoIP conference line, remote control and in-meeting chat. Users who upgrade to join.me pro receive access to additional key features such as presenter swap, a scheduling tool, Google Calendar and Micosoft Outlook plugins, the ability to record and recap meetings, on-screen annotation tools and detailed session reporting. Users and businesses who upgrade to join.me enterprise receive additional account management, policy control and provisioning capabilities, as well as Salesforce.com integration.

 

   

Cubby Basic, Cubby Pro and Cubby Enterprise are our cloud-based file syncing, storage and sharing services that allow users to simply and securely share data and files with other people and across all of their Internet-enabled devices, such as smartphones, tablets and computers. All three services can be accessed and used via a web-browser, a downloadable desktop application and free mobile applications. Users can choose to replicate or “sync” any folder and its contents on their computer with any other computer, mobile device and the cloud, thereby ensuring that their data is available across all of their devices and accessible from virtually anywhere with an Internet connection. Files stored within a user’s “Cubby,” or synced folder, can also be shared with other people by either sending read-only web links or by sending a direct message inviting others into a particular “Cubby,” for access to and collaboration around sets of files. Cubby utilizes the same encryption standards used by many banks to encrypt online banking transactions to ensure that data is secure and can only be decrypted using a combination of encryption keys maintained by LogMeIn and/or the owner of the Cubby account. Cubby Basic provides users with access to 5GB of free cloud storage space. Cubby Pro is a premium offering for individual users that extends the benefits of Cubby Basic through additional, personal security features, the ability to sync files and folders directly between two or more computers without using the cloud, and offers users the ability to purchase additional storage space. Cubby Enterprise is designed for use by teams or entire businesses. It contains all of the features of Cubby Pro in addition to multi-user data sharing and security, and administrative and management controls that be customized by IT professionals or other administrators.

 

   

LogMeIn Pro is our premium remote access service that provides secure access to a remote computer or other Internet-enabled device from any other Internet connected computer, as well as most modern smartphones and tablets. Once a Pro host is installed on a device, a user can quickly and easily access that

 

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device’s desktop, files, applications and network resources remotely from their other Internet-enabled devices. LogMeIn Pro can be rapidly deployed and installed without the need for IT expertise. Users typically engage in a free trial prior to purchase.

Service and Support.     The services that comprise our service and support business are used by external customer service and support organizations, online retail and web-based businesses, as well as IT outsourcers and internal IT departments to deliver online, cloud-based service and support to customers and their Internet-enabled devices. These services are as follows:

 

   

LogMeIn Rescue and LogMeIn Rescue+Mobile are our Web-based remote support and customer care services, which are used by helpdesk professionals to provide remote support via the Internet, without the need of pre-installed software. Using LogMeIn Rescue , support and service professionals can communicate with end users through an Internet chat window while diagnosing and repairing computer problems. If given permission by the computer user, the support professional can access, view or even take control of the end user’s computer to take necessary support actions and to train the end user on the use of software and operating system applications. LogMeIn Rescue+Mobile is an add-on of LogMeIn Rescue’s web-based remote support service that allows call center technicians and IT professionals to remotely access and support Blackberry, Symbian, iOS and Android smartphones and tablets. Technicians can send a text message directing users to download a small software application onto their mobile device, which, once installed, allows the technician to remotely access, control and troubleshoot the phone or tablet.

 

   

BoldChat is our Web-based live chat service that helps customer service staff, ranging from sales to pre-and-post sale support, to directly engage and provide assistance to visitors to their organization’s website. Key features include real-time visitor monitoring, co-browsing, detailed reporting on chat activity and its overall effectiveness, the ability to define rules that automatically trigger the initiation of a chat window, the ability to route and distribute chats to improve efficiency and the ability to monitor and manage customer conversations on Twitter, email and via SMS messages. Our BoldChat service offerings range from a basic free offering to a fully-featured enterprise offering, with multiple pricing tiers based on the number of users and desired features.

IT Management .    Our IT management business is comprised of services that are used by internal and external IT professionals to manage and secure remote computers and other Internet-enabled devices, automate common IT tasks, manage and secure sensitive data and help ensure the productivity of mobile workers.

 

   

LogMeIn Central is a web-based management console that helps IT professionals access, manage and monitor remote computers, deploy software updates and patches, automate IT tasks, and run hundreds of versions of antivirus software. LogMeIn Central is offered as a premium service and works in conjunction with either basic hosts, which are free, or managed hosts, which are an additional premium offering and are priced per computer.

 

   

Meldium is a password and identity management product designed to help IT professionals and knowledge workers securely manage, store and share login credentials to over 1,600 third party cloud and web-based applications. Meldium allows for simple security and provisioning for applications used by employees to help ensure access to work-based applications and related data can be granted or revoked as necessary by managers or IT professionals. Meldium is offered as a free product for individual use and is also sold as a premium product for team use.

 

   

AppGuru is an application management product designed to help IT professionals and IT service providers discover, provision and secure both company procured and employee procured cloud and/or Software-as-a-Service applications being used within the workplace. AppGuru works in conjunction with LogMeIn applications like join.me and Cubby , as well as dozens of popular third-party applications like Salesforce.com, Dropbox, Box and NetSuite.

Connected Products.     Our connected product business is comprised solely of Xively , our Internet of Things cloud platform, which may be used by businesses to connect deploy, manage and support Internet connected products that lack a traditional operating system. The Xively platform provides the infrastructure needed to help businesses reduce the costs of, and accelerate the time-to-market for, new Internet-connected products, applications and customer services.

 

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Additional Service Offerings.     In addition to the above-described core cloud-based services, we continue to offer the following legacy services:

 

   

RemotelyAnywhere is a LAN-based systems administration product used to manage personal computers and servers from within the IT system of an enterprise. Unlike our core cloud-based service offerings, RemotelyAnywhere is licensed to customers on a perpetual basis. We also offer annual maintenance services that include software upgrades and support services for this application.

 

   

LogMeIn Backup is a service that subscribers install on two or more computers to create a backup network and is generally sold as a complement to LogMeIn Central or LogMeIn Pro subscriptions. LogMeIn Backup provides IT service providers a simple backup alternative to offer their customers using storage capacity that they can control. Files can be stored on, and restored to, any PC that the subscriber chooses, using industry-standard encryption protocols for the transmission and storage of the data.

 

   

LogMeIn Hamachi is a hosted virtual private network, or VPN, service that establishes a computer network among remote computers. LogMeIn Hamachi typically works with existing network and firewall configurations and can be managed from a web browser or the user’s software. Using LogMeIn Hamachi , users can securely communicate over the Internet as if their computers are on the same LAN, allowing for remote access and virtual networking. LogMeIn Hamachi is offered both as a free and paid service, with tiered pricing based on the number of devices connected in each network.

Sales and Marketing

Our sales and marketing efforts are designed to attract prospective customers to our website, enroll them in free trials of our services and convert them to and retain them as paying customers. We expend sales and marketing resources through a combination of paid and unpaid sources. We also invest in public relations to broaden the general awareness of our services and to highlight the quality and reliability of our services for specific audiences. We are constantly seeking and employing new methods to reach more users and to convert them to paid subscribers. For the twelve months ended December 31, 2012, 2013 and 2014, we spent $70.1 million, $88.8 million and $119.5 million, respectively, on sales and marketing.

New Account Sales.     Our sales are typically preceded by a trial of one of our services, and 98% of our sales transactions are settled via credit card. Our sales operations team manages the processes, systems and procedures that determine whether or not a trial should be managed by a telephone-based sales representative or handled via our e-commerce sales process. As of December 31, 2014, we employed 164 telephone-based sales representatives to manage newly generated trials. In addition, a small sales and business development team concentrates on sales to larger organizations and the formulation of strategic technology partnerships that are intended to generate additional sales.

International Sales.     We currently have sales teams located in Ireland, the United Kingdom, Asia, and Australia focusing on international sales. In the years ended December 31, 2012, 2013 and 2014, we generated approximately 35%, 34% and 33%, respectively, of our revenue outside of the United States. As of December 31, 2012, 2013 and 2014, approximately 37%, 23% and 28% of our long-lived assets were located outside of the United States.

Online Advertising.     We advertise online through pay-per-click spending with search engines, banner advertising with online advertising networks and other websites and email newsletters likely to be frequented by our target consumers, SMBs and IT professionals.

Tradeshows and Events.     We showcase our services at technology and industry-specific tradeshows and events. Our participation in these shows ranges from elaborate presentations in front of large groups to one-on-one discussions and demonstrations at manned booths. In 2014, we attended approximately 60 trade shows and events in the United States, Europe, Asia and Australia.

Offline Advertising.     Our offline print advertising is comprised of publications targeted at IT professionals and consumers. We also sponsor advertorials in regional newspapers, which target IT consumers. Additionally, from time-to-time we have advertised using more traditional methods, such as outdoor advertising, in regional markets.

 

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Radio Advertising.     Our radio advertising includes 30-second “spots” as well as radio program sponsorships, and is primarily conducted on satellite and Internet radio networks, with some select advertising on traditional FM and AM radio stations. Show, channel and program selection is based on our key target audiences, most notably IT professionals and knowledge workers.

Word-of-Mouth Referrals.     We believe that we have developed a loyal customer and user base, and new customers frequently claim to have heard about us from a current LogMeIn user. Many of our users arrive at our website via word-of-mouth referrals from existing users of our services.

Direct Advertising Into Our User Community.     We have a large existing user community comprised of both free users and paying customers. Users of most of our services come to our website each time they log-in to their account and we use this opportunity to promote additional premium services to them.

Social Media Marketing.     We participate in online communities such as Twitter, Facebook, LinkedIn and YouTube for the purpose of marketing, public relations and customer service. Through these online collaboration sites, we actively engage our users, learn about their needs, and foster word-of-mouth by creating and responding to content about LogMeIn events, promotions, product news and user questions.

Web-Based Seminars.     We offer free online seminars to current and prospective customers designed to educate them about the benefits of online collaboration, remote access, support and administration, particularly with LogMeIn, and guide them in the use of our services. We often highlight customer success stories and focus the seminar on common business problems and key market and IT trends.

Public Relations.     We engage in targeted public relations programs, including issuing press releases announcing important company events and product releases, participating in interviews with reporters and analysts, both general and industry specific and by, attending panel and group discussions and speeches at industry events. We also register our services in awards competitions and encourage bloggers to comment on our products.

Our Infrastructure, Technology and Developments

LogMeIn Gravity Service Delivery Platform.     The majority of our services are delivered via a common proprietary cloud connectivity and data platform called “Gravity,” which consists of software applications, customized databases and web servers. Gravity establishes secure connections over the Internet between remote computers and other Internet-enabled devices and manages the direct transmission of data between remotely connected devices. Gravity is designed to be scalable and serve our large user community at low costs by reducing our bandwidth and other infrastructure requirements, which we believe makes our services faster and less expensive to deliver than other competing services.

The infrastructure-related costs of delivering our services include bandwidth, power, server depreciation and co-location fees. Gravity transmits data using a combination of methods designed to relay data via our data centers and to transmit data over the Internet directly between end-point devices. During the twelve months ended December 31, 2014, more than 93% of the data transmitted by our services was transmitted directly between end-point devices, reducing our bandwidth and bandwidth-related costs.

Gravity also implements multiple layers of security. Our services utilize industry-standard security protocols for encryption and authentication. Access to a device through our services requires system passwords such as the username and password for Windows. We also add additional layers of security such as single-use passwords, IP address filtering and IP address lockout. For security purposes, Gravity does not save end-user passwords for devices.

Gravity is physically hosted in seven third-party co-location facilities located in the United States, Europe, Australia and Asia. Our goal is to maintain sufficient excess capacity such that any one of the data centers could fail and the remaining data centers could handle the service load without extensive disruption to our services. During the twelve months ended December 31, 2014, our Gravity service was available 99.99% of the time.

Research and Development.     We have made and intend to continue making significant investments in research and development in order to continue to improve the efficiency of our service delivery platform,

 

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improve our existing services and bring new services to market. Our primary engineering organization is based in Budapest, Hungary, where the first version of our remote access service was developed. Approximately 43% of our employees, as of December 31, 2014, work in research and development. Research and development expenses totaled $26.4 million, $29.0 million and $33.5 million in the years ended December 31, 2012, 2013 and 2014, respectively.

Intellectual Property.     Our intellectual property rights are important to our business. We rely on a combination of copyright, trade secret, trademark, patent and other rights in the United States and other jurisdictions, as well as confidentiality procedures and contractual provisions to protect our proprietary technology, processes and other intellectual property. We also have twelve issued patents and eleven patents pending and are in the process of filing additional patent applications that cover other features of our services.

We enter into confidentiality and other written agreements with our employees, customers, consultants and partners, and through these and other written agreements, we attempt to control access to and distribution of our software, documentation and other proprietary technology and other information. Despite our efforts to protect our proprietary rights, third parties may, in an unauthorized manner, attempt to use, copy or otherwise obtain and market or distribute our intellectual property rights or technology or otherwise develop products or services with the same functionality as our services. In addition, U.S. patent filings are intended to provide the holder with a right to exclude others from making, using, selling or importing in the United States the inventions covered by the claims of granted patents. If granted, our patents may be contested, circumvented or invalidated. Moreover, the rights that may be granted in those pending patents may not provide us with proprietary protection or competitive advantages, and we may not be able to prevent third parties from infringing these patents. Therefore, the exact effect of our pending patents, if issued, and the other steps we have taken to protect our intellectual property cannot be predicted with certainty.

Although the protection afforded by copyright, trade secret and trademark law, written agreements and common law may provide some advantages, we believe that the following factors help us maintain a competitive advantage:

 

   

our large user and customer base;

 

   

the technological skills of our research and development personnel;

 

   

frequent enhancements to our services; and

 

   

continued expansion of our proprietary technology.

“LogMeIn” is a registered trademark in the United States and in the European Union. We also hold a number of other trademarks and service marks identifying certain of our services or features of our services. We also have a number of trademark applications pending.

Competition

The market that we compete in is evolving, and we expect to face additional competition in the future. We believe that the key competitive factors in the market include:

 

   

service reliability and security;

 

   

ease of initial setup and use;

 

   

fitness for use and the design of features that best meet the needs of the target customer;

 

   

the ability to support multiple device types and operating systems;

 

   

cost of customer acquisition;

 

   

product and brand awareness;

 

   

the ability to reach large fragmented groups of users;

 

   

cost of service delivery; and

 

   

pricing flexibility.

 

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We believe that our large user base, efficient customer acquisition model and low service delivery costs enable us to compete effectively against our largest competitors, including Citrix’s Online division and Cisco’s WebEx division. Both companies offer hosted collaboration and remote access-based services. Both of these competitors attract new customers through traditional marketing and sales efforts, while we have primarily focused on building a large-scale community of users. We believe we reach significantly more users than Citrix and WebEx, which allows us to attract paying customers efficiently.

Certain of our solutions also compete with current or potential services offered by Adobe, Apple, Cisco/WebEx, Citrix, Google, IBM, TeamViewer, Splashtop, GFI, OKTA, BlueJeans, LivePerson, Dropbox, Box, SugarSync, Microsoft, Oracle and PTC. Some of our competitors may also offer, currently or in the future, lower priced, or even free, products or services that compete with our services, including, but not limited to, Symantec’s pcAnywhere, Google’s Chrome Remote Desktop and Microsoft’s Remote Desktop, which comes bundled into most current versions of the Microsoft operating system.

Many of our actual and potential competitors enjoy greater name recognition, longer operating histories, more varied products and services and larger marketing budgets, as well as substantially greater financial, technical and other resources, than we do. In addition, we may also face future competition from new market entrants. We believe that our large user base, efficient customer acquisition model and low service delivery position us well to compete effectively in the future.

Available Information

Copies of the periodic reports that we file with the Securities and Exchange Commission, or SEC, such as our Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any other filings may be obtained by the public, free of charge, by visiting the Investors section of our website at https://investor.logmein.com/sec.cfm , as soon as reasonably practicable after they have been filed with the SEC, or by contacting our Investor Relations department at our office address listed above. Additionally, the SEC maintains copies of any materials that we may file with the SEC at the SEC’s Public Reference Room at 100 F Street, NE, Room 1580, Washington, DC 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet site that contains periodic reports, proxy and information statements and other information regarding issuers that file electronically with the SEC at www.sec.gov. The contents of these websites are not incorporated into this filing. Further, our references to the URLs for these websites are intended to be inactive textual references only.

Employees

As of December 31, 2014, we had 804 full-time employees. None of our employees are represented by labor unions or covered by collective bargaining agreements. We consider our relationship with our employees to be good.

Segments

We have determined that we have one operating segment. For more information about our segments, see Note 2 to our Consolidated Financial Statements .

 

ITEM 1A. RISK FACTORS

Our business is subject to numerous risks. We caution you that the following important factors, among others, could cause our actual results to differ materially from those expressed in forward-looking statements made by us or on our behalf in filings with the SEC, press releases, communications with investors and oral statements. Any or all of our forward-looking statements in this Annual Report or Form 10-K and in any other public statements we make may turn out to be wrong. They can be affected by inaccurate assumptions we might make or by known or unknown risks and uncertainties. Many factors mentioned in the discussion below will be important in determining future results. Consequently, no forward-looking statement can be guaranteed. Actual future results may differ materially from those anticipated in forward looking statements. We undertake no obligation to update any forward-looking statements, whether as a result of new information, future events or otherwise. You are advised, however, to consult any further disclosure we make in our reports filed with the SEC.

 

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RISKS RELATED TO OUR BUSINESS

We may be unable to maintain profitability.

We reported a net loss of $7.7 million for fiscal 2013, primarily due to patent litigation related expenses, and we reported net income of $8.0 million for the year ended December 31, 2014. However, given our operating history, we cannot be certain that we will be able to maintain this profitability in the future. Our growth in revenue and customer base may not be sustainable, and we may not achieve sufficient revenue to achieve or maintain profitability. We may incur significant losses in the future for a number of reasons, including, but not limited to, unforeseen expenses, operating difficulties, complications and delays or due to the other risks described in this report. Accordingly, we may not be able to maintain our profitability, and we may incur significant losses for the foreseeable future.

Assertions by a third party that our services and solutions infringe its intellectual property, whether or not correct, could subject us to costly and time-consuming litigation or expensive licenses.

There is frequent litigation in the software and technology industries based on allegations of infringement or other violations of intellectual property rights. We have been, and may in the future be, subject to third party patent infringement or other intellectual property-related lawsuits as we face increasing competition and become increasingly visible. Regardless of the merit of these claims, they can be time-consuming, result in costly litigation and diversion of technical and management personnel or require us to develop a non-infringing technology or enter into license agreements. There can be no assurance that such licenses will be available on acceptable terms and conditions, if at all, and although we have previously licensed proprietary technology, we cannot be certain that the owners’ rights in such technology will not be challenged, invalidated or circumvented. For these reasons and because of the potential for court awards that are difficult to predict, it is not unusual to find even arguably unmeritorious claims settled for significant amounts. In addition, many of our service agreements require us to indemnify our customers from certain third-party intellectual property infringement claims, which could increase our costs as a result of defending such claims and may require that we pay damages if there were an adverse ruling related to any such claims. These types of claims could harm our relationships with our customers, deter future customers from subscribing to our services or expose us to further litigation. These costs, monetary or otherwise, associated with defending against third party allegations of infringement could have negative effects on our business, financial condition and operating results.

For additional information please refer to Part I, Item 3 entitled “Legal Proceedings” and Note 11 of the Consolidated Financial Statements.

If the security of our customers’ confidential information stored in our systems is breached or otherwise subjected to unauthorized access, our reputation may be harmed, and we may be exposed to liability and a loss of customers.

Our systems store our customers’ confidential information, which may include credit card information, account and device information and other critical data. Any accidental or willful security breaches or other unauthorized access could expose us to liability for the loss of such information, time consuming and expensive litigation and other potential liabilities, as well as negative publicity. Many states have also enacted laws requiring companies to notify individuals of data security breaches involving their personal data. These mandatory disclosures regarding a security breach often lead to widespread negative publicity, which may cause our customers to lose confidence in the effectiveness of our data security measures.

Additionally, techniques used by computer hackers and cyber criminals to obtain unauthorized access or to sabotage systems change frequently and generally are difficult to recognize and react to. Our services and systems, including the systems of our outsourced service providers, have been and may in the future continue to be the target of various forms of cyber-attacks such as DNS attacks, wireless network attacks, viruses and worms, malicious software, application centric attacks, peer-to-peer attacks, phishing attempts, backdoor trojans and distributed denial of service (DDoS) attacks. While we make significant efforts to maintain the security and integrity of our services and computer systems, our cybersecurity measures and the cybersecurity measures taken by our third-party data center facilities may be unable to anticipate, detect or prevent all attempts to compromise our systems. Any security breach, whether successful or not, could harm our reputation, subject us to lawsuits and other potential liabilities and ultimately could result in the loss of customers.

 

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If our services are used to commit fraud or other similar intentional or illegal acts, we may incur significant liabilities, our services may be perceived as not secure and customers may curtail or stop using our services.

Certain services we provide enable direct remote access to third-party computer systems. We do not control the use or content of information accessed by our customers through our services. If our services are used to commit fraud or other bad or illegal acts, including, but not limited to, posting, distributing or transmitting any software or other computer files that contain a virus or other harmful component, interfering or disrupting third-party networks, infringing any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy, transmitting any unlawful, harassing, libelous, abusive, threatening, vulgar or otherwise objectionable material, or accessing unauthorized third-party data, we may become subject to claims for defamation, negligence or intellectual property infringement and subject to other potential liabilities. As a result, defending such claims could be expensive and time-consuming, and we could incur significant liability to our customers and to individuals or businesses who were the targets of such acts. As a result, our business may suffer and our reputation may be damaged.

We depend on search engines to attract a significant percentage of our customers, and if those search engines change their listings or increase their pricing, it would limit our ability to attract new customers.

Many of our customers locate our website through search engines, such as Google. Search engines typically provide two types of search results, algorithmic and purchased listings, and we rely on both types. Algorithmic listings cannot be purchased and are determined and displayed solely by a set of formulas designed by the search engine. Search engines revise their algorithms from time to time in an attempt to optimize search result listings. If the search engines on which we rely for algorithmic listings modify their algorithms in a manner that reduces the prominence of our listing, fewer potential customers may click through to our website, requiring us to resort to other costly resources to replace this traffic. Any failure to replace this traffic could reduce our revenue and increase our costs. In addition, costs for purchased listings have increased in the past and may increase in the future, and further increases could have negative effects on our financial condition.

If we are unable to attract new customers to our services on a cost-effective basis, our revenue and results of operations will be adversely affected.

We must continue to attract a large number of customers on a cost-effective basis, many of whom have not previously used cloud-based, remote-connectivity solutions. We rely on a variety of marketing methods to attract new customers to our services, such as paying providers of online services and search engines for advertising space and priority placement of our website in response to Internet searches. Our ability to attract new customers also depends on the competitiveness of the pricing of our services. If our current marketing initiatives are not successful or become unavailable, if the cost of such initiatives were to significantly increase, or if our competitors offer similar services at lower prices, we may not be able to attract new customers on a cost-effective basis and, as a result, our revenue and results of operations would be adversely affected.

If we are unable to retain our existing customers, our revenue and results of operations would be adversely affected.

We sell our services pursuant to agreements that are generally one year in duration. Our customers have no obligation to renew their subscriptions after their subscription period expires, and these subscriptions may not be renewed on the same or on more profitable terms. As a result, our ability to grow depends in part on subscription renewals. We may not be able to accurately predict future trends in customer renewals, and our customers’ renewal rates may decline or fluctuate because of several factors, including their satisfaction or dissatisfaction with our services, the prices of our services, the prices of services offered by our competitors or reductions in our customers’ spending levels. If our customers do not renew their subscriptions for our services, renew on less favorable terms, or do not purchase additional functionality or subscriptions, our revenue may grow more slowly than expected or decline, and our profitability and gross margins may be harmed.

 

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If we fail to convert our free users to paying customers, our revenue and financial results will be harmed.

A significant portion of our user base utilizes our services free of charge through our free services or free trials of our premium services. We seek to convert these free and trial users to paying customers of our premium services. If our rate of conversion suffers for any reason, our revenue may decline and our business may suffer.

If our efforts to build a strong brand identity are not successful, we may not be able to attract or retain subscribers and our operating results may be adversely affected.

We believe that building and maintaining a strong brand identity plays an important role in attracting and retaining subscribers to our services, who may have other options from which to obtain their remote connectivity services. In order to build a strong brand, we believe that we must continue to offer innovative remote connectivity services that our subscribers value and enjoy using, and also market and promote those services through effective marketing campaigns, promotions and communications with our user base. From time-to-time, subscribers may express dissatisfaction with our services or react negatively to our strategic business decisions, such as changes that we make in pricing, features or service offerings, including the discontinuance of our free services. To the extent that user dissatisfaction with our services or strategic business decisions is widespread or not adequately addressed, our overall brand identity may suffer and as a result our ability to attract and retain subscribers may be adversely affected, which could adversely affect our operating results.

Our business strategy includes acquiring or investing in other companies, which may divert our management’s attention, result in additional dilution to our stockholders and consume resources that are necessary to sustain our business.

Our business strategy includes acquiring complementary services, technologies or businesses. We also may enter into relationships with other businesses to expand our portfolio of services or our ability to provide our services in foreign jurisdictions, which could involve preferred or exclusive licenses, additional channels of distribution, discount pricing or investments in other companies. Negotiating these transactions can be time-consuming, difficult and expensive, and our ability to close these transactions may often be subject to conditions or approvals that are beyond our control. Consequently, these transactions, even if undertaken and announced, may not close.

An acquisition, investment or new business relationship may result in unforeseen operating difficulties and expenditures. In particular, we may encounter difficulties assimilating or integrating the businesses, technologies, products, personnel or operations of the acquired companies, particularly if the key personnel of the acquired company choose not to work for us, the company’s software is not easily adapted to work with ours or we have difficulty retaining the customers of any acquired business due to changes in management or otherwise. Acquisitions may also disrupt our business, divert our resources and require significant management attention that would otherwise be available for development of our business. Moreover, the anticipated benefits of any acquisition, investment or business relationship may not be realized or we may be exposed to unknown liabilities. For one or more of those transactions, we may:

 

   

issue additional equity securities that would dilute our stockholders;

 

   

use cash that we may need in the future to operate our business;

 

   

incur debt on terms unfavorable to us or that we are unable to repay;

 

   

incur large charges or substantial liabilities;

 

   

encounter difficulties retaining key employees of the acquired company or integrating diverse software codes or business cultures; and

 

   

become subject to adverse tax consequences, substantial depreciation or deferred compensation charges.

Any of these risks could harm our business and operating results.

 

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We expect that integrating an acquired company’s operations may present challenges.

The integration of an acquired company requires, among other things, coordination of administrative, sales and marketing, accounting and finance functions and expansion of information and management systems. Integration may prove to be difficult initially due to the necessity of coordinating geographically separate organizations and integrating personnel with disparate business backgrounds and corporate cultures. We may not be able to retain key employees of an acquired company. Additionally, the process of integrating a new product or service may require a disproportionate amount of time and attention of our management and financial and other resources. Any difficulties or problems encountered in the integration of a new product or service could have a material adverse effect on our business.

The integration of an acquired company may cost more than we anticipate, and it is possible that we will incur significant additional unforeseen costs in connection with the integration that may negatively impact our earnings.

In addition, we may only be able to conduct limited due diligence on an acquired company’s operations. Following an acquisition, we may be subject to unforeseen liabilities arising from an acquired company’s past or present operations. These liabilities may be greater than the warranty and indemnity limitations we negotiate. Any unforeseen liability that is greater than these warranty and indemnity limitations could have a negative impact on our financial condition.

Even if successfully integrated, there can be no assurance that our operating performance after an acquisition will be successful or will fulfill management’s objectives.

We may not be able to respond to rapid technological changes in time to address the needs of our customers, which could have a material adverse effect on our sales and profitability.

The cloud-based, remote-connectivity services market is characterized by rapid technological change, the frequent introduction of new services and evolving industry standards. Our ability to remain competitive will depend in large part on our ability to continue to enhance our existing services and develop new service offerings that keep pace with the market’s rapid technological developments. Additionally, to achieve market acceptance for our services, we must effectively anticipate and offer services that meet changing customer demands in a timely manner. Customers may require features and capabilities that our current services do not have. If we fail to develop services that satisfy customer requirements in a timely and cost-effective manner, our ability to renew our services with existing customers and our ability to create or increase demand for our services will be harmed and our revenue and results of operations would be adversely affected.

We may not be able to capitalize on potential emerging market opportunities and new services that we introduce may not generate the revenue and earnings we anticipated, which may adversely affect our business.

Our business strategy involves identifying emerging market opportunities which we can capitalize on by successfully developing and introducing new services designed to address those market opportunities. We have made and expect to continue to make significant investments in research and development in order to capitalize on potential emerging market opportunities that we have identified. If, despite our research and development efforts, we are not able to successfully develop new services or if we are not able to fully penetrate the emerging markets we have targeted, we may not be able to generate the revenue and earnings we anticipated and our business and results of operations would be adversely affected.

We use a limited number of data centers to deliver our services. Any disruption of service at these facilities could harm our business.

We host our services and serve all of our customers from seven third-party data center facilities located throughout the world. We do not control the operation of these facilities. The owners of our data center facilities have no obligation to renew their agreements with us on commercially reasonable terms, or at all. If we are unable to renew these agreements on commercially reasonable terms, we may be required to transfer to new data center facilities, and we may incur significant costs and possible service interruption in connection with doing so.

 

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Any changes in third-party service levels at our data centers or any errors, defects, disruptions or other performance problems with our services could harm our reputation and may damage our customers’ businesses. Interruptions in our services might reduce our revenue, cause us to issue credits to customers, subject us to potential liability, cause customers to terminate their subscriptions or harm our renewal rates.

Our data centers are vulnerable to damage or interruption from human error, intentional bad acts, pandemics, earthquakes, hurricanes, floods, fires, war, terrorist attacks, power losses, hardware failures, systems failures, telecommunications failures and similar events. At least one of our data facilities is located in an area known for seismic activity, increasing our susceptibility to the risk that an earthquake could significantly harm the operations of these facilities. The occurrence of a natural disaster or an act of terrorism, or vandalism or other misconduct, a decision to close the facilities without adequate notice or other unanticipated problems could result in lengthy interruptions in our services.

Failure to comply with data protection standards may cause us to lose the ability to offer our customers a credit card payment option which would increase our costs of processing customer orders and make our services less attractive to our customers, the majority of which purchase our services with a credit card.

Major credit card issuers have adopted data protection standards and have incorporated these standards into their contracts with us. If we fail to maintain our compliance with the data protection and documentation standards adopted by the major credit card issuers and applicable to us, these issuers could terminate their agreements with us, and we could lose our ability to offer our customers a credit card payment option. Most of our individual and SMB customers purchase our services online with a credit card, and our business depends substantially upon our ability to offer the credit card payment option. Any loss of our ability to offer our customers a credit card payment option would make our services less attractive to them and hurt our business. Our administrative costs related to customer payment processing would also increase significantly if we were not able to accept credit card payments for our services.

Failure to effectively and efficiently service SMBs would adversely affect our ability to increase our revenue.

We market and sell a significant amount of our services to SMBs. SMBs are challenging to reach, acquire and retain in a cost-effective manner. To grow our revenue quickly, we must add new customers, sell additional services to existing customers and encourage existing customers to renew their subscriptions. Selling to and retaining SMBs is more difficult than selling to and retaining large enterprise customers because SMB customers generally:

 

   

have high failure rates;

 

   

are price sensitive;

 

   

are difficult to reach with targeted sales campaigns;

 

   

have high churn rates in part because of the scale of their businesses and the ease of switching services; and

 

   

generate less revenues per customer and per transaction.

In addition, SMBs frequently have limited budgets and may choose to spend funds on items other than our services. Moreover, SMBs are more likely to be significantly affected by economic downturns than larger, more established companies, and if these organizations experience economic hardship, they may be unwilling or unable to expend resources on IT.

If we are unable to market and sell our services to SMBs with competitive pricing and in a cost-effective manner, our ability to grow our revenue quickly and become profitable will be harmed.

 

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The markets in which we participate are competitive, with low barriers to entry, and if we do not compete effectively, our operating results may be harmed.

The markets for remote-connectivity solutions are competitive and rapidly changing, with relatively low barriers to entry. With the introduction of new technologies and market entrants, we expect competition to intensify in the future. In addition, pricing pressures and increased competition generally could result in reduced sales, reduced margins or the failure of our services to achieve or maintain widespread market acceptance. Often we compete against existing services that our potential customers have already made significant expenditures to acquire and implement.

Certain of our competitors offer, or may in the future offer, lower priced, or free, products or services that compete with our services. This competition may result in reduced prices and a substantial loss of customers for our services or a reduction in our revenue.

Our services compete with large, established competitors like Citrix Systems, WebEx (a division of Cisco Systems), Microsoft, IBM, Apple, Google and Adobe. Certain of our services also compete with smaller competitors such as GFI, TeamViewer, Splashtop, OKTA, BlueJeans, LivePerson, Dropbox, BOX, SugarSync and PTC. Many of our actual and potential competitors enjoy competitive advantages over us, such as greater name recognition, longer operating histories, more varied services and larger marketing budgets, as well as greater financial, technical and other resources. In addition, many of our competitors have established marketing relationships and access to larger customer bases, and have major distribution agreements with consultants, system integrators and resellers. If we are not able to compete effectively, our operating results will be harmed.

Industry consolidation may result in increased competition.

Some of our competitors have made or may make acquisitions or may enter into partnerships or other strategic relationships to offer a more comprehensive service than they individually had offered. In addition, new entrants not currently considered to be competitors may enter the market through acquisitions, partnerships or strategic relationships. We expect these trends to continue as companies attempt to strengthen or maintain their market positions. Many of the companies driving this trend have significantly greater financial, technical and other resources than we do and may be better positioned to acquire and offer complementary services and technologies. The companies resulting from such combinations may create more compelling service offerings and may offer greater pricing flexibility than we can or may engage in business practices that make it more difficult for us to compete effectively, including on the basis of price, sales and marketing programs, technology or service functionality. These pressures could result in a substantial loss of customers or a reduction in our revenues.

Original equipment manufacturers may adopt solutions provided by our competitors.

Original equipment manufacturers may in the future seek to build the capability for remote-connectivity solutions into their products. We may compete with our competitors to sell our services to, or partner with, these manufacturers. Our ability to attract and partner with these manufacturers will, in large part, depend on the competitiveness of our services. If we fail to attract or partner with, or our competitors are successful in attracting or partnering with, these manufacturers, our revenue and results of operations would be affected adversely.

Our quarterly operating results may fluctuate in the future. As a result, we may fail to meet or exceed the expectations of research analysts or investors, which could cause our stock price to decline.

Our quarterly operating results may fluctuate as a result of a variety of factors, many of which are outside of our control. If our quarterly operating results or guidance fall below the expectations of research analysts or investors, the price of our common stock could decline substantially. Fluctuations in our quarterly operating results or guidance may be due to a number of factors, including, but not limited to, those listed below:

 

   

our ability to renew existing customers, increase sales to existing customers and attract new customers;

 

   

the amount and timing of operating costs and capital expenditures related to the operation, maintenance and expansion of our business;

 

   

service outages or security breaches;

 

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whether we meet the service level commitments in our agreements with our customers;

 

   

changes in our pricing policies or those of our competitors;

 

   

our ability to successfully implement strategic business model changes;

 

   

the timing and success of new application and service introductions and upgrades by us or our competitors;

 

   

changes in sales compensation plans or organizational structure;

 

   

the timing of costs related to the development or acquisition of technologies, services or businesses;

 

   

seasonal variations or other cyclicality in the demand for our services;

 

   

general economic, industry and market conditions and those conditions specific to Internet usage and online businesses;

 

   

litigation, including class action litigation, involving our company, our services, or our general industry;

 

   

the purchasing and budgeting cycles of our customers;

 

   

the financial condition of our customers; and

 

   

geopolitical events such as war, threat of war or terrorist acts.

We believe that our quarterly revenue and operating results may vary significantly in the future and that period-to-period comparisons of our operating results may not be meaningful. You should not rely on past results as an indication of future performance.

If we fail to maintain proper and effective internal controls, our ability to produce accurate and timely financial statements could be impaired, which could harm our operating results, our ability to operate our business and investors’ views of us.

Ensuring that we have adequate internal financial and accounting controls and procedures in place so that we can produce accurate financial statements on a timely basis is a costly and time-consuming effort. Our internal controls over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with generally accepted accounting principles in the United States of America. In addition, Section 404 of the Sarbanes-Oxley Act of 2002, or the Sarbanes-Oxley Act, requires an annual management assessment of the effectiveness of our internal controls over financial reporting and a report from our independent registered public accounting firm addressing the effectiveness of our internal controls over financial reporting. We have documented, tested and improved, to the extent necessary, our internal controls over financial reporting for the year ended December 31, 2014. If in the future we are not able to comply with the requirements of Section 404 of the Sarbanes-Oxley Act in a timely manner, or if as part of our process of documenting and testing our internal controls over financial reporting, we or our independent registered public accounting firm identify deficiencies or areas for further attention and improvement, implementing appropriate changes to our internal controls may distract our officers and employees, entail substantial costs to modify our existing processes and take significant time to complete. These changes may not, however, be effective in maintaining the adequacy of our internal controls, and any failure to maintain that adequacy, or consequent inability to produce accurate financial statements on a timely basis, could increase our operating costs and harm our business. In addition, investors’ perceptions that our internal controls are inadequate or that we are unable to produce accurate financial statements on a timely basis may harm our stock price and make it more difficult for us to effectively market and sell our services to new and existing customers.

We provide minimum service level commitments to some of our customers, the failure of which to meet could cause us to issue credits for future services or pay penalties, which could significantly harm our revenue.

Some of our customer agreements now, and may in the future, provide minimum service level commitments regarding items such as uptime, functionality or performance. If we are unable to meet the stated service level commitments for these customers or our services suffer extended periods of unavailability, we are or may be

 

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contractually obligated to provide these customers with credits for future services or pay other penalties. Our revenue could be significantly impacted if we are unable to meet our service level commitments and are required to provide a significant amount of our services at no cost or pay other penalties. We do not currently have any reserves on our balance sheet for these commitments.

If we fail to manage our growth effectively, we may be unable to execute our business plan, maintain high levels of service or address competitive challenges adequately.

For the last three fiscal years, our revenue has grown from $138.8 million in 2012 to $166.3 million in 2013 and to $222.0 million in 2014. Our growth has placed, and may continue to place, a significant strain on our managerial, administrative, operational, financial and other resources. We intend to further expand our overall business, customer base, headcount and operations both domestically and internationally. Creating a global organization and managing a geographically dispersed workforce will require substantial management effort and significant additional investment in our infrastructure. We will be required to continue to improve our operational, financial and management controls and our reporting procedures and we may not be able to do so effectively. As such, we may be unable to manage our expenses effectively in the future, which may negatively impact our gross profit or operating expenses in any particular quarter.

If we do not effectively expand and train our work force, our future operating results will suffer.

We plan to continue to expand our work force both domestically and internationally to increase our customer base and revenue. We believe that there is significant competition for qualified personnel with the skills and technical knowledge that we require. Our ability to achieve significant revenue growth will depend, in large part, on our success in recruiting, training and retaining sufficient numbers of personnel to support our growth. New hires require significant training and, in most cases, take significant time before they achieve full productivity. Our recent hires and planned hires may not become as productive as we expect, and we may be unable to hire or retain sufficient numbers of qualified individuals. If our recruiting, training and retention efforts are not successful or do not generate a corresponding increase in revenue, our business will be harmed.

Our sales cycles for enterprise customers can be long, unpredictable and require considerable time and expense, which may cause our operating results to fluctuate.

The timing of our revenue from sales to enterprise customers is difficult to predict. These efforts require us to educate our customers about the use and benefit of our services, including the technical capabilities and potential cost savings to an organization. Enterprise customers typically undertake a significant evaluation process that has in the past resulted in a lengthy sales cycle, typically several months. We spend substantial time, effort and money on our enterprise sales efforts without any assurance that our efforts will produce any sales. In addition, service subscriptions are frequently subject to budget constraints and unplanned administrative, processing and other delays. If sales expected from a specific customer for a particular quarter are not realized in that quarter or at all, our results could fall short of public expectations and our business, operating results and financial condition could be adversely affected.

Our long-term success depends, in part, on our ability to expand the sales of our services to customers located outside of the United States, and thus our business is susceptible to risks associated with international sales and operations.

We currently maintain offices and have sales personnel outside of the United States and are expanding our international operations. Our international expansion efforts may not be successful. In addition, conducting international operations subjects us to new risks that we have not generally faced in the United States. These risks include:

 

   

localization of our services, including translation into foreign languages and adaptation for local practices and regulatory requirements;

 

   

lack of familiarity with and unexpected changes in foreign regulatory requirements;

 

   

longer accounts receivable payment cycles and difficulties in collecting accounts receivable;

 

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difficulties in managing and staffing international operations;

 

   

fluctuations in currency exchange rates;

 

   

potentially adverse tax consequences, including the complexities of foreign value added or other tax systems and restrictions on the repatriation of earnings;

 

   

dependence on certain third parties, including channel partners with whom we do not have extensive experience;

 

   

the burdens of complying with a wide variety of foreign laws and legal standards;

 

   

increased financial accounting and reporting burdens and complexities;

 

   

political, social and economic instability abroad, terrorist attacks and security concerns in general; and

 

   

reduced or varied protection for intellectual property rights in some countries.

Operating in international markets also requires significant management attention and financial resources. The investment and additional resources required to establish operations and manage growth in other countries may not produce desired levels of revenue or profitability.

Adverse economic conditions or reduced IT spending may adversely impact our revenues and profitability.

Our business depends on the overall demand for IT and on the economic health of our current and prospective customers. The use of our service is often discretionary and may involve a commitment of capital and other resources. Weak economic conditions in the United States, European Union and other key international economies may affect the rate of IT spending and could adversely impact our customers’ ability or willingness to purchase our services, delay prospective customers’ purchasing decisions, reduce the value or duration of their subscription contracts, or affect renewal rates, all of which could have an adverse effect on our business, operating results and financial condition.

Our success depends in large part on our ability to protect and enforce our intellectual property rights.

We rely on a combination of copyright, service mark, trademark and trade secret laws, as well as confidentiality procedures and contractual restrictions, to establish and protect our proprietary rights, all of which provide only limited protection. In addition, we have twelve issued patents and eleven patents pending, and we are in the process of filing additional patents. We cannot assure you that any patents will issue from our currently pending patent applications in a manner that gives us the protection that we seek, if at all, or that any future patents issued to us will not be challenged, invalidated or circumvented. Any patents that may issue in the future from pending or future patent applications may not provide sufficiently broad protection or they may not prove to be enforceable in actions against alleged infringers. Also, we cannot assure you that any future service mark or trademark registrations will be issued for pending or future applications or that any registered service marks or trademarks will be enforceable or provide adequate protection of our proprietary rights.

We endeavor to enter into agreements with our employees and contractors and agreements with parties with whom we do business to limit access to and disclosure of our proprietary information. The steps we have taken, however, may not prevent unauthorized use or the reverse engineering of our technology. Moreover, others may independently develop technologies that are competitive to ours or infringe our intellectual property. Enforcement of our intellectual property rights also depends on our successful legal actions against these infringers, but these actions may not be successful, even when our rights have been infringed.

Furthermore, effective patent, trademark, service mark, copyright and trade secret protection may not be available in every country in which our services are available. In addition, the legal standards relating to the validity, enforceability and scope of protection of intellectual property rights in Internet-related industries are uncertain and still evolving.

 

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Our use of “open source” software could negatively affect our ability to sell our services and subject us to possible litigation.

A portion of the technologies we license incorporate so-called “open source” software, and we may incorporate additional open source software in the future. Open source software is generally licensed by its authors or other third parties under open source licenses. If we fail to comply with these licenses, we may be subject to certain conditions, including requirements that we offer our services that incorporate the open source software for no cost, that we make available source code for modifications or derivative works we create based upon, incorporating or using the open source software and/or that we license such modifications or derivative works under the terms of the particular open source license. If an author or other third party that distributes such open source software were to allege that we had not complied with the conditions of one or more of these licenses, we could be required to incur significant legal expenses defending against such allegations and could be subject to significant damages, enjoined from the sale of our services that contained the open source software and required to comply with the foregoing conditions, which could disrupt the distribution and sale of some of our services.

We rely on third-party software, including server software and licenses from third parties to use patented intellectual property that is required for the development of our services, which may be difficult to obtain or which could cause errors or failures of our services.

We rely on software licensed from third parties to offer our services, including server software from Microsoft and patented third-party technology. In addition, we may need to obtain future licenses from third parties to use intellectual property associated with the development of our services, which might not be available to us on acceptable terms, or at all. Any loss of the right to use any software required for the development and maintenance of our services could result in delays in the provision of our services until equivalent technology is either developed by us, or, if available, is identified, obtained and integrated, which could harm our business. Any errors or defects in third-party software could result in errors or a failure of our services which could harm our business.

Material defects or errors in the software we use to deliver our services could harm our reputation, result in significant costs to us and impair our ability to sell our services.

The software applications underlying our services are inherently complex and may contain material defects or errors, particularly when first introduced or when new versions or enhancements are released. We have from time to time found defects in our services, and new errors in our existing services may be detected in the future. Any defects that cause interruptions to the availability of our services could result in:

 

   

a reduction in sales or delay in market acceptance of our services;

 

   

sales credits or refunds to our customers;

 

   

loss of existing customers and difficulty in attracting new customers;

 

   

diversion of development resources;

 

   

harm to our reputation; and

 

   

increased insurance costs.

After the release of our services, defects or errors may also be identified from time to time by our internal team and by our customers. The costs incurred in correcting any material defects or errors in our services may be substantial and could harm our operating results.

Government regulation of the Internet and e-commerce and of the international exchange of certain technologies is subject to possible unfavorable changes, and our failure to comply with applicable regulations could harm our business and operating results.

As Internet commerce continues to evolve, increasing regulation by federal, state or foreign governments becomes more likely. For example, we believe increased regulation is likely in the area of data privacy, and laws

 

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and regulations applying to the solicitation, collection, processing or use of personal or consumer information could affect our customers’ ability to use and share data, potentially reducing demand for our products and services. In addition, taxation of products and services provided over the Internet or other charges imposed by government agencies or by private organizations for accessing the Internet may also be imposed. Any regulation imposing greater fees for Internet use or restricting the exchange of information over the Internet could result in reduced growth or a decline in the use of the Internet and could diminish the viability of our Internet-based services, which could harm our business and operating results.

Our software products contain encryption technologies, certain types of which are subject to U.S. and foreign export control regulations and, in some foreign countries, restrictions on importation and/or use. We have submitted our encryption products for technical review under U.S. export regulations and have received the necessary approvals. Any failure on our part to comply with encryption or other applicable export control requirements could result in financial penalties or other sanctions under the U.S. export regulations, which could harm our business and operating results. Foreign regulatory restrictions could impair our access to technologies that we seek for improving our products and services and may also limit or reduce the demand for our products and services outside of the United States.

Our operating results may be harmed if we are required to collect sales or other related taxes for our subscription services in jurisdictions where we have not historically done so.

Primarily due to the nature of our services in certain states and countries, we do not believe we are required to collect sales or other related taxes from our customers in certain states or countries. However, one or more other states or countries may seek to impose sales or other tax collection obligations on us, including for past sales by us or our resellers and other partners. A successful assertion that we should be collecting sales or other related taxes on our services could result in substantial tax liabilities for past sales, discourage customers from purchasing our services or otherwise harm our business and operating results.

The loss of key employees or an inability to attract and retain additional personnel may impair our ability to grow our business.

We are highly dependent upon the continued service and performance of our executive management team as well as other key technical and sales employees. These key employees are not party to an employment agreement with us, and they may terminate employment with us at any time with no advance notice. The replacement of these key employees likely would involve significant time and costs, and the loss of these key employees may significantly delay or prevent the achievement of our business objectives.

We face intense competition for qualified individuals from numerous technology, software and manufacturing companies. For example, our competitors may be able attract and retain a more qualified engineering team by offering more competitive compensation packages. If we are unable to attract new engineers and retain our current engineers, we may not be able to develop and maintain our services at the same levels as our competitors and we may, therefore, lose potential customers and sales penetration in certain markets. Our failure to attract and retain suitably qualified individuals could have an adverse effect on our ability to implement our business plan and, as a result, our ability to compete would decrease, our operating results would suffer and our revenues would decrease.

Our business is substantially dependent on market demand for, and acceptance of, the cloud-based model for the use of software.

We derive, and expect to continue to derive, substantially all of our revenue from the sale of cloud-based services. As a result, widespread acceptance and use of the cloud-based business model is critical to our future growth and success. Under the perpetual or periodic license model for software procurement, users of the software typically run applications on their hardware. Because companies are generally predisposed to maintaining control of their IT systems and infrastructure, there may be resistance to the concept of accessing the functionality that software provides as a service through a third party. If the market for cloud-based, software solutions ceases to grow or grows more slowly than we currently anticipate, demand for our services could be negatively affected.

 

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Growth of our business may be adversely affected if businesses, IT support providers or consumers do not adopt remote access, support and collaboration solutions more widely.

Our services employ new and emerging technologies for remote access, support and collaboration. Our target customers may hesitate to accept the risks inherent in applying and relying on new technologies or methodologies to supplant traditional methods of remote connectivity. Our business will not be successful if our target customers do not accept the use of our remote access and remote support technologies.

Our success depends on our customers’ continued high-speed access to the Internet and the continued reliability of the Internet infrastructure.

Because our services are designed to work over the Internet, our revenue growth depends on our customers’ high-speed access to the Internet, as well as the continued maintenance and development of the Internet infrastructure. The future delivery of our services will depend on third-party Internet service providers to expand high-speed Internet access, to maintain a reliable network with the necessary speed, data capacity and security, and to develop complementary products and services, including high-speed modems, for providing reliable and timely Internet access and services. The success of our business depends directly on the continued accessibility, maintenance and improvement of the Internet as a convenient means of customer interaction, as well as an efficient medium for the delivery and distribution of information by businesses to their employees. All of these factors are out of our control.

To the extent that the Internet continues to experience increased numbers of users, frequency of use or bandwidth requirements, the Internet may become congested and be unable to support the demands placed on it, and its performance or reliability may decline. Any future Internet outages or delays could adversely affect our ability to provide services to our customers.

RISKS RELATED TO OWNERSHIP OF OUR COMMON STOCK

Our failure to raise additional capital or generate the cash flows necessary to expand our operations and invest in our services could reduce our ability to compete successfully.

We may need to raise additional funds, and we may not be able to obtain additional debt or equity financing on favorable terms, if at all. If we raise additional equity financing, our stockholders may experience significant dilution of their ownership interests, and the per share value of our common stock could decline. If we engage in debt financing, we may be required to accept terms that restrict our ability to pay dividends or make distributions, incur additional indebtedness and force us to maintain specified liquidity or other ratios. If we need additional capital and cannot raise it on acceptable terms, we may not be able to, among other things:

 

   

develop or enhance our services;

 

   

continue to expand our development, sales and marketing organizations;

 

   

acquire complementary technologies, products or businesses;

 

   

expand our operations, in the United States or internationally;

 

   

hire, train and retain employees; or

 

   

respond to competitive pressures or unanticipated working capital requirements.

Our stock price may be volatile, and the market price of our common stock may drop in the future.

Prior to the completion of our initial public offering, or IPO, in July 2009, there was no public market for shares of our common stock. During the period from our IPO until February 13, 2015, our common stock has traded as high as $53.38 and as low as $15.15. An active, liquid and orderly market for our common stock may not be sustained, which could depress the trading price of our common stock. Some of the factors that may cause the market price of our common stock to fluctuate include:

 

   

fluctuations in our quarterly financial results or the quarterly financial results of companies perceived to be similar to us;

 

   

fluctuations in our recorded revenue, even during periods of significant sales order activity;

 

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changes in estimates of our financial results or recommendations by securities analysts;

 

   

failure of any of our services to achieve or maintain market acceptance;

 

   

changes in market valuations of similar companies;

 

   

announcements regarding changes to our current or planned products or services;

 

   

success of competitive products or services;

 

   

changes in our capital structure, such as future issuances of securities or the incurrence of debt;

 

   

announcements by us or our competitors of significant services, contracts, acquisitions or strategic alliances;

 

   

regulatory developments in the United States, foreign countries or both;

 

   

litigation, including class action litigation, involving our company, our services, or our general industry, including announcements regarding developments in on-going litigation matters;

 

   

additions or departures of key personnel;

 

   

general perception of the future of the remote-connectivity market or our services;

 

   

investors’ general perception of us; and

 

   

changes in general economic, industry and market conditions.

In addition, if the market for technology stocks or the stock market in general experiences a loss of investor confidence, the trading price of our common stock could decline for reasons unrelated to our business, financial condition or results of operations. If any of the foregoing occurs, it could cause our stock price to fall and may expose us to class action lawsuits that, even if unsuccessful, could be costly to defend and a distraction to management.

A significant portion of our total outstanding shares may be sold into the public market at any time, which could cause the market price of our common stock to drop significantly, even if our business is doing well.

If our existing stockholders sell a large number of shares of our common stock or the public market perceives that such existing stockholders might sell shares of common stock, the trading price of our common stock could decline significantly.

If securities or industry analysts do not publish or cease publishing research or reports about us, our business or our market, or if they publish a negative report or change their recommendations regarding our stock adversely, our stock price and trading volume could decline.

The trading market for our common stock is influenced by the research and reports that industry or securities analysts publish about us, our business, our market or our competitors. If any of the analysts who cover us or may cover us in the future publish a negative report or change their recommendation regarding our stock adversely, or provide more favorable relative recommendations about our competitors, our stock price would likely decline. If any analyst who covers us or may cover us in the future were to cease coverage of our company or fail to regularly publish reports on us, we could lose visibility in the financial markets, which in turn could cause our stock price or trading volume to decline.

Our management has broad discretion over the use of our existing cash resources and might not use such funds in ways that increase the value of our common stock.

Our management will continue to have broad discretion to use our cash resources. Our management might not apply these cash resources in ways that increase the value of our common stock.

 

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We do not expect to declare any dividends in the foreseeable future.

We do not anticipate declaring any cash dividends to holders of our common stock in the foreseeable future. Consequently, stockholders must rely on sales of their common stock after price appreciation, which may never occur, as the only way to realize any future gains on the value of their shares of our common stock.

As a public company, we incur significant additional costs which could harm our operating results.

As a public company, we incur significant legal, accounting and other expenses, including costs associated with public company reporting requirements. We also have incurred and will continue to incur costs associated with current corporate governance requirements, including requirements under Section 404 and other provisions of the Sarbanes-Oxley Act, as well as rules implemented by the Securities and Exchange Commission, or SEC, and The NASDAQ Global Select Market. The expenses incurred by public companies for reporting and corporate governance purposes have increased dramatically. We expect these rules and regulations to substantially increase our legal and financial compliance costs and to make some activities more time-consuming and costly. We also expect these new rules and regulations may make it more difficult and more expensive for us to maintain director and officer liability insurance, and we may be required to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage previously available. As a result, it may be more difficult for us to attract and retain qualified individuals to serve on our board of directors or as our executive officers.

Certain stockholders could attempt to influence changes within the Company which could adversely affect the Company’s operations, financial condition and the value of our common stock.

Our stockholders may from time-to-time seek to acquire a controlling stake in our company, engage in proxy solicitations, advance shareholder proposals or otherwise attempt to effect changes. Campaigns by stockholders to effect changes at publicly traded companies are sometimes led by investors seeking to increase short-term stockholder value through actions such as financial restructuring, increased debt, special dividends, stock repurchases or sales of assets or the entire company. Responding to proxy contests and other actions by activist stockholders can be costly and time-consuming, disrupting our operations and diverting the attention of our Board of Directors and senior management from the pursuit of business strategies. These actions could adversely affect our operations, financial condition and the value of our common stock.

Anti-takeover provisions contained in our certificate of incorporation and bylaws, as well as provisions of Delaware law, could impair a takeover attempt.

Our certificate of incorporation, bylaws and Delaware law contain provisions that could have the effect of rendering more difficult or discouraging an acquisition deemed undesirable by our board of directors. Our corporate governance documents include provisions:

 

   

authorizing blank check preferred stock, which could be issued with voting, liquidation, dividend and other rights superior to our common stock;

 

   

limiting the liability of, and providing indemnification to, our directors and officers;

 

   

limiting the ability of our stockholders to call and bring business before special meetings and to take action by written consent in lieu of a meeting;

 

   

requiring advance notice of stockholder proposals for business to be conducted at meetings of our stockholders and for nominations of candidates for election to our board of directors;

 

   

controlling the procedures for the conduct and scheduling of board of directors and stockholder meetings;

 

   

providing the board of directors with the express power to postpone previously scheduled annual meetings and to cancel previously scheduled special meetings;

 

   

limiting the determination of the number of directors on our board of directors and the filling of vacancies or newly created seats on the board to our board of directors then in office; and

 

   

providing that directors may be removed by stockholders only for cause.

 

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These provisions, alone or together, could delay hostile takeovers and changes in control of our company or changes in our management.

As a Delaware corporation, we are also subject to provisions of Delaware law, including Section 203 of the Delaware General Corporation law, which prevents some stockholders holding more than 15% of our outstanding common stock from engaging in certain business combinations without approval of the holders of substantially all of our outstanding common stock. Any provision of our certificate of incorporation or bylaws or Delaware law that has the effect of delaying or deterring a change in control could limit the opportunity for our stockholders to receive a premium for their shares of our common stock, and could also affect the price that some investors are willing to pay for our common stock.

 

ITEM 1B.     UNRESOLVED STAFF COMMENTS

None.

 

ITEM 2.     PROPERTIES

As of February 20, 2015, our principal facilities consist of approximately 101,821 square feet of office space at our U.S. headquarters located at 320 Summer Street, Boston, MA 02210 and approximately 37,725 square feet of space at our development facility located in Hungary. In December 2014, we entered into a lease for additional office space in Boston, MA which consists of approximately 117,801 square feet of office space located at 333 Summer Street, Boston, MA 02210. We also have leased additional office space in San Francisco, California, Wichita, Kansas and in Hungary, Ireland, Australia, the United Kingdom and India. We believe our facilities are sufficient to support our needs through 2015 and that additional space will be available in the future on commercially reasonable terms as needed.

We lease space in third-party facilities from which we operate our seven data centers, four of which are located in the United States, one of which is located in Europe, one of which is located in Asia and one of which is located in Australia.

 

ITEM 3.     LEGAL PROCEEDINGS

On September 8, 2010, 01 Communique Laboratory, Inc., or 01, filed a complaint that named us as a defendant in a lawsuit in the U.S. District Court for the Eastern District of Virginia (Civil Action No. 1:10cv1007) alleging that we infringed U.S. Patent No. 6,928,479, or the ‘479 Patent, which is owned by 01 and has claims directed to a particular application or system for providing a private communication portal from one computer to a second computer. The complaint sought damages in an unspecified amount and injunctive relief. On April 1, 2011, the U.S. District Court for the Eastern District of Virginia granted our motion for summary judgment of non-infringement. The court issued a written order regarding this decision on May 4, 2011. On May 13, 2011, 01 filed a notice of appeal appealing the court’s ruling granting summary judgment. On July 31, 2012, the U.S. Court of Appeals for the Federal Circuit vacated the lower court’s summary judgment of non-infringement ruling and remanded the case back to the U.S. District Court for the Eastern District of Virginia with revised claim construction. The trial commenced on March 18, 2013 and on March 26, 2013, a jury in the Eastern District of Virginia found that our products do not infringe the ‘479 Patent as previously asserted by 01. The court issued a written order regarding this decision on April 2, 2013. On June 26, 2013, 01 filed a notice of appeal seeking to appeal the jury’s non-infringement verdict. On June 9, 2014, the U.S. Court of Appeals for the Federal Circuit affirmed the jury’s non-infringement verdict. On November 21, 2014, the U.S. District Court for the Eastern District of Virginia issued its final order, awarding costs to us, which 01 paid on December 3, 2014, formally concluding this matter.

On August 26, 2014, Sensory Technologies, LLC, or Sensory, filed a complaint against us in the U.S. District Court for the Southern District of Indiana (Case No. 1:14-cv-1406). The complaint, which was served upon us on August 27, 2014, alleges, among other things, that we have infringed upon Sensory’s JOIN ®  trademark, which is registered to Sensory under U.S. Trademark Registration No. 3622883. The complaint seeks damages in an unspecified amount and injunctive relief. We believe we have meritorious defenses to the claims and intend to defend the lawsuit vigorously. Given the inherent unpredictability of litigation and the fact that this litigation is still in its early stages, we are unable to predict the outcome of this litigation or reasonably estimate a possible loss or range of loss associated with this litigation at this time.

 

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On August 28, 2014, a putative class action complaint was filed against us in the U.S. District Court for the Eastern District of California (Case No. 1:14-cv-01355) by an individual on behalf of himself and on behalf of all other similarly situated individuals, or collectively, the Plaintiffs. After we filed a motion to dismiss the complaint on January 30, 2015, the Plaintiffs filed an amended complaint on February 17, 2015. The amended complaint includes claims made under California’s False Advertising Act and Unfair Competition Law and relates to the marketing and sale of our Ignition for iOS application, or the App, and the Plaintiffs’ continued use of the App. The Plaintiffs’ complaint seeks restitution, damages in an unspecified amount, attorneys’ fees and costs, and unspecified equitable and injunctive relief. We believe we have meritorious defenses to the claims and intend to defend the lawsuit vigorously. Given the inherent unpredictability of litigation and the fact that this litigation is still in its early stages, we are unable to predict the outcome of this litigation or reasonably estimate a possible loss or range of loss associated with this litigation at this time.

We are from time to time subject to various legal proceedings and claims, either asserted or unasserted, which arise in the ordinary course of business. While the outcome of these other claims cannot be predicted with certainty, management does not believe that the outcome of any of these other legal matters will have a material adverse effect on our results of operations or financial condition.

 

ITEM 4.     MINE SAFETY DISCLOSURES

None.

 

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PART II

 

ITEM 5. MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

Certain Information Regarding the Trading of Our Common Stock

Our common stock began trading under the symbol “LOGM” on the NASDAQ Global Select Market on July 1, 2009. Prior to that date, there was no established public trading market for our common stock. The following table sets forth, for the periods indicated, the high and low sale price per share of our common stock on the NASDAQ Global Select Market:

 

     High      Low  

2013

     

First Quarter

   $ 24.51      $ 16.12  

Second Quarter

   $ 26.54      $ 16.74  

Third Quarter

   $ 32.29      $ 24.49  

Fourth Quarter

   $ 34.56      $ 29.25  

2014

     

First Quarter

   $ 47.57      $ 31.08  

Second Quarter

   $ 47.69      $ 37.06  

Third Quarter

   $ 50.00      $ 39.06  

Fourth Quarter

   $ 53.38      $ 40.92  

Holders of Our Common Stock

As of February 13, 2015, there were 10 holders of record of shares of our common stock.

Dividends

We have never declared or paid dividends on our common stock. We currently intend to retain any future earnings to finance our research and development efforts, improvements to our existing services, the development of our proprietary technologies and the expansion of our business. We do not intend to declare or pay cash dividends on our capital stock in the foreseeable future. Any future determination to pay dividends will be at the discretion of our board of directors and will depend upon a number of factors, including our results of operations, financial condition, future prospects, contractual restrictions, restrictions imposed by applicable law and other factors our board of directors deems relevant.

Recent Sales of Unregistered Securities; Use of Proceeds from Registered Securities

(a) Recent Sales of Unregistered Securities

We did not sell any unregistered securities during the year ended December 31, 2014.

Securities Authorized for Issuance Under Equity Compensation Plans

Information regarding our equity compensation plans and the securities authorized for issuance thereunder is set forth herein under Part III, Item 12 below.

 

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Purchases of Equity Securities

 

Period

   Total
Number
of Shares
Purchased
     Average
Price
per Share
     Total
Number of
Shares
Purchased
as Part of
Publicly
Announced
Plans or
Programs(1)
     Maximum
Number (or
Approximate
Dollar Value)
of Shares that
may yet be
Purchased
Under the
Plans or
Programs(1)
 

October 1, 2014 — October 31, 2014

     57,500      $ 44.58        57,500        82,323,944  

November 1, 2014 — November 30, 2014

     67,901        49.99        67,901        78,929,805  

December 1, 2014 — December 31, 2014

     90,330        49.82        90,330        74,429,151  
  

 

 

    

 

 

    

 

 

    

Total

     215,731      $ 48.48        215,731     
  

 

 

    

 

 

    

 

 

    

 

  (1) Effective October 20, 2014, our board of directors approved a new $75 million share repurchase program, which is in addition to our existing $50 million share repurchase program which had been approved on August 13, 2013. Share repurchases are made from time-to-time in the open market, in privately negotiated transactions or otherwise, in accordance with applicable securities laws and regulations. During the year ended December 31, 2014, we repurchased 843,574 shares of our common stock.

 

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Stock Performance Graph

The following graph compares the cumulative total return to stockholders for our common stock for the period from July 1, 2009, the effective date of our initial public offering, through December 31, 2014 against the NASDAQ Composite Index and the NASDAQ Computer and Data Processing Index.

The comparison assumes $100.00 was invested in our common stock, the NASDAQ Composite Index and the NASDAQ Computer and Data Processing Index and assumes reinvestment of dividends, if any. The graph assumes the initial value of our common stock on July 1, 2009 was the closing sale price on that day of $20.02 per share and not the initial offering price to the public of $16.00 per share. The stock performance on the graph below is not necessarily indicative of future price performance.

 

LOGO

This performance graph shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or the Exchange Act, or incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.

 

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ITEM 6. SELECTED FINANCIAL DATA

You should read the following selected financial data together with our consolidated financial statements and the related notes appearing at the end of this Annual Report on Form 10-K and the “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section of this Annual Report on Form 10-K. Our historical results for any prior period are not necessarily indicative of results to be expected in any future period.

 

     Years Ended December 31,  
     2010     2011     2012     2013     2014  
     (In thousands, except for per share data)  

Consolidated Statement of Operations Data:

          

Revenue

   $ 101,057     $ 119,461     $ 138,837     $ 166,258     $ 221,956  

Cost of revenue(1)

     9,124       10,574       14,504       18,816       28,732  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Gross profit

     91,933       108,887       124,333       147,442       193,224  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Operating expenses:

          

Research and development(1)

     15,214       20,780       26,361       29,023       33,516  

Sales and marketing(1)

     45,869       57,156       70,058       88,794       119,508  

General and administrative(1)

     12,319       19,975       21,338       29,181       30,526  

Legal settlements

           1,250             1,688        

Amortization of acquired intangibles(1)

     338       228       565       682       987  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total operating expenses

     73,740       99,389       118,322       149,368       184,537  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) from operations

     18,193       9,498       6,011       (1,926 )     8,687  

Interest income, net

     634       862       887       547       602  

Other (expense) income

     (219 )     (565 )     (641 )     (89 )     105  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     18,608       9,795       6,257       (1,468 )     9,394  

Benefit from (provision for) income taxes

     2,491       (4,034 )     (2,691 )     (6,214 )     (1,439 )
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ 21,099     $ 5,761     $ 3,566     $ (7,682 )   $ 7,955  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Net income (loss) per share:

          

Basic

   $ 0.91     $ 0.24     $ 0.14     $ (0.32 )   $ 0.33  

Diluted

   $ 0.85     $ 0.23     $ 0.14     $ (0.32 )   $ 0.31  

Weighted average shares outstanding:

          

Basic

     23,244       24,176       24,711       24,351       24,385  

Diluted

     24,840       25,155       25,356       24,351       25,386  

 

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  (1) Includes stock-based compensation expense and intangible amortization expense as indicated in the following table:

 

     Years Ended December 31,  
     2010      2011      2012      2013      2014  
     (In thousands)  

Cost of revenue:

              

Stock-based compensation

   $ 261      $ 316      $ 484      $ 706      $ 1,107  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Intangible amortization

     251        566        1,552        1,820        3,959  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Research and development:

              

Stock-based compensation

     638        1,477        2,826        3,761        3,653  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Sales and marketing:

              

Stock-based compensation

     1,553        2,700        4,962        7,242        9,033  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

General and administrative:

              

Stock-based compensation

     2,540        4,432        6,520        8,005        10,976  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Amortization of acquired intangibles:

              

Intangible amortization

     338        228        565        682        987  
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

     As of December 31,  
     2010      2011      2012      2013      2014  
     (In thousands)  

Consolidated Balance Sheet Data:

              

Cash and cash equivalents and short-term marketable securities

   $ 167,424      $ 198,644      $ 212,092      $ 189,556      $ 201,169  

Total assets

     186,677        232,057        279,538        279,613        317,849  

Deferred revenue, including long-term portion

     42,793        58,264        69,649        85,163        105,250  

Total liabilities

     56,299        76,251        94,901        112,274        144,005  

Total equity

     130,378        155,806        184,637        167,339        173,844  

 

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ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

You should read the following discussion and analysis of our financial condition and results of operations together with our consolidated financial statements and the related notes and other financial information included elsewhere in this Annual Report on Form 10-K. Some of the information contained in this discussion and analysis or set forth elsewhere in this Annual Report on Form 10-K, including information with respect to our plans and strategy for our business and related financing, includes forward-looking statements that involve risks and uncertainties. You should review the “Risk Factors” section of this Annual Report on Form 10-K for a discussion of important factors that could cause actual results to differ materially from the results described in or implied by the forward-looking statements contained in the following discussion and analysis.

Overview

LogMeIn provides a portfolio of cloud-based service offerings which make it possible for people and businesses to simply and securely connect to their workplace, colleagues and customers. Our services free millions of people to work from virtually anywhere on any Internet enabled device, empower IT professionals to securely embrace today’s mobile and cloud-centric workplace, transform how companies engage and support their customers, and help businesses bring the next generation of connected products to market. These services range from free downloadable mobile and web-based collaboration apps to enterprise grade professional helpdesk solutions to a cloud-based platform for the Internet of Things, all of which are accessible from anywhere with an Internet connection.

We offer both free and fee based, or premium, services. Sales of our premium services are generated through word-of-mouth referrals, web-based advertising, online search, off-line advertising the conversion of free users and expiring free trials to paid subscriptions and direct marketing to new and existing customers.

We derive our revenue principally from subscription fees from SMBs, IT service providers, mobile carriers, customer service centers, original equipment manufacturers, or OEMs, and consumers and to a lesser extent, from the delivery of professional services primarily related to our Xively business. The majority of our customers subscribe to our services on an annual basis. Our revenue is driven primarily by the number and type of our premium services for which our paying customers subscribe. For the year ended December 31, 2014, we generated revenues of $222.0 million, compared to $166.3 million for the year ended December 31, 2013, an increase of approximately 34%.

Through December 31, 2014, we have primarily funded our operations through the sale of common stock in connection with our initial and secondary offerings which resulted in proceeds of $85.7 million, the sale of redeemable convertible preferred stock which resulted in proceeds of approximately $27.8 million and cash flows from operations. We earned net income of $3.6 million for 2012, incurred a net loss of $7.7 million for 2013, and earned net income of $8.0 million for 2014. We expect to continue making significant future expenditures to develop and expand our business.

Certain Trends and Uncertainties

The following represents a summary of certain trends and uncertainties, which could have a significant impact on our financial condition and results of operations. This summary is not intended to be a complete list of potential trends and uncertainties that could impact our business in the long or short term. The summary, however, should be considered along with the factors identified in the section titled “Risk Factors” of this Annual Report on Form 10-K.

 

   

There is frequent litigation in the software and technology industries based on allegations of infringement or other violations of intellectual property rights. We have been, and may in the future be, subject to third party patent infringement or other intellectual property-related lawsuits as we face increasing competition and become increasingly visible. Any adverse determination related to intellectual property claims or litigation could adversely affect our business, financial condition and operating results.

 

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The risk of a data security breach or service disruption caused by computer hackers and cyber criminals has increased as the frequency, intensity and sophistication of attempted attacks and intrusions from around the world have increased. Our services and systems have been, and may in the future be, the target of various forms of cyber-attacks. While we make significant efforts to maintain the security and integrity of our services and computer systems, our cybersecurity measures and the cybersecurity measures taken by our third-party data center facilities may be unable to anticipate, detect or prevent all attempts to compromise our systems. Any security breach, whether successful or not, could harm our reputation, subject us to lawsuits and other potential liabilities and ultimately could result in the loss of customers.

 

   

We believe that competition will continue to increase. Increased competition could result from existing competitors or new competitors that enter the market because of the potential opportunity. We will continue to closely monitor competitive activity and respond accordingly. Increased competition could have an adverse effect on our financial condition and results of operations.

 

   

We believe that as we continue to grow revenue at expected rates, our cost of revenue and operating expenses, including sales and marketing, research and development and general and administrative expenses will increase in absolute dollar amounts. For a description of the general trends we anticipate in various expense categories, see “Cost of Revenue and Operating Expenses” below.

Sources of Revenue

We derive our revenue primarily from subscription fees for our premium services from SMBs, IT service providers, mobile carriers, customer service centers, original equipment manufacturers, or OEMs, and consumers and to a lesser extent, from the delivery of professional services primarily related to our Xively business. The majority of our customers subscribe to our services on an annual basis and pay in advance, typically with a credit card, for their subscription. A smaller percentage of our customers subscribe to our services on a monthly basis through either month-to-month commitments or annual commitments that are then paid monthly with a credit card. We initially record a subscription fee as deferred revenue and then recognize it ratably, on a daily basis, over the life of the subscription period. Typically, a subscription automatically renews at the end of a subscription period unless the customer specifically terminates it prior to the end of the period. For the twelve months ended December 31, 2014, our gross annualized renewal rate was approximately 80%. We calculate our gross renewal rate on an annualized dollar basis across all product lines as of the end of each period. We expect our gross renewal rate to remain relatively consistent as we continue to invest in our products, customer support organization, and related retention programs.

Employees

We have increased our number of full-time employees to 804 at December 31, 2014 as compared to 613 at December 31, 2013.

Cost of Revenue and Operating Expenses

We allocate certain overhead expenses, such as rent and utilities, to expense categories based on the headcount in or office space occupied by personnel in that expense category as a percentage of our total headcount or office space. As a result, an overhead allocation associated with these costs is reflected in the cost of revenue and each operating expense category.

Cost of Revenue .    Cost of revenue consists primarily of costs associated with our data center operations, customer support centers and our Xively professional services team. Included in these costs are wages and benefits for personnel, telecommunication, hosting fees, hardware and software maintenance costs and depreciation associated with our data centers, and contingent bonus expense related to the Ionia acquisition (see Note 4 to the Consolidated Financial Statements). Additionally, amortization expense associated with the acquired software, technology and documented know-how, as well as internally developed software is included in cost of revenue. The expenses related to hosting our services and supporting our free and premium customers are dependent on the number of customers who subscribe to our services and the complexity and redundancy of our services and hosting infrastructure. The expenses related to our professional services team are driven by our investment and

 

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efforts to support the growth of our Xively business. We expect cost of revenue expenses to increase in absolute dollars but remain relatively constant as a percentage of revenue as we continue to invest in our data center operations and customer support centers to support the growth of our customer base and as we expand our professional services team.

Research and Development.     Research and development expenses consist primarily of wages and benefits for development personnel, rent expense primarily related to our offices in Hungary, consulting fees associated with outsourced development projects, travel-related costs for development personnel, and depreciation of assets used in development. Our research and development efforts are focused on both improving ease of use and functionality of our existing services, as well as developing new offerings. The majority of our research and development employees are located in our development centers in Europe. Therefore, a majority of research and development expense is subject to fluctuations in foreign exchange rates. We capitalized approximately $0.7 million, $1.2 million and $2.1 million for the years ended December 31, 2012, 2013 and 2014, respectively, of costs related to internally developed computer software to be sold as a service, which was incurred during the application development stage. The majority of research and development costs have been expensed as incurred. We expect that research and development expenses will increase in absolute dollars as we continue to enhance and expand our services but will remain relatively constant as a percentage of revenue.

Sales and Marketing.     Sales and marketing expenses consist primarily of online search and advertising costs, wages, commissions and benefits for sales and marketing personnel, offline marketing costs such as media advertising and trade shows, consulting fees and credit card processing fees. Online search and advertising costs consist primarily of pay-per-click payments to search engines and other online advertising media such as banner ads. Offline marketing costs include radio and print advertisements as well as the costs to create and produce these advertisements, and tradeshows, including the costs of space at tradeshows and costs to design and construct tradeshow booths. Advertising costs are expensed as incurred. In order to continue to grow our business and awareness of our services, we expect that we will continue to invest in our sales and marketing efforts. We expect that sales and marketing expenses will increase in absolute dollars but remain relatively constant as a percentage of revenue.

General and Administrative.     General and administrative expenses consist primarily of wages and benefits for management, human resources, internal IT support, legal, finance and accounting personnel, professional fees, insurance and other corporate expenses. We expect general and administrative expenses related to personnel, recruiting, internal information systems, audit, accounting and insurance costs will increase in absolute dollars but remain relatively constant as a percentage of revenue as we continue to support the growth of our business. We also expect to incur increased litigation-related expenses in connection with our defense against the legal claims described in Part I, Item 3 and Note 11 to the Consolidated Financial Statements.

Critical Accounting Policies

Our financial statements are prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of our financial statements and related disclosures requires us to make estimates, assumptions and judgments that affect the reported amount of assets, liabilities, revenue, costs and expenses, and related disclosures. We base our estimates and assumptions on historical experience and other factors that we believe to be reasonable under the circumstances. We evaluate our estimates and assumptions on an ongoing basis. Our actual results may differ from these estimates under different assumptions and conditions. Our most critical accounting policies are summarized below. See Note 2 to the Consolidated Financial Statements included elsewhere in this Annual Report on Form 10-K for additional information about these critical accounting policies, as well as a description of our other significant accounting policies.

Revenue Recognition .    We derive our revenue primarily from subscription fees related to our premium services and to a lesser extent, the delivery of professional services, primarily related to our Xively business.

Revenue from our premium subscription services is recognized on a daily basis over the subscription term as the services are delivered, provided that there is persuasive evidence of an arrangement, the fee is fixed or determinable and collectability is deemed reasonably assured. Subscription periods range from monthly to five years, but are generally one year in duration. Our software cannot be run on another entity’s hardware nor do customers have the right to take possession of the software and use it on their own or another entity’s hardware.

 

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We currently only offer free versions of our iPhone, iPad and Android software products. We had formerly sold these iPhone, iPad and Android software products as perpetually licensed software, the revenue from which was recognized when there was persuasive evidence of an arrangement, the product had been provided to the customer, the collection of the fee was probable, and the amount of the fees to be paid by the customer was fixed and determinable.

Our multi-element arrangements typically include subscription and professional services, which may include development services. We evaluate each element within the arrangement to determine if they can be accounted for as separate units of accounting. If the delivered item or items have value to the customer on a standalone basis, either because they are sold separately by any vendor or the customer could resell the delivered item or items on a standalone basis, we have determined that the deliverables within these arrangements qualify for treatment as separate units of accounting. Accordingly, we recognize revenue for each delivered item or items as a separate earnings process commencing when all of the significant performance obligations have been performed and when all the revenue recognition criteria have been met. In cases where we have determined that the delivered items within our multi-element arrangements do not have value to the customer on a stand-alone basis, the arrangement is accounted for as a single unit of accounting and the related consideration is recognized ratably over the estimated customer life, commencing when all of the significant performance obligations have been delivered and when all the revenue recognition criteria have been met.

Income Taxes.     We are subject to federal, state, and foreign income taxes for jurisdictions in which we operate, and we use estimates in determining our provision for these income taxes and deferred tax assets. Deferred tax assets, related valuation allowances, current tax liabilities and deferred tax liabilities are determined separately by tax jurisdiction. In making these determinations, we estimate deferred tax assets, current tax liabilities and deferred tax liabilities, and we assess temporary differences resulting from differing treatment of items for tax and accounting purposes. At December 31, 2013 and 2014, our deferred tax assets consisted primarily of net operating losses and stock compensation expense. We assess the likelihood that deferred tax assets will be realized, and we recognize a valuation allowance if it is more likely than not that some portion of the deferred tax assets will not be recognized. This assessment requires judgment as to the likelihood and amounts of future taxable income by tax jurisdiction. During 2012, we reassessed the need for a valuation allowance against our deferred tax assets related to our Xively subsidiary and concluded that we would be able to realize the deferred tax assets as a result of future profitability. Accordingly, we reversed the valuation allowance related to our Xively subsidiary of approximately $677,000 during the year ended December 31, 2012. As of December 31, 2013 and 2014, we maintained a full valuation allowance against the deferred tax assets of our Hungarian subsidiary. This entity has historical losses and we concluded it was not more likely than not that these deferred tax assets are realizable.

We evaluate our uncertain tax positions based on a determination of whether and how much of a tax benefit we have taken in our tax filings or positions is more likely than not to be realized. Potential interest and penalties associated with any uncertain tax positions are recorded as a component of income tax expense. As of December 31, 2013 and 2014, we provided a liability of approximately $304,000 and $652,000, respectively for uncertain tax positions. Although we believe that our tax estimates are reasonable, the ultimate tax determination involves significant judgment that is subject to audit by tax authorities in the ordinary course of business.

Goodwill and acquired intangible assets.     We record goodwill as the excess of the acquisition price over the fair value of the net tangible and identifiable intangible assets acquired. We do not amortize goodwill, but instead perform an annual impairment test of goodwill or whenever events and circumstances indicate that the carrying amount of goodwill may exceed its fair value. We operate as a single operating segment with one reporting unit and consequently evaluate goodwill for impairment based on an evaluation of the fair value of the Company as a whole. As of December 31, 2014, our fair value as a whole significantly exceeds our carrying value. We continuously monitor our intangible assets for indicators of impairment. If an indicator exists, we compare the undiscounted expected future cash flows from the intangible asset to its carrying value. If the carrying value exceeds the undiscounted, expected cash flows, we record an impairment based on the difference between the carrying value and determined fair value. Projected future cash flows are an estimate made by management which based on their nature include risks and uncertainties, primarily related to acceptance of

 

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products in the marketplace. To the extent that estimates of cash flows do not come to fruition, future impairments of intangible assets may be required. No material impairments have been recorded through December 31, 2014.

We record intangible assets at their respective estimated fair values at the date of acquisition. Intangible assets are amortized based upon the pattern in which their economic benefit will be realized, or if this pattern cannot be reliably determined, using the straight-line method over their estimated useful lives, which range from four months to eight years.

Stock-Based Compensation.     We value all stock-based compensation, including grants of stock options and restricted stock units, at fair value on date of grant and expense the fair value over the applicable service period.

The assumptions used in determining the fair value of share-based awards represent management’s best estimates, but these estimates involve inherent uncertainties and the application of management’s judgment. As a result, if factors change, and we use different assumptions, our share-based compensation could be materially different in the future. The risk-free interest rate used for each grant is based on a U.S. Treasury instrument with a term similar to the expected term of the share-based award. The expected term of stock options has been estimated utilizing the vesting period of the option, the contractual life of the option and our option exercise history. We estimate the expected volatility of our common stock at the date of grant based on the historical volatility of comparable public companies over the option’s expected term as well as our own stock price volatility since our IPO.

Restricted stock units with time-based vesting conditions are valued on the grant date using the grant date closing price of our common stock. Restricted stock units with market-based vesting conditions are valued using a Monte Carlo simulation model. The number of shares expected to be earned, based on market conditions, is factored into the grant date Monte Carlo valuation for the awards. The grant date fair value is not subsequently adjusted regardless of the eventual number of shares that are earned based on the market condition.

We recognize compensation expense for only the portion of share-based awards that are expected to vest. Accordingly, we have estimated expected forfeitures of share-based awards based on our historical forfeiture rate and we use these rates to develop future forfeiture rates. If our actual forfeiture rate varies from our historical rates and estimates, additional adjustments to compensation expense may be required in future periods. Past fair value of share-based awards grants may not be a reliable indicator of future fair values as assumptions such as volatility may change over time.

Loss Contingencies.     We have been involved in various legal claims and legal proceedings and may be subject to additional legal claims and proceedings in the future that arise in the ordinary course of business. We consider the likelihood of a loss or the incurrence of a liability, as well as our ability to reasonably estimate the amount of loss, in determining loss contingencies. An estimated loss contingency is accrued when we believe that it is both probable that a liability has been incurred and the amount of loss can be reasonably estimated. Significant judgment is required to determine both probability and the estimated amount. We regularly evaluate current information available and reflect the impact of negotiations, settlements, rulings, advice of legal counsel, and updated information to determine whether such accruals should be adjusted and whether new accruals are required and update our disclosures accordingly. Litigation is inherently unpredictable and is subject to significant uncertainties, some of which are beyond our control. Should any of these estimates and assumptions change or prove to have been incorrect, it could have a material adverse effect on our results of operations, financial position and cash flows. See Note 11 to the Consolidated Financial Statements for a further discussion of litigation and contingencies as well as “Legal Proceedings” in Part I, Item 3.

 

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Results of Consolidated Operations

The following table sets forth selected consolidated statements of operations data for each of the periods indicated as a percentage of total revenue.

 

     Years Ended December 31,  
     2012     2013     2014  

Operations Data:

      

Revenue

     100 %     100 %     100

Cost of revenue

     10       11       13  
  

 

 

   

 

 

   

 

 

 

Gross profit

     90       89       87  
  

 

 

   

 

 

   

 

 

 

Operating expenses:

      

Research and development

     19       18       15  

Sales and marketing

     51       53       54  

General and administrative

     15       18       14  

Legal settlements

           1        

Amortization of acquired intangibles

                  
  

 

 

   

 

 

   

 

 

 

Total operating expenses

     85       90       83  
  

 

 

   

 

 

   

 

 

 

Income (loss) from operations

     5       (1 )     4   

Interest and other income (expense), net

                  
  

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     5       (1 )     4   

Provision for income taxes

     (2 )     (4 )       
  

 

 

   

 

 

   

 

 

 

Net income (loss)

     3 %     (5 )%     4
  

 

 

   

 

 

   

 

 

 

Years Ended December 31, 2013 and 2014

Revenue.     Revenue increased $55.7 million, or 34%, from $166.3 million for the year ended December 31, 2013 to $222.0 million for the year ended December 31, 2014. The majority of the increase was attributable to an increase in revenue from new customers, as our total number of subscribers increased significantly during the period. The increase in revenue from new customers and in our total number of subscribers was attributable to continued increased sales of join.me pro, our premium collaboration service, and our strategic decision to discontinue offering LogMeIn Free, our free remote access service, to instead focus our marketing spend and efforts on our faster growing free services, specifically join.me. As a result of this change, we experienced significant growth in total sales and total subscribers as former LogMeIn Free users transitioned to either our premium remote access service, LogMeIn Pro, or our premium IT management product, LogMeIn Central. We believe that the majority of those LogMeIn Free users who would have converted to LogMeIn Pro or LogMeIn Central subscribers have already converted at this time.

Cost of Revenue.     Cost of revenue increased $9.9 million from $18.8 million for the year ended December 31, 2013 to $28.7 million for the year ended December 31, 2014. As a percentage of revenue, cost of revenue was 11% and 13% for the years ended December 31, 2013 and 2014, respectively. The increase in absolute dollars was primarily due to a $2.5 million increase in contingent retention-based bonuses incurred in connection with the Ionia acquisition (see Note 4 to the Consolidated Financial Statements). The increase was also due to a $2.1 million increase in amortization expense related to a software asset purchased in November 2013, a $1.9 million increase in personnel-related costs, including salary, wages, bonus and benefits and tax, recruiting and relocation expense, as we retained professional services employees from the Ionia acquisition and increased the number of customer support employees to support our overall growth, a $1.9 million increase in hosting costs

 

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associated with managing our data centers and hosting our services as a result of an increase in both the number of customers using our services and the total number of devices that connected to our services, a $1.0 million increase in consulting fees, and a $0.1 million increase in hardware and software maintenance costs. Included in the increase in personnel-related costs is a $0.4 million increase in stock-based compensation expense.

Research and Development Expenses.     Research and development expenses increased $4.5 million, or 15%, from $29.0 million for the year ended December 31, 2013 to $33.5 million for the year ended December 31, 2014. As a percentage of revenue, research and development expenses were 18% and 15% for the years ended December 31, 2013 and 2014, respectively. The increase in absolute dollars was primarily due to a $3.7 million increase in personnel-related costs including salary, wages, bonus, recruiting and relocation costs, and benefits and taxes, as we increased the number of research and development employees to support our overall growth and a $1.0 million increase in contingent bonus expense related to the Meldium acquisition (see Note 4 to the Consolidated Financial Statements). The increase was also due to a $0.6 million increase in travel-related costs, a $0.4 million increase in hardware and software maintenance costs, a $0.3 million increase in consulting fees, and a $0.2 million increase in rent expense. These amounts were offset by a $1.1 million decrease in contingent bonus expense related to the Xively and Bold acquisitions as the final contingent bonus payments were earned and paid in July 2013 and January 2014, respectively, and a $0.8 million increase in costs related to internally developed computer software to be sold as a service, which were incurred during the application development stage and therefore capitalized rather than expensed.

Sales and Marketing Expenses.     Sales and marketing expenses increased $30.7 million, or 35%, from $88.8 million for the year ended December 31, 2013 to $119.5 million for the year ended December 31, 2014. As a percentage of revenue, sales and marketing expenses were 53% and 54% for the years ended December 31, 2013 and 2014. The increase in absolute dollars was primarily due to a $12.8 million increase in personnel-related and recruiting costs, including salary, wages, commissions, bonus, and benefits and taxes, from the hiring of additional employees to support our growth in sales and expand our marketing efforts and a $10.8 million increase in marketing program costs. Included in the increase in personnel-related and recruiting costs is a $1.8 million increase in stock-based compensation expense. The total increase in sales and marketing expense was also due to a $1.9 million increase in credit card transaction fees related to an increase in e-commerce sales, a $1.8 million increase in consulting fees, a $1.1 million increase in travel-related and department meeting costs, a $0.8 million increase in rent expense, a $0.4 million increase in hardware and software maintenance costs, and a $0.3 million increase in telecommunications expense.

General and Administrative Expenses.     General and administrative expenses increased $1.3 million, or 5%, from $29.2 million for the year ended December 31, 2013 to $30.5 million for the year ended December 31, 2014. As a percentage of revenue, general and administrative expenses were 18% and 14% for the years ended December 31, 2013 and 2014, respectively. The increase in absolute dollars was primarily due to a $4.3 million increase in personnel-related and recruiting costs, including salary, wages, bonus, and benefits and taxes, as we increased the number of general and administrative employees to support our overall growth. Included in the increase in personnel-related and recruiting costs is a $3.0 million increase in stock-based compensation expense. The total increase in general and administrative expense was also due to a $0.7 million increase in legal fees, $0.4 million increase in audit and accounting fees, a $0.3 million increase in consulting fees, a $0.2 million increase in rent expense, a $0.1 million increase in hardware and software maintenance costs, a $0.1 million increase in depreciation expense, a $0.1 million increase in telecommunications expense, and a $0.1 million increase in travel related costs. These amounts were offset by a $5.3 million decrease in litigation related costs, which had been primarily related to our defense against the patent infringement claims made by 01 Communique.

Legal Settlement Expenses.     Legal settlement expenses were $1.7 million for the year ended December 31 2013 and were primarily associated with the Pragmatus License Agreement in April 2013 (see Note 11 to the Consolidated Financial Statements). We did not incur legal settlement expenses for the year ended December 31, 2014.

Amortization of Acquired Intangibles.     Amortization of acquired intangibles increased $0.3 million, or 45% from $0.7 million for the year ended December 31, 2013 to $1.0 million for the year ended December 31, 2014. The increase in amortization of acquired intangibles for the year ended December 31, 2014 is primarily related to the intangible assets acquired in the Ionia acquisition in March 2014.

 

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Interest and Other Income (Expense), Net.     Interest and other income (expense), net was income of approximately $0.5 million and $0.6 million for the years ended December 31, 2013 and 2014, respectively. The increase was primarily related to an increase in foreign currency gains and an increase in interest income earned on marketable securities.

Income Taxes .    We recorded a provision for federal, state and foreign income taxes of approximately $6.2 million for the year ended December 31, 2013, on a loss before income taxes of $1.5 million as a result of income generated in the United States offset by losses incurred in certain foreign jurisdictions where there is no corresponding benefit. For the year ended December 31, 2014, we recorded a tax provision for income taxes of approximately $1.4 million on profit before taxes of $9.4 million resulting in an effective tax rate of approximately 15%. Our effective tax rate is lower than the U.S. federal statutory rate of 35% primarily due to profits earned in certain foreign jurisdictions, primarily our Irish subsidiaries, which are subject to significantly lower tax rates than the U.S. federal statutory rate.

Net (Loss) Income .    We recognized a net loss of $7.7 million for the year ended December 31, 2013 compared to net income of $8.0 million for the year ended December 31, 2014.

Years Ended December 31, 2012 and 2013

Revenue.     Revenue increased $27.4 million, or 20%, from $138.8 million for the year ended December 31, 2012 to $166.3 million for the year ended December 31, 2013. The majority of the increase was due to an increase in revenue from new subscribers to our premium services, as our total number of subscribers increased from approximately 462,000 subscribers at December 31, 2012 to approximately 577,000 subscribers at December 31, 2013, and incremental add-on revenues from our existing customer base. This increase in new subscribers was driven in part by significant growth in new sales in join.me, our collaboration product and by a business model change that required users with LogMeIn Free installed on more than ten host computers to purchase a Central subscription.

Cost of Revenue.     Cost of revenue increased $4.3 million, or 30%, from $14.5 million for the year ended December 31, 2012 to $18.8 million for year ended December 31, 2013. As a percentage of revenue, cost of revenue was 10% and 11% for the years ended December 31, 2012 and 2013, respectively. The increase in absolute dollars was primarily a result of an increase in both the number of customers using our premium services and the total number of devices that connected to our services, including devices owned by free users, which resulted in increased hosting and customer support costs. The costs associated with managing our data centers and the hosting of our services increased by $3.5 million in the year ended December 31, 2013 compared to the year ended December 31, 2012 due to the expansion of our data center capacity. The total increase in cost of revenue was also due to a $0.4 million increase in rent expense.

Research and Development Expenses.     Research and development expenses increased $2.7 million, or 10%, from $26.4 million for the year ended December 31, 2012 to $29.0 million for the year ended December 31, 2013. As a percentage of revenue, research and development expenses were 19% and 18% for the years ended December 31, 2012 and 2013, respectively. The increase in absolute dollars was primarily due to a $2.4 million increase in personnel-related costs from the hiring of additional employees to improve the ease of use and functionality of our existing services and develop new service offerings. Included in the increase in personnel-related costs is a $3.9 million increase in salary, wages, bonus and benefits and tax expense and a $0.9 million increase in stock-based compensation. This was offset by a $1.8 million decrease in contingent bonus expense related to the Xively and Bold acquisitions and a $0.5 million increase in costs related to internally developed software to be sold as a service, which was incurred during the application development stage and therefore capitalized rather than expensed. The total increase in research and development expenses was also due to a $0.1 million increase in department meeting expenses and a $0.1 million increase in rent expense.

Sales and Marketing Expenses.     Sales and marketing expenses increased $18.7 million, or 27%, from $70.1 million for the year ended December 31, 2012 to $88.8 million for the year ended December 31, 2013. As a percentage of revenue, sales and marketing expenses were 51% and 53% for the years ended December 31, 2012 and 2013. The increase in absolute dollars was primarily due to a $9.0 million increase in personnel-related costs, including salary, wages, commissions, bonus and benefits and tax expense, from the hiring of additional employees

 

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to support our growth in sales and expand our marketing efforts. Included in the increase in personnel-related costs is a $2.3 million increase in stock-based compensation. The total increase in sales and marketing expenses was also due to a $5.2 million increase in marketing program costs, a $1.7 million increase in rent expense, a $0.9 million increase in professional fees, a $0.7 million increase in credit card transaction fees, a $0.6 million increase in department meeting expenses and a $0.5 million increase in hardware and software maintenance costs.

General and Administrative Expenses.     General and administrative expenses increased $7.8 million, or 37%, from $21.3 million for the year ended December 31, 2012 to $29.2 million for the year ended December 31, 2013. As a percentage of revenue, general and administrative expenses were 15% and 18% for the years ended December 31, 2012 and 2013, respectively. The increase in absolute dollars was primarily due to a $4.3 million increase in legal costs associated with our defense against the patent infringement claims made by 01 Communique. The increase was also a result of a $3.4 million increase in personnel-related costs, including salary, wages, bonus and benefits and tax expense, as we increased the number of general and administrative employees to support our overall growth. Included in the increase in personnel-related costs is a $1.5 million increase in stock-based compensation.

Legal Settlement Expenses.     Legal settlement expenses for the year ended December 31, 2013 were $1.7 million compared to $0 million for the year ended December 31, 2012. Legal settlement expenses for the year ended December 31, 2013 were associated with patent litigation related expenses (see Note 11 to the Consolidated Financial Statements).

Amortization of Acquired Intangibles.     Amortization of acquired intangibles increased $0.1 million, or 21% from $0.6 million for the year ended December 31, 2012 and $0.7 million for the year ended December 31, 2013. As a percentage of revenue, amortization of acquired intangibles were 0% for both the years ended December 31, 2012 and 2013. The amortization of acquired intangibles for the years ended December 31, 2012 and 2013 related primarily to intangible assets acquired as part of our January 2012 acquisition of Bold. The $0.1 million increase in amortization of acquired intangibles is primarily related to an increase in amortization of domain names.

Interest and Other Income, Net.     Interest and other income, net was income of approximately $0.2 million and $0.5 million for the years ended December 31, 2012 and 2013, respectively. The increase in income was primarily related to a decrease in foreign currency losses offset by a decrease in interest income earned on marketable securities.

Income Taxes.     We recorded a provision for federal, state and foreign income taxes of approximately $2.7 million and $6.2 million for the years ended December 31, 2012 and 2013, respectively. The increase in the tax provision recorded in the year ended December 31, 2013 is primarily the result of increased taxable income in the United States, while certain foreign jurisdictions incurred losses without a related tax benefit. Our effective tax rate for the year ended December 31, 2013 was impacted by these foreign losses and by permanent differences related to certain non-deductible stock-based compensation. In the future, we expect our effective tax rate to return to historical levels as our foreign losses decrease.

Net Income (Loss).     For the year ended December 31, 2013, revenue increased $27.4 million while cost of revenue increased $4.3 million, operating expenses increased $31.0 million, interest and other income increased $0.2 million, and our tax provision increased $3.5 million, resulting in a $11.2 million decrease in net income.

The $27.4 million increase in revenue is primarily due to an increase in revenue from new customers and add-on revenues from our existing customer base.

The $4.3 million increase in cost of revenue is primarily due to a $3.5 million increase in costs to manage our data centers and the hosting of our services and a $0.4 million increase in rent expense.

The $31.0 million increase in operating expenses is primarily due to a $16.9 million increase in personnel-related costs, including salary, wages, commissions, bonus and benefits and tax expense. Included in the increase in personnel-related costs is a $4.7 million increase in stock-based compensation. The increase in operating expenses were also due to a $6.0 million increase in patent litigation related expenses, a $5.2 million increase in marketing programs, a $2.3 million increase in rent related costs, a $0.8 million increase in consulting fees, a $0.7 million increase in department meeting expenses, a $0.7 million increase in credit card transaction fees, a

 

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$0.4 million increase in hardware and software maintenance costs and a $0.3 million increase in depreciation expense. These were offset by a $1.9 million decrease in acquisition related costs and amortization and a $0.3 million decrease in legal fees.

The $3.6 million increase in our tax provision is primarily due to a provision for federal, state, and foreign income taxes of $2.7 million for the year ended December 31, 2012, compared to a provision of $6.2 million for the year ended December 31, 2013.

Liquidity and Capital Resources

The following table sets forth the major sources and uses of cash for each of the periods set forth below:

 

     Years Ended December 31,  
     2012      2013      2014  
            (In thousands)         

Net cash provided by operations

   $ 28,257      $ 30,020      $ 74,153  

Net cash used in investing activities

     (29,800 )      (24,368 )      (32,942 )

Net cash provided by (used in) financing activities

     9,228        (28,648 )      (24,288

Effect of exchange rate changes

     643        321        (5,220 )
  

 

 

    

 

 

    

 

 

 

Net increase (decrease) in cash

   $ 8,328      $ (22,675 )    $ 11,703   
  

 

 

    

 

 

    

 

 

 

At December 31, 2014, our principal source of liquidity was cash and cash equivalents and short-term marketable securities totaling $201.2 million. As of December 31, 2014, $52.7 million of the $201.2 million of cash and cash equivalents and short-term marketable securities was held by our foreign subsidiaries. If the undistributed earnings of our foreign subsidiaries are needed for our operations in the United States, we would be required to accrue and pay U.S. taxes upon repatriation. Our current plans are not expected to require repatriation of cash and investments to fund our U.S. operations and, as a result, we intend to indefinitely reinvest our foreign earnings to fund our foreign subsidiaries.

Cash Flows From Operating Activities

Net cash provided by operating activities was $28.3 million, $30.0 million, and $74.2 million for the years ended December 31, 2012, 2013, and 2014, respectively.

Net cash inflows from operating activities during the year ended December 31, 2012 were mainly attributable to a $11.0 million increase in deferred revenue associated with the increase in subscription sales orders and customer growth. Net cash inflows from operating activities were also attributable to non-cash operating expenses, including $14.8 million for stock compensation, $6.1 million for depreciation and amortization, offset by a $6.6 million income tax benefit from the exercise of stock options and a $0.8 million benefit from deferred income taxes. The increase in net cash inflows from operating activities were also attributable to a $7.4 million increase in accounts payable and accrued expenses, offset by a $4.5 million increase in accounts receivable, a $1.1 million increase in prepaid expenses and other current assets and a $1.3 million increase in other assets.

Net cash inflows from operating activities during the year ended December 31, 2013 were mainly attributable to a $14.5 million increase in deferred revenue associated with upfront payments received from our customers for services. The net cash inflows from operating activities were also attributable to a $3.5 million increase in accrued expenses, offset by a $3.8 million increase in other assets, a $3.0 million increase in prepaid expenses and other current assets and a $2.2 million decrease in accounts payable. The increase in accrued expenses is primarily driven by a $1.9 million increase in accrued marketing programs and a $1.7 million increase in payroll and payroll related costs. The increase in other assets is primarily driven by a $1.9 million increase in prepaid tax and a $1.8 million increase in long-term prepaid rent for our Boston office. The increase in prepaid expense and other current assets is primarily related to a $3.0 million increase in prepaid taxes. Additionally, included in net cash inflows from operating activities are add-backs of non-cash expense items, including $19.7 million for stock compensation, $7.7 million for depreciation and amortization, and a $0.9 million provision for deferred income taxes resulting from differing treatment of items for tax and accounting purposes.

 

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Net cash inflows from operating activities during the year ended December 31, 2014 were mainly attributable to a $24.0 million increase in deferred revenue associated with upfront payments received from our customers for services. The net cash inflows from operating activities were also attributable to a $9.2 million increase in accrued expenses, our net income of $8.0 million, a $1.8 million decrease in prepaid expenses and other current assets, a $1.7 million increase in accounts payable, and a $1.6 million increase in other long-term liabilities. The net cash inflows from operating activities were offset by a $5.8 million increase in accounts receivable. The increase in accrued expenses is primarily driven by a $5.2 million increase in payroll and payroll related costs and a $3.0 million increase in accrued marketing programs. The decrease in prepaid expenses and other current assets is primarily driven by a $2.2 million decrease in prepaid tax. The decrease in prepaid expenses and other current assets is offset by a $1.0 million increase in prepaid software subscription fees. Additionally, included in net cash inflows from operating activities are add-backs of non-cash charges, including $24.8 million for stock compensation, $11.1 million for depreciation and amortization, and a $2.7 million benefit from deferred income taxes resulting from differing treatment of items for tax and accounting purposes.

Cash Flows From Investing Activities

Net cash used in investing activities was $29.8 million, $24.4 million, and $32.9 million for the years ended December 31, 2012, 2013, and 2014, respectively.

Net cash used in investing for the year ended December 31, 2012 was primarily related to the acquisition of Bold for $14.8 million, net of cash acquired, and the purchase of $135.1 million of marketable securities offset by proceeds of $130.0 million from redemption and maturity of marketable securities. Net cash used in investing activities also related to the addition of $5.3 million in property and equipment mainly related to the expansion and upgrade of our data center capacity, the expansion and upgrade of our internal IT infrastructure and the expansion of our offices. Restricted cash and deposits also increased $3.6 million as a result of the letter of credit associated with the lease of our new corporate headquarters in Boston. We also had $1.0 million in intangible asset additions related to internally developed software and the purchase of domain names and trademarks.

Net cash used in investing for the year ended December 31, 2013 was primarily related to an increase in intangible assets associated with the acquisition of a software asset for $11.5 million and the addition of $10.9 million in property and equipment mainly related to the expansion and upgrade of our data center capacity, the expansion and upgrade of our internal IT infrastructure and the expansion of our offices. Net cash used in investing activities also related to $1.6 million in intangible asset additions related to internally developed software and the purchase of domain names and trademarks and the purchase of $90.4 million of marketable securities offset by proceeds of $90.0 million from redemption and maturity of marketable securities.

Net cash used in investing for the year ended December 31, 2014 was primarily related to the acquisitions of Ionia in March 2014, Meldium in August 2014, and a San Francisco-based collaboration software provider in September 2014, which resulted in a $22.4 million increase in acquired intangible assets, and the purchase of $7.5 million in property and equipment mainly related to the expansion and upgrade of our data center capacity, the expansion and upgrade of our internal IT infrastructure, and the expansion of our offices. Net cash used in investing activities also related to $2.5 million in intangible asset additions, primarily for capitalized costs related to internally developed computer software to be sold as a service which were incurred during the application development stage.

Cash Flows From Financing Activities

Net cash provided by financing activities was $9.2 million for the year ended December 31, 2012. Net cash used by financing activities was $28.6 million and $24.3 million for the years ended December 31, 2013 and 2014, respectively.

Net cash provided by financing activities for the year ended December 31, 2012 was primarily related to a $6.6 million income tax benefit from the exercise of stock options as well as $2.7 million in proceeds from the issuance of common stock upon exercise of stock options. These were offset by a $0.1 million payment for contingent consideration.

 

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Net cash used in financing activities for the year ended December 31, 2013 was primarily related to $30.5 million for the purchase of treasury stock pursuant to our share repurchase program as well as $1.8 million for payroll taxes paid related to vesting of restricted stock units, and $0.1 million payment for contingent consideration, offset by $3.8 million in proceeds received from the issuance of common stock upon exercise of stock options.

Net cash used in financing activities for the year ended December 31, 2014 was primarily related to the purchase of $36.5 million of treasury stock pursuant to our share repurchase program as well as the payment of $5.8 million for payroll taxes related to vesting of restricted stock units, offset by $17.6 million in proceeds received from the issuance of common stock upon exercise of stock options.

While we believe that our current cash and cash equivalents will be sufficient to meet our working capital and capital expenditure requirements for at least the next twelve months, we may elect to raise additional capital through the sale of additional equity or debt securities or expand our credit facility to develop or enhance our services, to fund expansion, to respond to competitive pressures or to acquire complementary products, businesses or technologies. If we elect, additional financing may not be available in amounts or on terms that are favorable to us, if at all. If we raise additional funds through the issuance of equity or convertible debt securities, our existing stockholders could suffer significant dilution, and any new equity securities we issue could have rights, preferences and privileges superior to those of holders of our common stock.

During the last three years, inflation and changing prices have not had a material effect on our business and we do not expect that inflation or changing prices will materially affect our business in the foreseeable future.

Key Non-GAAP Financial Measures

Regulations S-K Item 10(e), “Use of Non-GAAP Financial Measures in Commission Filings,” defines and prescribes the condition for use of non-GAAP financial information. We have presented the following non-GAAP measures in accordance with this standard. We believe that these non-GAAP measures of financial results provide useful information to management and investors regarding certain financial and business trends relating to our financial condition and results of operations. Management uses these non-GAAP measures to compare our performance to that of prior periods and uses these measures in financial reports prepared for management and our board of directors. We believe that the use of these non-GAAP financial measures provides an additional tool for investors to use in evaluating ongoing operating results and trends and in comparing our financial measures with other software-as-a-service companies, many of which present similar non-GAAP financial measures to investors.

In addition to our consolidated financial statements prepared in accordance with GAAP, to date, we have considered the following non-GAAP financial measures to be key indicators of our financial performance:

 

   

“Non-GAAP operating income,” which we define as GAAP operating income less acquisition related costs and amortization, stock-based compensation expense, and litigation related expenses;

 

   

“Adjusted EBITDA,” which we define as GAAP income, less interest income and other expense (net), provision for income taxes, depreciation and amortization expenses, acquisition related costs, stock-based compensation expense, and litigation related expenses;

 

   

“Non-GAAP provision for income taxes,” which we define as GAAP provision for income taxes less the tax impact from acquisition related costs and amortization, stock compensation expense, litigation related expenses, and tax benefits associated with the reversal of a valuation allowance;

 

   

“Non-GAAP net income,” which we define as GAAP net income (loss) before stock-based compensation expense, litigation related expense, and acquisition related costs and amortization, less the tax effect of the non-GAAP items; and

 

   

“Non-GAAP earnings per share,” which we define as non-GAAP net income divided by diluted average weighted shares outstanding.

The expenses described below have been excluded from our GAAP results to arrive at our non-GAAP measures, as outlined above:

Acquisition related costs and amortization relate to costs associated with acquisitions of intellectual property and businesses and include legal costs, audit and accounting fees, contingent retention bonuses and the amortization of intangible assets.

 

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Acquisition related costs relate to costs associated with the acquisitions of intellectual property and businesses and include legal costs, audit and accounting fees and contingent retention bonuses.

Stock-based compensation expense relates to stock-based compensation awards granted to our executive officers, employees, and outside directors.

Litigation related expenses relate to costs associated with the defense and settlement of claims brought against us including intellectual property infringement claims and other material litigation (see Note 11 to the Consolidated Financial Statements).

Depreciation and amortization expenses relate to costs associated with the depreciation and amortization of fixed and intangible assets.

Interest income and other expense (income), net relates to the interest earned on outstanding cash balances during the period as well as foreign currency, realized and unrealized, gains and losses as a result of multi-currency settlements occurring during the period and period end translation adjustments.

Income tax expense relates to the total income tax levied based on GAAP income during the period.

Tax benefits related to the reversal of a valuation allowance relate to the reversal of a valuation allowance against certain foreign deferred tax assets (see Note 8 to the Consolidated Financial Statements).

We consider our non-GAAP financial measures and these certain financial and operating metrics important to understanding our historical results, improving our business, benchmarking our performance against peer companies, and identifying current and future trends impacting our business.

The exclusion of certain expenses in the calculation of non-GAAP financial measures should not be construed as an inference that these costs are unusual or infrequent. We anticipate excluding these expenses in future presentations of our non-GAAP financial measures. We believe that these non-GAAP measures of financial results provide useful information to management and investors regarding certain financial and business trends related to our financial condition and results of operations.

We do not consider these non-GAAP measures in isolation or as an alternative to financial measures determined in accordance with GAAP. The principal limitation of these non-GAAP financial measures is that they exclude significant elements that are required to be recorded in our financial statements pursuant to GAAP. In addition, they are subject to inherent limitations as they reflect the exercise of judgments by management in determining these non-GAAP financial measures. In order to compensate for these limitations, management presents our non-GAAP financial measures in connection with our GAAP results. We urge investors to review the reconciliation of our non-GAAP financial measures to the comparable GAAP financial measures, which we have included in this Form 10-K and in our press releases announcing our quarterly financial results, and not to rely on any single financial measure to evaluate our business.

Reconciliation tables of the most comparable GAAP financial measures to the non-GAAP measures are presented as follows (in thousands, except share and per share data):

 

     For the Year Ended December 31,  

Non-GAAP Income from operations

   2012      2013      2014  

GAAP income (loss) from operations

   $ 6,011       $ (1,926 )    $ 8,687   

Add Back:

        

Stock-based compensation expense

     14,792         19,714         24,769   

Litigation related expenses

     1,470         7,476         475   

Acquisition related costs and amortization

     5,450         3,537         8,237   
  

 

 

    

 

 

    

 

 

 

Non-GAAP operating income

   $ 27,723       $ 28,801       $ 42,168   
  

 

 

    

 

 

    

 

 

 

 

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     For the Year Ended December 31,  

Adjusted EBITDA

   2012      2013      2014  

GAAP net income (loss)

   $ 3,566       $ (7,682 )    $ 7,955   

Add Back:

        

Stock-based compensation expense

     14,792         19,714         24,769   

Litigation related expenses

     1,470         7,476         475   

Acquisition related costs

     3,597         1,540         4,466   

Interest income and other income, net

     (246      (458      (707

Income tax expense

     2,691         6,214         1,439   

Depreciation and Amortization expense

     6,100         7,704         11,137   
  

 

 

    

 

 

    

 

 

 

Adjusted EBITDA

   $ 31,970       $ 34,508       $ 49,534   
  

 

 

    

 

 

    

 

 

 

 

     For the Year Ended December 31,  

Non-GAAP Net Income

   2012      2013      2014  

GAAP net income (loss)

   $ 3,566       $ (7,682 )    $ 7,955   

Add Back:

        

Stock-based compensation expense

     14,792         19,714         24,769   

Litigation related expenses

     1,470         7,476         475   

Acquisition related costs and amortization

     5,450         3,537         8,237   

Less:

        

Income tax effect of non-GAAP items

     (6,922 )      (9,194 )      (11,509 )
  

 

 

    

 

 

    

 

 

 

Non-GAAP net income

   $ 18,356       $ 13,851       $ 29,927   
  

 

 

    

 

 

    

 

 

 

 

    For the Year Ended December 31,  

Non-GAAP Earnings per share

  2012     2013     2014  

GAAP diluted earnings (loss) per share

  $ 0.14      $ (0.32   $ 0.31   

Add Back:

     

Stock-based compensation expense

    0.58        0.79        0.98   

Litigation related expenses

    0.06        0.30        0.02   

Acquisition related costs and amortization

    0.21        0.14        0.32   

Less:

     

Income tax effect of non-GAAP items

    (0.27 )     (0.36 )     (0.45 )
 

 

 

   

 

 

   

 

 

 

Non-GAAP earnings per share

  $ 0.72      $ 0.55      $ 1.18   
 

 

 

   

 

 

   

 

 

 

Shares used in computing diluted net income per share

    25,356,305        25,018,758        25,386,199   
 

 

 

   

 

 

   

 

 

 

Off-Balance Sheet Arrangements

We do not engage in any off-balance sheet financing activities, nor do we have any interest in entities referred to as variable interest entities.

Contractual Obligations

The following table summarizes our contractual obligations at December 31, 2014 and the effect such obligations are expected to have on our liquidity and cash flow in future periods.

 

     Payments Due by Period (in thousands)(1)  
     Total      Less Than
1 Year
     1-3 Years      3-5 Years      More Than
5 Years
 

Operating lease obligations

   $ 99,921       $ 7,013       $ 19,366       $ 20,290       $ 53,252   

Hosting service agreements

     3,559         3,334         225                   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 103,480       $ 10,347       $ 19,591       $ 20,290       $ 53,252   
  

 

 

    

 

 

    

 

 

    

 

 

    

 

 

 

 

  (1) Excluded from the table above is $652,000 related to uncertain tax positions as we are uncertain as to when a cash settlement for these liabilities will occur.

 

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The commitments under our operating leases shown above consist primarily of lease payments for our corporate headquarters located in Boston, Massachusetts (see Note 11 to the Consolidated Financial Statements), our research and development offices in Hungary, our international sales and marketing offices located in Australia, the United Kingdom, Ireland, and India, and contractual obligations related to our data centers.

In December 2014, we entered into a lease for new office space in Boston, Massachusetts. The landlord is obligated to rehabilitate the existing building and we expect that the lease term will begin in November 2015 and extend through April 2028. The aggregate amount of minimum lease payments to be made over the term of the lease is approximately $47.0 million. Pursuant to the terms of the lease, the landlord is responsible for making certain improvements to the leased space up to an agreed upon cost to the landlord. Any excess costs for these improvements will be billed by the landlord to us as additional rent. We estimate these excess costs to be approximately $7.0 million. The lease required a security deposit of approximately $3.3 million in the form of an irrevocable, unsecured standby letter of credit. The lease includes an option to extend the original term of the lease for two successive five year periods.

In December 2014, we entered into a lease for new office space in San Francisco, California. The term of the new office space begins in February 2015 and extends through December 2019. The aggregate amount of minimum lease payments to be made over the term of the lease is approximately $2.4 million. The lease required a security deposit of approximately $41,000. The security deposit is classified as a long-term deposit.

In October 2014, we entered into a lease for new office space in Dublin, Ireland. The term of the new office space began in October 2014 and extends through September 2024. The aggregate amount of minimum lease payments to be made over the term of the lease is approximately $5.8 million (EUR 4.8 million).

In April 2014, we amended our current lease for our Budapest, Hungary office space to provide for an expansion of leased space and to extend the term of the lease. The term of the amended lease began in July 2014 and will extend through June 2019. The aggregate amount of minimum lease payments to be made over the term of the lease is approximately $6.9 million (EUR 5.7 million). The amended lease agreement required a bank guarantee of approximately $430,000 (EUR 354,000). The bank guarantee is classified as restricted cash.

Recent Accounting Pronouncements

On May 28, 2014, the FASB issued ASU 2014-09, Revenue from Contracts with Customers (“ASU 2014-09”), its final standard on revenue from contracts with customers. ASU 2014-9 outlines a single comprehensive model for entities to use in accounting for revenue arising from contracts with customers and supersedes most current revenue recognition guidance, including industry-specific guidance. The core principle of the revenue model is that an entity recognizes revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled to in exchange for those goods or services. In applying the revenue model to contracts within its scope, an entity identifies the contract(s) with a customer, identifies the performance obligations in the contract, determines the transaction price, allocates the transaction price to the performance obligations in the contract and recognizes revenue when (or as) the entity satisfies a performance obligation. ASU 2014-09 applies to all contracts with customers that are within the scope of other topics in the FASB Accounting Standards Codification. Certain of ASU 2014-09’s provisions also apply to transfers of nonfinancial assets, including in-substance nonfinancial assets that are not an output of an entity’s ordinary activities (i.e., property plant and equipment; real estate; or intangible assets). Existing accounting guidance applicable to these transfers has been amended or superseded. ASU 2014-09 also requires significantly expanded disclosures about revenue recognition. ASU 2014-09 is effective for us on January 1, 2017. We are currently assessing the potential impact of the adoption of ASU 2014-09 on our consolidated financial statements.

On June 19, 2014, the FASB issued ASU 2014-12, Stock Compensation (“ASU 2014-12”), providing guidance on accounting for share-based payment awards when the terms of an award provide that a performance target could be achieved after the requisite service period. The update clarifies that performance targets that can be achieved after the requisite service period of a share-based payment award be treated as performance conditions that affect vesting. These awards should be accounted for under Accounting Standards Codification Topic 718, Compensation — Stock Compensation , and existing guidance should be applied as it relates to awards with per-

 

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formance conditions that affect vesting. The update is effective for us for the interim and annual periods beginning after December 15, 2015. We are currently evaluating the impact of the adoption of this standard, if any, on our consolidated financial statements.

On August 27, 2014, the FASB issued ASU 2014-15, Presentation of Financial Statements — Going Concern: Disclosure of Uncertainties about an Entity’s Ability to Continue as a Going Concern (“ASU 2014-15”). The standard requires that we evaluate, at each interim and annual reporting period, whether there are conditions or events that raise substantial doubt about our ability to continue as a going concern within one year after the date the financial statements are issued, and provide related disclosures. ASU 2014-15 is effective for annual periods ending after December 15, 2016, and for annual and interim periods thereafter, and early adoption is permitted. We do not expect to early adopt ASU 2014-15, which will be effective for our fiscal year ending December 31, 2016. We do not believe the standard will have a material impact on our consolidated financial statements.

On January 9, 2015, the FASB issued ASU 2015-01, Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items (“ASU 2015-01”). The standard eliminates the requirement of Extraordinary Items to be separately classified on the income statement. ASU 2015-01 is effective for annual periods ending after December 15, 2015, and for annual and interim periods thereafter, and early adoption is permitted. We do not expect to early adopt ASU 2015-01, which will be effective for our fiscal year ending December 31, 2016. We do not believe the standard will have a material impact on our financial statements.

 

Item 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK.

Foreign Currency Exchange Risk.     Our results of operations and cash flows are subject to fluctuations due to changes in foreign currency exchange rates as a majority of our non-U.S. sales are recorded by our Irish subsidiary and as we incur significant operating expenses in our foreign subsidiaries including our Hungarian research and development facilities and our sales and marketing operations in Ireland, the United Kingdom, Australia and India. In the years ended December 31, 2014 and 2013, approximately 32% and 18%, respectively, of our revenues were generated by our Irish subsidiary. In the year ended December 31, 2014, approximately 13%, 7%, 6%, 3% and 1% of our operating expenses occurred in our operations in Hungary, Ireland, the United Kingdom, Australia and India, respectively, and less than 1% occurred in Brazil. In the year ended December 31, 2013, approximately 13%, 7%, 4% and 2% of our operating expenses occurred in our operations in Hungary, the United Kingdom, Ireland and Australia, respectively, and less than 1% each in Brazil, India, the Netherlands and Japan.

To date, changes in foreign currency exchange rates have not had a material impact on our operations, and a future change of 20% or less in foreign currency exchange rates would not materially affect our operations. At this time we do not, but may in the future, enter into any foreign currency hedging programs or instruments that would hedge or help offset such foreign currency exchange rate risk.

Interest Rate Sensitivity.     Interest income is sensitive to changes in the general level of U.S. interest rates. However, based on the nature and current level of our cash and cash equivalents and short-term marketable securities, which primarily consist of cash, money market instruments, government securities, and corporate and agency bonds with maturities of two years or less, we believe there is no material risk of exposure to changes in the fair value of our cash and cash equivalents and marketable securities as a result of changes in interest rates.

 

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ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

LogMeIn, Inc.

Index to Consolidated Financial Statements

 

     Page(s)  

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

     48   

Financial Statements:

  

Consolidated Balance Sheets

     49   

Consolidated Statements of Operations

     50   

Consolidated Statements of Comprehensive Income (Loss)

     51   

Consolidated Statements of Equity

     52   

Consolidated Statements of Cash Flows

     53   

Notes to Consolidated Financial Statements

     54   

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Stockholders and Board of Directors of

LogMeIn, Inc.

Boston, Massachusetts

We have audited the accompanying consolidated balance sheets of LogMeIn, Inc. and subsidiaries (the “Company”) as of December 31, 2013 and 2014, and the related consolidated statements of operations, comprehensive income (loss), equity, and cash flows for each of the three years in the period ended December 31, 2014. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audits.

We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

In our opinion, such consolidated financial statements present fairly, in all material respects, the financial position of LogMeIn, Inc. and subsidiaries as of December 31, 2013 and 2014, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2014, in conformity with accounting principles generally accepted in the United States of America.

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the Company’s internal control over financial reporting as of December 31, 2014, based on the criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated February 20, 2015 expressed an unqualified opinion on the Company’s internal control over financial reporting.

/s/    Deloitte & Touche LLP

Boston, Massachusetts

February 20, 2015

 

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LogMeIn, Inc.

Consolidated Balance Sheets

(In thousands, except share and per share data)

 

     December 31,
2013
    December 31,
2014
 
ASSETS     

Current assets:

    

Cash and cash equivalents

   $ 89,257      $ 100,960   

Marketable securities

     100,299        100,209   

Accounts receivable (net of allowance for doubtful accounts of $269 and $301 as of December 31, 2013 and December 31, 2014, respectively)

     12,957        18,286   

Prepaid expenses and other current assets

     6,508        4,545   

Restricted cash, current portion

     23        1,492   

Deferred income tax assets

     3,053        5,403   
  

 

 

   

 

 

 

Total current assets

     212,097        230,895   

Property and equipment, net

     13,198        13,476   

Restricted cash, net of current portion

     3,902        2,531   

Intangibles, net

     16,886        18,983   

Goodwill

     18,712        37,928   

Other assets

     5,348        4,756   

Deferred income tax assets

     9,470        9,280   
  

 

 

   

 

 

 

Total assets

   $ 279,613      $ 317,849   
  

 

 

   

 

 

 
LIABILITIES AND EQUITY     

Current liabilities:

    

Accounts payable

   $ 6,390      $ 7,055   

Accrued liabilities

     20,110        29,482   

Deferred revenue, current portion

     82,496        101,672   
  

 

 

   

 

 

 

Total current liabilities

     108,996        138,209   

Deferred revenue, net of current portion

     2,667        3,578   

Other long-term liabilities

     611        2,218   
  

 

 

   

 

 

 

Total liabilities

     112,274        144,005   
  

 

 

   

 

 

 

Commitments and contingencies (Note 11)

    

Preferred stock, $0.01 par value — 5,000,000 shares authorized, 0 shares outstanding as of December 31, 2013 and December 31, 2014

              

Equity:

    

Common stock, $0.01 par value — 75,000,000 shares authorized as of December 31, 2013 and December 31, 2014; 25,371,844 and 26,530,977 shares issued as of December 31, 2013 and December 31, 2014, respectively; 24,103,201 and 24,418,760 outstanding as of December 31, 2013 and December 31, 2014, respectively

     254        267   

Additional paid-in capital

     200,235        237,203   

(Accumulated deficit) retained earnings

     (1,439     6,516   

Accumulated other comprehensive loss

     (1,186     (3,117

Treasury stock, at cost — 1,268,643 and 2,112,217 shares as of December 31, 2013 and December 31, 2014, respectively

     (30,525     (67,025
  

 

 

   

 

 

 

Total equity

     167,339        173,844   
  

 

 

   

 

 

 

Total liabilities and equity

   $ 279,613      $ 317,849   
  

 

 

   

 

 

 

See notes to consolidated financial statements.

 

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LogMeIn, Inc.

Consolidated Statements of Operations

(In thousands, except share and per share data)

 

     Years Ended December 31,  
     2012     2013     2014  

Revenue

   $ 138,837      $ 166,258      $ 221,956   

Cost of revenue

     14,504        18,816        28,732   
  

 

 

   

 

 

   

 

 

 

Gross profit

     124,333        147,442        193,224   
  

 

 

   

 

 

   

 

 

 

Operating expenses

      

Research and development

     26,361        29,023        33,516   

Sales and marketing

     70,058        88,794        119,508   

General and administrative

     21,338        29,181        30,526   

Legal Settlements

            1,688          

Amortization of acquired intangibles

     565        682        987   
  

 

 

   

 

 

   

 

 

 

Total operating expenses

     118,322        149,368        184,537   
  

 

 

   

 

 

   

 

 

 

Income (loss) from operations

     6,011        (1,926     8,687   

Interest income, net

     887        547        602   

Other (expense) income

     (641     (89     105   
  

 

 

   

 

 

   

 

 

 

Income (loss) before income taxes

     6,257        (1,468     9,394   

Provision for income taxes

     (2,691     (6,214     (1,439
  

 

 

   

 

 

   

 

 

 

Net income (loss)

   $ 3,566      $ (7,682   $ 7,955   
  

 

 

   

 

 

   

 

 

 

Net income (loss) per share:

      

Basic

   $ 0.14      $ (0.32   $ 0.33   

Diluted

   $ 0.14      $ (0.32   $ 0.31   

Weighted average shares outstanding:

      

Basic

     24,711,242        24,350,913        24,385,297   

Diluted

     25,356,305        24,350,913        25,386,199   

 

 

See notes to consolidated financial statements.

 

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LogMeIn, Inc.

Consolidated Statements of Comprehensive Income (Loss)

(In thousands)

 

     Years Ended December 31,  
     2012      2013     2014  

Net income (loss)

   $ 3,566       $ (7,682   $ 7,955   
  

 

 

    

 

 

   

 

 

 

Other comprehensive gain (loss):

       

Net unrealized gains (losses) on marketable securities, net of tax

     57         (25     (107

Net translation gains (losses)

     1,100         (761     (1,824
  

 

 

    

 

 

   

 

 

 

Total other comprehensive gain (loss)

     1,157         (786     (1,931
  

 

 

    

 

 

   

 

 

 

Comprehensive income (loss)

   $ 4,723       $ (8,468   $ 6,024   
  

 

 

    

 

 

   

 

 

 

 

 

 

See notes to consolidated financial statements.

 

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LogMeIn, Inc.

Consolidated Statements of Equity

(In thousands, except share data)

 

    Common Stock     Additional
Paid-In
Capital
    Retained Earnings
(Accumulated

Deficit)
    Accumulated
Other
Comprehensive
Loss
    Treasury
Stock
    Total
Equity
 
    Number of
Shares
    Amount            

Balance at January 1, 2012

    24,551,641      $ 246      $ 154,440      $ 2,677      $ (1,557   $      $ 155,806   

Issuance of common stock upon exercise of stock options

    262,366        2        2,679                             2,681   

Income tax benefit from stock options exercises

                  6,635                             6,635   

Stock-based compensation

                  14,792                             14,792   

Net income

                         3,566                      3,566   

Unrealized gain on available-for-sale securities, net of tax

                                57               57   

Cumulative translation adjustments

                                1,100               1,100   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2012

    24,814,007      $ 248      $ 178,546      $ 6,243      $ (400   $      $ 184,637   

Issuance of common stock upon exercise of stock options

    373,761        4        3,794                             3,798   

Net issuance of common stock upon vesting of restricted stock units

    184,076        2        (1,836                          (1,834

Income tax benefit from stock options exercises

                  17                             17   

Stock-based compensation

                  19,714                             19,714   

Treasury stock

    (1,268,643                                 (30,525     (30,525

Net loss

                         (7,682                   (7,682

Unrealized loss on available-for-sale securities, net of tax

                                (25            (25

Cumulative translation adjustments

                                (761            (761
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2013

    24,103,201      $ 254      $ 200,235      $ (1,439   $ (1,186   $ (30,525   $ 167,339   

Issuance of common stock upon exercise of stock options

    858,988        9        17,586                             17,595   

Net issuance of common stock upon vesting of restricted stock units

    300,145        4        (5,770                          (5,766

Income tax benefit from stock options exercises

                  383                             383   

Stock-based compensation

                  24,769                             24,769   

Treasury stock

    (843,574                                 (36,500     (36,500

Net income

                         7,955                      7,955   

Unrealized loss on available-for-sale securities, net of tax

                                (107            (107

Cumulative translation adjustments

                                (1,824            (1,824
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Balance at December 31, 2014

    24,418,760      $ 267      $ 237,203      $ 6,516      $ (3,117   $ (67,025   $ 173,844   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

See notes to consolidated financial statements.

 

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LogMeIn, Inc.

Consolidated Statements of Cash Flows

(In thousands)

 

     Years Ended December 31,  
     2012     2013     2014  

Cash flows from operating activities

      

Net income (loss)

   $ 3,566      $ (7,682   $ 7,955   

Adjustments to reconcile net income (loss) to net cash provided by operating activities

      

Depreciation and amortization

     6,100        7,704        11,137   

Amortization of premium on investments

     54        198        224   

Provision for bad debts

     100        116        102   

Gain on sales of marketable securities

                   (5

(Benefit from) provision for deferred income taxes

     (831     926        (2,707

Income tax benefit from the exercise of stock options

     (6,635     (17     (383

Stock-based compensation

     14,792        19,714        24,769   

Loss on disposal of equipment

     12               26   

Changes in assets and liabilities:

      

Accounts receivable

     (4,471     302        (5,804

Prepaid expenses and other current assets

     (1,070     (2,986     1,822   

Other assets

     (1,308     (3,764     476   

Accounts payable

     1,552        (2,233     1,727   

Accrued liabilities

     5,854        3,457        9,234   

Deferred revenue

     10,960        14,493        23,983   

Other long-term liabilities

     (418     (208     1,597   
  

 

 

   

 

 

   

 

 

 

Net cash provided by operating activities

     28,257        30,020        74,153   
  

 

 

   

 

 

   

 

 

 

Cash flows from investing activities

      

Purchases of marketable securities

     (135,085     (90,376     (95,342

Proceeds from maturities of marketable securities

     130,000        90,000        75,000   

Proceeds from sale of marketable securities

                   20,045   

Purchases of property and equipment

     (5,277     (10,938     (7,471

Intangible asset additions

     (1,049     (13,061     (2,529

Cash paid for acquisition, net of cash acquired

     (14,831            (22,449

(Increase) decrease in restricted cash and deposits

     (3,558     7        (196
  

 

 

   

 

 

   

 

 

 

Net cash used in investing activities

     (29,800     (24,368     (32,942
  

 

 

   

 

 

   

 

 

 

Cash flows from financing activities

      

Proceeds from issuance of common stock upon option exercises

     2,682        3,798        17,595   

Income tax benefit from the exercise of stock options

     6,634        17        383   

Payment of contingent consideration

     (89     (104       

Common stock withheld to satisfy income tax withholdings for restricted stock unit vesting

            (1,834     (5,766

Purchase of treasury stock

            (30,525     (36,500
  

 

 

   

 

 

   

 

 

 

Net cash provided by (used in) financing activities

     9,227        (28,648     (24,288
  

 

 

   

 

 

   

 

 

 

Effect of exchange rate changes on cash and cash equivalents and restricted cash

     644        321        (5,220
  

 

 

   

 

 

   

 

 

 

Net increase (decrease) in cash and cash equivalents

     8,328        (22,675     11,703   

Cash and cash equivalents, beginning of period

     103,604        111,932        89,257   
  

 

 

   

 

 

   

 

 

 

Cash and cash equivalents, end of period

   $ 111,932      $ 89,257      $ 100,960   
  

 

 

   

 

 

   

 

 

 

Supplemental disclosure of cash flow information

      

Cash paid for interest

   $      $ 2      $ 2   

Cash paid for income taxes

   $ 1,802      $ 10,094      $ 1,489   

Noncash investing and financing activities

      

Purchases of property and equipment included in accounts payable and accrued liabilities

   $ 742      $ 1,510      $ 1,032   

Fair value of contingent consideration in connection with acquisition included in accrued liabilities and other long term liabilities

   $ 161      $      $ 249   

Deferred financing costs included in accounts payable and accrued liabilities

   $      $      $ 13   

See notes to consolidated financial statements.

 

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LogMeIn, Inc.

Notes to Consolidated Financial Statements

 

1. Nature of the Business

LogMeIn, Inc. (the “Company”) provides a portfolio of cloud-based service offerings which make it possible for people and businesses to simply and securely connect to their workplace, colleagues and customers. The Company’s product line includes AppGuru™, BoldChat ® , Cubby™, join.me ® , LogMeIn Pro ® , LogMeIn ® Central™, LogMeIn Rescue ® , LogMeIn ® Rescue+Mobile™, LogMeIn Backup ® , LogMeIn for iOS, LogMeIn Hamachi ® , Meldium TM , Xively™ and RemotelyAnywhere ® . The Company is headquartered in Boston, Massachusetts with wholly-owned subsidiaries located in Hungary, The Netherlands, Australia, the United Kingdom, Brazil, Bermuda, Japan, Ireland, and India.

 

2. Summary of Significant Accounting Policies

Principles of Consolidation — The accompanying consolidated financial statements include the results of operations of the Company and its wholly-owned subsidiaries. All intercompany transactions and balances have been eliminated in consolidation. The Company has prepared the accompanying consolidated financial statements in conformity with accounting principles generally accepted in the United States of America (“GAAP”).

Use of Estimates — The preparation of consolidated financial statements in conformity with GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenue and expenses during the reporting period. By their nature, estimates are subject to an inherent degree of uncertainty. Actual results could differ from those estimates.

Cash Equivalents — Cash equivalents consist of highly liquid investments with an original or remaining maturity of less than three months at the date of purchase. Cash equivalents consist of investments in money market funds which primarily invest in U.S. Treasury obligations. Cash equivalents are stated at cost, which approximates fair value.

Marketable Securities — The Company’s marketable securities are classified as available-for-sale and are carried at fair value with the unrealized gains and losses, net of tax, reported as a component of accumulated other comprehensive loss in equity. Realized gains and losses and declines in value judged to be other than temporary are included as a component of earnings based on the specific identification method. Fair value is determined based on quoted market prices. At December 31, 2013 and 2014, marketable securities consisted of U.S. government agency securities and corporate bonds that have remaining maturities within two years and have an aggregate amortized cost of $100.3 million. The securities have an aggregate fair value of $100.3 million and $100.2 million, including $67,000 and $9,000 of unrealized gains and $28,000 and $138,000 of unrealized losses, at December 31, 2013 and 2014 respectively.

Restricted Cash — In May 2013, $125,000 of restricted cash associated with the Company’s Woburn, Massachusetts office lease was returned to the Company in connection with the expiration of the lease. In April 2012, the Company entered into a lease for a new corporate headquarters located in Boston, Massachusetts. The lease required a security deposit of approximately $3.3 million in the form of an irrevocable standby letter of credit which is collateralized by a bank deposit in the amount of approximately $3.5 million or 105 percent of the security deposit. Such amounts are classified as restricted cash in the accompanying consolidated balance sheets. In addition, the Company has made security deposits for various other leased facilities, which are also classified as restricted cash.

Accounts Receivable — The Company reviews accounts receivable on a periodic basis to determine if any receivables will potentially be uncollectible. Estimates are used to determine the amount of the allowance for doubtful accounts necessary to reduce accounts receivable to its estimated net realizable value. The estimates are based on an analysis of past due receivables, historical bad debt trends, current economic conditions, and customer specific information. After the Company has exhausted all collection efforts, the outstanding receivable balance relating to services provided is written off against the allowance and the balance related to services not yet delivered is charged as an offset to deferred revenue.

 

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Activity in the allowance for doubtful accounts was as follows (in thousands):

 

     December 31,  
     2012      2013      2014  

Balance, beginning

   $ 109       $ 180       $ 269   

Provision for bad debt

     100         116         102   

Uncollectible accounts written off

     29         27         70   
  

 

 

    

 

 

    

 

 

 

Balance, ending

   $ 180       $ 269       $ 301   
  

 

 

    

 

 

    

 

 

 

Property and Equipment — Property and equipment are recorded at cost and depreciated using the straight-line method over the estimated useful lives of the related assets. Upon retirement or sale, the cost of the assets disposed of and the related accumulated depreciation are eliminated from the accounts, and any resulting gain or loss is reflected in the consolidated statements of operations. Expenditures for maintenance and repairs are charged to expense as incurred.

Estimated useful lives of assets are as follows:

 

Computer equipment and software

     2 —3 years   

Office equipment

     3 years   

Furniture and fixtures

     5 years   

Leasehold Improvements

    
 
Shorter of lease term
or estimated useful life
  
  

Goodwill — Goodwill is the excess of the acquisition price over the fair value of the tangible and identifiable intangible net assets acquired. The Company does not amortize goodwill, but performs an impairment test of goodwill annually or whenever events and circumstances indicate that the carrying amount of goodwill may exceed its fair value. The Company operates as a single operating segment with one reporting unit and consequently evaluates goodwill for impairment based on an evaluation of the fair value of the Company as a whole. As of December 31, 2014, the fair value of the Company as a whole significantly exceeds the carrying amount of the Company. Through December 31, 2014, no impairments have occurred.

Long-Lived Assets and Intangible Assets — The Company records intangible assets at their respective estimated fair values at the date of acquisition. Intangible assets are being amortized based upon the pattern in which their economic benefit will be realized, or if this pattern cannot be reliably determined, using the straight-line method over their estimated useful lives, which range from four months to eight years.

The Company reviews long-lived assets for impairment whenever events or changes in circumstances indicate that the carrying amount of the assets, including intangible assets, may not be recoverable. When such events occur, the Company compares the carrying amounts of the assets to their undiscounted expected future cash flows. If this comparison indicates that there is impairment, the amount of the impairment is calculated as the difference between the carrying value and fair value. Through December 31, 2014, the Company recorded no material impairments.

Revenue Recognition — The Company derives revenue primarily from subscription fees related to its LogMeIn premium services and to a lesser extent, the delivery of professional services, primarily related to its Xively business.

Revenue from the Company’s LogMeIn premium services is recognized on a daily basis over the subscription term as the services are delivered, provided that there is persuasive evidence of an arrangement, the fee is fixed or determinable and collectability is deemed reasonably assured. Subscription periods range from monthly to five years, but are generally one year in duration. The Company’s software cannot be run on another entity’s hardware nor do customers have the right to take possession of the software and use it on their own or another entity’s hardware.

 

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The Company’s multi-element arrangements typically include subscription and professional services, which may include development services. The Company evaluates each element within the arrangement to determine if they can be accounted for as separate units of accounting. If the delivered item or items have value to the customer on a standalone basis, either because they are sold separately by any vendor or the customer could resell the delivered item or items on a standalone basis, the Company has determined that the deliverables within these arrangements qualify for treatment as separate units of accounting. Accordingly, the Company recognizes revenue for each delivered item or items as a separate earnings process commencing when all of the significant performance obligations have been performed and when all of the revenue recognition criteria have been met. Professional services revenue recognized as a separate earnings process under multi-element arrangements has been immaterial to date. In cases where the Company has determined that the delivered items within its multi-element arrangements do not have value to the customer on a stand-alone basis, the arrangement is accounted for as a single unit of accounting and the related consideration is recognized ratably over the estimated customer life, commencing when all of the significant performance obligations have been delivered and when all of the revenue recognition criteria have been met.

The Company currently only offers free versions of its iPhone, iPad and Android software products. The Company had formerly sold these iPhone, iPad and Android software products as perpetually licensed software, the revenue from which was recognized when there was persuasive evidence of an arrangement, the product had been provided to the customer, the collection of the fee was probable, and the amount of fees to be paid by the customer was fixed or determinable.

Revenues are reported net of applicable sales and use tax, value-added tax, and other transaction taxes imposed on the related transaction.

Deferred Revenue — Deferred revenue primarily consists of billings and payments received in advance of revenue recognition. The Company primarily bills and collects payments from customers for products and services in advance on a monthly and annual basis. Deferred revenue to be recognized in the next twelve months is included in current deferred revenue, and the remaining amounts are included in long-term deferred revenue in the consolidated balance sheets.

Concentrations of Credit Risk and Significant Customers — The Company’s principal credit risk relates to its cash, cash equivalents, marketable securities, restricted cash, and accounts receivable. Cash, cash equivalents, and restricted cash are deposited primarily with financial institutions that management believes to be of high-credit quality and custody of its marketable securities is with an accredited financial institution. To manage accounts receivable credit risk, the Company regularly evaluates the creditworthiness of its customers and maintains allowances for potential credit losses. To date, losses resulting from uncollected receivables have not exceeded management’s expectations.

As of December 31, 2013 no customers accounted for more than 10% of accounts receivable and there were no customers that represented 10% or more of revenue for the years ended December 31, 2012, 2013, or 2014. As of December 31, 2014, one customer accounted for 15% of accounts receivable.

Legal Costs — Legal expenditures are expensed as incurred.

Research and Development — Research and development expenditures are expensed as incurred.

Software Development Costs — The Company has determined that technological feasibility of its software products that are sold as a perpetual license is reached shortly before their introduction to the marketplace.

The Company capitalizes certain direct costs to develop functionality as well as certain upgrades and enhancements of its on-demand products that are probable to result in additional functionality. The costs incurred in the preliminary stages of development are expensed as incurred. Once an application has reached the development stage, internal and external costs, if direct and incremental, are capitalized as part of intangible assets until the software is substantially complete and ready for its intended use. Internally developed software costs that are capitalized are classified as intangible assets and amortized over a three year period.

 

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Foreign Currency Translation — The functional currency of operations outside the United States of America is deemed to be the currency of the local country, unless otherwise determined that the United States dollar would serve as a more appropriate functional currency given the economic operations of the entity. Accordingly, the assets and liabilities of the Company’s foreign subsidiaries are translated into United States dollars using the period-end exchange rate, and income and expense items are translated using the average exchange rate during the period. Cumulative translation adjustments are reflected as a separate component of equity. Foreign currency transaction gains and losses are charged to operations. The Company had foreign currency losses of approximately $641,000, and $89,000 for the years ended December 31, 2012 and 2013, and Foreign currency gains of approximately $105,000 for the year ended December 31 2014 included in other (expense) income in the consolidated statements of operations.

Stock-Based Compensation — The Company values all stock-based compensation, including grants of stock options and restricted stock units, at fair value on the date of grant and recognizes the expense over the requisite service period, which is generally the vesting period of the award, for those awards expected to vest, on a straight-line basis. The Company uses the with-or-without method to determine when it will realize excess tax benefits from stock based compensation. Under this method, the Company will realize these excess tax benefits only after it realizes the tax benefits of net operating losses from operations.

Income Taxes — Deferred income taxes are provided for the tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes, and operating loss carry-forwards and credits using enacted tax rates expected to be in effect in the years in which the differences are expected to reverse. At each balance sheet date, the Company assesses the likelihood that deferred tax assets will be realized, and recognizes a valuation allowance if it is more likely than not that some portion of the deferred tax assets will not be realized. This assessment requires judgment as to the likelihood and amounts of future taxable income by tax jurisdiction.

The Company evaluates its uncertain tax positions based on a determination of whether and how much of a tax benefit taken by the Company in its tax filings is more likely than not to be realized. Potential interest and penalties associated with any uncertain tax positions are recorded as a component of income tax expense. As of December 31, 2014, the Company has provided a liability for approximately $652,000 for uncertain tax positions. These uncertain tax positions would impact the Company’s effective tax rate if recognized.

Advertising Costs — The Company expenses advertising costs as incurred. Advertising expense for the years ended December 31, 2012, 2013, and 2014 was approximately $23.8 million, $27.8 million, and $36.8 million respectively, which consisted primarily of online paid searches, banner advertising, and other online marketing and is included in sales and marketing expense in the accompanying consolidated statements of operations.

Comprehensive Income (Loss) — Comprehensive income (loss) is the change in stockholders’ equity during a period relating to transactions and other events and circumstances from non-owner sources and currently consists of net income, foreign currency translation adjustments, and unrealized gains and losses, net of tax on available-for-sale securities. Accumulated comprehensive loss was approximately $1.2 million at December 31, 2013 and consisted of $1.2 million related to foreign currency translation adjustments offset by $25,000 of unrealized losses, net of tax on available-for sale securities. Accumulated comprehensive income was approximately $3.1 million at December 31, 2014 and consisted of $3.0 million related to foreign currency translation adjustments in addition to $82,000 in unrealized losses, net of tax on available-for sale securities.

Fair Value of Financial Instruments — The carrying value of the Company’s financial instruments, including cash equivalents, restricted cash, accounts receivable, and accounts payable, approximate their fair values due to their short maturities.

Segment Data — Operating segments are identified as components of an enterprise about which separate discrete financial information is available for evaluation by the chief operating decision-maker, or decision making group, in making decisions regarding resource allocation and assessing performance. The Company, which uses consolidated financial information in determining how to allocate resources and assess performance, has determined that it operates in one segment.

 

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The Company’s revenue (based on customer address) and long-lived assets by geography are as follows (in thousands):

 

     Years Ended December 31,  
     2012      2013      2014  

Revenues:

        

United States

   $ 90,233       $ 109,444       $ 148,532   

United Kingdom

     12,846         15,058         19,452   

International — all other

     35,758         41,756         53,972   
  

 

 

    

 

 

    

 

 

 

Total revenue

   $ 138,837       $ 166,258       $ 221,956   
  

 

 

    

 

 

    

 

 

 

Long-lived assets:

        

United States

   $ 4,129       $ 10,207       $ 9,731   

Hungary

     1,599         1,224         2,018   

Ireland

     234         1,057         1,139   

International — all other

     614         710         588   
  

 

 

    

 

 

    

 

 

 

Total long-lived assets

   $ 6,576       $ 13,198       $ 13,476   
  

 

 

    

 

 

    

 

 

 

Net Income (Loss) Per Share — Basic net income (loss) per share is computed by dividing net income (loss) by the weighted average number of common shares outstanding for the period. Diluted net income (loss) per share is computed by dividing net income (loss) by the sum of the weighted average number of common shares outstanding during the period and the weighted average number of potential common shares outstanding from the assumed exercise of stock options and the vesting of restricted stock units. For the year ended December 31, 2013, the Company incurred a net loss and therefore, the effect of the Company’s outstanding common stock equivalents were not included in the calculation of diluted loss per share as they were anti-dilutive. Accordingly, basic and dilutive net loss per share for each period were identical.

The Company excluded the following options to purchase common shares and restricted stock units from the computation of diluted net income (loss) per share either because they had an anti-dilutive impact or because the Company had a net loss in the period (in thousands):

 

     Years Ended December 31,  
       2012          2013          2014    

Options to purchase common shares

     1,679         2,389         57   

Restricted stock units

     147         1,192         18   
  

 

 

    

 

 

    

 

 

 

Total options and restricted stock units

     1,826         3,581         75   
  

 

 

    

 

 

    

 

 

 

 

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Basic and diluted net income per share was calculated as follows (in thousands, except share and per share data):

 

     Year Ended
December 31, 2012
 

Basic:

  

Net income

   $ 3,566   
  

 

 

 

Weighted average common shares outstanding, basic

     24,711,242   
  

 

 

 

Net income, basic

   $ 0.14   
  

 

 

 

Diluted:

  

Net income

   $ 3,566   
  

 

 

 

Weighted average common shares outstanding

     24,711,242   

Add: Options to purchase common shares and restricted stock units

     645,063   
  

 

 

 

Weighted average common shares outstanding, diluted

     25,356,305   
  

 

 

 

Net income, diluted

   $ 0.14   
  

 

 

 

 

     Year Ended
December 31, 2013
 

Basic and Diluted Net Loss per Share:

  

Net loss

   $ (7,682
  

 

 

 

Weighted average common shares outstanding

     24,350,913   
  

 

 

 

Basic and diluted net loss per share

   $ (0.32
  

 

 

 

 

     Year Ended
December 31, 2014
 

Basic:

  

Net income

   $ 7,955   
  

 

 

 

Weighted average common shares outstanding, basic

     24,385,297   
  

 

 

 

Net income, basic

   $ 0.33   
  

 

 

 

Diluted:

  

Net income

   $ 7,955   
  

 

 

 

Weighted average common shares outstanding

     24,385,297   

Add: Options to purchase common shares and restricted stock units

     1,000,902   
  

 

 

 

Weighted average common shares outstanding, diluted

     25,386,199   
  

 

 

 

Net income, diluted

   $ 0.31   
  

 

 

 

Guarantees and Indemnification Obligations — As permitted under Delaware law, the Company has agreements whereby the Company indemnifies certain of its officers and directors for certain events or occurrences while the officer or director is, or was, serving at the Company’s request in such capacity. The term of the indemnification period is for the officer’s or director’s lifetime. As permitted under Delaware law, the Company also has similar indemnification obligations under its certificate of incorporation and by-laws. The maximum potential amount of future payments the Company could be required to make under these indemnification agreements is unlimited; however, the Company has director’s and officer’s insurance coverage that the Company believes limits its exposure and enables it to recover a portion of any future amounts paid.

 

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The Company has entered into agreements with certain customers that contractually obligate the Company to indemnify the customer from certain claims, including claims alleging that the Company’s products infringe third-party patents, copyrights, or trademarks. The term of these indemnification obligations is generally perpetual. The maximum potential amount of future payments the Company could be required to make under these indemnification obligations is unlimited. Through December 31, 2014, the Company has not experienced any losses related to these indemnification obligations.

In November 2012, the Company filed suit against Pragmatus Telecom LLC (“Pragmatus”), seeking declaratory judgment after certain of the Company’s customers received letters from Pragmatus claiming that their use of certain LogMeIn services infringed upon three patents allegedly owned by Pragmatus. On March 29, 2013, the Company and Pragmatus entered into a License Agreement, which granted the Company a fully-paid license covering the patents at issue. The Company paid Pragmatus a one-time licensing fee in April 2013, after a portion of the fee was reimbursed in March 2013 from a designated escrow arrangement associated with a prior acquisition. The Company recorded approximately $1.2 million of expense related to this matter in general and administrative expenses in March 2013. As a result, the Company’s declaratory judgment action against Pragmatus was dismissed by the court on May 3, 2013.

Recently Issued Accounting Pronouncements — On May 28, 2014, the FASB issued ASU 2014-09, Revenue from Contracts with Customers (“ASU 2014-09”), its final standard on revenue from contracts with customers. ASU 2014-9 outlines a single comprehensive model for entities to use in accounting for revenue arising from contracts with customers and supersedes most current revenue recognition guidance, including industry-specific guidance. The core principle of the revenue model is that an entity recognizes revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. In applying the revenue model to contracts within its scope, an entity identifies the contract(s) with a customer, identifies the performance obligations in the contract, determines the transaction price, allocates the transaction price to the performance obligations in the contract and recognizes revenue when (or as) the entity satisfies a performance obligation. ASU 2014-09 applies to all contracts with customers that are within the scope of other topics in the FASB Accounting Standards Codification. Certain of ASU 2014-09’s provisions also apply to transfers of nonfinancial assets, including in-substance nonfinancial assets that are not an output of an entity’s ordinary activities (i.e., property plant and equipment; real estate; or intangible assets). Existing accounting guidance applicable to these transfers has been amended or superseded. ASU 2014-09 also requires significantly expanded disclosures about revenue recognition. ASU 2014-09 is effective for the Company on January 1, 2017. The Company is currently assessing the potential impact of the adoption of ASU 2014-09 on its consolidated financial statements.

On June 19, 2014, the FASB issued ASU 2014-12, Stock Compensation (“ASU 2014-12”), providing guidance on accounting for share-based payment awards when the terms of an award provide that a performance target could be achieved after the requisite service period. The update clarifies that performance targets that can be achieved after the requisite service period of a share-based payment award be treated as performance conditions that affect vesting. These awards should be accounted for under Accounting Standards Codification Topic 718, Compensation — Stock Compensation , and existing guidance should be applied as it relates to awards with performance conditions that affect vesting. The update is effective for the Company for the interim and annual periods beginning after December 15, 2015. The Company is currently evaluating the impact of the adoption of this standard, if any, on its consolidated financial statements.

On August 27, 2014, the FASB issued ASU 2014-15, Presentation of Financial Statements — Going Concern: Disclosure of Uncertainties about an Entity’s Ability to Continue as a Going Concern (“ASU 2014-15”). The standard requires that the Company evaluates, at each interim and annual reporting period, whether there are conditions or events that raise substantial doubt about its ability to continue as a going concern within one year after the date the financial statements are issued, and provide related disclosures. ASU 2014-15 is effective for annual periods ending after December 15, 2016, and for annual and interim periods thereafter, and early adoption is permitted. The Company does not expect to early adopt ASU 2014-15, which will be effective for its fiscal year ending December 31, 2016. The Company does not believe the standard will have a material impact on its financial statements.

On January 9, 2015, the FASB issued ASU 2015-01, Simplifying Income Statement Presentation by Eliminating the Concept of Extraordinary Items (“ASU 2015-01”). The standard eliminates the requirement of Extra-

 

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ordinary Items to be separately classified on the income statement. ASU 2015-01 is effective for annual periods ending after December 15, 2015, and for annual and interim periods thereafter, and early adoption is permitted. The Company does not expect to early adopt ASU 2015-01, which will be effective for its fiscal year ending December 31, 2016. The Company does not believe the standard will have a material impact on its consolidated financial statements.

 

3. Fair Value of Financial Instruments

The carrying value of the Company’s financial instruments, including cash equivalents, restricted cash, accounts receivable, and accounts payable, approximate their fair values due to their short maturities. The Company’s financial assets and liabilities are measured using inputs from the three levels of the fair value hierarchy. A financial asset or liability’s classification within the hierarchy is determined based on the lowest level input that is significant to the fair value measurement. The three levels are as follows:

Level 1: Unadjusted quoted prices for identical assets or liabilities in active markets accessible by the Company at the measurement date.

Level 2: Inputs include quoted prices for similar assets and liabilities in active markets, quoted prices for identical or similar assets and liabilities in markets that are not active, inputs other than quoted prices that are observable for the asset or liability, and inputs that are derived principally from or corroborated by observable market data by correlation or other means.

Level 3: Unobservable inputs that are supported by little or no market activity and that are significant to the fair value of the assets or liabilities.

The following table summarizes the basis used to measure certain of the Company’s financial assets that are carried at fair value (in thousands):

 

       Fair Value Measurements at December 31, 2013 Using     
       Level 1          Level 2          Level 3          Total    

Financial Assets:

           

Cash equivalents — money market funds

   $ 28,210       $       $       $ 28,210   

Cash equivalents — bank deposits

             5,001                 5,001   

Short-term marketable securities — U.S. government agency securities

     75,288         25,011                 100,299   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 103,498       $ 30,012       $      —       $ 133,510   
  

 

 

    

 

 

    

 

 

    

 

 

 

 

       Fair Value Measurements at December 31, 2014 Using     
       Level 1          Level 2          Level 3          Total    

Financial Assets:

           

Cash equivalents — money market funds

   $ 13,139       $       $       $ 13,139   

Cash equivalents — bank deposits

             5,003                 5,003   

Short-term marketable securities — U.S. government agency securities

     59,903         19,950                 79,853   

Corporate bond securities

             20,356                 20,356   

Contingent consideration liability

                     249         249   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

   $ 73,042       $ 45,309       $      249       $ 118,600   
  

 

 

    

 

 

    

 

 

    

 

 

 

Bank deposits, corporate bonds and certain U.S. government agency securities are classified within the second level of the fair value hierarchy as the fair value of those assets are determined based upon quoted prices for similar assets.

The Level 3 liability consists of contingent consideration related to the August 27, 2014 acquisition of Meldium and the September 5, 2014 acquisition of a San Francisco-based collaboration software provider. The fair value of the contingent consideration was estimated by applying a probability based model, which utilizes sig-

 

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nificant inputs that are unobservable in the market. Key assumptions include a 12% discount rate and an assumption that the earn-out will be achieved. The current portion of contingent consideration is included in Accrued liabilities and the non-current portion is included in Other long-term liabilities. A reconciliation of the beginning and ending Level 3 liability is as follows (in thousands):

 

     Years Ended
December 31,
 
       2013          2014    

Balance beginning of period

   $ 161       $   

Additions to Level 3

             239   

Payments

     (178        

Change in fair value of contingent consideration liability

     17         10   
  

 

 

    

 

 

 

Balance end of period

   $       $ 249   
  

 

 

    

 

 

 

 

4. Acquisitions

On March 7, 2014, the Company acquired all of the outstanding capital stock of Ionia Corporation, or Ionia, a Boston, Massachusetts based systems integrator, for a cash purchase price of $7.5 million plus contingent retention-based bonuses totaling up to $4.0 million, which are expected to be paid over a two-year period from the date of acquisition. The operating results, which are comprised of approximately $2.1 million of revenue, as well as $5.4 million of expenses for the year ended December 31, 2014, are included in the condensed consolidated financial statements beginning on the acquisition date.

The acquisition has been accounted for as a business combination. The assets acquired and the liabilities assumed were recorded at their estimated fair values as of the acquisition date. The Company retained an independent third party valuation firm to assist in the determination of the fair value of the intangible assets with estimates and assumptions provided by Company management. The excess of the purchase price over the tangible net assets and identifiable intangible assets was recorded as goodwill.

The purchase price was allocated as follows (in thousands):

 

     Amount  

Cash

   $ 67   

Current assets

     296   

Other assets

     26   

Deferred revenue

     (70

Other liabilities

     (864

Customer backlog

     120   

Trade name and trademark

     10   

Customer relationships

     1,340   

Documented know-how

     280   

Goodwill

     6,295   
  

 

 

 

Total purchase price

   $ 7,500   
  

 

 

 

The pro forma results of operations for the years ended December 31, 2013 and 2014, assuming the Company had acquired Ionia on January 1, 2013, do not differ materially from those reported in the Company’s consolidated statement of operations for those years.

The stock purchase agreement included a contingent, retention-based bonus program provision requiring the Company to make additional payments to employees, including former Ionia stockholders now employed by the Company, on the first and second anniversaries of the acquisition, contingent upon their continued employment and achievement of certain bookings goals. The range of the contingent, retention-based bonus payments that the

 

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Company could pay is between $0 to $4.0 million. The Company has concluded that the arrangement is a compensation arrangement and is accruing the maximum payout ratably over the performance period, as it believes it is probable that the criteria will be met. The Company expects to pay $2.0 million in March 2015 and the remainder in March 2016.

The goodwill recorded in connection with this transaction is primarily related to the expected synergies to be achieved related to the Company’s ability to leverage its Xively platform, customer base, sales force and Internet of Things business plan with Ionia’s technical expertise and customer base. All goodwill and intangible assets acquired are not deductible for income tax purposes.

The Company recorded a long-term deferred tax liability of approximately $700,000 related to the amortization of intangible assets which cannot be deducted for tax purposes and is included in the accompanying table above as Other liabilities.

On August 27, 2014, the Company acquired BBA, Inc., d/b/a Meldium, a San Francisco, California-based provider of single sign-on password management software, through a merger transaction for a cash purchase price of $10.6 million plus contingent bonuses totaling up to $4.6 million, which are expected to be paid over a two-year period from the date of acquisition. Meldium’s operating results, which are comprised of approximately $1.8 million of expenses during the year ended December 31, 2014, are included in the condensed consolidated financial statements beginning on the acquisition date.

The acquisition has been accounted for as a business combination. The assets acquired and the liabilities assumed were recorded at their estimated fair values as of the acquisition date. The Company retained an independent third party valuation firm to assist in the determination of the fair value of the intangible assets with estimates and assumptions provided by Company management. The excess of the purchase price over the tangible net assets and identifiable intangible assets was recorded as goodwill.

The following table summarizes the fair value (in thousands) of the assets acquired and liabilities assumed at the date of acquisition:

 

     Amount  

Cash

   $ 120   

Current assets

     90   

Other assets

     436   

Deferred revenue

     (5

Other liabilities

     (935

Completed technology

     1,580   

Trade name and trademark

     30   

Customer relationships

     100   

Goodwill

     9,437   
  

 

 

 

Total purchase price

     10,853   
  

 

 

 

Liability for contingent consideration

     (216 )
  

 

 

 

Cash paid

   $ 10,637   
  

 

 

 

The Company’s pro forma results of operations for the year ended December 31, 2013 and 2014, assuming the Company had acquired Meldium on January 1, 2013, do not differ materially from those reported in the Company’s consolidated statement of operations for those years.

The merger agreement included a contingent, retention-based bonus program requiring the Company to make additional payments to employees, including former Meldium stockholders now employed by the Com-

 

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pany, in the first quarter of 2015 and on the first and second anniversaries of the date of acquisition, contingent upon their continued employment and achievement of certain product integration goals. The range of the contingent, retention-based bonus payments that the Company could pay is between $0 to $4.3 million. The Company has concluded that the arrangement is a compensation arrangement and is accruing the maximum payout ratably over the performance period, as it believes it is probable that the criteria will be met. The contingent bonus program also includes payments to non-employee stockholders for an amount between $0 and $226,000, which the Company has concluded is contingent consideration and is part of the purchase price. This contingent liability was recorded at its fair value of $216,000 at the acquisition date. The Company continues to re-measure the fair value of the contingent consideration at each subsequent reporting period and recognizes any adjustments to fair value as part of earnings. The Company paid approximately $1.0 million of contingent payments in February 2015.

The goodwill recorded in connection with this transaction is primarily related to the expected synergies to be achieved related to the Company’s ability to leverage its IT management offerings, customer base, sales force and IT management business plan with Meldium’s product, technical expertise and customer base. All goodwill and intangible assets acquired are not deductible for income tax purposes.

The Company recorded both a current and a long-term deferred tax asset of approximately $88,000 and $433,000, respectively, primarily related to net operating losses that were acquired as a part of the acquisition and are shown in the accompanying table above as Current assets and Other assets respectively. The Company also recorded a long-term deferred tax liability of approximately $694,000 related to the amortization of intangible assets which cannot be deducted for tax purposes and are included in the accompanying table above as Other liabilities.

On September 5, 2014, the Company acquired all of the outstanding capital stock of a San Francisco, California-based collaboration software provider, for a cash purchase price of $4.5 million plus contingent bonuses totaling up to $1.5 million, which are expected to be paid two years from the date of acquisition. The acquired company’s operating results, which are comprised of approximately $490,000 of expenses during the year ended December 31, 2014 are included in the consolidated financial statements beginning on the acquisition date.

This acquisition has been accounted for as a business combination. The assets acquired and the liabilities assumed were recorded at their estimated fair values as of the acquisition date. The Company retained an independent third party valuation firm to assist in the determination of the fair value of the intangible assets with estimates and assumptions provided by Company management. The excess of the purchase price over the tangible net assets and identifiable intangible assets was recorded as goodwill.

The following table summarizes the fair value (in thousands) of the assets acquired and liabilities assumed at the date of acquisition:

 

     Amount  

Cash

   $ 2   

Current assets

     13   

Other assets

     404   

Other liabilities

     (439

Completed technology

     960   

Trade name and trademark

     100   

Goodwill

     3,484   
  

 

 

 

Total purchase price

     4,524   

Liability for contingent consideration

     (24 )
  

 

 

 

Cash paid

   $ 4,500   
  

 

 

 

 

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The Company’s pro forma results of operations for the year ended December 31, 2013 and 2014, assuming the Company had acquired the San Francisco, California-based collaboration software company on January 1, 2013, do not differ materially from those reported in the Company’s consolidated statement of operations for those years.

The stock purchase agreement included a contingent, retention-based bonus program provision requiring the Company to make additional payments to employees, including former stockholders now employed by the Company, on the second anniversary of the acquisition, contingent upon their continued employment and achievement of certain product integration goals. The range of the contingent, retention-based bonus payments that the Company could pay is between $0 to $1.5 million. The Company has concluded that the arrangement is a compensation arrangement and is accruing the maximum payout ratably over the performance period, as it believes it is probable that the criteria will be met. The contingent bonus program also includes payments to non-employee stockholders for an amount between $0 and $30,000, which the Company has concluded is contingent consideration and is part of the purchase price. This contingent liability was recorded at its fair value of $24,000 at the acquisition date. The Company continues to re-measure the fair value of the contingent consideration at each subsequent reporting period and recognizes any adjustments to fair value as part of earnings.

The goodwill recorded in connection with this transaction is primarily related to the expected synergies to be achieved related to the Company’s ability to leverage its join.me product, customer base, sales force and join.me business plan with the collaboration software provider’s product, technical expertise and customer base. All goodwill and intangible assets acquired are not deductible for income tax purposes.

The Company recorded a long-term deferred tax asset of approximately $402,000 related to net operating losses that were acquired as a part of the acquisition, which is included in the accompanying table above as Other assets. The Company also recorded a long-term deferred tax liability of approximately $430,000 related to the amortization of intangible assets which cannot be deducted for tax purposes and is included in the accompanying table above as Other liabilities.

For the year ended December 31, 2014, the Company incurred approximately $356,000 of acquisition-related costs for the three acquisitions that closed in 2014 and these costs are included in general and administrative expense.

 

5. Goodwill and Intangible Assets

The changes in the carrying amounts of goodwill for the years ended December 31, 2013 and 2014 are due to the addition of goodwill resulting from the acquisitions of Ionia, Meldium and the San Francisco-based collaboration software provider (See Note 4 to the Consolidated Financial Statements).

Changes in goodwill for the years ended December 31, 2013 and 2014 are as follows (in thousands):

 

Balance, December 31, 2012

  $ 18,883   

Foreign currency translation adjustments

    (171 )
 

 

 

 

Balance, December 31, 2013

  $ 18,712   

Goodwill related to the acquisition of Ionia

    6,295   

Goodwill related to the acquisition of Meldium

    9,437   

Goodwill related to the acquisition of the San Francisco-based collaboration software provider

    3,484   
 

 

 

 

Balance, December 31, 2014

  $ 37,928   
 

 

 

 

 

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Intangible assets consist of the following (in thousands):

 

           December 31, 2013     December 31, 2014  
     Estimated
Useful
Life
    Gross
Carrying
Amount
    Accumulated
Amortization
    Net
Carrying
Amount
    Gross
Carrying
Amount
    Accumulated
Amortization
    Net
Carrying
Amount
 

Identifiable intangible assets:

              

Trade names and trademarks

     1-5 years      $ 666      $ 666      $      $ 806      $ 682      $ 124   

Customer relationships

     5-8 years        3,789        1,901        1,888        5,229        2,546        2,683   

Customer backlog

     4 months                             120        120          

Domain names

     5 years        894        341        553        907        507        400   

Software

     4 years        299        299               299        299          

Completed technology

     3-8 years        13,963        1,835        12,128        16,903        3,981        12,922   

Technology and know-how

     3 years        3,176        2,597        579        3,176        3,176          

Documented know-how

     4 years                             280        57        223   

Non-Compete agreements

     5 years        162        34        128        162        71        91   

Internally developed software

     3 years        2,485        875        1,610        4,591        2,051        2,540   
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 
     $ 25,434      $ 8,548      $ 16,886      $ 32,473      $ 13,490      $ 18,983   
    

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

As a result of the acquisition of Ionia, the Company capitalized $120,000 of customer backlog, $280,000 of documented know-how, $10,000 of trade name and trademark, and $1.3 million of customer relationships as intangible assets. As a result of the acquisition of Meldium, the Company capitalized $1.6 million of completed technology, $30,000 of trade name and trademark, and $100,000 of customer relationships. As a result of the acquisition of the San Francisco-based collaboration software provider, the Company capitalized $960,000 of completed technology and $100,000 of trade name and trademark. Changes in the gross carrying amount of domain names are due to foreign currency translation adjustments. The Company is amortizing the intangible assets based upon the pattern in which their economic benefit will be realized, or if this pattern cannot be reliably determined, using the straight-line method over their estimated useful lives. The intangible assets have estimated useful lives which range from four months to eight years.

On November 6, 2013, the Company purchased a software asset for $11.5 million which is classified as technology. During 2014, the Company incurred an additional $500,000 to develop this technology. The technology will be incorporated into certain of the Company’s products, and is being amortized straight-line over its estimated useful life of 5 years.

The Company capitalized costs related to internally developed computer software to be sold as a service incurred during the application development stage of $1.2 million and $2.1 million during 2013 and 2014, respectively, and is amortizing these costs over the expected lives of the related services. The Company paid $358,000 and $22,000 during 2013 and 2014, respectively, to acquire domain names.

 

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The Company is amortizing the intangible assets over the estimated useful lives noted above. Amortization expense for intangible assets was $2.1 million, $2.5 million and $4.9 million for the years ended December 31, 2012, 2013 and 2014, respectively. Amortization relating to software, technology and know-how, documented know-how, and internally developed software is recorded within cost of revenues and the amortization of tradename and trademark, customer base, customer backlog, domain names, and non-compete agreements is recorded within operating expenses. Future estimated amortization expense for intangible assets is as follows at December 31, 2014 (in thousands):

 

Amortization Expense (Years Ending December 31)

   Amount  

2015

   $ 5,037   

2016

     4,609   

2017

     4,270   

2018

     3,435   

2019

     1,096   

Thereafter

     536   
  

 

 

 

Total

   $ 18,983   
  

 

 

 

 

6. Property and Equipment

Property and equipment consisted of the following (in thousands):

 

     December 31,  
     2013      2014  

Computer equipment and software

   $ 22,276       $ 24,968   

Office equipment

     3,235         3,624   

Furniture & fixtures

     3,083         4,075   

Construction in progress

     456         684   

Leasehold improvements

     2,967         3,752   
  

 

 

    

 

 

 

Total property and equipment

     32,017         37,103   

Less accumulated depreciation and amortization

     (18,819      (23,627
  

 

 

    

 

 

 

Property and equipment, net

   $ 13,198       $ 13,476   
  

 

 

    

 

 

 

Depreciation expense for property and equipment was $4.0 million, $5.2 million and $6.2 million for the years ended December 31, 2012, 2013 and 2014.

 

7. Accrued Liabilities

Accrued liabilities consisted of the following (in thousands):

 

     December 31,
2013
     December 31,
2014
 

Marketing programs

   $ 4,631       $ 7,626   

Payroll and payroll related

     9,719         14,873   

Professional fees

     1,064         1,961   

Other accrued liabilities

     4,696         5,022   
  

 

 

    

 

 

 

Total accrued liabilities

   $ 20,110       $ 29,482   
  

 

 

    

 

 

 

 

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8. Income Taxes

The domestic and foreign components of income before provision for income taxes are as follows (in thousands):

 

     Years Ended December 31,  
     2012      2013      2014  

Domestic

   $ 7,789       $ 10,389       $ (4,462 )

Foreign

     (1,532 )      (11,857      13,856   
  

 

 

    

 

 

    

 

 

 

Total income (loss) before provision for income taxes

   $ 6,257       $ (1,468    $ 9,394   
  

 

 

    

 

 

    

 

 

 

The provision for income taxes is as follows (in thousands):

 

     Years Ended December 31,  
     2012      2013      2014  

Current

        

Federal

   $ 8,324       $ 5,480       $ 2,804   

State

     1,181         1,346         1,184   

Foreign

     126         952         1,052   
  

 

 

    

 

 

    

 

 

 

Total

     9,631         7,778         5,040   
  

 

 

    

 

 

    

 

 

 

Deferred

        

Federal

     (4,926 )      (1,379      (3,069

State

     44         (177      (748

Foreign

     (2,058      (8      216   
  

 

 

    

 

 

    

 

 

 

Total

     (6,940 )      (1,564      (3,601
  

 

 

    

 

 

    

 

 

 

Total provision for income taxes

   $ 2,691       $ 6,214       $ 1,439   
  

 

 

    

 

 

    

 

 

 

A reconciliation of the Company’s effective tax rate to the statutory federal income tax rate is as follows:

 

     For the Years Ended December 31,  
         2012             2013             2014      

Statutory tax rate

     35.0 %     35.0 %     35.0 %

Change in valuation allowance

     (10.8 )              

Impact of permanent differences

     15.6        (82.3 )     16.2   

Foreign tax rate differential

     (11.5 )     (346.9 )     (39.1 )

Research and development credits

            23.1        (2.6 )

State taxes, net of federal benefit

     13.8        (51.9 )     2.9   

Impact of uncertain tax positions

     0.8        (3.6 )     3.8   

Other

     0.1        3.4        (0.8 )
  

 

 

   

 

 

   

 

 

 

Effective tax rate

     43.0 %     (423.2 )%     15.4 %
  

 

 

   

 

 

   

 

 

 

For the year ended December 31, 2012, the Company recorded a tax provision for income taxes of $2.7 million on profit before income taxes of $6.3 million. The Company recorded a provision as a result of taxable income generated in the United States. The Company’s effective tax rate for the year ended December 31, 2012 was impacted by permanent differences related to certain non-deductible stock based compensation and the release of a valuation allowance related to our Xively subsidiary.

For the year ended December 31, 2013, the Company recorded a tax provision for income taxes of $6.2 million on a loss before income taxes of $1.5 million. The Company recorded a provision as a result of the taxable income generated in the United States, while certain foreign jurisdictions incurred losses before income taxes without related tax benefits. The Company’s effective tax rate for the year ended December 31, 2013 was impacted by these foreign losses and by permanent differences related to certain non-deductible and stock based compensation.

 

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For the year ended December 31, 2014, the Company recorded a tax provision for income taxes of $1.4 million on profit before income taxes of $9.4 million. The Company recorded a provision as a result of taxable income generated in the United States as well as in certain foreign jurisdictions. The Company’s effective tax rate for the year ended December 31, 2014 is lower than the U.S. federal statutory rate of 35% due to profits earned in certain foreign jurisdictions, primarily by our Irish subsidiaries, which are subject to significantly lower tax rates than the U.S. federal statutory rate.

The Company has deferred tax assets related to temporary differences and operating loss carryforwards as follows (in thousands):

 

     December 31,  
     2013      2014  

Deferred tax assets:

     

Net operating loss carryforwards

   $ 2,375       $ 2,783   

Deferred revenue

     627         775   

Amortization

     1,211         1,806   

Research and development credit carryforwards

     404         12   

Bad debt reserves

     56         79   

Stock compensation associated with non-qualified awards

     10,423         11,584   

Accrued Bonus

     1,530         3,579   

Depreciation

     326         171   

Other

     839         1,016   
  

 

 

    

 

 

 

Total deferred tax assets

     17,791         21,805   

Deferred tax asset valuation allowance

     (2,836 )      (2,203 )
  

 

 

    

 

 

 

Net deferred tax assets

     14,955         19,602   
  

 

 

    

 

 

 

Deferred tax liabilities:

     

Depreciation

     (1,212 )      (1,234 )

Goodwill amortization

     (1,236 )      (3,640 )

Other

     (14      (45 )
  

 

 

    

 

 

 

Total deferred tax liabilities

     (2,462 )      (4,919 )
  

 

 

    

 

 

 

Total

   $ 12,493       $ 14,683   
  

 

 

    

 

 

 

At December 31, 2013 and 2014, deferred tax liabilities of approximately $15,000 and $1,000 respectively, are included in accrued liabilities, and approximately $15,000 and $3,000 respectively, are included in long term liabilities.

Deferred tax assets, related valuation allowances, current tax liabilities, and deferred tax liabilities are determined separately by tax jurisdiction. In making these determinations, we estimate deferred tax assets, current tax liabilities, and deferred tax liabilities, and we assess temporary differences resulting from differing treatment of items for tax and accounting purposes. During 2012, the Company reassessed the need for a valuation allowance against its deferred tax assets relating to its Xively subsidiary and concluded that it was more likely than not that it would be able to realize its deferred tax assets as a result of forecasted future earnings. Accordingly, the Company reversed the valuation allowance related to its Xively deferred tax assets of approximately $677,000. As of December 31, 2014, the Company maintained a full valuation allowance against the deferred tax assets of its Hungarian subsidiary. This entity has historical losses and the Company concluded it was not more likely than not that these deferred tax assets are realizable. The valuation allowance decreased by approximately $633,000 primarily as a result of the expiration of research and development tax credits.

As of December 31, 2014, the Company had federal, state, and foreign net operating loss carryforwards of approximately $1,559,000, $1,551,000 and $21,480,000, respectively. The Company’s federal and state net operating loss carryforwards are subject to limitation under Section 382 of the Internal Revenue Code. As of December 31, 2014, all federal and state net operating loss carryforwards are expected to be utilized before

 

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expiration. The Company’s foreign net operating loss carryforwards are not subject to expiration. The Company recognized a full valuation allowance against its Hungarian net operating loss carryfowards.

As of December 31, 2014, the Company had federal, state and foreign research and development credit carryforwards of approximately $0, $12,000 and $0, respectively, which are available to offset future state taxes.

The Company generally considers all earnings generated outside of the U.S. to be indefinitely reinvested offshore. Therefore, the Company does not accrue U.S. tax for the repatriation of the foreign earnings it considers to be indefinitely reinvested outside the U.S. As of December 31, 2014, the Company has not provided for federal income tax on approximately $14,000,000 of accumulated undistributed earnings of its foreign subsidiaries. It is not practicable to estimate the amount of additional tax that might be payable on the undistributed foreign earnings.

The Company files income tax returns in the U.S. federal jurisdiction and various state and foreign jurisdictions. The statute of limitations in the Company’s various tax jurisdictions remain open for various periods between 2004 and the present.

As of December 31, 2013 and 2014, the Company has provided a liability of $304,000 and $652,000 respectively for uncertain tax positions. These uncertain tax positions would impact the Company’s effective tax rate if recognized.

The Company has provided liabilities for uncertain tax provisions as follows (in thousands):

 

     Years Ended
December 31,
 
     2013      2014  

Beginning balance

   $ 251       $ 304   

Gross decreases — tax positions in prior period

             (56 )

Gross increases — tax positions in current period

     53         404   
  

 

 

    

 

 

 

Ending balance

   $ 304       $ 652   
  

 

 

    

 

 

 

The Company’s policy is to record estimated interest and penalties related to the underpayment of income taxes or unrecognized tax benefits as a component of its income tax provision. The Company recognized approximately $4,000 and $15,000 of interest expense during the years ended December 31, 2013 and 2014, respectively.

 

9. Common Stock and Equity

Authorized Shares — On June 9, 2009, the Company’s Board of Directors approved a Restated Certificate of Incorporation to be effective upon the closing of the Company’s IPO. This Restated Certificate of Incorporation, among other things, increased the Company’s authorized common shares to 75,000,000 and authorized 5,000,000 shares of undesignated preferred stock.

Common Stock Reserved — As of December 31, 2013 and 2014, the Company has reserved the following number of shares of common stock for the exercise of stock options and restricted stock units (in thousands):

 

     Number of Shares as of  
     December 31,
2013
     December 31,
2014
 

Common stock options and restricted stock units

     5,231         4,906   
  

 

 

    

 

 

 

Total reserved

     5,231         4,906   
  

 

 

    

 

 

 

In February 2013, the Company’s board of directors approved a $25 million share repurchase program. On August 13, 2013, the board of directors approved a new $50 million share repurchase program, which replaced the previous $25 million share repurchase program. On October 20, 2014, the Board of Directors approved a new

 

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$75 million share repurchase program. This new share repurchase program is in addition to the Company’s existing $50 million share repurchase program. Share repurchases are made from time-to-time in the open market, in privately negotiated transactions or otherwise, in accordance with applicable securities laws and regulations. The timing and amount of any share repurchases are determined by the Company’s management based on its evaluation of market conditions, the trading price of the stock, regulatory requirements and other factors. The share repurchase program may be suspended, modified or discontinued at any time at the Company’s discretion without prior notice.

During the year ended December 31, 2013 and 2014, the Company repurchased 1,268,643 and 843,574 shares of its common stock at an average price of $24.06 and $43.27 per share for a total cost of approximately $30.5 million and $36.5 million, respectively. At December 31, 2014, approximately $74.4 million remained available under the Company’s current share repurchase program.

 

10. Stock Incentive Plan

The Company’s 2009 Stock Incentive Plan (“2009 Plan”) is administered by the Board of Directors and Compensation Committee, which have the authority to designate participants and determine the number and type of awards to be granted and any other terms or conditions of the awards. Options generally vest over a four-year period and expire ten years from the date of grant. Restricted stock units with service-based vesting conditions generally vest over a three-year period while restricted stock units with market-based vesting conditions generally vest over two or three-year periods. Certain stock-based awards provide for accelerated vesting if there is a change in control. On May 22, 2014, the Company’s stockholders approved an amendment to the 2009 Plan that increased the shares available to grant under the plan by 1,200,000 shares. As of December 31, 2014, there were 2,220,348 shares available for grant under the 2009 Plan.

The Company generally issues previously unissued shares of common stock for the exercise of stock options and restricted stock units. The Company received $2.7 million, $3.8 million and $17.6 million in cash from stock option exercises during the years ended December 31, 2012, 2013 and 2014, respectively.

The Company uses the Black-Scholes option-pricing model to estimate the grant date fair value of stock options. The Company estimates the expected volatility of its common stock at the date of grant based on the historical volatility of comparable public companies over the option’s expected term as well as its own stock price volatility since the Company’s IPO. The Company estimates expected term based on historical exercise activity and giving consideration to the contractual term of the options, vesting schedules, employee turnover, and expectation of employee exercise behavior. The assumed dividend yield is based upon the Company’s expectation of not paying dividends in the foreseeable future. The risk-free rate for periods within the estimated life of the stock option is based on the U.S. Treasury yield curve in effect at the time of grant. Historical employee turnover data is used to estimate pre-vesting stock option forfeiture rates. The compensation expense is amortized on a straight-line basis over the requisite service period of the stock award, which is generally four years for options.

The Company used the following assumptions to apply the Black-Scholes option-pricing model:

 

     Years Ended December 31,
     2012    2013    2014

Expected dividend yield

   0.00%    0.00%    0.00%

Risk-free interest rate

   0.64% - 0.87%    0.87 - 1.36%    1.48%

Expected term (in years)

   5.56 - 6.25    6.25    6.25

Volatility

   55% - 60%    55%    55%

 

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The following table summarizes stock option activity (shares and intrinsic value in thousands):

 

     Number
of Options
    Weighted
Average
Exercise
Price
     Weighted
Average
Remaining
Contractual
Term
(Years)
     Aggregate
Intrinsic
Value
 

Outstanding, January 1, 2014

     2,389      $ 26.85         6.4      
       

 

 

    

Granted

     35        41.03         

Exercised

     (859     20.48          $ 20,566   
          

 

 

 

Forfeited

     (158     36.40         
  

 

 

   

 

 

       

Outstanding, December 31, 2014

     1,407      $ 30.02         6.2       $ 27,186   
  

 

 

   

 

 

    

 

 

    

 

 

 

Exercisable at December 31, 2014

     957      $ 28.24         5.7       $ 20,190   
  

 

 

   

 

 

    

 

 

    

 

 

 

Vested or expected to vest at December 31, 2014

     1,389      $ 30.05         6.2       $ 26,805   
  

 

 

   

 

 

    

 

 

    

 

 

 

The aggregate intrinsic value was calculated based on the positive differences between the estimated fair value of the Company’s common stock on December 31, 2014 of $49.34 per share or at time of exercise, and the exercise price of the options.

The weighted average grant date fair value of stock options issued was $18.57, $11.60 and $21.78 per share for the years ended December 31, 2012, 2013 and 2014, respectively.

During the year ended December 31, 2014, the Company granted 633,696 restricted stock units, containing time-based vesting conditions. Restricted stock units with time-based vesting conditions are valued on the grant date using the grant date closing price of the underlying shares. The Company recognizes the expense on a straight-line basis over the requisite service period of the restricted stock unit, which is generally three years.

In August 2013 and May 2014, the Company granted 74,000 and 71,000 restricted stock units with market-based vesting conditions, respectively, which were tied to the Company’s achievement of a relative total shareholder return target measured over an applicable performance period which ranges from two to three years (the “TSR Units”). The number of shares underlying these TSR Units that will vest upon the conclusion of the applicable performance periods can range from 0% of the shares awarded to 200% of the shares awarded, or up to 148,000 shares and 142,000 shares for the August 2013 grant and May 2014 grant, respectively. Vesting of such shares is also contingent upon the continued employment of the participant throughout the vesting period. All TSR Units granted by the Company are valued using a Monte Carlo simulation model. The number of awards expected to be earned is factored into the grant date Monte Carlo valuation for the TSR Unit. Compensation cost is recognized regardless of the actual number of awards that are earned based on the market condition. Expected volatility is based on the Company’s historical volatility. The risk-free interest rate is based upon U.S. Treasury securities with a term similar to the vesting term of the TSR Units.

The assumptions used in the Monte Carlo simulation model include (but are not limited to) the following:

 

     August 2013 Grant     May 2014 Grant  

Risk-free interest rate

     0.62     0.78

Volatility

     54     54

Compensation cost is recognized on a straight-line basis over the requisite service period. At December 31, 2014, all of the TSR Units granted in August 2013 and May 2014 remain outstanding.

 

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The following table summarizes all restricted stock unit activity, including performance-based restricted stock units (shares in thousands):

 

     Number of shares
Underlying Restricted
Stock Units
     Weighted Average
Grant Date
Fair Value
 

Unvested as of January 1, 2014

     1,192       $ 28.47   

Restricted stock units granted

     705         44.63   

Restricted stock units vested

     (430      27.63   

Restricted stock units forfeited

     (188 )      30.10   
  

 

 

    

 

 

 

Unvested as of December 31, 2014

     1,279       $ 37.42   
  

 

 

    

 

 

 

The Company recognized stock-based compensation expense within the accompanying consolidated statements of operations as summarized in the following table (in thousands):

 

     Years Ended December 31,  
     2012      2013      2014  

Cost of revenue

   $ 484       $ 706       $ 1,107   

Research and development

     2,826         3,761         3,653   

Sales and marketing

     4,962         7,242         9,033   

General and administrative

     6,520         8,005         10,976   
  

 

 

    

 

 

    

 

 

 
   $ 14,792       $ 19,714       $ 24,769   
  

 

 

    

 

 

    

 

 

 

As of December 31, 2014, there was approximately $37.3 million of total unrecognized share-based compensation cost, net of estimated forfeitures, related to unvested stock awards which are expected to be recognized over a weighted average period of 1.9 years. The total unrecognized share-based compensation cost will be adjusted for future changes in estimated forfeitures.

 

11. Commitments and Contingencies

Operating Leases — The Company has operating lease agreements for offices in the United States, Hungary, Australia, the United Kingdom, Ireland and India that expire through 2028.

In December 2014, the Company entered into a lease for new office space in Boston, Massachusetts. The landlord is obligated to rehabilitate the existing building and the Company expects that the lease term will begin in November 2015 and extend through April 2028. The aggregate amount of minimum lease payments to be made over the term of the lease is approximately $47.0 million. Pursuant to the terms of the lease, the landlord is responsible for making certain improvements to the leased space up to an agreed upon cost to the landlord. Any excess costs for these improvements will be billed by the landlord to the Company as additional rent. The Company estimates these excess costs to be approximately $7.0 million. The lease required a security deposit of approximately $3.3 million in the form of an irrevocable, unsecured standby letter of credit. The lease includes an option to extend the original term of the lease for two successive five year periods.

In December 2014, the Company entered into a lease for new office space in San Francisco, California. The term of the new office space begins in February 2015 and extends through December 2019. The aggregate amount of minimum lease payments to be made over the term of the lease is approximately $2.4 million. The lease required a security deposit of approximately $41,000. The security deposit is classified as a long-term deposit.

In October 2014, the Company entered into a lease for new office space in Dublin, Ireland. The term of the new office space began in October 2014 and extends through September 2024. The aggregate amount of minimum lease payments to be made over the term of the lease is approximately $5.8 million (EUR 4.8 million).

In April 2014, the Company amended its current lease for its Budapest, Hungary office space to provide for an expansion of leased space and to extend the term of the lease. The term of the amended lease began in July

 

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2014 and will extend through June 2019. The aggregate amount of minimum lease payments to be made over the term of the lease increased to approximately $6.9 million (EUR 5.7 million). The amended lease agreement required a bank guarantee of approximately $430,000 (EUR 354,000). The bank guarantee is classified as restricted cash.

Rent expense under all leases was approximately $3.2 million, $6.0 million and $7.1 million for the years ended December 31, 2012, 2013 and 2014, respectively. The Company records rent expense on a straight-line basis for leases with scheduled escalation clauses or free rent periods.

The Company also enters into hosting services agreements with third-party data centers and internet service providers that are subject to annual renewal. Hosting fees incurred under these arrangements aggregated approximately $3.2 million, $4.7 million and $5.1 million for the years ended December 31, 2012, 2013 and 2014, respectively.

Future minimum lease payments under non-cancelable operating leases including one year commitments associated with the Company’s hosting services arrangements are approximately as follows at December 31, 2014 (in thousands):

 

Years Ending December 31

      

2015

   $ 10,347   

2016

     9,501   

2017

     10,090   

2018

     10,453   

2019

     9,837   

Thereafter

     53,252   
  

 

 

 

Total minimum lease payments

   $ 103,480   
  

 

 

 

Litigation — On September 8, 2010, 01 Communique Laboratory, Inc., or 01, filed a complaint that named the Company as a defendant in a lawsuit in the U.S. District Court for the Eastern District of Virginia (Civil Action No. 1:10cv1007) alleging that the Company infringed U.S. Patent No. 6,928,479, or the ‘479 Patent, which is owned by 01 and has claims directed to a particular application or system for providing a private communication portal from one computer to a second computer. The complaint sought damages in an unspecified amount and injunctive relief. The trial commenced on March 18, 2013 and on March 26, 2013, a jury in the Eastern District of Virginia found that the Company’s products do not infringe the ‘479 Patent as previously asserted by 01. 01 appealed the jury’s non-infringement verdict and on June 9, 2014, the jury’s non-infringement verdict was affirmed by the U.S. Court of Appeals for the Federal Circuit. On November 21, 2014, the U.S. District Court for the Eastern District of Virginia issued its final order, awarding costs to the Company, which 01 paid on December 3, 2014, formally concluding this matter.

On November 21, 2012, the Company filed suit against Pragmatus Telecom LLC, or Pragmatus, in the U.S. District Court for the District of Delaware (Civil Action No. 12-1507) seeking a declaratory judgment that the Company’s products do not infringe three patents allegedly owned by Pragmatus after certain of the Company’s customers received letters from Pragmatus claiming that their use of certain LogMeIn services infringed upon those patents. On March 29, 2013, the Company and Pragmatus entered into a License Agreement, which granted the Company a fully-paid license covering the patents at issue. The Company paid Pragmatus a one-time license fee in connection with the License Agreement in April 2013. As a result, the Company’s declaratory judgment action was dismissed by the court on May 3, 2013.

On August 26, 2014, Sensory Technologies, LLC, or Sensory, filed a complaint against the Company in the U.S. District Court for the Southern District of Indiana (Case No. 1:14-cv-1406). The complaint alleges, among other things, that the Company has infringed upon Sensory’s JOIN ® trademark, which is registered to Sensory under U.S. Trademark Registration No. 3622883. The complaint seeks damages in an unspecified amount and injunctive relief. The Company believes it has meritorious defenses to the claims and intends to defend the lawsuit vigorously. Given the inherent unpredictability of litigation and the fact that this litigation is still in its early stages, the Company is unable to predict the outcome of this litigation or reasonably estimate a possible loss or range of loss associated with this litigation at this time.

 

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On August 28, 2014, a putative class action complaint was filed against the Company in the U.S. District Court for the Eastern District of California (Case No. 1:14-cv-01355) by an individual on behalf of himself and on behalf of all other similarly situated individuals, or collectively, the Plaintiffs. After the Company filed a motion to dismiss the complaint on January 30, 2015, the Plaintiffs filed an amended complaint on February 17, 2015. The amended complaint includes claims made under California’s False Advertising Act and Unfair Competition Law and relates to the Company’s sale of its Ignition for iOS application, or the App, and the Plaintiffs’ continued use of the App. The Plaintiffs’ complaint seeks restitution, damages in an unspecified amount, attorney’s fees and costs, and unspecified equitable and injunctive relief. The Company believes it has meritorious defenses to the claims and intends to defend the lawsuit vigorously. Given the inherent unpredictability of litigation and the fact that this litigation is still in its early stages, the Company is unable to predict the outcome of this litigation or reasonably estimate a possible loss or range of loss associated with this litigation at this time.

The Company is from time to time subject to various other legal proceedings and claims, either asserted or unasserted, which arise in the ordinary course of business. The Company routinely assesses its current litigation and/or threatened litigation as to the probability of ultimately incurring a liability, and records its best estimate of the ultimate loss in situations where the Company assesses the likelihood of loss as probable. While the outcome of these other claims cannot be predicted with certainty, management does not believe that the outcome of any of these other legal matters will have a material adverse effect on the Company’s consolidated financial statements.

 

12. 401(k) Plan

On January 1, 2007, the Company established a defined contribution savings plan under Section 401(k) of the Internal Revenue Code. The plan is available to all employees upon employment and allows participants to defer a portion of their annual compensation on a pre-tax basis. The Company may contribute to the plan at the discretion of the Board of Directors. The Company has not made any contributions to the plan through December 31, 2014.

 

13. Subsequent Event

On February 18, 2015, the Company entered into a multi-currency credit agreement with a syndicated bank group for which JPMorgan Chase Bank, N.A. acts as administrative agent. The credit agreement provides for a secured revolving credit facility of up to $100 million, and may be increased by an additional $50 million subject to further commitment from the lenders. The credit facility matures on February 18, 2020 and includes certain financial covenants with which the Company must comply. The Company and its subsidiaries expect to use the credit facility for general corporate purposes, including the potential acquisition of complementary products or businesses, share repurchases, as well as for working capital.

 

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14. Quarterly Information (Unaudited)

 

    For the Three Months Ended,  
    March 31,
2013
    June 30,
2013
    September 30,
2013
    December 31,
2013
    March 31,
2014
    June 30,
2014
    September 30,
2014
    December 31,
2014
 
    (in thousands, except for per share data)  

Statement of Operations Data:

               

Revenue

  $ 37,437      $ 40,670      $ 42,970      $ 45,181      $ 49,020      $ 54,975      $ 58,062      $ 59,899   

Gross profit

    33,028        35,894        38,285        40,235        42,900        47,578        50,728        52,018   

(Loss) income from operations

    (6,630 )     (123 )     2,191        2,636        1,598        782        2,771        3,536   

Net (loss) income

    (5,807 )     (1,360 )     (56 )     (459 )     1,004        1,330        2,308        3,313   

Net (loss) income per share-basic

    (0.24 )     (0.06 )     0.00        (0.02 )     0.04        0.05        0.09        0.14   

Net (loss) income per share-diluted

    (0.24 )     (0.06 )     0.00        (0.02 )     0.04        0.05        0.09        0.14   

 

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ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

None.

 

ITEM 9A. CONTROLS AND PROCEDURES

Disclosure Controls and Procedures

Our management, with the participation of our chief executive officer and chief financial officer, evaluated the effectiveness of our disclosure controls and procedures as of December 31, 2014. The term “disclosure controls and procedures,” as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act of 1934, as amended, means controls and other procedures of a company that are designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the SEC’s rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed by a company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the company’s management, including its principal executive and principal financial officers, as appropriate to allow timely decisions regarding required disclosure. Management recognizes that any controls and procedures, no matter how well designed and operated, can provide only reasonable assurance of achieving their objectives and management necessarily applies its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Based on the evaluation of our disclosure controls and procedures as of December 31, 2014, our chief executive officer and chief financial officer concluded that, as of such date, our disclosure controls and procedures were effective at the reasonable assurance level.

Management’s Annual Report on Internal Control Over Financial Reporting

Our management is responsible for establishing and maintaining adequate internal control over financial reporting. Internal control over financial reporting is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act as a process designed by, or under the supervision of, our principal executive and principal financial officer and effected by our board of directors, management and other personnel, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles and includes those policies and procedures that:

 

   

Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of our assets;

 

   

Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that our receipts and expenditures are being made only in accordance with authorizations of our management and directors; and

 

   

Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of our assets that could have a material effect on our financial statements.

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

Under the supervision and with the participation of management, including our principal executive and financial officers, we assessed our internal control over financial reporting as of December 31, 2014, based on criteria for effective internal control over financial reporting established in Internal Control — Integrated Framework (2013)  issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).

Based on this assessment, our management concluded that we maintained effective internal control over financial reporting as of December 31, 2014 based on the specified criteria.

 

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The Company’s Independent Registered Public Accounting Firm has issued an attestation report on the Company’s internal control over financial reporting as of December 31, 2014.

Changes in Internal Control Over Financial Reporting

No change in our internal control over financial reporting (as defined in Rule 13a-15(f) and 15d-(f) under the Exchange Act) occurred during the quarter ended December 31, 2014 that has materially affected, or is reasonably likely to materially affect, our internal controls over financial reporting.

 

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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Stockholders and Board of Directors of

LogMeIn, Inc.

Boston, Massachusetts

We have audited the internal control over financial reporting of LogMeIn, Inc. and subsidiaries (the “Company”) as of December 31, 2014, based on criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission. The Company’s management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Annual Report on Internal Control over Financial Reporting . Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

A company’s internal control over financial reporting is a process designed by, or under the supervision of, the company’s principal executive and principal financial officers, or persons performing similar functions, and effected by the company’s board of directors, management, and other personnel to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.

Because of the inherent limitations of internal control over financial reporting, including the possibility of collusion or improper management override of controls, material misstatements due to error or fraud may not be prevented or detected on a timely basis. Also, projections of any evaluation of the effectiveness of the internal control over financial reporting to future periods are subject to the risk that the controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of December 31, 2014, based on the criteria established in Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.

We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated financial statements as of and for the year ended December 31, 2014 of the Company and our report dated February 20, 2015 expressed an unqualified opinion on those financial statements.

/s/ Deloitte & Touche LLP

Boston, Massachusetts

February 20, 2015

 

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ITEM 9B. OTHER INFORMATION

None.

PART III

 

ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

Information required by this item is incorporated by reference from the information in our proxy statement for the 2015 Annual Meeting of Stockholders, which we will file with the Securities and Exchange Commission within 120 days of December 31, 2014.

We have adopted a code of ethics, called the Code of Business Conduct and Ethics, which applies to our officers, including our principal executive, financial and accounting officers, and our directors and employees. We have posted the Code of Business Conduct and Ethics on our website at https://secure.logmein.com/ under the “Investors” section. We intend to make all required disclosures concerning any amendments to, or waivers from, the Code of Business Conduct and Ethics on our website.

 

ITEM 11. EXECUTIVE COMPENSATION

Information required by this item is incorporated by reference from the information in our proxy statement for the 2015 Annual Meeting of Stockholders, which we will file with the Securities and Exchange Commission within 120 days of December 31, 2014.

 

ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

Information required by this item is incorporated by reference from the information in our proxy statement for the 2015 Annual Meeting of Stockholders, which we will file with the Securities and Exchange Commission within 120 days of December 31, 2014.

 

ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

Information required by this item is incorporated by reference from the information in our proxy statement for the 2015 Annual Meeting of Stockholders, which we will file with the Securities and Exchange Commission within 120 days of December 31, 2014.

 

ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES

Information required by this item is incorporated by reference from the information in our proxy statement for the 2015 Annual Meeting of Stockholders, which we will file with the Securities and Exchange Commission within 120 days of December 31, 2014.

PART IV

 

ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

(a) (1) Financial Statements

See Index to the Consolidated Financial Statements on page 47 of this Annual Report on Form 10-K, which is incorporated into this item by reference.

(a) (2)  Financial Statement Schedules

No financial statement schedules have been submitted because they are not required or are not applicable or because the information required is included in the consolidated financial statements or the notes thereto.

(a) (3) Exhibits

See Exhibit Index on page 82 of this Annual Report on Form 10-K, which is incorporated into this item by reference.

 

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) 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.

 

LOGMEIN, INC.

By:

 

/s/    Michael K. Simon

  Michael K. Simon
  Chief Executive Officer
  (Principal Executive Officer)

Date: February 20, 2015

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Signature

  

Title

 

Date

/s/    M ICHAEL K. S IMON

Michael K. Simon

  

Chief Executive Officer and Director

(Principal Executive Officer)

  February 20, 2015

/s/    E DWARD K. H ERDIECH

Edward K. Herdiech

  

Chief Financial Officer

(Principal Financial and Accounting Officer)

  February 20, 2015

/s/    S TEVEN J. B ENSON

Steven J. Benson

   Director   February 20, 2015

/s/    S TEVEN G. C HAMBERS

Steven G. Chambers

   Director   February 20, 2015

/s/    M ICHAEL J. C HRISTENSON

Michael J. Christenson

   Director   February 20, 2015

/s/    E DWIN J. G ILLIS

Edwin J. Gillis

   Director   February 20, 2015

/s/    G REGORY W. H UGHES

Gregory W. Hughes

   Director   February 20, 2015

/s/    M ARILYN M ATZ

Marilyn Matz

   Director   February 20, 2015

/s/    I RFAN S ALIM

Irfan Salim

   Director   February 20, 2015

 

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EXHIBIT INDEX

 

Exhibit
Number

 

Description

  3.1(1)   Restated Certificate of Incorporation of the Registrant
  3.2(2)   Second Amended and Restated Bylaws of the Registrant
  4.1(1)   Specimen Certificate evidencing shares of common stock
10.1(1)   2004 Equity Incentive Plan, as amended
10.2(1)   Form of Incentive Stock Option Agreement under the 2004 Equity Incentive Plan
10.3(1)   Form of Nonstatutory Stock Option Agreement under the 2004 Equity Incentive Plan
10.4(1)   2007 Stock Incentive Plan
10.5(1)   Form of Incentive Stock Option Agreement under the 2007 Stock Incentive Plan
10.6(1)   Form of Nonstatutory Stock Option Agreement under the 2007 Stock Incentive Plan
10.7(1)   Form of Restricted Stock Agreement under the 2007 Stock Incentive Plan
10.8(1)   Indemnification Agreement, dated as of July 23, 2008, between the Registrant and Steven Benson
10.9(1)   Indemnification Agreement, dated as of July 23, 2008, between the Registrant and Edwin Gillis
10.10(1)   Indemnification Agreement, dated as of July 23, 2008, between the Registrant and Irfan Salim
10.11(1)   Indemnification Agreement, dated as of July 23, 2008, between the Registrant and Michael Simon
10.12(3)   Indemnification Agreement, dated as of August 10, 2010, between the Registrant and Michael Christenson
10.13(3)   Indemnification Agreement, dated as of January19, 2011, between the Registrant and Greg Hughes
10.14(9)   Indemnification Agreement, dated as of August 26, 2014, between the Registrant and Steven G. Chambers
10.15(9)   Indemnification Agreement, dated as of August 27, 2014, between the Registrant and Marilyn Matz
10.16(3)   Form of Director Indemnification Agreement
10.17(4)   Lease Agreement, dated April 11, 2012, between Lincoln Summer Street Venture, LLC and the Registrant
10.18*   Lease Agreement, dated December 19, 2014, between DWF III Synergy, LLC and the Registrant
10.19(1)   Amended and Restated Letter Agreement, dated as of April 23, 2008, between the Registrant and Michael Simon
10.20(1)   Form of Management Incentive Stock Option Agreement under the 2009 Stock Incentive Plan
10.21(1)   Form of Management Nonstatutory Stock Option Agreement under the 2009 Stock Incentive Plan
10.22(1)   Form of Director Nonstatutory Stock Option Agreement under the 2009 Stock Incentive Plan
10.23(1)   Form of Employment Offer Letter
10.24(8)   Amended and Restated 2009 Stock Incentive Plan
10.25(5)   Form of Restricted Stock Unit Agreement under the 2009 Stock Incentive Plan
10.26(6)   Form of Director Restricted Stock Unit Agreement under the 2009 Stock Incentive Plan
10.27(7)   Form of Restricted Stock Unit Agreement (Performance-based Vesting) under the 2009 Stock Incentive Plan

 

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Exhibit
Number

  

Description

  21.1*    Subsidiaries of the Registrant
  23.1*    Consent of Independent Registered Public Accounting Firm
  23.2*    Consent of Shields & Company, Inc.
  31.1*    Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
  31.2*    Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
  32.1*    Certification of the Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
  32.2*    Certification of the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
101    The following materials from LogMeIn, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2014, formatted in XBRL (Extensible Business Reporting Language): (i) the Consolidated Balance Sheets, (ii) the Consolidated Statements of Income, (iii) the Consolidated Statements of Cash Flows, and (iv) Notes to Consolidated Financial Statements

 

* Filed herewith.

 

(1) Incorporated by reference to the Registrant’s Registration Statement on Form S-1, as amended (Reg 333-148620)

 

(2) Incorporated by reference to the Registrant’s Current Report on Form 8-K dated March 15, 2013 (001-34391)

 

(3) Incorporated by reference to Registrant’s Form 10-K for the fiscal year ended December 31, 2010 (001-34391)

 

(4) Incorporated by reference to Registrant’s Form 10-Q for the quarter ended March 31, 2012 (001-34391)

 

(5) Incorporated by reference to Registrant’s Form 10-Q for the quarter ended June 30, 2012 (001-34391)

 

(6) Incorporated by reference to Registrant’s Current Report on Form 8-K dated June 24, 2013 (001-34391)

 

(7) Incorporated by reference to Registrant’s Current Report on Form 8-K dated August 20, 2013 (001-34391)

 

(8) Incorporated by reference to Registrant’s Current Report on Form 8-K dated May 23, 2014 (001-34391)

 

(9) Incorporated by reference to Registrant’s Form 10-Q for the quarter ended September 30, 2014 (001-34391)

 

83

Exhibit 10.18

FINAL

LOGMEIN, INC.

LEASE FOR 327-337 SUMMER STREET

BOSTON, MASSACHUSETTS


TABLE OF CONTENTS

 

         Page  

ARTICLE I

 

SUMMARY OF BASIC LEASE PROVISIONS

     1   

1.1

  INTRODUCTION      1   

1.2

  BASIC DATA      1   

1.3

  ENUMERATION OF EXHIBITS      3   

ARTICLE II

 

DESCRIPTION OF PREMISES AND APPURTENANT RIGHTS

     3   

2.1

  LOCATION OF PREMISES      3   

2.2

  APPURTENANT RIGHTS AND RESERVATIONS      4   

ARTICLE III

 

TERM OF LEASE; BUILDING; CONDITION OF PREMISES

     4   

3.1

  TERM OF LEASE; DELIVERY OF POSSESSION      4   

3.2

  CONDITION OF PREMISES      5   

3.3

  EXTENSION OPTION      5   

ARTICLE IV

 

RENT

     7   

4.1

  RENT PAYMENTS      7   

4.2

  REAL ESTATE TAXES      8   

4.3

  OPERATING COSTS      11   

ARTICLE V

 

USE OF PREMISES

     17   

5.1

  PERMITTED USE; LANDLORD COVENANT REGARDING CERTAIN USES      17   

5.2

  COMPLIANCE WITH LAWS      18   

5.3

  INSURANCE RISKS      20   

5.4

  ELECTRICAL EQUIPMENT      20   

5.5

  TENANT’S OPERATIONAL COVENANTS      21   

5.6

  SIGNS      21   

5.7

  HAZARDOUS MATERIALS      22   

ARTICLE VI

 

INSTALLATIONS, ALTERATIONS, AND ADDITIONS

     23   

ARTICLE VII

 

ASSIGNMENT AND SUBLETTING

     28   

7.1

  PROHIBITION      28   

7.2

  FURTHER ASSIGNMENT AND SUBLETTING      29   

7.3

  NOTICE OF ASSIGNMENT OR SUBLEASE; TERMINATION RIGHTS      30   

7.4

  CONSENT TO ASSIGNMENT OR SUBLEASE      31   

7.5

  SUBORDINATION      32   

 

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         Page  

7.6

  PROFITS      33   

7.7

  PERMITTED TRANSFERS      34   

7.8

  NO WAIVER      35   

7.9

  INSURANCE AND WAIVER OF SUBROGATION      35   

7.10

  SECURITY AGREEMENTS      35   

7.11

  DISPUTES      35   

ARTICLE VIII

 

REPAIRS AND MAINTENANCE

     35   

8.1

  TENANT OBLIGATIONS      35   

8.2

  LANDLORD OBLIGATIONS      37   

8.3

  CAUSES BEYOND CONTROL OF THE PARTIES      37   

ARTICLE IX

 

SYSTEMS AND SERVICES TO BE FURNISHED BY LANDLORD; UTILITIES

     38   

9.1

  HEATING, VENTILATION AND AIR CONDITIONING      38   

9.2

  ELECTRICITY      38   

9.3

  INTENTIONALLY OMITTED      38   

9.4

  WATER      38   

9.5

  OTHER UTILITIES AND SERVICES      39   

9.6

  EMERGENCY POWER      39   

9.7

  OTHER SERVICES      40   

9.8

  INTERRUPTION      40   

ARTICLE X

 

INDEMNITY

     41   

10.1

  INDEMNITY      41   

10.2

  TENANT’S RISK      42   

10.3

  INJURY CAUSED BY THIRD PARTIES      43   

10.4

  SECURITY      43   

ARTICLE XI

 

INSURANCE

     43   

11.1

  PUBLIC LIABILITY INSURANCE      43   

11.2

  HAZARD INSURANCE      44   

11.3

  CONSTRUCTION PERIOD INSURANCE      44   

11.4

  RENTAL ABATEMENT INSURANCE      45   

11.5

  WAIVER OF SUBROGATION      46   

 

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         Page  

11.6

  LANDLORD’S INSURANCE      46   

ARTICLE XII

 

CASUALTY

     47   

12.1

  DEFINITION OF “SUBSTANTIAL DAMAGE” AND “PARTIAL DAMAGE”      47   

12.2

  PARTIAL DAMAGE      47   

12.3

  SUBSTANTIAL DAMAGE TO THE BUILDING      47   

12.4

  ABATEMENT OF RENT; TENANT’S RIGHT TO TERMINATE      47   

12.5

  MISCELLANEOUS      49   

ARTICLE XIII

 

EMINENT DOMAIN

     49   

13.1

  RIGHTS OF TERMINATION FOR TAKING      49   

13.2

  PAYMENT OF AWARD      50   

13.3

  ABATEMENT OF RENT      50   

13.4

  MISCELLANEOUS      51   

ARTICLE XIV

 

DEFAULT

     51   

14.1

  TENANT’S DEFAULT      51   

14.2

  LANDLORD’S DEFAULT      54   

ARTICLE XV

 

LANDLORD’S ACCESS TO PREMISES

     55   

15.1

  LANDLORD’S RIGHT OF ACCESS      55   

ARTICLE XVI

 

RIGHTS OF MORTGAGEES

     56   

16.1

  SUBORDINATION AND ATTORNMENT      56   

16.2

  NOTICE TO MORTGAGEE AND GROUND LESSOR      57   

16.3

  ASSIGNMENT OF RENTS      57   

ARTICLE XVII

 

MISCELLANEOUS PROVISIONS

     58   

17.1

  CAPTIONS      58   

17.2

  BIND AND INURE      58   

17.3

  NO WAIVER      58   

17.4

  NO ACCORD AND SATISFACTION      58   

17.5

  CUMULATIVE REMEDIES      59   

17.6

  PARTIAL INVALIDITY      59   

17.7

  LANDLORD’S RIGHT TO CURE      59   

17.8

  ESTOPPEL CERTIFICATES      59   

 

iii


TABLE OF CONTENTS

 

         Page  

17.9

  BROKERAGE      60   

17.10

  ENTIRE AGREEMENT      60   

17.11

  SURRENDER; HOLDOVER      60   

17.12

  COUNTERPARTS      61   

17.13

  CONSTRUCTION AND GRAMMATICAL USAGE      61   

17.14

  WHEN LEASE BECOMES BINDING      61   

17.15

  SECURITY DEPOSIT      62   

17.16

  TENANT’S FINANCIAL CONDITION      64   

17.17

  ROOFTOP AND CONDUIT RIGHTS      65   

17.18

  NOTICE OF LEASE      66   

17.19

  NO SURRENDER      66   

17.20

  COVENANT OF QUIET ENJOYMENT      66   

17.21

  NO PERSONAL LIABILITY      67   

17.22

  NOTICES      67   

17.23

  ANTI-TERRORISM REPRESENTATIONS      68   

17.24

  CONFIDENTIALITY      68   

17.25

  DUE AUTHORITY      68   

17.26

  COUNTERPART SIGNATURES      68   

17.27

  TENANT’S NAME      69   

17.28

  BOARD APPROVAL CONTINGENCY      69   

17.29

  REIMBURSEMENT OF OUT-OF-POCKET COSTS      69   

17.30

  MODIFICATIONS      69   

17.31

  LANDLORD’S REPRESENTATIONS AND WARRANTIES      69   

ARTICLE XVIII

 

RIGHT OF FIRST OFFER TO PURCHASE

     70   

18.1

  RIGHT OF FIRST OFFER TO PURCHASE      70   

ARTICLE XX

 

ARBITRATION

     72   

 

EXHIBITS

  

EXHIBIT DEFINITIONS

  

EXHIBIT FP

  

EXHIBIT WORK LETTER

  

EXHIBIT LOT

  

 

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TABLE OF CONTENTS

 

          Page

EXHIBIT RULES

  

EXHIBIT EXISTING CONDITIONS

  

EXHIBIT SNDA

  

EXHIBIT L/C

  

EXHIBIT RESERVED ROOF AREA

  

EXHIBIT ENCUMBRANCES

  

EXHIBIT COMMENCEMENT DATE

  

 

v


LEASE

This instrument is an indenture of lease by and between DWF III SYNERGY, LLC, a Delaware limited liability company (“ Landlord ”), and LOGMEIN, INC., a Delaware corporation (“ Tenant ”).

The parties to this Lease hereby agree with each other as follows:

ARTICLE I

SUMMARY OF BASIC LEASE PROVISIONS

1.1 INTRODUCTION

As further supplemented in the balance of this indenture and its Exhibits, the following sets forth the basic terms of this Lease, and, where appropriate, constitutes definitions of certain terms used in this Lease. Certain other defined terms are set forth on Exhibit DEFINITIONS attached hereto.

1.2 BASIC DATA

 

Date:    December     , 2014.
Present Mailing Address of Landlord:    c/o Synergy Investments
   100 Franklin Street, Suite 200
   Boston, MA 02110
   Attn: Senior Director of Real Estate
   With a copy to:
   c/o Divco West Real Estate Services, Inc.
   575 Market Street, 35 th Floor
   San Francisco, California 94105
   Attention: Asset Manager
Rent Payment Address of Landlord:    c/o Synergy Investments
   100 Franklin Street, Suite 200
   Boston, MA 02110
Present Mailing Address of Tenant:    320 Summer Street
   Boston, MA 02210
   Attn: Michael Donahue
Premises:    117,801 rentable square feet of space, as conclusively agreed to between the parties, consisting of the entire rentable area of the Building, including the basement, lower


   level, mezzanine level and the first through fifth floors as shown on Exhibit FP attached hereto.
Building:    The building known as 327-337 Summer Street in Boston, Massachusetts, situated on the Lot.
Lot:    The real property described in Exhibit LOT .
Lease Term or Term:    That period of time commencing on the Commencement Date and expiring on the date (the “ Expiration Date ”) that is the last day of the 150th full calendar month following the Commencement Date, both dates inclusive, or expiring on such earlier date as this Lease terminates in accordance with its terms.
Extension Option:    Two (2) options to extend for five (5) years each, subject to the terms and conditions of Section 3.3 hereof.
Commencement Date:    As defined in Exhibit WORK LETTER .
Base Rent:    Commencing on the Commencement Date and throughout the initial Term, Tenant shall pay Base Rent as follows:
    

Months of Term:

  

Monthly Base Rent:

   1-6:    $0.00
   7-54:    $287,139.93
   55-102:    $326,406.93
   103-Expiration Date:    $365,673.93
Permitted Use:    General, executive, and administrative office uses (and uses customarily accessory thereto to the extent permitted by applicable Requirements and consistent with primary use of the Premises for office use, including, without limitation, libraries, computer operations, eating facilities, fitness facilities, kitchens and pantries, vending machines, electronic data processing, data rooms, meeting rooms, training rooms and facilities,

 

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   messenger and mailroom facilities, reproduction and copying facilities, file rooms, meeting and conference centers and rooms), and no other purpose or purposes.
Tenant’s Proportionate Share:    100%.
Business Days:    All days during the Term except Saturdays, Sundays, and days observed in the Commonwealth of Massachusetts as legal holidays.
Business Hours:    8:00 a.m. to 6:00 p.m. on all Business Days, and 8:00 a.m. to 1:00 p.m. on Saturdays.
Security Deposit Amount:    $3,264,069.30, subject to the provisions of Section 17.15 below.
Brokers:    LPC Commercial Services and Transwestern RBJ.
1.3 ENUMERATION OF EXHIBITS   
EXHIBITS   
DEFINITIONS:    Definitions
FP:    Floor Plan Showing Tenant’s Premises
WORK LETTER:    Work Letter
LOT:    Description of the Lot
RULES:    Building Rules and Regulations and Contractor Rules and Regulations
EXISTING CONDITIONS:    Existing Conditions
LANDLORD CLEANING:    Landlord’s Cleaning Services
SNDA:    Form of Subordination, Non-disturbance and Attornment Agreement
L/C:    Form of Letter of Credit
RESERVED ROOF AREA:    Reserved Roof Area
ENCUMBRANCES:    Encumbrances
COMMENCEMENT DATE:    Commencement Date Letter

ARTICLE II

DESCRIPTION OF PREMISES AND APPURTENANT RIGHTS

2.1 LOCATION OF PREMISES

Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises for the Term. Tenant also shall have use of the conduit space in the Building (at no additional Base Rent or usage charge to Tenant, as distinguished from costs includable in Operating Costs) as set forth, and on the terms contained, in Section 17.17.

 

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2.2 APPURTENANT RIGHTS AND RESERVATIONS

Subject to the terms and conditions of this Lease, including without limitation Articles XII and XIII and Section 8.3, Tenant will have access to the Premises twenty-four (24) hour per day, seven (7) days per week, fifty-two (52) weeks per year. Notwithstanding anything contained in this Lease to the contrary, Tenant shall have, as appurtenant to the Premises, rights to use, and to permit its occupants, subtenants, assignees, and invitees to use the exterior walkways, loading docks, ramps, and stairways on the Lot. Such rights shall be subject to reasonable, non-discriminatorily enforced rules and regulations from time to time established by Landlord in accordance with Section 5.1.

Not included in the Premises are the roof, the foundation and perimeter walls of the Building (except the inner surfaces thereof and the perimeter doors and windows). Landlord also reserves the right to alter or relocate any exterior facility, provided that alterations and relocated facilities are at least equivalent in quality and functional utility to such facility prior to any such alteration or relocation, that Landlord shall use commercially reasonable efforts to ensure that such alteration or relocation shall not materially interfere with Tenant’s layout, use or enjoyment of the Premises, or access to the Building or the Premises.

Tenant shall have the right to use the Building’s fire stairs as communicating stairs between the floors making up the Premises (the “ Fire Stairs ”). As part of such use, Tenant shall have the right to (x) choose and install, at Tenant’s sole cost and expense, design finishes in the Fire Stairs and (y) install card key access from the Fire Stairs to the Premises; provided, however, any such installations shall be (i) subject to Landlord’s prior written approval, which approval shall not be unreasonably withheld, (ii) tied to the Building’s life safety systems and otherwise in accordance with all Requirements, including, but not limited to, those of the City of Boston Fire Department, (iii) not increase Landlord’s insurance premiums or rate of insurance (unless Tenant pays for any such increase), or decrease the coverage provided under Landlord’s insurance policies, (iv) maintained by Tenant at Tenant’s sole cost, except with respect to the cleaning to be provided by Landlord under Section 9.3, and (v) considered Specialty Alterations for the purposes of Section 6.1 of the Lease. Notwithstanding the foregoing, Landlord shall be permitted to override Tenant’s access system if Landlord needs to access the Premises via the Fire Stairs in the event of an emergency or as otherwise deemed necessary in Landlord’s reasonable discretion upon reasonable advance notice to Tenant.

ARTICLE III

TERM OF LEASE; CONDITION OF PREMISES

3.1 TERM OF LEASE; DELIVERY OF POSSESSION

The term of this Lease shall be for the Term, unless earlier terminated or extended as hereinafter provided. Landlord anticipates that the Commencement Date will occur on or about October 31, 2015 (as such date may be extended for Tenant Delay or events described in Section 8.3, the “ Target Commencement Date ”). Notwithstanding anything to the contrary

 

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contained in this Lease, if Landlord is unable to tender possession of any portion of the Premises on the Target Commencement Date, this Lease shall not be void or voidable or otherwise affected and Tenant shall have no claim for damages against Landlord except as expressly set forth in Exhibit WORK LETTER .

3.2 CONDITION OF PREMISES

Except as expressly set forth herein, Landlord has made no representations, warranties or undertakings as to the present or future condition of the Premises or the fitness or availability of the Premises for any particular use. Landlord shall construct certain improvements to the Building and the initial improvements to prepare the Premises for Tenant’s occupancy in accordance with Exhibit WORK LETTER , attached (including, without limitation, the provisions of such Exhibit regarding the cost of such work).

3.3 EXTENSION OPTION

Provided (i) no Default of Tenant has occurred and is continuing hereunder (Tenant acknowledging that, notwithstanding anything to the contrary contained herein or otherwise implied by this Lease, Landlord has no obligation to accept any cure following the expiration of applicable cure periods), (ii) the original named Tenant (or an assignee of Tenant permitted without Landlord’s consent pursuant to Section 7.7 hereof) is occupying at least 65% of the Premises then demised hereunder both on the date such notice is given and on the commencement date of the Extension Term and (iii) Tenant provides Landlord with a replacement Letter of Credit (or an amendment to the then-existing Letter of Credit) with an outside expiration date no earlier than sixty (60) days following the expiration of the applicable Extension Term, Tenant may elect to extend the Lease Term for two (2) consecutive five (5)- year periods (each, an “ Extension Term ”) by giving Landlord irrevocable notice of each such election (an “ Extension Notice ”) no later than eighteen (18) months, and no earlier than twenty- four (24) months, prior to the expiration of the initial Lease Term (or first Extension Term, as applicable). Such extension shall be upon all of the same terms, covenants, and conditions contained in this Lease, except that (a) Tenant shall have no further right to extend the Lease Term (other than, during the first Extension Term, the right to extend the Lease Term for the second Extension Term), (b) the Base Rent for (i) the first Extension Term shall be at a rate of $365,673.93 per month, and (ii) the second Extension Term shall be at a rate equal to Fair Market Rent (as defined below) as of the commencement date of the second Extension Term, and (c) Landlord shall have no obligation to make or pay for any improvements to the Premises or Building or to pay any allowances, brokerage commissions or inducements of any kind.

Fair Market Rent shall be computed as of the commencement of the second Extension Term. For purposes of this Lease, the term “ Fair Market Rent ” means the annual fair market rent for the Premises for the second Extension Term for which it is to be leased, taking into account all relevant factors, including, without limitation, the size of the Premises, condition of the Premises, location and age of the Building, escalation charges, location of the Premises, tenant improvements, the length of the Extension Term, and such other factors as are customarily taken into consideration in the determination of rent and taking into account that there are no base years for Operating Costs Payments and no free rent and that Landlord shall have no obligation to make or pay for any improvements to the Premises or Building or to pay any allowances or inducements of any kind.

 

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In the event that Tenant timely gives the Extension Notice hereunder with respect to the second Extension Term, then, no later than the date that is six (6) months before the expiration of the first Extension Term, Landlord shall provide Tenant with Landlord’s good faith estimate of the Fair Market Rent for the second Extension Term. If Landlord and Tenant are unable to agree on the amount of such Fair Market Rent by the date that is thirty (30) days following the giving of such estimate by Landlord, then the Fair Market Rent shall be established in the following manner. Within fifteen (15) days (the “ Cut-Off Date ”) after the expiration of such 30-day period, Landlord and Tenant shall each appoint one qualified broker and the two qualified brokers so appointed shall determine the Fair Market Rent within fifteen (15) days following the Cut-Off Date (such 15-day period, the “ Two-Broker Period ”). As used herein, the term “ qualified broker ” shall mean any independent unaffiliated commercial real estate broker (a) who is employed by a brokerage firm of recognized competence in the greater Boston area and (b) who has not less than ten (10) years’ experience in brokering premises for leases of the general location, type and character as the Premises. If either Landlord or Tenant fails to appoint a qualified broker by the Cut-Off Date, then the other party shall have the power to appoint the qualified broker for the defaulting party. If the qualified brokers are unable to agree on the Fair Market Rent by the expiration of the Two-Broker Period, then the two qualified brokers jointly shall appoint a third qualified broker within ten (10) days of the expiration of the Two-Broker Period, and within fifteen (15) days of such appointment all three qualified brokers shall meet and determine the Fair Market Rent. If all three qualified brokers are unable to agree upon the Fair Market Rent within such 15-day period, then the first two qualified brokers simultaneously shall deliver their final Fair Market Rent numbers to the third qualified broker on the third (3rd) Business Day after the expiration of such 15-day period, and the third qualified broker shall select one or the other number as the Fair Market Rent within two (2) Business Days after receipt of such submissions from the first two qualified brokers, and the Fair Market Rent so determined shall be conclusive and binding upon Landlord and Tenant. Each party shall bear the cost of its qualified broker, and the cost of the third qualified broker shall be borne equally between the parties. If the Fair Market Rent is not so determined prior to the commencement of the second Extension Term, then, from and after the commencement date of the second Extension Term, Tenant shall continue to pay as Base Rent for the applicable Extended Term an amount equal to the Base Rent payable with respect to the Premises on the last day of the first Extension Term. If, based upon the final determination hereunder, the payments made by Tenant on account of the Base Rent for such portion of the Extension Term were (i) less than the Base Rent for such Extension Term as finally determined in accordance with the provisions herein, Tenant shall pay to Landlord the amount of such deficiency in its entirety within thirty (30) days after demand therefor, or (ii) greater than the Base Rent for such Extension Term as finally determined in accordance with the provisions hereof, Landlord shall credit the amount of such excess in its entirety against the next installments of Base Rent due under this Lease.

Following the parties’ determination of the Base Rent to be paid by Tenant during the applicable Extension Term, as hereinabove provided, Landlord and Tenant shall enter into an amendment to this Lease confirming (i) the extension of this Lease for the applicable Extension Term and (ii) the Base Rent to be paid by Tenant for the Premises during the applicable Extension Term, as determined in accordance with the terms of this Section; provided, however,

 

6


that the failure of either party to enter into such amendment shall not affect the exercise of Tenant’s extension option (Tenant having been deemed to have irrevocably exercised such right upon the giving of the Extension Notice). References in this Lease to “ Lease Term ” or “ Term ” shall mean the Lease Term or Term as extended pursuant to Tenant’s rights under this Article III. Time is of the essence with respect to matters set forth in this Article III.

ARTICLE IV

RENT

4.1 RENT PAYMENTS

(a) The Base Rent (at the rates specified in Section 1.2 hereof), and other amounts, sums and charges payable to Landlord pursuant to this Lease (collectively the “ Rent ”), including amounts payable to Landlord by Tenant under the terms of Sections 4.2, 4.3 and Exhibit WORK LETTER (including, without limitation, amounts in connection with Tenant Requested Changes, Tenant Improvements, Tenant Improvements Change Orders, Landlord Change Estimate Notices, and Excess Tenant Improvements), shall be payable by Tenant to Landlord in good funds at the Rent Payment Address of Landlord or such other place and/or by such method as Landlord may from time to time designate by notice to Tenant, without any demand, and without any counterclaim, offset or deduction, of any kind, whatsoever, except as expressly provided herein. Rent due under this Lease shall be payable by check, or, at Tenant’s election, by wire transfer, of immediately available United States funds to such account as Landlord shall direct. All Rent, other than Base Rent, due to Landlord under this Lease from time to time is sometimes referred to herein as “additional rent.”

(b) Commencing on the Commencement Date and thereafter throughout the term of this Lease, Tenant shall pay Base Rent and the monthly installments of the Operating Costs Payments in advance on the first day of each and every calendar month. Additional rent and other charges payable pursuant to this Lease shall be payable at the times and in the manner set forth in this Lease.

(c) The Base Rent and the monthly installments of the Operating Costs Payments for any partial month shall be paid by Tenant to Landlord at such rate on a pro rata basis. Any other charges payable by Tenant on a monthly basis, as hereinafter provided, shall likewise be prorated.

(d) Tenant shall pay to Landlord, upon request, as additional rent, a late charge equal to three percent (3%) of the amount of any Rent not paid within three (3) Business Days of the date due hereunder provided that, with respect to the first late payment in any twelve (12) month period, no such late charge shall be due unless and until Landlord gives Tenant written notice of such late payment and a period of five (5) Business Days elapses without such payment being made. Notwithstanding the foregoing to the contrary, the parties acknowledge and agree that the sole notice and grace periods for determining when a monetary Default occurs are set forth in Section 14.1, below.

 

7


(e) Rent not paid on the date due shall bear interest at a rate (the “ Lease Interest Rate ”) equal to the lesser of (i) the so-called base rate of interest charged from time to time by Bank of America (or its successor), plus five percent (5%) per annum, but in no event lower than ten percent (10%), and (ii) the maximum legally permissible rate, from the due date until paid. Notwithstanding the foregoing, no such interest will begin to accrue unless and until Landlord gives Tenant written notice of such late payment and a period of five (5) five Business Days elapses without such payment being made, except that if Landlord shall have given more than three (3) such notices in any twelve (12) month period, Tenant shall not be entitled to any further notice of its delinquency in the payment of Rent until such time as twenty-four (24) consecutive months shall have elapsed without Tenant having made a late payment of Rent. Notwithstanding the foregoing to the contrary, the parties acknowledge and agree that the sole notice and grace periods for determining when a monetary Default occurs are set forth in Section 14.1, below. Any notice of late payment under Sections 4.1(d) or (e) or under Section 14.1 shall be deemed to be a notice of late payment for all other purposes hereunder.

(f) All payments of Rent shall be made without set-off, deduction or offset except as expressly provided in this Lease. Without limiting the foregoing, Tenant’s obligation to pay Rent shall be absolute, unconditional, and independent and shall not be discharged or otherwise affected by any Requirements now or hereafter applicable to the Premises, or any other restriction on Tenant’s use, or, except as provided in Articles XII and XIII, any casualty or taking, or any failure by Landlord to perform or other occurrence; and except as expressly provided in this Lease, Tenant assumes the risk of the foregoing and waives all rights now or hereafter existing to quit or surrender the Premises or any part thereof, to terminate or cancel this Lease, or to assert any defense in the nature of constructive eviction to any action seeking to recover rent. Tenant hereby acknowledges and agrees that it has been represented by counsel of its choice and has participated fully in the negotiation of this Lease, that Tenant understands that the remedies available to Tenant in the event of a default by Landlord may be more limited than those that would otherwise be available to Tenant under the common law in the absence of certain provisions of this Lease, and that the so-called “dependent covenants” rule as developed under the common law (including, without limitation, the statement of such rule as set forth in the Restatement (Second) of Property, Section 7.1) shall not apply to this Lease or to the relationship of landlord and tenant created hereunder.

(g) This Lease is a NET LEASE, and Landlord shall not be obligated to pay any charge or bear any expense whatsoever against or with respect to the Premises except to the extent herein provided or except as expressly excluded herein, nor shall the Rent payable hereunder be subject to any abatement, reduction or offset whatsoever on account of any such charge or otherwise except as hereinafter provided or provided in Exhibit WORK LETTER .

4.2 REAL ESTATE TAXES

(a) (1) The term “ Taxes ” shall mean all real estate taxes and assessments (including, without limitation, assessments for public improvements or benefits and assessments for water and sewer infrastructure improvements), and other charges or fees

 

8


in the nature of taxes for municipal services or billed by municipal taxing authorities which at any time during the applicable lease year may be assessed, levied, confirmed or imposed on or in respect of, or be a lien upon, the Building and/or the Lot, or any part thereof, or any estate, right, or interest therein. Without limiting the foregoing, in the event Landlord enters into any agreement governing payments in lieu of taxes, Taxes shall also include any payments made by Landlord pursuant to such agreement in lieu of other taxes to be paid (Landlord agreeing that it shall not enter into any such agreement without Tenant’s prior approval, which approval shall not be unreasonably withheld, conditioned or delayed and shall not be required to the extent any such agreement would not apply during the Lease Term, as the same may be extended). Landlord agrees that Tenant’s share of any special assessment shall be determined (whether or not Landlord avails itself of the privilege so to do) as if Landlord had elected to pay the same in installments over the longest period of time permitted by applicable Requirements and Tenant shall be responsible only for those installments (including interest accruing and payable thereon) or parts of installment that are attributable to the applicable lease year. Taxes shall also include, in the lease year paid, all reasonable fees and costs incurred by Landlord in seeking to obtain a reduction of, or a limit on the increase in, any Taxes, regardless of whether any reduction or limitation is obtained. Such expenses shall be net of rebates, credits, and similar items of which Landlord receives the benefit during the applicable lease year. Should the Commonwealth of Massachusetts, or any political subdivision thereof, or any other governmental authority having jurisdiction over the Building, (1) impose a tax, assessment, charge or fee, which Landlord shall be required to pay, by way of an express substitution for such Taxes, or (2) impose an income or franchise tax or a tax on rents in express substitution for or in addition to a tax levied against the Building and/or the Lot or any part thereof, then, provided that such tax or fee is imposed generally on owners of similarly situated buildings in the City of Boston and is in the nature of a real estate tax, all such taxes, assessments, fees or charges, computed as if the Building and the Lot were the only property of Landlord, and the income from the Building and the Lot were the only income of Landlord, shall be deemed to constitute Taxes hereunder. Notwithstanding anything to the contrary contained in this paragraph (except with respect to any such taxes assessed or imposed in express substitution of, or in addition to, real estate taxes or any portion thereof in accordance with the immediately preceding sentence), the term “Taxes” shall not include (i) inheritance, estate, succession, transfer, gift, franchise, net income or capital stock tax value-added, transfer gains, excise, excess profits, occupancy or rent, foreign ownership or control, payroll or stamp tax, or any other similar tax or charges imposed upon or assessed against Landlord, including any other tax, assessment, charge or levy on the rent reserved under leases, including this Lease, (ii) realty transfer taxes or real property transfer gains taxes imposed in connection with the sale of or the lease of all or substantially all of the Lot or the Building, (iii) mortgage recording taxes, (iv) income taxes, except with respect to any such taxes assessed or imposed in express substitution of real estate taxes or any portion thereof in accordance with the immediately preceding sentence, (v) any Taxes to the extent payable by tenants other than Tenant, or (vi) any penalties, late charges or fines imposed against Landlord with respect to real estate taxes, assessments and the like (other than to the extent resulting from Tenant’s failure to pay amounts when due hereunder) that are otherwise includable within the term “Taxes.”

 

9


(b) If any Taxes with respect to the Term shall be adjusted to take into account any abatement or refund, then Landlord shall pay to Tenant within thirty (30) days of Landlord’s receipt of such abatement or refund, Tenant’s share of such abatement or refund either by cash payment or by rent credit against the installments of Base Rent or additional rent next coming due, less Landlord’s reasonable costs or expenses, including, without limitation, appraisal and reasonable attorneys’ fees, of securing such abatement or refund (to the extent not then or previously included in Taxes on account of which Tenant has made or will make a payment of Operating Costs), or if there are insufficient remaining rental obligations to offset Tenant’s share of such abatement or refund, by cash payment to Tenant, or, if the Lease Term has expired and Tenant has no outstanding monetary obligations to Landlord, Landlord shall pay such amount to Tenant within thirty (30) days, but such credit or payment shall in no event exceed the amount originally paid by Tenant. If any amount owing to Tenant under this Section 4.2 and payable either in cash or by means of a credit against the Rent (together with any required interest payable thereon, if any) shall not be fully paid or credited to Tenant on the Expiration Date or earlier termination of this Lease, then Landlord shall promptly pay to Tenant the amount not theretofore paid or credited to Tenant. This paragraph shall survive the expiration of this Lease.

(c) Tenant shall pay or cause to be paid, prior to delinquency, any and all taxes and assessments levied upon all trade fixtures, inventories and other personal property placed in and upon the Premises by Tenant.

(d) Following the Commencement Date, if Tenant makes a timely written request to the Landlord to file applications or institute proceedings to reduce the Building’s assessed valuation with the local taxing authorities or in a court of competent jurisdiction for judicial review of such assessed valuation, then Landlord will either diligently, timely and fully prosecute all such applications or notify Tenant that Tenant shall have the right to file, institute, or pursue such applications or proceedings in coordination with Landlord and subject to Landlord’s reasonable approval of the submissions and settlement of the same. Whether any such application or proceeding is initiated by Landlord in its own discretion or is pursued at the request of Tenant, Tenant shall have the right to consult with Landlord concerning the pursuit and settlement of any such application or proceeding by Landlord. If Tenant pursues any such application or proceeding at the direction of Landlord pursuant to the first sentence of this paragraph, then any abatement proceeds shall be payable to Landlord after deducting Tenant’s reasonable costs or expenses including, without limitation, appraisal and reasonable attorneys’ fees incurred in securing such abatement or refund. The computation of Taxes for any period during the Term as well as reimbursement or payments of additional charges, if any, or allowances, if any, under the provisions of this Section 4.2 shall be based on the then-current assessed valuations with adjustments, payments, or credits to be made at a later date when the tax refund, if any, shall be paid to Landlord by the taxing authority as herein provided. The provisions of this paragraph shall not inure to the benefit of any subtenants or licensees of Tenant.

 

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4.3 OPERATING COSTS

(a) With respect to each lease year, Tenant shall pay to Landlord, as additional rent, Tenant’s Proportionate Share of Operating Costs for such lease year (the “ Operating Costs Payment ”); provided, however that with respect any lease year in which the Commencement Date occurs or the expiration of the Lease Term occurs, the Operating Costs Payment for such lease year shall be a prorated amount computed on a per diem basis with respect to the portion of such lease year falling within the Lease Term. Landlord shall provide a statement (the “ Estimated Operating Costs Statement ”) showing Landlord’s good faith estimate of the Operating Costs and the Operating Costs Payment (the “ Estimated Operating Costs Payment ”) (i) no later than December 1, 2015, with respect to calendar year 2015 and (ii) for each subsequent lease year, within ninety (90) days following the last day of the immediately preceding lease year. The Estimated Operating Costs Statement shall be produced in accordance with sound real estate accounting principles and on a GAAP basis. Commencing on the Commencement Date and, with respect to subsequent lease years, the first day of the first month of such lease year that commences at least twenty (20) days after the date of the giving of such Estimated Operating Costs Statement, Tenant shall pay an amount equal to the product of (x) one-twelfth (1/12th) of the Estimated Operating Costs Payment for such lease year set forth on such Estimated Operating Statement, multiplied by (y) the number of months, to and including such first month, that have elapsed or commenced since the commencement of such lease year. On the first day of each month thereafter throughout such lease year, Tenant shall pay an amount equal to one-twelfth (1/12th) of such Estimated Operating Costs Payment. Landlord, within one hundred twenty (120) days after the end of any lease year, shall issue a reasonably detailed year- end accounting of Operating Expenses for such lease year, including a year-end computation of the Operating Costs Payment for such lease year, if any (the “ Year-End Operating Costs Statement ”), prepared by a CPA or the property manager. If the total Operating Costs Payment actually paid by Tenant with respect to any lease year is greater than the Operating Costs Payment as shown on the Year-End Operating Costs Statement for such lease year, then Landlord shall pay, within thirty (30) days, at Landlord’s election by Rent credit or cash, in the same manner as described in Section 4.2(b), the balanced owed to Tenant. The provisions of this paragraph shall survive the expiration of the Lease Term for a period of one (1) year after the final day of the lease year in which the Lease Term expires. If the total of Operating Costs Payment actually paid by Tenant with respect to such lease year is less than the Operating Costs Payment as shown on the Year-End Operating Costs Statement for such lease year, then Tenant shall pay to Landlord the amount of such difference, as additional rent, within thirty (30) days after Tenant receives the Year-End Operating Costs Statement. Landlord’s failure to prepare and deliver any statements or bills required to be delivered to Tenant under this Section 4.3, or the failure of Landlord to make a demand under this Section 4.3 shall not in any way be deemed to be a waiver of, or cause Landlord to forfeit or surrender its rights to collect, any Operating Costs Payment that may have become due under this Lease, provided that Landlord renders its accounting for the lease year in question within two (2) years after the end of the lease year in question, except in the case of the lease year in which the Expiration Date occurs, in which event such accounting must be rendered within one (1) year after the Expiration Date.

If Tenant reasonably requests in writing at least ninety (90) days prior to the commencement of any calendar year, Landlord shall bid any service, other than management services, that is subject to renewal (i.e. there is no remaining term under the applicable service

 

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contract) and included within Operating Costs for the following calendar year to at least two qualified service providers acceptable to Landlord (provided that such bidding requirements do not apply to any service for which annual payments for such service are reasonably expected to be less than $50,000).

(b) As used in this Lease, the term “ lease year ” shall mean each calendar year (or part thereof) in which any part of the Term occurs.

(c) As used in this Lease, the term “ Operating Costs ” shall mean, subject to the limitations set forth herein, all reasonable costs and expenses incurred on an accrual basis by Landlord related and in connection with operating, insuring, repairing, equipping, maintaining, replacing, managing, cleaning and protecting (collectively, the “ Operation ”) the Building, the Building’s heating, ventilating, electrical, plumbing, and other systems, and the Lot (collectively, “ Property ”), including, without limitation, the following:

(1) To the extent Landlord provides such services to the Property, either at Tenant’s request or in order to fulfill its obligations under Section 8.2 or Article IX, all expenses incurred by Landlord or its agents which shall be related to employment of day and night supervisors, janitors, handymen, carpenters, engineers, firemen, mechanics, electricians, plumbers, guards, cleaners and other personnel (including amounts incurred for wages, salaries and other compensation for services, payroll, social security, unemployment and similar taxes, workmen’s compensation insurance, disability benefits, pensions, hospitalization, retirement plans and group insurance, uniforms and working clothes and the cleaning thereof, and expenses imposed on Landlord or its agents pursuant to any collective bargaining agreement), for services engaged in the Operation of the Property, and personnel engaged in supervision of any of the persons mentioned above but in no event shall any of the above costs apply to any personnel above the level of property manager (or its equivalent position); provided, however, that the costs of employing personnel who work less than full-time in connection with the Operation of the Property shall be equitably adjusted;

(2) The cost of services, materials and supplies furnished or used in the Operation of the Property, including, without limitation, the cost to perform Landlord’s obligations pursuant to Section 8.2 and Article IX of this Lease except to the extent otherwise separately billed to Tenant as an additional service;

(3) The reasonable amounts paid for legal and other professional fees relating to the Operation of the Property, but excluding such fees paid in connection with (x) negotiations for or the enforcement of leases; or (y) a sale or refinancing of the Property;

(4) Insurance premiums;

(5) Costs for electricity, steam, and other utilities not billed or separately charged to Tenant;

 

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(6) Water and sewer use charges not billed or separately charged to Tenant;

(7) To the extent Landlord provides such services at Tenant’s request, the costs of snow-plowing and removal and landscaping (it being agreed that the same shall be Tenant’s responsibility if Tenant does not so request); and

(8) Amounts paid to independent contractors for services, materials and supplies furnished for the Operation of the Property in accordance with Tenant’s request or to fulfill its obligations under Section 8.2 or Article IX; and

(9) Taxes.

Operating Costs may be incurred directly or by way of reimbursement, and shall include taxes applicable thereto not otherwise included in Taxes or any other provision of this Lease.

(d) Intentionally Omitted;

(e) The following shall be excluded from Operating Costs:

(1) Capital replacements or improvements (which are distinguished for purposes of this Lease from ordinary repairs and maintenance) of the roof or any structural elements of the Building, except that, if Landlord, in its sole discretion, shall make a capital replacement or improvement (determined under generally accepted accounting principles (“ GAAP ”)) of the roof or any structural elements of the Building for the purpose of reducing or conserving the use of energy in the Building or reducing other Operating Costs, the annual amortization of such capital replacement or improvement amortized on a straight-line basis over the useful life thereof utilized under GAAP (as reasonably determined by Landlord) with interest at the actual rate on any debt obtained to finance such replacement (or, if not financed by debt, with deemed interest at the rate of two points above the so-called base rate or prime rate from time to time announced by Bank of America or its successor) shall be included in Operating Costs, provided that, in the event Landlord’s estimate of the annual savings from a capital replacement or improvement intended to reduce Operating Costs shall exceed such annual amortization, Operating Costs shall include, in lieu of such amortization, Landlord’s estimate of such annual savings until the cost of such capital replacement or improvement shall have been completely amortized.

(2) Management fees for the Property (unless otherwise expressly agreed by Landlord and Tenant in writing);

(3) Costs and expenses which are properly allocable to other properties of Landlord (e.g., where a service is provided at a single cost to both the Property and another property of Landlord), with said allocation to be determined and calculated by Landlord in its reasonable discretion to exclude the costs fairly attributable to such other property;

 

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(4) [Intentionally Omitted];

(5) Principal or interest on indebtedness and rental on ground leases or other underlying leases, and expenses for financing, refinancing, and debt service, or any other loan (including, without limitation, fees for obtaining approvals from or otherwise dealing or negotiating with mortgagees or providing reports and information thereto or thereof [to the extent such reports and information are provided solely to the mortgagee and are not also provided to Tenant] and legal fees and disbursements in connection therewith);

(6) Expenses for which Landlord, by the terms of this Lease, makes a separate charge;

(7) [Intentionally Omitted];

(8) [Intentionally Omitted];

(9) Leasing fees or commissions, advertising and promotional expenses relating to procuring Tenant and legal fees associated with preparing this Lease;

(10) [Intentionally Omitted];

(11) Except as otherwise expressly provided herein, depreciation or amortization;

(12) Costs incurred in connection with the removal, enclosure, encapsulation or treatment of Hazardous Materials other than routine testing and cleaning activities;

(13) Costs of any items that are payable or reimbursable to Landlord by insurance to the extent of such insurance coverage (but excluding deductibles, which are includable in Operating Costs);

(14) Charges for utilities, services or goods for which Tenant has reimbursed or is obligated to reimburse Landlord (other than the obligation to pay a share of operating costs under the applicable lease) or any other costs and expenses otherwise includable in Operating Costs, to the extent that such costs and expenses are reimbursed or a third party is obligated to reimburse Landlord;

(15) Costs of installing, operating and maintaining any cafeteria or sports club (the foregoing shall not be deemed an agreement by Landlord to install any of the same);

(16) Amounts paid to any person or entity affiliated with Landlord for any services required under this Lease or requested by Tenant to the extent such amounts are in excess of amounts that would be paid in an arms length transaction with an unrelated third party;

 

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(17) Late fees incurred due to Landlord’s late payment of expenses, except to the extent attributable to Tenant’s actions or inactions;

(18) Voluntary contributions or payments to charities, associations, civic organizations, and not-for-profit entities in excess of similar contributions or payments by landlords of similar first-class office buildings in Boston and payments to business improvement district entities in excess of the rate payable by landlords of similarly situated buildings (e.g. in the Fort Point Channel area) in the City of Boston;

(19) Costs to design, permit and construct the Landlord’s Work (as defined in Exhibit WORK LETTER );

(20) Linkage payments and other mitigation expenditures required by the City of Boston pursuant to the approvals for the Landlord’s Work;

(21) Costs to repair defects in the Landlord’s Work during the one-year warranty period referenced in Exhibit WORK LETTER ;

(22) [Intentionally Omitted];

(23) Costs of repairs or replacements or restorations incurred by reason of fire or other insured casualty (other than insurance deductibles) or condemnation;

(24) Costs of any service or facility, or level or amount thereof, provided to Tenant that is supplied or furnished to Tenant pursuant to the terms of this Lease with separate or additional charge;

(25) Costs and expenses incurred in connection with the acquisition or sale of air rights, transferable development rights, easements or other real property interests;

(26) [Intentionally Omitted];

(27) The Allowance;

(28) Capital replacements or improvements to the roof or structure of the Building, other than those provided in subsection 4.3(e)(1) above;

(29) [Intentionally Omitted];

(30) Costs incurred with respect to the execution or modification of any ground or underlying lease (including, without limitation, fees for obtaining approvals from or otherwise dealing or negotiating with superior lessors or providing reports and information thereto or thereof and legal fees and disbursements in connection therewith);

 

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(31) Costs or expenses for sculpture, paintings, or other works of fine art, including, costs incurred with respect to the purchase, ownership and leasing of such works of art;

(32) Costs incurred with respect to the execution or modification of any document, instrument or agreement relating to or otherwise executed and delivered in connection with obtaining and/or maintaining historic tax credits for the Building;

(33) Costs and expenses in connection with any judgment, settlement or arbitration award resulting from any tort liability of Landlord or such other parties resulting from the negligence or willful misconduct of Landlord, any affiliate of Landlord, or any such party’s agents, contractors, employees, or representatives and any damages and attorneys’ fees and disbursements and other costs;

(34) Costs of correcting defects in the construction of the Landlord’s Work during the one year warranty period described in Exhibit WORK LETTER and defects for which Tenant has properly and timely given Landlord notice under such warranty in accordance with Exhibit WORK LETTER (specifically exclusive of corrections necessitated by ordinary wear and tear, which are included in Operating Costs);

(35) Costs of any expansions to the Property by the addition of leasable areas and any costs arising therefrom (including, without limitation, increased Operating Costs);

(36) Costs incurred with respect to a sale of all or any portion of the Property or any interest therein or in any person or entity of whatever tier owning an interest therein and the cost of maintaining, organizing or reorganizing the entity that is the landlord under this Lease;

(37) Any interest, fine, penalty or other late charge payable by Landlord (except to the extent that the cost of avoiding liability for such interest, fine, penalty or other late charge exceeds the amount thereof or resulting from Tenant’s failure to pay an amount when due under this Lease) or any increase in insurance premium resulting from Landlord’s violation of any Requirements (including without limitation building codes, and governmental rules or regulations) or insurance requirement;

(38) Any lease payments for equipment that, if purchased, would be specifically excluded as a capital replacement or improvement, except if the cost of such items (if purchased) would be included in Operating Costs pursuant to subsection 4.3(e)(1) above or if in accordance with good business practices, such items are rented on an occasional basis;

(39) Costs and expenses incurred for the administration of the entity which constitutes Landlord, as the same are distinguished from the costs of Operation of the Property, without limitation, entity accounting and legal matters; and

 

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(40) Costs of insurance coverage not required or permitted pursuant to the provisions of Article XI.

(f) (1) At the request of Tenant at any time within one hundred eighty (180) days after Tenant’s receipt of any Year-End Operating Costs Statement, Tenant (at Tenant’s expense) may question the correctness of such accounting or the propriety of any item contained therein, and shall have the right to examine Landlord’s books and records applicable to Landlord’s Operating Costs relating to such Year-End Operating Costs Statement. Such right to examine the records shall be exercisable: (a) upon reasonable advance notice to Landlord and at reasonable times during Landlord’s business hours; (b) only during the 180-day period following Tenant’s receipt of the Year-End Operating Costs Statement; and (c) not more than once each lease year. Each Year-End Operating Costs Statement shall be deemed conclusive except as to items specifically disputed in writing by notice from Tenant to Landlord given within sixty (60) days after the 180-day period provided for above absent manifest error. Any examination of Landlord’s books and records permitted hereunder shall be conducted by an employee employed in the finance group of Tenant, an independent certified public accountant retained by Tenant or an auditing firm or other real estate professional reasonably approved by Landlord for such purpose (each, an “ examiner ”) at the place where they are regularly maintained in the City of Boston and during the 180-day period provided for above. The fees and expenses incurred in obtaining such an examination shall be borne by Tenant, unless such examination confirms that Tenant has overpaid its share of Operating Costs by more than five percent (5%), in which event the reasonable third party fees and expenses incurred by Tenant in obtaining such examination shall be borne by Landlord. In no event shall Tenant propose, nor shall Landlord ever be required to approve, any examiner of Tenant who is being paid on a contingent fee basis.

(2) As a condition precedent to performing any such examination of Landlord’s books and records, Tenant and its examiners shall be required to execute and deliver to Landlord an agreement in form reasonably acceptable to Landlord agreeing to keep confidential any information that they discover about Landlord or the Building in connection with such examination. Without limiting the foregoing, such examiners shall also be required to agree that they will not represent any other tenant in the Building in connection with examinations of Landlord’s books and records. Notwithstanding any prior approval of any examiners by Landlord, Landlord shall have the right to rescind such approval at any time if in Landlord’s reasonable judgment the examiners have breached any confidentiality undertaking to Landlord.

ARTICLE V

USE OF PREMISES

5.1 PERMITTED USE; LANDLORD COVENANT REGARDING CERTAIN USES

Tenant agrees that the Premises shall be used and occupied by Tenant only for the purposes specified as the Permitted Use, and for no other purpose or purposes.

 

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Tenant shall comply and shall cause its employees, agents, and invitees to comply with the Rules and Regulations attached to this Lease as Exhibit RULES (the “ Rules and Regulations ”) and such other reasonable rules and regulations as Landlord shall from time to time establish for the proper regulation of the Building and the Lot, provided that Landlord gives Tenant reasonable advance notice to Tenant of such other rules and regulations. Landlord shall enforce any such rules and regulations in a commercially reasonable manner. To the extent that any Rule or Regulation or any additional or amended Rule or Regulation conflicts with the terms of this Lease, the terms of this Lease shall control. Tenant’s compliance with any such additional Rule or Regulation shall not be deemed a waiver of Tenant’s right to contest the reasonableness of the same. Notwithstanding anything to the contrary contained herein, any dispute concerning the reasonableness of a new or modified Rule or Regulation shall be resolved by arbitration in accordance with Article XX hereof, and Tenant shall not be bound to comply with any new or modified Rule or Regulation (i) during any period of arbitration with respect to the reasonableness of the same, or (ii) if compliance would require Tenant to make an actual out- of-pocket payment in excess of what Tenant would otherwise be required to pay absent such additional Rule or Regulation. In addition, any additional Rule or Regulation that would adversely affect the normal conduct of Tenant’s business shall be deemed to be unreasonable.

5.2 COMPLIANCE WITH LAWS

(a) Tenant agrees that no trade or occupation shall be conducted in the Premises or use made thereof which will be unlawful, improper, or contrary to any law, ordinance, by-law, code, rule, regulation or order applicable in the municipality in which the Premises are located or which will create a public or private nuisance to Landlord or anyone claiming by, through or under Landlord, subject to Tenant’s right to contest hereinafter set forth (Landlord acknowledging that the use of the Premises for general, executive, and administrative offices, generally, as well as other uses that are common in similar buildings located in the Fort Point Channel district of Boston shall not be deemed “improper” for purposes of this sentence). Tenant shall obtain any and all approvals, permits, licenses, variances and the like from governmental or quasi-governmental authorities, including without limitation any Architectural Access Board and Board of Fire Underwriters (collectively, “ Approvals ”) which are required for Tenant’s use of the Premises, including, without limitation, as may be required to perform any construction work and installations, alterations, or additions made by Tenant to, in, on, or about the Premises; provided, however, that Tenant shall not seek or apply for any Approvals without first having given Landlord a reasonable opportunity to review any applications for Approvals and all materials and plans to be submitted in connection therewith and obtaining Landlord’s written consent, not to be unreasonably withheld. In any event, Tenant shall be responsible for all costs, expenses, and fees in connection with obtaining all Approvals (subject to reimbursement from the Allowance pursuant to Section II(B) of the Work Letter). Without limiting the general application of the foregoing, Tenant shall be responsible for compliance of the Premises including, without limitation, any alterations it may make to the Premises, with the applicable requirements of the Americans with Disabilities Act of 1990, Pub. Law 101-336, 42 U.S.C. § 12101 et. seq. and the regulations and Accessibility Guidelines for Buildings and Facilities issued pursuant thereto, as the same may be amended from time to time (collectively, the “ ADA ”), provided that Landlord consents to the Alterations, if any, necessary to attain such compliance. If Landlord refuses to consent to the construction of such Alterations necessary to comply with the ADA, then Tenant shall not be deemed to be in breach of the immediately

 

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preceding sentence. Landlord shall be responsible for compliance with the provisions of the ADA with respect to the exterior of the Building, and the sidewalks and walkways on the Lot to the extent compliance is necessitated by Landlord’s Work. To the extent that the need for compliance as to such areas shall arise for any reasons other than Landlord’s Work, Landlord shall perform the same at Tenant’s expense. Landlord and Tenant shall indemnify and hold each other harmless from and against any claims, damages, costs, and liabilities arising out of Landlord’s or Tenant’s failure or alleged failure, as the case may be, to comply with the ADA as set forth above, which indemnification obligation shall survive the expiration or termination of this Lease. Landlord and Tenant each agree that the allocation of responsibility for ADA compliance shall not require Landlord or Tenant to supervise, monitor, or otherwise review the responsibilities for ADA compliance as set forth herein. Tenant’s inability to obtain or delay in obtaining any such Approval shall in no event reduce, delay, or terminate Tenant’s rental, payment, and performance obligations hereunder, except as otherwise expressly provided in Exhibit WORK LETTER . Without limiting the generality of the foregoing, Tenant shall, at its own cost and expense, (i) make all installations, repairs, alterations, additions, or improvements to the Premises (and every part thereof) required by any law, ordinance, by-law, code, rule, regulation or order of any governmental or quasi-governmental authority subject to Tenant’s right to contest hereinafter set forth; (ii) keep the Premises equipped with all required safety equipment and appliances; and (iii) comply with all Requirements and the requirements of Landlord’s and Tenant’s insurers applicable to the Premises (and every part thereof and utility and Building systems located in or passing through the Premises), Building and Lot, subject to Tenant’s right to contest hereinafter set forth; and provided that in all events the use of the Premises for the Permitted Use shall be permitted at all times. Tenant may reasonably and in good faith contest the validity of any Requirement or the application thereof or any obligation under this Article V by an appropriate proceeding. Any such proceeding instituted by Tenant must be commenced as soon as is reasonably practicable after the issuance of any notification by the applicable governmental authority with respect to required compliance with such Requirement and shall be prosecuted to final adjudication with reasonable diligence. Notwithstanding the foregoing, Tenant promptly shall comply with any such Requirement and compliance shall not be deferred if at any time there is an emergency, the Building or any part thereof is in danger of being forfeited or lost, or Landlord is in danger of being subject to criminal or civil liability or penalty, by reason of noncompliance therewith. Tenant shall indemnify Landlord and all mortgagees of the Building against any cost or expense incurred by Landlord or any mortgagee by reason of such contest by Tenant in accordance with the provisions hereof. Notwithstanding the foregoing or anything to the contrary contained herein, Tenant shall not be obligated to perform any structural changes necessary to comply with any Requirements, unless compliance shall be required by reason of (i) any cause or condition arising out of any Alterations or installations in the Premises made by Tenant, or (ii) Tenant’s use, manner of use, or occupancy on behalf of Tenant of the Premises, or (iii) any breach of any of Tenant’s covenants or agreements in this Lease, or (iv) Tenant’s use or manner of use or occupancy of the Premises as a “place of public accommodation” within the meaning of the ADA.

(b) Tenant shall not place a load upon any floor in the Premises exceeding the lesser of (a) the floor load per square foot of area which such floor was designed to carry and (b) the floor load per square foot of area which is allowed by law. Landlord reserves the right to reasonably prescribe the weight and position of all business machines and mechanical equipment, including safes, which shall be placed in the Premises so as to distribute the weight.

 

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(c) Landlord need not comply with any Requirements for which Landlord is responsible hereunder for so long as Landlord shall in good faith be diligently contesting, at its sole cost and expense, through appropriate proceedings brought in accordance with applicable Requirements, Landlord’s obligation to comply therewith; provided that (a) neither Tenant nor any Related Corporation of Tenant shall be subject to imprisonment or prosecution for a crime, nor shall the Premises or any part thereof be subject to being condemned or vacated, nor shall the certificate of occupancy for the Building be suspended or threatened to be suspended by reason of such noncompliance or by reason of such contest, and (b) before the commencement of such contest, if Tenant or any Related Corporation of Tenant may be subject to any civil fines or economic penalties or other criminal penalties or if Tenant may be liable to any independent third party as a result of such noncompliance, Landlord shall indemnify Tenant (and any such Related Corporation of Tenant) against the cost of such noncompliance and liability resulting from or incurred in connection with such contest or noncompliance. Landlord agrees that the Base Building Work (but without regard for any Alterations, including the Tenant Improvements, or Tenant’s particular use of the Premises) will be in compliance with all applicable Requirements, including the Americans with Disabilities Act.

5.3 INSURANCE RISKS

Tenant shall not permit any use of the Premises which will make voidable or, unless Tenant pays the extra insurance premium attributable thereto as provided below, increase the premiums for any insurance on the Building or which shall be contrary to any law or regulation from time to time established by the New England Fire Insurance Rating Association (or any successor organization) or which shall require any alteration or addition to the Building (it being acknowledged that use of the Premises for office uses, generally, will not result in a breach of the provisions of this sentence). Tenant shall, within thirty (30) days after written demand therefor, reimburse Landlord for the costs of all extra insurance premiums caused by Tenant’s particular use of the Premises, as opposed to office use, generally. Any such amounts shall be deemed to be additional rent hereunder.

5.4 ELECTRICAL EQUIPMENT

Tenant shall not, without Landlord’s written consent in each instance, connect to the electrical distribution system any fixtures, appliances, or equipment which will operate individually or collectively in excess of the capacity of, or otherwise overload, the electrical system serving the Premises, and Landlord may audit Tenant’s use of electric power to determine Tenant’s compliance herewith. If Landlord, in its sole discretion, permits such excess usage, Tenant will pay, as additional rent, for the cost of power necessary to accommodate such usage, together with the cost of installing any additional risers, meters, and/or other facilities that may be required to furnish and/or measure such excess power to the Premises. Tenant, at Tenant’s sole cost and expense after completion of the Tenant Improvements, may reallocate the electric capacity available to the Premises to other floors included in the Premises (provided that, at or prior to the end of the Term, Tenant removes any Alterations that are required in connection with any such reallocation of electric capacity and restores such affected portion of the Premises to the electric capacity available prior to such Alterations).

 

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5.5 TENANT’S OPERATIONAL COVENANTS

(a) Affirmative Covenants

In regard to the use and occupancy of the Premises, Tenant will at its expense: (1) keep the inside and outside of all glass in the doors and the interior windows of the Premises reasonably clean and replace promptly any cracked or broken glass with glass of similar or like quality; (2) maintain the Premises in a clean, orderly and sanitary condition; (3) keep any garbage, trash, rubbish or other refuse in appropriate office containers within the interior of the Premises until removed; (4) keep all mechanical apparatus free of vibration and loud noise which may be transmitted beyond the Premises; and (5) comply with and observe all reasonable, non- discriminatory rules and regulations established by Landlord from time to time subject to the provisions of Section 5.1.

(b) Negative Covenants

In regard to the use and occupancy of the Premises and exterior areas, Tenant will not: (1) place or maintain any trash, refuse or other articles on the sidewalks or elsewhere so as to obstruct any exterior stairway, sidewalk area; (2) permit undue accumulations of garbage, trash, rubbish or other refuse within or without the Premises; (3) cause or permit objectionable odors to emanate or to be dispelled from the Premises; or (4) commit, or suffer to be committed, any physical waste upon the Premises or any public or private nuisance, or use or permit the use of any portion of the Premises for any unlawful purpose. Further, Tenant agrees that it will not, either directly or indirectly, use any contractors or service providers if, in the reasonable judgment of Landlord, their use may create any difficulty, whether in the nature of a labor dispute or otherwise, in the construction, maintenance and/or operation of the Building or any part thereof. Tenant shall be responsible for promptly resolving a labor dispute related to, or arising out of, any contractors or service providers retained by Tenant.

5.6 SIGNS

Tenant shall not place any signs, placards, or the like on the Building or in the Premises that will be visible from outside of the Premises (including without limitation both interior and exterior surfaces of the windows) except as expressly set forth in this Section 5.6.

So long as no Default is then continuing, Tenant shall have the right, at Tenant’s sole cost and expense, subject to the prior written consent of Landlord with respect to the size, design, method of installation and location of such signage, which consent shall not be unreasonably withheld, and provided such signage is installed and maintained in compliance with Article VI of this Lease and all applicable Requirements, to install and maintain (i) signs identifying Tenant (or a Successor Entity) and up to two (2) permitted subtenants as an occupant of the Building on the exterior façade of the Building identifying Tenant in a manner consistent with similar first class buildings in the downtown Boston area, and (ii) on behalf of itself or any party that is a permitted assignee or subtenant pursuant to Article VII, lobby signage in the main first floor entrance lobby included within the Premises identifying Tenant and such assignees or subtenant.

 

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In addition, Tenant may, at Tenant’s sole cost and expense, install any signage within other areas of the Premises without Landlord’s consent, provided that such signage is installed and maintained in compliance with Article VI of this Lease and all applicable Requirements and provided that such signage is not visible from the exterior of the Building (i.e., not visible from the street or, if above street level, not visible from the exterior of the Building in a manner that is inconsistent with or incompatible with a first-class office building in the City of Boston). Tenant shall be responsible for maintaining any signage installed by Tenant pursuant to this Section in good condition and repair and shall remove such signage at the expiration of the Lease Term (as same may be extended). Tenant may not install any signage on the Building which identifies an entity or business other than Tenant or a permitted assignee or subtenant pursuant to Article VII.

Landlord shall not, without Tenant’s prior written consent, grant any signage rights to other tenants on the Building’s exterior (or within the Premises).

Landlord shall not place any signage in the Premises or on the exterior of the Building except with Tenant’s prior written consent or where required pursuant to applicable Requirements (e.g., exit signs, signage identifying stand pipes, etc.).

5.7 HAZARDOUS MATERIALS

Landlord represents to Tenant that to Landlord’s knowledge, as of the Commencement Date, the Premises shall be free of Hazardous Materials that would violate Requirements except as disclosed pursuant to Exhibit EXISTING CONDITIONS and Hazardous Materials introduced to the Premises by Tenant or any Tenant Party . In furtherance of, and not in limitation of, the foregoing, Landlord discloses to Tenant, and Tenant acknowledges such disclosure, that the interior of a non-operational boiler which shall remain in the basement of the Building contains asbestos-containing materials. Landlord further represents to Tenant that, as of the date of this Lease, there are no CFC-based refrigerants in the Building’s base building HVAC system. Landlord shall be responsible, at its sole cost and expense, to remove or remediate (or cause the removal or remediation of) any Hazardous Materials (i) found in the Building during the performance of the Landlord’s Work (except to the extent the responsibility of Tenant as provided below) solely to the extent such Hazardous Materials are existing in the Premises in violation of Landlord’s representation set forth in the first sentence of this paragraph or (ii) introduced to the Premises by Landlord after the Commencement Date and during the Lease Term, to the extent required by Requirements. Tenant shall not use, handle, transport, store, or dispose of any oil, hazardous or toxic substances, materials or wastes (collectively “ Hazardous Materials ”) in, under, on or about the Premises, the Building and/or the Lot except for usual and customary office products such as toner or cleaners which contain Hazardous Materials; provided, that (i) such cleansers, office supplies and products are ordinarily and customarily used in the ordinary course of first-class business offices and (ii) any such use is in strict compliance with all applicable Requirements. Without limiting the foregoing, any Hazardous Materials in the Premises, and all containers therefor, shall be used, kept, stored and disposed of with due care and in conformity with all applicable Requirements. If the transportation, storage, use, handling, or disposal of Hazardous Materials in the Premises, the Building, the Lot or anywhere on the Property arising out of or resulting from the acts or omissions of Tenant or its agents, employees, contractors, invitees, guests or others acting by, through or under Tenant, or Tenant’s use of the Premises, results in (1) contamination of the soil, air, surface or ground water or (2)

 

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loss, damage or harm to person(s) or property, then Tenant agrees (i) to notify Landlord immediately of any contamination, claim of contamination, loss or damage, (ii) after consultation with and approval by Landlord, to clean up all contamination in full compliance with all applicable statutes, regulations and standards, and (iii) to indemnify, defend and hold Landlord harmless from and against any claims, suits, causes of action, costs and fees, including, without limitation, reasonable attorneys’ fees, arising from or connected with any such contamination, claim of contamination, loss or damage. The provisions of this Section 5.7 shall survive the expiration or termination of this Lease. No consent or approval of Landlord shall in any way be construed as imposing upon Landlord any liability for the means, methods, or manner of removal, containment or other compliance with applicable Requirements for and with respect to the foregoing. The terms of this Section 5.7 shall apply to any transportation, handling, storage, use or disposal of Hazardous Materials irrespective of whether Tenant has obtained Landlord’s consent therefor.

ARTICLE VI

INSTALLATIONS, ALTERATIONS, AND ADDITIONS

6.1 (a) Tenant shall not make any alterations, additions, improvements, or other physical changes in, about or to the Premises (collectively, together with the Tenant Improvements, “ Alterations ”) (other than Permitted Alterations) without Landlord’s prior consent in each instance. Landlord agrees that Alterations may include the construction of a patio for use by Tenant and its employees near the loading dock serving the Building (the “ Patio ”), but Tenant agrees that construction of the Patio shall not be deemed a Permitted Alteration (as defined below) regardless of amount, and Landlord agrees that the Patio shall not be deemed a Specialty Alteration (as defined below). Landlord may condition its approval of any Specialty Alterations on Tenant’s obligation to remove the same upon the expiration or earlier termination of the Lease Term. Landlord shall not unreasonably withhold, delay or condition its consent to Alterations so long as such Alterations (i) are non-structural and do not adversely affect the Building systems, (ii) are performed only by Landlord’s designated contractors or by contractors or mechanics reasonably approved by Landlord to perform such Alterations, (iii) affect only the Premises, and (iv) are in compliance with all applicable Requirements. Landlord shall not require Tenant to use overtime labor to execute its Alterations.

Notwithstanding the foregoing terms of this Section 6.1, Tenant shall have the right, without obtaining the prior consent of Landlord, but upon prior notice to Landlord as provided below, to make Alterations to the Premises where: (i) the same are within the interior of the Premises, and do not affect the exterior of the Building; (ii) the same do not affect the roof or any structural element of the Building, or the fire protection systems of the Building; (iii) the cost of any individual Alteration shall not exceed $2,500,000 and the aggregate cost of said Alterations made by Tenant during the Lease Term shall not exceed $5,000,000 in cost; (iv) Tenant shall comply with the provisions of this Lease and if such work increases the cost of insurance or taxes, Tenant shall pay for any such increase in cost; and (v) Tenant gives Landlord at least three (3) days’ prior notice describing such work in reasonable detail, accompanied by copies of plans and specifications therefor (to the extent plans and specifications are typically prepared in accordance with such work) (the “ Permitted Alterations ”).

 

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(b) Prior to making any Alterations, Tenant, at its expense, shall (i) submit to Landlord for its written approval in accordance with subsection (a) above, detailed plans and specifications (including layout, architectural, mechanical, electrical, plumbing, sprinkler and structural drawings) of each proposed Alteration, (ii) obtain all permits, approvals and certificates required by any governmental authorities, (iii) furnish to Landlord certificates of worker’s compensation insurance (covering all persons to be employed by Tenant, and Tenant’s contractors and subcontractors in connection with such Alteration), commercial general liability (including property damage coverage) and builder’s risk insurance coverage (issued on a completed value basis) or similar insurance, all in such form, with such companies, for such periods and in such amounts as Landlord may reasonably require, naming Landlord, Landlord’s managing agent (if applicable), and their respective employees and agents, and any mortgagee as additional insureds (notice of which and the address of which having been provided to Tenant), and (iv) if requested by Landlord for Alterations costing more than $250,000 in the aggregate, furnish to Landlord such other evidence of Tenant’s ability to complete and to fully pay for such Alterations as is reasonably satisfactory to Landlord (which may include requiring Tenant to furnish Landlord prior to commencement of any such work a statutory lien bond or other security acceptable to Landlord assuring that any work by Tenant will be completed in accordance with the approved plans and specifications and fully paid for). Upon Tenant’s request, Landlord shall exercise reasonable efforts to cooperate with Tenant in obtaining any permits, approvals or certificates required to be obtained by Tenant in connection with any permitted Alteration (if the provisions of the laws, requirements, regulations, rules, codes, ordinances or guidelines applicable to the Building and Lot (each, a “ Requirement ”) require that Landlord join in such application), provided Landlord shall incur no cost, expense or liability in connection therewith (other than any de minimis expense). Landlord shall approve, disapprove with conditions, or disapprove Tenant’s request for Landlord’s approval of any such plans and specifications for Alterations within ten (10) Business Days from the submission thereof to Landlord. If the plans and specifications are disapproved with conditions or disapproved, Landlord shall set forth in writing its reasons for such disapproval in reasonable detail, and Tenant shall revise the plans and specifications in accordance with Landlord’s objections thereto and shall promptly resubmit revised plans and specifications to Landlord. If Landlord fails to respond to any request for consent to any Alterations within ten (10) Business Days after receiving such request, then Tenant may give Landlord a reminder notice, which reminder notice shall contain the following caption in bold and capitalized type:

YOUR CONSENT TO THE PROPOSED ALTERATION(S) AND THE PLANS THEREFOR (OR ANY RESUBMISSION, AS THE CASE MAY BE) SHALL BE DEEMED GIVEN IF YOU FAIL TO RESPOND TO THIS REQUEST WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF YOUR RECEIPT OF THIS NOTICE.

If Landlord fails to grant or deny the requested consent within ten (10) Business Days after its receipt of such reminder notice, Landlord’s consent thereof shall be deemed given. Upon Tenant’s request, Landlord, at Tenant’s cost and expense, shall join in any applications (including, without limitation, building department applications or the equivalent thereof) for any permits, approvals, or certificates required to be obtained by Tenant in connection with any Alteration (if Requirements shall require that Landlord join in such application) and shall otherwise, without additional expense to Landlord

 

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(other than any de minimis expense), fully, promptly, and diligently cooperate with Tenant and its architects and designers in connection therewith, provided that Landlord shall not be obligated to incur any cost or expense, including, without limitation, attorneys’ fees and disbursements (unless the same relate to the review of customary application forms and the like) unless paid for in advance by Tenant, or suffer any liability in connection therewith. Either party may submit to arbitration pursuant to Article XX any dispute regarding the reasonableness of Landlord’s withholding, conditioning, or delaying of its consent to Tenant’s plans and specifications for any Alteration(s), or any portion thereof.

(c) Tenant may, upon at least five (5) Business Days’ prior written notice to Landlord, file plans for any proposed Alterations with the buildings department or any other applicable governmental authority before Landlord’s approval of such plans; provided that (1) Tenant simultaneously delivers to Landlord a set of such plans if the same have not been delivered to Landlord previously, and (2) in no event shall Tenant be permitted to commence the work or to pull or otherwise obtain the permit or licenses to be issued by the buildings department authorizing such work until Landlord has approved such plans (or such approval has been deemed given in accordance with this Lease).

(d) Within thirty (30) days following completion of any Alterations, Tenant, at its expense, shall obtain and deliver to Landlord: (i) copies of paid invoices covering all of the Alterations, (ii) final waivers of lien from all contractors, subcontractors and material suppliers performing work or providing material in connection with the Alterations, (iii) proof of the satisfactory completion of all required inspections and the issuance of any required approvals and sign-offs by Governmental Authorities with respect thereto, (iv) “as-built” plans and specifications for such Alterations, (v) a written certification in the form of the AIA Document G702 (or, if such document is no longer in use, such other form as Landlord shall reasonably approve) from Tenant’s architect stating that (A) the Alterations have been completed in accordance with the plans and specifications approved by Landlord, (B) such work has been paid in full by Tenant, and (C) all contractors, subcontractors and materialmen have delivered to Tenant waivers of lien with respect to such work (copies of which shall be included with such architect’s certification), and (vi) such other documents and information as Landlord may reasonably request.

(e) All Alterations shall be performed (1) in a good and first-class workerlike manner and free from defects, (2) in accordance with the plans and specifications approved by Landlord, and by contractors approved by Landlord, (3) excepting only decorative alterations, under the supervision of a licensed architect reasonably satisfactory to Landlord, and (4) in compliance with all Requirements, the terms of this Lease, all reasonable and non-discriminatorily enforced procedures and regulations then prescribed by Landlord for coordinating all work performed in the Building. Any new procedures and regulations enacted by Landlord after the approval of any Alterations shall not apply to the performance of Alterations until after such Alterations have been substantially completed, except to the extent that any new procedures and regulations have been made and Tenant has been given notice of the same before the bidding of a contract for the Alterations in question. If Tenant disputes the reasonableness of any

 

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change or addition to the procedures and regulations hereafter adopted by Landlord, the dispute shall be determined by expedited arbitration in accordance with Article XX. Any such determination shall be final and conclusive upon the parties hereto. All materials and equipment to be used in the Premises shall be of at least as good quality as standard materials used in other areas of the Building, and at least equal to the applicable reasonable standards for the Building then established by Landlord. No such materials or equipment shall be subject to any lien or other encumbrance, except that Tenant may lease or finance purchases of Tenant’s Property in accordance with Section 7.10.

(f) All voice, data, video, audio and other low voltage control transport system cabling and/or cable bundles installed in the Building by Tenant or its contractor (collectively, “ Cables ”) shall be in compliance with all Requirements and installed and routed in accordance with a routing plan showing “as built” or “as installed” configurations of cable pathways, outlet identification numbers, locations of all wall, ceiling and floor penetrations, riser cable routing and conduit routing (if applicable), and such other information as Landlord may reasonably request. The routing plan shall be available to Landlord and its agents at the Building upon request. Upon the expiration or earlier termination of the Lease, Tenant shall remove all Cables from the Premises to the extent the same must be removed per the Requirements.

(g) All personal property, trade fixtures and other movable equipment (“ Tenant’s Property ”) shall be and remain the property of Tenant; Tenant may remove the same at any time on or before the expiration date and shall remove the same from the Premises upon the expiration or earlier termination of the Lease Term. Tenant shall repair and restore, in a good and workerlike manner, any damage to the Premises or the Building resulting from or caused by Tenant’s removal of any Tenant’s Property or Alterations and if Tenant fails to do so, Tenant shall reimburse Landlord, within thirty (30) days of demand, for Landlord’s cost of repairing and restoring such damage. Any Tenant’s Property not so removed shall be deemed abandoned and Landlord may remove and dispose of same, and repair and restore any damage caused thereby, at Tenant’s cost and without liability to or recourse by Tenant or anyone claiming by, through or under Tenant. The foregoing provisions shall survive the expiration or earlier termination of this Lease.

(h) [Intentionally Omitted].

(i) Tenant, at its expense, shall discharge any lien or charge filed or arising against the Premises and/or the Property (or any part thereof) arising out of or resulting from any work or service claimed to have been done by or on behalf of, or materials claimed to have been furnished to, Tenant or anyone claiming by, through or under Tenant, within ten (10) days after Tenant’s receipt of notice thereof by payment or filing the bond required by law or otherwise.

(j) Tenant shall pay promptly to Landlord or its designee, upon demand, all reasonable, third-party, out-of-pocket costs actually incurred by Landlord in connection with Tenant’s Alterations, including costs incurred in connection with (a) Landlord’s review of the Alterations (including review of requests for approval thereof) and (b) the

 

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provision of Building personnel during the performance of any Alteration to operate elevators or otherwise to facilitate any Alterations, except that no such costs and expenses shall be reimbursable or payable by Tenant with respect to the Tenant Improvements except as set forth on Exhibit WORK LETTER . Upon Tenant’s written request in connection with the submission of Alterations for review, Landlord shall provide Tenant with a good faith, non-binding estimate of the anticipated costs described in the immediately preceding sentence with respect to such Alterations. In addition, if Tenant’s Alterations shall cost more than $100,000.00, Tenant shall pay to Landlord or its designee, upon demand, an administrative fee in the amount of three percent (3%) of the total cost of such Alterations, in respect of the performance of such Alterations and the scheduling of equipment, facilities and personnel in connection therewith provided that the foregoing shall not apply to the Tenant Improvements.

(k) The approval of plans or specifications, or consent by Landlord to the making of any Alterations, shall not constitute Landlord’s agreement or representation that such plans, specifications or Alterations comply with any applicable codes, laws, rules, regulations, ordinances, or by-laws. Landlord shall have no liability to Tenant or any other party in connection with Landlord’s approval of any plans and specifications for any Alterations, or Landlord’s consent to Tenant’s performing any Alterations.

(l) All Alterations (including the Tenant Improvements), including fixtures, equipment, improvements and appurtenances attached to, or built into, the Premises at the commencement of or during the Lease Term, whether or not by, or at the expense of, Tenant shall be and remain a part of the Premises and shall be the property of Landlord. Tenant shall have no obligation to remove the same except as expressly provided herein. Notwithstanding anything contained in this Lease to the contrary, Tenant may at any time remove any built-in equipment (including without limitation supplemental HVAC units, security systems, wireless communication systems, satellite dishes and cellular repeaters/antennae) installed by or on behalf of Tenant (and exclusively serving Tenant) except to the extent installed as part of the Tenant Improvements and provided that such removal does not cause any damage to the Premises (other than incidental damage associated with the removal process that is repaired by Tenant) or leave the Premises in untenantable condition. Landlord may condition its approval of any Alterations on Tenant removing Specialty Alterations (as defined below) contained therein prior to the expiration or earlier termination of the Lease Term, provided, however, that Tenant shall not be required to remove any Specialty Alterations (or a particular Specialty Alteration or portion thereof) from the Premises to the extent that Landlord, in good faith, determines that the next tenant leasing the Premises after the Expiration Date desires that such Specialty Alterations (or any portion thereof) remain in the Premises upon the commencement of the term of such tenant’s lease (Landlord agreeing that it shall, upon written notice given to Tenant no later than one hundred eighty (180) days prior to the expiration of the Lease Term, identify to Tenant any Specialty Alterations to remain a part of the Premises on account of the operation of this sentence, in which case Tenant shall have no obligation to remove such Specialty Alterations so identified by Landlord). If, at the time that Tenant requests Landlord’s consent to any Alteration(s) or notifies Landlord of a Permitted Alteration, Tenant requests that Landlord inform Tenant whether Landlord will require Tenant to remove any Alteration(s) that constitute Specialty

 

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Alterations at the end of the Lease Term, Landlord will so advise Tenant at or before the time Landlord consents to such Specialty Alterations. If Landlord fails to notify Tenant with respect to whether Tenant will be required to remove any of such Specialty Alterations at the time Landlord gives (or is deemed to have given) its consent to such Specialty Alterations, then Tenant shall have the right to give Landlord a reminder notice, which reminder notice shall contain the following caption on the first page thereof in bold and capitalized type:

YOU SHALL BE DEEMED TO HAVE ELECTED NOT TO REQUIRE TENANT TO REMOVE THE SPECIALTY ALTERATIONS PROPOSED BY TENANT SET FORTH IN TENANT’S NOTICE GIVEN PURSUANT TO SECTION 6.1(L) OF THE LEASE DATED                      , 2014 IF YOU FAIL TO RESPOND TO SUCH NOTICE WITHIN FIVE (5) BUSINESS DAYS AFTER YOUR RECEIPT OF THIS NOTICE.

If Tenant sends a reminder notice to Landlord as aforesaid and Landlord fails to respond to Tenant within five (5) Business Days after its receipt of such reminder notice, then Landlord shall, automatically and without further act by any party, be deemed to have elected not to require Tenant to remove such Specialty Alterations. Any dispute between Landlord and Tenant arising under this Section 6.1(l) shall be resolved by arbitration in accordance with Article XX. Tenant shall have no other removal obligation other than the obligation set forth above. For purposes of this Lease, the term “ Specialty Alterations ” shall mean Alterations consisting of kitchens (other than pantries, microwaves, sinks, refrigerators, and coffee machines), satellite dishes and cellular repeaters/antennae, Roof Equipment, generator or other emergency power systems, executive and unisex bathrooms (except as required by Requirements), wiring and other equipment installed within or beneath raised computer or trading floors, vaults, vertical and/or horizontal transportation systems, dumbwaiters, pneumatic tubes, any penetrations or other Alterations to the floor slab (to the extent created by Tenant) other than typical core drillings for conduit, any internal staircases, changes to the Fire Stairs described in Section 2.2, and other Alterations of a similar character that are not consistent with standard office installations.

ARTICLE VII

ASSIGNMENT AND SUBLETTING

7.1 PROHIBITION

Except as otherwise specifically provided in this Lease to the contrary, Tenant shall not, directly or indirectly, assign, mortgage, pledge or otherwise transfer, voluntarily or involuntarily, this Lease or any interest herein or sublet (which term without limitation, shall include granting of concessions, licenses, and the like) or allow any other person or entity to occupy the whole or any part of the Premises, without, in each instance, having first received the express consent of Landlord as provided in this Article VII. Except as provided in Section 7.7, any assignment, mortgage, pledge, transfer of this Lease or subletting of the whole or any part of the Premises by Tenant without Landlord’s express consent shall be invalid, void and of no force or effect. This prohibition includes, without limitation, any assignment, subletting, or other transfer which

 

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would occur by operation of law, merger, consolidation, reorganization, acquisition, transfer, or other change of Tenant’s corporate, ownership, and/or proprietary structure, including, without limitation, a change in the partners of any partnership, a change in the members and/or managers of any limited liability company, and/or the sale, pledge, or other transfer of any of the issued or outstanding capital stock of any corporate Tenant.

Subject to the provisions of Section 7.7, below, if Tenant is a corporation, the transfer (by one or more transfers) of a majority of the stock of Tenant shall be deemed a voluntary assignment of this Lease provided that such transfer results in a change in control of Tenant. For purposes of this Section 7.7 the term “ transfers ” shall be deemed to include the issuance of new stock which results in a majority of the stock of Tenant being held by a person or entity that does not hold a majority of the stock of Tenant on the date hereof. If Tenant is a partnership, the transfer (by one or more transfers) of a majority interest in the partnership shall be deemed a voluntary assignment of this Lease. If Tenant is a limited liability company, trust, or any other legal entity, the transfer (by one or more transfers) of a majority of the beneficial ownership interests in, or the right(s) to manage and/or direct the operations of, such entity, however characterized, shall be deemed a voluntary assignment of this Lease.

In any case where Landlord shall consent to any assignment or subletting or if an assignment or sublet is permitted without Landlord’s consent hereunder, Tenant originally named herein shall remain fully liable for all obligations of Tenant hereunder, including, without limitation, the obligation to pay the rent and other amounts provided under this Lease and such liability shall not be affected in any way by any future amendment, modification, or extension of this Lease or any further assignment, other transfer, or subleasing and Tenant hereby irrevocably consents to any and all such transactions and no amendment of this Lease or waiver of, or consent to or departure from, any of the terms and conditions of this Lease shall constitute a novation or otherwise release any predecessor tenants; provided, however, that if such an assignment shall require Landlord’s consent hereunder, Tenant shall not be bound to the extent of any amendment to this Lease solely increasing the obligations of the assignor Tenant hereunder (other than an amendment evidencing rights expressly granted to Tenant hereunder, such as pursuant to a right of extension) occurring after such consent to assignment. It shall be a condition of the validity of any permitted assignment or subletting that the assignee or sublessee agree directly with Landlord, in form reasonably satisfactory to Landlord, to be bound by all obligations of Tenant hereunder jointly and severally with Tenant originally named herein, accruing from and after the date of the assignment or sublet, as applicable, including, without limitation, the obligation to pay all Rent and other amounts provided for under this Lease and the covenant against further assignment or other transfer or subletting, but for such subletting only with respect to the portion of the Premises so subleased. If the Premises or any part thereof be sublet or occupied by anyone other than Tenant, Landlord may at any time and from time to time while a Default of Tenant is continuing, collect Rent and other charges from the assignee, subtenant or occupant, and apply the net amount collected to the Rent herein reserved.

7.2 FURTHER ASSIGNMENT AND SUBLETTING

Landlord’s consent to any assignment or subletting shall not relieve Tenant from the obligation to obtain Landlord’s express consent to any further assignment or subletting to the extent required hereunder and using the same standards as are applicable to an assignment,

 

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subletting or underletting by Tenant. In no event shall any permitted subtenant or assignee assign or encumber its sublease or further sublet any portion of the Premises, or otherwise suffer or permit any portion of the Premises to be used or occupied by others except subject to, and in compliance with, all of the terms, covenants and provisions of this Lease, which shall be applicable to any such further assignment or sublease to the extent required hereunder and using the same standards as are applicable to an assignment, subletting or underletting by Tenant.

Except where Landlord shall have exercised its option to terminate this Lease under Section 7.3 below, no transfer of any interest in this Lease, and no execution and delivery of any instrument of assumption pursuant to Section 7.1 hereof, shall in any way affect or reduce any of the obligations of Tenant under this Lease, but this Lease and all of the obligations of Tenant under this Lease shall continue in full force and effect as the obligations of a principal (and not as the obligations of a guarantor or surety). From and after any assignment of this Lease, the obligations of each such transferee and of the original Tenant named as such in this Lease to fulfill all of the obligations of Tenant under this Lease shall be joint and several. Each violation of any of the covenants, agreements, terms or conditions of this Lease, whether by act or omission, by any transferee, shall constitute a violation thereof by Tenant.

7.3 NOTICE OF ASSIGNMENT OR SUBLEASE; TERMINATION RIGHTS

If Tenant desires to assign this Lease or sublet all or any portion of the Premises, then Tenant shall give notice thereof to Landlord, which notice shall be accompanied by (a) the date Tenant desires the assignment or sublease to be effective, (b) the material business terms on which Tenant would assign this Lease or sublet all or such portion of the Premises, and (c) in the case of a sublease, a description of the portion of the Premises to be sublet. Such notice shall also include (i) a true and complete statement reasonably detailing the identity of the proposed assignee or subtenant, the nature of its business, and its proposed use of the Premises, (ii) current financial information with respect to the proposed assignee or subtenant, including, without limitation, its most recent financial statements, and (iii) such other information Landlord may reasonably request.

Such notice, if with respect to an assignment of this Lease or a sublet resulting in the sublet of at least 75% of the Premises in the aggregate (but expressly excluding permitted transfers pursuant to Section 7.7 below other than Minor Sublets) for at least 75% of the remaining term, shall be deemed an offer from Tenant to Landlord whereby Landlord shall be granted the right, at Landlord’s option, to terminate this Lease, upon the terms and conditions hereinafter set forth. Such option may be exercised by notice from Landlord to Tenant within twenty (20) days after Landlord’s receipt of Tenant’s notice. If Landlord exercises its option to terminate this Lease pursuant to the foregoing provisions, then (a) this Lease shall end and expire on the date that such assignment or sublease was to commence (as if such date were the expiration date of the term hereof), (b) Rent shall be apportioned, paid or refunded as of such date, (c) Tenant, upon Landlord’s request, shall enter into an agreement confirming such termination, and (d) Landlord shall be free to lease the Premises or any part thereof, to any person or persons, including, without limitation, to Tenant’s prospective assignee or subtenant (provided that if Landlord enters into a lease for the Premises with Tenant’s prospective assignee or subtenant within one year following such termination, then Landlord shall reimburse Tenant for Tenant’s actual out-of-pocket costs incurred in the negotiation of such proposed assignment

 

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or sublet in an amount not to exceed $50,000 within thirty (30) days following invoice therefor, accompanied by invoices or other evidence of such payments reasonably satisfactory to Landlord). Notwithstanding the foregoing, within five (5) Business Days after receipt of Landlord’s termination notice, if any, delivered pursuant to this paragraph, Tenant may give Landlord notice that Tenant desires to rescind its request for consent to the proposed transfer, in which event Landlord’s recapture notice shall have no force or effect and Tenant shall recommence the process under this Section 7.3 prior to entering into any proposed transfer.

7.4 CONSENT TO ASSIGNMENT OR SUBLEASE

Provided that no Default of Tenant has occurred and is continuing hereunder, then, subject to the following provisions, Landlord’s consent to the proposed assignment or subletting shall not be unreasonably withheld. Landlord shall respond to such request within twenty (20) days as further provided below. Tenant shall, upon demand, reimburse Landlord for all actual, reasonable out-of-pocket expenses incurred by Landlord in connection with such assignment or sublease, including, without limitation, all reasonable legal fees and expenses reasonably incurred by Landlord in connection with the granting of any requested consent.

In no event shall Landlord be considered to have withheld its consent unreasonably to any proposed assignment or subletting if:

(1) the proposed assignee or subtenant does not have sufficient financial means to perform all of its obligations under this Lease or the sublease, as the case may be, and/or Landlord has not been furnished with reasonable proof thereof, or would otherwise adversely affect Landlord’s qualification for or use of historic tax credits;

(2) the proposed assignee or subtenant (i) is or has been under criminal investigation (other than for misdemeanor offenses of a de minimis nature) or is otherwise subject to material litigation that may have adverse consequences for such assignee’s or subtenants’ financial condition; (ii) is subject to an ongoing investigation for alleged violations of Requirements by the Securities and Exchange Commission of the United States or any successor agency, (iii) is or has been within the prior two years in default beyond applicable notice and cure periods of any monetary or material non-monetary covenant under a lease with Landlord or an affiliate of Landlord, or (iv) cannot make the representation and warranty set forth in Section 17.23 of this Lease.

(3) the proposed assignee or sublessee will use the Premises for (a) a use which does not comply with the conditions and restrictions set forth in this Lease, or (b) a use which could materially overburden the Premises, the Building, the exterior common areas on the Property;

(4) [intentionally omitted];

(5) the form of the proposed sublease or instrument of assignment is not reasonably satisfactory to Landlord;

 

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(6) after such assignment or sublease, there shall be more than eight (8) subtenants in the aggregate at any one time;

(7) the proposed subtenant or assignee shall be entitled, directly or indirectly, to diplomatic or sovereign immunity, regardless of whether the proposed assignee or subtenant agrees to waive such diplomatic or sovereign immunity, and/or shall not be subject to the service of process in, and the jurisdiction of the courts of, the Commonwealth of Massachusetts for all matters relating to such assignment or sublease;

(8) the proposed assignee or sublessee shall be an employment agency (except for the corporate offices thereof where no agency services are undertaken in the Premises) or a domestic or foreign governmental or quasi-governmental entity or agency; or

(9) a lawsuit is then pending or threatened between Landlord or any affiliate of Landlord and the proposed assignee or subtenant (or affiliates thereof) (any assignee or subtenant described under clauses (2)-(3) or (6)-(9) hereof being referred to herein as a “ Prohibited Tenant ”).

Landlord shall advise Tenant of its consent to or rejection (with any rejection specifying in reasonable detail the reasons for such rejection) of the proposed assignment or sublease (subject to, and in accordance with, the other relevant provisions of this Article) by notifying Tenant in writing within twenty (20) days’ receipt thereof. If Landlord fails to respond to a request for consent to a sublet (but not an assignment) within such twenty (20)-day period, Tenant may give to Landlord a reminder notice, which reminder notice shall contain the following caption on the first page thereof in bold and capitalized type:

YOU SHALL BE DEEMED TO HAVE GRANTED THE CONSENT REQUESTED IN TENANT’S TRANSFER NOTICE DATED                    , 20     IF YOU FAIL TO RESPOND TO SUCH NOTICE WITHIN TEN (10) BUSINESS DAYS AFTER YOUR RECEIPT OF THIS NOTICE.

If Tenant sends a reminder notice to Landlord as aforesaid and Landlord fails to respond to Tenant within ten (10) Business Days after its receipt of such reminder notice, then Landlord shall be deemed to have granted its consent with respect to such sublet.

If a Default of Tenant shall occur and be continuing at any time prior to the effective date of such assignment or subletting, then Landlord’s consent thereto, if previously granted may be withdrawn by Landlord by written notice to Tenant, and such consent shall be void and without force and effect.

7.5 SUBORDINATION

Each sublease shall be subject and subordinate to this Lease and to the matters that this Lease is or shall be subordinate, it being the intention of Landlord and Tenant that Tenant shall assume and be liable to Landlord for any and all acts and omissions of all subtenants and anyone claiming under or through any subtenants which, if performed or omitted by Tenant, would be a

 

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default under this Lease. Each sublease shall terminate upon the expiration or termination of this Lease, provided that if this Lease shall expire or terminate during the term of any sublease for any reason, or if Tenant shall surrender this Lease to Landlord during the term of any sublease, Landlord, in its sole discretion, upon written notice given to Tenant and the subtenant not more than thirty (30) days after the effective date of such expiration, termination or surrender, without any additional or further agreement of any kind on the part of subtenant, may elect to continue such sublease with the same force and effect as if Landlord as lessor and subtenant as lessee had entered into a direct lease as of such effective date for a term equal to the then unexpired term of such sublease and containing the same terms and conditions as those contained in the sublease, and, if Landlord shall so elect, the subtenant shall attorn to Landlord and Landlord and the subtenant shall thereupon have the same rights, obligations and remedies thereunder as were had by Tenant and the subtenant thereunder prior to such effective date, respectively, except that in no event shall Landlord be (a) liable for any act or omission by Tenant, or (b) subject to any offsets or defenses which the subtenant had or might have against Tenant, (c) bound by any rent or additional rent or other payment paid by the subtenant to Tenant in advance, or (d) bound by any amendment to the Sublease not consented to by Landlord.

7.6 PROFITS

If Tenant shall enter into any assignment or sublease permitted hereunder that, pursuant to the provisions of this Lease, requires Landlord’s consent, Tenant shall, within sixty (60) days after Landlord’s consent to such assignment or sublease, deliver to Landlord a complete list of Tenant’s reasonable third-party brokerage fees, legal fees and architectural fees paid or to be paid in connection with such transaction, together with a list of all of Tenant’s personal property to be transferred to such assignee or sublessee. Tenant shall deliver to Landlord evidence of the payment of such fees promptly after the same are paid. In consideration of such assignment or subletting, Tenant shall pay to Landlord:

(a) In the case of an assignment of this Lease, on the effective date of the assignment, an amount equal to 50% of all sums paid to Tenant by the assignee for such assignment (including sums paid for the sale or rental of Tenant’s personal property, less, in the case of a sale thereof, the then fair market value of such personal property, as reasonably determined by Landlord) after first deducting Tenant’s reasonable third-party brokerage fees, legal fees and architectural fees and improvement allowances in connection with such assignment; or

(b) in the case of a sublease, 50% of the excess of the rent and other sums paid under the sublease to Tenant by the subtenant (together with any sums paid for the sale or rental of Tenant’s personal property, less, in the case of the sale of such personal property, the then fair market value thereof, as reasonably determined by Landlord) over the Base Rent and other sums payable under this Lease (appropriately pro-rated for any sublease of less than the entire Premises) after first deducting Tenant’s reasonable third- party brokerage fees, legal fees, architectural fees, improvement allowances and rent concessions paid or credited by Tenant in connection with such sublease amortized ratably over the term of such sublease. The sums payable under this clause shall be paid by Tenant to Landlord within thirty (30) days of when paid by the subtenant to Tenant.

 

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7.7 PERMITTED TRANSFERS

The prohibition contained in Section 7.1 hereof shall not apply to the transfer of shares of stock of Tenant if and so long as such stock of Tenant is publicly traded on a nationally recognized stock exchange. The prior consent of Landlord shall not be required with respect to assignments or sublets to a Related Corporation (as defined below), or assignments to a corporation into or with which Tenant is merged or consolidated or to which all or substantially all of Tenant’s assets are transferred (a “ Successor Entity ”), in each case so long as (i) such transfer was made for a legitimate independent business purpose and not for the purpose of transferring this Lease, (ii) the successor to Tenant (e.g. in the event of a merger, the resulting tenant under the Lease) has a tangible net worth of at least $139,000,000.00, cash and cash equivalents on hand of at least $103,600,000.00, a debt-to-equity ratio of less than .49, and a ratio of current assets to current liabilities of at least 2.9, in each case as determined in accordance with generally accepted accounting principles, consistently applied, and in the manner shown on Tenant’s financial statements for the year ending December 31, 2015, (iii) proof satisfactory to Landlord of such net worth and other matters described in the preceding clause (ii) is delivered to Landlord at least ten (10) days prior to the effective date of any such transaction, (iv) no Default is then continuing, and (v) the assignee or surviving entity agrees to assume the obligations of Tenant and be bound by the provisions of this Lease. Provided that a Default is not then continuing, Tenant may sublicense a portion of the Premises not to exceed 10% in the aggregate to any outsource contractor providing services to or for Tenant having a bona fide business need based on its business relationship with Tenant (a “ Tenant Partner ”) for such occupancy so long as the space to be occupied by such Tenant Partner is not separately demised, the arrangement is a revocable license, and Landlord is given (i) prior written notice of such arrangement with evidence reasonably satisfactory to Landlord of such relationship, and (ii) a copy of the sublicense, which must provide that the nature of such agreement is a sublicense and that it is subject and subordinate to this Lease. A “ Related Corporation ” shall mean a corporation or other business entity that controls, is controlled by, or is under common control with Tenant, for so long as it maintains such status. For the purposes hereof, “ control ” shall be deemed to mean (x) ownership of not less than fifty-one percent (51%) of all of the voting stock of such corporation or not less than fifty-one percent (51%) of all of the legal and equitable interest in any other business entity if such entity is not a corporation and (y) the ability to control the day-to-day affairs of such corporation or entity. In no event shall the provisions of Section 7.6 apply to the transactions and transfers permitted without Landlord’s consent pursuant to this paragraph.

Notwithstanding anything to the contrary contained in this Lease, Tenant shall further have the right, with thirty (30) days’ prior written notice to Landlord (which notice shall include a copy of the fully executed sublease), but without Landlord’s consent, to sublet a portion of the Premises not to exceed the greater of (i) 31,000 rentable square feet in the aggregate, and (ii) two (2) full floors in the Building, to up to eight (8) third-party subtenants for a term not to exceed the then remaining Lease Term, provided that such subtenant is not a Prohibited Tenant at the time of such subletting. Upon Tenant’s written request, Landlord shall notify Tenant whether any proposed subtenant is, in Landlord’s good faith opinion, a Prohibited Tenant. Any sublease pursuant to this paragraph (a “ Minor Sublease ”) shall be subject to all of the provisions of this Article VII other than the obligation to obtain Landlord’s prior written consent.

 

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7.8 NO WAIVER

The acceptance by Landlord of the payment of Rent, additional rent or other charges from an assignee or sublease shall not be considered to be a consent by Landlord to any such assignment, sublease, or other transfer, nor shall the same constitute a waiver of any right or remedy of Landlord. The listing of any name other than that of Tenant on the doors of the Premises, the Building directory or elsewhere shall not vest any right or interest in this Lease or in the Premises, nor be deemed to constitute Landlord’s consent to any assignment or transfer of this Lease or to any sublease of the Premises or to the use or occupancy thereof by others. Any such listing shall constitute a privilege revocable in Landlord’s discretion by notice to Tenant.

7.9 INSURANCE AND WAIVER OF SUBROGATION

Any party occupying all or any portion of the Premises pursuant to this Article 7 shall comply with the indemnity, insurance and waiver of subrogation provisions of the Lease applicable to Tenant.

7.10 SECURITY AGREEMENTS

Notwithstanding anything to the contrary contained in this Lease, any of Tenant’s Property consisting of goods, machinery, equipment, appliances or other personal property located or installed by Tenant in the Premises may be purchased or acquired by Tenant subject to a chattel mortgage, conditional sale agreement or other title retention or security agreement (each, a “ Security Agreement ”), provided that (i) no such Security Agreement or Uniform Commercial Code filing statement relating thereto shall be permitted to be filed as a lien against Landlord, the Building, the Lot, any Alterations, or any fixtures, (ii) no lender shall have any right to remove such Tenant’s Property from the Building without Landlord’s approval, which approval may be withheld in Landlord’s reasonable discretion, and (iii) such Security Agreement shall provide that (x) before the removal of such Tenant’s Property, such lender shall give reasonable prior written notice to Landlord of its intent to remove Tenant’s Property, (y) such lender shall repair any and all damage caused to the Premises or the Building by reason of such removal, and (z) Landlord shall have no liability to such lender in the event that such Tenant’s Property shall not be removed by such lender before the expiration or earlier termination of this Lease.

7.11 DISPUTES

Any disputes between Landlord and Tenant under this Article VII shall be resolved by expedited arbitration in accordance with Article XX.

ARTICLE VIII

REPAIRS AND MAINTENANCE

8.1 TENANT OBLIGATIONS

(a) Throughout the Lease Term, Tenant shall keep the Premises and every part thereof (including, without limitation, utility and Building systems serving the Premises, wherever located) in good working order, condition, and repair, in keeping with other similarly-

 

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aged renovated historic office buildings located in the Fort Point Channel district of Boston, reasonable wear and tear and damage by casualty, as a result of condemnation, as a result of the failure of Landlord to provide services required to be provided hereunder only excepted, or to the extent necessitated by Landlord’s negligence or willful acts or those of its contractor or agents (subject to the provisions of Section 11.5 hereof); and shall return the Premises to Landlord at the expiration or earlier termination of the Lease Term in such condition. In furtherance of the foregoing, Tenant shall maintain, at its expense, maintenance contracts on the HVAC systems, elevators, life/safety systems, generators and fire pump systems serving the Building throughout the Term of this Lease.

(b) Provided no Default of Tenant exists hereunder, to the extent that the Tenant’s obligations under Section 8.1(a) would require Tenant to incur a capital expenditure (as determined in accordance with generally accepted accounting principles) which is expected to exceed $25,000 during the final three (3) years of the Term (as the same may be extended hereunder) for replacement of a Building system which was initially installed by Landlord as part of the Base Building Work (as defined in Exhibit WORK LETTER ) with a useful life (determined in accordance with generally accepted accounting principles) exceeding the remainder of the Term (the “ Late Term Capital Expenditure ”), then Landlord agrees to contribute to the cost of the Late Term Capital Expenditure, which contribution shall be calculated by: (i) dividing the remaining useful life of the capital replacement upon the Expiration Date (as the same has been, or may thereafter, be extended) by the total useful life of the capital replacement, and then (ii) multiplying the result obtained in (i) above by the actual and reasonable cost of the capital replacement (by way of example, if a Late Term Capital Expenditure will have a ten-year useful life when put into service and the Expiration Date occurs two (2) years thereafter, then within thirty (30) days after the Expiration Date Landlord shall reimburse Tenant for eighty percent (80%) of the cost of the Late Term Capital Expenditure, subject to the Tenant’s strict compliance with the remainder of this Section 8.1(b):

(1) In no event shall the provisions of this Section 8.1(b) be applicable if the capital replacement was necessitated as a result of Tenant’s negligent or willful failure to maintain the Building system at issue in good order and repair throughout the Lease term as required hereunder (including, without limitation, any failure to maintain any maintenance contracts or perform maintenance and repairs specified thereunder);

(2) To the extent Tenant determines that a Late Term Capital Expenditure is necessary, Tenant shall notify Landlord not less than thirty (30) days prior to the undertaking the Late Term Capital Expenditure (the “ Capital Expenditure Notice ”), which notice shall include a report or opinion of a third- party mechanical engineer indicating that the Late Term Capital Expenditure is necessary;

(3) Within a reasonable time after receipt of the Capital Expenditure Notice, Landlord shall have the right to inspect by itself or through its engineer the applicable Building system to determine if a replacement is necessary. If Landlord or its engineer determine that a Late Term Capital Expenditure is not required, Landlord shall so notify Tenant. If Tenant disagrees with such

 

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determination, Landlord and Tenant shall have a period of thirty (30) days to reach agreement on the need for the Late Term Capital Expenditure and/or agree on another method of resolving the issue. If the parties remain unable to reach agreement, then either party may submit the matter to arbitration pursuant to Section III of Exhibit Work Letter . Further, if the Late Term Capital Expenditure would occur during the last year of the Term, Landlord shall have the right to waive Tenant’s obligation to perform the same.

(4) Landlord shall have the right to control the replacement of any Building system undertaken pursuant to this Section 8.1(b), and any replacement under this Section 8.1(b), whether performed by Landlord or Tenant, shall be of comparable quality to the Building system being replaced.

8.2 LANDLORD OBLIGATIONS

Except as may be provided in Articles XII and XIII and subject to the provisions of Section 8.3, below, Landlord agrees to keep in good working order, condition, and repair the roof and all structural components of the Building (including, without limitation, the foundation, floor/ceiling slabs, roof, curtain walls (if any), exterior glass and mullions, columns, beams, and shafts (except for shafts installed by Tenant) and including prevention of water infiltration), and exterior entrances, commensurate with such other similarly-aged renovated historic office buildings located in the Fort Point Channel district of Boston provided, however, that Tenant shall reimburse Landlord, as additional rent hereunder, within thirty (30) days after receipt of Landlord’s invoice therefor, for the costs of maintaining, repairing, or otherwise correcting any condition to the extent caused by or arising out of an negligent act or omission or Default under this Lease of Tenant or any employee, agent, or contractor of Tenant or any other party for whose conduct Tenant is responsible (but subject to the provisions of Section 11.5). Without limitation, Landlord shall not be responsible to make any improvements or repairs other than as expressly provided in this Lease. In addition, Landlord shall not be liable for any failure to make such repairs unless and until Tenant has given notice to Landlord of the need to make such repairs and Landlord has failed to commence to make such repairs within thirty (30) days of the giving of such notice, or, if such repairs are not capable of being completed within said 30-day period, without having commenced such repairs in such 30-day period and having failed to diligently prosecute such repairs to completion.

8.3 CAUSES BEYOND CONTROL OF THE PARTIES

Except as otherwise expressly provided in Articles XII and XIII, in no event shall either party be liable to the other for failure to perform any of its obligations under this Lease (excluding monetary obligations) when prevented from doing so by causes beyond its reasonable control, including, without limitation, labor dispute, breakdown, accident, order or regulation of or by any governmental authority, or failure of supply, or inability by the exercise of reasonable diligence to obtain supplies, parts, or employees necessary to furnish services required under this Lease, or because of war or other emergency, or for any cause due to any act, neglect, or default of the other party or the other party’s servants, contractors, agents, employees, licensees or any person claiming by, through or under the other party. Nothing in this Section 8.3 shall excuse Landlord or Tenant’s failure to make payments under this Lease when due. Without limiting the

 

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foregoing, in no event shall either party ever be liable to the other for any indirect, special or consequential damages under the provisions of this Section 8.3 or any other provision of this Lease, except as set forth in Section 17.11, and provided that no remedy expressly set forth in this Lease shall be deemed special, indirect or consequential. Upon the occurrence of an event described in this Section 8.3 that excuses a party from performance hereunder, the party so excused shall in each instance exercise reasonable diligence to effect performance to the extent feasible on account of such event.

ARTICLE IX

SYSTEMS AND SERVICES TO BE FURNISHED BY LANDLORD; UTILITIES

9.1 HEATING, VENTILATION AND AIR CONDITIONING

Landlord shall provide heating, ventilation and cooling equipment (the “ HVAC System ”) in accordance with the BBW Plans and Specifications (as defined in Exhibit WORK LETTER ) in good and operational condition on the Commencement Date. Tenant shall not install any supplementary or auxiliary HVAC equipment to serve the Premises without Landlord’s prior consent in each instance, which consent shall not be unreasonably withheld but which may include the requirement to pay for condenser water or other actual, reasonable third- party costs of Landlord related thereto. Landlord shall not be responsible if the HVAC System shall fail to provide cooled or heated air, as the case may be, by reason of (i) any machinery or equipment installed by or on behalf of Tenant, which shall have an electrical load in excess of the average electrical load for the HVAC System as designed, or (ii) any Alterations made or performed by or on behalf of Tenant. Tenant at all times shall cooperate fully with Landlord and shall abide by the rules and regulations which Landlord may reasonably prescribe for the proper functioning and protection of the HVAC System. Without limitation, in no event shall Tenant introduce into the Premises personnel or equipment that overloads the capacity of the HVAC System or in any other way interferes with the HVAC System’s ability to perform adequately its proper functions, or that affects the temperature otherwise maintained by the HVAC System, provided that Tenant may install supplemental HVAC units in the Premises or as part of the Roof Equipment in accordance with the provisions of Section 17.17.

9.2 ELECTRICITY

The Building capacity for electrical service serving the Premises shall be as set forth in the BBW Plans and Specifications. The Premises shall be served by an electric meter measuring all use of electrical energy in the Premises and Tenant shall be billed directly on a monthly basis by the utility company providing such energy. Tenant agrees to pay all such utility bills when due.

9.3 INTENTIONALLY OMITTED

9.4 WATER

Tenant shall have the right to use the water and sewer service serving the Premises as of the date hereof. If permitted by Requirements, Tenant shall contract directly with the providers of water and sewer service to the Premises, and shall pay directly to the providers as they become due, all charges for the same furnished to, or consumed in, the Premises. If not permitted by Requirements, Landlord shall contract with the providers of water and sewer service to the Premises and Landlord shall include such amounts in Operating Costs.

 

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9.5 OTHER UTILITIES AND SERVICES

(1) Tenant shall contract directly with the providers for, and shall pay directly to the providers as they become due, all charges for gas, telephone, cable, data transmission and other utilities and services furnished to or consumed in the Premises. Landlord shall not be liable for any interruption or failure in the supply of any such services. Without limitation, if Tenant is not charged directly by the providers of any such services or utilities, then Tenant shall pay, Tenant’s Proportionate Share as additional rent within thirty (30) days after receipt of Landlord’s invoice therefor. Except as expressly set forth in this Article IX, Tenant agrees to contract separately for all utilities and building and other services required for Tenant’s use and occupancy of the Premises hereunder.

(2) If requested by Tenant, Landlord shall furnish, install, replace and dispose of, as required, all lighting tubes, lamps, bulbs and ballasts required in the Premises at Tenant’s sole cost and expense provided that (i) Landlord’s charges for the labor provided in connection therewith shall be in accordance with Landlord’s regular rates in effect from time to time, and not materially in excess of the rates for similar materials and services provided by landlords in other similarly-aged renovated historic office buildings located in the Fort Point Channel district of Boston, and (ii) Landlord shall not be entitled to charge Tenant any fee or mark-up over the actual costs incurred by Landlord to purchase such lighting tubes, lamps, bulbs and ballasts. All lighting tubes, lamps, bulbs and ballasts so installed shall become Landlord’s property upon the expiration or sooner termination of this Lease.

(3) Tenant shall provide reasonable access to Landlord and Landlord’s contractors, agents, employees, and/or invitees, at no cost to any of them, to the Building’s service and/or loading dock, which shall be maintained by Tenant in a manner consistent with other similarly- aged renovated historic office buildings located in the Fort Point Channel district of Boston and all Requirements.

9.6 EMERGENCY POWER

Subject to the provisions of this Lease (including, without limitation, Article VI hereof), Tenant, at Tenant’s sole cost and expense, shall have the right to connect each floor of the Premises to the Building’s emergency power distribution system for back-up emergency power to Tenant’s equipment (Landlord making no representation or warranty regarding the sufficiency or quality of such power for Tenant’s use), Tenant acknowledging that Tenant will be responsible for connecting into a separate auto-transfer switch on the emergency generator for such back-up power in connection with Tenant’s Tenant Improvements. Notwithstanding anything to the contrary contained in this Lease (including the second paragraph of Section 9.8 below) in no event shall Landlord be liable to Tenant or any Tenant Party on account of the failure of the emergency power system to supply Tenant with power at any time or for any interruption, shortage, loss, liability, damage or claim resulting from use of or connection to the same, it being understood and agreed that Landlord is providing access to such power as an accommodation to Tenant and not as a building service or duty of Landlord. Tenant shall not

 

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connect to or use the Building’s emergency power system in a manner that adversely affects the operations of such system for the Building. In connection with the foregoing, Tenant agrees to notify Landlord by not later than December 31, 2014 of Tenant’s emergency back-up power requirements, and if Landlord through use of reasonable efforts is able to accommodate the same through an emergency generator located within the Building in compliance with applicable Requirements, Landlord shall do so, and Tenant shall pay, within thirty (30) days after invoice, Landlord for the actual third-party costs incurred by Landlord (i) to re-size the emergency generator beyond that to be provided pursuant to the BBW Plans and Specifications, and (ii) for all associated connections, structural modifications, dunnage, and other improvements necessary to facilitate Tenant’s desired connection to the Building emergency power distribution system.

9.7 PROPERTY MANAGEMENT

Tenant shall provide, itself or through third parties, property management for the Premises consistent with other similarly-aged renovated historic office buildings located in the Fort Point Channel district of Boston. Any third party retained by Tenant to provide property management services to the Premises shall be subject to the prior written approval of Landlord, such approval not to be unreasonably withheld.

9.8 INTERRUPTION

Except as otherwise expressly provided in the immediately following paragraph or Articles XII or XIII, Landlord shall not be liable to Tenant, nor shall Tenant have a claim for any compensation or reduction of Rent, arising out of or resulting from interruptions or shortages of utilities or building services, or from Landlord’s entering the Premises for any of the purposes authorized by this Lease or for repairing the Premises, or any portion of the Building and/or the Property. If Landlord is prevented or delayed from making any repairs, alterations or improvements, or furnishing any utility or service or performing any other obligation to be performed on Landlord’s part, by reason of any cause, Landlord shall not be liable to Tenant therefor, nor shall Tenant be entitled to any abatement or reduction of rent by reason thereof, nor shall the same give rise to any claim by Tenant that such failure constitutes actual or constructive, total or partial, eviction from the Premises. Landlord reserves the right to stop any service or utility system when necessary by reason of accident or emergency or until necessary repairs have been completed. Except in case of emergency repairs, Landlord will give Tenant not less than twenty-four (24) hours’ advance notice of any contemplated stoppage and will use diligent efforts to avoid unreasonable inconvenience to Tenant by reason thereof. Landlord also reserves the right to institute such policies, programs and measures as may be necessary, required or expedient for the conservation or preservation of energy or energy services or as may be necessary or required to comply with applicable codes, rules, regulations or standards. In so doing, Landlord shall make diligent efforts to avoid unreasonable inconvenience to Tenant by reason thereof.

Notwithstanding the foregoing to the contrary, in the event that there shall be an interruption, curtailment or suspension of any service required to be provided by Landlord pursuant to this Lease (and no reasonably equivalent alternative service or supply is provided by Landlord) due to the intentional act or negligence of Landlord, its agents, employees or contractors, or if Landlord fails to commence and diligently prosecute to completion any repair

 

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or maintenance required by Landlord under this Lease (including repairs or maintenance necessary for Landlord to comply with the provisions of Section 5.2(c)) within applicable notice and cure periods) that shall materially interfere with Tenant’s use and enjoyment of a material portion of the Premises, and Tenant actually ceases to use the affected portion of the Premises (any such event, a “ Service Interruption ”), and if (i) such Service Interruption shall continue for five (5) consecutive Business Days following receipt by Landlord of written notice from Tenant describing such Service Interruption (the “ Service Interruption Notice ”) provided that no notice shall be required where Tenant’s inability to use such portion of the Premises results from the closure of the Building by Landlord, (ii) such Service Interruption shall not have been caused, in whole or in part, by matters described by Section 8.3 or by an act or omission in violation of this Lease by Tenant or by any negligence of Tenant, or Tenant’s agents, employees, contractors or invitees, and (iii) the cure of the condition giving rise to the Service Interruption is within Landlord’s reasonable control (a Service Interruption that satisfies the foregoing conditions being referred to hereinafter as a “ Material Service Interruption ”) then, as liquidated damages and Tenant’s sole remedy at law or equity, Tenant shall be entitled to an equitable abatement of Base Rent, based on the nature and duration of the Material Service Interruption, the area of the Premises affected, and the then current Base Rent amounts, for the period that shall begin on the commencement of such Material Service Interruption and that shall end on the day such Material Service Interruption shall cease. The provisions of this paragraph shall not apply in the instance of matters addressed by Articles XII and XIII. Any dispute between Landlord and Tenant under this Section shall be subject to arbitration in accordance with the terms of Article XX.

Except in the event of an emergency, Landlord shall use commercially reasonable efforts to (i) advise Tenant at least three (3) Business Days before any intentional shutdown of electrical service or other utility services affecting the Premises by Landlord, and (ii) coordinate such shutdowns with Tenant. Landlord shall use commercially reasonable efforts (except in the event of an emergency) to cause such shutdowns to occur after outside of Business Hours.

ARTICLE X

INDEMNITY

10.1 INDEMNITY

To the maximum extent permitted by law, Tenant shall indemnify and save harmless Landlord and the members, managers, partners, directors, officers, agents, invitees, and employees of Landlord (any one, a “ Landlord Party ”), against and from all claims, expenses, or liabilities of whatever nature (a) arising directly or indirectly from any default or breach by Tenant under any of the terms or covenants of this Lease; or (b) arising directly or indirectly from any accident, injury, or damage, however caused, to any person or property, on or about the Premises; or (c) arising directly or indirectly from any accident, injury, or damage to any person or property occurring outside the Premises but within the Building or on the Lot, where such accident, injury, or damage results, or is claimed to have resulted, from any negligent act or omission on the part of Tenant or anyone claiming by, through or under Tenant, or Tenant’s or their contractors, agents, servants, or employees; provided, however, that in no event shall Tenant be obligated under this Section 10.1 to indemnify Landlord or any other Landlord Party, to the extent such claim, expense, or liability results from any negligence or other misconduct of

 

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Landlord or any other Landlord Party. To the maximum extent permitted by law, Tenant shall indemnify and save harmless Landlord and the Landlord Parties against and from all claims, expenses, or liabilities of whatever nature arising directly or indirectly from any accident, injury, or damage, however caused, to any person or property, wherever occurring, from Tenant’s use of or connection to the Building’s emergency power distribution system pursuant to Section 9.6 of this Lease.

To the maximum extent permitted by law, Landlord shall indemnify and save harmless Tenant, and the members, managers, partners, directors, officers, agents, invitees, and employees of Tenant (any one, a “ Tenant Party ”), against and from all claims, expenses, or liabilities of whatever nature (a) arising directly or indirectly from any default or breach by Landlord under any of the terms or covenants of this Lease; or (b) arising directly or indirectly from any accident, injury, or damage to any person or property occurring on or about the Property, where such accident, injury, or damage results, or is claimed to have resulted, from any negligent act or omission on the part of Landlord or any Landlord Party; provided, however, that in no event shall Landlord be obligated under this Section 10.1 to indemnify Tenant or any other Tenant Party to the extent such claim, expense, or liability results from any negligence or other misconduct of Tenant or any other Tenant Party.

The indemnification set forth in this Section 10.1 shall survive the expiration or termination of this Lease. This indemnification and hold harmless agreement shall include, without limitation, indemnity against all expenses, reasonable attorneys’ fees and liabilities incurred in connection with any such claim or proceeding brought thereon and the defense thereof with counsel acceptable to the party seeking indemnification. At the request of the party seeking indemnification, the indemnifying party shall defend any such claim or proceeding directly on behalf and for the benefit of the indemnified party.

Notwithstanding anything to the contrary contained in the Lease, wherever any party is entitled to indemnification under this Lease (the “ indemnified party ”), the provisions of this paragraph shall govern. The indemnified party shall notify the other party (the “ indemnifying party ”) promptly in writing of any such claim or any action or proceeding brought thereon and shall cooperate with the indemnifying party and its counsel in the defense of any such claim, action, or proceeding. The indemnifying party may defend, compromise or settle any such claim, action or proceeding; provided, however, that if the compromise or settlement of any such claim, action or proceeding does not result in the complete and unconditional release of the indemnified party, such compromise or settlement will require the indemnified party’s prior written consent, which consent shall not be unreasonably withheld. The indemnified party shall not be bound by any compromise or settlement of any such claim, action or proceeding without the prior written consent of such indemnified party, not to be unreasonably withheld.

10.2 TENANT’S RISK

Tenant agrees to use and occupy the Premises and to use such other portions of the Building and the Lot as Tenant is herein given the right to use at Tenant’s sole risk; and Landlord shall have no responsibility or liability for any loss or damage, however caused, to furnishings, fixtures, equipment, or other personal property of Tenant or of any persons claiming by, through, or under Tenant, except to the extent the result of the negligence or intentional misconduct of Landlord or any other Landlord Party (but subject in any event to the provisions of Section 11.5 of the Lease).

 

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10.3 INJURY CAUSED BY THIRD PARTIES

Tenant agrees that Landlord shall not be responsible or liable to Tenant, or to those claiming by, through, or under Tenant, for any loss or damage resulting to Tenant or those claiming by, through, or under Tenant, or its or their property, that may be occasioned by or through the acts or omissions of persons occupying any part of the Building, or for any loss or damage from the breaking, bursting, crossing, stopping, or leaking of electric cables and wires, and water, gas, sewer, or steam pipes, or like matters, except to the extent any such loss or damage arises out of or results from the negligence or intentional misconduct of Landlord or any other Landlord Party (but subject in any event to the provisions of Section 11.5 of the Lease).

10.4 SECURITY

Tenant agrees that, in all events, Tenant is responsible for providing security to, and installing locks and access control systems serving, the Premises, and Tenant’s personnel and Landlord shall have no obligations or liabilities, of any kind, in connection therewith. Tenant shall provide Landlord with master keys, access cards and codes and all other necessary means of access to all locks and access control systems for and with respect to the Premises. To the extent that Landlord elects to provide security services at the Building from time to time, Landlord and Tenant shall cooperate to avoid redundant provision of security personnel or services.

ARTICLE XI

INSURANCE

11.1 PUBLIC LIABILITY INSURANCE

Tenant agrees to maintain in full force from the date upon which Tenant first enters the Premises for any reason, throughout the Lease Term, and thereafter so long as Tenant is in occupancy of any part of the Premises, (a) a policy of commercial general liability insurance, written on an occurrence basis with a general aggregate per location extension and including contractual liability coverage to cover any liabilities assumed under this Lease, insuring against all claims for bodily injury, property damage, personal injury or advertising injury on or about the Premises or arising out of the use of the Premises, including products liability, and completed operations liability, with limits of at least $1,000,000 per occurrence and $2,000,000, general aggregate, (b) automobile liability insurance covering all owned vehicles, hired vehicles, and all other non-owned vehicles in the amount of at least $1,000,000 combined single limit, (c) worker’s compensation insurance in accordance with applicable statutory legal requirements, and (d) employer’s liability insurance with a limit of not less than $1,000,000 or such other higher limits imposed by Requirements, and (e) umbrella/excess insurance on a following-form basis in excess of the foregoing coverages in the amount of at least $5,000,000 per occurrence. The general liability and umbrella policies shall designate Landlord, its managing agent (if any), and any mortgagees (as may be set forth in a notice given from time to time by Landlord) as additional insureds, as their interests appear, and shall be in form and substance reasonably satisfactory to Landlord.

 

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Each such policy shall not expire or be amended or canceled without at least fifteen (15) days’ prior written notice to Landlord in each instance and each policy shall provide that the interests of Landlord thereunder or therein shall not be affected by any breach by Tenant of any policy provision. A certificate evidencing such insurance coverages shall be delivered to Landlord on or prior to the Commencement Date, and thereafter on an annual basis (and in any event prior to the expiration thereof). Each such policy shall be written by insurance companies licensed in the Commonwealth of Massachusetts, having a rating in Best’s Key Rating Guide (or any successor thereto, or if there be none, an insurance rating organization having a national reputation) of at least “A-” and a financial size category of not less than “Class VII.” Tenant shall have the right to obtain any of the general liability insurance required hereunder pursuant to a blanket general liability policy covering other properties provided the blanket policy contains an endorsement that names Landlord, Landlord’s managing agent (if any) and any mortgagees (as may be set forth in a notice given from time to time by Landlord), as additional insureds, and references the Premises.

11.2 HAZARD INSURANCE

Tenant agrees to maintain in full force from the date upon which Tenant first enters the Premises for any reason, throughout the Lease Term, and thereafter so long as Tenant is in occupancy of any part of the Premises, fire and extended coverage insurance in so-called “Special Causes of Loss” form including boiler and machinery (if applicable). Covered property shall include but not be limited to all fixtures, equipment and other personal property of Tenant and any Alterations. The amount of insurance shall not be less than 100% of the replacement cost of such property, and the policy shall contain an agreed amount extension. Tenant shall also purchase time element (business income/extra expense) coverage against the perils insured by the property policy for a period of indemnity of twelve months. Tenant shall also maintain insurance against such other hazards as may from time to time reasonably be required by Landlord, provided that such insurance is customarily required of tenants in the area in which the Premises are located on property similar to the Building, that Tenant receives written notice specifying all such additional insurance as may be required, and that such coverage is generally available. Each such policy shall be written by insurance companies licensed in the Commonwealth of Massachusetts, having a rating in Best’s Key Rating Guide (or any successor thereto, or if there be none, an insurance rating organization having a national reputation) of at least “A-” and a financial size category of not less than “Class VII.”

11.3 CONSTRUCTION PERIOD INSURANCE

At any time when demolition or construction work is being performed on or about the Premises or Building by or on behalf of Tenant, in addition to the insurance coverages required by Tenant, above, Tenant shall require that all contractors and subcontractors performing Alterations keep in full force and effect the following insurance coverage, in each instance with policies in form and substance reasonably satisfactory to Landlord:

 

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(1) builder’s risk completed value (non-reporting form) in such form and affording such protections as reasonably required by Landlord (which builder’s risk insurance may be included as part of the property insurance referenced in Section 11.2, above);

(2) workers’ compensation or similar insurance in form and amounts required by law;

(3) Employer’s liability insurance in the amount of at least $500,000 or such other higher limits imposed by Requirements;

(4) Commercial General Liability insurance against all claims for bodily injury, property damage, personal injury and advertising injury with limits not less than $1,000,000 per occurrence and in $2,000,000 the aggregate, with Products/Completed Operations coverage (with evidence of Products/Completed Operations coverage);

(5) Automobile liability insurance covering all owned vehicles, hired vehicles, and all other non-owned vehicles in the amount of at least $1,000,000 combined single limit; and

(6) umbrella/excess insurance on a following-form basis in excess of the foregoing coverages in the amount of at least $4,000,000 per occurrence.

Landlord, its managing agent (if any), its mortgagee and the fee owner of the Lot shall be listed as additional insureds under each policy listed above (not including subparagraphs (1), (2), and (3)). This insurance shall be primary and noncontributory with respect to other insurance required under this Lease. The respective insurance carriers shall waive all rights of subrogation against Landlord and Tenant with respect to losses payable under such policies.

Tenant shall cause a certificate or certificates of such insurance to be delivered to Landlord prior to the commencement of any work in or about the Building or the Premises, in default of which beyond any applicable notice or cure period Landlord shall have the right, but not the obligation, to obtain any or all such insurance at the expense of Tenant, in addition to any other right or remedy of Landlord. The provisions of this Section 11.3 shall survive the expiration or earlier termination of this Lease.

11.4 RENTAL ABATEMENT INSURANCE

The Landlord may elect to keep and maintain in full force and effect during the Lease Term, rental abatement insurance against abatement or loss of Rent in case of fire or other casualty, in an amount at least equal to the amount of the Rent payable by Tenant during the then current lease year as reasonably determined by Landlord. All premiums for such insurance shall be included in Operating Costs for the purposes of this Lease.

 

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11.5 WAIVER OF SUBROGATION

Landlord and Tenant mutually agree that with respect to any loss which is covered by any insurance then being carried by them or that would have been covered had such party been carrying the insurance required hereunder, the one carrying or required to carry such insurance and suffering said loss waives and releases the other of and from any and all claims and rights of recovery against the other with respect to such loss and agrees not to seek to recover from the other or to make any claim against the other, and in the case of Landlord, against all Tenant Parties, and in the case of Tenant against all Landlord Parties, for any loss or damage incurred by the waiving/releasing party, to the extent that such loss or damage is to be insured under any insurance policy required by this Lease or that would have been insured had the party carried the insurance that it was required to carry hereunder. The foregoing waiver and release applies whether or not the loss or damage resulted from the negligence of the other party, the Landlord Parties or the Tenant Parties. In addition, the parties hereto shall procure an appropriate clause in, or endorsement on, any insurance policy required by this Lease pursuant to which the insurance company waives subrogation. The insurance policies required by this Lease shall contain no provision that would invalidate or restrict the parties’ waiver and release of the rights of recovery in this section and shall provide that the foregoing waiver and release will not adversely affect the rights of the insureds under such policies. Landlord and Tenant further mutually agree that their insurance companies shall have no right of subrogation against the other on account thereof.

11.6 LANDLORD’S INSURANCE

Landlord shall keep the Building, the appurtenances thereto and the property of Landlord contained therein (but not any Alterations) insured against damage and destruction with “Special Causes of Loss” insurance in the amount of the full replacement value of the Building (exclusive of footings and foundations), as the value may exist from time to time, and as required by any lender of Landlord or its affiliates with respect to the Building. Such coverage shall include damage done by fire and other casualty typically covered under policies covering comparable buildings in the vicinity of the Building. Said insurance shall be maintained with an insurance company authorized to do business in Massachusetts having a rating in Best’s Key Rating Guide (or any successor thereto, of if there be none, an insurance rating organization having a national reputation) of at least A-/VII, at the expense of Landlord (but with the same to be included in the Operating Costs described in Section 4.3), and payments for losses thereunder shall be made solely to Landlord. Landlord shall also maintain commercial general liability insurance against all claims for bodily injury, personal injury, and property damage arising out of all operations in connection with the Building in the amount required by under the terms of any mortgage on the Building, or, if none, in such amounts as prudent owners of comparable Boston office buildings would carry from time to time. Landlord shall provide to Tenant not later than the earlier of the Commencement Date, and, thereafter, upon Tenant’s request (made no more often than once per policy period), a certificate evidencing the effectiveness of the insurance policies required to be maintained by Landlord hereunder. Landlord reserves the right to maintain such additional insurance (whether by additional amounts and/or coverages) as is customary for a prudent landlord of similarly situated properties in the City of Boston or to meet the insurance requirements of any mortgagee.

 

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ARTICLE XII

CASUALTY

12.1 DEFINITION OF “SUBSTANTIAL DAMAGE” AND “PARTIAL DAMAGE”

The term “ substantial damage ”, as used herein, shall refer to damage or lack of access to the Building which is of such a character that in Landlord’s reasonable, good faith determination the same cannot, in ordinary course, be expected to be repaired or access restored within three hundred sixty five (365) calendar days from the date of such damage. Any damage which is not “substantial damage” is “ partial damage ”.

12.2 PARTIAL DAMAGE

If, during the Lease Term there shall be partial damage to the Building or the Premises by fire or casualty, and, in the case of damage outside the Premises, if such damage shall materially interfere with Tenant’s access to or use of the Premises, then Landlord shall promptly proceed to restore the Premises (other than any Alterations) and the Building (to the extent such damage materially interferes with Tenant’s use of or access to the Premises) to substantially the condition in which the same were in immediately prior to the occurrence of such damage; provided, however, in no event shall Landlord be obligated to expend more than the sum of (x) insurance proceeds actually received by Landlord, plus the amount of any deductible carried by Landlord, and (y) $1,500,000.

12.3 SUBSTANTIAL DAMAGE TO THE BUILDING

If, during the Lease Term there shall be substantial damage or lack of access to the Building as a result of fire or casualty, Landlord may terminate this Lease by notice to Tenant given within sixty (60) days after the occurrence of such damage, regardless of whether such damage materially interferes with Tenant’s use of the Premises. If Landlord shall give such notice, then this Lease shall terminate as of the sixtieth (60th) day after such notice is given, with the same force and effect as if such date were the date originally established as the expiration date hereof. If Landlord does not elect to terminate this Lease, Landlord shall provide Tenant with notice in writing (the “ Restoration Notice ”), no later than sixty (60) days after the date of any damage covered by this Article, that Landlord intends to restore the Premises or access to the Premises and such notice shall set forth a reasonable estimate of Landlord’s general contractor required to complete such restoration (“ Estimated Completion Date ”).

12.4 ABATEMENT OF RENT; TENANT’S RIGHT TO TERMINATE

If during the Lease Term the Building shall be damaged by fire or casualty and if such damage shall materially interfere with Tenant’s access to or use of the Premises as contemplated by this Lease, a just proportion of the Base Rent and Operating Costs Payment payable by Tenant hereunder shall abate proportionately (x) if this Lease is not terminated in accordance with the provisions of this Article XII, for the period in which, by reason of such damage, there is such interference with Tenant’s use of the Premises, having regard to the extent to which Tenant may be required to discontinue Tenant’s use of the Premises, but such abatement or reduction shall end if and when three (3) months after (to allow Tenant to restore the Alterations) Landlord shall have given notice to Tenant that Landlord shall have substantially restored the

 

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Premises or so much thereof as shall have been originally constructed by Landlord (exclusive of any of Alterations or Tenant’s fixtures, furnishings, equipment and the like or work performed therein by Tenant) to substantially the condition in which the Premises were prior to such damage, or (y) if this Lease is terminated in accordance with this Article XII, from the date of such damage for the remainder of the Lease Term.

When fire or other casualty renders the Premises substantially unsuitable for its intended use, including without limitation by denying Tenant reasonable access to the Premises, and Tenant does in fact cease to occupy all or a portion of the Premises on account of such event, Tenant may elect to terminate this Lease if:

(a) Landlord fails, within thirty (30) days following written notice from Tenant of such failure, to give to Tenant the Restoration Notice within sixty (60) days after such casualty, to the extent such restoration is required hereunder;

(b) such casualty results from an uninsured event and the cost of such restoration is in excess of $1,500,000, and Landlord does not agree, within thirty (30) days after Tenant’s written request, to restore the same; or

(c) If Landlord gives to Tenant the Restoration Notice, and, the Estimated Completion Date is more than thirteen (13) months from the date of such Restoration Notice, provided that Tenant gives such notice within thirty (30) days after receiving the Restoration Notice; or

(d) If Landlord gives to Tenant the Restoration Notice and Landlord fails to restore the Premises (to the extent such restoration is required hereunder) to a condition substantially suitable for their intended use or fails to provide alternate access within thirteen (13) months (or such longer period as is specified in Landlord’s Restoration Notice) of such fire or other casualty; provided however, that (x) in the event Landlord has diligently commenced repairs to the damaged property and such repair takes more than thirteen (13) months to complete due to causes beyond Landlord’s reasonable control, Landlord shall have the right to complete such repairs within a reasonable time period thereafter (the “ Additional Time ”) but in no event shall such Additional Time be longer than length of such delays beyond Landlord’s reasonable control and (y) if Landlord completes such restoration within thirty (30) days following receipt of Tenant’s notice of termination, then such notice of termination shall be deemed null and void and of no further effect.

If neither party terminates this Lease pursuant to rights set forth in this Article XII, then this Lease shall remain in full force and effect, and the Rent shall abate as to any portion of the Premises that is not usable for the Permitted Use until three (3) months after the period of such untenantability or inaccessibility to allow Tenant to restore the Alterations, as above mentioned, and Landlord shall promptly commence to restore the Premises (other than any Alterations and Tenant’s Property) to substantially the same condition as before such damage occurred and shall diligently prosecute such restoration to completion.

 

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If during the last two (2) years of the Term the Building or the Premises shall be damaged by, or become inaccessible as a result of, fire or casualty, and if such fire or casualty damage or inaccessibility resulting therefrom, whether to the Premises or the Building, cannot reasonably be expected to be repaired or restored within one hundred eighty (180) days from the date of such damage or before the Expiration Date, whichever first occurs, and Tenant does not exercise an option to extend the Term for an Extension Term within twenty (20) days after the occurrence of such damage, then Landlord or Tenant shall have the right, by giving notice to the other not later than thirty (30) days after the occurrence of such damage, to terminate this Lease. If either Landlord or Tenant shall give notice of termination pursuant to this Section, the Term shall expire by lapse of time upon the date which is thirty (30) days after such notice is given and Tenant shall vacate the Premises and surrender the same to Landlord. Upon the termination of this Lease under the conditions provided for in this Section, Tenant’s liability for Rent shall cease as of the date of such termination, subject, however, to abatement thereof between the date of such casualty and the date of such termination.

Notwithstanding anything to the contrary contained in this Lease, if the Building or the Premises shall be substantially damaged by fire or casualty as the result of a risk not covered by the forms of casualty insurance at the time maintained by Landlord and Landlord does not notify Tenant in a Restoration Notice that Landlord will restore such damage notwithstanding the cause thereof not being covered by Landlord’s insurance, Landlord or Tenant may, at its election, terminate the Term by notice to the other party given within thirty (30) days after the expiration of the deadline for delivery of a Restoration Notice. If such notice is given, then this Lease shall terminate as of the date of such notice with the same force and effect as if such date were the date originally established as the Expiration Date hereof.

12.5 MISCELLANEOUS

In no event shall Landlord have any obligation to make any repairs or perform any restoration work under this Article XII if prevented from doing so by reason of any cause described in Section 8.3, including, without limitation, any Requirements. Further, Landlord shall not be obligated to make any repairs or perform any restoration work to any Alterations to the Premises performed by or for the benefit of Tenant (all of which Tenant shall repair and restore).

Any disputes under this Article XII are subject to arbitration in accordance with the procedures set forth in Article XX.

ARTICLE XIII

EMINENT DOMAIN

13.1 RIGHTS OF TERMINATION FOR TAKING

If all of the Premises, or such portion thereof as to render the balance (if reconstructed to the maximum extent practicable in the circumstances) physically unsuitable for the Permitted Uses, or if all reasonable access to the Premises, shall be taken (including a temporary taking in excess of 360 days) by condemnation or right of eminent domain or sold in lieu of condemnation, Tenant may elect to terminate this Lease by giving notice to Landlord of such

 

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election not later than thirty (30) days after Tenant has been deprived of possession of the Premises (or such portion) or after its access to the Premises has been so affected, as the case may be.

Further, if (a) at least 25 percent of the Building or the Lot or (b) so much of the Building (which may, but need not include, the Premises) or the Lot shall be so taken, condemned or sold or shall receive any direct or consequential damage by reason of anything done pursuant to public or quasi-public authority to the extent that continued operation of the same would, in Landlord’s reasonable opinion, be uneconomical, then, in either case, Landlord may elect to terminate this Lease by giving notice to Tenant of such election not later than thirty (30) days after the effective date of such taking. In addition, if at least 33% of the Premises shall be so taken, then Tenant may elect to terminate this Lease by giving notice to Landlord of such election not later than ninety (90) days after the effective date of such taking. This Lease shall terminate on the date that such notice is given to the other party, and the Rent shall be prorated and adjusted as of such termination date.

Should any part of the Premises or the aforesaid access be so taken or condemned or receive such damage and should this Lease be not terminated in accordance with the foregoing provisions, Landlord shall promptly after the determination of Landlord’s award on account thereof, expend so much as may be necessary of the net amount which may be awarded to and actually received by Landlord in such condemnation proceedings in restoring the Premises (other than any Alterations) and such access to an architectural unit that is reasonably suitable to the uses of Tenant permitted hereunder. Should the net amount so awarded to and actually received by Landlord be insufficient by an amount in excess of $50,000 to cover the cost of so restoring the Premises or the aforesaid access, in the reasonable estimate of Landlord, Landlord may, but shall have no obligation to, supply the amount of such insufficiency and restore the Premises to such an architectural unit, with all reasonable diligence, or Landlord may terminate this Lease by giving notice to Tenant within a reasonable time after Landlord has determined the estimated cost of such restoration.

13.2 PAYMENT OF AWARD

Landlord shall have and hereby reserves and excepts, and Tenant hereby grants and assigns to Landlord, all rights to recover for damages to the Building and the Lot and the leasehold interest hereby created, and to compensation accrued or hereafter to accrue by reason of such taking or damage, as aforesaid. Tenant covenants to deliver such further assignments and assurances thereof as Landlord may from time to time request. Nothing contained herein shall be construed to prevent Tenant from prosecuting in any condemnation proceedings a claim for the value of any of Tenant’s trade fixtures installed in the Premises by Tenant entirely at Tenant’s expense and for relocation expenses; provided that such action shall not affect the amount of compensation otherwise recoverable hereunder by Landlord from the taking authority.

13.3 ABATEMENT OF RENT

In the event of any such taking of the Premises or the aforesaid access, if and to the extent Tenant is deprived of possession of the Premises or deprived of all access to the Premises, the Rent or a fair and just proportion thereof, according to the nature and extent of the damage sustained, shall be suspended or abated, as appropriate and equitable in the circumstances.

 

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13.4 MISCELLANEOUS

In no event shall Landlord have any obligation to make any repairs under this Article XIII if prevented from doing so by reason of any cause beyond its reasonable control, including, without limitation, requirements of any applicable Requirements. Further, Landlord shall not be obligated to make any repairs to any Alterations, the restoration of which shall be the responsibility of Tenant promptly following Landlord’s completion of its restoration obligations hereunder.

ARTICLE XIV

DEFAULT

14.1 TENANT’S DEFAULT

(a) If at any time any one or more of the following events (herein referred to as a “ Default ” or “ Default of Tenant ”) shall occur:

(1) Tenant shall fail to make payment of (i) Base Rent or any recurring monthly payment of Rent (such as Operating Costs) within five (5) Business Days after Landlord has sent to Tenant notice of such default, or (ii) any other Rent due under this Lease within ten (10) Business Days after Landlord has sent to Tenant notice of such default; or

(2) Tenant shall fail to perform or observe any other covenant or provision herein contained on Tenant’s part to be performed or observed and Tenant shall fail to remedy the same within thirty (30) days after notice to Tenant specifying such neglect or failure, or, if such failure is of such a nature that Tenant cannot reasonably remedy the same within such thirty (30) day period, Tenant shall fail to commence to remedy the same within said 30-day period and diligently to prosecute such remedy to completion within not more than ninety (90) days after notice to Tenant; or

(3) except as otherwise provided by applicable Requirements, if the estate hereby created shall be taken on execution or by other process of law, or if Tenant shall be judicially declared bankrupt or insolvent according to law, or if any assignment shall be made of the property of Tenant for the benefit of creditors, or if a receiver, guardian, conservator, trustee in involuntary bankruptcy or other similar officer shall be appointed to take charge of all or any substantial part of Tenant’s property by a court of competent jurisdiction and such receiver, guardian, conservator, trustee or similar official is not dismissed or discharged of its duties within sixty (60) days of its appointment, or if a petition shall be filed for the reorganization of Tenant under any provisions of law now or hereafter enacted, and such proceeding is not dismissed within sixty (60) days after it is begun, or if Tenant shall file a petition for such reorganization, or for arrangements under any provisions of such laws providing a plan for a debtor to settle, satisfy, or extend the time for the payment of debts;

 

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then, in any such case, Landlord may in addition to any remedies otherwise available to Landlord, to the fullest extent permitted by applicable law, immediately or at any time thereafter, and without demand (but with prior notice to Tenant), enter into and upon the Premises or any part thereof in the name of the whole and repossess the same as of Landlord’s former estate, and expel Tenant and those claiming by, through or under it and remove its or their effects (forcibly if necessary) without being deemed guilty of any manner of trespass, and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant, and/or Landlord may terminate this Lease by written notice to Tenant and this Lease shall come to an end on the date of such notice as fully and completely as if such date were the date herein originally fixed for the expiration of the term of this Lease and Tenant will then quit and surrender the Premises to Landlord, but Tenant shall remain liable as herein provided. To the extent permitted by law, Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws (including M.G.L. c.186, §11), in the event of Tenant being evicted or dispossessed, or in the event of Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the covenants and conditions of this Lease. In the event of any such termination, entry or re-entry, Landlord shall have the right to remove and store Tenant’s property and that of persons claiming by, through or under Tenant at the sole risk and expense of Tenant and, if Landlord so elects, (x) to sell such property at public auction or private sale and apply the net proceeds to the payment of all sums due to Landlord from Tenant and pay the balance, if any, to Tenant, or (y) to dispose of such property in any manner in which Landlord shall elect, Tenant hereby agreeing to the fullest extent permitted by law that it shall have no right, title or interest in any property remaining in the Premises after such termination, entry or re-entry.

Any notice of default required to be delivered under this Section shall (1) specify the applicable default, (2) if monetary in nature, specify the amount required to be paid to cure such default (to the extent then ascertainable), and (3) state on the first page of such notice in capital, bold face letters “ NOTICE OF DEFAULT .”

(b) Tenant covenants and agrees, notwithstanding any termination of this Lease as aforesaid or any entry or re entry by Landlord, whether by summary proceedings, termination, or otherwise, to pay and be liable for on the days originally fixed herein for the payment thereof, amounts equal to the several installments of Rent and other charges reserved as they would become due under the terms of this Lease if this Lease had not been terminated or if Landlord had not entered or re entered, as aforesaid, and whether the Premises be relet or remain vacant, in whole or in part, or for a period less than the remainder of the Term, or for the whole thereof; but in the event the Premises be relet by Landlord, Tenant shall be entitled to a credit in the net amount of rent received by Landlord in reletting, after deduction of all expenses incurred in reletting the Premises (including, without limitation, remodeling costs, brokerage fees, reasonable and the like), and in collecting the rent in connection therewith. As an alternative, at the election of Landlord, Tenant will upon such election pay to Landlord, as liquidated damages, either (i) such a sum as at the time of such termination represents the amount of the excess, if any, of the then present value of the total Rent and other benefits which

 

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would have accrued to Landlord under this Lease for the remainder of the Lease Term if the lease terms had been fully complied with by Tenant over and above the then present cash rental value of the Premises for what would be the then unexpired Lease Term if the same remained in effect (minus any amounts previously collected by Landlord pursuant to the first sentence of this paragraph) using the Federal Reserve discount rate, or equivalent, plus 2% shall be used in calculating present values or (ii) a sum equal to twelve (12) months (or such lesser number of months as may then be remaining in the Lease Term) of Base Rent and additional rent at the rate last payable by Tenant under this Lease, as Landlord specifies in such election. For purposes of this Article, if Landlord elects to require Tenant to pay damages in accordance with clause (i) of the immediately preceding sentence, the total amount due shall be computed by assuming that Tenant’s Operating Costs Payments would be for each lease year and for the balance of such unexpired term, the amount thereof respectively for the lease year in which such termination, entry or re-entry shall occur.

(c) In case of any Default of Tenant, re-entry, entry, expiration and dispossession by summary proceedings or otherwise, Landlord may (i) re-let the Premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms which may at Landlord’s option be equal to or less than or exceed the period which would otherwise have constituted the balance of the Lease Term and may grant concessions or free rent to the extent that Landlord considers advisable or necessary to re-let the Premises and (ii) make such alterations, repairs and decorations in the Premises as Landlord, in its sole judgment, considers advisable or necessary for the purpose of reletting the Premises; and no action by Landlord in accordance with the foregoing shall operate or be construed to release Tenant from liability hereunder as aforesaid. It is specifically understood and agreed that Landlord shall be entitled to take into account in connection with any reletting of the Premises all relevant factors which would be taken into account by a sophisticated developer in securing a replacement tenant for the Premises, such as, but not limited to, the first class quality of the Building and the financial responsibility of any such replacement tenant. Landlord shall in no event be liable in any way whatsoever for failure to re-let the Premises, or, in the event that the Premises are re-let, for failure to collect the rent under such re-letting, and Tenant hereby waives, to the extent permitted by applicable Requirements, any obligation Landlord may have to mitigate Tenant’s damages. Landlord agrees to list the Premises with a broker in the event of a termination, entry or re-entry under this Article XIV, provided that Landlord’s obligation to list the Premises as provided herein is independent of Tenant’s obligations under this Article XIV and shall not be construed to entitle Tenant to set-off against any amounts payable by Tenant hereunder in the event of a breach or alleged breach by Landlord of such obligation. In no event shall Landlord be obligated to give priority to the re-letting of the Premises over any other premises in the Building, if any, or any other building owned by Landlord.

(d) The specified remedies to which Landlord may resort hereunder are not intended to be exclusive of any remedies or means of redress to which Landlord may, at any time, be entitled lawfully and Landlord may invoke any remedy (including the remedy of specific performance) allowed at law or in equity as if specific remedies were not herein provided for.

 

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(e) All fees, costs and expenses incurred by or on behalf of Landlord (including, without limitation, reasonable attorneys’ fees and expenses) in enforcing its rights hereunder or occasioned by any Default of Tenant shall be paid by Tenant.

(f) Upon any Default of Tenant, or the expiration or termination of this Lease, Landlord shall have the right of summary process under Massachusetts General Laws c.239, or other applicable statutes, and such other rights to recover possession as permitted by law. Tenant and Landlord each hereby waives any and all rights under the laws of any state to the right, if any, to trial by jury.

Nothing contained in this Lease shall limit or prejudice the right of Landlord to prove for and obtain in proceedings for bankruptcy, insolvency, or like proceedings by reason of the termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, the damages are to be proved, whether or not the amount be greater than, equal to, or less than the amount of the loss or damages referred to above, subject to the limitation of liability provided in Section 17.21.

14.2 LANDLORD’S DEFAULT

Landlord shall in no event be in default in the performance of any of Landlord’s obligations hereunder unless Landlord shall have failed to perform such obligations within thirty (30) days (or such additional time as is reasonably required to correct any such default if such default is of such a nature that Landlord cannot reasonably remedy the same within such thirty (30)-day period, if Landlord commences to remedy same within such 30-day period and diligently prosecutes such remedy to completion, but in any event not to exceed ninety (90) days) after notice by Tenant to Landlord properly specifying wherein Landlord has failed to perform any such obligation. Without limitation, in no event shall Tenant have the right to terminate or cancel this Lease or to withhold Rent or to set-off or deduct any claim or damages against Rent as a result of any default by Landlord or breach by Landlord of its covenants or any warranties or promises hereunder, except as otherwise expressly set forth herein. Landlord shall pay Tenant interest at the Lease Interest Rate on any funds due to Tenant that Landlord fails timely to pay or credit, as applicable, to Tenant; except that Landlord shall be provided notice and a five (5) Business Day cure period before such interest will begin to accrue.

If Landlord defaults in the observance or performance of any term or provision of this Lease on Landlord’s part to be observed or performed with respect to making repairs to the Premises or any portion thereof and such failure continues for thirty (30) days after prior notice thereof to Landlord or such shorter period, if any, as may be feasible in case of an emergency threatening life or property (such notice to expressly state Tenant’s intention to exercise its rights under this Section), then Tenant, to the extent such default materially and adversely impacts Tenant’s business operations in the Premises, without being under any obligation to do so and without thereby waiving such default, may give to Landlord a second notice containing the following caption on the first page thereof in bold and capitalized type: “NOTICE OF INTENT TO EXERCISE SELF-HELP RIGHTS WITHIN FIVE (5) BUSINESS DAYS AFTER YOUR RECEIPT OF THIS NOTICE”, and if Landlord fails to cure such default with such five (5) business days period, Tenant may remedy such default and perform such repair (but only to the affected portion or portions of the Premises or on the applicable floor of the Premises and

 

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nowhere else in the Building or any portion thereof) for the account and at the expense of Landlord. Tenant shall give any mortgagee of which Tenant has prior notice at least five (5) days prior written notice prior to commencing such repair. All reasonable expenditures made by Tenant in connection therewith, including, but not limited to, reasonable attorneys’ fees in instituting, prosecuting or defending any action or proceeding, such sums, with interest at the Lease Interest Rate, shall, at Landlord’s option, either be paid to Tenant by Landlord within thirty (30) days after submission by Tenant to Landlord of a reasonably detailed invoice therefor or credited against the next installments of Base Rent thereafter becoming due hereunder (provided that such credits shall not exceed in any event more than 32.5% of the Base Rent due in any one month, with amounts due to Tenant accruing interest thereafter at the Lease Interest Rate until Tenant is paid or reimbursed by credit in full). Notwithstanding the immediately preceding sentence to the contrary, if there are insufficient remaining rental obligations to offset Tenant’s refund, or if the Lease Term has expired and Tenant has no outstanding monetary obligations to Landlord, Landlord shall pay such amount to Tenant within thirty (30) days. Any dispute as to whether Tenant had the right to exercise the remedies under this Section or as to the amount Tenant claims is due to Tenant shall be resolved by arbitration in accordance with the provisions of Article XX prior to payment or credit, as applicable.

Any notice of default required to be delivered under this Section shall (1) specify the applicable default, (2) if monetary in nature, specify the amount required to be paid to cure such default (to the extent then ascertainable), and (3) state on the first page of such notice in capital, bold face letters “ NOTICE OF DEFAULT .”

ARTICLE XV

LANDLORD’S ACCESS TO PREMISES

15.1 LANDLORD’S RIGHT OF ACCESS

Landlord and its agents, contractors, and employees shall have the right to enter the Premises at all reasonable hours (unless such entry is reasonably likely to adversely affect Tenant’s ability to conduct its business in any substantial or material portion of the Premises or otherwise adversely affect Tenant’s use or occupancy of any substantial or material portion of the Premises, in which event such access shall occur at times other than Tenant’s business hours, except in the event of an emergency and except for entry by janitorial personnel) upon reasonable advance notice (except that no notice shall be required and Landlord may enter at any time in case of emergency in which event concurrent notice shall be provided to the extent practicable) for the purpose of inspecting or of making repairs or alterations, to the Premises or the Building or additions to the Building, and Landlord shall also have the right to make access available at all reasonable hours to prospective or existing mortgagees or purchasers of any part of the Premises or the Building, provided, however, that in each case, Landlord shall use commercially reasonable efforts to minimize any interference with the conduct of Tenant’s business in the Premises. To assure access by Landlord to the Premises, Tenant shall provide Landlord with duplicate copies of all keys used by Tenant in providing access to the Premises. Landlord shall not store any materials in the Premises during the performance of such work except to the extent that such storage does not unreasonably interfere with Tenant’s business and use of the Premises. Any confidential information obtained by Landlord or its agents during such access shall be treated confidentially. Landlord and its agents, employees and contractors

 

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shall use reasonable care with respect to Tenant’s personal property located in the Premises. Notwithstanding anything to the contrary set forth herein, neither Landlord, nor Landlord’s agents, representatives, contractors, or employees, may enter any portion of the Premises reasonably designated from time to time by Tenant as a security area (not to exceed 2,500 rentable square feet in the aggregate) without being accompanied by a representative of Tenant, except in the case of an emergency, provided that such areas are clearly labeled as such and Landlord is given at least thirty (30) days’ prior written notice of the location of such areas. In connection with any access, repairs, alterations, or other entry into the Premises as permitted under this Article or otherwise, other than in the event of an emergency, Landlord shall exercise reasonable diligence so as to minimize the disturbance, but nothing contained herein shall be deemed to require Landlord to perform the same on an overtime or premium pay basis, except that, other than in the event of an emergency, Landlord, at its expense, shall employ contractors or labor at so-called overtime or other premium pay rates if necessary to make any such repairs or alterations to be made by Landlord hereunder to remedy any condition that (1) results in a denial of reasonable access to any floor of the Premises, (2) threatens the health or safety of any occupant of the Premises, or (3) materially interferes with Tenant’s ability to conduct its business in any substantial or material portion of the Premises. In all other cases, at Tenant’s request, Landlord shall employ contractors or labor at so-called overtime or other premium pay rates and incur any other overtime costs or expenses in making any repairs, alterations, additions, or improvements, provided Tenant shall pay to Landlord, as additional rent, within thirty (30) days after demand, an amount equal to the difference between (x) the overtime or other premium pay rates, including all fringe benefits and other elements of such pay rates, and (y) the regular pay rates for such labor, including all fringe benefits and other elements of such pay rates. In making any repairs, alterations, additions, or improvements, Landlord shall cause its contractors or labor to cover and secure such repair areas and equipment in such a manner to minimize interference with Tenant’s business operations during Business Hours.

For a period commencing eighteen (18) months prior to the expiration of the Lease Term, Landlord may have reasonable access to the Premises at all reasonable hours and upon reasonable advance notice for the purpose of exhibiting the same to prospective tenants.

ARTICLE XVI

RIGHTS OF MORTGAGEES

16.1 SUBORDINATION AND ATTORNMENT

(a) This Lease and the interest of Tenant hereunder shall be superior to the rights of any holder of a mortgage or holder of a ground lease or property that includes the Premises, unless any such holder enters into a non-disturbance agreement with Tenant in form and substance reasonably acceptable to Tenant and such holder providing that Tenant shall not be disturbed in its use or occupancy of the Premises for as long as this Lease continues in full force and effect and shall be afforded the protection of all of its rights and benefits hereunder (such agreement, a “ SNDA ”). Notwithstanding the immediately preceding sentence to the contrary, any holder of a mortgage or holder of a ground lease of property which includes the Premises, executed and recorded before or (if such holder wishes to subordinate this Lease to such mortgage or ground lease) subsequent to the date of this Lease, shall enter into a SNDA. The form attached hereto as Exhibit SNDA is acceptable to Tenant.

 

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(b) Forthwith upon the request of Landlord, the holder of any mortgage or deed of trust affecting the Premises, or the lessor under any ground lease affecting the Premises, Tenant shall execute and deliver to such party an attornment agreement providing that Tenant shall attorn to such holder or lessor in the event of a foreclosure of such mortgage or deed of trust or transfer in lieu thereof or a termination of such ground lease and incorporating such other terms and conditions as such party may reasonably require, provided that such agreement includes an agreement by such other party to recognize the rights of Tenant under this Lease (Tenant agreeing that the form attached hereto as Exhibit SNDA is acceptable to it).

(c) Except for the mortgage held by Webster Bank, National Association, Landlord represents and warrants to Tenant that there is no mortgage or ground lease affecting the Lot or Building as of the date hereof.

16.2 NOTICE TO MORTGAGEE AND GROUND LESSOR

(a) After receiving notice from any person, firm, or other entity (or from Landlord on behalf of any such person, etc.) that it holds a mortgage which includes the Premises as part of the mortgaged premises, or that it is the ground lessor under a lease with Landlord as ground lessee which includes the Premises as a part of the premises demised thereunder, no notice from Tenant to Landlord shall be effective unless and until a copy of the same is given to such holder or ground lessor, and the curing of any of Landlord’s defaults by such holder or ground lessor shall be treated as performance by Landlord. Accordingly, no act or failure to act on the part of Landlord which would entitle Tenant under the terms of this Lease, or by law, to be relieved of Tenant’s obligations hereunder shall have such an effect unless and until Tenant shall have first given written notice to such holder or ground lessor, if any, specifying the act or failure to act on the part of Landlord which could or would give basis to Tenant’s rights and such holder or ground lessor, after receipt of such notice, has failed or refused to correct or cure the condition complained of within a reasonable time thereafter (but not to exceed one hundred eighty (180) days in any event), but nothing contained in this Section 16 or elsewhere in this Lease shall be deemed to impose any obligation on any such holder or ground lessor to correct or cure any such condition.

16.3 ASSIGNMENT OF RENTS

With reference to any assignment by Landlord of Landlord’s interest in this Lease, or the rents payable hereunder, conditional in nature or otherwise, which assignment is made to the holder of a mortgage or ground lease on property which includes the Premises, Tenant agrees:

(a) that the execution thereof by Landlord, and the acceptance thereof by the holder of such mortgage, or the ground lessor, shall never be treated as an assumption by such holder or ground lessor of any of the obligations of Landlord hereunder, unless such holder or ground lessor shall, by notice sent to Tenant, specifically otherwise elect; and

 

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(b) that, except as aforesaid, such holder or ground lessor shall be treated as having assumed Landlord’s obligations hereunder only upon foreclosure of such holder’s mortgage and the taking of possession of the Premises, or in the case of a ground lessor, the assumption of Landlord’s position hereunder by such ground lessor.

ARTICLE XVII

MISCELLANEOUS PROVISIONS

17.1 CAPTIONS

The captions throughout this Lease are for convenience or reference only and shall in no way be held or deemed to define, limit, explain, describe, modify, or add to the interpretation, construction, or meaning of any provision of this Lease.

17.2 BIND AND INURE

Except as herein otherwise expressly provided, the obligations of this Lease shall run with the land, and this Lease shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. The reference herein to successors and assigns of Tenant is not intended to constitute a consent to assignment by Tenant, but has reference only to those instances in which Landlord may later give consent to a particular assignment as required by the provisions of Article VII. Neither the assignment by Landlord of its interest in this Lease as security to a lender holding a mortgage on the Building, nor the acceptance thereof by such lender, nor the exercise by such lender of any of its rights pursuant to said assignment shall be deemed in any way an assumption by such lender of any of the obligations of Landlord hereunder unless such lender shall specifically otherwise elect in writing or unless such lender shall have completed foreclosure proceedings under said mortgage. Whenever the Premises are owned by a trustee or trustees, the obligations of Landlord shall be binding upon Landlord’s trust estate, but not upon any trustee, beneficiary or shareholder of the trust individually.

17.3 NO WAIVER

The failure of Landlord or of Tenant to seek redress for violation of, or to insist upon the strict performance of any covenant or condition of this Lease shall not be deemed to be a waiver of such violation or to prevent a subsequent act, which would originally have constituted a violation, from having all the force and effect of an original violation. The receipt by Landlord of Rent or additional rent with knowledge of the breach of any covenant of this Lease shall not be deemed to be a waiver of such breach by Landlord unless such waiver is in writing signed by Landlord. No consent or waiver, express or implied, by Landlord or Tenant to or of any breach of any agreement or duty shall be construed as a waiver or consent to or of any other breach of the same or any other agreement or duty.

17.4 NO ACCORD AND SATISFACTION

No acceptance by Landlord of a lesser sum than the entire Rent then due shall be deemed to be other than on account of the earliest installment of such Rent due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent or any part thereof be deemed to be an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord’s right to recover the balance of such installment or pursue any other remedy in this Lease or at law or in equity provided.

 

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17.5 CUMULATIVE REMEDIES

The specific remedies to which Landlord may resort under the terms of this Lease are cumulative and not intended to be exclusive of any other remedies or means of redress to which it may be lawfully entitled in case of any breach or threatened breach by Tenant of any provisions of this Lease. In addition to the other remedies provided in this Lease, Landlord shall be entitled to the restraint by injunction of the violation or attempted or threatened violation of any of the covenants, conditions or provisions of this Lease or to a decree compelling specific performance of any such covenants, conditions or provisions. Except as otherwise set forth herein, any obligations of Tenant as set forth herein (including, without limitation, rental and other monetary obligations, repair obligations and obligations to indemnify Landlord) that accrued before the expiration or earlier termination of this Lease shall survive the expiration or earlier termination of this Lease, and Tenant shall immediately reimburse Landlord for any expense incurred by Landlord in curing Tenant’s failure to satisfy any such obligation (notwithstanding the fact that such cure might be effected by Landlord following the expiration or earlier termination of this Lease).

17.6 PARTIAL INVALIDITY

If any term or provision of this Lease or any portion thereof or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, then the remainder of this Lease and of such term or provision and the application of this Lease and of such term and provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each term of this Lease shall be valid and enforceable to the fullest extent permitted by law.

17.7 LANDLORD’S RIGHT TO CURE

If Tenant shall at any time default in the performance of any obligation under this Lease beyond applicable notice and cure periods (except in the event of an emergency, in which case concurrent notice shall be given to the extent practicable), Landlord shall have the right, but not the obligation, to enter upon the Premises and/or to perform such obligation, notwithstanding the fact that no specific provision for such substituted performance by Landlord is made in this Lease with respect to such default. In performing any such obligations, Landlord may make any payment of money or perform any other act. All sums so paid by Landlord (together with interest at the Lease Interest Rate) and all necessary incidental costs and expenses in connection with the performance of any such act by Landlord, shall be deemed to be additional rent under this Lease and shall be payable to Landlord within thirty (30) days of demand. Landlord may exercise the foregoing rights without waiving any other of its rights or releasing Tenant from any of its obligations under this Lease.

17.8 ESTOPPEL CERTIFICATES

Each party agrees on the Commencement Date and from time to time thereafter, within not more than fifteen (15) Business Days after receipt of written request by the other party, to

 

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execute, acknowledge and deliver to the requesting party a statement in writing, certifying that this Lease is unmodified and in full force and effect, that the party making such statement has no defenses, offsets or counterclaims against its obligations to pay Rent and other charges required under this Lease and to perform its other covenants under this Lease and that, to the best of its knowledge, there are no uncured defaults of Landlord or Tenant under this Lease (or, if there have been any modifications, that this Lease is in full force and effect, as modified, and stating the modifications, and, if there are any defenses, offsets, counterclaims or defaults, setting them forth in reasonable detail), the dates to which the Rent and other charges have been paid, and such other matters related to the Lease as the party requesting the same may reasonably require. Any such statement delivered pursuant to this Section 17.8 may be relied upon by any prospective purchaser or mortgagee of the property which includes the Premises or any prospective assignee of any such mortgagee, as well as any prospective assignee or subtenant of Tenant. Failure of Tenant to provide the foregoing certificate within such 15 Business Day period shall be deemed to be a Default without regard for any other notice or cure period set forth herein.

17.9 BROKERAGE

Each party hereto warrants and represents that it has dealt with no real estate broker or agent other than the Brokers in connection with this transaction and agrees to defend, indemnify and save the other party harmless from and against any and all claims for commissions or fees arising out of this Lease which, as to the respective parties, are inconsistent with such party’s warranties and representations. Landlord shall be responsible for any commissions or fees owed to the Brokers in connection with this transaction. The provisions of this Section shall survive the termination of this Lease.

17.10 ENTIRE AGREEMENT

All negotiations, considerations, representations, and understandings between Landlord and Tenant are incorporated herein and this Lease expressly supersedes any proposals or other written documents relating hereto. This Lease may be modified or altered only by written agreement between Landlord and Tenant, and no act or omission of any employee or agent of Landlord shall alter, change, or modify any of the provisions hereof.

17.11 SURRENDER; HOLDOVER

Upon the termination of the Lease Term, or upon any termination of Tenant’s right to possession of the Premises, Tenant shall surrender possession of the Premises to Landlord broom clean, free of Tenant’s Property, and otherwise in the condition that the Premises is required to be kept under this Lease, ordinary wear and tear, and damage from casualty to the extent that Landlord is required to restore the same pursuant to Article XII, excepted. Tenant shall surrender to Landlord all keys to the Premises and make known to Landlord the combination of all combination locks, if any, which Tenant is required to leave on the Premises. Tenant shall have no right to hold over after expiration of the Term. Any holding over by Tenant after the expiration of the Term of this Lease shall be treated as a daily tenancy at sufferance at a rate equal to, for the first sixty (60) days during which Tenant holds over, one-and-one-half (1.5) times the Base Rent, Tenant’s Operating Costs Payment, and any other additional rent due

 

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hereunder in effect on the Expiration Date, and thereafter the greater of (a) the then fair rental value of the Premises or (b) two (2) times the Base Rent, Tenant’s Operating Costs Payment, and any other additional rent due hereunder in effect on the Expiration Date. If Tenant holds over for more than sixty (60) days, Tenant shall also pay to Landlord all consequential and/or indirect damages (including any loss of a tenant or rental income) sustained by Landlord by reason of any such holding over. Otherwise, such holding over shall be on the terms and conditions set forth in this Lease as far as applicable. Nothing in this paragraph shall be deemed to be a waiver of any of Landlord’s rights or remedies under this Lease, at law or otherwise except as expressly set forth herein.

17.12 COUNTERPARTS

This Lease may be executed in any number of counterparts, which together shall constitute the Lease. Executed signature pages of this Lease transmitted by facsimile or electronic mail shall be valid and binding as original signatures and shall be considered an agreement of the respective parties to fully execute and deliver originally signed copies of this Lease.

17.13 CONSTRUCTION AND GRAMMATICAL USAGE

This Lease shall be governed, construed and interpreted in accordance with the laws of The Commonwealth of Massachusetts, and Tenant agrees to submit to the personal jurisdiction of any court (federal or state) in said Commonwealth for any dispute, claim or proceeding arising out of or relating to this Lease. In construing this Lease, feminine or neuter pronouns shall be substituted for those masculine in form and vice versa, and plural terms shall be substituted for singular and singular for plural in any place in which the context so admits or requires. The use of the word “ including ” shall mean “ including, without limitation .” If there be more than one party tenant, the covenants of Tenant shall be the joint and several obligations of each such party and, if Tenant is a partnership, the covenants of Tenant shall be the joint and several obligations of each of the partners and the obligations of the firm. If any provision of this Lease is capable of two constructions, one of which would render the provision void and the other of which would render the provision valid, the provision shall have the meaning that renders it valid. As used in this Lease: (a) the word “or” is not exclusive and the word “including” is not limiting; (b) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Lease as a whole and not to any particular Article, Section or other subdivision; and (c) the word “Lease” means the body of this Lease and all schedules, exhibits, and attachments hereto. Wherever a period of time is stated in this Lease as commencing or ending on specified dates, such period of time shall be deemed (i) inclusive of such stated commencement and ending dates, and (ii) to commence at 12:00 A.M. Eastern Time on such stated commencement date and to end at 11:59 P.M. Eastern Time on such stated ending date.

17.14 WHEN LEASE BECOMES BINDING

Employees or agents of Landlord have no authority to make or agree to make a lease or any other agreement or undertaking in connection herewith. The submission of this document for examination and negotiation does not constitute an offer to lease, or a reservation of, or option for, the Premises, and this document shall become effective and binding only upon the execution and delivery hereof by both Landlord and Tenant.

 

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17.15 SECURITY DEPOSIT

Simultaneously with the execution and delivery of this Lease, Tenant shall deliver to Landlord an irrevocable standby letter of credit (the “ Letter of Credit ”) in the amount of the Security Deposit Amount issued in the form attached hereto as Exhibit L/C by Silicon Valley Bank or any other bank or trust company reasonably satisfactory to Landlord (the “ Bank ”). Landlord shall hold the Letter of Credit as security (the “ Security Deposit ”) for the performance by Tenant of all obligations on the part of Tenant to be kept and performed under this Lease. The Security Deposit may not be deemed by Tenant to constitute rent for any month. Landlord shall have the right, from time to time without prejudice to any other remedy Landlord may have on account thereof, to draw upon the Letter of Credit if a Default has occurred and is continuing (or as otherwise permitted pursuant to the last sentence of this paragraph) and apply such drawn funds to Landlord’s damages hereunder, in which event Tenant shall, within ten (10) days of request by Landlord, restore the balance of the Letter of Credit to the Security Deposit Amount, by issuance of a replacement Letter of Credit. Tenant shall not have the right to call upon Landlord to apply all or any part of the Security Deposit to cure any defaults in respect of any of the terms, provisions, or conditions of this Lease where such default continues beyond the expiration of any applicable notice or cure period, but such use shall be solely in the discretion of Landlord. Tenant shall maintain the Letter of Credit, or a substitute Letter of Credit from the Bank (or another bank approved by Landlord and conforming to the requirements of this Section 17.15), in accordance with the terms hereof, in full force and effect at all times through the Term and for sixty (60) days thereafter. Notwithstanding anything to the contrary herein, Landlord shall have no right to use or apply any portion of the Letter of Credit unless a Default of Tenant has occurred and is continuing, or would have occurred with the giving of notice and passage of applicable cure periods, but transmittal of a default notice is stayed or barred by applicable bankruptcy or other similar law, or unless Landlord is entitled to do so under the following paragraph.

If the Letter of Credit will expire before the date that is sixty (60) days following the Expiration Date or earlier expiration of the Term, Tenant shall replace the Letter of Credit deposited with Landlord by providing Landlord with a substitute Letter of Credit at least thirty (30) days prior (each such 30th day prior being referred to herein as a “ Change Date ”) to the expiration date of the then effective Letter of Credit in the Security Deposit Amount. Any failure by Tenant to provide such a substitute Letter of Credit before any Change Date shall entitle Landlord to draw on all funds available under the Letter of Credit then being held by Landlord and hold the same as the Security Deposit. In such event, Landlord may require that Tenant replace such funds with a substitute Letter of Credit in the amount of the Security Deposit Amount by notice to Tenant. Tenant’s failure to provide a substitute Letter of Credit within ten (10) days after the giving of such Landlord’s notice shall be deemed a Default under this Lease for which no further notice or grace period shall apply. Any Letter of Credit shall be freely transferable without cost to Landlord, any such successor or any lender holding a collateral assignment of Landlord’s interest in the Lease. If the Bank that issued the Letter of Credit then held by Landlord (1) is placed into receivership or conservatorship by the Federal Deposit Insurance Corporation or any successor or similar entity, (2) fails to meet the Minimum Rating

 

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Requirement, (3) enters into any supervisory agreement with any governmental authority; or (4) fails to meet any capital requirements imposed by applicable Requirements, then Landlord may require that Tenant, within thirty (30) days of receipt of notice thereof, obtain, at Tenant’s sole cost and expense, a substitute Letter of Credit from a different Bank satisfying the requirements of this Lease. For the purposes of this Lease, the term “ Minimum Rating Requirement ” means the short term unsecured debt obligations or commercial paper of the Bank are rated at least A-3 by Standard & Poor’s Ratings Group, a division of the McGraw-Hill Companies (“ S&P ”), or, if an S&P rating is unavailable, P-3 by Moody’s Investors Service, Inc. (“ Moody’s ”), or F-3 by Fitch IBCA, Inc. (“ Fitch ”) in the case of accounts in which funds are held for thirty (30) days or less, or, in the case of Letters of Credit or accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “BBB” by S&P or, in the event an S&P rating is unavailable, “Baa3” by Moody’s or “BBB” by Fitch.

Within sixty (60) days following the later of (i) the expiration or earlier termination of the Term, and (ii) the date Tenant vacates the Premises in accordance with this Lease, Landlord shall return the Security Deposit or so much thereof as shall not have theretofore been applied in accordance with the terms of this Section (or as may be reasonably determined by Landlord to be necessary to cure any default of Tenant hereunder that is then continuing beyond applicable notice, provided that if such default is cured before the expiration of the applicable cure period, any such amounts shall promptly be returned to Tenant). Landlord shall have no obligation to pay interest on the Letter of Credit or any proceeds therefrom except as may be expressly required below. If Landlord obtains possession of any proceeds from the Letter of Credit, prior to applying the same to Tenant’s obligations in accordance with the terms of this Section, Landlord shall hold the proceeds as a cash Security Deposit as further described below.

If Landlord conveys Landlord’s interest under this Lease, the Letter of Credit may be assigned by Landlord to Landlord’s grantee, and if so assigned, provided that Landlord gives Tenant notice of the name of such grantee, and such grantee acknowledges receipt to Tenant thereof and assumes by written instrument delivered to Tenant Landlord’s obligations with respect to the Security Deposit from and after the date of such assumption (whether expressly or by assumption of the Lease, generally), Tenant agrees to look solely to such grantee for proper application of the Letter of Credit in accordance with the terms of this Section and the return thereof in accordance herewith. Upon such delivery, Tenant hereby releases Landlord named herein of any and all liability with respect to the Letter of Credit, the application of any proceeds thereof and its return, and Tenant agrees to look solely to such grantee. This provision shall also apply to subsequent grantees. Neither the holder of a mortgage nor the lessor in a ground lease of property which includes the Premises shall ever be responsible to Tenant for the return or application of Security Deposit, whether or not it succeeds to the position of Landlord hereunder, unless the Security Deposit shall have been received in hand by such holder or ground lessor. Tenant acknowledges that Landlord may be required to pledge the proceeds of the Letter of Credit to any lender holding a collateral assignment of Landlord’s interest in the Lease and agrees to provide Landlord with such documentation as Landlord may reasonably request, and to cooperate with Landlord as is reasonably necessary (provided that Landlord pays any material and reasonable out of pocket costs incurred by Tenant in connection therewith) to evidence the consent to such pledge by the issuer of the Letter of Credit. Tenant may assign its rights to the Security Deposit to any permitted assignee in connection with a permitted assignment of this Lease by written notice to Landlord (whether expressly or by inclusion within the assignment of the Lease).

 

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Any portion of the Security Deposit held in the form of cash from time to time during the term by Landlord (the “ Cash Security Deposit ”) shall be subject to the following terms. The Cash Security Deposit will be held by Landlord as security for the performance by Tenant of all obligations on the part of Tenant to be kept and performed under this Lease. The Cash Security Deposit may not be deemed by Tenant to constitute rent for any month. Landlord may, to the extent permitted by Requirements, commingle the Cash Security Deposit with other funds of Landlord and no interest shall be payable to Tenant thereon unless and except to the extent required by applicable Requirements. The then remaining portion of the Cash Security Deposit shall be returned to Tenant within sixty (60) days after expiration of the Term, provided there then exists no breach of any undertaking of Tenant hereunder for which Tenant has received notice (and if such breach is cured before the expiration of the applicable cure period, any such amounts shall promptly be returned to Tenant). Tenant shall not have the right to call upon Landlord to apply all or any part of the Cash Security Deposit to cure any defaults in respect of any of the terms, provisions, or conditions of this Lease where such default continues beyond the expiration of any applicable notice or cure period, but such use shall be solely in the discretion of Landlord. Notwithstanding anything to the contrary herein, Landlord shall have no right to use or apply any portion of the Cash Security Deposit unless a Default of Tenant has occurred and is continuing.

Upon any conveyance by Landlord of its interest under this Lease, the Cash Security Deposit shall be delivered by Landlord to Landlord’s grantee. Upon any such delivery, provided Landlord gives Tenant notice of the name of such grantee, Tenant hereby releases Landlord herein named of any and all liability with respect to the Cash Security Deposit, its application and return, and Tenant agrees to look solely to such grantee or transferee. This provision shall also apply to subsequent grantees and transferees. Neither the holder of a mortgage nor the lessor in a ground lease of property which includes the Premises shall ever be responsible to Tenant for the return or application of Security Deposit, whether or not it succeeds to the position of Landlord hereunder, unless the Security Deposit shall have been received in hand by such holder or ground lessor.

Provided that Tenant is not then in monetary or material non-monetary default under the Lease following applicable notice from Landlord of such default, but without regard for any cure period, Tenant shall be entitled to reduce the Security Deposit Amount from the amount initially set forth in Section 1.2, above, to the sum of $1,958,441.50 on one occasion following the second anniversary of the Rent Commencement Date by delivery of an amended or replacement Letter of Credit to Landlord in compliance with the provisions of this Section 17.15.

17.16 TENANT’S FINANCIAL CONDITION.

If Tenant is no longer publicly traded on a nationally recognized exchange at any time during the term of this Lease, or Tenant’s financial information ceases to be publicly available during the Lease Term for any reason, then, within ten (10) days after request by Landlord from time to time but in no event on more than two occasions in any twelve (12) month period, Tenant shall deliver to Landlord Tenant’s financial statements (which shall be audited if available and

 

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which shall be for the latest available year and in any event for a year ended not more than fifteen (15) months prior to Landlord’s request). Such financial statements may be delivered by Landlord to its mortgagees and lenders and prospective mortgagees, lenders and purchasers but shall otherwise be held in confidence (other than disclosures required pursuant to applicable Requirements). Tenant represents and warrants to Landlord that each such financial statement shall be true and accurate as of the date of such statement.

17.17 ROOFTOP AND CONDUIT RIGHTS

Notwithstanding anything contained in this Lease to the contrary, Tenant shall have the right, at no charge, but subject to Landlord’s reasonable approval of all aspects thereof, including, without limitation, the plans and specifications and the contractors therefor, to use the roof of the Building (other than the areas reserved to Landlord for use by Landlord and anyone claiming by through or under Landlord in the location indicated on Exhibit RESERVED ROOF AREA attached hereto (the “ Reserved Roof Area ”)) to install, maintain, repair, replace and operate appropriate equipment for use by occupants of the Premises (including, without limitation, a reasonable number of microwave or satellite dishes, antennae, and a reasonable amount of air conditioning equipment) (collectively, the “ Roof Equipment ”). To the extent existing access conduits from the Roof Area through the core areas in the Building are not sufficient to service the Roof Equipment, Tenant may not install additional access conduits without the prior approval of Landlord as to location and method of installation. In addition, Tenant shall have the right, at Tenant’s sole cost and expense, to connect the Rooftop Equipment to electrical power via such conduits. Tenant, at Tenant’s cost, shall extend Landlord’s existing electrical service on the roof of the Building as is necessary to serve the Roof Equipment. Tenant may use the roof space solely for Tenant’s own use and for the concurrent use by any subtenant or assignee of any material portion of the Premises (but not for resale purposes). In connection therewith, Landlord shall make available to Tenant access to the roof space for the construction, installation, maintenance, repair, operation and use of Tenant’s Roof Equipment. Tenant shall comply with Landlord’s reasonable instructions to preserve the roof warranty and shall be responsible for all repairs and maintenance to the roof required as a result of Tenant’s installation, maintenance, repair, replacement or operation of any such equipment. Landlord reserves the right to require that Tenant, at Tenant’s expense, utilize a contractor designated by Landlord for any penetrations of the roof. In addition, without limiting any other provision of this Lease, the following provisions shall be applicable to the Roof Area to the extent that the Roof Area is utilized by Tenant:

(a) All work and installations on the roof shall be performed in accordance with the approved plans and specifications, in a good and workerlike manner and in compliance with all applicable legal requirements;

(b) Tenant shall repair any damage to the roof caused by Tenant’s installation and operation of the Rooftop Equipment, except to the extent due to the negligence or willful misconduct of Landlord or any Landlord Party;

(c) Tenant shall defend, indemnify and hold Landlord harmless from and against all loss, cost, damage and expense including, without limitation, reasonable attorneys’ fees, and all claims for damage or injury arising out of (i) Tenant’s misuse of the roof (except to the extent due to the negligence or willful misconduct of Landlord or any Landlord Party) or (ii) Tenant’s failure to comply with the requirements of this Section 17.17;

 

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(d) Tenant shall not place a load upon the roof in excess of the design load capacity therefor;

(e) At the expiration or earlier termination of this Lease, Tenant shall, at its expense, remove the Roof Equipment from the roof and repair all damage caused by such removal; and

(f) Landlord reserves the right at any time and from time to time (i) at Landlord’s expense to relocate Tenant’s equipment and installations to other areas on the roof in a good, workerlike and expeditious manner, in accordance with all Requirements, and in a manner that preserves the functionality of such equipment and installations and (ii) to require Tenant, at Landlord’s out of pocket expense (but includable in the calculation of Operating Costs to the extent not otherwise excluded, e.g., to the extent not a prohibited capital replacement or improvement), to temporarily remove from the roof all of its equipment and installations to the extent necessary to permit Landlord to perform repairs or other necessary work on the roof. Following any such temporary removal or relocation (to the extent possible, to other areas of the roof), Landlord agrees to cause such repairs or other necessary work on the roof to be completed as expeditiously as possible.

17.18 NOTICE OF LEASE

In the event this Lease or a copy thereof shall be recorded by Tenant, then such recording shall constitute a Default by Tenant under Article XIV hereof entitling Landlord to immediately terminate this Lease. At the request of either Landlord or Tenant, the parties shall execute a document in recordable form containing only such information as is necessary to constitute a Notice of Lease under Massachusetts law. All costs of preparation and recording such notice shall be borne by the requesting party. At the expiration or earlier termination of this Lease, Tenant shall provide Landlord with an executed termination of the Notice of Lease in recordable form, which obligation shall survive such expiration or earlier termination.

17.19 NO SURRENDER

The delivery of keys to any employee of Landlord or to Landlord’s agents or employees shall not operate as a termination of this Lease or a surrender of the Premises.

17.20 COVENANT OF QUIET ENJOYMENT

Subject to the to the terms and conditions of this Lease and the easements and restrictions of record applicable to the Lot listed on Exhibit ENCUMBRANCES , Tenant shall lawfully, peaceably, and quietly have, hold, occupy, and enjoy the Premises during the term hereof, without hindrance or ejection by Landlord or by any persons claiming under Landlord during the Lease Term. The foregoing covenant of quiet enjoyment is in lieu of any other covenant, express or implied.

 

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17.21 NO PERSONAL LIABILITY

Tenant agrees to look solely to Landlord’s then-equity interest in the Building and the Lot at the time owned, and in any sale, taking, and insurance proceeds therefrom, for recovery of any judgment from Landlord; it being specifically agreed that neither Landlord (whether Landlord be a manager, member, individual, partnership, firm, corporation, limited liability company, trustee, fiduciary, or other entity) nor any partner, member, officer, trustee, manager, fiduciary, beneficiary, shareholder or director of Landlord, nor any trust of which any person holding Landlord’s interest is trustee nor any successor in interest to any of the foregoing shall ever be personally liable for any such judgment, or for the payment of any monetary obligation to Tenant. The covenants of Landlord contained in this Lease shall be binding upon Landlord and Landlord’s successors only with respect to breaches occurring during Landlord’s and Landlord’s successors’ respective periods of ownership of Landlord’s interest hereunder.

No partner, member, officer, trustee, manager, fiduciary, beneficiary, shareholder or director of Tenant, nor any trust of which any person holding Tenant’s interest is trustee nor any successor in interest to any of the foregoing shall ever be personally liable for any judgment against Tenant, or for the payment of any monetary obligation to Landlord.

Neither Landlord nor Tenant shall ever be liable for any loss of business or any indirect or consequential damages under this Lease except as expressly set forth in Section 17.11 hereof and that no remedy expressly provided hereunder shall be deemed indirect or consequential. This paragraph shall not be deemed to limit or otherwise affect either party’s right to obtain injunctive relief or specific performance or availability of any other right or remedy which may be accorded such party by law or the Lease.

17.22 NOTICES

Whenever, by the terms of this Lease, any bill, statement, demand, notice, request, or other communication shall or may be given either to Landlord or to Tenant, the same shall be in writing and shall be delivered by hand or sent by registered or certified mail, postage prepaid or by nationally recognized overnight courier (such as Federal Express or U.S. Postal Service Express Mail):

If intended for Landlord, addressed to at the address set forth in Section 1.2 with a copy to Dain Torpy, 745 Atlantic Avenue, 5th Floor, Boston, MA 02111, Attention: Joseph R. Torpy, or to such other addresses as may from time to time hereafter be designated by Landlord by like notice.

If intended for Tenant, addressed to Tenant at the address set forth in Section 1.2, with a copy to Latham & Watkins LLP, John Hancock Tower, 20th Floor, 200 Clarendon Street, Boston, MA 02116, Attention: John H. Chory, Esq., or to such other address or addresses as may from time to time hereafter be designated by Tenant by like notice.

Any such bill, statement, demand, notice, request or other communication shall be deemed effective upon delivery, or refusal to accept delivery, whichever occurs first, at the address or addresses of the intended recipient, as set forth above. Notices for either party may be given by counsel for such party. In no event shall a post office box be acceptable for designation of a notice address under this Lease. Default notices to Tenant and Landlord shall, in addition, be delivered in accordance with the provisions set forth in Sections 14.1 and 14.2, respectively.

 

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17.23 ANTI-TERRORISM REPRESENTATIONS

Each party represents and warrants to the other that: (a) it is not, and shall not during the Term of this Lease become, a person or entity with whom the other party is restricted from doing business under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “ USA Patriot Act ”) and Executive Order Number 13224 on Terrorism Financing, effective September 24, 2001 and regulations promulgated pursuant thereto, including, without limitation, persons and entities named on the Office of Foreign Asset Control Specially Designated Nationals and Blocked Persons List (collectively, “ Prohibited Persons ”); and (b) to the best of such party’s knowledge, such party is not currently conducting any business or engaged in any transactions or dealings, or otherwise associated with, any Prohibited Persons; and (c) such party will not in the future during the Term of this Lease knowingly engage in any transactions or dealings, or be otherwise associated with, any Prohibited Persons. The representations and warranties contained in this Section 17.23 shall be continuing in nature and survive the expiration or earlier termination of this Lease. In connection with the foregoing, it is expressly agreed that any breach by either party of the foregoing representations and warranties shall be deemed a default by such party under this Lease and shall be covered by the indemnity provisions contained herein.

17.24 CONFIDENTIALITY

Tenant agrees this Lease and the terms hereof, shall be treated as confidential and will not be disclosed to anyone in any fashion by Tenant, except to its affiliates, lenders, employees, attorneys, accountants, other professionals and agents, each of whom shall agree to keep this Lease and the terms hereof confidential, unless specifically agreed to by Landlord in writing or otherwise to the extent required pursuant to applicable Requirements (provided that Tenant shall consult with Landlord prior to making any disclosure of this Lease and the terms hereof required pursuant to applicable Requirements). The provisions of this Section 17.24 shall survive the expiration or earlier termination of this Lease.

17.25 DUE AUTHORITY

Landlord and Tenant each warrant to the other that it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, with full power and authority to execute and deliver this Lease, that this Lease constitutes the valid and legally binding obligation of such party, enforceable in accordance with its terms, and that the undersigned representatives are duly authorized to execute and deliver this Lease on behalf of such party.

17.26 COUNTERPART SIGNATURES

This Lease may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall constitute one instrument.

 

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17.27 TENANT’S NAME

Landlord shall not use Tenant’s trademark(s) or logo(s) without Tenant’s prior written consent in connection with any promotional or marketing materials or otherwise knowingly (provided, however, that this Section 17.27 shall not be deemed to prevent Landlord from using pictures of the Building in such promotional or marketing materials, whether or not such trademark(s) or logo(s) are visible in such pictures).

17.28 BOARD APPROVAL CONTINGENCY.

This Lease and the obligations of the parties hereto are contingent upon Tenant’s Board of Directors approving the same at its meeting on November 20, 2014. This contingency shall be deemed satisfied and this Lease shall be fully effective unless Tenant notifies Landlord in writing delivered no later than 5PM (Eastern) on November 21, 2014 that Tenant’s Board of Directors has not approved the Lease (it being agreed that notice may be delivered to Landlord’s Boston address only for purposes of this Section 17.28). In the event Tenant so notifies Landlord in strict accordance with the foregoing that Tenant’s Board of Directors has not approved this Lease, then this Lease shall be of no further force and effect.

17.29 REIMBURSEMENT OF OUT-OF-POCKET COSTS

Whenever this Lease shall provide that Landlord or Tenant shall pay the out-of-pocket costs of the other party, such out-of-pocket costs shall be commercially reasonable where specified as such and (a) whenever a party requests reimbursement for its out-of-pocket costs, such party shall deliver to the requesting party bills, receipts, invoices or other documentation reasonably evidencing such costs, and (b) if such documentation is not so delivered with five (5) days after request thereof, the time periods set forth herein with respect to any such payments shall be tolled until five (5) days after delivery to the requesting party of such documentation. Subject to the provisions of this Section 17.29, any additional rent for which no time period is expressly provided in this Lease for the payment thereof, shall be due and payable within thirty (30) days after demand from Landlord.

17.30 MODIFICATIONS

Any modification or amendment of this Lease shall be in writing and shall be executed by the party to be charged.

17.31 LANDLORD’S REPRESENTATIONS AND WARRANTIES

Landlord represents and warrants to Tenant that (a) as of the date hereof, there is no condemnation of any part of the Building currently pending, nor has Landlord received notice that any such condemnation is threatened, and (b) as of the date hereof, there are no special assessments presently pending by governmental authorities, nor has Landlord received notice that any assessment is pending.

 

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ARTICLE XVIII

RIGHT OF FIRST OFFER TO PURCHASE

18.1 RIGHT OF FIRST OFFER TO PURCHASE

The first time during the Lease Term Landlord intends to transfer its Ownership Interest In The Building (as defined below) to a third party that is not a transaction otherwise exempt from this Article XVIII as described below, Landlord shall give notice of such intention to Tenant (“ Landlord’s Offer Notice ”). Tenant shall have a period of thirty (30) days following Tenant’s receipt of Landlord’s Offer Notice (the “ Negotiation Period ”) to negotiate in good faith with Landlord for the purchase of the Ownership Interest In The Building; provided, however, in no event shall Landlord be required to accept any terms and conditions proposed by Tenant (Tenant’s rights under this Article XVIII being collectively referred to herein as Tenant’s “ First Offer Right ”). In the event Tenant indicates a desire to purchase Landlord’s Ownership Interest In The Building prior to the expiration of the Negotiation Period, Landlord and Tenant shall negotiate in good faith to reach agreement on a mutually acceptable purchase price and purchase and sale agreement by the end of the Negotiation Period, it being understood, however, that neither party shall have any obligation whatsoever to accept the terms and conditions proposed by the other during such negotiations or to enter into a purchase and sale agreement for the Ownership Interest In The Building on terms not acceptable to such party in its sole and absolute discretion. If the parties agree on terms and conditions within the Negotiation Period, Landlord and Tenant shall deliver to each other an executed copy of the purchase agreement agreed to by the parties during the Negotiation Period (the “ Purchase Agreement ”). The parties agree that the Purchase Agreement shall provide for a closing date that is not more than thirty (30) days after the end of the Negotiation Period. A “transfer” for the purposes of this Section 18.1 includes a sale, ground lease or any other conveyance or transfer by the Persons having an Ownership Interest In The Building. Landlord shall not, in bad faith, structure any transfer in a manner intended to evade the application of this Section 18.1 (e.g. by accomplishing the transfer of an Ownership Interest In The Building in a series of related transfers). In the event Tenant the parties execute a Purchase Agreement, the Ownership Interest In The Building shall be sold to Tenant in its then existing “AS IS, WHERE IS” condition, without representation or warranty by Landlord other than as to authority, OFAC, no notices of violation of Requirements, and no litigation relating to the Premises or Seller’s ability to complete such sale.

If the parties are unable to agree upon a Purchase Agreement during the Negotiation Period, or if Tenant shall fail to deliver a copy of the Purchase Agreement signed by Tenant by the end of the Negotiation Period, or if Tenant shall expressly waive in writing its First Offer Right hereunder, the provisions of this Article XVIII shall terminate and thereafter be null and void. If Tenant determines after receipt of Landlord’s First Offer Notice that it does not desire to purchase the Ownership Interest in the Building, Tenant shall promptly notify Landlord.

If Landlord shall record an affidavit in the Suffolk County Registry of Deeds stating that: (i) Landlord has sent Landlord’s Offer Notice to Tenant in accordance with the requirements of this Article XVIII, and (ii) either that parties were unable to agree upon a Purchase Agreement during the Negotiation Period, or Tenant failed to deliver a copy of the Purchase Agreement signed by Tenant by the end of the Negotiation Period, or Tenant waived in writing its First Offer Right hereunder, then such affidavit shall be conclusive as to (A) compliance of Landlord with the requirements of this Article XVIII; and (B) termination of Tenant’s rights under this ARTICLE XVIII, and any other party shall be entitled to rely on the same.

 

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As used in this XVIII, the following terms shall have the following meanings:

(a) “ Ownership Interest In The Building ” means ownership interests representing 100% of the direct or indirect ownership of the Building including, without limitation, the direct or indirect ownership interest in the Building held by any Person that holds title to the Building (“ Title Holder ”). A transfer of interest in any Person above the Title Holder shall not be deemed a transfer of the Ownership Interest In The Building. A ground lease of the Lot shall constitute a transfer of an Ownership Interest In The Building if such transfer, had it been of an interest in the Building, would have resulted in a transfer of 100% of the direct or indirect ownership of the Building.

(b) “ Person ” means any natural person or legal entity.

Tenant’s rights pursuant to this Article XVIII shall be limited to only the Tenant originally named hereunder and its Successor Entities, and such rights shall not be otherwise transferable. In addition, this Article XVIII shall not be available while a Default by Tenant is continuing hereunder and shall expire on the first to occur of the date that is twelve (12) months prior to the expiration of the Lease Term, as the same may be extended, or the date that Tenant first subleases, in the aggregate, at least 25% of the Premises for the remainder of the Term. Tenant’s rights pursuant to this Article XVIII shall be a one-time right only and if Tenant does not purchase the Building after receipt of the first Landlord’s Offer Notice, Tenant shall have no further right to purchase the Building and this Article XVIII shall terminate and be of no further force and effect. Nothing in this Article shall be construed to grant to Tenant any rights or interest in any real property, and any claims by Tenant alleging a failure of Landlord to comply herewith shall be limited to claims for monetary damages or any other available equitable remedy, including an action for restraint by injunction. The prevailing party in any such action pursuant to the immediately preceding sentence shall be entitled to claim and collect all of its reasonable costs and expenses (including attorneys’ fees, arbitration fees, witness fees and court reporter costs) incurred in connection with such action. In the event that Landlord prevails in any such action, Tenant shall indemnify, defend and hold harmless Landlord for any loss, cost, damage or injury that Landlord suffers on account of the delay caused by such proceeding, including without limitation any lost tenant leases for space in the Building or change in market conditions directly affecting a lease for tenant space in the Building. Tenant may not assert and hereby waives any rights in any real property, nor may Tenant file any lis pendens or similar notice with respect thereto.

In no event shall the provisions of this Article XVIII apply to:

(1) an exercise of a power of sale or other means of foreclosure by a bona fide mortgagee or the acceptance of a deed in lieu of foreclosure by such mortgagee or its nominee.

(2) any sale/leaseback transaction made in connection with a bona fide financing, provided that the seller/lessee under any such transaction shall be bound by the provisions of this Article XVIII at such time, if any, as such seller/lessee reacquires title to the Building

 

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(3) any sale or transfer of the Building (including by ground lease) to a partnership, corporation, limited liability company, trust or other entity that is under control by, common control with, or controls Landlord or any direct or indirect owner of Landlord, but any such transferee shall hold title subject to Tenant’s rights under this Article XVIII; or

(4) any transfer in the nature of a financing transaction with a financial institution that is made for a bona fide business purpose (i.e., other than in order to allow a transfer of the Building in avoidance of Tenant’s rights under this Article XVIII), including without limitation the granting of, or foreclosure or deed-in-lieu of foreclosure, under a mortgage.

Time is of the essence with respect to the matters set forth in this Article XVIII. Upon (x) any sale of the Building, or (y) the exercise of a power of sale or other means of foreclosure by a bona fide mortgagee or the acceptance of a deed in lieu of foreclosure by such mortgagee or its nominee pursuant to clause (1), above, this Article XVIII shall be of no further force and effect. Upon such sale, Landlord shall be released from any and all claims arising under the Lease.

Any Landlord’s Offer Notice and information obtained by Tenant in connection therewith, and any information regarding a sale of the Building, provided to Tenant by Landlord pursuant to this Article XVIII shall be held confidential by Tenant and not disclosed to any third party except as required by law or in connection with any dispute between Landlord and Tenant regarding this Article XVIII and for disclosures to Tenant’s attorneys and third-party consultants to the extent such attorneys and consultants are reasonably required for Tenant to evaluate such information and, in each case, provided that such attorneys and consultants are made subject to the provisions of this paragraph. Any such information shall be returned by Tenant to Landlord in the event that Tenant’s rights under this Article XVIII terminate in accordance with the terms hereof. Nothing in this Article XVIII shall obligate Landlord to transfer its Ownership Interest In The Building or offer to do the same at any time during the term of this Lease, except as expressly set forth in this Article XVIII.

ARTICLE XIX

INTENTIONALLY OMITTED

ARTICLE XX

ARBITRATION

20.1 Whenever (A) (1) Tenant shall be in default of any of the terms, provisions, or conditions of this Lease on Tenant’s part to be performed beyond the expiration of any applicable notice or grace period provided for herein, (2) Tenant disputes the existence of such default in good faith, and (3) such default would prevent Tenant from exercising any option or right to extend or renew the original term of this Lease, or (B) this Lease expressly provides that a matter shall be determined by arbitration, such dispute under this Lease may be submitted to arbitration by either party under the then prevailing rules of the American Arbitration Association (“ AAA ”) before a single arbitrator under the Expedited Procedures provisions of the Commercial Arbitration Rules of the AAA (the “ AAA Rules ”).

 

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20.2 The arbitrator conducting any arbitration shall be bound by the provisions of this Lease and shall not have the power to add to, subtract from, or otherwise modify such provisions. Landlord and Tenant shall sign all documents and do all other things reasonably necessary to submit any such matter to arbitration and waive any and all rights they or either of them may at any time have to revoke their agreement hereunder to submit to arbitration and to abide by the decision rendered thereunder, which shall be binding and conclusive on the parties and shall constitute an “award” by the arbitrator within the meaning of the AAA Rules and applicable law. Judgment may be had on the decision and award of the arbitrators so rendered in any court of competent jurisdiction. Each arbitrator shall be a qualified, disinterested and impartial person who shall have had at least ten (10) years’ experience in Boston in an occupation connected with the matter of the dispute. Landlord and Tenant may each appear and be represented by counsel before such arbitrator and submit such data and memoranda in support of their respective positions in the matter in dispute as may be reasonably necessary or appropriate under the circumstances. Each party hereunder shall pay its own costs, fees and expenses (including, without limitation, counsel, experts and presentation of proof) in connection with any arbitration or other action or proceeding brought under this Article XX, and the expenses and fees of the arbitrator selected shall be shared equally by Landlord and Tenant. Notwithstanding any contrary provisions hereof, the arbitrator may award damage costs, reasonable attorneys’ fees and interest. If (i) the arbitrator shall award judgment solely to either party (the “ Prevailing Party ”), and (ii) the other party (the “ Non-Prevailing Party ”) shall not comply with the terms of such judgment, and (iii) the Prevailing Party shall commence an action to enforce the judgment, and (iv) the Prevailing Party is successful in such action, then the Non- Prevailing Party shall pay the Prevailing Party’s out-of-pocket expenses and reasonable attorneys’ fees in connection with the enforcement of the arbitrators’ judgment.

[NO FURTHER TEXT ON THIS PAGE; SIGNATURES FOLLOW]

 

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IN WITNESS WHEREOF, the parties hereto have executed this instrument under seal as of the date first set forth in Section 1.2, above.

 

LANDLORD:
DWF III SYNERGY, LLC, a Delaware limited liability company
By:     Synergy Seaport LLC
Its Manager
By:   Synergy Development, LLC
Its Manager

By:

 

 

Name:     David Greaney
Title:     Manager
TENANT:
LOGMEIN, INC., a Delaware corporation

By:

 

 

Name:  

 

 

Title:    

  President/Vice President

By:

 

 

Name:  

 

 

Title:    

  Treasurer/Assistant Treasurer

 

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EXHIBIT DEFINITIONS

DEFINITIONS

 

AAA

     83   

AAA Rules

     83   

ADA

     24   

Additional Time

     56   

Agreed Tenant Delay

     5   

Allowance

     7   

Alterations

     29   

Approvals

     24   

Approved Building Trades Department Contractor or Subcontractor

     32   

Bank

     70   

Base Building Work

     1   

BBW Plans and Specifications

     1   

Cables

     32   

Cash Security Deposit

     72   

Change Date

     71   

Commencement Date

     1   

Commencement Letter

     4   

Construction Documents

     6   

control

     41   

Cut-Off Date

     8   

Default

     58   

Default of Tenant

     58   

Designated Arbitrator

     13   

Direct Costs

     7   

Eligible Costs

     7   

Estimated Completion Date

     55   

Estimated Operating Costs Payment

     15   

Estimated Operating Costs Statement

     15   

examiner

     22   

Excess Tenant Improvements

     7   

Expiration Date

     2   

Extension Notice

     8   

Extension Term

     8   

Fair Market Rent

     8   

FF&E Work

     10   

Fire Stairs

     6   

First Offer Right

     78   

Fitch

     71   

GAAP

     17   

Hazardous Materials

     28   

indemnified party

     50   

indemnifying party

     50   

Landlord

     1   

 

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Landlord Delay

     12   

Landlord Party

     49   

Landlord’s Change Estimate Notice

     4   

Landlord’s Offer Notice

     78   

Landlord’s Work

     6   

Lease Interest Rate

     10   

Lease Term

     9   

lease year

     16   

Letter of Credit

     70   

Material Service Interruption

     48   

Minimum Rating Requirement

     71   

Minor Sublease

     42   

Moody’s

     71   

Negotiation Period

     78   

Non-Prevailing Party

     84, 14   

Occupancy Documentation

     1   

Operating Costs

     16   

Operating Costs Payment

     14   

Operation

     16   

Ownership Interest In The Building

     79   

partial damage

     54   

Permitted Alterations

     29   

Person

     79   

Prevailing Party

     84, 14   

Prohibited Persons

     77   

Prohibited Tenant

     39   

Prohibited Uses

     3   

Property

     16   

Punch List Items

     1   

Purchase Agreement

     79   

Qualified Arbitrator

     13   

qualified broker

     8   

Related Corporation

     41   

Rent

     9   

Reserved Roof Area

     73   

Restoration Notice

     55   

Roof Equipment

     73   

Rules and Regulations

     23   

S&P

     71   

Schematic Plans

     6   

Security Agreement

     42   

Security Deposit

     70   

Service Interruption

     48   

Service Interruption Notice

     48   

SNDA

     64   

Soft Costs

     7   

 

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Specialty Alterations

     35   

Substantial Completion

     1   

substantial damage

     54   

Substantially Complete

     1   

Successor Entity

     41   

Target Commencement Date

     7   

Taxes

     11   

Tenant

     1   

Tenant Delay

     2   

Tenant Improvements

     6   

Tenant Improvements Change Order

     7   

Tenant Improvements Reconciliation Statement

     8   

Tenant Partner

     41   

Tenant Party

     49   

Tenant Requested Change

     4   

Tenant Submission Deadlines

     6   

Tenant’s Property

     32   

Term

     9   

Title Holder

     79   

transfers

     36   

Two-Broker Period

     8   

USA Patriot Act

     77   

Work

     32   

Year-End Operating Costs Statement

     15   

 

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EXHIBIT FP

PREMISES

 

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EXHIBIT WORK LETTER

I. Base Building Work and Completion of Landlord’s Work.

(A) Landlord, at its sole cost and expense except as expressly set forth herein, is in the process of undertaking and shall undertake, certain Building renovations (collectively, “ Base Building Work ”) in accordance with the plans and specifications attached hereto as Attachment 1 (as they may be modified pursuant to this Section I.A, the “ BBW Plans and Specifications ”). Tenant shall not be responsible for costs to change Landlord’s Work to the extent necessitated by the BBW Plans and Specifications being inconsistent with conditions such as existed on the Premises at the time the BBW Plans and Specifications were prepared. The Base Building Work is to be constructed in a good and workerlike manner, free of liens, asbestos, asbestos-containing materials, and any other toxic or hazardous substances or materials other than materials customarily found in construction materials in the construction of similar projects in the downtown Boston area and other than as disclosed on Exhibit EXISTING CONDITIONS, in accordance with the BBW Plans and Specifications and otherwise in compliance with all applicable Requirements (including without limitation Article 37 of the Boston Zoning Code), by Landlord’s contractor, Commodore Builders, or another contractor reasonably selected by Landlord (the “ Contractor ”). Notwithstanding anything to the contrary set forth in the Lease, Landlord is responsible, at Landlord’s sole cost and expense, for causing the discharge of any mechanic’s or other liens arising from the Landlord’s Work (as defined below) provided Tenant pays all amounts due hereunder. Landlord shall use diligent efforts to Substantially Complete the Landlord’s Work (as defined below) on or before the Target Commencement Date. The Base Building Work and the Tenant Improvements are collectively referred to as the “ Landlord’s Work ”. “ Substantial Completion ” and “ Substantially Complete ” shall mean, that (i) all of Landlord’s Work has been completed in accordance with (A) the provisions of this Lease applicable thereto, (B) with respect to the Base Building Work, the BBW Plans and Specifications as the same may have changed in accordance with any applicable Tenant Requested Change and this Exhibit WORK LETTER, and, with respect to the Tenant Improvements (as defined below), in compliance with the Construction Documents in all material respects as the same may have changed in accordance with any applicable Tenant Improvements Change Order and this Exhibit WORK LETTER, and (C) all applicable Requirements, except for details or adjustments of a typical punch-list nature in similar projects (the “ Punch List Items ”) as would not interfere with Tenant’s use and occupancy of the Premises for the intended use other than de minimis interference consistent with the nature of completing Punch List Items, (ii) Landlord shall have delivered to Tenant architects’ certificates certifying the Substantial Completion of Landlord’s Work and (iii) all applicable governmental approvals necessary for Tenant’s occupancy of the Premises (the “ Occupancy Documentation ”) have been issued with respect to Landlord’s Work (including a certificate of occupancy, which may be temporary or permanent, to the extent available in light of the completion status of the FF&E Work). Following Substantial Completion, if a temporary certificate of occupancy has been issued with respect to all or any portion of the Landlord’s Work, Landlord shall use diligent efforts to obtain a permanent certificate of occupancy from the City of Boston for the Landlord’s Work or the applicable portion thereof (to the extent available in light of the completion status of the FF&E Work) as soon as is reasonably practicable thereafter.

 

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The “ Commencement Date ” shall mean the date that is the later to occur of (a) November 1, 2015, and (b) the date the entirety of Landlord’s Work is Substantially Complete. Landlord shall provide Tenant with at least ten (10) days’ prior notice of Landlord’s good faith estimate of the actual date of Substantial Completion and shall cooperate with Tenant to keep Tenant reasonably informed of the progress of the Landlord’s Work from time to time. Landlord may modify the BBW Plans and Specifications from time to time provided that Landlord delivers copies of any such modifications to Tenant, and so long as Base Building Work remains consistent with the design standards of the initial BBW Plans and Specifications and does not materially affect the cost or design of the Tenant Improvements. If requested by Landlord in writing, Tenant shall, within ten (10) Business Days following submission of any such modified BBW Plans and Specifications to Tenant by Landlord, confirm in writing whether any such modifications violate the provisions of the immediately preceding sentence. Landlord shall consult with Tenant from time to time, no less often than monthly, regarding the progress and scheduling of Landlord’s Work (Landlord’s request for Tenant’s attendance at monthly construction meetings shall be deemed compliance with the foregoing consultation requirement, regardless of whether a representative of Tenant attends such meetings).

Upon the Substantial Completion of the Landlord’s Work, Landlord shall notify Tenant, and within fifteen (15) days after the Substantial Completion of the Landlord’s Work, Landlord and Tenant shall conduct a joint inspection of the Premises for the purpose of preparing a list of the Punch List Items. Landlord shall use reasonable efforts (without being obligated to employ overtime labor or to incur any extraordinary expenses in connection therewith, and subject to extension due to Tenant Delays or any of the causes or reasons set forth in Section 8.3) (1) to complete such Punch List Items within thirty (30) days after the finalization of the list of Punch List Items (except for any Punch List Items that, with the exercise of reasonable due diligence, require additional time to perform or lead time to obtain), and (2) to perform such Punch List Items in a manner that minimizes any interference with Tenant’s use and occupancy of the Premises (it being agreed that Landlord shall not perform such Punch List Items in a manner that causes any material interference with Tenant’s use and occupancy of the Premises). If Landlord fails to complete the Punch List Items within sixty (60) days after Landlord’s receipt of Tenant’s notice, and such failure continues for an additional five (5) Business Days after additional notice thereof to Landlord (such notice to state expressly Tenant’s intention to exercise its rights under this paragraph), both such periods subject to any Tenant Delay or the causes listed in Section 8.3 of the Lease, Tenant may complete the applicable Punch List Items for the account and at the expense of Landlord. All reasonable out-of-pocket expenditures made by Tenant in connection therewith shall, at Landlord’s option, either be paid to Tenant by Landlord within thirty (30) days after submission by Tenant to Landlord of a reasonably detailed invoice therefor or credited against the next installment of Base Rent thereafter becoming due hereunder.

Landlord shall cause its general contractor or contractors performing the Landlord’s Work to warrant that Landlord’s Work shall be free of defects in workmanship and materials for a period of one year following Substantial Completion and, upon notice from Tenant given promptly after identification of such defect and given no later than five (5) Business Days prior to the expiration of such period, shall remedy or shall cause the general contractor(s) to remedy any such defects; provided, however, that the foregoing warranty shall not be construed or interpreted as exculpating Landlord from any of its maintenance, repair and replacement obligations set forth elsewhere in this Lease.

 

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(B) If Landlord shall be delayed in Substantially Completing the Landlord’s Work or any portion thereof or in completing any other element of Landlord’s Work required hereunder as a result of the occurrence of any of the following (a “ Tenant Delay ”):

(i) Any request by Tenant that Landlord delay the completion of any component of Landlord’s Work;

(ii) Any delay resulting from Tenant’s interference with the Substantial Completion of Landlord’s Work (provided that Landlord promptly notifies Tenant of any factor that it believes is resulting or will result in a Tenant Delay under this clause (ii) and takes reasonable steps to limit the effect of such factor);

(iii) Any delay resulting from the failure of Tenant to make any submission or to respond to any submission to Tenant from Landlord on or before the deadline for such submission or response as set forth in the Lease or this Exhibit;

(iv) Any delay resulting from Landlord’s inability to obtain permits for the Tenant Improvements on account of the design of the Tenant Improvements and/or the inability of Landlord to obtain Occupancy Documentation for the Premises or Building by reason of the failure of the Construction Documents for the Tenant Improvements to comply with applicable Requirements; provided that Landlord shall notify Tenant within ten (10) Business Days following review of the applicable plans if Landlord anticipates that the design of the Tenant Improvements will cause a delay resulting from inability to obtain permits (but the failure of Landlord to anticipate such delay shall not relieve Tenant from any claim of Tenant Delay actually caused by the design of the Tenant Improvements) and Landlord shall notify Tenant if Landlord becomes aware that the Construction Documents for the Tenant Improvements fail to comply with applicable Requirements;

(v) Any delay resulting from a Tenant Requested Change or Tenant Improvements Change Order (each as defined below); or

(vi) Any other delay resulting from the acts or omissions (where a duty to act existed) of Tenant, its agents, employees or independent contractors, including any delay arising out of the FF&E Work (provided that Landlord promptly notifies Tenant of any factor that it believes is resulting or will result in a Tenant Delay under this clause (vi) and takes reasonable steps to limit the effect of such factor);

then, for purposes of determining the Commencement Date, the date of Substantial Completion shall be deemed to be the day that all of the Landlord’s Work would have been Substantially Completed absent any such Tenant Delay. Landlord shall notify Tenant of any alleged Tenant Delay pursuant to clauses (ii) or (vi), above, in writing, within five (5) Business Days following the occurrence thereof. Tenant shall reimburse Landlord for any increase in the actual out-of-pocket costs of the Landlord’s Work or other work being constructed by Landlord in the Building, resulting from a Tenant Delay within thirty (30) days after billing.

The Target Commencement Date shall be extended by one day for each day of Tenant Delay. In connection therewith, Landlord and Tenant have agreed to determine the length of any Tenant Delay as follows (in all events after deducting Landlord Delay as provided under Section

 

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II of this Exhibit WORK LETTER, below): (i) in the event of any “Agreed Tenant Delay” referenced in this Work Letter, the length of such delay shall be as agreed upon in writing by the parties at the time such delay arises, and (ii) with respect to any other Tenant Delay, Landlord shall notify Tenant in writing of the claimed length of such Tenant Delay and Tenant may elect by written notice delivered to Landlord within ten (10) Business Days thereafter to dispute the claimed Tenant Delay in accordance with Section III below. Unless such estimate is disputed by written notice delivered within such ten (10) Business Day period, the claimed Tenant Delay shall be deemed to be a period no less than that set forth in Landlord’s notice.

(C) Landlord shall coordinate the schedules for performance of the Base Building Work and the Tenant Improvements. Landlord’s failure to Substantially Complete Landlord’s Work on or before the Target Commencement Date, or to substantially complete any element of the Landlord’s Work by any particular time, shall not give rise to any liability of Landlord hereunder, shall not constitute Landlord’s default, and shall not affect the validity of this Lease, except as expressly provided in this subparagraph C. In the event Landlord is unable to Substantially Complete the Landlord’s Work on or before the date that is sixty (60) days following the Target Commencement Date, time being of the essence with respect to such date but as such date may be extended for the causes or reasons set forth in Section 8.3 of the Lease or Tenant Delay (the “ Outside Completion Date ”), then Tenant’s obligation to pay Base Rent shall be abated one (1) additional day for each day during the period beginning on the Outside Completion Date and ending on the earlier of (i) the date Landlord’s Work is Substantially Complete or (ii) the day prior to the date such abatement increases in accordance with the following paragraph.

If the Landlord’s Work is not Substantially Complete on or before the date that is sixty (60) days following the Outside Completion Date, for which date time is of the essence but as such date may be extended for the causes or reasons set forth in Section 8.3 of the Lease or as a result of Tenant Delay, then Tenant’s obligation to pay Base Rent shall thereafter be abated two (2) additional days for each day thereafter until the date Landlord’s Work is Substantially Complete.

(D) Promptly after the determination of the Substantial Completion of the Landlord’s Work, Landlord and Tenant shall enter into one or more letter agreements (any such letter agreement, a “ Commencement Letter ”) in form attached as EXHIBIT COMMENCEMENT DATE LETTER. Tenant shall execute any such Commencement Letter and return same to Landlord within fifteen (15) days after Tenant’s receipt thereof from Landlord; provided, however, that the failure of any party to deliver a Commencement Letter shall have no bearing on the Commencement Date or any other dates that are determined from the Commencement Date.

(E) Tenant may, no later than November 21, 2014, from time to time request reasonable interior changes to the restrooms, elevator lobbies and main lobby finishes only (any such change, a “ Tenant Requested Change ”) in the Base Building Work to accommodate Tenant’s interior space design or system requirements, subject to the following: in the event that Tenant proposes any changes to the Base Building Work pursuant to the foregoing, Landlord shall, within ten (10) Business Days of receipt of a Tenant Requested Change, provide Tenant with (x) Landlord’s architectural and engineering design proposals (to be prepared by Landlord’s

 

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consultants at Tenant’s expense on a time and materials basis (the “ Tenant Change Processing Expense ”)) and (y) order of magnitude conceptual pricing setting for in reasonable detail the estimate of the out-of-pocket additional costs and the amount of Tenant Delay to be incurred to implement the Tenant Requested Change (“ Landlord’s Change Estimate Notice ”). Tenant shall, within five (5) Business Days of receiving Landlord’s Change Estimate Notice, either withdraw the Tenant Requested Change or authorize Landlord to proceed with the preparation of revised plans for the Base Building Work reflecting such change at Tenant’s expense to be paid to Landlord as additional rent, and shall pay the Tenant Change Processing Expense in any event. Tenant’s failure to timely reply to Landlord’s Change Estimate Notice shall be deemed to be a withdrawal of Tenant’s request for such change, but Tenant shall remain responsible for the Tenant Change Processing Expense. To the extent a Tenant Requested Change will result in a net reduction in the cost of the Base Building Work pursuant to Landlord’s contract for the same, the amount of such net reduction (as stated in Landlord’s Change Estimate Notice) with respect to such Tenant Requested Change shall be added to the Allowance (as defined below). In connection with a Tenant Requested Change resulting in a net reduction in the cost of the Base Building Work, Landlord shall include its good faith estimate of the amount of the net reduction in the cost of the Base Building Work as a result of such Tenant Requested Change in the Landlord Change Estimate Notice.

Landlord shall make such Tenant Requested Change provided that (i) within five (5) Business Days after Tenant’s acceptance of Landlord’s Change Estimate Notice, Tenant shall pay to Landlord, as additional rent, one hundred percent (100%) of the increased costs as the same are specified in Landlord’s Change Estimate Notice, and within thirty (30) days after Landlord or Landlord’s consultants have certified to Tenant that the Tenant Requested Change is substantially complete, Tenant shall pay to Landlord, as additional rent, the balance of the increased costs, (ii) the change is consistent with the governmental approvals and permits authorizing the performance of the Landlord’s Work, (iii) the change is consistent with first quality design standards for office space and does not have a material adverse effect on the value of the Building or Property, (iv) Tenant authorizes Landlord to make such change pursuant to the immediately preceding paragraph, (v) Tenant agrees in writing that such change constitutes a Tenant Delay and Landlord and Tenant agree in writing to the amount of such Tenant Delay (any such Tenant Delay, an “ Agreed Tenant Delay ”) (and in any event that such changes in the aggregate do not result in more than thirty (30) days of delay in the Substantial Completion of the Landlord’s Work, or cause Landlord to miss any deadline set forth in Landlord’s construction loan, in each case as determined by Landlord in its reasonable discretion); (vi) such change does not materially and adversely affect the Building systems or structural elements of the Building or the completion and occupancy of any portion of the Building other than the Premises. Upon the written request of Tenant, Landlord shall use commercially reasonable efforts to cause the applicable contractor to quote the cost for any Tenant Requested Change on a lump sum or a guaranteed maximum price basis in the issuance of a change order therefor. If Tenant timely notifies Landlord that Tenant authorizes Landlord to make the Tenant Requested Change and satisfies the other requirements set forth in this paragraph, but Tenant does not agree with Landlord’s cost estimate for construction work as set forth in Landlord’s Change Estimate Notice, then Tenant may, by notice to Landlord set forth in Tenant’s notice authorizing Landlord to proceed with such change pursuant to clause (iv), above, elect to have the work performed on a time and materials basis in accordance with Landlord’s construction contract. Landlord shall provide Tenant all reasonable cost accounting information regarding any Tenant Requested Change provided to Landlord by Landlord’s contractor or otherwise reasonably available to Landlord.

 

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II. Tenant Improvements.

(A) Tenant shall, at its sole cost and expense (subject to reimbursement from the Allowance) prepare complete, coordinated construction drawings and specifications (the “ Construction Documents ”) for the entire Premises as necessary for Tenant’s initial occupancy of the Premises (the “ Tenant Improvements ”). Nothing in the prior sentence being deemed to obligate Tenant to prepare any plans, drawings or specifications for any of the Base Building Work. The Tenant Improvements do not include the FF&E Work (as defined below). Tenant acknowledges that the Construction Documents will have been prepared by Tenant’s architect and engineers and, accordingly, Tenant agrees to cause its architect to provide construction administration services to Landlord for the Tenant Improvements and FF&E Work, including the review and approval of requisitions by the general contractor and the provision of certifications necessary to cause Substantial Completion to occur.

At all times, Landlord and Tenant will act promptly (and in any case within five (5) Business Days following delivery of notice from Tenant or Landlord, as applicable, unless expressly provided otherwise herein) on any construction-related questions or matters, including final color approvals and substitutions; provided, however, Landlord’s period to act shall be reasonably extended to the extent Landlord’s Contractor’s input or response is necessary for resolving such questions or matters.

In furtherance of the foregoing, Tenant shall prepare and deliver plans and specifications for the Tenant Improvements for Landlord’s review and approval, and Landlord shall act as required below, in accordance with the following schedule:

Tenant to deliver schematic plans to Landlord for the Tenant Improvements on or before November 21, 2014 (the “ Schematic Plans ”);

To the extent the same may be determined from the Schematic Plans, Landlord to provide feedback concerning cost implications resulting from Tenant Requested Changes in the Base Building Work and any anticipated delays in permitting for the Tenant Improvements based upon the Schematic Plans on or before the date ten (10) Business Days after receipt of the Schematic Plans;

Tenant to provide Landlord with complete building permit plans for the Tenant Improvements (the “ Building Permit Plans ”) on or before December 19, 2014;

Landlord to provide Tenant with an estimated cost of the Tenant Improvements (with the estimated price for the same broken out in consultation with the Contractor) and an estimated schedule for completion of the Tenant Improvements within thirty (30) days after receipt of the Building Permit Plans;

 

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  Tenant to provide Landlord with completed Construction Documents on or before February 14, 2015.

Landlord, Tenant, the Contractor and the architects will meet weekly during the design process described above.

Tenant has retained, and Landlord has approved, Spagnolo Gisness & Associates, Inc. as Tenant’s architect for the Tenant Improvements. Tenant shall retain Landlord’s structural engineer for the Tenant Improvements, if any portion of the Tenant Improvements affects structural components of the Building, and shall retain mechanical, electrical and plumbing engineers reasonably acceptable to Landlord. Even though such engineer (or any other engineers or architect, if Tenant engages Landlord’s engineers or architect) has been otherwise engaged by Landlord in connection with the Building, Tenant shall be solely responsible for the contractual undertakings and costs and expenses of all architectural and engineering services relating to the Tenant Improvements arising therefrom (subject to reimbursement from the Allowance), including, without limitation, any changes necessary to ensure the adequacy and completeness of any plans, including the Construction Documents, submitted to Landlord. Tenant’s architects and engineers shall be responsible for all elements of the plans for the Tenant Improvements (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the Premises and the placement of Tenant’s furniture, appliances and equipment, and continuity with the Base Building Work), and Landlord’s approval of any Tenant plans, including Construction Documents, shall in no event relieve Tenant of the responsibility therefor; provided, however, that Landlord and its architects and consultants in reviewing the Building Permit Plans shall use reasonable efforts to identify any issues associated with the continuity between the Tenant Improvements and the Base Building Work within ten (10) Business Days after receipt of the Building Permit plans, but failure to do so shall not relieve Tenant of the foregoing obligation or impose any liability upon Landlord, its architects or consultants (except that the foregoing limitation on liability shall not operate to limit the liability to Tenant of any consultant retained by Tenant with respect to the Tenant Improvements). Tenant shall be responsible for reimbursing Landlord for the reasonable out-of-pocket third-party expenses incurred by Landlord in having its architects, engineers and other consultants reviewing any submissions in connection with the Tenant Improvements, and Landlord may deduct such expenses from the Allowance, provided that prior to deducting any such expenses, Landlord shall provide Tenant with written notice thereof, together with reasonable supporting documentation.

Tenant acknowledges and agrees that the Tenant Improvements and the Construction Documents shall not include the roof deck which Tenant may desire to have constructed on the Building (the “ Roof Deck ”). If Tenant desires to have Landlord construct the Roof Deck, Tenant may concurrent with the delivery of the Construction Documents, deliver separate construction drawings and specifications for the Roof Deck prepared in accordance with the same requirements as are applicable to the Construction Documents, for Landlord’s review and approval, which shall not be unreasonably withheld, conditioned or delayed. With respect to the Roof Deck, Tenant agrees to comply with the same terms and obligations imposed upon Tenant with respect to the Roof Equipment under Section 17.17 of the Lease. Upon approval of the plans and specifications for the Roof Deck by Landlord, Landlord shall use reasonable efforts to obtain permits and approvals for the Roof Deck, at Tenant’s expense, separate from the permits

 

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and approvals for the Landlord’s Work, but Landlord shall not be liable for any delay resulting from Landlord’s inability to obtain permits for the Roof Deck and the construction of the Roof Deck shall not be a condition precedent to the Commencement Date. If to be performed by Landlord, the construction of the Roof Deck shall be in accordance with the same requirements applicable to the Tenant Improvements at Tenant’s expense, but Tenant may utilize any portion of the Allowance not exhausted by the Tenant Improvements towards the construction of the Roof Deck.

The Construction Documents must provide for Tenant Improvements costing no less than $60 per rentable square foot in hard costs (the “ TI Minimum ”).

Subject to the provisions of this Work Letter, Tenant may, from time to time, by written order to Landlord on a form reasonably specified by Landlord (“ Tenant Improvements Change Order ”), request Landlord’s approval of a change in the Tenant Improvements shown on the Construction Documents, which approval shall not be unreasonably withheld, conditioned or delayed in accordance with Article VI of the Lease. All Tenant modifications to the Construction Documents, whether material or not, shall be made only by Tenant Improvements Change Order submitted in timely fashion to Landlord and approved by Landlord. The price to be paid for Excess Tenant Improvements (as defined below) shall be adjusted for any Tenant Improvements Change Order. Landlord shall be authorized to proceed with work shown on any Tenant Improvements Change Order as further set forth below.

(B) Provided that no Default is continuing, Landlord shall contribute the sum of $8,835,075 ($75 per rentable square foot) toward the cost of performing the Tenant Improvements (including on account of any Tenant Improvements Change Order) (the “ Allowance ”). The Allowance may only be used for (x) soft costs (which shall include costs of preparing design and construction documents and mechanical and electrical plans for the Tenant Improvements; professional fees to be paid to Tenant’s engineers, architects, project managers, and other design consultants; moving costs, computer wiring and cabling, permit and license fees), and the construction supervision fee payable to Landlord as set forth below (but the following cap shall not in any way limit the construction supervision fee due to Landlord hereunder) (“ Soft Costs ”), in an aggregate amount not to exceed $1,767,015 ($15 per rentable square foot), and (y) for hard costs in connection with the Tenant Improvements (which hard costs shall include, without limitation, costs of construction, labor and materials, and all forms of demolition, construction, alterations, and cosmetic improvements, including, without limitation, the cost of a supplemental air-conditioning unit and the general contractor’s fee payable to the general contractor for the Tenant Improvements as set forth below) [((x) and (y) are hereinafter collectively referred to as “ Eligible Costs ”)]. All Tenant Improvements (including, without limitation, any Tenant Improvements Change Orders) the cost of which exceeds the Allowance shall be “ Excess Tenant Improvements .” All Excess Tenant Improvements shall be performed at the sole expense of Tenant, such costs being considered additional rent hereunder. To the extent the Contractor (or another contractor) requests a change order with respect to the Tenant Improvements, Landlord and Tenant shall cooperate with each other, and meet with the Contractor (or such other contractor), in order to mitigate the costs of such change order to Tenant and the impact on the schedule for the Substantial Completion of the Tenant Improvements.

 

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Tenant shall pay for Excess Tenant Improvements to Landlord as additional rent as further set forth below. The price for constructing any Tenant Improvements shall be equal to Landlord’s Direct Costs incurred in connection with performing the Tenant Improvements, and payable as additional rent. Landlord’s Direct Costs shall mean the total cost payable by Landlord (or its general contractor) to subcontractors, materialmen, laborers, etc. (including any portions of such reasonable amounts designated subcontractor’s or materialmen’s profit, fee, overhead, and the like); plus all costs of insuring the Tenant Improvements and all costs of obtaining permits and inspections required by governmental authorities in connection with the Tenant Improvements; all applicable state sales or use taxes, if any, payable in connection with the Tenant Improvements; a construction supervision fee of four percent (4%) of total costs (excluding Soft Costs); Tenant acknowledging that amounts payable to the general contractor by Landlord hereunder include so-called general conditions items paid to the general contractor on an actual, direct cost basis on the same terms as are provided to Landlord under its contract for the Base Building Work not to exceed 10%, a general contractor’s fee of 2% payable to the general contractor, and a reasonable general contractor’s contingency not to exceed 5% of the Base Price. The Landlord’s contract with the Contractor (or another contractor approved by Tenant as provided in subsection (D) below) for the Tenant Improvements shall (i) be in the form of a cost plus fee contract subject to a guaranteed maximum price and the work shall be conducted on a so-called “open book” basis, (ii) not provide for a right of the general contractor to share in any savings in a manner materially less favorable to Tenant then the savings-sharing mechanism used for the Base Building Work is to Landlord, and (iii) provide for retainage on the same basis as the Base Building Work contract. Tenant shall have no right to object to the cost of any item of Landlord’s Direct Costs (other than objections based on the inclusion of costs, or the amounts of such included costs, in violation of the terms of Landlord’s contract with the general contractor) after the time that Tenant has authorized Landlord to proceed with the Tenant Improvements or been deemed to authorize Landlord to proceed pursuant to the terms of this Exhibit WORK LETTER. Landlord’s invoices for additional rent on account of Excess Tenant Improvements may include any materials and equipment purchased to be part of Tenant Improvements and stored on the Property or some other location approved by Landlord and all deposits made on the purchase of such materials and equipment, provided that any invoice for elements of work stored at a location other than the Property shall contain copies of third party invoices therefor and evidence that such property is covered by Landlord’s or the general contractor’s insurance and that Tenant shall have the right to inspect any elements of work stored at location other than the Property upon Tenant’s written request. Within ninety (90) days of the completion of all items of Tenant Improvements listed on the Final Punchlist, Landlord shall provide Tenant with a final invoice prepared by Landlord for all Excess Tenant Improvements (the Tenant Improvements Reconciliation Statement ”). Such statement shall be conclusive between the parties unless the statement is incorrect and is disputed by Tenant by notice to Landlord given within ten (10) Business Days of Landlord’s delivery to Tenant of the statement. Upon issuance thereof, there shall be adjustments between Landlord and Tenant to the end that Landlord shall have received the exact amount due to Landlord hereunder on account of Excess Tenant Improvements, if any. Any overpayment by Tenant shall be credited against the next payments of Base Rent due hereunder or, if the Lease has terminated for reason other than a default by Tenant, shall be paid by Landlord to Tenant. Any underpayment by Tenant shall be due and payable within thirty (30) days after Landlord’s invoice. Any and all payments required to be made by Tenant under this Work Letter, whether to Landlord or to third parties, shall be deemed additional rent for purposes of the Lease.

 

9


Within fourteen (14) days following Tenant’s delivery of Tenant’s Construction Documents to Landlord, Landlord shall direct Landlord’s general contractor for the Building to solicit at least three bids (or such fewer number of bids as Landlord and Tenant may reasonably agree, if three bids is impractible in light of the nature of the item and the Landlord’s construction schedule) for each subcontractor trade agreed to be so bid between Landlord and Tenant. Landlord and Tenant shall work cooperatively to determine the subcontractor trades to be bid within thirty (30) days following the execution of this Lease, and, if they are unable to reach agreement on the identity of such trades within such period, shall submit such dispute to resolution by arbitration pursuant to Section III below. Tenant may designate at least one subcontractor for each trade for inclusion in the bidding, subject to Landlord’s reasonable approval of such bidders. Landlord shall promptly supply Tenant with such detailed information about bid requests and negotiations with contractors as Tenant may reasonably request, provided that any delays resulting from Tenant’s failure to act within five (5) Business Days following Landlord’s delivery of such information to Tenant shall constitute a Tenant Delay. In the case of each bid request, Landlord will accept the lowest responsible bid from a contractor that can meet the Landlord’s construction schedule, provided, however, that if Tenant reasonably objects to a particular contractor within five (5) Business Days after receipt of the detailed information about such contractor’s bid request and negotiation, then Landlord will not accept such contractor’s bid, unless Landlord and Tenant reasonably determine otherwise. Prior to execution of the proposed contract with the Contractor for the Tenant Improvements, Landlord shall notify Tenant of the final guaranteed maximum price construction cost of the Tenant Improvements (the “ Base Price ”), which notice shall set forth on a detailed line item basis the elements of such cost, including, without limitation, the contractor’s fee, general conditions costs, and the contractor’s contingency as determined under Section II(B) of this Work Letter, to be calculated based on Tenant’s Construction Documents and the foregoing bidding. Tenant shall have the rights specified in subsection (D) below in the event Tenant desires to value engineer the Tenant Improvements after receipt of the Base Price. In the event that the Base Price will exceed the Allowance (the “ Excess Cost ”), then Tenant shall pay on a monthly basis, as additional rent, within five (5) Business Days following delivery by Landlord of each invoice therefor (together with a copy of the general contractor’s requisition with respect to the Tenant Improvements for the most recent billing period for Tenant’s information purposes only), the cost of the Tenant Improvements included in such billing period multiplied by a fraction, the numerator of which is the Excess Cost and the denominator of which is the Base Price (by way of example, if the Base Price is $10,000,000 and the Allowance is $8,835,075 then the Excess Cost is $1,165,925, and Tenant would pay 11.65% of each monthly invoice for the cost of the Tenant Improvements). To the extent an excess over the Allowance results from, or increases as a result of, a change order with respect to the Tenant Improvements, Tenant shall pay such amount within five (5) Business Days of Landlord’s demand. Landlord shall have the right to suspend the performance of the Tenant Improvements (and the period of suspension shall be a Tenant Delay) in the event Tenant does not make such payments by the date due.

To the extent that Tenant incurs any Eligible Costs that are soft costs, Tenant may obtain reimbursement from the Allowance, to the extent any then remains after receipt of, and any adjustments due under, the Tenant Improvements Reconciliation Statement, and such amounts

 

10


shall be paid to Tenant (or, at Landlord’s request, directly to Tenant’s vendors by joint check, in which case such service provider shall acknowledge that Landlord is not responsible for such payment in an instrument reasonably satisfactory to Landlord) in periodic disbursements within forty-five (45) days after Landlord’s receipt of the following documentation: (i) partial waivers of liens that shall cover all work for which disbursement is being requested and all other statements and forms required for compliance with the mechanics’ lien laws of The Commonwealth of Massachusetts, if any, together with all such invoices, contracts, or other supporting data as Landlord may reasonably require; (ii) a request to disburse from Tenant in a form reasonably approved by Landlord; and (iii) such other information or back-up as Landlord may reasonably request. The final disbursement for any of Tenant’s vendors having statutory lien rights shall further require full and final waivers of lien. Notwithstanding anything herein to the contrary, Landlord shall not be obligated to disburse any portion of the Allowance during the continuance of a Default under the Lease.

If Landlord shall fail to pay within the period specified above any portion of the Allowance to which Tenant is entitled and such failure shall continue for ten (10) Business Days after notice thereof, Tenant may deduct the portion of the Allowance due but not paid, with interest at the Lease Interest Rate from the date due, from the Base Rent next payable hereunder until Tenant has received full credit or otherwise has been fully reimbursed for the amount due to Tenant. Notwithstanding the foregoing, if Landlord disputes Tenant’s right to abate Base Rent, or the amount of the abatement, such dispute shall be resolved in accordance with Section III of this Exhibit WORK LETTER prior to any abatement of disputed amounts by Tenant. In no event may Tenant may use the Allowance for the purchase of any Tenant’s Property. Any portion of the Allowance above the TI Minimum that has not been requisitioned by Tenant or applied towards the costs to construct the Tenant Improvements or the Roof Deck by Landlord prior to the first anniversary of the Commencement Date shall be applied by Landlord as a credit against Base Rent or paid to Tenant, as Landlord may elect provided such right is exercised not later than the second anniversary of the Commencement Date.

(C). Subject to the provisions of this subparagraph (C), the parties acknowledge that Tenant may, at Tenant’s sole risk and expense, enter the Premises on a schedule mutually agreeable to the parties for the purposes of the installation of wiring and cabling and telecommunications, information, and data technology equipment and associated equipment and infrastructure and workstations, furniture and/or furniture systems (the “ FF&E Work ”). The parties shall cooperate with each other in the performance and scheduling of Landlord’s Work and the FF&E Work, and keep each other apprised of their respective work so as to facilitate the scheduling, coordination, and orderly progress of Landlord’s Work and the FF&E Work. In no event shall any FF&E Work be performed except pursuant to a mutually agreeable schedule that does not interfere with or delay the Landlord’s Work, or increase the cost of Landlord’s Work. During any period prior to the Commencement Date that Tenant is exercising such rights, Tenant shall comply with and perform, and shall cause its employees, agents, contractors, subcontractors, material suppliers and laborers to comply with and perform, all of Tenant’s obligations under this Lease except the obligations to pay Base Rent, Tax Payments, or Operating Costs Payments and additional charges and other charges and other obligations the performance of which would be clearly incompatible with the operations described above.

 

11


Neither Tenant nor any Tenant contractor, employee or agent shall materially interfere in any way with construction of, nor damage, the Landlord’s Work and shall do all things reasonably requested by Landlord to facilitate the construction of the Landlord’s Work pursuant to Landlord’s construction schedule. Neither Tenant nor any Tenant contractor shall cause any labor disharmony, and Tenant shall be responsible for all costs required to produce labor harmony in connection with an entry under this Section. In all events, Tenant shall indemnify Landlord in the manner provided in Section 10.1 of the Lease against any claim, loss or cost arising out of any material interference with, or damage to, the Landlord’s Work or any other work in the Building, or any delay thereto, or any increase in the cost thereof on account in whole or in part of any act, omission, neglect or default by Tenant or any Tenant contractor. Without limiting the generality of the foregoing, to the extent that the commencement or performance of Landlord’s Work is delayed on account in whole or in part by any act or omission (where a duty to act existed) in violation of the Lease, or neglect or default by Tenant, then such delay shall constitute a Tenant Delay as provided in Section I.B of this Exhibit WORK LETTER. No Tenant Delay shall be deemed to occur solely on account of the timing of any entry by Tenant or any Tenant contractor under this subsection (C) provided that such entry is performed in accordance with the reasonable scheduling requirements agreed to with Landlord. Neither Landlord nor Landlord’s contractor shall ever be required or obligated to alter the method, time or manner for performing Landlord’s Work or work elsewhere in the Building, on account of Tenant’s entry under this subsection (C).

Any requirements of any such Tenant contractor, employee or agent for services from Landlord or Landlord’s contractor, such as hoisting, electrical or mechanical needs, shall be paid for by Tenant and arranged between such Tenant contractor and Landlord or Landlord’s contractor. Should the work of any Tenant contractor depend on the installed field conditions of any item of Landlord’s Work, such Tenant contractor shall ascertain such field conditions after installation of such item of Landlord’s Work. Neither Landlord nor Landlord’s contractor shall ever be required or obliged to alter the method, time or manner for performing Landlord’s Work or work elsewhere in the Building, on account of the work of any such Tenant contractor. Each party shall use reasonable efforts to cause its contractors to conduct operations at the Property during the construction of Landlord’s Work and the FF&E Work to avoid any interference with, damage to, or delay of work being undertaken by the other party. Tenant shall cooperate with Landlord as reasonably required to obtain a temporary and permanent certificate of occupancy for the Premises (at no cost to Tenant, other than the cost to complete the FF&E Work), including by staging the FF&E Work in a manner to facilitate obtaining such certificates of occupancy and diligently prosecuting the same to completion as soon as reasonably practicable, provided that the provisions of this sentence shall not obligate Tenant to employ overtime labor or to incur extraordinary expenses.

(D) Landlord shall cause Contractor (or another general contractor reasonably approved by Tenant) to construct the Tenant Improvements in a good and workerlike manner in compliance in all material respects with the Construction Documents, free of liens (provided Tenant pays all amounts due hereunder), asbestos, asbestos-containing materials, and any other toxic or hazardous substances or materials other than materials customarily found in construction materials in the construction of similar projects in the downtown Boston area and other than as disclosed on Exhibit EXISTING CONDITIONS and otherwise in compliance with applicable legal requirements (it being agreed that the foregoing shall not be deemed to impose

 

12


responsibility on Landlord or its contractor for correcting elements of the Tenant Improvements which are not designed in compliance with applicable legal requirements, and that responsibility for the same remains with Tenant and its architects and engineers as provided herein). Landlord is authorized to proceed with the Tenant Improvements shown on the final, approved Construction Documents on the date that is five (5) days after Landlord delivers the Base Price to Tenant, as set forth above, unless and to the extent that Tenant withdraws the Construction Documents in writing for the purposes of Tenant’s value engineering (Tenant acknowledging that any such withdrawal shall result in a Tenant Delay). With respect to Tenant Improvements Change Orders submitted after Landlord is initially authorized (or deemed authorized) to proceed with Tenant Improvements, Landlord shall be deemed authorized to proceed with such Tenant Improvements Change Order upon its submission by Tenant, provided, however, that prior to submission of any such Tenant Improvements Change Order, Landlord and the Contractor will work cooperatively with Tenant to obtain pricing therefor.

Landlord has no obligation to approve any Tenant Improvements Change Order or any Tenant Improvements not shown on the Construction Documents if, in Landlord’s reasonable judgment, such Tenant Improvements (i) would delay completion of the Tenant Improvements beyond the Target Commencement Date unless Tenant agrees in writing that such work constitutes a Tenant Delay and Landlord and Tenant agree in writing to the amount of such Tenant Delay, (ii) would delay completion of any other Landlord’s Work unless Tenant agrees in writing that such work constitutes a Tenant Delay and Landlord and Tenant agree in writing to the amount of such Tenant Delay as an Agreed Tenant Delay; (iii) would materially increase the cost of operating the Building or performing any other work in the Building, unless in each case Tenant agrees to pay such costs, (iv) are incompatible with the design, quality, equipment or systems of the Building, (v) would require unusual expense to readapt the Premises to general office use unless Tenant agrees to pay such costs, or (vi) otherwise do not comply with the provisions of this Lease. By its execution of the Lease, and its submission of any Construction Documents or other plans and Tenant Improvements Change Orders, Tenant will be deemed to have approved of, and shall be legally responsible for, such plans, Construction Documents or Tenant Improvements Change Orders, as applicable. Notwithstanding the foregoing or anything herein to the contrary, if any Tenant Improvements Change Order reasonably specifies a long lead item, such as custom cabinetry or a piece of specialized equipment, that Landlord reasonably determines could not be delivered and installed in a manner consistent with the completion of the Tenant Improvements by the Target Commencement Date, then Landlord shall so notify Tenant within five (5) Business Days after receipt of such Tenant Improvements Change Order, in which case Landlord and Tenant may agree in writing that such long lead item may be completed by Landlord following the date that all of the Landlord’s Work is Substantially Complete (if permitted pursuant to applicable Requirements, including without limitation for any certificate of occupancy to be issued) without constituting a Landlord or Tenant Delay hereunder.

(E) If Tenant shall be delayed in preparing the Construction Documents or any phase thereof required hereunder as a result of the occurrence of any of the following (a “ Landlord Delay ”):

(i) Any request by Landlord that Tenant delay the completion of any plans;

 

13


(ii) Any delay resulting from failure of Landlord to respond to any submission to Landlord from Tenant on or before the deadline for such response as set forth in the third paragraph of Section II(A) of this Exhibit; or

(iii) Any other delay resulting from the acts or omissions (where a duty to act existed) of Landlord, its agents, employees or independent contractors (provided that Tenant promptly notifies Landlord of any factor that it believes is resulting or will result in a Landlord Delay and takes reasonable steps to limit the effect of such factor).

then the date by which the applicable phase of the Construction Documents is due shall be extended by one day for each day of Landlord Delay. Tenant shall notify Landlord of any alleged Landlord Delay pursuant to clause (ii), above, in writing, within five (5) Business Days following the occurrence thereof.

Landlord and Tenant have agreed to determine the length of any Landlord Delay as follows: Tenant shall notify Landlord in writing of the claimed length of such Landlord Delay and Landlord may elect by written notice delivered to Tenant within ten (10) Business Days thereafter to dispute the claimed Landlord Delay in accordance with Section III, below. Unless such estimate is disputed by written notice delivered within such ten (10) Business Day period, the claimed Landlord Delay shall be deemed to be a period no less than that set forth in Tenant’s notice.

III. Arbitration. All disputes between the parties regarding Tenant Delays or Landlord Delays and other matters expressly referencing this Section III of the Exhibit WORK LETTER shall be resolved in accordance with this Section III. Any arbitration decision under this Section III shall be enforceable in accordance with Requirements in any court of proper jurisdiction.

(a) All disputes between the parties to be resolved by express reference to this Section III shall first be subject to a 15 day period in which the parties (unless otherwise agreed in writing) shall attempt to resolve the dispute through one or more meetings between Michael Donahue on behalf of Tenant and Dave Greaney on behalf of Landlord (each party having the right to designate a replacement senior officer or principal for the purposes of this sentence by written notice to the other).

(b) Following the expiration of the 15-day period described in subparagraph (a), above, any arbitration conducted pursuant to this Section III shall be conducted in as expeditious manner as is possible to avoid delays in the construction of Landlord’s Work. Landlord and Tenant shall sign all documents and do all other things reasonably necessary to submit any such matter to arbitration and waive any and all rights they or either of them may at any time have to revoke their agreement hereunder to submit to arbitration and to abide by the decision rendered thereunder, which shall be binding and conclusive on the parties and shall constitute an “award” by the arbitrator within the meaning of the AAA Rules and applicable law.

 

14


(c) Within ten (10) days after either party requests arbitration by notice to the other, Landlord and Tenant shall seek to agree to a single arbitrator who is an independent third party real estate professional with at least twenty (20) years of experience in construction disputes involving first-class, office developments that has not worked for either party or its affiliates for the prior five (5) years (a “ Qualified Arbitrator ”) and, if they are unable to agree, then a Qualified Arbitrator shall, upon request by either party, be appointed by the Boston office of the AAA or successor organization.

(d) Landlord and Tenant may each appear and be represented by counsel before such arbitrator and submit such data and memoranda in support of their respective positions in the matter in dispute as may be reasonably necessary or appropriate under the circumstances. The arbitrator shall decide the dispute by written decision. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the AAA (or any successor organization) on an expedited basis and shall be concluded, with a decision issued, no later than ten (10) days after the date that such dispute is submitted for arbitration. The decision of the arbitrator shall be final and binding on the parties. The parties shall comply with any orders of the arbitrator establishing deadlines for any such proceeding. The fee of the arbitrator shall be paid equally by the parties. Each party shall pay all other costs incurred by it in connection with the arbitration. The arbitrator may award damage costs and/or reasonable attorneys’ fees and interest where applicable under, and subject to the terms of, this Lease. If (i) the arbitrator shall award judgment solely to either party (the “Prevailing Party”), and (ii) the other party (the “Non-Prevailing Party”) shall not comply with the terms of such judgment, and (iii) the Prevailing Party shall commence an action to enforce the judgment, and (iv) the Prevailing Party is successful in such action, then the Non-Prevailing Party shall pay the Prevailing Party’s out-of-pocket expenses and reasonable attorneys’ fees in connection with the enforcement of the arbitrators’ judgment.

IV. Authorized Representatives. Michael Donahue, Tenant’s Authorized Representative, shall have full power and authority to act on behalf of Tenant on any matters relating to the Landlord’s Work. Tenant may name a replacement Authorized Representative from time to time by written notice to Landlord making reference to this Exhibit WORK LETTER. John Barszewski, Landlord’s Authorized Representative, shall have full power and authority to act on behalf of Landlord on any matters relating to the Landlord’s Work. Landlord may name a replacement Authorized Representative from time to time by written notice to Tenant making reference to this Exhibit WORK LETTER.

V. General. This Exhibit WORK LETTER shall not be deemed applicable to any additional space added to the Premises at any time or from time to time, whether by any options under the Lease or otherwise, or to any portion of the Premises or any additions to the Premises in the event of a renewal or extension of the original Lease Term, whether by any options under the Lease or otherwise, unless and to the extent expressly provided in the Lease or any amendment or supplement to the Lease that such additional space is to be delivered to Tenant in the same condition the initial Premises is to be delivered. All capitalized terms used in this Exhibit WORK LETTER but not defined herein shall have the same meanings ascribed to such terms in the Lease.

 

15


Attachment 1

Base Building Work Plans and Specifications

 

LOGO

 

300 A Street

   617 350 0450 tel    bha@bhplus.com   

Boston, MA 02210-1710

   617 350 0215 fax    www.bhplus.com   

Drawing List

 

date:

   August 1, 2014

project:

   333 Summer Street – #03012.16

prepared by:

   Bargmann Hendrie + Archetype, Inc.

A000

   COVER SHEET

A001

   CODE SHEET

C000

   PLOT PLAN

C001

   SITE PREPARATION PLAN

C002

   LAYOUT & MATERIALS PLAN

C003

   GRADING & DRAINAGE PLAN

C004

   SITE DETAIL PLAN

D101

   BASEMENT DEMOLITION PLAN – Addendum # 2

D102

   LOWER LEVEL DEMOLITION PLAN

D103

   MEZZANINE DEMOLITION PLAN

D104

   FIRST FLOOR DEMOLITION PLAN

D105

   2ND FLOOR DEMOLITION PLAN

D106

   3RD FLOOR DEMOLITION PLAN

D107

   4TH FLOOR DEMOLITION PLAN

D108

   5TH FLOOR DEMOLITION PLAN

D109

   ROOF DEMOLITION PLAN

R201-A

   NORTH ELEVATION FACADE DEMOLITION AND RESTORATION

R201-B

   NORTH INTERIOR RESTORATION ELEVATION

R202-A

   EAST ELEVATION FACADE DEMOLITION AND RESTORATION

R202-B

   EAST INTERIOR RESTORATION ELEVATION

R203-A

   SOUTH ELEVATION FACADE DEMOLITION AND RESTORATION

R203-B

   SOUTH INTERIOR RESTORATION ELEVATION

R204

   INTERIOR RESTORATION ELEVATION – PARTY WALL FACING EAST

R205

   INTERIOR RESTORATION ELEVATION – PARTY WALL FACING WEST

R206

   WEST INTERIOR RESTORATION ELEVATION

A001

   CODE SHEET

A010

   ABBREVIATIONS, PARTITION TYPES AND DETAILS

A101

   BASEMENT – Addendum # 2

A102

   LOWER LEVEL – Addendum # 2

A103

   MEZZANINE – Addendum # 2

A104

   FIRST FLOOR PLAN – Addendum # 2

A105

   2 – 4 FLOOR PLANS – Addendum # 2

A106

   5TH FLOOR PLAN – Addendum # 2

 

16


LOGO

Drawing List

333 Summer Street

03/13/2014 – Construction Document Issuance

08/01/2014 – Addendum 2

- 2 -

 

A107

   ROOF PLAN – Addendum # 2

A108

   ROOF PLAN – ROOF DECK ALTERNATE # 2

A111

   BASEMENT REFLECTED CEILING PLAN

A112

   FIRST FLOOR REFLECTED CEILING PLAN

A113

   TYPICAL FLOOR REFLECTED CEILING PLAN

A201

   NORTH ELEVATION WINDOW REPLACEMENT – Addendum # 2

A202

   EAST ELEVATION WINDOW REPLACEMENT – Addendum # 2

A203

   SOUTH ELEVATION WINDOW REPLACEMENT

A204-A

   WEST FIRE ESCAPE DEMOLITION AND NEW CONSTRUCTION

A204-B

   EAST FIRE ESCAPE DEMOLITION AND NEW CONSTRUCTION

A400

   ENLARGED FIRST FLOOR LOBBY

A401

   ENLARGED RESTROOM PLANS AND ELEVATIONS – Addendum # 2

A402

   ENLARGED RESTROOM PLANS AND ELEVATIONS – Addendum # 2

A410

   FIRST FLOOR LOBBY ELEVATIONS AND SECTIONS

A411

   DETAILS

A412

   ENLARGED PLANS AND ELEVATIONS – LOCKER’S ROOM, BIKE STORAGE, MAIL ROOM

A413

   RECEPTION DESK PLANS & SECTION

A420

   STAIR 1 – PLANS, SECTIONS

A422

   STAIR 5 – PLANS, SECTIONS

A423

   STAIR DETAILS

A424

   ROOF STAIR

A425

   ROOF STAIR DETAILS

A426

   VESTIBULE SMOKE PROOF ENCLOSURE ALTERNATE #2

A430

   ELEVATOR – Addendum # 2

A440

   PASTENE ALLEY ENTRY

A450

   TRANSFORMER VAULT

A520

   ROOF DETAILS

A521

   ROOF DETAILS

A522

   ROOF DETAILS

A600

   OPENING TYPES

A601

   ENLARGED WINDOW DETAILS

A602

   ENLARGED WINDOW DETAILS

A603

   ENLARGED WINDOW DETAILS

A604

   ENLARGED WINDOW DETAILS

A605

   ENLARGED WINDOW DETAILS

A606

   ENLARGED WINDOW DETAILS

A607

   ENLARGED WINDOW DETAILS

A608

   ENLARGED WINDOW DETAILS

A609

   ENLARGED WINDOW DETAILS

A610

   ENLARGED WINDOW DETAILS

A611

   ENLARGED WINDOW DETAILS

 

17


LOGO

Drawing List

333 Summer Street

03/13/2014 – Construction Document Issuance

08/01/2014 – Addendum 2

- 3 -

 

A612

   ENLARGED WINDOW DETAILS

A613

   EXTERIOR DOOR SCHEDULE

A614

   INTERIOR DOOR SCHEDULE – Addendum # 2

A700

   FINISH SCHEDULE & DETAILS

S001

   TYPICAL DETAILS & GENERAL NOTES

S101

   BASEMENT FOUNDATION PLAN

S102

   LOWER LEVEL FRAMING PLAN

S103

   MEZZANINE FRAMING PLAN

S104

   FIRST FLOOR FRAMING PLAN

S105

   SECOND FLOOR THRU FOURTH FLOOR FRAMING PLANS

S106

   FIFTH FLOOR FRAMING PLAN

S107

   ROOF FRAMING PLAN – Addendum # 2

S108

   STAIR 1 & VESTIBULE SMOKEPROOF ENCLOSURE ALT. 2

S201

   SECTIONS – PASSENGER ELEVATOR

S202

   SECTIONS – SERVICE ELEVATOR

S203

   SECTIONS – PASSENGER ELEVATOR – Addendum # 2

S204

   SECTIONS – SERVICE ELEVATOR

S205

   SECTIONS – Addendum # 2

S206

   SECTIONS

S207

   SECTIONS

FP101

   FIRE PROTECTION BASEMENT – Addendum # 2

FP102

   FIRE PROTECTION LOWER LEVEL – Addendum # 2

FP103

   FIRE PROTECTION MEZZANINE – Addendum # 2

FP104

   FIRE PROTECTION FIRST FLOOR PLAN – Addendum # 2

FP105

   FIRE PROTECTION 2 – 4 FLOOR PLANS – Addendum # 2

FP106

   FIRE PROTECTION 5TH FLOOR PLAN – Addendum # 2

FP107

   FIRE PROTECTION ROOF PLAN – Addendum # 2

FP200

   FIRE PROTECTION SCHEDULES & DETAILS

FP300

   FIRE PROTECTION ALTERNATE # 2

FP400

   FIRE PROTECTION ALTERNATE # 3

P100

   PLUMBING UNDERGROUND – Addendum # 2

P101

   PLUMBING BASEMENT – Addendum # 2

P102

   PLUMBING LOWER LEVEL – Addendum # 2

P103

   PLUMBING MEZZANINE – Addendum # 2

P104

   PLUMBING FIRST FLOOR PLAN – Addendum # 2

P105

   PLUMBING 2 – 4 FLOOR PLANS – Addendum # 2

P106

   PLUMBING 5TH FLOOR PLAN – Addendum # 2

P107

   PLUMBING ROOF PLAN – Addendum # 2

P200

   PLUMBING SCHEDULES & DETAILS – Addendum # 2

P201

   PLUMBING DETAILS – Addendum# 2

P300

   PLUMBING SANITARY & WATER RISER DIAGRAMS – Addendum # 2

H101

   HVAC BASEMENT – Addendum # 2

 

18


LOGO

Drawing List

333 Summer Street

03/13/2014 – Construction Document Issuance

08/01/2014 – Addendum 2

-4-

 

H102

   HVAC LOWER LEVEL FLOOR PLAN – Addendum # 2

H103

   HVAC MEZZANINE PLAN – Addendum # 2

H104

   HVAC FIRST FLOOR PLAN – Addendum # 2

H105

   HVAC 2 – 4 FLOOR PLANS – Addendum # 2

H106

   HVAC 5TH FLOOR PLAN – Addendum # 2

H107

   HVAC ROOF PLAN – Addendum # 2

H200

   HVAC SCHEDULES – Addendum # 2

H201

   HVAC DETAILS – Addendum # 2

H300

   DUCT RISER DIAGRAMS – Addendum # 2

H400

   HVAC ALTERNATE #2

E000

   ELECTRICAL LEGEND – Addendum # 2

E001

   ELECTRICAL DETAILS – Addendum # 2

E002

   ELECTRICAL DETAILS – Addendum # 2

E100

   ELECTRICAL SITE PLAN – Addendum # 2

E101

   ELECTRICAL BASEMENT PLAN – Addendum # 2

E102

   ELECTRICAL LOWER LEVEL PLAN – Addendum # 2

E102L

   LIGHTNING LOWER LEVEL PLAN – Addendum # 2

E103

   ELECTRICAL MEZZANINE PLAN – Addendum # 2

E104

   ELECTRICAL FIRST FLOOR PLAN – Addendum # 2

E105

   ELECTRICAL 2 – 4 FLOOR PLANS – Addendum # 2

E106

   ELECTRICAL 5TH FLOOR PLAN – Addendum # 2

E107

   ELECTRICAL ROOF PLAN – Addendum # 2

E200

   ELECTRICAL RISER DIAGRAM PART 1 – Addendum # 2

E201

   ELECTRICAL RISER DIAGRAM PART 2 – Addendum # 2

E300

   ELECTRICAL SCHEDULES – Addendum # 2

E301

   ELECTRICAL SCHEDULES – Addendum # 2

E400

   ELECTRICAL ALTERNATE 2
  

Issued per Addendum #02

Engineers Cover Letter – dated 08/06/14

D101 – Basement Demolition Plan

A101 – Basement Plan

A102 – Lower Level Plan

A l03 – Mezzanine Plan

A104 – First Floor Plan

A105 – 2 nd – 4 th Floor Plans

A106 – 5 th Floor Plan

A107 – Roof Plan

A201 – North Elevation Window Replacement

A202 – East Elevation – Window Replacement

A401 – Enlarged Restroom Plans and Elevations

 

19


LOGO

Drawing List

333 Summer Street

03/13/2014 – Construction Document Issuance

08/01/2014 – Addendum 2

-5-

 

A402 – Enlarged Restroom Plans and Elevations

A430 – Elevator

A614 – Interior Door Schedule

S107 – Roof Framing Plan

S203 – Sections Passenger Elevator

S205 – Sections

FP101 – Fire Protection – Basement

FP102 – Fire Protection – Lower Level

FP103 – Fire Protection – Mezzanine

FP104 – Fire Protection – First Floor Plan

FP105 – Fire Protection – 2 – 4 Floor Plans

FP106 – Fire Protection – 5 th Floor Plan

FP107 – Fire Protection – Roof Plan

FP200 – Fire Protection – Schedules & Details

P100 – Plumbing Underground

P101 – Plumbing Basement

P102 – Plumbing Lower Level

P103 – Plumbing Mezzanine

P104 – Plumbing First Floor Plan

P105 – Plumbing 2 – 4 Floor Plans

P106 – Plumbing 5 th Floor Plan

P107 – Plumbing Roof Plan

P200 – Plumbing Schedules & Details

P201 – Plumbing Details

P300 – Plumbing Sanitary & Water Riser Diagram

H101 – HVAC – Basement Plan

H102 – HVAC – Lower Level Plan

H103 – HVAC – Mezzanine Plan

H104 – HVAC – First Floor Plan

H105 – HVAC – 2 – 4 Floor Plan

H106 – HVAC – 5 th Floor Plan

H107 – HVAC – Roof Plan

H200 – HVAC – Schedules

H201 – HVAC – Details

H300 – HVAC – Duct Riser Diagrams

E000 – Electrical Legend

E001 – Electrical Details

E002 – Electrical Details

E101 – Electrical Basement Plan

E102 – Electrical Lower Level Plan

E103 – Electrical Mezzanine Plan

E104 – Electrical First Floor Plan

E105 – Electrical 2 – 4 Floor Plans

E106 – Electrical 5th Floor Plan

E107 – Electrical Roof Plan

E200 – Electrical Riser Diagram – Part 1

 

20


LOGO

Drawing List

333 Summer Street

03/13/2014 – Construction Document Issuance

08/01/2014 – Addendum 2

- 6 -

 

E201 – Electrical Riser Diagram – Part 1

E300 – Electrical Schedules

E301 – Electrical Schedules

E400 – Electrical Alternate #2

HVAC Spec Section 23 00 00 (Section 2.20; 2.27; 3.14)

Two Way Communications System – Section 26 00 99

END OF ADDENDUM No. 02

 

21


333 Summer Street    BH+A Project No. 3012
Boston, MA    Addendum #2 8/1/2014

 

 

DIVISION 00 – PROCUREMENT AND CONTRACTING REQUIRMENTS

INTRODUCTORY INFORMATION

 

Document 00 00 01

   Project Title Page

Document 00 01 10

   Table of Contents

Document 00 02 10

   List of Drawings

CONDITIONS OF THE CONTRACT

INFORMATION AVAILABLE TO BIDDERS

 

Document 00 91 00

  

Substitution Request Form During Procurement

(CSI Form 1.5c)

Document 00 95 00

   Asbestos Survey Report

DIVISION 01 GENERAL REQUIREMENTS

 

Section 01 10 00

   Summary      01 10 00-1       through 3

Section 01 25 00

   Contract Modification Procedures      01 25 00-1       through 3
   Bulletin Form      1 page

Section 01 29 00

   Payment Procedures      01 29 00-1       through 6

Section 01 31 00

   Project Management and Coordination      01 31 00-1       through 8
   Architect’s Response to Request for Information      1 page

Section 01 32 00

   Construction Progress Documentation      01 32 00-1       through 3

Section 01 33 00

   Submittal Procedures      01 33 00-1       through 8
   BH+A Submittal Response Form      1 Page

Section 01 40 00

   Quality Requirements      01 40 00-1       through 7

Section 01 42 00

   References      01 42 00-1       through 4

Section 01 45 33

   Code Required Special Inspections      01 45 33-1       through 5

Section 01 45 90

   Program for Structural Tests and Inspections      01 45 90-1       through 6

Section 01 50 00

   Temporary Facilities 8 Controls      01 50 00-1       through 9

Section 01 60 00

   Product Requirements      01 60 00-1       through 5

Section 01 63 50

   Substitution Procedures      01 63 50-1       through 5

Section 01 70 00

   Execution Requirements      01 70 00-1       through 8

Section 01 77 00

   Closeout Procedures      01 77 00-1       through 6

Section 01 78 10

   Project Record Documents      01 78 39-1       through 4

Section 01 78 20

   Operation and Maintenance Data      01 78 23-1       through 9

Section 01 82 00

   Demonstration and Training      01 82 00-1       through 4

DIVISION 02 – EXISTING CONDITIONS

 

Section 02 14 19

   Site Demolition      02 41 16 1       through 2

Section 02 05 00

   Site Demolition      02 05 00-1       through 2

DIVISION 03 – CONCRETE

 

 

TABLE OF CONTENTS   00 01 10 - 1

 

22


333 Summer Street    BH+A Project No. 3012
Boston, MA    Addendum #2 8/1/2014

 

Section 03 30 00

   Cast-In-Place Concrete    03 30 00-1      through         15   
DIVISION 04 – MASONRY         

Section 04 91 00

   Masonry Restoration    04 91 00-1      through         17   

 

DIVISION 05 – METALS

 

           

Section 05 12 00

   Structural Steel    05 12 00-1      through         8   

Section 05 31 00

   Steel Deck    05 31 00-1      through         7   

Section 05 40 00

   Cold Formed Metal Framing    05 40 00-1      through         6   

Section 05 51 10

   Maintenance of Decorative Metal    05 51 10-1      through         2   

Section 05 51 11

   Metal Stairs    05 51 11-1      through         2   

Section 05 52 13

   Pipe and Tube Railings    05 52 13-1      through         8   

 

DIVISION 07 – THERMAL AND MOISTURE PROTECTION

 

        

Section 07 21 00

   Thermal Insulation    07 21 00-1      through         3   

Section 07 42 13.13

   Formed Metal Wall Panels    07 42 13. 13-1      through         17   

Section 07 53 23

   Ethylene-Propylene-Diene-Monomer (EPDM) Roofing    07 53 23-1      through         17   

Section 07 81 00

   Applied Fireproofing    07 81 00-1      through         7   

Section 07 84 00

   Firestop Systems    07 84 00-1      through         8   

Section 07 91 00

   Sealants    07 91 00-1      through         7   

Section 07 92 00

   Joint Sealants    07 92 00-1      through         10   

 

DIVISION 08 – OPENINGS

 

        

Section 08 01 59

   Wood Window Restoration    08 01 59-1      through         6   

Section 08 11 13

   Hollow Metal Doors and Frames    08 11 13-1      through         9   

Section 08 14 16

   Wood Doors    08 14 16-1      through         5   

Section 08 31 13

   Access Doors and Frames    08 31 13-1      through         3   

Section 08 52 00

   Aluminum Windows    08 52 00-1      through         13   

Section 08 52 00

   Wood Windows    08 52 00-1      through         7   

Section 08 71 00

   Door Hardware    08 71 00-1      through         19   

Section 08 80 00

   Glazing    08 80 00-1      through         13   

 

DIVISION 09 – FINISHES

 

        

Section 09 21 16.23

   Shaft Wall Assemblies    09 26 00-1      through         13   

Section 09 26 00

   Gypsum Board Assemblies    09 26 00-1      through         13   

Section 09 30 00

   Tiling    09 30 00-1      through         10   

Section 09 51 00

   Acoustical Tile Ceiling    09 51 00-1      through         7   

Section 09 64 33

   Laminated Wood Flooring    09 64 33-1      through         6   

Section 09 65 00

   Resilient Flooring    09 65 13-1      through         7   

Section 09 91 00

   Painting    09 91 00-1      through         11   

 

DIVISION 10 – SPECIALTIES

 

        

Section 10 15 50

   Toilet Compartments    10 15 50-1      through         3   

Section 10 28 13

   Toilet Accessories    10 28 13-1      through         4   

 

TABLE OF CONTENTS   00 01 10 - 2

 

23


333 Summer Street    BH+A Project No. 3012
Boston, MA    Addendum #2 8/1/2014

 

Section 10 44 13

   Fire Protection Specialties    10 44 13-1      through       4

Section 10 55 23

   Postal Specialties    10 55 23-1      through       4

 

DIVISION 12 FURNISHINGS

 

        

Section 13 36 40

   Stone Countertops    12 36 40-1      through       8

Section 12 48 16

   Entrance Floor Grilles    12 48 16-1      through       4

 

DIVISION 14 - CONVEYING SYSTEMS

 

        

Section 14 20 20

   Vertical Platform Lift    14 20 20-1      through       5

 

DIVISION 21 - FIRE PROTECTION

 

        

Section 21 00 00

   Fire Protection    21 00 00-1      through       16

 

DIVISION 22 - PLUMBING

 

        

Section 22 00 00

   Plumbing    22 00 00-1      through       18

 

DIVISION 23 - MECHANIICAL SYSTEMS

 

        

Section 23 00 00

   HVAC    23 00 00-1      through       39

 

DIVISION 26 - ELECTRICAL

 

        

Section 26 00 00

   Electrical    26 00 00-1      through       101

Section 26 00 99

   Two-Way Communication System    26 00 99-1      through       3

Section 26 07 20

   Fire Detection and Alarm System    26 07 20-1      through       26

Section 26 11 00

   Generator    26 00 00-1      through       12

 

DIVISION 31 - EARTHSORK

 

        

Section 31 00 00

   Earthwork    31 00 00-1      through       5

 

DIVISION 32 - PAVING & SURFACING

 

        

Section 32 10 00

   Paving and Surfacing    32-10-00-1      through       2

 

END OF DOCUMENT 00 01 10

        

 

TABLE OF CONTENTS   00 01 10 - 3

 

24


EXHIBIT LOT

DESCRIPTION OF LOT

The Lot consists of the following parcels:

PARCEL ONE (327 Summer Street):

That certain parcel of land with the buildings thereon shown as Lot E on the plan entitled “Subdivision Plan of Land Lot ‘C’ Summer Street (South Boston District), Mass.” prepared by Harry R. Feldman, Inc. dated May 26, 2009 and recorded with Suffolk County Registry of Deeds as Plan No. 185 of 2009.

Together with all rights and benefits granted to the Insured by that certain Party Wall Agreement and between W2005 BWH II Realty, L.L.C. and W2005 BWH III Realty, L.L.C. dated December 28, 2005 and recorded December 29, 2005 in Book 38779, Page 339.

PARCEL TWO (337 Summer Street):

That certain parcel of land with the buildings thereon shown as Lot F on the plan entitled “Subdivision Plan of Land No. 337-347 Summer Street No. 319 and 319R A Street (South Boston District), Mass.” prepared by Harry R. Feldman, Inc. dated September 15, 2011 and recorded with said Registry as Plan No. 324 of 2011; and

PARCEL THREE (337 Summer Street):

That certain parcel of land shown as Parcel C on the plan entitled “Subdivision Plan of Land United States Postal Service Property Boston, Mass.” prepared by Harry R. Feldman, Inc. dated July 25, 2011 and recorded with said Registry as Plan No. 259 of 2011.

PARCEL FOUR (EASEMENTS):

Together with the easements and rights as appurtenant to Parcel One, Parcel Two and Parcel Three to use the Private Way known as Pastene Alley (from West Service Road to A Street) for access by foot, bicycle and vehicles and for utilities pursuant to the Amended and Restated Agreement of Easements, Covenants and Conditions dated September 30, 2007 and recorded in Book 43257, Page 229, as amended by First Amendment to Amended and Restated Agreement of Easements, Covenants and Conditions dated September 30, 2011 and recorded in Book 48461,Page 64, as further affected by Resignation as Declarant Under Amended and Restated Agreement of Easements, Covenants and Restrictions, dated as of May 29, 2013 and recorded in Book 51516, Page 195 and as further affected by Appointment of Declarant Under Amended and Restated Agreement of Easements, Covenants and Conditions dated June 30, 2014 and recorded in Book 53180, Page 197 and the Agreement of Easements, Covenants and Conditions dated as of September 30, 2011 and recorded in Book 48461, Page 76.

Together with the easements and rights to use the area shown as “Easement A5” and “Easement A6” on the plan recorded in Plan Book 2011, Page 324, as appurtenant to Parcel One and Parcel Two, respectively, for the installation, use, maintenance, repair and replacement of fire escapes

 

25


and related equipment, staircases, loading docks and utility facilities and for parking of automobiles and other motor vehicles pursuant to the Agreement of Easements, Covenants and Conditions dated as of September 30, 2011 and recorded in Book 48461, Page 76.

 

26


EXHIBIT RULES

BUILDING RULES AND REGULATIONS

1. The sidewalks, entrances, passages, courts, elevators, vestibules, stairways, corridors or halls of the Building shall not be obstructed, encumbered, or used for any purpose other than ingress and egress to and from the premises demised to any tenant or occupant.

2. No awnings or other projections shall be attached to the outside walls or windows of the Building without the prior written consent of Landlord. Such awnings, projections, curtains, blinds, shades, screens, or other fixtures must be of a quality type, design and color, and attached in a manner, approved by Landlord.

3. No sign, advertisement, object, notice or other lettering shall be exhibited, inscribed, painted or affixed on any part of the outside or inside of the premises demised to any tenant or occupant or of the Building without the prior written consent of Landlord, except as expressly provided in the Lease.

4. The sashes, sash doors, skylights, windows, and doors that reflect or admit light and air into public places in the Building shall not be covered or obstructed, nor shall any bottles, parcels, or other articles be placed on any window sills.

5. No showcases or other articles shall be put in front of or affixed to any part of the exterior of the Building, nor placed in the public parts of the Building.

6. The water fixtures, wash closets, and other plumbing fixtures shall not be used for any purposes other than those for which they were constructed, and no sweepings, rubbish, rags, or other substances shall be thrown therein.

7. No tenant or occupant shall mark, paint, drill into, or in any way deface any part of the Building or the premises demised to such tenant or occupant, except as permitted under the Lease. No boring, cutting or stringing of wires shall be permitted, except with the prior written consent of the Landlord, and as Landlord may direct. No tenant or occupant shall install any carpeting in the premises demised to such tenant or occupant except in manner approved by Landlord.

8. No vehicles or animals (except Seeing Eye dogs) of any kind shall be brought into, kept in, or about the premises demised to any tenant.

9. Without the prior written consent of Landlord, no space in the Building shall be used for manufacturing, or for the sale of merchandise, goods or property of any kind at auction, except as otherwise permitted in the Lease.

10. No tenant shall make, or permit to be made, any unseemly or disturbing noises or disturb or interfere with tenants or occupants of neighboring buildings or premises whether by the use of any musical instrument, radio, television set or other audio device; unmusical noise, whistling, singing, or in any other way. Nothing shall be thrown out of any doors or windows.

 

1


11. Each tenant must return to Landlord all keys of stores, storage areas, offices and toilet rooms, either furnished to, or otherwise procured by, such tenant, upon the termination of its tenancy.

12. Landlord reserves the right to inspect all freight to be brought into the Building and to exclude from the Building all freight that violates any of the Building rules or the provisions of such tenant’s lease.

13. No tenant shall use or occupy, or permit any portion of the premises demised to such tenant to be used or occupied, as an office for a public stenographer or typist, or as a barber or manicure shop, or as an employment bureau. No tenant or occupant shall engage or pay any employees in the Building, except those actually working for such tenant or occupant in the Building, nor advertise for laborers giving an address at the Building.

14. Landlord shall have the right to prohibit any advertising by any tenant or occupant, which, in Landlord’s reasonable opinion, tends to impair the reputation of the Building and upon notice from Landlord, such tenant or occupant shall refrain from or discontinue such advertising.

15. Landlord reserves the right to exclude all unauthorized persons from the Building.

16. Before closing and leaving tenant’s demised premises at the end of each Business Day, each tenant shall close and lock all doors and windows.

17. No premises shall be used, or permit to be used, for lodging or sleeping, or for any immoral or illegal purpose.

18. There shall not be used in the Building, either by any tenant or occupant or by their agents or contractors, in the delivery or receipt of merchandise, freight or other matter, any hand trucks or other means of conveyance except those equipped with rubber tires, rubber side guards and such other safeguards as Landlord may reasonably require.

19. Canvassing, soliciting and peddling in the Building are prohibited.

20. If the premises demised to any tenant become infested with vermin, such tenant, at its sole cost and expense, shall cause its premises to be exterminated from time to time, to the reasonable satisfaction of Landlord, and shall employ such exterminators therefor as shall be reasonably approved by Landlord.

21. No tenant shall move, or permit to be moved, into or out of the Building or the premises demised to such tenant, any heavy or bulky matter, without employing a person holding a Master Rigger’s license to perform any special handling. Whenever any passenger elevator is used for the transport of freight, protective padding furnished by Landlord shall be attached to the rear and side walls of said elevator during such use.

22. Building employees shall not be required to perform, and shall not be requested by any tenant or occupant to perform, any work outside of their regular duties, unless under specific instructions from the office of the managing agent of the building.

 

2


23. The possession of any lighted cigarette, cigar, pipe or other smoking articles is prohibited throughout the Building and the sidewalks adjoining the Building.

 

3


Contractor Rules and Regulations

327-337 Summer Street, Boston, MA

327-337 Summer Street maintains specific rules and regulations that apply to all contractors and vendors who perform work or provide services for our tenants or the building owner. Poor conduct will not be tolerated. Your conduct reflects on you and your company and can affect future opportunities at 327-337 Summer Street, Boston, MA.

You or your company may not perform any work or service in the building until the following mandatory requirements are met:

 

1. A certificate of insurance for your company must be filed with Landlord. This certificate must be current and must meet building insurance requirements for coverage and indemnification.

 

2. All subcontractors must be approved by Landlord.

 

3. Each worker, whether employed by your company or by a subcontractor, must possess a comprehensive understanding of building life safety procedures.

The following general rules apply to all contractors and/or subcontractors:

 

1. No smoking is allowed anywhere in the building or on the loading dock.

 

2. No food or coffee breaks are allowed in common areas of the building or in a tenant’s space. The only approved break areas are within construction areas (if unoccupied) or within a specific space designated by Landlord.

 

3. Workers must avoid socializing on the job and/or congregating in public areas of the property.

 

4. All workers are expected to behave professionally. Please remember the importance of your appearance and professionalism to our tenants and their visitors. You are expected to be friendly and polite to everyone in the building.

 

5. All workers must speak and understand English.

The following serious offenses, when committed on the property, could result in an immediate dismissal:

 

1. Core drilling, hammer drilling, or installing tackless carpet strips between 8:00 a.m. and 6:00 p.m. on weekdays.

 

2. Working while intoxicated or under the influence of illegal drugs.

 

3. Possession of illegal drugs or drug paraphernalia.

 

4. Violation of any local, state or federal statutes.

 

5. Possession of firearms, explosives or weapons.

 

6. Physical or verbal abuse or harassment of any individual.

 

7. Duplication of keys or illegal entrance into a restricted space.

 

8. Gambling.

 

4


9. Intentional property destruction.

 

10. Sleeping on the job.

 

11. Behaving in a disorderly manner.

Because Landlord respects the dignity of each individual, we are committed to fairness when administering these rules. It is our expectation, however, that all individuals will readily observe these rules as they conduct their professional affairs.

Life Safety Procedures

 

1. In the event of a medical emergency, workers should call 911 and then immediately notify Tenant Services at 617-517-2896.

 

2. Tenant Services (617-517-2896) must be notified of any injuries that occur on the property.

 

3. Detailed life safety procedures are available from the Landlord upon request.

Life Safety Systems

 

1. If there is a possibility that life safety equipment has been compromised, Landlord and building security must be notified immediately.

 

2. A minimum of 18 inches of clearance must be maintained from each sprinkler head at all times.

 

3. Contractor must maintain the proper equipment to manage water from any broken sprinkler pipes.

 

4. Building fire alarm devices and final connections will be provided by Landlord’s fire alarm vendor at contractor’s expense.

 

5. Landlord must be notified 48 hours in advance of any work that may cause dust or odors in the building. A fee will be charged for each time fire alarm devices are disabled and or sprinkler shutdown.

 

6. Prior to any welding, soldering or metal cutting, contractors must present Landlord with a fire permit and proof of fire watch. This work must be requested and approved by Landlord at least 48 hours in advance.

 

7. All fire alarm wiring must be installed in conduit or in MC Cable.

 

8. Subcontractors performing work on fire alarm or sprinkler systems must adhere to the procedures listed above.

General Requirements

 

1. Prior to commencement of any work, the job foreman or General Contractor shall visit the site and familiarize themselves with the conditions under which the work is to be performed.

 

2. Any questions or conflicts regarding drawings or specifications are to be directed to Landlord.

 

3. Contractor shall perform all work in accordance with local, state and federal codes and regulations.

 

4. Contractor shall ensure that the construction site and adjoining areas including hallways and access ways are kept clean AT ALL TIMES and after final cleanup.

 

5


5. Contractor shall be responsible for the repair of all damages caused by them or their subcontractors during the project.

 

6. Contractors are not permitted to use any building maintenance equipment including vacuums, ladders, or supplies unless approved by Landlord.

 

7. Utility sinks are to be cleaned daily if used. No construction waste, paint thinners, or other obstructing or hazardous materials are to be poured down the drain or left to clog the sinks.

 

8. Areas that are not under construction but which are affected by construction, including stairways, elevators, lobbies and corridors, are to be protected from damage throughout the construction period. Floors and carpets are to be covered with protective material.

 

9. Construction signs and/or barriers visible to tenants and guests of the building must be approved by Landlord prior to their installation.

 

10. Landlord reserves the right to have any individual or individuals removed at any time from the premises without cause.

 

11. Contractor shall not permit the operation of any musical or sound-producing instruments, devices, or other equipment which may be heard outside the leased premises or the building, or which may emanate electrical waves which will impair radio or television reception from or in the building.

Access Procedures

 

1. Workers may only enter and exit the building via a single location to be approved by Landlord.

 

2. Workers must leave a valid photo ID (a company badge with a photo ID or a driver’s license) with building security at the lobby. They must sign in, retrieve and wear a building visitor badge, and upon exiting the building return the visitor badge in exchange for their ID and sign out.

 

3. Workers will be allowed only on floors where construction is taking place. All work which requires entering other tenant areas or common areas will be coordinated with Landlord and will be done after regular business hours.

 

4. Landlord will be given the name and phone number of the job foreman. The foreman should be on-site during construction activity and during deliveries.

 

5. The job foreman is responsible for filling out any necessary paper work for after hours and weekend access.

 

6. Workers will use the restroom that is specified by Landlord. Restrooms are to be kept clean at all times.

 

7. No property may be removed without a building property removal pass signed by security or Landlord. Random searches of bags, toolboxes, etc. may be conducted by building security.

 

8. Landlord is not required to provide parking to any contractor or subcontractor.

 

9. No access to the roof will be permitted without prior notification and approval by Landlord. Building personnel will escort any person needing access.

 

10.

All deliveries should be brought up to construction floors via the freight elevator. Any large

 

6


  moves or time consuming deliveries should be done prior to 6:00 a.m. or after 11:00 p.m., Monday through Friday, or any time during the weekends. These large moves must be coordinated, scheduled and reserved through building management at least 72 hours prior using a Building Service Request Form.

 

11. The freight elevator and loading dock must be left clean after use. Any clean-up expenses incurred by the building will be back-charged to the contractor.

Building Trash Dumpsters

 

1. No construction or demolition material of any kind is to be disposed of in building dumpsters.

 

2. Contractors must notify Landlord 48 hours in advance before using any product that could generate dust or odors that may migrate into the building’s HVAC system or adjacent spaces. Off hour restrictions may be required.

Core Drilling

 

1. Core drilling is only allowed before 8:00 a.m. and after 6:00 p.m. (on weekdays).

 

2. Contractor must post, on-site and in full view a notice to workers notifying them of the time restrictions relative to core and hammer drilling and tackless installation. Violations to these restrictions will not be tolerated.

 

3. No core drilling will be permitted without the prior written consent of a structural engineer and Landlord.

 

4. For all core drilling an X-ray will be required and all cores shall be given to Landlord.

Doors and Locks

 

1. Building standard locksets are required on all doors within the tenant premises and no other lockset may be installed.

 

2. All door lock sets and assorted keys removed during construction must be delivered to Landlord. All unused locks and hardware shall be returned to Landlord.

Carpets

 

1. Carpets within the work area as well as the common corridors and lobbies must be maintained in a clean and undamaged condition at all times. Contractor shall be responsible for any damage and should report any preexisting conditions prior to the commencement of work.

Building Permits and Certificates of Occupancy

 

1. A copy of the building permit must be delivered to Landlord prior to the start of any construction project and the permit card must be posted on the construction site and in full view at all times.

 

2. A copy of the fully executed building permit, showing all final inspection sign-offs must be delivered to Landlord prior to receipt of the certificate of occupancy.

 

7


3. A copy of the certificate of occupancy must be delivered to Landlord as soon as it is issued. Landlord may elect to withhold contractor’s retainage until proof of issuance has been received.

Miscellaneous

 

1. The OSHA Lead-in-Construction Standard 29 CFR 1926.62 applies to all construction work where an employee may be occupationally exposed to lead. Tenants arranging for contractors to perform work in their lease space should be aware that lead containing paint (defined as XRF results of less than 1.0 mg/cm2) may exist on some surfaces. However, lead-based paint, (defined as XRF results of 1.0 mg/cm2 or greater) shall have been removed from accessible surfaces in the lease spaces prior to the Commencement Date.

 

8


Hot Work Protocol

for

Construction Renovation or Building Repairs

Definition:

Hot work is any work activity that generates a flame, heat or sparks such as soldering, brazing, welding, or torch cutting and grinding.

Before any hot work shall commence the following Fire Safety Precautions must be taken:

 

  1. Notification

Notify Landlord 72 hours in advance, in writing, of location and purpose of planned hot work in the facility. Any heavy hot work such as structural work or defined space welding shall take place after normal business hours. Refer to the building rules and regulations for the defined normal business hours.

 

  2. Permit

Provide Landlord with a copy of the hot work permit from the local authority.

 

  3. Sprinkler and Fire Alarm System Impairment

The sprinkler system in the area of the hot work shall not be impaired during the hot work time period. The fire alarm system may only be impaired or zoned out in the area of the hot work with express permission of the local authority.

 

  4. Fire Watch

A designated person from the local fire department authority shall be present during all hot work. The person performing the fire watch shall be completely informed of the work to be undertaken and be in radio or telecommunications contact with the local fire station.

 

  5. Hot Work Area Condition & Preparation

Floors are to be swept clean. Any accumulations of dust shall be removed. Combustible materials shall be removed from the area of hot work. The hot work area shall be properly ventilated. Hot work is not to be conducted in the presence of flammable gases, vapors, liquids or dusts. If hot work is to be performed in a confined area atmospheric testing shall be performed prior to and during the hot work procedure to ensure the work site atmosphere is below the lower explosive limit.

 

9


  6. Person(s) Conducting Hot Work

The person conducting hot work shall be certified and fully trained and competent in use of the equipment and wear the appropriate personal protective equipment.

 

  7. Fire Fighting Equipment & Site Preparation

Fire extinguishers shall be present and within reach during all hot work. The person conducting hot work and fire watch personnel shall be informed of the location and have access to all fire hose cabinets and fire fighting equipment. Shields are to be erected where electric welding is to take place to prevent ultra-violet light exposure to others in the area. Floor or wall openings located 10 feet or less from the work site are to be covered to prevent hot sparks from entering walls or shafts falling to floors below. Additional fire watch personnel may be required for the fire watch in adjoining areas above or below the work site as determined by the local authority.

 

  8. Fire Watch Standby

Fire watch personnel shall remain on site 20 minutes after hot work has been completed. Notification shall be sent to the local authorities after hot work is completed. Fire alarm system point zoning shall be restored to active condition after work area is ventilated.

 

10


Hot Work Protocol

Check List

 

  9. Contractor Compliance

 

      Contractor is in compliance with Landlord protocol? 

   
10. Type of Hot Work  
      Welding, cutting, grinding-soldering and structural     
11. Location of Hot Work     
12. Date and Time to be Performed     
13. Permit Provided to Landlord:     
14. Certificate of Insurance for all Contractors and Subcontractors presented to Landlord     
15. Is Fire Watch Required by Local Authority?     
16. Fire Protection Sprinklers not Impaired?     
17. Fire Alarm System to be Temporarily zoned out in Work Area     
18. Work Area Free of Combustible Equipment     
19. Work Area Properly Ventilated Prior to and During Hot Work     

20. All floor and wall openings covered and protected to prevent sparks and slag  from traveling to other unprotected shafts and voids to the floor below                                                                                                                                                                                          

21. Portable fire extinguisher onsite and fully charged     

 

11


22. Person(s) onsite performing hot work are qualified and have proper protective clothing and face shields     
23. Person conducting fire watch from local authority is on site and is in telecommunication contact with fire chief on duty     

Other Precautions:

 

 

 

 

 

 

 

Form Submitted To:   

 

Date:   

 

Approve/Disapprove:   

 

Date Returned:   

 

 

12


EXHIBIT EXISTING CONDITIONS

 

   Report:    Prepared By:    Project #:    Date:

1.

   Final Phase I Environmental Site Assessment and Limited Sampling Report Volume 1 of 4    URS Corporation    25009009    March 2, 2006

2.

  

Final Phase I Environmental

Site Assessment and Limited Sampling Report Volume 2 of 4

   URS Corporation    25009009    March 2, 2006

3.

  

Final Phase I Environmental

Site Assessment and Limited Sampling Report Volume 3 of 4

   URS Corporation    25009009    March 2, 2006

4.

  

Final Phase I Environmental

Site Assessment and Limited Sampling Report Volume 4 of 4

   URS Corporation    25009009    March 2, 2006

5.

  

Phase I Environmental

Site Assessment

  

Blackstone

Consulting

  

DIVWCA

008.02

   April 22, 2013

6.

  

Pre-Renovation Hazardous

Materials Survey Report

   URS Corporation    39743960    July 9, 2013

7.

   URS Air Sampling Report    URS Corporation       September 29, 2014

 

1


EXHIBIT SNDA

FORM OF SNDA

LEASE SUBORDINATION, NON-DISTURBANCE

OF POSSESSION AND ATTORNMENT AGREEMENT

This agreement (“Lease Subordination, Non-Disturbance of Possession and Attornment Agreement” or “Agreement”) is made as of the      day of             , 201    , among WEBSTER BANK, N.A., a national banking association, as administrative agent on behalf of itself and certain other lenders, having a place of business at 100 Franklin Street, Boston, Massachusetts 02110 (“Lender”),             , a Massachusetts limited liability company having a place of business at 100 Franklin Street, 2 nd Floor, Boston, Massachusetts 02110 (“Landlord” or “Borrower”), and [            ], a [            ] having a place of business at [            ] (“Tenant”).

Introductory Provisions

A. Lender is relying on this Agreement as an inducement to Lender in making and maintaining a loan (“Loan”) secured by, among other things, a Construction Mortgage and Security Agreement dated as of              (“Mortgage”) given by Borrower covering property commonly known as and numbered             , Boston, Massachusetts (“Property”), which Mortgage, including a legal description of the Property, is recorded at the Suffolk County Registry of Deeds in Book             , Page             . Lender is also the “Assignee” under a Collateral Assignment of Leases and Rents (“Assignment”) dated as of                     , from Borrower with respect to the Property, which Assignment is recorded at the Suffolk County Registry of Deeds in Book             , Page     .

B. Tenant is the tenant under that certain lease (“Lease”) dated             , 20    , made with [Landlord] [Landlord’s predecessor in title], covering certain premises (“Premises”) at the Property as more particularly described in the Lease [and in the “Notice of Lease” dated                     , 20    which has been recorded at             in Book             , Page     ].

C. Lender requires, as a condition to the making and maintaining of the Loan, that the Mortgage be and remain superior to the Lease and that its rights under the Assignment be recognized.

D. Tenant requires as a condition to the Lease being subordinate to the Mortgage that its rights under the Lease be recognized.

E. Lender, Landlord, and Tenant desire to confirm their understanding with respect to the Mortgage and the Lease.

 

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NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements contained herein, and other valuable consideration, the receipt and adequacy of which are hereby acknowledged, and with the understanding by Tenant that Lender shall rely hereon in making and maintaining the Loan, Lender, Landlord, and Tenant agree as follows:

1. Subordination . The Lease is subordinate to the Mortgage and any amendment, renewal, substitution, extension or replacement thereof and each advance made thereunder as though the Mortgage, and each such amendment, renewal, substitution, extension or replacement were executed and recorded, and the advance made, before the execution of the Lease.

2. Non-Disturbance . So long as Tenant is not in default (beyond any period expressed in the Lease within which Tenant may cure such default) in the payment of rent or in the performance or observance of any of the terms, covenants or conditions of the Lease on Tenant’s part to be performed or observed, (i) Tenant’s occupancy of the Premises shall not be disturbed by Lender in the exercise of any of its rights under the Mortgage during the term of the Lease, or any extension or renewal thereof made in accordance with the terms of the Lease, and (ii) Lender will not join Tenant as a party defendant in any action or proceeding because of any default under the Mortgage.

3. Attornment and Certificates . In the event Lender succeeds to the interest of Borrower as Landlord under the Lease, or if the Property or the Premises are sold pursuant to the power of sale under the Mortgage, Tenant shall attorn to Lender, or a purchaser upon any such foreclosure sale, and shall recognize Lender, or such purchaser, thereafter as the Landlord under the Lease. Such attornment shall be effective and self- operative without the execution of any further instrument. Tenant agrees, however, to execute and deliver at any time and from time to time, upon the request of any holder(s) of any of the indebtedness or other obligations secured by the Mortgage, or upon request of any such purchaser, (a) any instrument or certificate which, in the reasonable judgment of such holder(s), or such purchaser, may be necessary or appropriate in any such fore- closure proceeding or otherwise to evidence such attornment, and (b) an instrument or certificate regarding the status of the Lease, consisting of statements, if true (and if not true, specifying in what respect), (i) that the Lease is in full force and effect, (ii) the date through which rentals have been paid, (iii) the duration and date of the commencement of the term of the Lease, (iv) the nature of any amendments or modifications to the Lease, (v) that no default, or state of facts, which with the passage of time, or notice, or both, would constitute a default, exists on the part of either party to the Lease, and (vi) the dates on which payments of additional rent, if any, are due under the Lease.

4. Limitations . If Lender exercises any of its rights under the Assignment or the Mortgage, or if Lender shall succeed to the interest of Landlord under the Lease in any manner, or if any purchaser acquires the Property, or the Premises, upon or after any foreclosure of the Mortgage, or any deed in lieu thereof, Lender or such purchaser, as the case may be, shall have the same remedies by entry, action or otherwise in the event of

 

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any default by Tenant (beyond any period expressed in the Lease within which Tenant may cure such default) in the payment of rent or in the performance or observance of any of the terms, covenants and conditions of the Lease on Tenant’s part to be paid, performed or observed that the Landlord had or would have had if Lender or such purchaser had not succeeded to the interest of the present Landlord. From and after any such attornment, Lender or such purchaser shall be bound to Tenant under all the terms, covenants and conditions of the Lease, and Tenant shall, from and after such attornment to Lender, or to such purchaser, have the same remedies against Lender, or such purchaser, for the breach of an agreement contained in the Lease that Tenant might have had under the Lease against Landlord, if Lender or such purchaser had not succeeded to the interest of Landlord; provided , however , that Lender or such purchaser shall only be bound during the period of its ownership, and that in the case of the exercise by Lender of its rights under the Mortgage, or the Assignment, or any combination thereof, or a foreclosure, or deed in lieu of foreclosure, all Tenant claims shall be satisfied only out of the interest, if any, of Lender, or such purchaser, in the Property, and Lender and such purchaser shall not be (a) liable for any act or omission of any prior landlord (including the Landlord); or (b) liable for or incur any obligation with respect to the construction of the Property or any improvements of the Premises or the Property; or (c) subject to any offsets or defenses which Tenant might have against any prior landlord (including the Landlord); or (d) bound by any rent or additional rent which Tenant might have paid for more than the then current rental period to any prior landlord (including the Landlord); or (e) bound by any amendment or modification of the Lease, or any consent to any assignment or sublet, made without Lender’s prior written consent; or (f) bound by or responsible for any security deposit not actually received by Lender; or (g) liable for or incur any obligation with respect to any breach of warranties or representations of any nature under the Lease or otherwise including without limitation any warranties or representations respecting use, compliance with zoning, landlord’s title, landlord’s authority, habitability and/or fitness for any purpose, or possession; or (h) liable for consequential damages. Notwithstanding the foregoing, in the event that Lender or any successor succeeds to the interest of Landlord under the Lease, or title to the Property prior to the completion of the Landlord’s Work, then Lender or such successor (as applicable) shall have thirty (30) days following notice to Tenant by Lender or such successor of such acquisition to send written notice to Tenant stating whether or not Lender or such successor intends to be bound to perform work remaining to be done as part of the Landlord’s Work under the Lease and agrees to advance the Allowance. If in such notice Lender or such successor states that Lender or such successor intends to be so bound, then such provisions of the Lease shall be binding on the Lender or such successor (as applicable). If Lender or such successor (as applicable) states that it does not intend to be so bound or fails to timely provide notice to Tenant within such thirty (30) day period, then Tenant shall have the right, by giving a notice (the “Election Notice”) to the Lender or such successor (as applicable) within sixty (60) days following notice of such acquisition, to either (X) terminate the Lease, or (Y) continue the Lease, and complete the Landlord’s Work itself at its expense and otherwise in accordance with the terms of the Lease and (to the extent the Allowance is not disbursed by the Lender or such successor (as applicable)) reduce the Rent by the amount of the unadvanced Allowance; provided, however, that the Lender or such successor (as applicable)can

 

-3-


render any Election Notice null and void and of no force and effect if, within thirty (30) days after the giving of such Election Notice, the Lender or such successor (as applicable) agrees to be bound by the applicable provisions of the Lease. Tenant’s failure to give Election Notice in the time period required above shall be deemed to be an election pursuant to the clause (Y) of the immediately preceding sentence.

5. Rights Reserved . Nothing herein contained is intended, nor shall it be construed, to abridge or adversely affect any right or remedy of: (a) the Landlord under the Lease, or any subsequent Landlord, against the Tenant in the event of any default by Tenant (beyond any period expressed in the Lease within which Tenant may cure such default) in the payment of rent or in the performance or observance of any of the terms, covenants or conditions of the Lease on Tenant’s part to be performed or observed; or (b) the Tenant under the Lease against the original or any prior Landlord in the event of any default by the original Landlord to pursue claims against such original or prior Landlord whether or not such claim is barred against Lender or a subsequent purchaser.

6. Notice and Right to Cure . Tenant agrees to provide Lender with a copy of each notice of default given to Landlord under the Lease, at the same time as such notice of default is given to the Landlord, and that in the event of any default by the Landlord under the Lease, Tenant will take no action to terminate the Lease (a) if the default is not curable by Lender (so long as the default does not interfere with Tenant’s use and occupation of the Premises), or (b) if the default is curable by Lender, unless the default remains uncured for a period of thirty (30) days after written notice thereof shall have been given, postage prepaid, to Landlord at Landlord’s address, and to Lender at the address provided in Section 7 below; provided , however , that if any such default is such that it reasonably cannot be cured within such thirty (30) day period, such period shall be extended for such additional period of time as shall be reasonably necessary (including, without limitation, a reasonable period of time to obtain possession of the Property and to foreclose the Mortgage), if Lender gives Tenant written notice within such thirty (30) day period of Lender’s election to undertake the cure of the default and if curative action (including, without limitation, action to obtain possession and foreclose) is instituted within a reasonable period of time and is thereafter diligently pursued. Lender shall have no obligation to cure any default under the Lease.

7. Notices . Any notice or communication required or permitted hereunder shall be in writing, and shall be given or delivered: (i) by United States mail, registered or certified, postage fully prepaid, return receipt requested, or (ii) by recognized courier service or recognized overnight delivery service; and in any event addressed to the party for which it is intended at its address set forth below:

 

To Lender:      Webster Bank, N.A.
     100 Franklin Street
     Boston, Massachusetts 02110
     FAX Number: (830) 314-7176
     Attention: Ms. Claudia G. Piper

 

-4-


With a copy to:    Goulston & Storrs P.C.
   400 Atlantic Avenue
   Boston, Massachusetts 02110
   Attention: James H. Lerner, Esq.
To Tenant:   

 

  

 

  

 

  

 

With a copy to:   

 

  

 

  

 

  

 

or such other address as such party may have previously specified by notice given or delivered in accordance with the foregoing. Any such notice shall be deemed to have been given and received on the date delivered or tendered for delivery during normal business hours as herein provided.

8. No Oral Change . This Agreement may not be modified orally or in any manner than by an agreement in writing signed by the parties hereto or their respective successors in interest.

9. Successors and Assigns . This Agreement shall inure to the benefit of and be binding upon the parties hereto, their respective heirs, personal representatives, successors and assigns, and any purchaser or purchasers at foreclosure of the Property or any portion thereof, and their respective heirs, personal representatives, successors and assigns.

10. Payment of Rent to Lender . Tenant acknowledges that it has notice that the Lease and the rent and all sums due thereunder have been assigned to Lender as part of the security for the Obligations secured by the Mortgage. In the event Lender notifies Tenant of a default under the Loan and demands that Tenant pay its rent and all other sums due under the Lease to Lender, Tenant agrees that it will honor such demand and pay its rent and all other sums due under the Lease to Lender, or Lender’s designated agent, until otherwise notified in writing by Lender. Borrower unconditionally authorizes and directs Tenant to make rental payments directly to Lender following receipt of such notice and further agrees that Tenant may rely upon such notice without any obligation to further inquire as to whether or not any default exists under the Mortgage or the Assignment, and that Borrower shall have no right or claim against Tenant for or by reason of any payments of rent or other charges made by Tenant to Lender following receipt of such notice.

11. No Amendment or Cancellation of Lease . So long as the Mortgage remains undischarged of record, Tenant shall not amend, modify, cancel or terminate the

 

-5-


Lease, or consent to an amendment, modification, cancellation or termination of the Lease, or agree to subordinate the Lease to any other mortgage, without Lender’s prior written consent in each instance.

12. Options . With respect to any options for additional space provided to Tenant under the Lease, Lender agrees to recognize the same if Tenant is entitled thereto under the Lease after the date on which Lender succeeds as Landlord under the Lease by virtue of foreclosure or deed in lieu of foreclosure or Lender takes possession of the Premises; provided , however , Lender shall not be responsible for any acts of any prior landlord under the Lease, or the act of any tenant, subtenant or other party which prevents Lender from complying with the provisions hereof and Tenant shall have no right to cancel the Lease or to make any claims against Lender on account thereof.

13. Captions . Captions and headings of sections are not parts of this Agreement and shall not be deemed to affect the meaning or construction of any of the provisions of this Agreement.

14. Counterparts . This Agreement may be executed in several counterparts each of which when executed and delivered is an original, but all of which together shall constitute one instrument.

15. Governing Law . This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts.

16. Parties Bound . The provisions of this Agreement shall be binding upon and inure to the benefit of Tenant, Lender and Borrower and their respective successors and assigns; provided , however , reference to successors and assigns of Tenant shall not constitute a consent by Landlord or Borrower to an assignment or sublet by Tenant, but has reference only to those instances in which such consent is not required pursuant to the Lease or for which such consent has been given.

[Remainder of page intentionally left blank.]

 

-6-


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

LENDER:

 

WEBSTER BANK, N.A.

 

BY:

 

 

 
  Name:  
  Title:  

Date executed by Lender:                    

 

TENANT:

 

[here insert name]

 

BY:

 

 

 
  Name:  
  Title:  

Date executed by Tenant:                    

 

 

ATTEST:

 

Name:

Title:

[Signature Page to Subordination, Non-Disturbance of Possession and Attornment Agreement]


COMMONWEALTH OF MASSACHUSETTS

COUNTY OF [                    ]

On this              day of             , 201    , before me, the undersigned notary public, personally appeared                             , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity/capacities, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

WITNESS my hand and official seal.

 

 

Notary Public

My Commission Expires:

[Signature Page to Subordination, Non-Disturbance of Possession and Attornment Agreement]


[COMMONWEALTH/STATE] OF [            ]

COUNTY OF [            ]

On this     day of                     , 201    , before me, the undersigned notary public, personally appeared                                     , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity/capacities, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

WITNESS my hand and official seal.

 

 

Notary Public

My Commission Expires:

 

[Signature Page to Subordination, Non-Disturbance of Possession and Attornment Agreement]


                    , as Landlord under the Lease, and Borrower under the Mortgage, the Loan Agreement and the other Loan Documents, agrees for itself and its successors and assigns that:

 

  1. The above agreement does not:

 

  (a) constitute a waiver by Lender of any of its rights under the Mortgage and Security Agreement or any of the other Loan Documents; or

 

  (b) in any way release Borrower from its obligations to comply with the terms, provisions, conditions, covenants and agreements and clauses of the Mortgage and Security Agreement and other Loan Documents;

 

  2. The provisions of the Mortgage remain in full force and effect and must be complied with by Borrower;

 

  3. Tenant shall have the right to rely on any notice or request from Lender which directs Tenant to pay rent to Lender without any obligation to inquire as to whether or not a default exists and notwithstanding any notice from or claim of Borrower to the contrary. Borrower shall have no right or claim against Tenant for rent paid to Lender after Lender so notifies Tenant to make payment of rent to Lender; and

 

  4. The Borrower shall be bound by all of the terms, conditions and provisions of the foregoing Agreement in all respects.

Executed and delivered as a sealed instrument as of the     day of                     , 201    .

 

BORROWER:  

                     ,

a Massachusetts limited liability company

By:        

 

 

 

Name:

 

Title:

Date executed by Borrower:                    , 20

COMMONWEALTH OF MASSACHUSETTS

COUNTY OF [                    ]

On this     day of                     , 201    , before me, the undersigned notary public, personally appeared                             , personally known to

 

1


me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity/capacities, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

WITNESS my hand and official seal.

 

 

Notary Public

My Commission Expires:

 

2


EXHIBIT L/C

STANDBY L/C DRAFT LANGUAGE

IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVBSF            

DATE:                     , 2014

BENEFICIARY:

DWF III SYNERGY, LLC

 

 

AND

 

 

APPLICANT:

LOGMEIN INC

500 UNICORN PARK DRIVE

WOBURN MA 01801

AMOUNT: US$              (U.S. DOLLARS             EXACTLY)

EXPIRATION DATE:                     [ONE YEAR FROM ISSUE DATE OF THE L/C]

LOCATION: SANTA CLARA, CALIFORNIA

LADIES AND GENTLEMEN:

WE HEREBY ESTABLISH THIS IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVBSF              IN YOUR FAVOR AVAILABLE BY YOUR DRAFTS DRAWN ON US AT SIGHT IN THE FORM OF EXHIBIT “A” ATTACHED AND ACCOMPANIED BY THE FOLLOWING DOCUMENTS:

 

1. THE ORIGINAL OF THIS LETTER OF CREDIT AND ALL AMENDMENT(S), IF ANY, SUBJECT TO THE PROVISIONS BELOW REGARDING PRESENTATION BY FACSIMILE ALONE.

 

2. A DATED CERTIFICATION FROM THE BENEFICIARY PURPORTEDLY SIGNED BY AN AUTHORIZED OFFICER OR AN AGENT OF BENEFICIARY, FOLLOWED BY HIS/HER PRINTED NAME AND DESIGNATED TITLE, STATING EITHER OF THE FOLLOWING:

(A) “BENEFICIARY IS ENTITLED TO DRAW UPON THIS LETTER OF CREDIT, PURSUANT TO THE TERMS OF THAT CERTAIN LEASE DATED                     , 2014, [INSERT THE DATE] BETWEEN                     , LLC, AS LANDLORD, AND LOGMEIN INC, AS TENANT, FOR PREMISES IN THE BUILDING LOCATED AT 327-337 SUMMER STREET, BOSTON, MASSACHUSETTS (THE “LEASE”), OR ANY OTHER WRITTEN AGREEMENT BETWEEN APPLICANT AND BENEFICIARY. BENEFICIARY HEREBY MAKES DEMAND FOR THE PAYMENT OF                      [INSERT AMOUNT IN NUMERALS AND WORD].”

OR

(B) “BENEFICIARY HEREBY CERTIFIES THAT IT HAS RECEIVED NOTICE FROM SILICON VALLEY BANK THAT THE LETTER OF CREDIT NO. SVBSF              WILL NOT BE RENEWED, AND THAT IT HAS NOT RECEIVED A REPLACEMENT LETTER OF CREDIT IN ACCORDANCE WITH THE LEASE MENTIONED IN THE LETTER OF CREDIT AT LEAST THIRTY (30) DAYS PRIOR TO THE EXPIRATION DATE OF THIS LETTER OF CREDIT.”

 

 

 

L/C DRAFT LANGUAGE APPROVED FOR ISSUANCE BY:

        
     

(Authorized Signature)

    
   

DATE:                                       

 

                 


THE LEASE AGREEMENT MENTIONED ABOVE IS FOR IDENTIFICATION PURPOSES ONLY AND IT IS NOT INTENDED THAT SAID LEASE AGREEMENT BE INCORPORATED HEREIN OR FORM PART OF THIS LETTER OF CREDIT.

UPON PRESENTATION OF THIS LETTER OF CREDIT ACCOMPANIED BY SUCH STATEMENT, WE SHALL ACCEPT SUCH STATEMENT AS CONCLUSIVE, BINDING AND CORRECT, WITHOUT HAVING TO INVESTIGATE OR

PAGE 1 OF 3

 

 

 

L/C DRAFT LANGUAGE APPROVED FOR ISSUANCE BY:

        
     

(Authorized Signature)

    
   

DATE:                                       

 

                 


IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVBSF             

DATE:             , 2014

BEING RESPONSIBLE FOR THE ACCURACY, TRUTHFULNESS, CORRECTNESS OR VALIDITY THEREOF AND NOTWITHSTANDING THE CLAIM OF ANY PERSON TO THE CONTRARY, AND WE SHALL NOT REQUIRE PROOF OF THE AUTHORITY OF THE AUTHORIZED OFFICER OR AN AGENT OF BENEFICIARY SIGNING THE STATEMENT, AND SHALL INSTEAD PRESUME THE AUTHORITY OF THE AUTHORIZED OFFICER OR AN AGENT OF BENEFICIARY BY REASON OF PRESENTATION WITH IT OF THE ORIGINAL OF THIS LETTER OF CREDIT.

PARTIAL AND MULTIPLE DRAWS ARE ALLOWED. THIS LETTER OF CREDIT MUST ACCOMPANY ANY DRAWINGS HEREUNDER FOR ENDORSEMENT OF THE DRAWING AMOUNT AND WILL BE RETURNED TO THE BENEFICIARY UNLESS IT IS FULLY UTILIZED.

DRAFT(S) AND DOCUMENTS MUST INDICATE THE NUMBER AND DATE OF THIS LETTER OF CREDIT.

THIS LETTER OF CREDIT SHALL BE AUTOMATICALLY EXTENDED FOR AN ADDITIONAL PERIOD OF ONE YEAR, WITHOUT AMENDMENT, FROM THE PRESENT OR EACH FUTURE EXPIRATION DATE UNLESS AT LEAST SIXTY (60) DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE WE SEND YOU A NOTICE BY OVERNIGHT COURIER SERVICE AT THE ABOVE ADDRESS THAT THIS LETTER OF CREDIT WILL NOT BE EXTENDED BEYOND THE CURRENT EXPIRATION DATE. IN NO EVENT SHALL THIS LETTER OF CREDIT BE AUTOMATICALLY EXTENDED BEYOND              [INSERT DATE THAT IS AT LEAST 60 DAYS FOLLOWING FINAL EXPIRATION DATE] WHICH SHALL BE THE FINAL EXPIRATION DATE OF THIS LETTER OF CREDIT.

THIS LETTER OF CREDIT IS TRANSFERABLE BY THE ISSUING BANK ONE OR MORE TIMES BUT IN EACH INSTANCE TO A SINGLE BENEFICIARY AND ONLY IN ITS ENTIRETY UP TO THE THEN AVAILABLE AMOUNT IN FAVOR OF ANY NOMINATED TRANSFEREE ASSUMING SUCH TRANSFER TO SUCH TRANSFEREE WOULD BE IN COMPLIANCE WITH THEN APPLICABLE LAW AND REGULATIONS, INCLUDING BUT NOT LIMITED TO THE REGULATIONS OF THE U.S. DEPARTMENT OF TREASURY AND U.S. DEPARTMENT OF COMMERCE. AT THE TIME OF TRANSFER, THE ORIGINAL LETTER OF CREDIT AND ORIGINAL AMENDMENT(S), IF ANY, MUST BE SURRENDERED TO US TOGETHER WITH OUR LETTER OF TRANSFER DOCUMENTATION (IN THE FORM OF EXHIBIT “B” ATTACHED HERETO). OUR TRANSFER FEE OF  1 4 OF 1% OF THE TRANSFER AMOUNT (MINIMUM $250.00) IS FOR THE ACCOUNT OF THE APPLICANT. ANY TRANSFER OF THIS LETTER OF CREDIT MAY NOT CHANGE THE PLACE OF EXPIRATION OF THE LETTER OF CREDIT FROM OUR ABOVE-SPECIFIED OFFICE. EACH TRANSFER SHALL BE EVIDENCED BY OUR ENDORSEMENT ON THE REVERSE OF THE ORIGINAL LETTER OF CREDIT AND WE SHALL FORWARD THE ORIGINAL LETTER OF CREDIT TO THE TRANSFEREE.

ALL DEMANDS FOR PAYMENT SHALL BE MADE BY PRESENTATION OF THE ORIGINAL APPROPRIATE DOCUMENTS AT OUR OFFICE (THE “BANK’S OFFICE”) AT: SILICON VALLEY BANK, 3003 TASMAN DRIVE, 2ND FLOOR, SANTA CLARA, CA 95054, ATTENTION: STANDBY LETTER OF CREDIT SECTION OR BY FACSIMILE TRANSMISSION AT: (408) 654-6211 OR (408) 969-6510; AND SIMULTANEOUSLY UNDER TELEPHONE ADVICE TO: (408) 654-7712 OR (408) 654-6274), ATTENTION: STANDBY LETTER OF CREDIT NEGOTIATION SECTION WITH ORIGINALS TO FOLLOW BY OVERNIGHT COURIER SERVICE; PROVIDED, HOWEVER, THE BANK WILL DETERMINE HONOR OR DISHONOR ON THE BASIS OF PRESENTATION BY FACSIMILE ALONE, AND WILL NOT EXAMINE THE ORIGINALS. PAYMENT AGAINST CONFORMING PRESENTATIONS HEREUNDER SHALL BE MADE BY BANK IN IMMEDIATELY AVAILABLE U.S. FUNDS DURING NORMAL BUSINESS HOURS OF THE BANK’S OFFICE WITHIN TWO (2) BUSINESS DAYS AFTER PRESENTATION NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE INTERNATIONAL STANDBY PRACTICES (ISP98), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 590.

 

 

 

L/C DRAFT LANGUAGE APPROVED FOR ISSUANCE BY:

        
     

(Authorized Signature)

    
   

DATE:                                       

 

                 


PAGE 2 OF 3

IRREVOCABLE STANDBY LETTER OF CREDIT NO. SVBSF             

DATE:             , 2014

WE HEREBY AGREE WITH THE DRAWERS, ENDORSERS AND BONAFIDE HOLDERS THAT THE DRAFTS DRAWN UNDER AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS LETTER OF CREDIT SHALL BE DULY HONORED UPON PRESENTATION TO THE DRAWEE, IF NEGOTIATED ON OR BEFORE THE EXPIRATION DATE OF THIS CREDIT.

IF ANY INSTRUCTIONS ACCOMPANYING A DRAWING UNDER THIS LETTER OF CREDIT REQUEST THAT PAYMENT IS TO BE MADE BY TRANSFER TO YOUR ACCOUNT WITH ANOTHER BANK, WE WILL ONLY EFFECT SUCH PAYMENT BY FED WIRE TO A U.S. REGULATED BANK, AND WE AND/OR SUCH OTHER BANK MAY RELY ON AN ACCOUNT NUMBER SPECIFIED IN SUCH INSTRUCTIONS EVEN IF THE NUMBER IDENTIFIES A PERSON OR ENTITY DIFFERENT FROM THE INTENDED PAYEE.

EXCEPT AS STATED HEREIN, THIS UNDERTAKING IS NOT SUBJECT TO ANY REQUIREMENT OR QUALIFICATION. OUR OBLIGATION UNDER THIS LETTER OF CREDIT IS OUR INDIVIDUAL OBLIGATION, IN NO WAY CONTINGENT UPON REIMBURSEMENT WITH RESPECT THERETO, OR UPON OUR ABILITY TO PERFECT ANY LIEN OR SECURITY INTERESTS.

THIS LETTER OF CREDIT CANNOT BE MODIFIED OR REVOKED WITHOUT YOUR WRITTEN CONSENT.

EXCEPT TO THE EXTENT INCONSISTENT WITH THE EXPRESS TERMS HEREOF, THIS LETTER OF CREDIT IS SUBJECT TO THE INTERNATIONAL STANDBY PRACTICES (ISP98), INTERNATIONAL CHAMBER OF COMMERCE, PUBLICATION NO. 590.

 

 

 

L/C DRAFT LANGUAGE APPROVED FOR ISSUANCE BY:

        
     

(Authorized Signature)

    
   

DATE:                                       

 

                 


EXHIBIT “A”

 

DATE:                                    REF. NO.                                 

A T SIGHT OF THIS DRAFT

 

P AY TO THE ORDER OF                                                                                 US$                                                                                                                          
US DOLLARS                                                                                                                                                                                                                                          
                                                                                                                                                                                                                                                                       

DRAWN UNDER SILICON VALLEY BANK, SANTA CLARA, CALIFORNIA, STANDBY LETTER OF CREDIT NUMBER NO.                                                                                                                         DATED                                                                                                                        

 

T O: SILICON VALLEY BANK    
3003 TASMAN DRIVE    
SANTA CLARA, CA 95054   (BENEFICIARY’S NAME)                
   
  Authorized Signature                     

GUIDELINES TO PREPARE THE DRAFT

1. DATE: ISSUANCE DATE OF DRAFT.

2. REF. NO.: BENEFICIARY’S REFERENCE NUMBER, IF ANY.

3. PAY TO THE ORDER OF: NAME OF BENEFICIARY AS INDICATED IN THE L/C (MAKE SURE BENEFICIARY ENDORSES IT ON THE REVERSE SIDE).

4. US$: AMOUNT OF DRAWING IN FIGURES.

5. USDOLLARS: AMOUNT OF DRAWING IN WORDS.

6. LETTER OF CREDIT NUMBER: SILICON VALLEY BANK’S STANDBY L/C NUMBER THAT PERTAINS TO THE DRAWING.

7. DATED: ISSUANCE DATE OF THE STANDBY L/C.

8. BENEFICIARY’S NAME: NAME OF BENEFICIARY AS INDICATED IN THE L/C.

9. AUTHORIZED SIGNATURE: SIGNED BY AN AUTHORIZED SIGNER OF BENEFICIARY.

IF YOU NEED FURTHER ASSISTANCE IN COMPLETING THIS DRAFT, PLEASE CALL OUR L/C PAYMENT SECTION 408-654-6274; OR 408-654-7712; OR 408-654-3035; OR 408-654-7127; OR 408-654- 5545.

 

 

L/C DRAFT LANGUAGE APPROVED FOR ISSUANCE BY:         
     

(Authorized Signature)

    
   

DATE:                                       

 

                 


EXHIBIT “B”

 

DATE:               
                
TO:    SILICON VALLEY BANK      
   3003 TASMAN DRIVE       RE: IRREVOCABLE STANDBY LETTER OF CREDIT
   SANTA CLARA, CA 95054    NO.    ISSUED BY
   ATTN:      INTERNATIONAL DIVISION,       SILICON VALLEY BANK, SANTA CLARA
                     STANDBY LETTERS OF CREDIT       L/C AMOUNT:

GENTLEMEN:

FOR VALUE RECEIVED, THE UNDERSIGNED BENEFICIARY HEREBY IRREVOCABLY TRANSFERS TO:

(NAME OF TRANSFEREE)

(ADDRESS)

ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY TO DRAW UNDER THE ABOVE LETTER OF CREDIT UP TO ITS AVAILABLE AMOUNT AS SHOWN ABOVE AS OF THE DATE OF THIS TRANSFER.

BY THIS TRANSFER, ALL RIGHTS OF THE UNDERSIGNED BENEFICIARY IN SUCH LETTER OF CREDIT ARE TRANSFERRED TO THE TRANSFEREE. TRANSFEREE SHALL HAVE THE SOLE RIGHTS AS BENEFICIARY THEREOF, INCLUDING SOLE RIGHTS RELATING TO ANY AMENDMENTS, WHETHER INCREASES OR EXTENSIONS OR OTHER AMENDMENTS, AND WHETHER NOW EXISTING OR HEREAFTER MADE. ALL AMENDMENTS ARE TO BE ADVISED DIRECT TO THE TRANSFEREE WITHOUT NECESSITY OF ANY CONSENT OF OR NOTICE TO THE UNDERSIGNED BENEFICIARY.

THE ORIGINAL OF SUCH LETTER OF CREDIT IS RETURNED HEREWITH, AND WE ASK YOU TO ENDORSE THE TRANSFER ON THE REVERSE THEREOF, AND FORWARD IT DIRECTLY TO THE TRANSFEREE WITH YOUR CUSTOMARY NOTICE OF TRANSFER.

 

         SIGNATURE AUTHENTICATED     

SINCERELY,

           
      

The name(s), title(s), and signature(s) conform to that/those

on file with us for the company and the signature(s) is/are

authorized to execute this instrument.

 

We further confirm that the company has been identified

applying the appropriate due diligence and enhanced due

diligence as required by BSA and all its subsequent

amendments.

    
           

(BENEFICIARY’S NAME)

         
         
           

(SIGNATURE OF BENEFICIARY)

         
         
        

 

    

(NAME AND TITLE)

       (Name of Bank)     
      

 

    
       (Address of Bank)     
      

 

    
       (City, State, ZIP Code)     
      

 

    
       (Authorized Name and Title)     
      

 

    
       (Authorized Signature)     
      

 

    
       (Telephone number)     
               

 

1


EXHIBIT RESERVED ROOF AREA

 

LOGO

 

1


EXHIBIT ENCUMBRANCES

1. Rights reserved by the Commonwealth of Massachusetts to approve laying and building of sewers as forth in agreement dated July 21, 1849, recorded Book 970, Page 12.

2. Sewer rights set forth in instrument dated December 3, 1892, recorded in Book 2154, Page 140 given The Boston Wharf Company to The City of Boston. (Affects Parcel Four only).

3. Rights and easements granted by Boston Wharf Company to Boston Edison Company by instrument December 21, 1976 and recorded in Book 8923, Page 412. (Affects Parcel Four only).

4. Easement from Boston Wharf Co. to Boston Edison Company affecting a private passageway known as Pastene Alley, recorded in Book 25428, Page 318. (Affects Parcel Four only).

5. Amended and Restated Agreement of Easements, Covenants and Conditions, dated September 30, 2007 recorded in Book 43257, Page 229, as further affected by Amendment dated September 30, 2011 and recorded in Book 48461, Page 64, as further affected by Resignation as Declarant Under Amended and Restated Agreement of Easements, Covenants and Restrictions, dated as of May 29, 2013 and recorded in Book 51516, Page 195 and as further affected by Appointment of Declarant Under Amended and Restated Agreement of Easements, Covenants and Conditions dated June 30, 2014 and recorded in Book 53180, Page 197. (Affects Parcel Four only).

6. Provisions of a Party Wall Agreement dated December 28, 2005 and recorded in Book 38779, Page 339. (Affects Parcel One only).

7. Easement to Comcast of Massachusetts I, Inc., dated May 17, 2011 and recorded in Book 48135, Page 60. (Affects Parcel Four only).

8. Easement to Comcast of Massachusetts I, Inc., dated May 17, 2011 and recorded in Book 48155, Page 144. (Affects Parcel Four only).

9. Notice of Activity and Use Limitation, recorded in Book 47229, Page 257 and shown on Plan 383 of 2010, as affected by First Amendment to Notice of Activity and Use Limitation, executed as of July 17, 2011 and recorded in Book 48196, Page 29. (Affects Parcel Three only).

10. Easements, conditions, covenants and restrictions, including but not limited to payment of common area charges set forth in Agreement of Easements, Covenants and Conditions by and between 319 ASR, LLC and W2005 BWH II Realty, L.L.C. dated as of September 30, 2011 and recorded in Book 48461, Page 76, as affected by Resignation as Operator Under Agreement of Easements, Covenants and Conditions, dated as of May 29, 2013 and recorded in Book 51516, Page 193. (Affects Parcel Four only).

11. Vote of Designation by the Boston Landmarks Commission, creating the Fort Point Channel Landmark District, dated December 9, 2008, and recorded in Book 44505, Page 164.

 

2


12. Plan entitled “ALTA/ACSM Land Title Survey, 319A Street & 327-347 Summer Street, Boston, MA (South Boston District)” dated April 12, 2013, last revised June 26, 2013, prepared by Harry R. Feldman Inc. discloses the following matters:

a. Cornices and metal loading dock encroach into Summer Street (327 Summer Street property); and

b. Cornice, fire alarm, lights and sign encroach into Summer Street (337 Summer Street property).

 

3


EXHIBIT COMMENCEMENT DATE

FORM OF COMMENCEMENT DATE AGREEMENT

Reference is made to that certain Lease by and between DWF III SYNERGY, LLC, a Delaware limited liability company, Landlord, and LOGMEIN, INC., a Delaware corporation, Tenant, and dated                     .

Landlord and Tenant hereby confirm and agree that:

 

  1. The Commencement Date under this Lease is                     .

 

  2. The Expiration Date under this Lease is                     .

 

  3. The Base Rent due under the Lease commences on                     .

This Commencement Date Agreement is executed as of                     , 201    .

 

LANDLORD:

DWF III SYNERGY, LLC

By:

 

 

Name:

 

 

Title:

 

 

TENANT:

LOGMEIN, INC.

By:

 

 

Name:

 

 

Title:

 

 

    Hereunto Duly Authorized

 

4

Exhibit 21.1

 

Subsidiary

   Jurisdiction of Incorporation

3LI Securities Corporation

   Massachusetts

3AM Labs Kft.

   Hungary

LogMeIn Europe B.V.

   The Netherlands

RemotelyAnywhere, Inc.

   Delaware

LogMeIn Australia Pty. Ltd.

   Australia

LogMeIn UK, Ltd.

   United Kingdom

Xively, Ltd.

   United Kingdom

LogMeIn Brazil Ltda

   Brazil

Nihon LogMeIn K.K.

   Japan

LogMeIn (Private) India Limited

   India

LogMeIn Ireland Ltd.

   Republic of Ireland

LogMeIn Ireland Holdings Ltd.

   Republic of Ireland

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in registration statement Nos. 333-193696, 333-162644, 333-165668 and 333-169884 on Form S-8 of our reports dated February 20, 2015, relating to the financial statements of LogMeIn, Inc. and subsidiaries and the effectiveness of LogMeIn, Inc.’s internal control over financial reporting, appearing in this Annual Report on Form 10-K of LogMeIn, Inc. for the year ended December 31, 2014.

/s/ Deloitte & Touche LLP

Boston, Massachusetts

February 20, 2015

Exhibit 23.2

 

LOGO

890 Winter Street

Waltham, Massachusetts 02451

tel (781) 890-7033

fax (781) 890-7034

February 20, 2015

PERSONAL AND CONFIDENTIAL

Mr. Edward Herdiech

Chief Financial Officer

LogMeIn, Inc.

320 Summer Street

Boston, MA 02210

Mr. Herdiech:

We hereby consent to the inclusion in LogMeIn, Inc.’s (“LogMeIn” or the “Company”) Form 10-K filing of references to our reports relating to the valuations of certain assets in relation to the Company’s acquisitions of Ionia Corporation (“Ionia”), BBA, Inc. (“BBA” or “Meldium”), and a San Francisco-based collaboration software provider, and to references to our firm’s name therein.

In giving such consent, we do not hereby admit that we come within the category of a person whose consent is required under Section 7 or Section 11 of the Securities Act of 1933, as amended, or the rules and regulations adopted by the Securities and Exchange Commission thereunder, nor do we admit that we are experts with respect to any part of such Registration Statement within the meaning of the term “experts” as used in the Securities Act of 1933, as amended or the rules and regulations of the Securities and Exchange Commission thereunder.

Sincerely,

SHIELDS & COMPANY, INC.

 

By:

  LOGO
  Richard W. Newman
  Managing Director

Member: FINRA / Securities Investor Protection Corporation

Exhibit 31.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO

SECURITIES EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a), AS ADOPTED

PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Michael K. Simon, certify that:

1. I have reviewed this Annual Report on Form 10-K of LogMeIn, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation;

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: February 20, 2015

 

/s/    Michael K. Simon

Michael K. Simon
Chief Executive Officer

Exhibit 31.2

CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO

SECURITIES EXCHANGE ACT RULES 13a-14(a) AND 15d-14(a), AS ADOPTED

PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002

I, Edward K. Herdiech certify that:

1. I have reviewed this Annual Report on Form 10-K of LogMeIn, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation;

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: February 20, 2015

 

/s/    Edward K. Herdiech

Edward K. Herdiech
Chief Financial Officer

Exhibit 32.1

CERTIFICATION OF THE CHIEF EXECUTIVE OFFICER

PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED

PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report on Form 10-K for the fiscal year ending December 31, 2014 of LogMeIn, Inc. (the “Company”), as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Michael K. Simon, Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, to my knowledge, that:

(1) The Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Dated: February 20, 2015

 

/s/    Michael K. Simon

Michael K. Simon
Chief Executive Officer

Exhibit 32.2

CERTIFICATION OF THE CHIEF FINANCIAL OFFICER

PURSUANT TO 18 U.S.C. SECTION 1350, AS ADOPTED

PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Annual Report on Form 10-K for the fiscal year ending December 31, 2014 of LogMeIn, Inc. (the “Company”), as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Edward K. Herdiech, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes- Oxley Act of 2002, to my knowledge, that:

(1) The Report fully complies with the requirements of Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Dated: February 20, 2015

 

/s/    Edward K. Herdiech

Edward K. Herdiech
Chief Financial Officer